Spencer v Attorney General of Antigua and Barbuda et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Byron, C.J. |
| Judgment Date | 08 April 1998 |
| Neutral Citation | AG 1998 CA 3 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | No. 20A aod 1997 |
| Date | 08 April 1998 |
Court of Appeal
Byron, C.J. (Ag.) Singh, J.A.Redhead, J.A.
No. 20A aod 1997
Dr. Fenton Ramsahoye, Q.C.; Mr. Cosmos Phillips, Q.C. Mr. Colin Derrick and Mr. Harold Lovell for the appellant
Mr. David Tumer-Samuels, Q. C. and Mr. Anthony Astaphan for the first respondent
Mr. Karl Hudson Phillips, Q. C. and Mr. Anthony Astaphan for the second respondent
Mr. Donald Halstead for the third respondent
Constitutional law - Locus standi — Appellant appealed against decision of trial judge who had concluded that the allegations that the agreement between the Government of Antigua and the Asian Village Antigua Ltd was unconstitutional and void did not disclose any cause of action under the Constitution but that the appellant had locus standi to bring the action — Court found that the motivation for litigation was political, frivolous and vexatious — Appeal dismissed.
Byron, C.J. [AG.] This is an appeal against the decision of Saunders J delivered on 21st November 1997 striking out the statements of claim of the appellant in two consolidated actions.
The appellant is the Leader of the Opposition in the House of Representatives in Antigua and Barbuda. He initiated two actions on behalf of himself and all other members of his political party the United Progressive Party.
In the first action which commenced on 23rd September, 1997 he sought a declaration that an agreement, dated 18th February, 1997 between the Government of Antigua and Barbuda and Asian Village Antigua Limited for the development of an area on the west coast of Antigua, was unconstitutional, illegal, null and void and damages for fraud and conspiracy and misdemeanour in public office and other relief, the said damages to be paid to him for the benefit of the people of Antigua and Barbuda. The defendants to the action were the Attorney-General, sued “both officially as representing the government and personally as a member of the Cabinet”; the Prime Minister sued “as representing himself and all other Cabinet Ministers personally and in their official capacity”; and Asian Village.
In the second action which commenced on 23rd October 1997 he sought declarations that a bill the Asian Village Development Act 1997 was ultra vires the powers of the Legislature and that the Governor-Ggeneral was not entitled to assent to it and other reliefs.
The defendants applied to have both writs and statements of claim struck out as disclosing no cause of action and being frivolous, vexatious and an abuse of the process of the court.
The matters were consolidated and came on for hearing on 5th November 1997.
In a lengthy and closely reasoned judgment the learned trial judge considered the statements of claim and concluded that the allegations did not disclose any cause of action under the Constitution, but that the appellant had locus standi to bring the action.
He also concluded that no particulars of the essential ingredients of fraud, conspiracy and misdemeanour in public office were pleaded and consequently the allegations pleaded could not to disclose any cause of action for those torts.
Accordingly he dismissed both cases, but made no order as to costs.
On 18th February 1997 the Government of Antigua and Barbuda entered into an agreement with Asian Village Antigua Limited (Asian Village) for the development of an area on the west coast of Antigua. The Government was to acquire Guiana Island and other lands and transfer them to Asian Village for $15.5 million dollars spread over a 10 year period. Asian Village would construct a massive project which would include resort accommodation of approximately 1000 rooms; casino; golf course; retail shops; residential developments; and other resort, commercial and hotel dated projects and facilities. The agreement was characterised by promises, very extensive fiscal and other incentives which included exemptions from taxes, privileges, special arrangements for construction of infrastructure and many others. There was political controversy about it, the appellant's political party opposing the project. The Government introduced a resolution in Parliament to have both houses consider and affirm the agreement and to obtain authorisation for the acquisition of the lands which were the subject matter of the agreement.
