Privy Council Appeal No 30 of 2008

Lennox Phillip also called Yasin Abu Bakr Appellant

v.

The Attorney General of Trinidad and Tobago Respondent

FROM

THE COURT OF APPEAL OF

THE REPUBLIC OF TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 5th May 2009

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Neuberger of Abbotsbury

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[Delivered by 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

[2009] UKPC 18
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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
 3

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
 4

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
 5

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
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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
 7

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,
 8

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 was in effect at all in relation 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 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 by the Attorney General in
seeking to strike out the affidavit is that the agreement on which the
 9

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
 10

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,
30th ed (2008), 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 (2006), p 485 and the authorities there cited, and cf
Anson’s Law of Contract, 28th ed (2002), 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:
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“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.
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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.