Prince v De La Bastide et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop J.
• Judgment Date: 22 December 1976
• Neutral Citation: AG 1976 HC 7
• Docket Number: No. 85 of 1976
• Date: 22 December 1976

High Court

Bishop, J.

No. 85 of 1976

Prince

and

De La Bastide et al

Natural justice - Commission of Inquiry — Review of conduct — Whether plaintiff subject to inquiry — Whether plaintiff entitled to be represented by counsel — Whether legal duty on Commission to invite or summon plaintiff to attend from outset — Whether Commission acted in violation of principles of natural justice.

Bishop J.

1 Sydney Uriah Price, the plaintiff, by an organisation summons filed on his behalf on the 27 ^th September this year, sought the following relief:–

• A(I) a declaration that the proceedings of the inquiry which commenced on the 3 ^rd September 1976 have been conducted in a manner inconsistent with the provisions of Section 11 of the Commission of Inquiry Act, Cap. 305 and all its deliberations are therefore null and void;

• (II) a declaration that the proceedings of the inquiry have been conducted in contravention of the principles set out in Section 8 of the Constitution of Antigua in that the plaintiff has been and will continue to be able to obtain a fair hearing and that interests of justice have been prejudiced;

• (III) an injunction restraining the defendants from continuing to hold the inquiry and to act thereunder;

• (IV) alternatively, a declaration that the plaintiff is a person whose conduct is the subject of the inquiry an/or the plaintiff is in some way implicated or concerned in certain matters under inquiry and as some way implicated or connected in certain matters under inquiry and as such-

  • (a) was entitled to be presented either in person or by counsel throughout the whole of the Inquiry, and

  • (b) is entitled to refuse to answer any questions put to him by or with the concurrence of the defendants;

• (V) such further or other relief;

• (VI)costs”

2 The application was supported by his affidavit filed with the originating summons and by his supplemental affidavit filed on the 21 ^st October 1976.

3 The originating summons was served upon Karl Phillips De Jacques DeLa Baside, Sockh Mungal Supersad, and the defendants, for whom appearance was entered on the 2 ^nd October 1976, and the affidavit and supplemental affidavit of Conrad Freeston Richards were filed on the 21 ^st October and 25 ^th November respectively.

4 In his address, learned senior counsel for the plaintiff submitted that

• I. The plaintiff is a person who comes within the definition of Section

• II. of the Commission of Inquiry, and he was not invited or summoned to attend the whole Inquiry nor die counsel representing him at the whole Inquiry and such a person, then by virtue of those provisions he was entitled to be represented by counsel at the whole of the Inquiry and that such entitlement was mandatory.

• III. The plaintiff has been gravely prejudiced in that

  • (a) he was not present sat the whole Inquiry, and he was not invited or summoned to attend the whole Inquiry nor did he have counsel representing him at the whole Inquiry

  • (b) at the stage that the plaintiff was subpoenaed to attend the Inquiry neither he nor his counsel had the benefit of (i) listening to such evidence as had been given which would affect the witnesses who gave evidence as had been given which would affect him, or (ii) observing the demeanour or manner of the witnesses who gave evidence which would have enabled him or his counsel at an appropriate stage to bring to the attention of the Commissioners any such observation:

  • (c) he had not an opportunity of cross-examination of witnesses whose testimony related to him; the cross-examination is in fact the most effective way of testing the truth and reliability of witnesses;

  • (d) at the point of time when plaintif'=s counsel was aware of the evidence which had been given on the 3 ^rd September he applied, without success, to have the relevant witnesses, Merchant, Guishard and Henry, recalled for cross-examination; but this application was refused.

5 Now in respect of the above, learned senior counsel for the defendants indicated that he accepted that the plaintiff fell squarely within the category referred to, and he assured the court that he would not be contending otherwise,

6 I am satisfied form the terms of reference of the Commission of Inquiry as disclosed in the Antigua Official Gazette (extraordinary) of the 2 ^nd September 1976, the speech of Reuben Harris made some six months earlier on the 3 ^rd March 1976 a copy of which was exhibited with the plaintiff is indeed a person with in the definition stated by Section II of Cap 3025; that is to say, I find him to have been one who was concerned in the matter under inquiry.

