Phillip v. The Attorney General (Trinidad & Tobago) [2009] UKPC 18 (05 May 2009)

LORD CARSWELL

1.	The appellant is a leading member and imam of the Jamaat al Muslimeen (“the Jamaat”), an organisation of Muslims in Trinidad and Tobago.  The Jamaat has been in dispute with the government on many occasions, most of which are not relevant to this appeal.  The most serious conflict, which forms the background to the present proceedings, was the armed occupation by members of the Jamaat in 1990 of the national parliament and television station.  The complex subsequent history led to two successful appeals to the Privy Council in relation to criminal prosecutions. Civil actions also were brought, both by the Jamaat and by the Government, the consequences of which are material to this appeal.

2.	The Jamaat sued the Police Commissioner in two actions and obtained an award for damages in each, the amounts being some $2 million and $700,000 or thereabouts respectively.  Then in 1994 the Government commenced proceedings against 115 defendants, including the Jamaat and the present appellant Lennox Phillip otherwise called Yasin Abu Bakr, claiming damages for trespass and damage to and/or destruction of property of the State at the time of the insurrection.  58 of the named defendants entered appearances to the writ of summons and the action proceeded against those defendants.  On 6 September 1996 the Government obtained judgment in default of defence for damages to be assessed.  On 15 January 2001 damages were assessed by Tam J in the sum of $15 million, with interest.  The total judgment debt with interest has increased very substantially up to the present time.

3.	On 6 February 2006 the Attorney General issued a summons on behalf of the Government, pursuant to the Remedies Against Creditors Act, for the sale of eleven parcels of land.  The respondents to the summons have raised a number of issues concerning the beneficial ownership of the lands, which may have to be resolved in due course on the hearing of the summons.  On 8 June 2006 they filed an elaborate affidavit sworn by Mr Abu Bakr in opposition to the summons, raising a major issue by way of defence to the claim.  The substance of the defence is that in a series of meetings between Mr Abu Bakr and the Prime Minister Mr Patrick Manning the latter agreed or represented on behalf of the Government that the judgment debt would not be enforced.  By notice dated 12 July 2006 the Attorney General applied to strike out Mr Abu Bakr’s affidavit, pursuant to RSC Order 41, rule 6, which provides that the court may order to be struck out of any affidavit “any matter which is scandalous, irrelevant or otherwise oppressive.”  The basis of the application is that the affidavit seeks to aver by way of defence to the summons the making of an agreement which was illegal and unenforceable in law, with the consequence that the whole affidavit was irrelevant to the issues which could properly be considered on the hearing of the summons.

4.	Before examining the content of the affidavit, which it will be necessary to do in some detail, it may be of assistance to set out the political background.  The governments of the United National Congress (“UNC”) and the People’s National Movement (“PNM”) alternated over the course of the 1990s.  The Jamaat held talks with both parties in an attempt to obtain resolution of a number of matters of concern to them, including the judgments referred to above.  In December 2001 a general election resulted in a tie 18-18 between the parties.  Mr Manning, the leader of the PNM, was invited to form a government and became Prime Minister.  The stalemate left matters in an unsatisfactory state and it was likely that another general election would follow before too long.

5.	Mr Abu Bakr stated in the affidavit that in mid-2002 or thereabouts he was approached by intermediaries on behalf of the Prime Minister and informed that the Prime Minister would like to meet him, with a view to discussing certain issues which needed to be addressed before any election, in particular mobilising young people to vote in the marginal constituencies and the escalating level of crime in certain areas.  There followed a series of meetings between Mr Abu Bakr and the Prime Minister at Basilier House, the latter’s official residence.

6.	It is stated in paragraph 12 that the first meeting with the Prime Minister focused on the upcoming elections, the Prime Minister voicing his concerns about the level of crime in certain areas and the mobilisation of voters.  He expressed the view that the Jamaat exercised influence in certain areas and over certain areas of the population and that his government wanted the Jamaat to work with them on these areas of concern.  Mr Abu Bakr raised a number of matters, including the issue of the judgment, in which he claimed that successive governments had treated the Jamaat very badly over the years.  The Prime Minister told him that this was an opportunity for the Jamaat to work with his government “to change all that”.

