Attorney General v Payne

• Jurisdiction: Saint Kitts and Nevis
• Judge: Robotham, J.A.
• Judgment Date: 22 March 1982
• Neutral Citation: KN 1982 CA 1
• Docket Number: No. 3 of 1981.
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 22 March 1982

Court of Appeal

Peterkin, C.J., Berridge, J.A.Robotham, J.A. (Ag.)

No. 3 of 1981.

Attorney General

and

Payne

Appearances

W. Herbert and T. Byron for the appellant

L. Moore, F. Bryant and H. Brown for the respondent

Constitutional law - Name of State — Whether despite the passage of the Anguilla Act 1980, Cap. 67 by the U.K. Parliament by which Anguilla ceased to form part of the then Associated States of St. Kitts, Nevis and Anguilla, the name continued to be St. Kitts, Nevis and Anguilla rather than St. Kitts and Nevis — Whether as a result any legislation passed in the name of St. Kitts and Nevis only was unconstitutional, void and of no effect being inconsistent with the St. Kitts, Nevis and Anguilla Constitutional Order 1967.

Held: The Anguilla Act 1980 was properly passed by the U.K. Parliament and made to extend to the State. Any order made under the Act would be valid.

1 Robotham, J.A. (Acting): This is an appeal from a decision given by Mitchell J. in which he held that despite the passage of the Anguilla Act 1980 ( 1980 Chapter 67) through the Parliament of the United Kingdom, by virtue of which the Island of Anguilla ceased to form a part of the territory of the Associated State of Saint Christopher Nevis and Anguilla, with effect from December 19th, 1980, the name of the State continued to be that of Saint Christopher Nevis and Anguilla, rather than Saint Christopher and Nevis. Further, that the passing of any legislation by the legislature of that State in the name of Saint Christopher and Nevis only was unconstitutional, null, void, and of no effect, as not being in accordance with the provisions of the Saint Christopher Nevis and Anguilla Constitution Order 1967 (No.228 of 1967) which came into operation on February 27th, 1967.

2 The arguments having been concluded on January 19th, 1982, the court after taking time was unanimous in its decision to allow the appeal, holding thereby that the name of the State was Saint Christopher and Nevis. It was thought constitutionally expedient to make the decision known orally, due to the fact that the legislative process of the State had remained static ever since the dispute arose in February 1981. We promised to put reasons in writing at a later date. This I now do.

3 It is a matter of history that prior to the passing of the Anguilla Act 1980, the territory of the Associated State of Saint Christopher Nevis and Anguilla, was comprised of three Islands, namely Saint Christopher, Nevis, and Anguilla. As a matter of passing interest, I might mention that the Island of Saint Christopher, from well before the turn of this Country has universally been known and referred to both inside and outside the Caribbean as St. Kitts.

4 Between the years 1967 and 1980, differences, political. and otherwise, arose within the State which created in the hearts and minds of Anguillans a fixed desire to be separated After protracted and at times acrimonious negotiations involving all factions within the State, and the United Kingdom Government, the Anguilla Act 1980 was passed. Section 1(1) of that Act provided:

“On such day as Her Majesty may by order in council appoint (“the appointed day”) Anguilla shall cease to form a part of the territory of the Associated State of Saint Christopher Nevis and Anguilla; and the West Indies Act 1967 shall have effect as 3f the events specified in Section 13(1) of that Act (power by order in council to make changes in law in certain events) included the coming into force of this subsection”. 2(2) of the Act provided:

“This Act shall have effect and shall extend to the Associated State of Saint Christopher Nevis and Anguilla notwithstanding anything in the said Act of 1967 or any order in council made under it”.

5 The appointed day mentioned in Section 1 (1) of the Anguilla Act 1980 was declared to be December 19th, 1980 by virtue of the Anguilla (appointed day) Order 1980 (No. 1953 of 1980) made by Her Majesty on December 17 ^th, 1980. Anguilla thus having achieved its desire, reverted in effect to the status of a Colony.

6 Such then was the state of the law in Anguilla and within the Associated State when the applicant/respondent Esmond St. John Payne, a n elected member of the House of Assembly of the State, filed on February 23rd, 1981, a notice of motion in which he sought the following relief:

• (1) An order declaring the legislature referred to in Section 23, Section 34, and Section 113 of the Constitution of Saint Christopher Nevis and Anguilla consists of Her Majesty and the House of Assembly of Saint Christopher Nevis and Anguilla.