7 I wish at this point to re-iterate my ruling on an earlier submission made during the hearing. It concerned the use by this court of the transcript of the testimony given at the Inquiry. I shall not recite the argument advanced by learned counsel for the parties. They were recorded during the hearing of the objection. I ruled, after reading Section 14 of the Commissions of Inquiry Act, Cap 305 that the transcript exhibited with the plaintiff=s affidavit should be admitted as evidence in this application which is a civil proceeding. I ruled that since the transcript comprised statement in answer to question put or before the Commission, then it shall not be admissible in this a civil proceeding. No purpose or purposes were mentioned by the Section which deliberately excepted the type of case - cases for indictment for perjury - in which such statements shall be admissible. Exceptions were clearly in the completion of the Legislature and the Section stipulated what was required to be excepted. So that the transcripts could not be used for any purpose in this application.

8 I have decided this matter before me without reference to the contents of the transcript of the evidence heard by the Commission during the Inquiry.

9 On part II of the submission mentioned earlier, learned senior counsel for the plaintiff stresses the plaintiff was not present at whole of the Inquiry began on the 3 ^rd September and the plaintiff was not there on that date, neither in person nor counsel. Further, Mr Luckhoo urged, the plaintiff was not invited or summoned to attend the whole of the Inquiry. H submitted that it was “the duty of the Commission at all stages, jealously to preserve the rights of individual who came under the provisions of the first part of Section II of Cap 305.” This, Mr. Luckhoo contended, could have been achieved in either of the two following ways. Firstly, “not to commence its hearing until it had perused such to it from official sources and until if had examined the written statements sent by interested persons who wished to give evidence as provided for by paragraph 4 of the notice in the Official Gazette of the 2 ^nd September.” Learned counsel saw this as the most desirable method because then “the Commission would clearly know the identity of the persons alleged to be implicated or concerned in the inquiry;” and he contended that at that stage the Commission ought to have invited or subpoenaed all such persons “to enable them to participate in and/or be represented in person or by counsel at the whole of the inquiry.” Secondly, Aassuming that at the commencement of the hearing of evidence it was known that a particular person was involved or considered to be involved or considered to be involved in the matter under inquiry, but in the course of taking of evidence witness were to testify in such a manner as to involve or implicate a particular person not then taking part in the Inquiry, the proper course would be for the Commission to stop the inquiry and pause, and to summon the person against whom any allegation had been made, to enable him to hear what had already been said what would further be said by the witness and any further witnesses and to cross-examine all such witnesses or by counsel..

10 It may be empahsised here, that if by this second method the duty of the Commission jealously to preserve the rights of individuals who came under the provisions of the first part of Section II of Cap.305” was discharged, then it was unnecessary for the person allegedly implicated or concerned in the matters under inquiry, to be present from the start of and throughout the whole inquiry.

11 Learned Senior Counsel for the plaintiff also dealt with the unsuccessful application made by plaintiff=s counsel at the hearing, for the recall of three witnesses (Merchant, Guishard and Henry) for cross examination and with statements attributed to the Chairman during the hearing. He urged that in the light of these and other facts and circumstances disclosed in the affidavits - and to which he adverted - the plaintiff was gravely prejudiced, and “the Commissioners failed in their duty to make a full, faithful, and impartial inquiry, as required by Section 7 of Cap. 05.”

12 Mr. Luckhoo also submitted that the plaintiff, insofar as the particular Commission of Inquiry is concerned has been forever deprived of the protection of law provided by section 7 and section II of Cap. 305 and section 8 of the Constitution.

13 On section 8 (2) of the Antigua Constitution Order 1967, also called herein, The Constitution, Mr Luckhoo asked this court to consider (a) that the Commission is an authority prescribed by law for the determination of obligations including the obligations of the plaintiff as Minister of Finance; (b) whether the Commission has been impartial in the sense that procedural requirements for protection of the plaintiff have been infringed and (c) whether of not there has been a violation of the principles of natural justice which are implied in The Constitution in that (i) there was no adequate notice of the commencement of the proceedings to the public including the plaintiff; (ii) there has been no disclosure to the plaintiff of allegations of involvement and the plaintiff was merely subpoenaed to...