7.	At the next meeting a week later Mr Abu Bakr presented to the Prime Minister a list of what the Jamaat and he wanted in exchange for their collaboration with the Government.  The Jamaat had decided that before they agreed to work with the Government they had to have an agreement on these matters, which included assurances that there would be no attempt to enforce payment of the judgment debt.  At the meeting the Prime Minister expressed himself as being receptive to dealing with the matters raised by Mr Abu Bakr.  He stated, according to paragraph 16 of the affidavit, that some would have to wait until after the election, but that “some of the areas were easier to deal with and that he would agree to those matters immediately.”  One of these was the judgment debt.  Paragraph 16 goes on in relation to this:
“With regards to the Judgment for damages owed by the Jamaat and the other Defendants herein the Prime Minister stated that he regarded that judgment as a ‘paper judgment’ that would never be enforced and he referred to it as a ‘dead issue’ for the Government.  He stated very clearly that his Government had no intention to enforce the judgment and that there would be no attempt to enforce the award of damages.  The Prime Minister also pointed out to me that since the award of damages there had been no further proceedings against the Jamaat or any of its members to enforce the award of damages or otherwise. We did not discuss the exact figure and while I was aware that the award of damages of $15 Million was subject to interest I was unsure what was the final figure. This was of particular concern to the Jamaat because it had instructed its Attorney-at-Law to institute proceedings to set aside the judgment and to appeal the award of damages made by Mr. Justice Tam …”

8.	After discussion of the judgments in favour of the Jamaat and the issue of crime, the talks moved to the issue of the marginal seats.  Mr Abu Bakr set out the course of the discussions in paragraphs 19-21 of the affidavit:
“19. … The Prime Minister informed me that the marginal seats would win or loose [sic] the election for the Government.  He indicated to me that he wanted me to be one of his advisors as to how to run the election campaign in the marginals.  He wanted me to report to him on the strategy to be adopted and the persons involved and the success of the campaign on a weekly basis.  Further my role was to develop a strategy to go into the marginal constituencies and sway people from supporting the UNC and come over to the side of the PNM. He noted that the people had become disenchanted with the current Government and he wanted me together with the other members of the Jamaat to re-establish the popularity of the PNM in these areas.  He noted that the young people in these areas were not interested in voting and they needed to be mobilized into supporting the PNM to return him to Government.  He said I would be in charge of bringing home the marginals of San Fernando West, Mayaro and Tunapuna.

20.  The Prime Minister then explained that in return for the matters promised to the Jamaat by the Government the Government wanted the following specific things:

•		That the Jamaat would work within the crime 	ridden areas to bring about a reduction in crime
•		That the Jamaat would work within the poor areas 	in the marginal constituencies to mobilise the 	voting persons to vote.  These areas were referred 	to as ‘ghetto areas’.
•		That in particular areas the Jamaat and its members 	would be responsible for developing strategies to 	ensure a high or higher than usual turnout of voters 	in the marginal constituencies.
•		That the Jamaat would publicly come out in favour 	of the ruling party in Government and endorse the 	PNM party for re-election.
•		That the Jamaat and its members would work 	actively in campaigning for the PNM party in the 	marginal seats. The Jamaat would ‘go to the 	people’ and ensure that they voted and voted for the 	PNM party.
•		That the Jamaat would be responsible for ensuring 	the orderly implementation of social programs in 	the targeted marginal constituencies.

I, on behalf of myself, the members of the Jamaat and the Jamaat agreed to these matters and to collaborate with the Government and the PNM political party in the election campaign and to reduce crime before the next election.

21.  I asked the Prime Minister what exactly was desired in the marginal seats and what was meant by ‘social programs’.  He told me that that would be left to me and he said, ‘You know better than anyone else what to do since you did it for the UNC. You win for the UNC you can win for the PNM.’  He then laughed. The Prime Minister and I agreed to meet every Wednesday at Balisier House to continue our discussions and to ensure that our agreement was proceedings [sic] according to plan.”

9.	At his next meeting with the Prime Minister Mr Abu Bakr outlined the strategy which the Jamaat and its members would follow.  Three of the items were described in paragraph 25 of the affidavit as follows:
•	“Run a parallel campaign endorsing the policies of the PNM Government and the PNM party for re-election to Government as 	a Jamaat campaign involving political meetings.

•	Advise the Prime Minister on the election strategy for the marginal seats and assist in the PNM campaign in those seats in the setting up of political meetings.

