[1] The Prime Minister [2] Juno Samuel Appellants/Respondents v Sir Gerald Watt, Kcn, Qc Respondent/Appellant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Mitchell JA [AG.],Don Mitchell Justice of Appeal [Ag.]
• Judgment Date: 27 May 2013
• Judgment citation (vLex): [2013] ECSC J0527-5
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2012/0005
• Date: 27 May 2013

[2013] ECSC J0527-5

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice M. Pereira Chief Justice

The Hon. Mr. Davidson K. Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [ag.]

ANUHCVAP2012/0005

Between:

In the Matter of the Representation of the People Act

and

In the Matter of an Application by the Prime Minister to Remove Sir Gerald Watt Kcn, Qc as Chairman of the Antigua and Barbuda Electoral Commission

[1] The Prime Minister

[2] Juno Samuel

Appellants/Respondents

and

Sir Gerald Watt, Kcn, Qc

Respondent/Appellant

Appearances:

Mr. Sanjeev Datadin with him Ms. Sheri-Ann Bradshaw for the Appellants

Dr. David Dorsett with him Mr. Jared Hewlett for the Respondent

Civil appeal — Constitutional Law — Whether Governor-General ought to have been joined as party to proceedings — Representation of the People (Amendment) Act 2001 — Electoral Commission — Whether Prime Minister had authority to advise removal of Chairman — Judicial review proceedings — Whether Prime Minister's action amenable to judicial review — Damages in breach of fundamental rights — Administrative orders — Costs

The Prime Minister, in keeping with section 3 of the Representation of the People (Amendment) Act 2001 ("the RPA 2001"), recommended to the Governor-General that Sir Gerald Watt, KCN, QC be appointed as the Chairman of the Antigua and Barbuda Electoral Commission ("the Commission"). Subsequently, the Prime Minister, pursuant to section 4 of the RPA 2001, informed the Governor-General that the question of the removal of Sir Gerald from the office of Chairman of the Commission be investigated. A tribunal was duly constituted for this purpose. The report issued by the Tribunal advised that it could not recommend that Sir Gerald be removed. Before resuming his office however, Sir Gerald's appointment as Chairman was revoked by the Governor-General who acted on the recommendation of the Prime Minister. Mr. Juno Samuel was then replaced as Chairman of the Commission.

Sir Gerald brought an action seeking judicial review of the decision of the Prime Minister. He sought various remedies including an injunction prohibiting Mr. Samuel from acting as Chairman; a declaration that his removal was illegal and therefore null, void and of no legal effect; and an order for aggravated and vindicatory damages. The learned trial judge found that the Chairman of the Commission could only lawfully be removed by the Governor-General acting upon the Report of the Tribunal. She further found that the actions of the Prime Minister were amenable to judicial review as he had acted illegally in recommending the removal of Sir Gerald and the consequential actions of the Governor-General were themselves the fruit of an illegal act. The learned judge for the most part granted the reliefs sought; however she awarded Sir Gerald damages to be assessed, but not substantial, aggravated or vindicatory damages, and his prescribed costs based on the damages as assessed.

Both the Prime Minister and Sir Gerald appealed the judgment of the lower court. The Prime Minister appealed on various grounds which included (1) the Governor-General ought to have been named as a party to the action; (2) the appropriate political leader can recommend the removal of the Chairman; (3) the recommendation of the Prime Minister was not reviewable as it was a mere recommendation; (4) the learned judge was wrong to find the act of the Prime Minister illegal, irrational and procedurally unfair; and (5) the award of an order for damages to be assessed had not been based on the evidence and was wrong. Sir Gerald appealed the learned judge's decision in relation to the damages awarded to him and the prescribed costs order.

Held: dismissing the appeal; allowing the cross-appeal and varying the orders as to costs and damages, that:

• 1. Whenever the validity of any act of state done by the Governor-General is being called in question, the Attorney-General is the proper party to be named in the litigation. In the instant case, the Governor-General was properly joined as a party when the Attorney-General was named in her place in accordance with the recommended constitutional procedure.

  Hochoy v NUGE and Others (1964) 7 WIR 174 followed.

