Cedric Liburd Appellant v [1] Eugene A. Hamilton 1st Respondent [2] Leroy Benjamin 2nd Respondent [3] Andy Blanchette 3rd Respondent Hon. Attorney General of St. Christopher and Nevis Interested Party [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Baptiste, J.A.,Davidson Kelvin Baptiste,Janice M. Pereira,Mario Michel |
| Judgment Date | 05 December 2011 |
| Judgment citation (vLex) | [2011] ECSC J1205-3 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Docket Number | HCVAP 2010/018 |
| Date | 05 December 2011 |
IN THE COURT OF APPEAL
The Hon. Mde. Janice M. Pereira Justice of Appeal
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal [AG.]
HCVAP 2010/018
HCVAP 2010/018
Dr. Henry Browne and Mr. Sylvester Anthony for the Appellant
Mr. Terence V. Byron, Mr. Vincent Byron and Mr. De Lara McClure Taylor for the 1 st Respondent
Mr. Arudranauth Gossai for the 2 nd and 3 rd Respondents
Dr. Lloyd Barnett and Mr. Arudranauth Gossai for the Appellant/Interested party
Mr. Terence V. Byron, Mr. Vincent Byron and Mr. De Lara McClure Taylor for the 2 nd Respondent
Mr. Arudranauth Gossai for the 3 rd and 4 th Respondents
Civil appeal — Election Petition — Challenge to the election of the first respondent in HCVAP 2010/017 to the National Assembly of the Federation of Saint Christopher and Nevis — Whether the respondent is qualified to be elected to the National Assembly in light of sections 27 and 28 of the Saint Christopher and Nevis Constitution Order 1983 — What it means for one to be "under any acknowledgement of allegiance, obedience or adherence to a foreign power or state", by virtue of his/her own act
The appellant, 1 Cedric Liburd, filed an Election Petition challenging the election of Eugene Hamilton to the National Assembly of the Federation of Saint Christopher and Nevis ("the National Assembly"). He did so on the grounds that Mr. Hamilton was a citizen of a foreign state and/or the holder of foreign travel documents which included a resident alien card issued by the United States government, at the time of his nomination and election. Mr. Liburd contended that Mr. Hamilton's status disqualified him from being nominated or elected to the National Assembly, by virtue of sections 27 and 28 of the Saint Christopher and Nevis Constitution Order 1983 ("the Constitution"). The Attorney General of Saint Christopher and Nevis 2 intervened as an interested party.
In the court below, the learned judge dismissed the petition and determined that Mr. Hamilton was duly returned and elected. Both Mr. Liburd and the Attorney General appealed, seeking clarification of the issue of whether Mr. Hamilton was qualified to be a member of the National Assembly.
Held: dismissing the appeals with costs to be assessed unless agreed within 30 days and affirming the trial judge's decisions below, that:
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1. The question whether a person is by virtue of his own act, under an acknowledgment of allegiance, obedience or adherence to a foreign power or state, is to be determined in accordance with the provisions of the applicable foreign law. With respect to section 28(1)(a) of the Constitution, the Court concludes that: (i) there is no basis for upsetting the trial judge's finding that Mr. Hamilton has not acknowledged allegiance, obedience or adherence to a foreign power or state; (ii) Mr. Hamilton does not fall within the category of persons who, by reason of their status as citizens of a foreign power, owe a duty of allegiance or obedience to that foreign power since he does not have the status of a citizen or national of the United States; and (iii) Mr. Hamilton is not under the protection of the United States as though he were a citizen.
Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 applied.
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2. In concluding that a lawful permanent resident is not under an acknowledgment of allegiance and/or obedience and/or adherence to the United States, the learned judge clearly considered the disjunctive formulation of the reference to "allegiance", "obedience" and "adherence" in section 28(1)(a) of the Constitution and evaluated the evidence in relation thereto.
