Domestic Violence (Summary Proceedings) Act 1999

Link to law: http://laws.gov.ag/acts/1999/a1999-3.pdf

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No. 3 of 1999. Domestic Violence (Summary 1 ANTIGUA
Proceedings) Act 1999. AND

BARBUDA

[ L.S. ]

I Assent,

James B. Carlisle,
Governor-General.

18th February, 1999.

ANTIGUA AND BARBUDA

No. 3 of 1999

AN ACT to provide protection by means of summary proceed-
ings in cases involving domestic violence and for related
matters.

[ 25th February, 1999 ]

ENACTED by the Parliament of Antigua and Barbuda as
follows:

PRELIMINARY

1. This Act may be cited as the Domestic Violence (Summary Short title.
Proceedings) Act, 1999.

2. In this Act, unless the context otherwise requires Interpretation.

"applicant" means any person who applies or on whose
behalf application is made, pursuant to this Act, for an
order;

"child" means a person under the age of 18 years who

ANTIGUA 2 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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(a) is born to both parties to a marriage;

(b) has been adopted by one or both parties to a
marriage;

(c) whether or not born to either party to a mar-
riage is or has been living in the household
residence as a member of the family;

(d) is born to man and woman who, although not
married to each other are living or have lived
together in the same household;

(e) whether or not born to the man and woman
referred to in paragraph (d) or either of them

(i) is or has been a member of their house-
hold; or

(ii) who resides in that household on a regu-
lar basis; or

(iii) is aperson of whomeither theman or the
woman is guardian;

"cooling off period" means a period not exceeding two
days;

"court" means a court of summary jurisdiction;

"common law spouse" means a single person who is living
together with another single person of the opposite sex in
the same household as husband and wife without being
legally married to each other;

"dependant" means a person over the age of 18 years who
normally resides or resides on a regular basis with another
person and that other person is responsible for the mainte-
nance of the first mentioned person;

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Proceedings) Act 1999. AND

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"domestic violence" means any act of violence whether
physical or verbal abuse perpetrated by a member of a
household upon a member of the same household which
causes or is likely to cause physical, mental or emotional
injury or harm to the abused party or any other member of
the household;

"exparte application" means an application made without
notice to the respondent;

"household residence" means in relation to both spouses,
the dwelling house, apartment or other living quarters that
is or was last habitually used by both parties or either of
them as the only or principal family residence together with
any land, buildings or improvements appurtenant to it used
wholly or mainly for the purposes of the household;

"Minister" means Minister responsible for the administra-
tion of this Act:

"occupation order" means an order or interim order made
under section 7;

"parent" includes

(a ) the parent of a child of the household

(b) the parent or grandparent of a spouse;

(c) the parent or grandparent of a respondent,
either by consanguinity or affinity;

"protection order" means an order or interim order made
under section 4:

"respondent" means a person against whom an order is
granted pursuant to this Act;

"specified person" means the spouse of the respondent, a
parent, a child or dependant;

ANTIGUA 4 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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"spouse" includes a former spouse, common law spouse
and former common law spouse;

"tenancy order" means an order made under section 11 or
an interim order made under section 12; and

"tenant", in relation to any dwelling house, includes any
person

(a) whose tenancy has expired or has been deter-
mined; and

(6) who is for the time being deemed under or by
virtue of any enactment or rule of law to
continue to be the tenant of the dwelling house,
and the term "tenancy" has a corresponding
meaning.

Persons entitled to 3. (1) An application for an order other than a tenancy order
under this under this Act may be made by

Act.

(a) the spouse of the respondent who is the person on
whom the alleged conduct has been, or is likely to be
perpetrated by the respondent;

(b) any member of the household on his own behalf or on
behalf of any other member of the household; or

(c) the parent of the specifiedperson or of the respondent
though notresiding in the household, on behalf of the
specified person.

