Antoine Defoe v Roosevelt Skerrit

• Jurisdiction: Dominica
• Judge: Blenman JA,Michel JA,Webster JA
• Judgment Date: 28 May 2020
• Neutral Citation: DM 2020 CA 4
• Date: 28 May 2020
• Docket Number: DOMHCVAP2018/0004
• Court: Court of Appeal (Dominica)

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

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

DOMHCVAP2018/0004

Between:

[1] Antoine Defoe

[2] Edingcot St. Valle

[3] Mervin John Baptiste

Appellants

and

[1] Roosevelt Skerrit

[2] Reginald Austrie

[3] Rayburn Blackmore

[4] Cassius Darroux

[5] Justina Charles

[6] Kathleen Daniel

[7] Ian Douglas

[8] Johnson Drigo

[9] Colin Mc Intyre

[10] Roselyn Paul

[11] Ian Pinard

[12] Petter St. Jean

[13] Ivor Stephenson

[14] Kelvar Darroux

[15] Kenneth Darroux

Respondents

Appearances:

Ms. Cara Shillingford for the Appellants

Mr. Anthony Astaphan, SC with Mr. Lennox Lawrence and Ms. Jodie Luke for the Respondents

Civil Appeal — Treating — Election petition — Election offences — Pre-election allegations — Whether a charge against a member of the House of Assembly for treating can be instituted and prosecuted in the Magistrates' Court in Dominica — Exclusive jurisdiction of High Court to hear complaints against elected members — Modification of statute to conform with Constitution — Paragraph 2 of Schedule 2 of Constitution Order — Sections 59 and 61 of the House of Assembly (Elections) Act — Whether section 59 of the House of Assembly (Elections) Act conflicts with section 40(1)(a) of the Constitution — Whether the Magistrate was correct in quashing the summonses and complaints for the offence of treating that were issued against the respondents — House of Assembly (Elections) Act — Magistrate's Code of Procedure Act — The Constitution of the Commonwealth of Dominica

At the conclusion of the general election held in the Commonwealth of Dominica on 8 ^th December 2014, the Dominica Labour Party (“DLP”), led by The Honourable Mr. Roosevelt Skerrit, won the majority of the seats in the House of Assembly and formed the new Government. The 15 respondents were the successful candidates in the election for the DLP. The appellants are members of the United Workers Party (“UWP”) which lost the elections.

Prior to the holding of the elections, on the 28 ^th November 2014 and 6 ^th December 2014, two free public concerts were held in Roseau and are alleged to have been sponsored by the respondents. No election petition was filed following the general election. However, on 28 ^th May 2015, several months after the election, the appellants filed criminal complaints in the Magistrates' Court against the respondents. As a consequence, summonses were issued by the learned Magistrate. In the complaints, the appellants alleged that the respondents held the free public concerts for the purpose of corruptly influencing the Dominican electorate to vote for the candidates of the DLP in the upcoming general election; and thereby they had committed the offence of treating contrary to section 56(a) of the House of Assembly (Elections) Act (“the Elections Act” or “the Act”).

The respondents thereafter filed a judicial review claim in which they sought to quash the appellants' complaints, and the summonses issued by the Magistrate, on the grounds that: they did not disclose an offence under section 56 of the Elections Act; the complaints are time-barred having been filed outside of the 21-day limitation period under section 65 of the Elections Act for filing an election petition; the complaints were an attempt to subvert the time restriction in section 65; and the Magistrate acted in excess of his jurisdiction in issuing the summonses. The appellants opposed the claim.

The learned judge in the High Court held: (i) that the effect of the charges of treating, brought by the appellants, is to challenge the validity of the election of the respondents; (ii) that no election or return to Parliament may be questioned except by election petition in accordance with section 65 of the Act; (iii) that it was not the legislature's intention to create a summary jurisdiction to dictate the composition of the House of Assembly; (iv) that section 40(1)(a) of the Constitution confers jurisdiction solely on the High Court to hear election matters; (v) that the Act and the Code preceded the Constitution of Dominica and that any conflict between them and the Constitution must be resolved by construing them in a manner that brings them into conformity with the Constitution; and (vi) that section 59 of the Act which permits trial for the offence of treating by the Magistrate is in conflict with section 40(1)(a) of the Constitution. Accordingly, the judge ruled that the complaints/summonses that were before the Magistrate could not be sustained. The judge further concluded that the learned Magistrate acted in excess of his jurisdiction when he issued the summonses. The judge therefore quashed the complaints and by extension, the summonses. No order for costs was made.

