Toussaint v The Attorney General of Saint Vincent and the Grenadines

• Jurisdiction: St Vincent and the Grenadines
• Judge: Rawlins, J.A.
• Judgment Date: 14 March 2005
• Neutral Citation: VC 2005 CA 2
• Docket Number: Civ. App. 1 of 2004
• Court: Court of Appeal (Saint Vincent)
• Date: 14 March 2005

Court of Appeal

Alleyne, J.A.; Gordon, J.A.; Rawlins, J.A. (Ag.)

Civ. App. 1 of 2004

Toussaint

and

The Attorney General of Saint Vincent and the Grenadines

Appearances:

Mr. Ramesh Lawrence Maharaj, S.C., with him Dr. Godwin Friday for the claimant/appellant

Mr. Anthony Astaphan, S.C., with him Ms. Sasha Seudath-Singh and Ms. Mishka Jacobs, both Crown counsel, for the defendant/respondent

Civil practice and procedure - Striking out application — Appeal — Appellant bringing constitutional claim against government which compulsorily acquired his land — Appellant appealing against decision of judge to strike out parts of his claim and affidavit on ground of parliamentary privilege — Whether judge erred in striking out impugned parts — Whether s. 40 of Evidence Act satisfied — Order that struck out portions be restored.

Rawlins, J.A. [AG.]:

1 The claimant/appellant, Mr. Toussaint, appealed against a decision of Blenman, J., which she gave on 25th May, 2004. In that decision, the learned judge struck out paragraphs 13 – 15 of the fixed date claim form by which Mr. Toussaint instituted his claim. The learned judge also struck out paragraphs 19 – 20 and a portion of paragraph 22 of the affidavit that supports the claim and Exhibit “R.T. 11” thereto. She struck out these impugned parts on the ground that the statements that they seek to bring into evidence enjoy the protection of parliamentary privilege and are therefore not admissible in Court.

2 The impugned parts refer to statements that the Honourable Prime Minister of St. Vincent and the Grenadines made during a debate in the House of Assembly on 5th December, 2002. The statements relate to the acquisition of a parcel of land that Mr. Toussaint held in fee simple at Canouan in the Grenadines, which the Government compulsorily acquired. The notice of the acquisition is dated 5th December, 2002. It appears in the Government Gazette for Tuesday 10th December, 2002.

3 In his claim, Mr. Toussaint seeks redress pursuant to section 16 of the Constitution of St. Vincent and the Grenadines, Cap. 2 of the Laws of St. Vincent and the Grenadines Revised Edition, 1990 (“the Constitution”). He alleges that when the Government purported to acquire his land, compulsorily, it contravened sections 6, 9, 10 and 13 of the Constitution in relation to him. These are fundamental rights provisions.

4 Section 6 confers upon a person the right to hold and enjoy property. The section protects a person from being deprived of property except for a public purpose. Where a person is deprived of his or her property for a public purpose, that person must be paid adequate compensation within a reasonable time. Sections 9 and 10 confer the right to freedom of conscience and freedom of expression, respectively. They protect a person from being hindered in the enjoyment of these rights. Section 13 protects a person from discrimination.

5 Mr. Toussaint seeks declarations that the acquisition of his land contravenes his right to enjoyment of property; the right not to be hindered in the enjoyment of his freedom of expression and conscience, including his right and freedom to hold opinions without interference; and the right not to be discriminated against or to be accorded different treatment on grounds of his political opinions.

6 In her decision, the learned judge struck out the impugned parts of the affidavit and the exhibit pursuant to Part 30.3(3) of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (“the Rules”). This provision confers discretion upon the Court to strike from an affidavit any scandalous, irrelevant or otherwise oppressive matter.

7 It appears from Paragraph 36 of the judgment that the paragraphs were struck from the fixed date claim under Parts 26.3(1)(b) and (c) of the Rules. Part 26.3(1)(b) empowers the Court to strike out a part of a statement of case if it appears that the impugned part does not disclose any reasonable ground for bringing the claim. Part 26.3(1)(c) provides that the Court may strike out a part of a statement of case if it is an abuse of the process of the Court, or if it is likely to obstruct a just disposal of the proceedings. These provisions are consistent with the overriding objective stated in Part 1 of the Rules, which require the Court to deal with cases justly. Part 25.1 of the Rules enjoins the Court to further the overriding objective by actively managing cases.

