Huggins Neal Nicholas Appellant v [1] Attorney General [2] The Teaching Service Commission Respondents [ECSC]

• Jurisdiction: St Lucia
• Court: Court of Appeal (Saint Lucia)
• Judge: BAPTISTE, J.A. [AG.],Justice of Appeal [Ag.],Chief Justice,Davidson Kelvin Baptiste,Hugh A. Rawlins,Michael Gordon, QC
• Judgment Date: 22 March 2010
• Judgment citation (vLex): [2010] ECSC J0322-6
• Docket Number: HCVAP 2008/018
• Date: 22 March 2010

[2010] ECSC J0322-6

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal [Ag.]

HCVAP 2008/018

Between:

Huggins Neal Nicholas

Appellant

and

[1] Attorney General

[2] The Teaching Service Commission

Respondents

Appearances:

Mr. Horace Fraser for the Appellant

Mrs. Brender Portland-Reynolds for the Attorney General

Civil Appeal – Damages – breach of contract – unpaid salaries – gratuity and pension – suspension from duties – reinstatement – whether the appellant abandoned or resigned his job – Prescription – Articles 2122 and 2124 of the Saint Lucia Civil Code – when did the cause of action arise – whether the cause of action was dependent on the reinstatement – whether there was a continuing cause of action –

In March 1997, the appellant was suspended from duty by the Teaching Service Commission after criminal charges were instituted against him. At first, he received half pay but his salary was stopped completely in October 1998. In March 1999 the criminal charges were dropped and the appellant wrote requesting that he be reinstated and his salary be paid but to no avail. He applied for study leave to pursue studies but a response was not forthcoming. In August 1999, he left to pursue studies in law in the United Kingdom where he subsequently qualified as a lawyer in 2002. The Commission advised the Ministry of Education to pay the appellant's salary up to October 2002 but this was not done. The appellant instituted legal proceedings in October 2005 claiming damages for breach of contract and unpaid salaries, but the claim was dismissed. The learned judge held that salary entitlement was due up to August 1999 when he resigned and by his voluntary act left the state to pursue studies without permission from his employer, thereby abandoning his post as a teacher. It was further held that the claim was prescribed by Article 2122 of the Saint Lucia Civil Code.

Held: setting aside the finding that the appellant resigned or abandoned his job but dismissing the appeal.

• 1. To sustain a finding of resignation there must be evidence which unequivocally establishes that the appellant formally relinquished his job as a teacher. In the absence of such evidence, the most eloquent manifestation of which would be of a documentary nature, it cannot be said that the appellant resigned.

• 2. Abandonment connotes a voluntary relinquishment of the performance of the duties of an office with the actual or imputed intention on the part of the office holder to abandon and relinquish that office. The appellant never voluntarily relinquished the performance of the duties of his office. He was unable to execute the functions of his office because of the failure to reinstate him to his job after the criminal charges against him were dropped. As long as the suspension of the appellant continued, he was effectively unable to perform his duties as a teacher. In the circumstances, a finding that the appellant abandoned his job when he went to study in the United Kingdom cannot be justified and is not sustainable. On the evidence, the learned judge could not properly have reached that conclusion.

• 3. The entitlement to the salary withheld under Rule 33 of the Commission's Regulations depended on an unconditional acquittal by the court of the criminal charges or the clearing of disciplinary proceedings instituted by the Commission. The entitlement does not depend upon nor is it linked to reinstatement. Reinstatement is not a condition precedent for maintaining a claim for unpaid salary. The cause of action therefore arose when the criminal charges against the appellant were dismissed in March 1999 and the payment of his withheld salary was not forth coming.

• 4. The appellant filed the claim in October 2005 outside the 3 year period prescribed by Article 2122 of the Civil Code for bringing a claim for wages or salaries. It should be noted that a continuing cause of action is not constituted by repeated breaches of recurring obligations or by intermittent breaches of a continuing obligation. There must be a quality of continuance both in the breach and in the obligation. The facts of this case do not constitute a continuing cause of action.

  Hole v Chard Union [1994] 1 Ch 293 and National Coal Board v Galley [1958] 1 WLR 16 applied.

BAPTISTE, J.A. [AG.]