(2) Where the alleged conduct involves a child or dependant,
the application under subsection (1) may be made by

(a) aperson with whom the child or dependant normally
resides or resides on a regular basis or any other
member of the household; or

(6) a parent or guardian of the child or dependant; or

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Proceedings) Act 1999. AND

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( c ) a person holding the office or performing the duties
of a probation officer or medical social worker.

(3) Where the dependant is mentally disabled, the application
under subsection (1) may be made by

(a) a person experienced or qualified in social welfare;

(b) a police officer; or

( c ) a person holding the office or performing the duties
of a probation officer or medical social worker.

(4) An application for a tenancy order may be made by the
respondent's spouse as mentioned in subsection (1 ) (a) or by a
parent or guardian of a child or dependant.

PROTECTION ORDERS

4. (1) Application may be made to the court in accordance with Application for
Form 1 of the schedule for a protection order prohibiting the p

rotection Order.
Form 1.

respondent
Schedule.

(a) from entering or remaining in the household resi-
dence of any specified person;

(b ) from entering or remaining in a specified area where
the household residence of a specified person is
located;

(c) from entering the place of work or education of any
specified person;

(d) from entering or remaining in any place where a
specified person happens to be; or

( e ) from molesting a specified person by

(i) watching or besetting the specified person's
household residence, place of work or educa-
tion;

ANTIGUA 6 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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(ii) following or waylaying the specified person in
any place;

(iii) malung persistent telephone calls to or sending
in writing any formofcorrespondence, whether
in handwriting or by mechanical or electronic
means, to a specified person; or

(iv) using abusive language to or behaving towards
a specified person in any other manner which
is of such nature and degree as to cause annoy-
ance to, or result in ill-treatment of the speci-
fied person.

(2) On hearing an application under subsection (1) the court
may make a protection order if it is satisfied that

(a) the respondent has used or threatened to use, violence
against, or caused physical or mental injury to a
specified person and is likely to do so again; or

(b) having regard to all the circumstances, the order is
necessary for the protection of a specified person,

and the court may, if it thinks fit, attach a power of arrest to the
order.

(3) A protection order may be made on an exparte application
if the court is satisfied that the delay that would be caused by
proceeding on notice would or might entail

(a) risk to the personal safety of a specified person, or

(b) serious injury or undue hardship.

(4) Any protection order made on an exparte application shall
be an interim order.

(5) Where a protection order is granted on an e.u parte
application, the respondent may apply immediately for it to be
discharged.

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5. (1) Where a protection order or an interim protection order Breach of
is made and protection order.

(a) it is served personally on the respondent, and

(b) the respondent contravenes the order in any respect,
the respondent commits an offence and is liable on
summary conviction to a fine not exceeding ten
thousand dollars or to imprisonment for a term not
exceeding six months or both.

(2) Subject to the provisions of this section, where a protection
order is in force, a police officer may arrest without warrant a
person who has committed or whom he has reasonable cause to
suspect has committed, a breach of the order.

(3) No person shall be arrested under this section unless the
police officer believes that the arrest of that person is reasonably
necessary for the protection of the applicant.

(4) For the purposes of subsection (2), the police officer shall
take into account

(a) the seriousness of the act which constituted the
alleged breach;

(b) the time that has elapsed since the alleged breach was
committed and whether there is any further need for
a cooling off period; and

(c) the restraining effect of other persons or circum-
stances on the respondent.

(5) For the purposes of subsection 4 (b) a cooling off period in
custody shall not exceed twenty-feur hours.

(6) Notwithstanding this section a police officer may in the
absence of a protection order take such steps as may be necessary
and appropriate including the exercise of the power of arrest for
the protection of any member of a household where he knows or

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AND

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Duration and
discharge of
protection order.

Application for a
grant of
occupation order.
Form 2.
Schedule.

8 Domestic Violence (Summary No. 3 of 1999.
Proceedings) Act 1999.

has good cause to believe that a person is the subject of domestic
violence and is likely to be further abused.

