Augustin Lionel Applicant v The Honourable Attorney-General Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Matthew J.
• Judgment Date: 25 May 1995
• Judgment citation (vLex): [1995] ECSC J0525-2
• Docket Number: Suit No.357 of 1995
• Court: High Court (Saint Lucia)
• Date: 25 May 1995

[1995] ECSC J0525-2

IN THE HIGH COURT OF JUSTICE (CIVIL)

A.D. 1995

Suit No.357 of 1995

Between:

Augustin Lionel

Applicant

and

The Honourable Attorney-General

Respondent

Mr. C. Rambally and Mr. M. Francois for the Applicant.

Mr. E. Thomas, Solicitor-General, for the Respondent.

Matthew J.

Pleadings

1 On May 17, 1995 the Applicant filed a notice of motion for an order to prohibit the Respondent from holding a commission of inquiry to look into the alleged misappropriation of United Nations funds and other funds by certain commissioners appointed by the Respondent. The document was incomplete for it stated that the motion was pursuant to the leave of the Court given on a blank date. So at the time the motion was filed there was no leave granted to the Applicant as required by Rule 1(1) of Order 44 of the Rules of the Supreme Court.

2 The purported motion was accompanied by a statement in support of application for leave to apply for an order of prohibition as well as an affidavit of the Applicant, Augustin Lionel. The affidavit purported to exhibit page 196 of a book, Caribbean Life and Culture, by Sir Fred Phillips. I say the affidavit purported to do so because it did not comply with Rule 11 of Order 41 of the Rules of the Supreme Court.

3 In his affidavit the Applicant stated that he is a citizen of Saint Lucia and a person lawfully entitled to vote and also a person lawfully required to pay income and other taxes to the State. He said he is a public-spirited citizen and as such has been closely observing and following recent revelations in relation to the alleged misappropriation of United Nations funds and other funds by the Government of Saint Lucia. He said he believes the matters to be of grave public importance that it was of utmost public importance that a fair and impartial tribunal be instituted to look into the matter.

4 He further deposed that he has been informed that three eminent persons have been appointed by the Respondent as Commissioners to conduct the said inquiry, and he gave the names of the three persons as Sir Fred Phillips, Rex McKay and Reginald Dumas.

5 He then stated that he has been informed and verily believes that the Commissioners are and have been close friends of the Right Honourable Prime Minister of Saint Lucia, one of the persons allegedly implicated in the said misappropriation, and therefore the rules of natural justice will be infringed.

6 On May 18, 1995 the Applicant's Counsel went before a Judge in Chambers who considered his application for leave and granted leave and at the same time setting down Friday, May 19, 1995 at 11.00 a.m. to hear the motion in open Court.

7 On May 19, 1995, the Honourable Attorney-General filed an affidavit in opposition asking to dismiss the motion and to award costs to the Respondent. In her affidavit the Attorney-General deposed that she had been improperly named as the Respondent in this matter and she stated that the fact that the Applicant was a voter, tax-payer or public-spirited person was an insufficient basis for the purposes of the application for the relief sought by the Applicant.

8 She deposed that the Commissioners were duly appointed by His Excellency the Governor-General in accordance with the Constitution of Saint Lucia and the Commissions of Inquiry Ordinance, Chapter 5 of the Laws of Saint Lucia.

9 She further stated that a mere allegation of friendship between any or all of the Commissioners and the Right Honourable Prime Minister is insufficient to establish bias on the part of the said Commissioner or any of them.

Evidence

10 Despite the affidavit of the Applicant already referred to, Mr. Rambally for the Applicant chose to lead evidence. Only the Applicant gave evidence in which he reiterated much of what he had said in his affidavit.

11 On examination in chief he stated that he lived at Babonneau in Castries and he is a building contractor, a citizen of Saint Lucia by birth and 53 years old. He said he was a person required to pay income tax and N.I.S. contributions.

12 He stated that as a St. Lucian he followed what was happening and there was going on these days a United Nations scandal. He said he understood that to be, that some money was misused by the Government of Saint Lucia.

13 He said he knows that the Government has set up an inquiry to be convened by Sir Fred Phillips and Rex McKay and he heard these people are to investigate the Government of Saint Lucia.

14 He said he did not know Sir Fred personally but he had read in a book belonging to one of his daughters that Sir Fred is a close friend of the Prime Minister and therefore he was not happy with the composition of the commission of inquiry. He said Sir Fred will have compassion on the Prime Minister as his friend.