On 4th July 1997 the House of Representatives approved the agreement and authorised the acquisition of the lands for the public purpose of “the promotion and development of tourism and supporting tourist related activities. The appellant and four of his opposition parliamentary colleagues absented themselves from the House when the resolution was moved and passed. On 6th August, 1997 a similar resolution was passed in the Senate and the opposition senators similarly absented themselves.
On the 7th, 21st and 28th August 1997 declarations acquiring the lands identified in the agreement were published in the Gazette in accordance with the provisions of section 3 of the Land Acquisition Act.
On 18th September 1997 an order paper was circulated to all members of the House of Representatives in respect of a meeting to be convened on 23rd September. Item 14(a) was a motion by the Hon Prime Minister to move the first reading of the Asian Village Development Act, 1997.
On 6th October, 1997 the Bill was taken through all its stages in the House of Representatives, and was amended at committee stage to be The Asian Village Resort (incentives) Act. On 20th October the senate passed the bill.
At the time of the trial the Governor-Ggeneral had not assented to the bill and it was not yet enacted. Since the trial, the Governor-General assented to the Act on 9th December 1997, and to an amendment thereto on 29th January, 1998.
The appellant advanced several grounds of appeal. In effect these challenged the application of the principles of summarily striking out actions, and the conclusion that no cause of action was disclosed on the allegations, constitutional violations and the commission of various torts of public mischief. The respondent cross appealed on the issue of locus standi and the failure to award costs.
The third respondent challenged the decision to join him as party but as the whole action had been dismissed this became an academic issue, only relevant to the question of costs.
Order 18, rule 19 of the Rules of the Supreme Court empowers the court to strike out any pleading on the ground that it discloses no reasonable cause of action or is frivolous or vexatious or is otherwise an abuse of the process of the court. The principles upon which this jurisdiction is exercised are well settled and counsel for the appellant indicated that he had no quarrel with the principles which the learned trial judge enunciated. He argued that they were wrongly applied. In brief the court is empowered to dismiss an action in a summary way without a trial where the statement of claim discloses no cause of action, or is shown to be frivolous or vexatious or is otherwise an abuse of the process of the court. This summary procedure ‘should only be used in clear and obvious cases, when it can clearly be seen, on the face of it, that a claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court. In one of the cases from Canada on which reliance was placed the standard was expressed in terms that the claim should not be struck out if there is even a scintilla of a cause of action ( Operation Dismantle v. the Queen (1986) LRC (Const.) 421.
This was the stringent standard which the learned trial judge applied to the statements of claim in concluding that they should be summarily struck out and the actions dismissed.
Counsel for the appellant submitted that the test was wrongly applied because the learned trial judge attempted to assess the appellant's chances of success in the action and that was a task which could only be effectively performed after evidence had been adduced. He submitted that the circumstance that the argument before the learned trial judge took five days, before us lasted about the same length of time demonstrated that there were difficult and important points of law and that it was not a clear and obvious matter. I must comment, however, that we felt that too much time was spent in arguing this case, and it was out of deference to the learned counsel, who appeared for the appellant, and the public nature of and interest in the matter, that we did not guillotine the arguments even when we thought they were irrelevant or unnecessarily prolonged.
A number of cases were cited to us on this as on all aspects of the case. Counsel for the appellant relied on A..G. of Duchy of Lancaster v London and North Western Railway Co. [1892] 3 Ch 279 to show that the length of argument could be a factor in the decision. In rejecting an application to strike out pleadings for want of jurisdiction, Lindley, L.J said:
“it appears to me that the object of the rule is to stop cases which ought not to be launched - cases which are obviously frivolous or vexatious, or obviously unsustainable; and if it will take a long time, as is suggested, to satisfy the court by historical research or otherwise that the County Palantine has no jurisdiction, I am clearly of opinion that such a motion as this ought not to be made.”
The case of Dyson v Attorney General [1911] 1 K.B. 410 was relied on to show that the extent and quality of research necessary to determine the matter could also be a factor as Cozens-Hardy, M.R. said at 414:
“(The order) ought not to be applied to an action involving serious investigation of ancient law and questions of general importance, and on this ground...
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