1 This appeal has its genesis in the wrongful refusal or failure to reinstate the appellant to his teaching position and to pay his salary after criminal charges against him were dismissed. The judge dismissed the appellant's claim for damages on the grounds that he had abandoned or resigned his job and that the claim was brought outside the prescription period.

Background

2 The appellant was a teacher in the employ of the Government of Saint Lucia and subject to the disciplinary control of the Teaching Service Commission (the Commission). On 10^th March 1997 the Commission suspended him from duty following the institution of criminal charges for having sexual intercourse with a female student. He was initially suspended on half pay but on 1^st October 1998 his salary was stopped. On 4^th March 1999 the charges against the appellant were dismissed. He wrote, without success, seeking reinstatement and the remainder of his salary.

3 Undaunted by the situation, the appellant left Saint Lucia in August 1999 and pursued a 3 year course of study in the United Kingdom. He qualified as a lawyer and commenced legal practice in Saint Lucia in 2002. Before going to the United Kingdom the appellant had applied for study leave but was not favoured with a response. On 6^th December 2004, the Commission advised the Ministry of Education to pay the appellant's salary up to October 2002. The salary was not paid.

4 The appellant instituted legal proceedings on 14^th October 2005 claiming damages for inter alia breach of contract, unpaid salaries, gratuity and pension. The claim was dismissed. The learned trial judge held that there was a wrongful failure or refusal to reinstate the appellant and to pay him the arrears of salary due to him after the period of interdiction from duty should have ended. The judge found that the appellant was entitled to all the remuneration attaching to his post up to August 1999 when he resigned by his voluntary act of leaving the state and embarking on his unauthorized course of study. The judge found that the appellant left the state in 1999 without the permission of his employer and held that he abandoned his employment as a teacher in August 1999 when he commenced legal training.

5 The learned judge held that the appellant's claim was prescribed by Article 2122 of theSaint Lucia Civil Code which prescribes a period of 3 years in respect of claims for wages due. The learned judge stated that time would have started to run in August 1999 when the appellant resigned. To succeed, the appellant should have brought his claim within 3 years of August 1999. The claim was well outside the prescribed period having been filed on 14^th October 2005. The learned judge also stated that a contractual claim would still be too late as such a claim is prescribed by 6 years by virtue of Article 2124 of the Civil Code. The learned judge reasoned that the appellant ought to have been reinstated by 5^th May 1999 at the very latest when he was informed that the criminal charges had been dismissed. Thus the 6 year period would have expired before the claim was filed.

6 The judge's findings on abandonment and resignation informed his view on the running of time for the purpose of prescription. The question is whether those findings can be sustained. The appellant advanced two grounds of appeal against the decision of the trial judge.

Grounds of Appeal

Ground 1

7 The learned trial judge misdirected himself and therefore erred in law when he made findings of fact that were not pleaded or part of the evidence in the trialbefore him.

Matters not pleaded or in evidence

8 The findings of fact in Ground 1 relate to the appellant's abandonment of and or resignation from his post as a teacher. Mr. Fraser, learned counsel for the appellant, argued that it was not the respondent's pleaded case that the appellant abandoned his post or resigned, nor did they so contend in the evidence before the court. I have perused the amended defence and I agree with Mr. Fraser that the issue of abandonment or resignation was not pleaded. Mrs. Portland-Reynolds, learned counsel for the respondent, relied on paragraph 5(g)(ii) of the amended defence to rebut Mr. Fraser's contention. That paragraph however provides no answer. It simply states that the claimant left the state in July 2000 to pursue a course of study in law in the United Kingdom and was called as a Barrister-at-Law of the Eastern Caribbean Supreme Court on 8^th August 2002. That statement is certainly not a pleading of abandonment or resignation. Something more would be needed to transform it into such a pleading. Mrs. Portland-Reynolds also pointed to the evidence of the respondent's witness, Ms. Esther Brathwaite to show that abandonment or resignation arose on the evidence. Ms. Brathwaite stated that the appellant applied for study leave without pay but his request was not approved nor was he given permission to leave the State.

Ground 2

9 The learned trial judge misdirected himself and therefore erred in law by finding that the appellant resigned his post and abandoned his post when he went abroad to study which created the cause of action and the running of time leading to the prescription of his action for recovery of salary due to him.

Abandonment and Resignation

10 It is necessary to consider the concept of abandonment of office. What does that concept entail? I adopt the following definition of abandonment of office as stated inBlack's Law...