Attorney-General Appellant v William Valentine Herbert Respondent [ECSC]
| Jurisdiction | Anguilla |
| Judge | DAVIS, C.J.,CHIEF JUSTICE |
| Judgment Date | 28 July 1975 |
| Judgment citation (vLex) | [1975] ECSC J0728-1 |
| Date | 28 July 1975 |
| Court | Court of Appeal (Anguilla) |
| Docket Number | CIVIL APPEAL No. 3 of 1974 |
IN THE COURT OF APPEAL
The Honourable the Chief Justice
The Honourable Mr. Justice St. Bernard
The Honourable Mr. Justice Peterkin
CIVIL APPEAL No. 3 of 1974
L.L. Moore, Attorney-General, for appellant.
D. Byron A.D. Mitchell with him for respondent.
This is an appeal from a judgment of Glasgow J. arising out of a trial without pleadings, in which he held that the Direction Statutory Rules & Orders No.30 of 1973 is not and never has been in force and no action can properly be taken under it that paragraph 3 of the said Direction is ultra vires the Sugar Industry Act, 1970 No. 17 of 1970: and that text which makes the provision mentioned in Section 6(4)(a)text of the Constitution is or was at any material time In force in the State. He made the following declarations:
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"1. A declaration that Direction No.30 of 1973 Statutory Rules and Orders made by the Minister of Industry entitled The Cultivation of Arable Land (West Farm) Direction 1973 is unconstitutional and void.
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2. A declaration that the Minister of Agriculture his servants or agents and in particular those persons calling themselves "The Sugar Industry rescue Operation" are not entitled to enter upon he lands of the Plaintiff situated at West Farm in the Island of Saint Christopher and State of Saint Christopher Nevis and Anguilla."
The following three grounds are raised in support of the appeal:
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"1. That the learned trial judge erred in law in holding that the Direction S.R. & 0. No.30 of 1973 "is not and never has been in force and no action can properly be taken under it".
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2. The learned trial judge erred in law in holding that paragraph 3 of the said Direction was ultra vires the Act viz the Sugar Industry Act, 1970, No.17 of 1970.
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3. That the learned trial judge erred in law in holding that no law which makes the provision mentioned in Section 6(4)(a)(vii) of the Constitution is or was at any material time in force in the State."
The facts are relatively simple and are not seriously in dispute. They may be summarised as follows.` The respondent is the owner of lands at West Farm Estate, St. Kitts, which he purchased in May 1973. In June 1973 the respondent fenced off an area of the land of some 10 acres with a view to setting up a small dairy farm. He then put some cattle on the land. Some time later, the respondent requested the Minister of Agriculture to use his good offices with a view to obtaining pipe-borne water so that he could water his cattle. The Minister expressed interest in the scheme and referred the respondent to his Permanent Secretary. The respondent also visited the office of the Agricultural Department and, as a result two Agricultural Officers visited the respondent's lands and made suggestions for the implementation of his scheme. He later purchased 28 rolls of fencing wire from the Department for building paddocks so as to rotate the feeding of his animals in accordance with the advice he had received. He then had water piped onto his land by the Water Department. In June or July 1973 the respondent erected a small building on his land to accommodate an employee who tended his animals. At the time of the incident which gave rise to this action the respondent had 17 head of cattle on his land while another portion of the said land was cultivated in food crops.
On 14th September 1973 the Minister of Industry made a Direction under Section 13 (2) of the Sugar Industry Act, 1970 (No. 17 of 1970), and thereafter letters were exchanged between the respondent and the Permanent Secretary of the Ministry of Agriculture.
On 14th October 1973 the Minister of Agriculture, by his servants or agents, entered upon the respondent's lands in purported compliance with the provisions of the abovementioned Direction (S.R. & O. No.30 of 1973), uprooted the produce growing thereon, and ploughed the land. The respondent was thereafter not permitted to enter his said land.
For the determination of this appeal learned counsel for the appellant posed the following questions to the Court.
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(1) Was S.R. & O. No.30 of 1973 properly made?
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(2) If it was properly made, was it ultra vires the Sugar Industry Act, No.17 of 1970?
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(3) If it was intra vires the Act, was it an infringement of the Constitution and, in particular, Section 6 thereof?
I think that counsel's approach to this matter is the correct one, and I shall deal with this appeal in the same order in which the questions were posed.
As to question (1) counsel for the appellant submitted that there was evidence in the S.R. & O. itself of the approval being given by Cabinet. He referred to the sixth recital and stated that the recital by itself was enough evidence to allow the judge to find that the approval of Cabinet was given, and that the words "and all other powers thereunto enabling" refer comprehensively to all the authority required to validate the making of the Direction, including the approval of the Cabinet. In support of his argument counsel cited Sec.21, paragraph (e) of the Interpretation and General Clauses Act (Cap.166). He also cited the following case:-
Beckles v Delamore (1965) 9 W.I.R. 299 at p.307;
Williams / Government of St. Lucia (1967) 10 W.I.R. 465 at p.475.
Counsel conceded that Cabinet approval was necessary and also that there was no positive evidence of such approval. He then submitted in the alternative that the judge was bound to take judicial notice of the order once it was published in the Gazette, and that the presumption of regularity was applicable. In reference to the latter alternative, he cited three cases In support.—
Boyd-Gibbins v Skinner (1951) 1 All E.R. 1049 ;
Scott v Baker (1968) 2 All E.R. 993 at p.1001;
Counsel for the respondent in reply to these submissions contended that the legislating authority to make the directions is vested in the Cabinet and not in the Minister, and that it must be shown on the face of the instrument that the proper authority had approved. He submitted that no Court would be justified in inferring the approval of Cabinet from a...
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