Farrell v The Attorney General of Antigua

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop J.
• Judgment Date: 14 February 1978
• Neutral Citation: AG 1978 HC 1
• Docket Number: No. 35 of 1977
• Date: 14 February 1978

High Court

Bishop, J.

No. 35 of 1977

Farrell

and

The Attorney General of Antigua

Appearances:

Dr. Ramsahoye S.C. (Guyana) & S. Christian for applicant

T. Hosein Q.C. (Trinidad), C. Phillips, Q.C. Attorney General

and C. Richards for respondent

Constitutional law - Industrial court — Jurisdiction and powers.

Constitutional law - Separation of powers.

Bishop J.

1 Neil Farrell has indicated to this court that he wishes “the constitutional validity of the provisions of section 4 of the Industrial Court Act, especially those relating to the appointment of the members of the court and the provisions relating to their tenure in section 5 of the said Act to be considered and determined by the High Court.” He so stated in an affidavit filed with a motion that came on for hearing on the 14 ^th November 1977. This motion which was filed on the 4 ^th June 1977 sought “(a) a declaration that sections 4 and 5 of the Industrial Court Act, No. 4 of 1976, in their existing form are institutional, null, void and of no effect; (b) a declaration that the reference No. 2 of 1977 made by the Minister of Labour on the 24 ^th day of January 1977 to the Industrial Court concerning unfair dismissal from the applicant's employment with the Antigua Public Utilities Authority cannot be properly dealt with by the Industrial Court as presently constituted; (c) damages and/or compensation for loss and expense suffered by the said applicant in proceedings before the Industrial Court and for delay in obtaining redress or relief as a result of his unfair dismissal (d) such further or other relief as the circumstances of the case may require; (e) costs. The grounds relied upon were stated in the following terms: “(1) The Industrial Court Act 1976 was enacted in contravention of the limitation of legislative power imposed upon the Legislature of Antigua pursuant to sections 37 and 38 of the constitution of Antigua and the West Indies Association States Courts Order 1967 herein called “the Courts Order”; (2) The Industrial Court Act 1976 was enacted in violation of the separation of powers between the Legislature, the Executive and the Judiciary which are expressly or impliedly provided by the provisions of the constitution and the Courts Order; (3) The IndustrialCourt Act 1976 could not properly create a Court of Record to exercise functions which would otherwise be vested in the Supreme Court of Judicature existing immediately before the commencement of the constitution or established by the Courts Order and authority other than the Judicial and Legal Service Commission for the Associated State of Antigua or create conditions of tenure and service of its members different from those existing immediately prior to the commencement of the Constitution under the Courts Order; (4) the members of the Industrial Court as presently constituted are illegal, null and void and may not properly bind the parties to them;(5) The applicant has been forced to incur expense in proceedings before the Industrial Court without any hope or expectation of lawful redress and relief.”

2 Learned senior counsel for the applicant asked that the court, at this stage, defer consideration of paragraph (c) above; and he said that in the event that the motion was successful, he would ask that damages be assessed in chambers, in the absence of agreement between the parties. The remaining paragraphs of the motion and the relevant grounds were considered.

3 Neither of two affidavits filed in support; of the motion was endorsed with a note indicating on whose behalf it was filed (0 41 r 9 (2) R.S.C. 1970); nor did that of Neil Farrell state his occupation or his description (see 0 41 r 1(4) R.S.C. 1970). In the course of his address, learned Queen's counsel for the respondent stressed that the affidavit of Farrell alleged unfair dismissal as the root cause of his complaint; and counsel attacked the affidavit of Donald Halstead submitting that certain paragraphs were irrelevant and inadmissible. In my view there were irrelevant and inadmissible facts disclosed in the latter mentioned affidavit, but I shall deal only with those paragraphs to which objection was taken.

4 In paragraph 2 the deponent sought to state facts which were agreed upon in 1966 at a conference held to settle the arrangements whereby Antigua would move to self-government in association with Britain. When I consider the nature of the relief sought by the applicant, the grounds upon which it is sought and the law which ought to be applied in determining the matter, I find that facts stated in paragraph 2 are irrelevant. I do not need to analyse the facts which were agreed upon at that conference in order to determine the constitutionality of the Industrial Court Act 1976 (also called “The Act”‘) or any section or sections of it.