•	The Jamaat would campaign on the street to ensure that there was a high level of voter registration and turnout for the election.”

In paragraph 26 of the affidavit Mr Abu Bakr stated:
“The Prime Minister then explained that whatever needed to be done was to be done by the Jamaat and that while the Government and its bodies would be able to assist in some respects and the PNM would also assist that it was entirely a matter for the Jamaat to ensure that the PNM won the marginal seats.”

10.	Mr Abu Bakr described in the affidavit the steps which the Jamaat took to implement this strategy and its apparent success, in that the PNM won the election, taking most of the marginal seats targeted by the Jamaat.  He then described his disappointment over the failure of the Government to abide by the terms that he had agreed on behalf of the Jamaat, which they felt was a betrayal.  Throughout the affidavit he used the word “agreement” of the arrangement which he reached with the Prime Minister, stating in paragraph 60 that the Jamaat acted in pursuance of the agreement, not through any sense of loyalty to the Prime Minister, his Government or his party, which was not universally supported among Jamaat members.  He stated in paragraph 51:
“By the end of the second and third meeting with the Prime Minister we had a concluded agreement with the terms of the agreement defined precisely in terms of the benefit to the Jamaat and that agreement was made by the Prime Minister holding himself out as having the power to make the agreement on behalf of the Government and I representing the Jamaat and its individual members.”

In paragraph 59 he stated specifically:
“As stated above the agreement which was made between the Prime Minister and myself expressly covered the enforcement of the damages ordered by Mr Justice Tam to be paid by the Jamaat.  It is because of the facts stated herein that I am thoroughly amazed at the Attorney General’s application to have the property of myself and Mr Aki Bua sold in order to satisfy a debt which, as far as we were concerned, was the subject of an agreement which we have since satisfied in 2001.”

11.	In an oral judgment given on 8 December 2006 and confirmed in a short written judgment on 18 December 2006 Narine J dismissed the Attorney General’s application to strike out the affidavit.  He did so on the ground that the application was premature, without deciding whether there was a case in law for striking it out as irrelevant.  He referred to the line of authority deploring the staying of proceedings for appeals against rulings made in the course of trials and expressed the view that determination of the issue should take place only when all the facts have been put before the court.

12.	The Attorney General appealed to the Court of Appeal (Kangaloo, Archie and Mendonca JJA), which in a written judgment dated 15 January 2007 allowed the appeal.  In the judgment Mendonca JA, with whom the other members of the court agreed, held first that the Court of Appeal had power to hear the appeal from the interlocutory decision of Narine J, notwithstanding the terms of CPR 64.9 (1), which reads:
“The Court may not hear a procedural appeal from a decision made in the course of a trial or final hearing of the proceedings.”

He held that the rule applied to the case but that it was not mandatory, so that an appeal could be entertained in exceptional circumstances, which could encompass the instant case.  He held that the agreement between the Prime Minister and Mr Abu Bakr on behalf of the Jamaat was illegal and unenforceable both under section 3 of the Prevention of Corruption Act and at common law.  It therefore could not be relied on as a defence to the summons and the affidavit was accordingly irrelevant, as well as comprising scandalous material.  The offending material could not be severed and in consequence the whole affidavit should be struck out under RSC Order 41, rule 6.

13.	The first issue which was argued in the Court of Appeal was whether an appeal lay from the judge under CPR 64.9(1).  The Board consider that the Court of Appeal were right to hold that an appeal lay, but for different reasons.  In the Board’s view the terms of the rule are mandatory and do not admit of exceptions.  The rule only applies, however, to appeals from decisions “made in the course of a trial or final hearing of the proceedings.”  It is aimed at preventing the disruption of trials and delays in their disposition by appeals against rulings made by the trial judge in the course of the hearing.  Such rulings are frequently made during trials on such matters as the amendment of pleadings, the admissibility of evidence or the issues to which evidence can be directed on the pleadings in libel actions, and it would be intolerable, as the court pointed out in Algico v Super Chem Products Ltd (1995) 51 WIR 298 and Ramkelawan v Dhan Alexander (Civil Appeal 146 of 1992), if the proceedings could be held up, perhaps several times, while appeals were brought on issues which might even become academic at the end of the trial.  The summons to strike out the affidavit in the present case does not, however, fall into this category.  The court had not entered into the substantive hearing of the summons for sale, but was dealing with a preliminary matter the resolution of which was capable of defining and possibly shortening the matters which would fall to be argued on the substantive hearing.  It was not covered by CPR 64.9(1) – assuming that it applied at all to the present case, on which the Board express no opinion – and it was open to the party aggrieved by the judge’s decision to bring an appeal and to the Court of Appeal to hear it.

