Allen Chastanet v Ernest Hilaire

• Jurisdiction: St Lucia
• Judge: Webster JA
• Judgment Date: 16 January 2020
• Judgment citation (vLex): [2020] ECSC J0116-1
• Docket Number: SLUHCVAP2019/0005
• Court: Court of Appeal (Saint Lucia)
• Date: 16 January 2020

[2020] ECSC J0116-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SLUHCVAP2019/0005

Between:

Allen Chastanet

Appellant

and

Ernest Hilaire

Respondent

Appearances:

Mr. Garth Patterson, QC and Mr. Mark Maragh for the Appellant

Ms. Renée T. St. Rose, Mr. Thaddeus Antoine and Ms. Ann-Alicia Fagan for the Respondent

Interlocutory appeal — Whether Court of Appeal has jurisdiction to deal with constitutional point raised in lower court proceedings but not addressed by trial judge — Constitutionality of article 917A of Civil Code of Saint Lucia — Civil Code of Saint Lucia — Whether article 917A of the Civil Code breaches sections 40 and 120 of the Constitution — Statutory interpretation — Whether article 917A of the Civil Code of Saint Lucia imports into Saint Lucia the statute law of England relating to contracts, quasi-contracts and torts — UK Defamation Act — Whether UK Defamation Act is imported into the laws of Saint Lucia by article 917A — Whether provisions of UK Defamation Act conflict with Civil Code provisions on defamation

The respondent, Ernest Hilaire (“Mr. Hilaire”), a former High Commissioner for Saint Lucia to the United Kingdom and a member of the House of Assembly, filed a defamation claim against the appellant, Allen Chastanet (“Mr. Chastanet”), who was then and is now the Prime Minister of Saint Lucia. Mr. Chastanet defended the claim, relying substantially on the provisions of the Defamation Act 2013 of the United Kingdom (the “Defamation Act” or the “Act”) which he contended was imported into Saint Lucia by article 917A of the Civil Code. During the interlocutory proceedings, Mr. Chastanet applied to strike out Mr. Hilaire's claim and Mr. Hilaire applied to strike out Mr. Chastanet's defence. At the hearing of both applications, counsel for the parties agreed that the issue of the importation of the Act into Saint Lucia should be heard first since the viability of each party's pleadings depended on the outcome of the issue.

Mr. Hilaire contended that in so far as article 917A purports to import English statutory law into Saint Lucia, it is repugnant to section 40 of the Constitution of Saint Lucia (the “Constitution”) and, as such, it is inconsistent with section 120 of the Constitution and is therefore void. The learned judge tried the issue of the importation of the Act into Saint Lucia as a preliminary issue and found that article 917A did not import the Act into Saint Lucia. Mr. Chastanet appealed against the judge's decision.

At the commencement of the hearing before this Court, learned Queen's Counsel for Mr. Chastanet raised a preliminary objection to the challenge by Mr. Hilaire to the constitutionality of article 917A for two reasons. Firstly, that Mr. Hilaire did not file a counter notice of appeal challenging the trial judge's decision not to deal with his constitutional challenge. Secondly, that even if Mr. Hilaire had filed a counter notice of appeal, this Court would not have the power to deal with the challenge because the High Court had not made a ruling on the point and there was nothing to appeal against.

The Court reserved its decision on the preliminary objection and proceeded to hear the substantive issue on appeal, that is, whether article 917A of the Civil Code of Saint Lucia (“the Code”) imported into Saint Lucia the statute law of England relating to contracts, quasi-contracts and torts, including the Defamation Act which was enacted by the United Kingdom Parliament in 2013.

Held: allowing the appeal; setting aside the order of the trial judge; remitting the case to the trial court for dealing with the outstanding interlocutory applications including the appellant's application to strike out the claim; awarding costs of the appeal to the appellant summarily assessed at $5,000.00, that:

• 1. The general rule is that the Court of Appeal will not entertain an appeal on a constitutional point that was not raised in the lower court and that did not come to the Court of Appeal by way of an appeal. The constitutionality of article 917A was raised and argued in the High Court, but the trial judge, having found that article 917A does not permit the importation of English statute law into Saint Lucia, did not engage with the issue. The claim for a constitutional declaration is therefore not one that was raised for the first time in the Court of Appeal and it is not caught by the general rule that such claims should not be raised for the first time in proceedings before the Court of Appeal.