The appellants, being dissatisfied with the decision of the judge, appealed. The appeal revolves around the main issue of whether a charge against a member of the House of Assembly for treating can be instituted and prosecuted in the Magistrates' Court in Dominica and whether the Judge was correct in quashing the summonses and complaints.

Held: (Per Webster JA, [Ag.] and Michel JA, Blenman JA dissenting) allowing the appeal and setting aside the order of the learned judge, ordering the reinstatement of the complaints filed by the appellants and the summonses issued by the Magistrates' Court, discharging the stay of proceedings granted by the High Court, directing the Chief Magistrate to assign a magistrate to hear the complaints filed by the appellants, and ordering each party to bear his or her own costs in the appeal and in the court below, that:

• 1. Section 59 of the Act permits a Magistrate to summarily try and sentence a person for the offence of treating. This is coterminous with the relief that the appellants were seeking in the complaints that were lodged in the Magistrates' Court. The complaints have nothing to do with an undue election or undue return of any of the respondents and are separate from any possible proceedings before the High Court to prevent a convicted person from retaining his seat as a member of the House of Assembly under section 40 of the Constitution The Magistrate therefore had jurisdiction under section 59 to try the respondents for the offence of treating since such a trial is not a challenge to the validity of their election under the Constitution, and the appellants were entitled to use the summary procedure in section 59 of the Act to charge the respondents for treating, and to do so within the 6-month period prescribed by section 68 of the Magistrate's Code of Procedure Act for prosecuting offences in the Magistrates' Court.

  Per Michel JA (concurring):

  There are several types of proceedings the outcome of which can lead to a member of the House of Assembly being disqualified from retaining his seat as a member and which are also not proceedings to invalidate the election of a member of the House. These include bankruptcy proceedings, proceedings to determine a person's citizenship status, or to determine the state of his mental health, or a criminal trial for a charge unrelated to elections but which can result in a sentence exceeding 12 months' imprisonment. It could not be that all such proceedings, once involving a member of the House of Assembly, must be instituted by an election petition brought within 21 days of the election of the member, as required by section 68 of the Act, especially having regard to the fact that the conduct leading to these proceedings may have occurred more than 21 days after the election of the member.

  Wingrove George v The Senior Magistrate and Another SKBHCV2018/0188 (delivered 15th January 2019, unreported) considered; Sections 59 and 61 of the House of Assembly (Elections) Act Cap 2.01 of the Laws of the Commonwealth of Dominica (1951, last amended 1990) considered; Section 68 of the Magistrate's Code of Procedure Act Cap. 4.20 of the Laws of the Commonwealth of Dominica (1891, last amended in 1991) applied; Section 40 of the Constitution of the Commonwealth of Dominica enacted as Schedule 1 of the Commonwealth of Dominica Constitution Order 1978 (S.I. 1978 No. 1027) considered.

• 2. If there is a challenge to the validity of a member's election, the challenge must be pursued by an election petition under section 65 of the Elections Act. There is no requirement that a claim under section 40 must be brought by election petition, except in relation to a challenge to the validity of an election under section 40(1) of the Constitution. Such a challenge does not come into play in this case. If the respondents are convicted, section 40(1)(d) may operate to cause that member to vacate his seat. This stage has not been reached in this case. In the circumstances, section 59 of the Elections Act is not inconsistent with section 40 or any other provision of the Constitution, and an elected member of the House of Assembly can be prosecuted by a magistrate for the offence of treating.

  Section 40(1) of the Constitution of the Commonwealth of Dominica enacted as Schedule 1 of the Commonwealth of Dominica Constitution Order 1978 (S.I. 1978 No. 1027) considered; The Attorney General of St Christopher and Nevis v Dr. Denzil Douglas SKBHCV2018/0008 (delivered 2nd July 2018, unreported); SKBHCVAP2019/0007 (delivered 12th March 2020, unreported) considered.

• 3. The judge's decision effectively created two types of offenders under the Elections Act, namely ordinary citizens who can be charged, convicted and sentenced under section 59, and members of the House of Assembly who are immune from prosecution under the Act. This duality of offenders is not apparent from a reading of the Elections Act. If it was intended to create immunity from prosecution for members of the House the lawmakers would have had to use very clear language. Neither the Act...