Margetson v The Attorney General et Al

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, C.J.,Lewis, J.A.
• Judgment Date: 16 November 1968
• Neutral Citation: AG 1968 CA 8
• Docket Number: Civil Appeal No. 2 of 1968.
• Date: 16 November 1968

Court of Appeal

Lewis, C.J., Lewis J.Gordon, J.

Civil Appeal No. 2 of 1968.

Margetson

and

The Attorney General et al

Appearances:

Keith Alleyne, Q.C. (Wind. Is.), S.Christian with him for appellant.

H.A. Besson, (Attorney General), C. Ross with him for respondents.

Practice and Procedure - Right to raise new matter on appeal — Immigration and Passport Act of the Leeward Islands (Cap. 150) of the Laws of Antigua.

Administrative law - Immigration and Passport Act of the Leeward Islands (Cap. 150 of the Laws of Antigua) — The Adaptation of Laws Regulation — The Leeward Islands Act 1956 — The Leeward Islands (Miscellaneous Provisions) Order in Council, 1956 — Constitution of Antigua s. 16(8).

Facts: Evidence revealed that the appellant's passport was endorsed limiting his stay in Antigua. At the trial he pleaded his case on Cap. 150 but an appeal sought to introduce a new matter i.e. he had been resident in the island for over seven years — Whether he was entitled to raise this new issue of appeal.

Facts: Evidence revealed that the appellant born in St. Kitts moved to Antigua with his parents at age 1947. At that time the Federation of the Leeward Islands existed and Cap. 150 created the concept of belonging to the Colony of the Leeward Islands. The appellant went abroad to study in 1952 and returned to live in Antigua in 1966. In December his passport was endorsed limiting his stay until January 1968. The issue was whether under Cap. 150 he was entitled to be a person belonging to Antigua according to the Constitution s.16 (8).

Held: That a matter not canvassed at the trial could not be argued at appeal. Appeal dismissed.

Held: Whatever rights accrued from the Leeward Islands Federation were extinguished by its dissolution. The Adaptation of Laws Regulation gave the Government of Antigua the right to determine what of the pre existing laws still operated in the country. Further, the Constitution took preference over all existing law and the only way one was entitled to its protection was to show in relation to the criteria it established that one was a person belonging to Antigua. These were that (a) one was born in Antigua and (b) had seven years ordinary residence. The appellant could not satisfy either criteria. Appeal dismissed.

Lewis, C.J.

1 By section 2(2)(b) of the Immigration and Passport Act, Cap. 150, of the Laws of Antigua, 1962 Revision (hereinafter referred to as “the Act” a person for the purposes of the Act, “be deemed to belong to the Colony if he is a British Subject and: –

• (i) was born in the Colony or of parents who at that time of his birth were ordinarily resident in the Colony; or

• (ii) has been ordinarily resident in the Colony continuously for a period of seven years or more and since the completion of such period of residence, has not been ordinarily resident in any other part of Her Majesty's dominions or any territory under Her Majesty's protection continuously for a period of seven years or more;”.

2 The Act, originally enacted by the General Legislature of the Leeward Islands (No. 7 of 1945) for the then federal Colony of the Leeward Islands of which Antigua was a presidency, continued as valid for Antigua after the dissolution of the Federation in 1956. Its purpose is “to impose restrictions on immigration and to govern the issue and production of passports.” Substantial amendments were made to it in 1964. By some of its provisions “persons belonging to the Colony” (now the State) are granted certain privileges and immunities and exempted from certain obligations.

3 Sections 4 and 16(8) of the Constitution of Antigua form part of Chapter I, which provides for the protection of fundamental rights and freedoms. Section 4 relates to the protection of freedom of movement, which is defined in sub-section (1) thereof as –

“the right to move freely throughout Antigua, the right to reside in any part of Antigua, the right to enter Antigua and immunity from expulsion from Antigua.”

4 Sub-section (3) of that section provides that:

“(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision: –

xxx xxx xxx xxx

(c) for the imposition of restrictions on the movement or residence within Antigua of any person who does not belong to Antigua or the exclusion or expulsion from Antigua of any such person;

Section 16(8) provides that for the purposes of Chapter I — “a person shall be regarded as belonging to Antigua if that person is: –

• (a) a citizen of the United Kingdom and Colonies, born in Antigua or

• xxx xxx xxx xxx

• (d) a Commonwealth citizen who is domiciled in Antigua and has been ordinarily resident in Antigua for not less than seven years;”.

