Payne v Attorney General

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Mitchell, J.
• Judgment Date: 09 July 1981
• Neutral Citation: KN 1981 HC 2
• Docket Number: No. 7 of 1981
• Date: 09 July 1981

High Court

Mitchell, J.

No. 7 of 1981

Payne

and

Attorney General

Appearances:

Lee L. Moore, F.C. Bryant and Henry Browne with him, for the applicant.

S.W. Tapley Seaton, Attorney General, Dr. W. Herbert, A.J. Redhead, Director of Public Prosecutions and T. Byron with him for the respondent.

Constitutional law - Locus standi. Facts: The application being a member of the House of Assembly applied for an order that certain Bills were passed in contravention of section 23, 34 and 113 of the Constitution and to that extent the enacting clause used was invalid and the Bills void. Held: That the appellant's right to apply to the Court given by section 98 of the Constitution should not be defeated by adherence to the procedural barriers which had been set up by section 16 of the Legislative (Powers and Privileges) Ordinance Cap. 167, which was a law subordinate to the Constitution. That the applicant had the necessary relevant interest. That the applicant's claim should be fully heard and determined on its merits.

Mitchell, J.

1 The original motion before the court on behalf of Mr. Esmond St. John Payne was for the following orders:–

• (1) An Order declaring that the Legislature referred to in section 23 and 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) Order declaring that the following Bills purportedly passed through their first, second and third readings by the House of Assembly of Saint Christopher and Nevis on Tuesday, the 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 and are therefore unconstitutional, null, void and of no effect –

  The Travel Act, 1981.

  The Boat Licensing Ordinance (Amendment) Act, 1981.

  The Porters and Boatmen Ordinance (Repeal) Act, 1981.

  The Immigration and Passport (Amendment) Act, 1981.

  The Aliens Employment Levy Act, 1981.

  The Supplementary Appropriation ( 1980) Act, 1981.

  The Development Bank of Saint Kitts and Nevis Act, 1981.

  The Port Authority Act, 1981.

• (3) An Order restraining the respondent, his servants and or agents and any person from in any way making use of or doing anything under and by virtue of any of the said Bills purported passed by the House of Assembly of Saint Christopher and Nevis on Tuesday, the 10th day of February, 1981;

• (4) An order for such or other relief as the nature of the case may require.

• (5) An order that the costs of any incidental to this application may be paid by the respondent.

2 The applicant, Mr. Esmond St. John Payne filed an affidavit in support of this notice of motion.

3 In that affidavit the applicant stated inter alia that he belonged to and was ordinarily resident in the State of Saint Christopher, Nevis and Anguilla and that he was an Elected Member of the House of Assembly of the State of Saint Christopher, Nevis and Anguilla.

4 On Tuesday, 10th February, 1981 he attended a sitting of the House of Assembly of Saint Christopher, Nevis and Anguilla at the House of Assembly Chambers, Basseterre, Saint Christopher as the elected member for the Electoral District of Saint Christopher 6.

5 During the said sitting of the House of Assembly and after the introduction of a Bill shortly entitled “ The Travel Tax Act, 1981” he drew to the attention of the Honourable Speaker of the said 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 Thereafter, the several bills mentioned in his notice of motion passed through their first, second and third readings, each with its heading and its enacting clause worded in identical terms with the aforesaid Travel Tax Act, 1981.

7 He said that he was advised and verily believed 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 or the House of Assembly Elections Ordinance, Cap. 162.

8 He was advised and verily believed that sections 23, 34 and 113 of the said Constitution had been contravened and that section 31 of the said House of Assembly Elections Ordinance had been contravened.

9 In answer to the notice of motion Mr. S. W. Tapley Sexton, the Attorney General, stated that The Anguilla Act, 1980, constitutionally separated the Island of Anguilla from the Associated State of Saint Christopher, Nevis and Anguilla, and that by virtue of the said Anguilla Act, 1980, the Associated State is now the State of Saint Christopher and Nevis, that the motion before the court was frivolous and or vexatious and that the order sought in the notice of motion was premature.

