Higgs et Al v Blackman, John and Attorney-general

• Jurisdiction: Bahamas
• Judge: Adderley, J.
• Judgment Date: 05 September 2012
• Court: Supreme Court (Bahamas)
• Docket Number: PUB-CON 2 of 2011
• Date: 05 September 2012

Supreme Court

Adderley, J.

PUB-CON 2 of 2011

Higgs et al

and

Blackman, John and Attorney-general

Appearances:

Mr. Rawle Maynard for the applicants

Mr. Loren Klein, Mr. Darren Henfield with him for the respondents

Constitutional Law - Interpretation — Whether aliens bearing allegiance to the country of their citizenship could effectually swear the oath of allegiance to the Bahamas.

Adderley, J.

1 [1] By an amended Originating Notice of Motion filed 4 April 2011 the applicants seek a determination whether the Court that adjudicated the applicant's civil rights and obligations complied with Article 20(8) of the Constitution of the Bahamas. Article 20 (8) states the following:–

• “(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.”

2 Their claim is based on the premise that the first and second respondents being aliens bearing allegiance to the country of their citizenship could not effectually swear the oath of allegiance to the Commonwealth of The Bahamas which is a prerequisite to a judge taking office by virtue of Article103 of the Constitution and as such they never entered upon their duties as judges and could not render a decision as justices of the court. Article 103 is set forth below:–

• “103. A Justice of Appeal shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and a judicial oath in such form as is prescribed by any law in force in The Bahamas.”

They contend that the Article requires an effectual swearing that is to say it must have effect both in terms of function and purpose and only citizens of the Bahamas have the capacity to effectually swear the oath of allegiance

3 Hence they seek the following relief in their Amended Notice of Motion pursuant to Article 28 of the Constitution:–

• “1. A declaration that only persons of Bahamian nationality capable of taking and subscribing the Oath of allegiance may enter upon the duties of a Justice of Appeal and be eligible to constitute The Court prescribed by section 7 of The Court of Appeal Act.

• 2. A declaration that a person who is a citizen of some Country other than the Bahamas who has not effectively renounced his citizenship of that other Country if he has sworn the Oath of allegiance to the Sovereign State of The Commonwealth of the Bahamas the taking and subscription to such Oath is a nullity and such a person is not eligible to enter upon the duties of a Justice of Appeal and be eligible to constitute The Court prescribed by section 7 of The Court of Appeal.

• 3. A declaration that Justices of Appeal Stanley John and Christopher Blackman being citizens of some other Country not having renounced their citizenship of that other Country were not lawfully able to swear and subscribe the oath of allegiance to the sovereign State of The Commonwealth of The Bahamas and therefore were ineligible to constitute The Court prescribed by section 7 of The Court of Appeal Act.

• 4. A declaration that a Court of Appeal comprised of two Justices of Appeal who were incapable of taking the Oath of allegiance is not a Court established by law for the purposes of Article 20 (8) of The Constitution.

• 5. That having regard to the fact that the first and second respondents are not entitled to land or embark in the Bahamas and are exempted from the requirement to obtain work and residence permits only by virtue of their employment in the Government of the Bahamas and following a trend the likelihood of their seeking to remain resident or to be gainfully employed either in the Government or privately in the Bahamas after the expiration of their tenure in office, their independence and impartiality is compromised or appears to be compromised.

• 6. A Declaration that the applicants did not receive a fair and impartial determination of their civil rights and obligations in a Court established by law in the trial before a Court in which the two respondents were majority contrary to Article 20 (8) of The Constitution of the Bahamas.

• 7. The applicants allege that Article 20(8) of The Constitution has been, is being and is likely to be further contravened in relation to them in that their property is being unlawfully taken from them under the purported authority of an unlawfully constituted Court, therefore, they seek of this Court redress by making such orders, Writs or directions in pursuance of Articles 28 of the Constitution as may to the Court seem appropriate and just for the purpose of securing the right of the applicants protected by Article 20(8).

4 Section 7 of the court Of Appeal Act provides, inter alia:–

• “7. (1) for the purpose of hearing and determining any appeal the court shall be duly constituted if it consists of three judges…”

• “… (2) The determination of any question before the court shall be according to the opinion of the majority of the Justices hearing the appeal.”

5 According to the supporting affidavit the application arose out of an appeal which was allowed by the Court of Appeal whereby an order of possession was made against the applicants. The facts stated are that in 1981 Mr Higgs, a building contractor, borrowed money from Barclays Finance Corporation (Barfincor) to finance his business and secured the debt by a mortgage on his family dwelling house. He made substantial payments on the mortgage and a dispute arose as to the sum that had been paid. Barfincor demanded payment of allegded arrears but was unable to satisfactorily account for the payments received and eventually stopped making demands for payment.

6 First Caribbean Finance Corporation (Bahamas) Limited (“First Caribbean”) as successors in title to Barfincor, commenced an action on 4 April 2006 seeking possession of the mortgaged property. At first instance the evidence sworn on behalf of First Caribbean was that no payments had been made on the mortgage but it later swore an affidavit that two payments were made in 2000. On application by Mr Higgs the court struck out the summons as disclosing no cause of action and as statute barred.

7 First Caribbean appealed and applied for leave to introduce the new evidence that two payments were made in 1996. The new evidence was admitted by the Court of Appeal whereupon it allowed the appeal and granted First Caribbean possession of the mortgaged property. The judgment was delivered by the second respondent with which the other two Justices agreed. The applicants now dispute the jurisdiction of the court which made the decision because two thirds of the panel were not Bahamian citizens and the consequences which they say follow from that.

THE CASE FOR THE APPLICANTS

8 The applicants state in their skeleton submissions that “the Central issue in this application is whether The First and second respondents were capable of taking and subscribing the oath of allegiance to the Sovereign State of the Commonwealth of The Bahamas in the form prescribed by law in force in The Bahamas.” Karen Higgs in her supporting affidavit filed 5 May 2011 made on behalf of herself and Mr Higgs state the following:–

“11 We are informed and verily believe that two of the Justices of Appeal, namely the first and second respondents herein, who heard the Appeal, were Citizens of countries other than The Bahamas and as such were incapable of swearing the Oath of Allegiance which is a prerequisite to their assuming the office of Justice of Appeal…”

9 The applicants' case is based on the general proposition that anyone who exercises sovereign powers in a sovereign state must be a citizen of that state. They contend that judges exercise sovereign powers delegated by the Governor General to make laws by virtue of their power to interpret the law in a particular way and even to declare laws made by Parliament null and void

10 They argue that the constitution is not permissive of dual nationality because in every instance before a person can acquire Bahamian citizenship under the Constitution and is a citizen of some other country that person is required to renounce the citizenship of that other country and swear an oath of allegiance to The Bahamas. They point out that only a national can become a member of the House of Assembly (Articles 47 and 48), a member of the Senate (Article 42), and the Prime Minister or member of the Executive (Article 73). They also noted that only citizens of The Bahamas can vote in a parliamentary election.

11 Furthermore persons who exercise sovereign powers including The Governor General, members of Cabinet, members of the House of Assembly, magistrates, Justices of the Supreme Court and the Court of Appeal, and a long list of senior civil servants such as Permanent Secretaries and the Auditor General must all subscribe an oath of allegiance by swearing or affirming an oath of allegiance before assuming their respective offices. The Official Oaths Act Chapter 31 of...