5 It will be noted that the provisions of section 16(8) of the Constitution — the residence qualification-differ somewhat from those of s. 2(2)(b) (ii) of the Act. It is not in dispute that, if the appellant's claim were based upon residence in Antigua, the provisions of this latter paragraph would have to be modified so as to brim them into conformity with those of the Constitution. However, for reasons, which I shall mention later, the question of ordinary residence for seven years does not arise in this appeal. The court is called upon merely to consider whether a citizen of the United Kingdom and Colonies born outside Antigua in a Presidency of the former Colony of the Leeward Islands can claim, by virtue of the fact of his birth in treat Presidency and some subsequent residence in Antigua, to belong to Antigua within the meaning of the Act and of the Constitution.

6 The case came before the trial judge on a set of admitted facts and an amended Statement of Claim. The relevant facts are as follows: –

7 The appellant was born in Montserrat, a Presidency of the Colony of the Leeward Islands, on the 9th November 1928, his father, a surgeon in the employ of that Colony, having himself been born in another Presidency, St. Kitts. The appellant lived with his parents in Montserrat until February 1947, when his father was transferred to Antigua and brought his family with him to this island. His father continued to reside in Antigua until his death in 1964. In 1949 the appellant left Antigua to further his studies abroad, first entering the University College in Jamaica where he remained until 1952, going home for his long vacations, and then going to the United Kingdom to study law. Between 1952 and 1966 he paid one visit to Antigua. In 1956 he married a Trinidadian girl in London, and in 1965 he sent her with their family of four children to his parents in Antigua. He himself having failed to complete his legal studies, returned here permanently in February 1966. It was admitted that at the date of issue of the writ he was domiciled in Antigua. He obtained employment here, and moved freely in and out of this island without any restrictions or conditions being placed upon his entry or residence therein. On the 22nd December 1967, at the instance of the second respondent his passport was endorsed with a condition limiting his stay in Antigua “until 6th January, 1968, provided no work is undertaken without a work permit”. The appellant thereupon -applied unsuccessfully for a work permit under the Act and the Regulation, made thereunder. On January 5th, 1968 a further endorsement was made on his passport in similar terms extending his stay to 5th February 1968. The appellant thereupon filed his writ, by which he asked for certain declarations and also for an injunction against the second respondent restraining him from expelling him from Antigua and from placing restrictions upon his freedom and employment here.

8 The principal declaration claimed by the appellant is that he “is a person belonging to Antigua” within the meaning of s. 2 of the Act and s. 16(8) of the Constitution. Consequent upon that, he claimed other declarations that he is at liberty to reside in any part of Antigua, that he has the right at all times to enter Antigua, that he is entitled to work in Antigua without securing a work permit, that the endorsements upon his passport made at the instance of the second respondent were ultra vires, and that any order restricting his place of employment or confining his employment to a particular place or debarring his employment from a particular place in Antigua is ultra vires.

9 In his Statement of Claim the appellant set out the particulars of his residence from the time of his birth to December 1967. I have given a summary of these above. He did not however, expressly allege that he had been ordinarily resident in Antigua for not less than 7 years prior to the filing of his writ. If he intended to base his claim upon such residence, he abandoned the trial when his counsel made the following statement, as recorded in the judgment of the learned trial judge, (at page 37 of the record):

“He did not intend to rely on the allegation that the plaintiff has been ordinarily resident in Antigua for seven years; He would contend that the plaintiff belonged to Antigua and would rely on the Immigration and Passport Act of the Leeward Islands, (now Chapter 150 of the Laws of Antigua).

10 The learned trial judge in order to determine the real question in controversy between the parties, amended the Statement of Claim by the insertion of the following paragraph:

“The plaintiff states that he belongs to Antigua because he was born in the Leeward Islands, or alternatively, if he does not belong to Antigua, he is not required by law to obtain a work permit.”

11 The appellant's passport was put in evidence. The learned trial judge held: (1) that the second respondent was improperly joined as a defendant and ordered that his name be struck out; (2) that in any event he could not order an injunction against the second respondent, an...