15 When he was asked by Mr. Rambally about Sir Fred's book he said the book was about "some Caribbean". He said he did not recall what was said in the book but it said the Prime Minister was a colleague and close friend of the writer.

16 He was shown a copy of the book and he said he was familiar with it and that it was on page 126 that reference was being made to the friendship between the Prime Minister and Sir Fred. Mr. Rambally then asked him if he was sure that was the page. He then referred to a paper which was not produced in evidence and then said it was page 196. The Solicitor-General quite rightly at the time stood up in objection and asked him what was he referring to.

17 He then concluded his examination in chief thus -

"I am asking the Court if there should be some inquiry there should be changes. I am asking that the Judge issue an order of prohibition to prohibit the Commission from sitting. Apart from Sir Fred I have no objection to the other two commissioners sitting."

18 A copy of the book "Caribbean Life and Culture" was tendered in evidence and marked A.L.1.

19 When he was cross-examined he said he did not know where the United Nations fund came from but he just knows it is a U.N. scandal. He said he is interested for he was hearing things about his country. He said the basis for his saying Sir Fred and the Right Honourable Prime Minister are good friends is what he read at page 196 of the book. The learned Solicitor-General asked him to read the passage to which he was referring. He replied:

"I cannot read the passage for I am nervous".

20 The Solicitor-General told him he will have to get over his nervousness and read what he said bothered him. He insisted he could not read it for he was nervous. The Court asked the Clerk to read the relevant part of page 196 of the book. The Applicant then continued under cross-examination and said that he would say the words "colleague" and "friend" mean the same thing. He said he agreed the word "friend" is not used in the book. He said he has not heard of people of a particular profession being referred to as colleagues.

21 At the conclusion of his examination by Counsel when he still had the book in his hands, the Court asked him when was the book written. He looked all over it and could not say. The information that it was written in 1991 was supplied by Counsel at the bar table. In answer to a second question by the Court he replied:

"I am saying the Committee who appointed the Commissioners should make the changes."

Submissions by the Applicant

22 This part of the Applicant's case was put forward by Mr. Francois. Learned Counsel submitted that what is before the Court is not the source of the U.N. funds but what is important is that an application is before the Court alleging that a member of the Commission should not have been appointed because there is a relationship between that member of the Commission and one person who is subject of the inquiry and that is what bothers the Applicant.

23 Counsel submitted that the application for judicial review is made under the authority of Order 44 of the Rules of the Supreme Court and the authority to move against the Respondent is the Crown Proceedings Act, Vol. 1, Chapter 13, section 13.

24 Counsel submitted that because it is an application for judicial review locus standi is derived by being a citizen of the State in a matter of public interest.

25 Counsel stated that there was a long line of cases which were the subject of judicial review before the English Courts and in one such case, Ridge v Baldwin1964 A.C. 40, it was held that anybody with a legitimate expectation has the right to apply to the Court for judicial review. Counsel could not direct the Court to the particular passage in the decision which elaborated the principle.

26 On the question of bias which was quite correctly stated was the main thrust of the application Counsel referred to the following cases:

• 1.The King v Justices of Sunderland1901 2 K.B. 357;

• 2.The King v Sussex Justices1924 1 K.B. 256;

• 3.Frome United Breweries v Keepers of the Peace and Justices for County Borough of Bath1926 A.C. 586;

• 4.Cottle v Cottle 1939 2 A.E.R. 535;

• 5.Sadovnik v Keilman Ltd(1960) 3 W.I.R. 119; and

• 6.Holmes v Nelson 1979 Tasmanian Reports 89.

27 Counsel submitted that the question is not whether or not the person will be biased. The law does not require that; but it is whether the Applicant is of reasonable apprehension of bias.

28 Counsel submitted that the Sussex Justices case cited above falls closely to the present case.

29 When Counsel replied to the submissions made by the Solicitor-General on locus standi he referred the Court to R v Greater London Council, ex parte Blackburn, page 185, letter (c). In answer to the default in not complying with the Rules of the Court learned Counsel said it was because of the urgency of the situation the procedure set down by Order 44 was not followed.

Submissions by the Respondent

30 The learned Solicitor-General submitted that there are two basic issues in this case:

• 1. Whether the...