14.	In the opinion of the Board the Court of Appeal were correct to hold, distinguishing In re Jessop (A Solicitor) [1910] WN 128, that it was not necessary or appropriate to wait until all the evidence was before the court before determining the legal effect of the affidavit.  If the evidence in that affidavit is taken at its height and assumed to be true correct in all respects, there is nothing which could be added to it to improve the case for the appellants.  The issue of the illegality alleged by the Attorney General and the consequent irrelevance of the affidavit can be judged at this stage and it is right that it should be, rather than incurring the delay and expense involved in going to a full hearing with all the evidence.

15.	On the substance of the appeal, it is important to note that the case concerns a private law action brought by the Attorney General on behalf of the State of Trinidad and Tobago against the Jamaat for damages.  If the Prime Minister made an agreement on the lines alleged in the affidavit, it could not have been made on behalf of the State.  The agreement averred to in the affidavit was on its terms designed to advance the electoral prospects of the Prime Minister’s political party.  The Board do  not see how such an agreement could bind the State and constitute a defence to a damages action brought by the State.

16.	The case made on this appeal was concerned with a different issue.  The essence of the argument advanced case made by the Attorney General in seeking to strike out the affidavit is that the agreement on which the Jamaat rely was illegal, both by statute and at common law, and as such could not be enforced.  The statutory provision on which this submission is based is section 3 of the Prevention of Corruption Act 1987, which reads:
“3(1) -- Every person who, by himself or by or in conjunction with any other person, corruptly solicits or receives, or agrees to receive, for himself or for any other person, any gift, loan, fee, reward, or advantage whatsoever, as an inducement to, or reward for, or otherwise on account of, an agent doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual, or proposed, in which the State or a public body is concerned, is guilty of an offence.

(2) -- Every person who, by himself or by or in conjunction with any other person, corruptly gives, promises or offers any gift, loan, fee, reward, or advantage whatsoever, to any person, whether for the benefit of that person or of another person, as an inducement to, or reward for, or otherwise on account of, an agent doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the State or a public body is concerned, is guilty of an offence”

Section 2 defines an “agent” as including “any person serving under the state or other public body or holding a public office”, which will include the Prime Minister.  In Jagdeo Singh v State of Trinidad and Tobago [2005] UKPC 35, [2006] 1 WLR 146, 152, paragraph 15 the Board, in construing these provisions, adopted the statement of Willes J, giving the advice of the judges to the House of Lords in Cooper v Slade (1858) 6 HLC 746, 773:
“I think the word ‘corruptly’ in this statute means not ‘dishonestly’, but in purposely doing an act which the law forbids as tending to corrupt voters, whether it be to give a pecuniary inducement to vote, or a reward for having voted in any particular manner.  Both the giver and the receiver in such a case may be said to act ‘corruptly’”

The essence of the agreement between the Prime Minister and Mr Abu Bakr on behalf of Jamaat was that certain advantages would be given to the Jamaat out of State property, in return for securing voting support for the Prime Minister’s political party.  In the opinion of the Board this was corrupt within the meaning and intendment of section 3 and each party to the agreement was acting in contravention of the section.  It is quite apparent that it was quite different in kind from the “pork-barrel” arrangement, whereby governments take actions which are proper exercises of power, but which may favour certain areas or classes of people, in the hope and expectation of electoral support.  The latter may, depending on the facts, be justifiable as a legitimate public purpose.  But the whole purpose of this agreement was to obtain electoral advantage for one political party, the PNM, by means of using State property, and as such it was clearly illegal.

17.	The Court of Appeal also held that the agreement was illegal at common law, as being contrary to public policy.  It is not strictly necessary to decide this point, in view of the Board’s conclusion on statutory illegality, and it is desirable to be cautious about the extent of the concept of public policy: see the discussion in Chitty on Contracts, …. th ed, para 16-004.  There is, however, a well recognised head of illegality of contracts which tend to corruption in the administration of the affairs of the nation: see Cheshire, Fifoot & Furmston’s Law of Contract, 15th ed, p 485 and the authorities there cited, and cf Anson’s Law of Contract, 28th ed, p 357.  The proposition that the agreement in question in the present appeal falls into that category appears to be well founded, but the Board do not require to give a definitive ruling on it.

