Carty v Rogers

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Smith, J.
• Judgment Date: 01 December 1995
• Neutral Citation: AI 1995 HC 1
• Docket Number: No. 83 of 1994
• Date: 01 December 1995

High Court

Smith, J.

No. 83 of 1994

Carty

and

Rogers

Appearances:

Mr L Moore, QC and Mr T Astaphan for the applicant

Mr J Archibald QC, Miss B Lake QC, Mr John Benjamin for the respondent

Mr R Defreitas, Attorney General as Amicus Curiae

Constitutional law - Parliament — Qualifications for membership — Applicant nominated by Governor to sit in the House of Assembly but prevented from taking his seat because he was not born in Anguilla — Whether court could validly inquire into whether the Governor had consulted with the Chief Minister before making the appointment — Court precluded from enquiring whether the Governor had exercised his discretion under section 41(1) — Court held that the applicant was entitled to the rights and privileges provided by the Constitution for a person determined by the Governor to have been validly appointed.

1 Section 35 of the Constitution of Anguilla (the constitution)provides that there shall be a House of Assembly for Anguilla which shall consist of, among other persons, two nominated members being persons who belong to Anguilla and are of the age of twenty-one years or upwards to be appointed by the Governor by instrument under the public seal. Of those two nominated members one shall be appointed by the Governor acting after consultation with the Chief Minister and the Leader of the Opposition, if any.

2 A person is disqualified for appointment as a nominated member if labours under any of the descriptions listed in paragraphs (a) to (g) inclusive of sub-section (1) of section 37 of the Constitution. It is accepted that none of these disqualifications was relevant to this matter.

3 David Anthony Carty (hereinafter referred to as “the applicant”) is a 43 years old boat builder who was born in the island of Saint Maarten the son of an Anguillan father. In an affidavit filed in this court on the 11th November, 1994 he deponed that he was appointed to be a nominated member of the House of Assembly (the House)by the Governor by instrument under the public seal on the 24 ^th May 1994; and he complained that he has not been able to take his place in the House as such nominated member even though subsequent to the said appointment the Governor determined that he was validly appointed. He stated how he was prevented but that is not now relevant.

4 As a result of his not being able to take his seat in the House, the applicant filed a notice of motion on the 11th November 1994 citing Leroy Rogers the Speaker of the House as respondent. By that notice he sought to move the Court to grant him, inter alia, the following relief:

• 1 a declaration that having been validly appointed as a nominated member of the House he is entitled to take part in the proceedings of the House and to all the rights and privileges of such member of the House.

• 2 a declaration that he did on the 2nd day of November, 1994 validly make before the Speaker of the House the oath of allegiance set out in the Constitution.

• 3 a declaration that his eviction from the House on the direction of the Speaker of the House was illegal and a contravention of the Constitution.

• 4 alternatively a declaration that he is entitled to take the oath of allegiance before the Speaker of the House, and

• 5 an injunction restraining the Speaker from evicting or in any way preventing him from taking part in the proceedings in the House.

5 The respondent entered a conditional appearance and applied to the Court to strike out the applicant's notice on the grounds set out by the said application. That application was heard in February, 1995 and after listening to lengthy submissions from counsel on both sides, I ruled on the 27 ^th February 1995, inter alia, that the applicant could not proceed with the application for the second and third declarations and dismissed the application for the injunction; but said that the court. would consider whether the applicant could he granted the first and fourth declarations for which he applied.

6 The substantive application for those two declarations eventually came for hearing on the 17th October, 1995.

7 In addition to the objections raised earlier in the preliminary hearing the respondent mounted other challenges to the applicant's cause. Through affidavits filed on his behalf the respondent alleged that the applicant was not qualified to he appointed as a nominated member because he did not belong to Anguilla. The respondent also contended treat the determination made by the Governor as to the validity of the applicant's appointment was bad in that the Governor did not specifically set out the questions that were raised to prompt the determination nor did he give his answers thereon or his reasons for the determination. It was also alleged that the Governor did not consult with the Chief Minister as the Constitution demanded that he must before making an appointment of the applicant.

