Emma Hlppolyte Applicant v Attorney General Respondent [ECSC]

JurisdictionSt Lucia
CourtHigh Court (Saint Lucia)
Judgment Date12 July 1995
Judgment citation (vLex)[1995] ECSC J0712-1
Date12 July 1995
Docket NumberSUIT No. 512 of 1993
[1995] ECSC J0712-1



A.D. 1995

SUIT No. 512 of 1993

Emma Hlppolyte
Attorney General

Mr. A. Alexander Q.C. and Mr. H. Deterville for Applicant.

Mr. E. Thomas, Solicitor-General, and Mrs. A.—Foster for the Respondent.


On January 4, 1994 the Applicant who held the post of Director of Audit up to August 31, 1993 filed a notice of motion to the effect that she was unlawfully removed from her post as Director of Audit. On the same day she filed an affidavit in support of the notice of motion.


On January 20, 1995 she filed an amended notice of motion requesting five orders and six declarations but all emanating from the alleged unlawful termination of her services or the unlawful removal from her post as Director of Audit. OnJanuary 24, 1995 she filed a supplemental affidavit to which she exhibited several documents which were referred to in her original affidavit.


On February 4, 1994 the Respondent entered an appearance and on February 28, 1994, Ausbert d'Auvergne, Permanent Secretary in the Ministry of Planning, Personnel, Establishment and Training filed an affidavit in answer to the original notice of motion.


On January 26, 1995, Johnson Cenac, Personal Secretary in the Ministry of Personnel, Establishment and Training filed an affidavit in response to the amended notice of motion.


A request for hearing had already been filed on October 20, 1994.


In the presentation of his case, learned Senior Counsel for the Applicant stated that the application was being made undersection 105 of the Constitution of Saint Lucia.


In her affidavit filed on January 4, 1994 Emma Hippolyte stated that by a memorandum dated July 25, 1986 the Public Service Commission advised the Director of Audit that they had approved her appointment as Deputy Director of Audit on contract for three years with effect from August 1, 1986. That document was exhibited asE.H.2.


She said she commenced her employment in the public service of SaintLucia on August 1, 1986 in the post of Deputy Director of Audit on secondment for a period of three years from the National Commercial Bank where she was employed.


She stated that by letter to her dated August 21, 1986 the Public Service Commission stated that they had approved her appointment to the post described as Deputy Director of Audit (Director of Audit designate). She said it was an express term and condition of the offer that the appointment was on contract for a period of five years and was terminable by six months' notice in writing by either side. But it was provided that on the appointment to the post of Director of Audit the condition regarding termination by six months' notice would become null and void and would be replaced by the condition regarding termination relating to the Director of Audit contained in the Constitution.


She said she performed the duties of Deputy Director from August 1, 1986 to May 31, 1987.


She said on May 22, 1987 the Acting Governor-General pursuant to section 90 of the Constitution appointed her as Director of Audit from June 1, 1987. She said the instrument of appointment made no reference to the duration of her appointment or to the letter of August 21, 1986.


She tendered in evidence the letter dated August 21, 1986 as exhibitE.H.3 and the instrument of appointment by the Acting Governor-General as E.H.4.


She stated that acting on the erroneous belief that she was appointed on a4 five year contract from August 1, 1986 she wrote to the Public Service Commission and advised them of her intention to renew and renegotiate the contract. That letter dated December 31, 1990 is exhibited as E.H.5.


The Permanent Secretary Planning, Personnel, Establishment and Training responded to her request on July 15, 1991 and that was exhibitE.H.6. Further correspondence on the matter followed on July 18, 1991, December 5, 1991 and on May 25, 1992 by exhibit E.H.10. she entered into an agreement with the Government of Saint Lucia to continue in the office of Director of Audit for a two year period from August 1, 1991 to July 31, 1993.


She referred to a legal opinion on the two-year contract given to her by the Attorney-General two days after the agreement was signed by herself and Ausbert d'Auvergne on behalf of the Government.