(7) Where an arrest is made under this section

(a) the person arrested shall be entitled to make a
telephone call to one person of his choice, other than
the applicant or a specified person;

(b) it shall be the duty of the police officer who makes the
arrest to ensure that the person arrested is informed,
as soon as practicable after the arrest, of the right
conferred by paragraph (a).

6. (1) A protection order shall cease to have effect if a party to
the proceedings in which the order was made applies to the court
for it to be discharged.

(2) A copy of an application under subsection (1) shall be
served personally on each person who was a party to the proceed-
ings in which the original order was made.

(3) In determining whether to discharge a protection order the
court shall have regard to the matters referred to in section 4 (2).

OCCUPATION ORDER

7. (1) Application may be made to the court in accordance
with Form 2 of the Schedule for an occupation order granting a
specified person named in the order the right to live in the
household residence.

(2) Subject to section 14 and subsection (3) of this section, the
court may, on an application under subsection (I), make an
occupation order granting to the applicant, for such periods and
on such terms and conditions as the court thinks fit, the right to
occupy the household residence.

(3) The court may make an occupation order under subsection
(2) only if the court is satisfied that such an order

No. 3 of 1999. Domestic Violence (Summary 9 ANTIGUA
Proceedings) Act 1999. AND

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(a) is necessary for the protection of a specified person,
or

(b) is in the best interest of a child.

8. (1) An occupation order may be made on an ex parte Exparte
application if the court is satisfied that application for

occupation order.

(a) the respondent has used violence against or caused
physical or mental injury to a specified person; and

(b ) the delay that would be caused by proceeding on
notice could or might expose the specified person to
physical injury.

(2) An occupation order made on an exparte application shall
be an interim order.

(3) Where the court grants an occupation order on an exparte
application, the court shall at the same time make an interim
protection order unless it considers that there are special reasons
why the order should not be made.

(4) An occupation order which is made on an ex parte
application while the specified person concerned and the respon-
dent are living together in the same household residence shall
expire

(a) on the discharge of the occupation order by the court;

(b) on the discharge of an interim protection order made
pursuant to subsection (3); or

(c) in any other case, at the expiration of a period of seven
days after the date on which the occupation order was
made.

(5) Where an occupation order is made on. an ex parte
application, the respondent may apply for variation or discharge
of that order.

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AND

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Effect of
occupation order.

Variation or
discharge of
occupation order.

Tenancy order.
Form 3.
Schedule.

10 Domestic Violence (Summary No. 3 of 1999.
Proceedings) Act 1999.

9. (1) Where an occupation order is made the specified person
to whose benefit it is made is entitled, to the exclusion of the
respondent, personally to occupy the household residence to
which that order relates.

(2) The conditions attached to an occupation order may
include such arrangements as may be necessary for the financial
support of the member of the household where appropriate.

10. The court may, if it thinks fit, on the application of either
party, make an order

(a) extending or reducing any period specified by the
court pursuant to subsection (2) of section 7; or

(b) varying or discharging any terms and conditions
imposed by the court pursuant to that subsection.

TENANCY ORDERS

11. (1) An application may be made to the court in accordance
with Form 3 of the Schedule for a tenancy order, vesting in the
applicant, the tenancy of any dwelling house which, at the time
of the making of the order

(a) the respondent is either the sole tenant or a tenant
holding jointly or in common with the applicant; and

(b) is the household residence of the applicant or the
respondent.

(2) Subject to section 16, the court may make an order on an
application under subsection (1) if the court is satisfied that such
an order

(a) is necessary for the protection of the applicant; or

(b) is in the best interests of a child or a dependant.

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12. (1) A tenancy order may be made on an exparte application rant of tenancy
if the court is satisfied that order on an ex

parte application.

(a) the respondent has used violence against or caused
physical or mental injury, to the applicant, child or
dependant;

(b) the delay that would be caused by proceeding on
notice would or might expose the applicant, child or
dependant, to physical injury.

