Former Chancellor of the Judiciary, Attorney General and longtime professor at the University of Guyana are just some of the portfolios the late Keith Massiah SC will generally be remembered as having held and in terms of juris-prudence a landmark decision on wages as property will be part of his legacy.
The 93-year-old legal luminary passed away two Sundays ago following a period of illness.
But apart from these achievements he was more closely known in the fraternity not only for his intellectual prowess in the adjudication of cases which came before him, but also for the literary flair with which he imbued his written judgments.
One of the many cases for which Justice Massiah is known is that of the Guyana Sugar Corporation v Seeram Teemal, in which he issued a famous judgment in the case of the sugar worker Teemal on wages as property.
The case, which dates back more than 30 years, surrounded a minimum wage agreement concluded between the Government of Guyana and the Trades Union Congress in August 1977. Pursuant to that agreement, the Sugar Corporation in December of the following year wrote Teemal offering him a salary increment from 1 January 1979 that he accepted.
During that year, however, the government issued a directive to the public sector corporations that no adjustments should be made to their employees’ remuneration in 1979. As a result, the Sugar Corporation wrote Teemal informing him that the increment would thenceforth not be paid.
He objected, but GuySuCo maintained that any increment was a matter of discretion or subject to government approval.
The trial judge at the court of first instance found for Teemal and the Sugar Corporation appealed.
Affirming the High Court’s decision and dismissing the appeal, the appellate court ruled that although an award by an arbitration tribunal might result in a statutory variation of Teemal’s contract of employment, unless and until such an award was made, the terms of that contract remained in force; and, in the absence of clear and unambiguous words in the Labour Act, such an award could not retrospectively interfere with Teemal’s vested rights arising from a breach of contract by the Corporation, nor oust the jurisdiction of the courts to adjudicate upon such rights.
Justices of Appeal R.H. Luckhoo and Fung-A-Fat who presided over the case along with Justice Massiah said that the parties to the contract of employment, the terms of which were set out in correspondences to Teemal “clearly intended the contract to be binding and legally enforceable.”
They said that there was, therefore, no ground for construing that contract together with the minimum wage agreement and that the reduction of his salary by unilateral action on the part of GuySuCo had been in breach of his contract of employment.
In his separate judgment concurring with Justices Luckhoo and Fung-A-Fat, Justice Massiah said that Teemal had every right to expect that the Corporation’s assurance would be fulfilled. He said that the appellants could not at law, as they sought to do, properly vary the agreement unilaterally by reducing the respondent’s salary.
Heretical
In the judgment, Justice Massiah had said it would be “heretical if I were to attempt to import into the law of contract a conception that a unilateral variation of a binding agreement is permissible.”
He continued, “…the consequences of any such ruling on my part would be far-reaching and disastrous, and would cause common lawyers some disquiet. Anson would grow lugubrious in his grave, Chitty would utter a ghostly cry of sovereign grief, and Pollock would breathe a tragic exhalation of regret. The business world, for its part, would be, in this context, in a state of complete chaos, for a party to a contract would be at liberty to alter its terms, with immunity from civil process.”
Justice Massiah pursued his legal studies in the 1950s and began his career at the Attorney General’s Chambers. He later became a High Court judge and was promoted to the Court of Appeal in 1976. He was never Chief Justice but became Chancellor in 1984 after Justice Victor Crane demitted office.
Massiah became Attorney General as soon as he demitted office in 1988 and was heavily criticised in Guyana and further afield regionally because it was thought that the former head of judiciary should not hold a position in the executive, especially immediately after leaving office as head of the judiciary.
After the People’s National Congress (PNC) Government changed in 1992 and the People’s Progressive Party/Civic (PPP/C) came to power, Massiah went into private practice in the Chambers of Rex McKay SC.
‘Tremendous loss’
In an invited comment on the passing of the jurist, attorney Kamal Ramkarran said that Massiah was a brilliant judge with much literary talent and his judgments read like textbook analyses.
He said among them were masterly judgments which he wrote on damages on death, on wrongful dismissal, and the Teemal case, while noting that the list was by no means exhaustive.
Of the late professor, Ramkarran wrote on his Facebook page, “he was a man of modest stature and once marveled at my ability to eat a foot-long sub. Seeing me several years later at a wedding with my plate piled high, he said “I see nothing has changed!”
Ramkarran fondly shared that he had the good fortune of doing a case against Justice Massiah and another one with him. In the one he did with him, Ramkarran said that it gave him his first opportunity to address the Trinidad-based Caribbean Court of Justice—Guyana’s final appellate court. He recalled it being a matter where all seven judges, headed by the formidable former President of the Court, Michael de la Bastide, sat to hear the case.
Ramkarran candidly shared that it was an opportunity he was most reluctant to take.
He recalled that the court had instructed them that they were to present oral arguments after the lunch break.
Ramkarran said he suggested to Professor Massiah that there were some things he thought they should address and so the professor told him to write them down and give it to him or, alternatively, to present the arguments himself.
The attorney said “I quickly typed them up instead of having lunch.”
He said that when he gave them to Massiah, he read them and close to the time that they were to restart, the professor said “I think you should present those arguments”.
Of this new and sudden arrangement Ramkarran said, “I responded that I didn’t think I could. He told me `yes, yes you can’ and I again declined.”
Then he said, no longer gently, “I am your leader and I am directing you to deliver the submissions.”
“Well, there was no other answer to that than `Yes, Professor Massiah’ so I went and did them after he did his. When I came back he said “I told you that you could do them,” Ramkarran reminisced.
Ramkarran would admit that it was a good thing since, strangely, the Court and then the law reports only listed in the judgment the names of the lawyers who spoke as if the other lawyers, who worked hard on the case on either side, weren’t there.
Of the departed Professor, Ramkarran noted that the legal fraternity has suffered a tremendous loss.
