Gaston Browne v D Giselle Isaac-arrindell

• Jurisdiction: Antigua and Barbuda
• Judge: MICHEL, J.:,MICHEL, J.
• Judgment Date: 16 June 2010
• Judgment citation (vLex): [2010] ECSC J0616-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV2009/0394
• Date: 16 June 2010

[2010] ECSC J0616-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV2009/0394

In the Matter of Section 119 of the Constitution of Antigua and Barbuda Cap. 23 of the Revised Laws of Antigua and Barbuda 1992 Edition

In the Matter of Section 39 (1) (g) of the Constitution of Antigua and Barbuda Cap. 23 of the Revised Laws of Antigua and Barbuda 1992 Edition

Between:

Gaston Browne

Claimant

and

D. Giselle Isaac-arrindell

Defendant

Appearances:

Mr. Ralph A. Francis and Ms. Deniscia Thomas for the Claimant

Mr. Justin Simon, Q.C. and Ms. Alicia Aska for the Defendant

1 MICHEL, J.: By Fixed Date Claim Form filed on 10^th July 2009 the Claimant, Gaston Browne, claimed against the Defendant, D. Giselle Isaac-Arrindell, a declaration that the Defendant, being the substantive holder of the post of Executive Secretary to the Board of Education (a body corporate established under the Board of Education Act, 19941) is not qualified to be the Speaker of the House of Representatives by virtue of the provision of section 39 (1) (g) of the Constitution of Antigua and Barbuda (hereinafter referred to as "the Constitution"). On the said 10^th July the Claimant also filed an Affidavit in support of his application and exhibited therewith a copy of the Board of Education Act, 1994 (hereinafter referred to as "the Act") and certain sections of the Constitution of Antigua and Barbuda.

MICHEL, J.

2 On 6^th August 2009 an Acknowledgement of Service of the Fixed Date Claim Form and Affidavit in support were filed on behalf of the Defendant by the Attorney General's Chambers and on 19^th October 2009 that office filed an Affidavit in Response by the Defendant.

3 Case management directions were given in this matter on 5^th February 2010 and the parties filed pre-trial memoranda on 19^th March 2010 in accordance with the case management directions.

4 Pre-trial review of the matter took place on 16^th April 2010, at which the Claimant was ordered to file the trial bundle by 23^rd April 2010, the parties were ordered to file skeletal arguments with authorities by 17^th May 2010 and the trial of the matter was set for 1^st June 2010 on the basis of affidavit evidence only.

5 The Claimant did file the trial bundle by the date ordered and skeletal arguments in the form of a written submission (without authorities though) were filed on behalf of the Claimant on 18^th May 2010. The skeletal arguments on behalf of the Defendant in the form of a written submission (with authorities) —as per the pre-trial review order —were not however filed until 31^st May 2010.

6 At the trial of the matter on 1^st June 2010, lead Counsel for the Claimant, Mr. Ralph Francis, presented to the Court a bound copy of the authorities in support of his submission and then proceeded to make his submission on behalf of the Claimant.

7 The Court hereby accepts and deems to have been properly filed the submissions and authorities filed and presented to the Court on behalf of both parties.

8 The factual issues outlined in the written submission filed on behalf of the Claimant are as follows:

• 1. The Claimant is a member of the House of Representatives, having been elected as the Parliamentary Representative for the Constituency of St. John's City West at the March 2009 General Elections.

• 2. The Defendant is not an elected member of the House of Representatives, but was elected by the elected members of the House to serve as Speaker of the House after the March 2009 General Elections.

• 3. Prior to being elected Speaker and up to the present time, the Defendant is employed as the Executive Secretary of the Board of Education, which is a statutory corporation established by the Act.

• 4. The Claimant is seeking a declaration that the Defendant, being the substantive holder of the position of Executive Secretary of the Board of Education, is not qualified to be the Speaker of the House of Representatives by virtue of the provision of section 39 (1) (g) of the Constitution.

9 None of these factual issues have been disputed by the Defendant and all are accepted by the Court as constituting the factual basis of this claim.

10 In the written submission, the Claimant restated the issues which were enumerated in his pre-trial memorandum for determination by the Court as follows:

• 1. Does the Attorney General have a right of audience to represent the Defendant in this claim?

• 2. Is the Defendant a member of the House of Representatives?