(2) A tenancy order made on an exparte application shall be
an interim order.

(3) Where the court makes a tenancy order on an ex parte
application the court shall, at the same time, make an interim
protection order unless the court considers that there are special
reasons why the order should not be made.

(4) A tenancy order which is made on an exparte application
while the applicant and the respondent are living together in the
same household shall expire

{a) on the discharge of the order by the court;

(b) on the discharge of an interim protection order made
under subsection (3); or

{ c ) in any other case, at the expiration of a period of seven
days after the date on which the order was made.

(5) Where a tenancy order is made on an exparte application
the respondent may apply for a variation or discharge of that
order.

13. (1) Where a tenancy order is made the applicant shall, Effect of tenancy
unless the tenancy is sooner determined, become the tenant of the order.

dwelling house subject to the terms and conditions of the tenancy

ANTIGUA 12 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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in force at the time of the making of that order, and the respondent
shall cease to be the tenant.

(2) Every tenancy order shall have effect and may be enforced
as if it were an order of the court for possession of the land granted
in favour of the applicant.

(3) Nothng in this Act or in any tenancy order

(a) limits or affects the operation of any enactment or
rule of law for the time being applicable to any
tenancy to which a tenancy order applies, or to the
dwelling house held under the tenancy; or

(b) authorises the court to vary, except by vesting the
tenancy pursuant to this section or revesting the
tenancy pursuant to section 14, any express or im-
plied term or condition of the tenancy.

Power to discharge
tenancy order and
revest tenancy.

14. (1) The court may, if it thinks fit on the application of

(a) the applicant or respondent, or

(b) the personal representative of either party, make an
order (in this section referred to as a "revesting
order") reverting the tenancy accordingly.

(2) Where a revesting order is made under subsection (I), the
person in whose favour it is made shall, unless the tenancy is
sooner lawfully determined, become the tenant of the dwelling
house subject to the terms and conditions of the tenancy in force
immediately before the date on which the revesting order was
made.

PROVISIONS RELATING TO OCCUPATION ORDERS
AND TENANCY ORDERS

Procedure relating 15. (1) Before making an occupation order (other than an
to occupation
orders andtenancy interim occupation order) or an tenancy order (other than an
orders. interim tenancy order), the court shall direct that notice be given

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to any person having an interest in the property which would be
affected by the order.

(2) The person referred to in subsection (1) shall, upon being
notified pursuant to that subsection, be entitled to appear and to
be heard in the matter of the application for the occupation order
or tenancy order as a party to that application.

(3) Where an application is made for an occupation order, the
court may treat that application as an application for a tenancy
order or an occupation order or both and may make a tenancy
order (whether or not it makes an occupation order) if it is satisfied
that

(a) it has jurisdiction to make the tenancy order and that
the making of such an order is appropriate; and

(b) subsection (1) has been complied with in respect of
the making of a tenancy order.

(4) Where an application is made for a tenancy order, the court
may treat that application as an application for an occupation
order or a tenancy order or both and may make an occupation
order (whether or not it makes atenancy order) if it is satisfied that

(a) it has jurisdiction to make an occupation order and
that the making of such an order is appropriate; and

(b) subsection (1) has been complied with in respect of
the making of an occupation order.

16. (1) On or after making an occupation order or a tenancy Power of Court to
order, the court may, subject to subsection (2), make an order make
granting to the applicant the use, for such period and on such terms order re: furniture.

and conditions as the court thinks fit, of all or any of

(a) the furniture;

(b) the household appliances; and

(c) the household effects,

ANTIGUA 14 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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in the household residence or other premises to which the
occupation order relates or in the dwelling house to which the
tenancy order relates.

(2) Notwithstanding subsection (I), an order made under that
subsection shall continue in force for a period of three months
beginning on the date on which the order is made, unless the court
otherwise directs, but, in any event, shall expire if the occupation
order made in relation to the household residence or other
premises or the tenancy order made in relation to the dwelling
house expires or is discharged.

