The decision in the appeal filed by Vickash Ramkissoon and Sarah Browne challenging the High Court’s ruling which nullified their appointments as Parliamentary Secretaries is now pending, as the Court of Appeal is still to determine whether it is bound by its earlier decision in the case of the Attorney General v. Desmond Morian.

In April 2021, Chief Justice (ag), Roxane George ruled that the appointment of Ramkissoon and Browne as Parliamentary Secretaries was unconstitutional on the basis that they were unlawful members of the National Assembly.

In handing down the ruling, the Chief Justice said the Attorney General, Anil Nandlall, in an attempt to defend the PPP/C Candidates, found himself approbating and reprobating on a matter he had successfully argued in both the High Court and Court of Appeal.

Opposition Chief Whip, Christopher Jones, in challenging the appointments of Browne and Ramkissoon, had relied on the case – Attorney General v. Desmond Morian – in which both the High Court and Court of Appeal ruled that the then Minister within the Ministry of Social Protection, Keith Scott and the Minister of Citizenship Winston Felix could not sit in the House as Technocrat Ministers on the basis that they were listed on as APNU+AFC candidates.

Though Nandlall was the lead attorney representing Morian and won the case at both the High Court and Court of Appeal, he has now found himself arguing against the position he took in that case.

When the appeal came up today, Trinidad and Tobago’s Senior Counsel Douglas Mendes, who is leading a battery of lawyers from the Attorney General’s Chambers, insisted that the Appellate Court is not bound by its earlier decision. He argued that the Court of Appeal in the case of Desmond Morian did not address the substantive issue, but only that of jurisdiction. 

“As long as the court has not pronounced upon a particular issue of law then it does not constitute binding precedence,” Senior Counsel Mendes told the panel of judges led by the Chancellor, Justice Yonette Cummings.

But Justice of Appeal, Dawn Gregory, who was a part of the panel of Appellate Judges in the case of Desmond Morian, said when the matter was reviewed, it was found that the Court of Appeal, at the time, affirmed the decision of the late Chief Justice Ian Chang, and in doing so, took into consideration not only the issue of jurisdiction, but also the substantive issues.

Senior Counsel Mendes, however, insisted that, the Appellate Court at the time did not express an opinion on what the Constitution meant by ‘elected member of the National Assembly.’

“The question is, do you consider yourself bound by a decision in which you expressed no opinion, you consider no argument, therefore, you did not form any view as to whether the argument was correct or not, you made no determination, you made no consideration, nothing,” Senior Counsel Mendes asked.

In support of his argument, he submitted a number of authorities, warning that if the issue is left unresolved, it could lead to an absurdity.

But Senior Counsel Roysdale Forde, who together with Attoney-at-Law Selwyn Pieters appeared on behalf of Christopher Jones, told the Appellate Judges that the arguments put forward by Senior Counsel Mendes are absurd.

He said as articulated by Justice Gregory, the decision of the Court of Appeal in the case of Desmond Morian is binding, and as such the appeal filed by Ramkissoon and Browne should be dismissed.

“I respectfully submit that having regard to the Court of Appeal affirm the judgement of Justice Chang, and expressly said it, in the context of our legal system, the extant decision, which exist in our jurisprudence, is the judgement of Justice Chang incorporated, accepted, confirmed and affirmed into the Court of Appeal’s judgement,” Senior Counsel Forde argued.

Upon hearing the arguments put forward by the two sides, the Chancellor committed to having the authorities reviewed.

However, she made it clear that in order for the earlier decision of the Appeal Court to be set aside in the Case of Desmond Morian, the case would have to be heard by a panel of five judges, but there are only four available Judges at the moment in the Appeal Court.

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