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3. The trial judge's finding at paragraph 46 that as a Green Card holder Mr. Hamilton enjoys certain rights and privileges in the United States with concomitant obligations and responsibilities particularly if he chooses to become a United States citizen later, cannot be looked at in isolation. It has to be placed in the context of the expert evidence of Mr. Chiappari that there is no acknowledgment of allegiance or adherence to the United States by a lawful permanent resident, and also in the context of the judge's finding that the possession of a United States permanent resident card enables Mr. Hamilton to live and work in the United States. The learned judge properly construed section 28(1) and correctly found that Mr. Liburd was not disqualified.
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4. The learned judge's statement that there was "no need for the intervention by the Attorney General" was merely explanatory of and introductory to her decision that the Attorney General would bear his own costs; it was not a ruling that he had no right to intervene in the proceedings. In the circumstances, there is no valid ground of appeal in relation to this issue.
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5. No person can be without a domicile and no person can at the same time and for the same purpose have more than one domicile. Also, an existing domicile is presumed to continue until it is proved that a new domicile has been acquired. At birth, every person receives a domicile of origin which can be supplanted by a domicile of choice; this domicile of choice can be acquired by an adult by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely. Central to the acquisition of a domicile of choice is the dual requirement of residence in fact, coupled with the intention of permanent or indefinite residence in the new jurisdiction. The learned judge quite properly found that Mr. Hamilton lives and works in Saint Christopher and occasionally visits his wife and children in Florida and there was no evidence that he maintains a permanent residence in the United States. Consequently, there is no basis upon which it can be asserted that Mr. Hamilton has acquired a domicile of choice in the United States.
A & L [2009] EWHC 1448 (Fam) applied; In the Estate of Fuld, Decd. (No. 3) [1968] P. 675 applied; Mark v Mark [2005] UKHL 42 applied; Gaines-Cooper v Revenue and Customs [2008] EWCA Civ 1502 applied.
These two appeals stem from an Election Petition filed by Cedric Liburd challenging the election of Eugene Hamilton to the National Assembly of the Federation of Saint Christopher and Nevis ("the National Assembly"), primarily on the grounds that at the time of nomination and election, Mr. Hamilton was a citizen of a foreign State and/or that he was the holder of foreign travel documents including a permanent resident alien card issued by the United States government. The card, which was issued on 9 th July 2003, expires on 31 st July 2013. Mr. Liburd, the defeated candidate in the Electoral District/Constituency 8 ("Constituency 8"), contends that Mr. Hamilton's status disqualified him from being nominated or elected to the National Assembly, by virtue of the provisions of sections 27 and 28 of the Saint Christopher and Nevis Constitution Order 1983 ("the Constitution"). The Attorney General, the other appellant, intervened in the court below as an interested party. The learned judge dismissed the petition and determined that Mr. Hamilton was duly returned and elected as the representative to the National Assembly for Constituency 8. Central to these appeals is the question whether Eugene Hamilton is qualified to be a member of the National Assembly of The Federation of Saint Christopher and Nevis. The answer depends on whether Mr. Hamilton is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state, namely, the United States, within the purview of the Constitution.
Section 27 of the Constitution states:
"Subject to section 28, a person shall be qualified to be elected or appointed as a member of the National Assembly if, and shall not be so qualified unless, he is a citizen of the age of twenty-one years or upwards and he or one of his parents was born in Saint Christopher and Nevis and he is domiciled there at the date of his nomination for election or his appointment, as the case may be."
Section 28 of the Constitution states:
"(1) A person shall not be qualified to be elected or appointed as a member if he —
(a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;
…"
Mr. Liburd avers in paragraph 8 of his petition that Mr. Hamilton was, at the time of nomination, a person who by his own act was under an acknowledgement of allegiance and/or obedience and/or adherence to a foreign state or power, namely the United States of America and/or a citizen and thus was disqualified from being nominated and being elected and/or returned as a member of the National Assembly for Constituency 8. Paragraph 10 avers that Mr. Hamilton, though born in the Federation, later became a person under an acknowledgement, obedience and/or adherence to a foreign power or State and/or a citizen of the United States of America and as an adult, applied for, accepted and travelled on foreign travel documents or papers and a passport issued by the Government of the United States of America. Paragraph 11 alleges that the acquisition of a foreign travel document (including a Green Card) and a passport of the United States of America required Mr. Hamilton to swear to an oath of allegiance and/or acknowledge his allegiance,...
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