5 In paragraph 4 of his affidavit Donald Halstead failed to comply with 0 41 r. 1(4) R.S.C 1970 which states that every affidavit must be expressed in the first person. He did not state that he was present at the debate which he supported to deal with in the paragraph. He did not state who “contended”, or who “pointed out”, or who “accused.”. As I understood it, all that the deponent did was to reveal some of the alleged criticisms and comments which were made when the legislature debated the Bill for the Industrial Court Act, and to show that such criticisms and comments amounted to disagreements with, or opposition to the passage of the Bill in its form as presented to the Legislature. And in my view, the best evidence of statements made during a debate in Parliament, is Hansard, and not the words of a member of Parliament, particularly one who never laid claim to being present. In any event, the statements made during the debate are irrelevant to the instant motion. Neil Farrell has attacked the Industrial Court Act No 4 of 1976, which became law in June 1976, and he seeks to have sections of it declared “unconditional, null, void and of no effect”; so that I have been invited to determine whether the Constitution of Antigua has been violated as alleged by Neil Farrell.

6 Paragraph 4 of the affidavit of Donald Halstead is without value in this case.

7 In dealing with the motion learned counsel for the applicant urged that it was necessary that “the constitutional history of the existing constitutional provisions” be examined and then, “in the light of that history and the actual provisions themselves, the powers of the Legislature, including the power to establish new courts, must be examined.” He submitted that the constitutional structure of the State of Antigua was to be found in the West Indies Associated States Supreme Court consisting of Court of Appeal and High Court of Justice, for the, jurisdiction of those courts and for the appointment and tenure of office of judges in those courts; further, that it established a judicial and Legal Services Commission for the States, and set out the specific functions of that body, including the appointment of the judges of the High Court of Justice.

8 In the words of learned counsel the question to be answered by the court was:

“whether the Legislature of Antigua could create a new court outside of the Federal Judicature, and appointed to it, persons who were not appointed by the Judicial and Legal Services Commission but by the governor, acting as he must do, on the advice of Cabinet or a minister appointed to advise him, in terms of section 69 of the Constitution of Antigua?”

9 Dr. Ramsahoye contended that it was necessary to refer to paragraphs 24 to 33 inclusive, of the Report of the Antigua Constitutional Conference 1966. These paragraphs embraced that part of the Report headed Judicature. I failed to see how those paragraphs rendered assistance with the instant motion. That Report contained what it was agreed, by those attending the conference, ought to be included in the Antigua Constitution Order 1967. This Order, along with the Court Order 1967, came into operation in Antigua on the 27 ^th February 1967; so that in the absence of any dispute over the construction of any of the provisions of these Statutory Instruments, there could be no justification for invoking the Report of the Antigua Constitution Conference 1966 in determining the constitutional validity of sections of the Industrial Court Act 1976.

10 Learned counsel also cited the West Indies Associated States Supreme Court Agreement 1967. This Agreement, made on the 24 ^th February 1967, was signed by the then Chief Ministers of the six States concerned, and it came into force on the 27 ^th February 1967. Counsel stressed, the last two sections and he urged that (a) section 10 was violated by the creation, in Antigua alone, of an Industrial Court to which some of the jurisdiction of the High Court of Justice had been removed; and (b) since section 11 has never been invoked the Agreement remains the same today as at 27 ^th February 1967. Section 10 indicated that in the light of the circumstances prevailing in each state, the government, of each state should take reasonably practicable steps to promote uniformity in certain of the laws; these included laws which, among other things, confer jurisdiction and powers on the Court of Appeal and High Court of Justice and regulate practice and procedure in these courts. Section 11 indicated the method whereby the Agreement might be varied between governments of all the states in respect of which it was in force.

11 Learned counsel for the applicant submitted that the Industrial Court Act 1976 “could only have been properly passed if the Courts Order had been amended to enable it and the Agreement varied to enable it.” I think it is useful to state here that Dr. Ramsahoye never contended at any stage that there could not be an not Industrial Court set up in Antigua. His contention was, that such a court may be set up, but only after certain steps had...