Reginald Clendon Hayes Thomas Clailnant v Theattorney Generalofst. Kitts and Nevis 1st Defendant v Josephine Mallalieu Magistrate District "B" 2nd Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Belle J. |
| Judgment Date | 31 July 2008 |
| Judgment citation (vLex) | [2008] ECSC J0731-2 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV200710309 |
| Date | 31 July 2008 |
INTHE EASTERN CARIBBEAN SUPREME COURT
HIGHCOURTOFJUSTICE
FEDERATIONOFST. CHRISTOPHERAND NEVIS
(CIVIL)
CLAIM NO. SKBHCV200710309
Mr. Patrick Patterson and Mr. Chesley Hamilton for the Claimant
Mr. Arudranauth Gossai Crown Counsel for the Defendants
On 1 st May 2007 the Claimant was arrested by Police in St. Kitts without a warrant. He was subsequently charged on 2nd May with four summary offences and served summons to appear at the Magistrate's Court for District "8" on 22nd May 2008 to answer the charges. These charges arose from an argument between the Claimant and the Honourable Mr. Timothy Harris a Minister of the Government of the Federation of Saint Kitts and Nevis. The Claimant appeared on 22nd May and was tried and convicted for the four offences.
The facts stated in the Statement of Case are not challenged at this time and I rely on them. The Statement of Case indicates that on 22 nd May the Claimant had asked for an adjournment to present his plea in mitigation but the 2nd Defendant insisted on pursuing a sentencing hearing on the same day of the conviction. The Claimant made his plea in mitigation and followed this with an apology. Following this the 2nd Defendant did not immediately sentence the Claimant but proceeded to remand him in custody for one week pending sentence. As a result of this order the Claimant was imprisoned for one week.
In his Statement of Claim the Claimant contended that the Defendant had no jurisdiction to order the Claimant be detained in custody for one week pending sentence under the Small Charges Act. He also alleged that as a consequence of this order he was deprived of the opportunity of immediately appealing his conviction and sentence to the Court of Appeal and consequently the right to be released pending the suspension of any sentence. According to the Claimant he had been forced to suffer imprisonment in respect of the conviction for offences and charges which were variously (a) unconstitutional, (b) duplicitous, (c) could not lawfully or properly attract a sentence of imprisonment.
On an Application for Habeas Corpus, heard in the High Court on May 29 th 2007 the Claimant was released from custody. At 2.00 pm of that same day the Claimant appeared before the 2 nd Defendant for sentencing and was placed on a two year bond of $3000.00 to keep the peace and be of good behaviour. The Claimant therefore claimed that the detention was in breach of several provisions of the constitution including breaches of his fundamental rights not to be deprived of his personal liberty nor freedom of movement save as authorized by law among other things. He consequently claimed that he had suffered pain and injury, loss and damage, harm to his reputation, financial loss in that he was unable to pursue his occupation, substantial mental anguish and humiliation and he was put to the expense of defending himself.
Counsel for the Applicant Attorney General argues that the entire claim in this matter should be struck out because it is an incorrect and incurable originating process, and secondly he claims that the court should hold that to the extent there may be some claim under the constitution it should not be entertained and the court should apply the proviso in the constitution which permits it to decline to hear the matter. Counsel relied on a number of authorities. Among the authorities were the decision of the Privy Council in Khemrajh Harrikissoon v Attorney General (1969) 31 WIR 348 and Attorney General ofGrenada v Aban (Selwyn) (1995)48 WIR 111. According to these decisions the value of the right to apply for constitutional redress under section 6 of the Constitution would be diminished if it were allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action.
Counsel for the Applicant also argued that the Part 56 of the CPR constituted a bar to a claim for redress under the constitution other than by the procedure set out therein. Firstly counsel argued that the claim must be by Fixed Date Claim in Form 2. This is mandatory, he argued, because Part 8.1 (5) of the CPR 2000 stated that Form 2 must be used:
(c) whenever its use is required by a rule or practice direction; and (d) where by any enactment proceedings are required to be commenced by originating summons or motion.
Counsel also relied heavily on the decision Re Blake (1994) 47 WIR 174 where it was held at page 175 para. A-C as follows:
" So far as the originating summons purported to be an application for a declaration of an infringement of the appellant's fundamental rights and freedoms, the originating summons was irregular and liable to be set aside as an ex parte summons was not the correct means of instituting proceedings for redress of constitutional rights under rules 3 and 8 of the supreme Court (Constitutional Redress-St Christopher, Nevis and Anguilla) Rules 1968 (having effect under the 1983 Constitution) …."
Counsel for the Applicant also referred to the case of Homer Richardson v The Attorney General ofAnguilla which he submitted provided guidance on Part 56 of the Rules. In this case Bruce-Lyle J is reported to have stated at page 4 para 4and 5 that-
"It is my view from a review or analysis of these sections of Part 56 of CPR 2000, that the Claimant has a mandatory duty to provide certain information as is specified in the relevant subsections of Part 56. The word "must" imposes or connotes an imperative duty on the Claimant. I cannot interpret the word "must" any other way."
Finally Counsel for the Applicant referred to my decision in Eisroy Donet v DwyerAstaphan and others (2007) where I stated at page 3 para. 6 of the Judgment:
"I should first say that striking out a statement of case is available and appropriate where pleadings disclose no cause of action, or defence, are frivolous and vexatious and an abuse of process or actions are commenced by way of an originating process which is incurably wrong."
The Applicant following the latter decision submitted that the Claimant in the action had commenced the action by a process which was incurable wrong and it ought to be struck out against the Defendants. Finally Counsel argued that alternatively if the action was not struck out he would rely on section 18 (2) of the Constitution which provides:
"(a) The High Court shall have original jurisdiction...
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