• 2. The RPA 2001 makes provisions for the different political interests to be represented in the formation of the Commission. However, in light of the fact that the mischief which the RPA 2001 was designed to avoid was political interference in the functioning of the Commission after it was appointed, it could only mean that the office of Chairman or the office of an ordinary Member is not susceptible to the direction or control of any other person or authority. Dismissal from office is perhaps the ultimate form of control. Thus, the RPA 2001 must be read to reflect that once the members have received their instruments of appointment, there is to be no further political interference in the functioning of the Commission.Therefore, the learned trial judge was correct to find that none of the five members, the Chairman, Vice Chairman or the three Members may be removed from office except on the recommendation of the Tribunal.

  Sections 3, 4 and 6 of the RPA 2001 applied.

• 3. The recommendation of the Prime Minister was not merely a preparatory step on the way to the making of a formal legally binding decision. The body authorised to take the preparatory step was the Tribunal, and the Prime Minister had usurped the authority of the Tribunal in purporting to make the recommendation to the Governor-General. Consequently, his decision was amenable to judicial review.

• 4. Irrationality, or unreasonableness, takes into account decisions reached in the exercise of a statutory discretion that are unlawful because it can be shown that in reaching the decision the body exercising the discretion has acted on an erroneous view of the applicable law. The Prime Minister's recommendation to dismiss Sir Gerald had been clearly irrational and misdirected in law in view of the Tribunal's Report stating the contrary.

  Bromley London Borough Council v Greater London Council and Another [1983] 1 AC 768 applied; Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC 374 applied.

• 5. The Civil Procedure Rules 2000 do provide that a court may at the trial of a claim make a direction for the assessment of the quantum of damages and may give directions for the service of witness statements relating to this issue.

  Rule 16.4 of the Civil Procedure Rules 2000 applied.

• 6. Despite there being no suggestion that any constitutional right had been infringed, Sir Gerald held a statutorily entrenched position of Chairman of the Commission from which he was summarily dismissed on the basis that the Prime Minister had lost confidence in his performance. The learned trial judge ought to have granted Sir Gerald substantial damages as opposed to nominal damages, for the purpose of the award of damages is to vindicate the right. Vindication involves an assertion that the right is a valuable one. In this case, the right violated was in the nature of a constitutional right. Any award of damages for its contravention is bound, to some extent at least, to act as a deterrent against further breaches.

  Inniss v Attorney General of Saint Christopher and Nevis [2008] UKPC 42 applied.

• 7. On the hearing of an application for an administrative order, the learned judge ought to have assessed the costs rather than make an order for prescribed costs.

  Rule 56.13(5) of the Civil Procedure Rules 2000 applied.

Mitchell JA [AG.]

1 Sir Gerald Watt KCN, QC, is an eminent barrister of Antigua and Barbuda. The Governor-General on the 1st day of October 2005 appointed him to the Antigua and Barbuda Electoral Commission ("the Commission"). He received two instruments of appointment, one as a member of the Commission, and the other as its Chairman. His appointment as Chairman was made by the Governor-General acting on the advice of the Prime Minister, as provided by section 3 of the Representation of the People (Amendment) Act 2001 ("the RPA 2001"). 1

2 After controversial general elections were held in Antigua and Barbuda in the month of March 2009, the Prime Minister represented to the Governor-General that the question of the removal of Sir Gerald from the office of Chairman should be investigated. The Prime Minister's authority for making such a recommendation is section 4 of the RPA 2001. 2 A Tribunal headed by retired Justice of Appeal Ian Forte of Jamaica was appointed and carried out an investigation. The Tribunal issued its report to the Governor General advising that it could not recommend the removal of Sir Gerald, and he having earlier been suspended pursuant to the RPA 2001 prepared to resume his office.

3 Before Sir Gerald could resume office, he received a letter from the Prime Minister which advised him that he no longer enjoyed the confidence of the people of Antigua and Barbuda and he, the Prime Minister, had written to Her Excellency the Governor-General recommending that Sir Gerald be relieved of his position as Chairman of the Commission. The Governor-General subsequently wrote to Sir Gerald advising him that she had received a letter from the Prime Minister stating:

"Please be advised Your Excellency that Commissioner Sir Gerald Watt Q.C. no longer enjoys my confidence to act in the capacity of Chairman of the Commission. Consequently, I am recommending that you terminate his appointment as Chairman of the Antigua/Barbuda Electoral Commission with immediate effect." 3

She therefore by letter revoked his appointment as Chairman of the Commission. She advised Sir Gerald that this revocation as Chairman did not affect his position as Member of the Commission. Acting on the advice of the Prime Minister, the Governor General appointed Mr. Samuel

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