Interim orders. 17. (1) Every interim order made under this Act on an exparte
application shall specify a date (which shall be as soon as
reasonably practicable after the order is made) for a hearing on
whether an order should made in substitution for the interim
order.

(2) The copy of an interim order which is served on the
respondent shall notify the respondent that unless the respondent
attends on the specified date to show cause why an order should
not be made in substitution for the interim order, the court may
discharge the interim order and make an order in substitution for
it.

(3) At the hearing referred to in subsection (1) the court may

(a) discharge the interim order;

(b) discharge the interim order and make an order in
substitution for it; or

(c) on good cause being shown, adjourn the hearing to
a date and place the court may specify.

(4) Where a hearing is adjourned under subsection (3)(c) the
court shall, at the adjourned hearing, exercise either the power
conferred by paragraph (a) or (b) of that subsection.

(5) In this section,

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Proceedings) Act 1999. AND

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"interim order" means an interim protection order, an
interim occupation order or an interim tenancy order, as the
case may be;

"order" means a protection order, an occupation order or a
tenancy order, as the case may be, not being or an interim
order.

GENERAL

18. (1) No person shall be present during the hearing of any Conduct of
proceedings under this Act except proceedings.

(a) officers of the court;

(b) parties to the proceedings and their counsel;

(c) witnesses; or

(d) any other person permitted by the Magistrate (or
presiding officer of the court however designated) to
be present.

(2) Any witness shall leave the courtroom if asked to do so by
the Magistrate (or presiding officer of the court however desig-
nated).

(3) Nothing in this section shall limit any other power of the
court to hear proceedings in camera or to exclude any person from
the court.

19. In any proceedings under this Act (other than criminal Evidence.
proceedings) including proceedings by way of appeal, the court
may receive such evidence as it thinks fit whether it is otherwise
admissible in a court of law or not.

20. Every question of fact arising in any proceedings under this Standard of proof.
Act (other than criminal proceedings) shall be decided on a
balance of probabilities.

ANTIGUA 16 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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Restriction of 21. (1) Subject to subsection (4), no person shall publish any
publication of report of proceedings under this ~ c t (other than criminal proceed-
reports of
proceedings.

ings) except with the leave of the court which heard the proceed-
ings.

(2) A person who contravenes subsection (1) commits an
offence and is liable on summary conviction to a fine not
exceeding ten thousand dollars.

(3) Nothing in this section limits

(a) the provisions of any other enactment relating to the
prohibition or regulation of the publication of reports
or particulars relating to judicial proceedings; or

(b) the power of the court to punish any conte:ript of
court.

(4) This section does not apply to the publication of any report
in any publication that

(a) is of a bonafide professional or technical nature; or

(b) is intended for circulation among members of the
legal or medical professions, officers of the Public
Service, police officers, psychologists, marriage
counsellors or social welfare workers.

orders by consent. 22. In any proceedings under this Act, a court may make any
order with the consent of all the parties to the proceedings.

~ounse~ling. 23. The court may, on making an order under this Act,
recommend either or both parties to participate in counselling of
such nature as the Court may specify.

Appeals. 24. (1) A person aggrieved by

(a) an order of the court; or

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Proceedings) Act 1999. AND

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(b) the refusal of the court to make an order,

may, within twenty-eight days after the decision of the court,
appeal to the Court of Appeal.

(2) Except where the court which makes an order under this
Act otherwise directs, the operation of such order shall not be
suspended by virtue of an appeal under this section, and every
order may be enforced in the same manner and in all respects as
if no appeal under this section were pending.

25. (1) The rights conferred on any person in respect of any Protection of
property by an order made under this Act shall be subject to the mortgagee.
rights of any other person entitled to the benefit of any mortgage,
security, charge or encumbrance affecting the property if such
mortgage, security, charge or encumbrance was registered before
theorder was registeredorif therights of that other personentitled
to that benefit arise under an instrument executed before the date
of the making of the order.