• (2) An order declaring that the following bills (eight enumerated) purportedly passed through their first, second and third readings by the House of Assembly of Saint Christopher and Nevis on Tuesday 10th day of February 1981 were so passed in contravention of Section 23, and Section 34. and Section 113 of the said Constitution and in contravention of (Section 31 of the said House of Assembly Elections Ordinance Cap. 162 amended at the rehearing to read) Section 3(1) of the Statutes Act 1967 (No. 11 of 1967).

7 The notice of motion was supported by an affidavit sworn to by Payne. As this affidavit adequately supplies the background and the facts surrounding the motion, it is desirable to set it out in full.–

• (1) I am the deponent herein and the applicant named in the Notice of Motion filed at the Supreme Court Registry on the 17th day of February, 1981.

• (2) I belong to and am ordinarily resident in the State of Saint Christopher Nevis and Anguilla.

• (3) I am an elected member of the House of Assembly of the State of Saint Christopher Nevis and Anguilla having been elected on the 18th day of February, 1980 as the member for the Electoral District of Saint Christopher 6.

• (4) On Tuesday the 10th day of February, 1981 I attended a sitting of the House of Assembly of Saint Christopher Nevis and Anguilla at the House of Assembly Chambers Government Headquarters in the Town of Basseterre in the Island of Saint Christopher as the elected member for the Electoral District of Saint Christopher 6 as aforesaid.

• (5) During the said sitting and after the introduction of a Bill shortly entitled “ The Travel Tax Act 1981” 1 drew to the attention of the Honourable Speaker of the House of Assembly that the said Bill. was wrongly headed “Saint Christopher and Nevis” and that the enacting clause wrongly stated that the said Bill was being enacted “by the Queen's Most Excellent Majesty by and with the advice and consent of the House of Assembly of Saint Christopher and Nevis and by the authority of the same”.

• (6) The said Speaker ruled that the heading and the enacting clause of the said Bill were correctly worded.

• (7) The Honourable Leader of the Opposition in the House of Assembly also drew to the attention of the Honourable Speaker that the said enacting clause was wrong in law and that the said Bill was not being passed by competent authority and that the Opposition would therefore abstain from voting on that Bill and on each other Bill with the enacting clause incorrectly worded.

• (8) Thereafter the said Bill passed through its first, second and third readings at the said sitting with the heading and enacting clause worded as aforesaid.

• (9) Thereafter the following Bills passed through their first, second and third readings each with its headings and its enacting clause worded in identical terms to the aforesaid Travel Tax Act 1981 — The Boat Licensing Ordinance (Amendment)Act, 1981; The Reporters and Boatmen Ordinance (Repeal) Act, 1981; The Immigration and Passport (Amendment) Act, 19819 The Aliens Employment Levy Act, 1981; The Supplementary Appropriation (1980) Act, 1981; The Development Bank of St. Kitts and Nevis; The Port Authority Act, 1981.

• (10) I am advised and verily believe that the said Bills could not be passed by a body known as the House of Assembly of Saint Christopher and Nevis without certain amendments to the Constitution of Saint Christopher Nevis and Anguilla and or to the House of Assembly Elections Ordinance Cap. 162.

• (11) I am further advised and verily believe that up to the time of the purported passage of the said Bills through the House of Assembly of Saint Christopher and Nevis there had been no such amendment to the said Constitution and or to the said House of Assembly Elections Ordinance.

• (12) I am also further advised and verily believe that section 23 and section 34 and section 113 of the said Constitution have been contravened and that section 31 of the said House of Assembly Elections Ordinance has been contravened.

8 The matter first came on for hearing on March 23rd, 1981. A reserved judgment was handed down on April 3 ^rd, 1981 and the record of appeal shows:

“Written judgment given. Orders of applicant refused. Costs to respondent to be taxed. Certified fit for (2) counsel.

Sgd. Horace L. Mitchell

Puisne Judge

3/4/81.

9 On April 13 ^th, 1981, this decision not having yet been drawn up, passed and entered in accordance with Order 42 of the Rules of the Supreme Court 1970 the learned judge recalled it and set it aside as having been given “wholly per incuriam”. The basis of his recall of the judgment, was the fact that at the hearing and in response to a specific enquiry made generally of all counsel engaged, he was told by the Honourable Attorney General that there had been no replacement of section 31 of the House of Assembly Elections Ordinance Chapter 162. It had been discovered at the commencement of the hearing that this Section had been repealed, and on application being made by counsel for the applicant, the reference thereto was struck out, only to be further amended at the re-hearing.

10 Section 31 of the House of Assembly Elections Ordinance Chapter 162 stated:

“In every Bill presented to the Governor for assent the words of enactment shall be as follows:

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