A challenge to the Ottley Hall Inquiry

In my effort to bring to you some Privy Council judgments we would look at No. 38 of 2005, Richard Joachim and Glenford Stewart v The Attorney General and Ephraim Georges which was delivered on January, 24th 2007.{{more}} The hearing was conducted by five Privy Council judges and the judgment was delivered by Lord Brown of Eaton-under- Heywood.

Background

A marina and shipyard development project, the “Ottley Hall project” was carried out by the NDP government. The project was financially underwritten and following a change of government a Commission of Enquiry was established to inquire into the project. Justice Ephraim Georges a retired High Court Judge, was appointed Commissioner. The collection of evidence was done through oral hearing. Many persons were brought before the Commissioner including Mr. Richard Joachim, the chairman of the National commercial Bank at the time of the failed project (who according to the Salmon letter sent with a witness summons had been responsible for making unsecured loans to the developers) and Mr. Glenford Stewart an engineer who had provided some services for the project.

The Commissioner’s Appointment

In May 2004, the appellants challenged the validity of the Commissioner’s appointment and the matter was dismissed by Master Brian Cottle and also the Eastern Caribbean Court of Appeal. It finally came before their Lordships of the Privy Council who pointed out that the process of appointment was “plagued with errors”. For that reason their Lordships thought it necessary to set out the material parts of the legislation governing the appointment. They drew attention to section 2(1) of Commissions of Inquiry Act of the laws of Saint Vincent and the Grenadines, revised edition, 1990 which provided for the appointment of the commissioner. They also looked at the 2002 amendment of section 2(1) of the Act.

The First Instrument

The First Instrument dealing with the appointment of the Commissioner was published in the Gazette on March 10th 2003. Instead of citing the amended section 2(1), the instrument, containing two recitals, cited section 2 (1) of the 1990 Act. The mistake was spotted by the government’s advisers and the Attorney General replied with an Erratum in an attempt to correct the mistakes. It was done by cancelling the first recital and replacing it with a new one and changing some words in the second recital. This instrument was published in the Gazette on April 28th 2003. A Second Instrument of same date appointing the Commissioner was executed but was not published in the Gazette.

Their Lordships’ Reasoning

In their reasoning their Lordships felt that the Attorney General’s Erratum could not correct the mistakes in the First Instrument as it was done pursuant to section 66 (1) of the Interpretation and General Provisions Act, Chapter 10 of the Revised Laws of St. Vincent and the Grenadines. That section speaks only to “any written law”. The First Instrument was not a written law. The section only allowed correction of grammatical and typographical errors in the laws. Further, the Commissioner’s appointment, though valid, did not take effect under the Second Instrument, as the requirement for publication in the Gazette was not complied with.

They pointed to the Governor General’s function under the constitution when acting on the advice of an authority such as Cabinet. They maintained that the question as to whether he has so exercised his function “shall not be enquired into in any law court”.

Their Lordships thought that the recitals on the First Instrument constituted a mistake on the face of the document. A mistake could amount to misdirection. The misdirection could only be fatal if it were material. The misquoting of the section under the 1990 Act instead of the 2002 Amendment was not material. Their Lordships considered the First Instrument under which the Inquiry was commissioned, to be valid and effective in setting up the Commission of Inquiry.

The requirement for publication in the Gazette was complied with and it gave the power to the Commissioner to conduct the Enquiry. Their Lordships concluded that the First Instrument could not be “impugned because of its inappropriate recital.” They further held that the “immaterial misdirection did not render its exercise immaterial.” The appeal was dismissed.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com