• 3. Is the Defendant, as Executive Secretary of the Board of Education, a Public Officer under the Constitution?

• 4. Is the Defendant disqualified from serving as Speaker of the House of Representatives?

11 The second issue was conceded by the Honourable Attorney General, as Counsel for the Defendant, and the averment in the Defendant's affidavit that she was not a member of the House was indicated by the Honourable Attorney General to be a mere typographical error,

12 On the first issue for determination by the Court, Learned Counsel for the Claimant submitted that the appearance entered on behalf of the Defendant by the Attorney General is not in keeping with the law. That the challenge being made to the qualification of the Defendant is one which suggests that in her personal capacity she does not qualify to be a member of the House. That the Claimant is not therefore before the Court on any issue relative to the Defendant in the discharge of any function she may have discharged as the Speaker of the House, neither is any challenge being made to the Defendant in her capacity as Executive Secretary of the Board of Education. That the challenge is being made to the Defendant as a private citizen.

13 Counsel submitted that there is no challenge being made by the Claimant to the Attorney General being involved in the case before the Court. That section 44 (1) of theConstitution states that the High Court shall have jurisdiction to hear and determine any question whether any person who has been elected as Speaker from among persons who were not members of the House was qualified to be so elected and that section 44 (5) states that if any application is made by a person other than the Attorney General to the High Court for the determination of any question under this section, the Attorney General may intervene and may then appear or be represented in the proceedings.

14 Learned Counsel submitted that the process of intervention permits the Attorney General to participate fully in the case as though he were a party thereto. That the Attorney General is the chief legal adviser to the Government and as such he initiates or defends claims on behalf of the Government.

15 In addressing this issue in his oral submission at the trial, Learned Counsel for the Claimant cited the case ofDrew v Hall [1970] 3 All ER 5722 and referred to and read paragraph 4 on page 99 of the report of the judgment of the Supreme Court of Bermuda. Counsel also asked the question —"what is the intervention" and cited the case of Adams v Adams [1970] 3 All ER 5722, referring to and reading paragraph "g" on page 576 and paragraph "a" on page 577 of the report of the judgment of the High Court of Justice of England and Wales. Counsel also cited the case of Othniel Sylvester v Satrohan Singh referred to in the text "On the Benches of the Eastern Caribbean" by retired judge of the Eastern Caribbean Supreme Court, Mr. Albert N. J. Matthew.

16 Learned Counsel concluded from the cases cited by him that the Attorney General clearly can intervene, but the right of intervention does not permit him to represent a party to the proceedings. He submitted, however, that the Court's determination of this particular issue will not impact on the outcome of the case as a whole, or —to quote his own words -"whatever the Court may decide on this issue, there will be no violence done to the claim, because this matter in its entirety would be ventilated and justice would be done one way or the other."

17 On the third issue for determination —whether the Defendant is a public officer —Learned Counsel referred to and read out the definitions of public officer, public office and the public service in section 127 of the Constitution and then cited the case ofWalter v R (1980) 27 WIR 3864 wherein the question of public office and public officer was examined by the Court of Appeal of the West Indies Associated States, He submitted that in that case section 115 of the 1967 Constitution of Antigua was addressed, which —except for some terminological changes (like Premier to Prime Minister) —is identical to section 127 of the 1981 Constitution. Counsel also cited the case of Cyril Stewart v R (1960) 2 WIR 4505 wherein the Jamaica Court of Appeal held that where a person has to discharge a duty in which the public is interested, he is performing a public duty and is therefore the holder of a public office and that it is not essential for a public officer to be appointed under some law or regulation or to be paid from public funds.

18 Counsel submitted that the Defendant is the Executive Secretary of the Board of Education, which is a statutory corporation established by the Act. That the preamble to the Act says that it is —"An Act to establish a Board of Education for the execution of certain educational policies of the Government provided in the Act; to raise money required for the execution of such policies and to make provisions for other matters connected therewith." That the Executive Secretary is appointed by the Cabinet of Antigua and Barbuda. That the sources of funds of the Board of Education are —(a) a levy raised and collected on incomes, (b) money appropriated by Parliament from time to time for the purposes provided by the Act, (c) donations and endowments given to the Board for the purposes of the Act and (d) such other moneys as the Board may raise from time to time through its...