8 In her decision, the learned Judge found that the conjoint effect of sections 4 and 16 of the House of Assembly (Privileges, Immunities and Powers) Act, Cap. 3 of the Laws of St. Vincent and the Grenadines, Revised Edition, 1990 (“the Act”) and section 46 of the Constitution is that the statements that the Prime Minister made in the debate in the House on 5th December, 2002, concerning the acquisition of his land, are not admissible in Court because they are protected by privilege. On this finding, Mr. Toussaint will not be able to rely on those statements to assist him to prove his claim.

The Issues Raised by this Appeal

9 At the outset I shall put to rest the question whether the High Court has jurisdiction to review the actions of the executive for unconstitutionality. Mr. Maharaj, S.C., learned Counsel for Mr. Toussaint, raised it at the commencement of his submissions.

10 It is well settled that the High Court, which the Constitution established and upon which it confers original jurisdiction in constitutional matters, is the guardian of the Constitution. It is entrusted with the purview to review and strike down any contravention of the Constitution. This is premised upon the supremacy of the constitution and constitutional interpretation. It is also premised on the jurisprudential imperative of the rule of law, which Albert Venn Dicey referred to as the idea of legal equality before the ordinary Courts. This idea posits that no person shall be above the law in that every person is subject to the law of the land and amenable to the jurisdiction of the Court. The High Court has therefore reviewed legislation and the actions of the judiciary to ensure that they are in conformity with the Constitution. It has also exercised jurisdiction over the decisions by the executive branch of Government in order to ensure that those decisions were within constitutional remit. (See, for example, John Benjamin and Others v Minister of Information and Broadcasting and the Attorney General of Anguilla, [2001] 1 WLR 1040 (PC).

11 Basically, 3 main grounds can be distilled from this appeal that raise live issues. I state them here in the order in which I propose to consider them. The first is a purely procedural point. Mr. Toussaint complains that the learned judge erred when she struck out the impugned parts on a point in limine. His second contention is that the learned judge did not appreciate or properly construe the applicable constitutional and statutory provisions that relate to parliamentary privileges and immunities. Mr. Toussaint complains by this that the judge failed to hold that the statements that the Prime Minister made in Parliament are not cloaked in privilege. The third issue is whether the learned judge erred because she failed to hold that the Speaker waived the privilege and gave permission for Court to admit the evidence.

The Procedural Point

12 Mr. Toussaint complains that the learned judge erred when she struck out the impugned parts on a point in Iimine, because the application to strike out was not a point that was preliminary to the jurisdiction of the Court to hear the claim. According to him, the judge should have deferred ruling on the application and proceeded to hear the entire matter. She should then have ruled on the application when she ruled on the substantive issues. In his view, this would have avoided costs and delay because, in the event of an appeal, the ruling on both matters would have come before the Court of Appeal together.

13 Sir Dennis Byron, C.J. answered a similar question in Capital Bank International Limited v. Eastern Caribbean Central Bank and Another, Civil Appeal Nos. 13 & 14 of 2002 (10th March, 2003.). The question arose in that appeal in similar circumstances. The Chief Justice stated, at paragraph 4 of the judgment, that the judge in that case properly exercised his discretion pursuant to his case management powers under Part 26.1(2)(d) of the Rules when he struck out portions of documents on a preliminary issue. This provides a partial answer to the appeal on this issue. However, in the circumstances of the present case, I feel constrained to pursue the issue in its true perspective inasmuch as this action was instituted under Part 56 of the Rules.

14 In a trial, a judge rules on admissibility when permission is sought to tender evidence. The trial then proceeds to conclusion whether the evidence is admitted or not. The decision is then given on the substantive issues. In that process, it is not usual to object to admissibility as a preliminary point. In our present case, however, the application goes to striking out parts of the originating claim and related portions of affidavit evidence.

15 Part 56 of the Rules govern the practice and procedure of the High Court in relation to the jurisdiction and power conferred upon the Court for constitutional redress. Sections 16(6) and 96(4) of the Constitution empower him to do this. Part 56.7 provides the procedure for making an application for an administrative order, which includes orders for constitutional redress. Under this rule, applications should be by fixed date claim form.

16 Part 56.7(8) of the Rules stipulates the time within which there should be a first hearing on an application. This should be within 4 weeks after the claim is issued. Part 56.9 lays down stringent time requirements for service of the claim and related activities. Part 56.11 requires a judge to give...