A.G. v Reynolds

• Jurisdiction: Saint Kitts and Nevis
• Judge: Peterkin, J.A.
• Judgment Date: 28 November 1977
• Neutral Citation: KN 1977 CA 3
• Docket Number: No. 2 of 1976
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 28 November 1977

Court of Appeal

Peterkin, J.A. St. Bernard, C.J. (Ag.) Nedd, J.A. (Ag)

No. 2 of 1976

A.G.

and

Reynolds

Appearances:

Mr. F. Kelsick for plaintiff/respondent

Attorney General et al for defendant/appellant

False imprisonment - Detention.

Constitutional law - Ultra vires

Facts: Appeal against an award of $5,000.00 to the respondent as damages for false imprisonment. Whether the detention order valid by reason of the Emergency Powers Regulations of 1967. Whether the regulations were unconstitutional.

Whether the Indemnity Act which purported to give constitutionality to the Emergency Powers Regulations of 1967 was unconstitutional, null and void.

Held: That the respondent's detention was unlawful irrespective of the constitutionality of the regulations which purported to govern the detention. That the detentionmust be reasonably justifiable for dealing with the situation that existed in the state during the state of emergency.

That the Act sought to take away the fundamental right to access to the high court which is ensued by the constitution and which is an entrenched clause in the constitution and was therefore null and void.

Peterkin, J.A.

1 This is an appeal against the judgment of Glasgow, J. in which he awarded the respondent the sum of $5,000.00 damages for false imprisonment.

2 The grounds of appeal are that the trial judge was wrong in law:–

• (i) in rejecting the submission that the Emergency Powers Regulation 1967 No.16 of 1967 were valid and constitutional;

• (ii) in rejecting the submission that the Indemnity Act, 1868 No.1 of 1968 is a healing statute which validated the Emergency Powers Regulations 1967 No.16 of 1967 (if found to be invalid) and actions taken thereunder

• (iii) when he held that the Indemnity Act 1968 No.1 of 1968 contravenes Section 3 of the St. Christopher, Nevis and Anguilla Constitution Order 1967 and is therefore unconstitutional;

• (iv) the learned trial judge misdirected himself on the question of precedent and the law applicable thereto;

• (v) the judge was wrong in law in failing to give due consideration or no consideration at all to the doctrine “omina praesumuntur legitime facta donac probetur contrarium” and its effect on any damages and or compensation awarded to the plaintiff/respondent;

3 The facts as found by the trial judge are that on 30th May 1967, the Governor of St. Christopher, Nevis and Anguilla issued a proclamation under section 3(2) of the Leeward Islands (Emergency Powers) Order in Council, 1959 ( S.I. 1959/2206) and section 17 of the Constitution, declaring that a state of public emergency existed in the state. The proclamation also purported to bring into effect as at 30th May, 1967, the provisions of the 1959 Order and sections 14 and 17 of the Constitution. The Emergency Powers Regulations, 1967, were made under section 3(1) of the 1959 Order and section 17(1) of the Constitution. Regulation 3 of these Regulations reads,

“3. Detention of Persons. (1) If the Governor is satisfied that any person has recently been concerned in acts prejudicial to the public safety, or to public order or in the preparation or instigation of such acts or in impeding the maintenance of supplies and services essential to the life of the community and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

(2) Any person detained in pursuance of this regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorised by the Governor…”

On 10th June, 1967, the Governor's Deputy acting under this regulation ordered the detention of the respondent. His order read,

“WHEREAS T am satisfied with respect to

JOHN REYNOLDS

that he has recently been concerned in acts prejudicial to the public safety and to public order, and that by reason thereof it is necessary to exercise control over him;

NOW, THEREFORE, in pursuance of the power conferred on me by Regulation 3 of the Emergency Powers Regulations, 1967, and all other powers thereunto enabling me,

I DO HEREBY ORDER AND DIRECT that the said

JOHN REYNOLDS

be detained.

Ordered by me this 10th day of June, 1967.

(sgd.) B.F. Dias

Governor's Deputy.”

4 At about 7.50 a.m. on the 11th June, 1967, Inspector Delsol and other Police Officers went to the respondent's home in Basseterre. They reed the order to him and arrested him. They took him to H.M. Prisons in Basseterre where he was detained until his release on 10th August, 1967. The conditions under which he was imprisoned may be described as being rather primitive. At the time of his imprisonment he was 57 years. He had been a member of the Leeward Islands Police Force from 1935 to 1959, and a member of the St. Christopher, Nevis and Anguilla Police Force from 1960 to 1964 when he retired with the rank of Inspector of Police. He was described as a dependable and knowledgeable officer. He was married at the time of his detention, and was a member of a political party known as the Peoples Action Movement. Sometime after the commencement of his detention the respondent was handed a further document in purported compliance with the provisions of section 3(2) of the Constitution, which requires that any person who is arrested or detained shall be informed, as soon as is reasonably practicable and in language that he understands, of the reasons for his arrest or detention. The mason given for the respondent's detention was that he, during the year 1967 both within and outside of the State, encouraged civil disobedience throughout the state, thereby endangering the peace, public safety and public order of the state.

5 There is also on the record the following evidence which stands uncontroverted:–

“There was a hearing in connection with my detention while I was in prison. It was presided over by Mr. Cecil Hewlett. Mr. Hewlett is now a judge of the West Indies Associated States Supreme Court. That tribunal heard evidence of all the persons who were detained under the Emergency Regulations, as to what has been done by any of the detainees in connection with our arrest. The Government was represented by Mr. Joseph Archibald who was then the Senior Crown Counsel. Mr. Kelsick was representing Boon and Dickenson, Mr. Kawaja was representing myself. Mr. Henville was representing Henry S. Charles. That's as far as I can recall. Mr. Dickenson was one in the cell with me. Shefton Warner was another. The hearings lasted about 2 weeks. I think they started off early in July. I was present during the course of these hearrings. Mr. Hewlett told the Senior Crown Counsel ‘You have not led any evidence against James Gaskell, Livingstone Sadio and John Reynolds.’ Mr. Archibald replied ‘I have no evidence against them.’ The Chairman said ‘so I can make my recommendation.’ Mr. Archibald replied ‘I will speak to the authorities.’ The Chairman, Mr. Hewlett, then told James Gaskell, Livingstone Sadio end myself ‘Do not attend any other hearings unless you are called.’ I was never called.’

6 Three aspects of the matter fall to be considered, namely, the Emergency Powers Regulations, 1967, (S.R.& 0. No. 16), the Indemnity Act, 1968 and the detention of the respondent.

7 It is submitted on behalf of the Appellant that the decisions in Charles v. Phillips and Sealey, 10 W.I.R. 423, and Herbert v. I Phillips and Sealey, 10 W.I.R. 435, are erroneous, and we have been invited to overrule them. The validity of the Emergency Powers Regulations, 1967, was first considered by this Court (A.M. Lewis, C.J., K.L. Gordon and P.C. Lewis, JJ.A.) in Charles v. Phillips and Sealey. It was held therein that Regulation 3 (which is the relevant regulation in this appeal) of the Emergency Powers Regulations, 1967, offended against section 3 of the Constitution and had not been shown to have been authorised within the provisions of section 14, and that accordingly, the detention order was invalid, and the detention of the applicant, as a consequence, unlawful. Charles v. Phillips and Sealey was followed in Herbert v. Phillips and Sealey.

8 It is contended for in the instant case that the Order of 1959 is an “existing law;” that the Order of 1959 was an Order of the Legislature as it then existed; that in relation to a pre-Constitution law the Constitution does not strike it down but rather...