10 When the motion came before the court for actual hearing counsel for the applicant, Mr. Lee L. Moore, stated that he wished to apply to the court for certain amendments to the motion.

11 The amendments which the counsel for the applicant then sought were as follows:–

• (1) In the rubric of the motion to delete the words “and the House of Assembly Elections Ordinance, Cap. 162.”

• (2) In the second part of the said rubric to delete the words “and in respect of the contravention of section 31 of the said House of Assembly Elections Ordinance” and

• (3) At paragraph two (2) of the application to delete the words “and contravention of section 31 of the said House of Assembly Elections Ordinance”

12 After having heard Dr. W. Herbert who then spoke in reply for the Attorney General the amendments to the notice of motion by counsel for the applicant were granted accordingly.

13 Arguments were heard on behalf of the applicant and on behalf of the respondent.

14 The court then considered the arguments and the case as it was presented at that point of time by the parties and on the basis of the law which was submitted for its consideration and which was conceived on that basis as applicable.

15 It is to be appreciated that from the beginning a fundamental issue in this case was as to the legality and constitutionality of the form of words used in the enacting clause in all the bills listed in the notice of motion by the applicant Mr. St. John Payne.

16 This supported by a reference to paragraphs 5, 6, 7, 8, and 9 of the affidavit of the applicant.

17 The affidavit of the Attorney General in reply, did not deny the statements of fact as mentioned in the particular paragraphs of the applicant's affidavit and did not assert anything to the contrary.

18 The tenor of the arguments emphasised the importance of the consideration of the Enacting Clause by the court in the interests of resolving all the issues in this case and in the interests of the justice of the cause between the parties.

19 During the course of the submissions by counsel for the applicant I took the precaution of asking the Attorney General and the other counsel in open court as to whether there was any legislation whatsoever which replaced section 31 of the Constitution and Elections Ordinance, Chapter 162, which concerned “words of the enactment” having previously made the observation in open court to all the lawyers that section 31 was revoked on the coming into operation of the Saint Christopher, Nevis and Anguilla Constitution Order, 1967, on 27th February, 1967.

20 Significantly, the Attorney-General in his answer did not mention that that section 31 of the Constitution and Elections Ordinance, Chapter 162, was revoked.

21 The Attorney-General from the Bar-Table replied that there was none and this was not denied by all the lawyers present in the case.

22 The arguments were then heard from both sides on the basis that there was no form or manners words governing the procedure of the enacting clause for the passage of bills in the House of Assembly of this State.

23 The decision was reserved at that stage and eleven (11) days thereafter a decision was pronounced by this court as it though right and proper in the circumstances refusing the orders sought by the applicant.

24 Shortly after having pronounced its decision the court discovered on its own initiative that at all material times before, during and after the hearing of this matter, and at the time when its decision was given there was statute law binding this court which would have affected the fundamental issue of the enacting clause in this matter.

25 This statute law which at all material times, as the law of the land, as the law prevailing in the State of Saint Christopher, Nevis and Anguilla and which was binding on this court is the Statutes Act, 1967 (No, 11 of 1967) passed by the House of Assembly (the Parliament) of this State on the 17th day of May, 1967, less than three (3) months after the coming into operation of the present Constitution of the State on 27th February, 1967.

26 The bills under consideration in this case, each has an enacting clause as asserted in the affidavit of the applicant and not denied by the Attorney General.

27 I appreciate that bills are not statutes and have no legal effect until they have received the royal assent — ( R. v. Middlesex Justices (1831) 2 B & Ad. 818).

28 Previous bills which have become laws have an enacting clause as the court take judicial notice.

29 It is obvious, therefore, that the decision which was pronounced by the court on 3rd April, 1981 against the applicant, and by rejecting his motion, in favour of the Attorney General was given “ per incuriam” the Statutes Act, 1967, which should have been submitted...