18.	The agreement was illegal from its inception, with the consequence that no person can claim any right or remedy under it, irrespective of his knowledge of its illegality: Cheshire, Fifoot & Furmston, op cit, pp 487, 489, Chitty, para 16-007, Anson, p 400.  Neither party can rely upon it in order to obtain any relief.  It must follow that Mr Abu Bakr and the Jamaat cannot rely on the agreement made with the Prime Minister as a defence in the summons for payment of the judgment debt, for it is essential to their defence.  No issue arises about money already paid or property transferred, so it is unnecessary to consider the authorities on that topic.  Nor is it a case where the parties might be said not to be in pari delicto, so it is equally unnecessary to consider whether any balancing exercise should be carried out.

19.	Mr Robertson QC for the Jamaat sought to escape from this consequence by arguing that the Prime Minister’s statement that there would be no attempt to enforce the judgment did not form part of his agreement with Mr Abu Bakr and the Jamaat, but was merely an announcement that decisions had previously been taken about that and the other concessions to the Jamaat set out in paragraph 16 of Mr Abu Bakr’s affidavit.  In so submitting he pointed to the wording of the Prime Minister’s statement relating to the judgment set out in paragraph 16:
“With regards to the Judgment for damages owed by the Jamaat and the other Defendants herein the Prime Minister stated that he regarded that judgment as a ‘paper judgment’ that would never be enforced and he referred to it as a ‘dead issue’ for the Government.  He stated very clearly that his Government had no intention to enforce the judgment and that there would be no attempt to enforce the award of damages.”

Counsel submitted that at the stage at which this statement was made Mr Abu Bakr had not promised any consideration or reward and had not offered any inducement for the Prime Minister’s assurance.  The appellants therefore did not behave corruptly nor was the waiver of the judgment debt part of any terms agreed with the Prime Minister.

20.	The Board are unable to accept this argument.  The sentences quoted above have to be read in the context of the whole affidavit.  Throughout the affidavit Mr Abu Bakr constantly referred to the “agreement” reached between the Government and the Jamaat.  In paragraph 59 he specifically stated that the agreement “expressly covered the enforcement of the damages”.  It is abundantly clear that he considered that all the items which he had sought on behalf of the Jamaat and put to the Prime Minister by way of a “shopping list” of the Jamaat’s demands were an integral part of the bargain.  They were offered “in exchange for our collaboration with the Government” (para 15), viz that the Jamaat would give the PNM its important electoral support.  Mr Robertson’s argument as presented at the hearing before the Board was that all of the four major concessions sought by the Jamaat (the transfer of the lands at Mucurapo, the funding of its school, the waiver of the judgment debt and the payment of the damages awarded to the Jamaat) were already “done deals” and were not contingent or conditional on any assistance by the Jamaat.  If this were correct, there would have been virtually no benefit remaining to be conferred on the Jamaat in return for its essential assistance.  On the contrary, the Board consider that the basket of benefits was all to be delivered in the future in return for the Jamaat’s efforts.  It hardly needs to be pointed out that although the judgment had not been enforced until the time of the meetings between the Prime Minister and Mr Abu Bakr, what mattered to the Jamaat was whether it would be enforced in the future.  The Board are therefore satisfied that the waiver of the judgment debt was an integral part of the illegal agreement and was unenforceable.  The Board agree with the Court of Appeal, for the reasons which they gave in paragraphs 48 to 50 of Mendonca JA’s judgment, that it is not a case for severance of the lawful parts from the illegal content of the agreement.

21.	This being so, the affidavit propounding the agreement was irrelevant, as the Jamaat could not rely upon the agreement as a defence to the application for sale of the lands. The respondent should not have to incur the expense which would be involved in filing rebutting evidence.  Nor should the proceedings be held up over the delay which would be an inevitable consequence of filing evidence, disclosure of documents and possible cross-examination of deponents.  It is on this ground of irrelevance, rather than that of any inconvenience or embarrassment to the Prime Minister, that the Board consider that the decision of the Court of Appeal should be affirmed.

22.	The appeal will be dismissed with costs.