Blake v Byron

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.
• Judgment Date: 03 October 1994
• Neutral Citation: KN 1994 CA 6
• Docket Number: Civil Appeal No. 4 of 1994
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 03 October 1994

Court of Appeal

Floissac, C.J.

Singh, J.A.

Joseph, J.A. (Ag.)

Civil Appeal No. 4 of 1994

Blake

and

Byron

Appearances:

The appellant in person.

Constitutional law - Fundamental rights and freedoms — General elections held — Prime Minister appointed and minority Government established — Allegation by private citizen that his fundamental rights and freedoms had been impaired by the enjoyment of unlawful rights and freedoms by the minority government — Whether private citizen had locus standi to bring action — Whether decision of Head of State can be ruled against on breach of rules of natural justice — Whether Head of State's decision to appoint Prime Minister justifiable — Whether decision could be impugned.

Floissac, C.J.

1 On 21st January 1994, the appellant filed an ex parte originating summons in the High Court. By that summons, he applied to the court for a declaration:

“That the laws of Saint Christopher; and Nevis DO NOT and COULD NOT provide for the Governor-General to have any discretion based on the results certified to him by the Supervisor of Elections AND AT THE SAME TIME, provide for a minority Government.

And that as a consequence of such a minority Government my fundamental rights and freedom had been caused and are being caused and are likely to be caused to be impaired because of the enjoyment of unlawful rights and freedoms exercised by Kennedy Simmonds, Sydney Morris, Hugh Heyliger, Constance Mitcham and Joseph Parry where they are maintaining a minority Government Administration thus infringing the rights of myself and members of the electorate. …………. So Kennedy Simmonds ought to be removed by the Governor-General under Section 52 subsection 7 of the Constitution of Saint Christopher and Nevis AND such removal be followed up by a dissolution of the present Parliament under the provision portion of subsection (4) of Section 47 of he Constitution of Saint Christopher and Nevis. THEN the Governor-General ought to issue new writs for General Elections.”

2 By judgment dated 22nd February 1994, Hylton, J. refused the application. The learned judge concluded:

“In the end therefore I hold (1) that there was no evidence before the court to show that the applicant had a relevant interest in the issue he sought to litigate. (2) that the process by which he sought to move the court was of permissible (3) I hold also that even if the applicant had adduced evidence to show a relevant interest and had sought to move the court by a Notice of Motion or Writ of Summons he would still have had the task of satisfying me that Section 52(2) of the Constitution has any other meaning than the plain and inescapable one that following the holding of General Elections the Governor General (in exercising the Executive Authority vested in Her Majesty by Section 52(1) of the Constitution and delegated to him by Section 52(2) had authority to appoint as Prime Minister a Representative who appears to him likely to command the support of the majority of the Representatives.”

3 The appellant is dissatisfied with the judgment and has appealed against it. The questions which we are required to answer in this appeal are (1) whether the High Court could properly have granted the appellant's application on an ex parte originating summons and without making the Attorney-General a party, to the proceedings (2) whether the Governor-General's administrative decision to appoint or retain Dr. Kennedy Simmonds as Prime Minister is justiciable (3) whether there are valid judicial grounds for impugning the Governor-General's decision and (4) whether the appellant has locus standi in, relation to the application.

(1) The Ex parte summons

4 The appellant's originating summons confuse, public law and public rights thereunder with private law and private rights thereunder. The result is that the procedural requirements for judicial redress at public law for violation of public rights have been confused with the procedural requirements for judicial redress or private law for violation of private rights.

5 The originating summons is based on two allegations. The first allegation relates to public law and is an allegation that the Governor-Gen rays decision to appoint or retain Dr. Simmonds as Prime Minister and to establish a minority' government is constitutional. The second allegation relates to private law and private rights and is an allegation that the alleged unconstitutional decision of the Governor-General infringed or impaired or is likely to infringe or impair the appellant's private or personal fundamental rights and freedoms.

6 Although the originating summons purports to be an application for a declaration, the summons in fact transcends a claim for that remedy. The appellant in effect claims judicial redress at public law by way of a prerogative order of mandamus ordering the Governor-General to remove Dr. Simmonds as Prime Minister, to dissolve Parliament and to issue writs for general elections. No judicial redress at private law is claimed for the alleged infringement or threatened infringement of he appellant's fundamental rights and freedoms unless the originating summons can be interpreted to include a claim for a declaration of such infringement (which infringement incidentally was never proved).

7 To the extent to which the originating summons purports to be an application for an order of mandamus in public law, that order could not be made because the appellant did not obtain leave to make the application. The appellant could not circumvent R.S.C. Order 44 rule 1(1) which provides that: “No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule(.

8 In I.R.C. v Federation of Self-Employed [1981] 2 All E.R. 93 at 105, Lord Diplock said:

“The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the, uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”‘

9 To the extent to which the originating summons, purports to be application for a declaration that the appellant's fundamental rights and freedoms have been or are likely to be infringed, the originating summons (being an ex parte originating summons) was not the proper procedure for the making of such an application. The constitutional redress Rules (the Supreme Court ( Constitutional Redress-Saint Christopher, Nevis and Anguilla Rules 1968 No.35) prescribe the procedure for the making of such applications. According to rules 3 and 8, such applications may be made by motion or writ of summons. The rules do not authorise ex parte applications. The procedural requirement of a writ of summons or motion implies that there is a defendant or respondent and that the proceedings will be inter partes. It also contemplates that the writ of summons or Notice of Motion will be served on the defendant or respondent.

10 The Constitutional Redress Rules were ratified and saved by paragraph 2(4) of Schedule 2 to the Saint Christopher and Nevis Constitution Order 1983 No. 881 which provides that:

“Where any matter that falls to be prescribed or otherwise a provided for under the Constitution by the legislature or by any other authority! or person is prescribed or provided for by or under an existing law (including any amendment to any such law made under this paragraph), that prescription or provision shall, as from 19th September 1983, have effect (with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution and the Supreme Court Order as if it has been made under the Constitution by the legislature or, as the case may require, by the other authority or person.(

11 The matters prescribed or provided for by the Chief Justice by under the Constitutional Redress Rules were matters that fall to prescribed or otherwise provided for by the Chief Justice under Section 18(6) and 96(4) of the Constitution. Therefore, the Constitutional Redress Rules have effect (with necessary...