She stated that by letter dated January 18, 1993 she wrote to the Permanent Secretary in the Ministry of Planning, Personnel, Establishment and Training advising him of her willingness to remain in the employment of the Government as Director of Audit after the contract ended on July 31, 1993. This was exhibitE.H.13. She sent a reminder on April 29, 1993.


On June 25, 1993 she received a reply from the Permanent Secretary informing her that the Government did not wish to avail itself of her offer and that her services would not be required beyond the contract period. That letter was tendered as exhibitE.H.15.


On July 29, 1993 the Permanent Secretary sent a memorandum to the staff of the Audit Department informing them that the two-year contract of the Director of Audit would expire on July 31, 1993 and that Mrs. Arlette Hyacinth, the Deputy Director, would be the officer in charge. That wasE.H.16.


On the same July 29, 1993 the Permanent Secretary advised the Appellant by memorandum to proceed on 20 working days vacation leave. That wasE.H.17.


These are the essential facts of a lengthy memorandum interspersed with legal arguments and/or submissions.


The affidavit of Ausbert d'Auvergne does not dispute the facts stated above and it mainly contains legal arguments which were not only repeated in Cenac's later affidavit but also submitted by the learned Solicitor-General at the hearing.


To do justice to the Respondent I shall state some of the contents of Cenac's affidavit filed on January 26, 1995.


Johnson Cenac stated that it was his understanding and belief that it was within the competence of any sovereign government to enter into any contract even in relation to service in the public service of Saint Lucia and even in respect of posts created by the Constitution. He said that during the time he had been attached to the Ministry he had witnessed the execution of contracts of service for senior management and professional posts.


He said it was his firm understanding that it is the settled executive policyof the Government to fill certain critical posts in the public service by contract in order to attract well qualified and experienced persons.


He said that at the present time there are more than ten persons appointed to senior posts in the public service whose terms and conditions are governed by contract and included in these were the Comptroller of Inland Revenue, the Chief Engineer, the Director of Legislative Drafting, Magistrates, Medical Doctors and the Solicitor General.


He stated that where a person is to be appointed to an established post in the public service of Saint Lucia, including the post of Director of Audit, it is mandatory for such appointment to be made by the relevant constitutional authority but the terms and conditions governing such employment are either to be statutory and/or constitutional or as negotiated and agreed on between the Executive, acting through the Ministry, and the other contracting party, subject to the Constitution.


He stated that he had been advised and he verily believes that it has recently been established that the determination of terms and conditions for public officers is the province of the Executive and not that of the Public Service Commission or other Commissions established by the Constitution or the Governor-General.


He further stated that the Applicant of her own free will entered into a five-year contract and later a two-year contract with the Government and that such contracts are to be read in conjunction with the appointment of the Applicant by the Governor-General on May 22, 1987.


He stated that for the duration of the two contracts the Applicant was on secondment from the National Commercial Bank and as such permanent tenure and secondment are contradictory or mutually exclusive and further the Applicant resumed her employment with the National Commercial Bank on the expiration of the second contract.


In paragraph 20 of her affidavit filed on January 4, 1994 the Applicant stated that she resumed employment with the National Commercial Bank at its head office in order to mitigate her losses.


Cenac stated that as Director of Audit the Applicant received salary, allowances and gratuity in excess of the prescribed amounts which she would have received had her terms and conditions not been fixed by the two contracts referred to earlier. He said further that the receipt of gratuity on the expiration of a contract is inconsistent with holding office until the attainment of the prescribed age.


He said he was advised and verily believes that section 90 subsections (1), (5), ( 6) and (7) of the Constitution do not prohibit or preclude the Government from entering into a contract with the person to be appointed Director of Audit.


He also stated that he was advised and verily believes that section 90, subsections (5), ( 6) and (7) are concerned with the age of retirement and the removal of the Director of Audit from office and are matters which do not concern the Applicant having regard to her legal circumstances while holding the said postof Director of Audit; and further that cessation of office by virtue of the expiration of a contract and removal or dismissal are separate and distinct legal concepts with the former being governed by the terms of the contract and the latter by the Constitution.


He tendered several exhibits. I shall refer to the relevant ones. ExhibitJ.C.1 is a...

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