8 This meant that in considering whether the Court could grant the lessened relief sought by the applicant I had to take into account the respondent's new objections and his older contention that the declarations sought are “outside the competence of the court which has no jurisdiction to determine the issues raised”. I had dealt with the matter of the jurisdiction of the court at the preliminary stage; and it was out of that I was able to rule that the court did have jurisdiction to entertain the applicant's motion for two declarations only. I should say here now, that the purpose of he substantive hearing was not to determine the validity of the applicant's appointment. That had already been done and indeed, it is not for this court to determine. The Constitution states who should determine that; and the person designated had done so. That determination has been challenged I thus had to look at the propriety of it.

9 Section 80 of the Constitution provides as follows:

• 80(1) There shall be an Anguilla Belonger Commission (hereinafter referred to as “the Commission”), the composition and functions of which shall, subject to the provisions of this section, be prescribed by law.

• (2) For the purpose of this Constitution a person shall be regarded as belonging to Anguilla if that person:

  • (a) is a British Dependent Territories citizen -

    • (i) who was horn in Anguilla, whether before or after the commencement of the British Nationality Act 1981; or if not so born

    • (ii) who was adopted in Anguilla; or

    • (iii) whose father or mother was born in Anguilla

    • (iv) whose father or mother became a British Dependent Territories citizen by virtue of having been adopted in Anguilla; or

    • (v) who is domiciled in Anguilla and whose father or mother by virtue of registration or naturalization while resident in Anguilla became a British Dependent Territories citizen at the commencement of the British Nationality Act 1981 (or would have done so but for his or her death) or so become such a citizen after such commencement of the said Act; or

    • (vi) who by virtue of registration or naturalization while resident in Anguilla became such a citizen at or after the commencement of the British Nationality Act 1981; or

  • (b) is domiciled in Anguilla, has been ordinarily resident in Anguilla for not less than fifteen years, and has been granted belonger status by the Commission; or

  • (c) was born in Anguilla of a father or mother who was born in Anguilla and who is regarded (or, if deceased, would if alive be regarded) as belonging to Anguilla by virtue of this subsection; or

  • (d) was born outside Anguilla and has satisfied the Commission that his father or mother was born in Anguilla and is regarded (or, if deceased, would if alive be regarded) as belonging to Anguilla by virtue of this subsection; or

  • (e) is the spouse of such a person as is referred to in any of the preceding paragraphs of this subsection, has been married to that person for not less than five years; or

  • (f) is the spouse of such as is referred to in paragraph (a), (b), (c) or (d) of this subsection, has been married to such a person for not less than three years, and has been granted belonger status by the Commission.

10 It is noticed that a person shall be regarded as belonging to Anguilla if he or she is one of the types of person in paragraph (a) or (b) or (c) or (d) or (e) or (f). A person thus needs to be in only one of the six categories to be regarded as belonging to Anguilla. If he is in the category of British Dependent Territories citizen he must also have one of the descriptions listed as (i), (ii), (iii), (iv), (v) or (vi) in (a). The applicant averred that he is a British Dependent Territories citizen and the legitimate son of a father who was born in Anguilla.

11 A person could be a British Dependent Territories citizen by virtue of the British Nationality Act, 1981. Section 23 of that Act provides as follows:

• 23(1) A person shall at commencement become a British Dependent Territories citizen if:–

  • (a) ……………………..

  • (b) he was immediately before commencement a citizen of the United Kingdom and Colonies and was born to a parent -

    • (i) who at the time of the birth (“the material time”) was a citizen of the United Kingdom and Colonies: and

    • (ii) who either had that citizenship at the material time by his birth, naturalization or registration in a dependent territory or was himself born to a parent who at the time of that birth so had that citizenship;

12 The applicant says he is a person who belongs to Anguilla as section 35 (1) (d) of the Constitution demands that he be if he is to be qualified for appointment as a nominated member of the House. Indeed it is the foremost requirement. He was however, born outside Anguilla and admitted in viva voce evidence given when he was being cross-examined, that he was not dealt with by, nor did he appear before, the Anguilla Belonger Commission (The Commission). That meant that he did not satisfy the...