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Crafting legal history

Published:Sunday | August 7, 2011 | 12:00 AM
Henriques

The following is the conclusion of a feature on R.N.A Henriques, one of Jamaica's most seasoned legal minds.

Ken Jones, Contributor

Another case of paramount importance to the pension-funds industry began with former workers of Gillette Caribbean, the razor company, who had accepted their contributions, plus interest, at the termination of employment. Years later, they made further claims of entitlement when they learnt that the pension fund had a surplus.

The judge, at first instance, dismissed the claim on the grounds that they had already received all that was due under the Trust Deed and Rules. When the matter was appealed, the decision was reversed by a unanimous decision, which was arrived at under remarkable circumstances. One judge gave a basis for his decision, another gave a different basis for his, and the third agreed with both.

The Appeal Court's decision meant that ex-employees who had already made settlement could, many years later, lay claims that would leave a pension scheme insolvent. The dispute was referred to the Privy Council by the company with a team led by Roald Henriques and included Angela Fowler, Wentworth Charles and Jo-Anne Jackson. The employees were represented by Lord Gifford and John Graham. Their Lordships asked Henriques to provide one reason why the employees should not be entitled under a winding up of the scheme. After his prompt response, the Privy Council ruled that beneficiaries under a pension scheme were entitled only to what is provided for in the Trust Deed and Rules.

Business acumen

Henriques' business acumen is a factor that has enriched his arsenal of arguments. This was evident in the 1969 case of Hasphaltic International, a construction company based in the United Kingdom, against Dr Mann, a developer engaged in building the first apartment complex in the Cayman Islands. The company had constructed two full blocks, was half-way on a third and had received no payment at all. On consultation, it was discovered that both parties had the same legal representative. moreover, a solicitor from England, Douglas Calder, a Cambridge Blue, had arrived in Cayman to begin winding-up proceedings of Dr Mann's business.

Hasphaltic's call for help reached Ramon Alberga in Jamaica and he requested Henriques to take the case. The financial statements were carefully examined and Henriques advised that Hasphaltic was in danger of getting nothing out of a winding-up of Dr Mann's business. He forecast that the action would trigger the debentures and mortgages. The creditors in Canada would put up the property for sale and Hasphaltic, having no judgment debt and no security, would probably be left in the lurch. The course of action he proposed was for Hasphaltic to go to Canada and buy out the mortgage. When this advice was firmly rejected, Henriques asked to be relieved of the matter and returned to Jamaica.

Not long afterwards, Hasphaltic's head-office team arrived in Jamaica; and, after a full day's conference, agreed to follow Henriques' advice. They went on to purchase the mortgage in the name of a new company and, having acquired the property, sold it for a substantial profit.

Landmark incident

The 1967 Maffesanti Enquiry is another case in which Henriques played an important role. The landmark incident began with a contract between Kaiser Bauxite and Maffesanti for the construction of some houses for executive staff. Pearnel Charles of the BITU laid claim on behalf of the construction workers who wanted to be paid bauxite-wage rates, instead of the JIC rates that had been negotiated by the NWU, which had sole bargaining rights at the plant.

Maffesanti looked to Kaiser for a solution and, accordingly George Brown of Kaiser and Hugh Shearer of the BITU agreed for B. St. J. Hamilton to be appointed arbitrator. When the award was made, Brown, who had not been able to attend the hearing, disagreed with the decision favouring the BITU. There were allegations of complicity between the arbitrator and the BITU. The matter was taken to court to have the award quashed. In the middle of it Donald Sangster died and Shearer became prime minister.

As rumours of impropriety swirled, a commission of enquiry was set up to determine whether there was any interference or collusion with the arbitration. Sir Herbert Duffus was the sole commissioner. Henriques, instructed by Ross Livingston, appeared for arbitrator Hamilton. H.O.A. Dayes appeared for Brown, Ian Ramsay for the BITU and John Forest for Prime Minister Shearer. The solicitor general, Ira Rowe, marshalled the evidence. The hearing attracted public attention for some time and after rigorous cross examinations and, concluded submissions, the commissioner held that there was not sufficient evidence to make a finding adverse to either Hamilton, the arbitrator, or Brown, the instigator.

During the 1970s when there was an escalation of gun crimes, the government legislated to establish a Gun Court, which was painted red to indicate that it was 'dread'. The Bar Association challenged the constitutionality of the Gun Court Act. Henriques was part of the high-powered team that included Richard Mahfood and Lloyd Barnett. This became a landmark case in Constitutional Law as the Privy Council laid down the principle that implicit in the Jamaican Constitution was the separation of powers, that parliament had acted unconstitutionally when it created a Full Court Division of the Gun Court, presided over by resident magistrates' powers of judges of the Supreme Court.

The Privy Council also ruled that a Review Board of the Gun Court Act, to determine punishment, was inconsistent with the provisions of Section 90 of the Constitution. This case has been cited in several constitutional cases in the Commonwealth countries, particularly the Caribbean.

Constitution challenged

In 1976, the government declared a state of emergency and issued regulations concerning it. As a consequence, several persons were detained, particularly members of the Opposition Jamaica Labour Party. An action was brought challenging the constitutionality of the state of emergency, contending that the Constitution had no power for such a declaration and that such power was vested in an Emergency Law. This position was supported by the Court of Appeal of Trinidad and Tobago, presided over by Hugh Wooding. The matter came before Justice Smith who gave a decision contrary to all of the decided cases in the Caribbean.

A further point was raised that the Constitution required that there be a Review Board to review the detention of detainees; and when the case was being heard six months after the detention there was no Review Board. It was also contended that the state of emergency was declared for corrupt and illegal purposes. As a consequence, a commission of enquiry was set up and presided over by Chief Justice Kenneth Smith. It is remarkable that in those days because of the integrity of the Judiciary, there was no complaint that Justice Smith could not preside over the commission despite his dismissing the case.

During cross examination of the minister of justice, Henriques submitted that he had given out blank detention orders to the police who would fill in names and detain persons. The Chief Justice intervened, saying that the issue had been raised and was shown to be unfounded. Henriques then produced a blank detention order and the minister admitted that it bore his signature. He also followed up with a devastating cross examination of the police superintendent. This resulted in the Chief Justice concluding that not only was Henriques' client, George Lazarus, unlawfully detained, but also Pat Stephens, who had not given any evidence. Both men later received compensation for the misdeed.

Henriques' involvement in landmark law cases is wide-ranging and highly respected. He successfully represented the Jamaica Stock Exchange against the Fair Trading Commission, the first case on anti-competitive conduct in Jamaica. He acted on behalf of the International Finance Corporation (a subsidiary of the World Bank) and the Inter-American Investment Corporation (a subsidiary of the IADB) made use of his expertise in loan transactions with corporations in Jamaica.

Free service

Henriques' impressive contribution to the legal profession goes beyond the courtroom and includes the classroom at the University of the West Indies where he lectured in constitutional and administrative Law, setting and marking exam papers for Jamaica and the Caribbean. He did so for 25 years and never charged a fee for his services. The University used the funds to create the Henriques Prize awarded to the best law student. He was chairman of the Government Divestment Committee from 1981 to 1989 and, in 2008, was given the Order of Jamaica, for services to the legal profession.

Despite hard work, Henriques has never postponed the enjoyment of living. He is an avid reader and a cricket enthusiast who has never, in his time, missed a Test match in Jamaica. He has been married to Nora Cohen these past 51 years and they have a son, Nigel.