  Section 28(1) of the Eastern Caribbean Supreme Court (Saint Lucia) Act Cap 2.01, Revised Laws of Saint Lucia 2015 applied; Maycock v Commissioner of Police [2015] 3 LRC 183 applied; Tyson v R [2018] 5 LRC 270 followed; Piggott v R (2015) 88 WIR 299 followed; Attorney General of Grenada v Financial Investment & Consultancy Services Ltd. GDAHCVAP2016/0038 (delivered 18th April 2018, unreported) distinguished.

• 2. Article 917A was inserted into the Code in 1956. At the time, Saint Lucia was an English colony. When the country attained independence in 1979, Parliament was given the power to make laws for the new independent state. There is no reason why an existing law such as article 917A which purports to import the law of England relating to contracts, quasi-contracts and torts should become ineffective on the attainment of independence unless there was something in the independence legislation that expressly or by implication abrogated the article. There is no such provision in Saint Lucia's independence legislation.

• 3. Parliament's power to legislate for the importation of laws made by a foreign Parliament as contained in article 917A is not a delegation of its law-making power. Rather, it is an expression of the local sovereign Parliament's law-making power subject only to any inconsistency with any provision of the Constitution. Article 917A is not inconsistent with section 40 or any other provision of the Constitution.

  Ibralebbe and another v Reginam [1964] 1 All ER 251 applied; BCB Holdings Limited and Another v The Attorney General of Belize [2013] CCJ 5 (AJ) applied.

• 4. The Parliament of Saint Lucia has the power to legislate for the importation of statutes made by a foreign state. In each case, the meaning of the importing provision is a matter of interpreting the words used by the drafter to determine the extent to which the laws of the foreign state are to be imported. The effect of article 917A is that it imports into Saint Lucia the law of England relating to contracts, quasi-contracts and torts, which includes the statutes of England relating to these areas of law The words “for the time being” in article 917A have an ambulatory effect which means that the courts of Saint Lucia should apply the law of England from time to time and not when article 917A was enacted in 1956.

  Bamgbose v Daniel and others [1954] 3 All ER 263 distinguished; Cyril Mathurin and another v Anthony Augustin qua administrator of the Estate of Yasmin Natasha Augustin (deceased) SLUHCVAP2007/0041 (delivered 2nd June 2008, unreported) distinguished; The Attorney General of Saint Lucia and Francis Dariah v Donavan Isidore Saint Lucia Civil Appeal No. 20 of 2003 (delivered 24th May 2004, unreported) distinguished; Barras v Aberdeen Sea Trawling and Fishing Company Limited [1933] AC 402 distinguished.

• 5. There is no irreconcilable inconsistency between the provisions of the Defamation Act and the provisions of the Code except in the case of the application of the time limit for bringing a claim for defamation under the section 8(3) of the Act and the time limit prescribed by article 2123 of the Code. The inconsistency is however reconciled by reference to the principle of mutatis mutandis contained in article 917A, by reading section 8(3) of the Defamation Act to conform to article 2123 of the Code. Accordingly, the Defamation Act was imported into Saint Lucia in 2013 pursuant to the provisions of article 917A of the Code.

1 Webster JA [AG.]: This appeal considers the important issue of whether article 917A of the Civil Code of Saint Lucia 1 (“the Civil Code” or “the Code”) imports into Saint Lucian law the statute law of England relating to contracts, quasi-contracts and torts.

Procedural Background

2 In March 2017, the respondent, a former High Commissioner for Saint Lucia to the United Kingdom and a member of the House of Assembly, filed a defamation claim against the appellant who was then and still is the Prime Minister of Saint Lucia. The appellant defended the claim relying substantially on the provisions of the Defamation Act 2013 2 of the United Kingdom (“the Act” or “the Defamation Act”) which he contended was imported into Saint Lucia by article 917A of the Civil Code. During the interlocutory proceedings, the appellant (as defendant) applied to strike out or summarily dismiss the respondent's claim and the respondent (as claimant) applied to strike out the appellant's defence. At the hearing of both applications, counsel for the parties agreed that the issue of the importation of the Act into Saint Lucia should be heard first since the viability of each party's pleadings depended on the outcome of the issue. The learned trial judge tried the issue of the importation of the Act into Saint Lucia as a preliminary issue and found that article 917A did not import the Act into Saint Lucia. This appeal is against that decision.

The preliminary objection

3 At the commencement of the hearing before this Court lead counsel for the appellant, Mr. Garth Patterson, QC, raised a preliminary objection to one of the issues raised by the respondent in his written submissions. The issue relates to a challenge by the respondent to the constitutionality of article 917A. The Court...