(2) Notwithstanding anything in any enactment or in any
instrument, no money payable under any mortgage, security,
charge or encumbrance shall be called up or become due by
reason of the making of an order under this Act.

26. The Attorney General may make rules of court for the Rules of court.
purpose of regulating the practice and procedure of the court in
proceedings under this Act, providing for such matters as are
necessary for giving full effect to the provisions of this Act and
for its due administration.

27. This Act shall be in addition to and not in derogation of any Jurisdiction.
jurisdiction of the High Court in respect of matters referred to in
this Act.

28. Nothing in this Act shall be construed as altering the Property rights
right of a spouse to ownership of property.

ANTIGUA 18 Domestic Violence (Summary
AND Proceedings) Act 1999.

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No. 3 of 1999.

SCHEDULE

FORMS

FORM 1

Domestic Violence (Summary Proceedings) Act, 1999

(Section 4)

APPLICATION FOR PROTECTION ORDEWINTERIM

PROTECTION ORDER

1. .................................................................................................................................
(Name of applicant)

of.. .............................................................................................................................
(Address)

hereby apply under section 4 of the Domestic Violence (Summary Proceedings) Act,
1998 for a protection orderlinterim protection order to be made by the Magistrate
against

..................................................................................................................................
(Name of respondent)

who is .......................................................................................................................
(Specify relationship to the named respondent)

and who resides at ..................................................................................................
(Specify address of respondent)

in respect of the following conduct: (Specify details of alleged conduct).

Signature of applicant.

Dated ............................................ 19 ........

No. 3 of 1999. Domestic Violence (Summary
Proceedings) Act 1999.

19 ANTIGUA
AND

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FORM 2

Domestic Violence (Summary Proceedings) Act, 1999

(Section 7 or 8)

APPLICATION FOR PROTECTION ORDEMNTERIM

PROTECTION ORDER

I. .................................................................................................................................
(Name of applicant)

of.. ...............................................................................................................................
(Address)

hereby apply under section 7 or 8 of the Domestic Violence (Summary Proceedings)
Act, 1998 for a protection orderlinterim protection order to be made by the
Magistrate against

..................................................................................................................................
(Name of respondent)

who is .......................................................................................................................
(Specify relationship to the named respondent)

................................................................................................... and who resides at..
(Specify address of respondent)

in respect of the following conduct: (Specify details of alleged conduct)

Signature of applicant.

Dated.. ..................................... 19.. ......

ANTIGUA 20 Domestic Violence (Summary No. 3 of 1999.
AND Proceedings) Act 1999.

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FORM 3

Domestic Violence (Summary Proceedings) Act, 1999

(Section 11 or 12)

APPLICATION FOR PROTECTION ORDEWNTERIM
PROTECTION ORDER

(Name of applicant)

............................................................................................................................. of.
(Address)

hereby apply under section 11 or 12 of the Domestic Violence (Summary Proceed-
ings) Act, 1998 for a protection orderlinterim protection order to be made by the
Magistrate against

..................................................................................................................................
(Name of respondent)

................................................................................................................... who is
(Specify relationship to the named respondent)

and who resides at ..................................................................................................
(Specify address of respondent)

in respect of the following conduct: (Specify details of alleged conduct)

.............................................................
Signature of applicant.

......................................... Dated 19 .........

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Proceedings) Act 1999. AND

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Passed the House of Representatives Passed the Senate this 11 th
this 8th day of February, 1999. day February, 1999.

B. Harris,
Speaker.

M. Percival,
President.

S. Walker, S. Walker,
Clerk to the House of Representatives. Clerk to the Senate.

Printed at the Government Printing Office, Antigua and Barbuda,
by Rupert Charity, Government Printer

- By Authority, 1999.
800 - 2.99 [ Price $8.55 1