Bernard McDonald Christopher Claimant v Roosevelt Skerrit Attorney General of Dominica Defendants [ECSC]
| Jurisdiction | Dominica |
| Judge | BROOKS, J |
| Judgment Date | 18 February 2011 |
| Judgment citation (vLex) | [2011] ECSC J0218-3 |
| Docket Number | CLAIM NO. DOMHCV 2010/0287 |
| Court | High Court (Dominica) |
| Date | 18 February 2011 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. DOMHCV 2010/0287
Mr. Bernard McDonald Christopher in person
Mrs. Francine Baron-Royer with Ms. Tameka Hyacinth for the Defendants
This is an application by the Defendants for:
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(i) The Defendants to be struck off as Parties to the Claim;
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(ii) The Claim or parts thereof be struck out with costs to the Defendants
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(iii) Alternatively, in the event that the application to strike out is unsuccessful in the whole or in the part, for an extension of time to file the answer to the matter within 14 days of the determination of the application.
This application came from the Defendants after a consent order was granted on the 22 nd October 2010 granting the second Defendant relief from sanctions and leave to file and serve a defence on or before the 5 th November 2010. The first hearing of the Fixed Date Claim Form was to be heard on the 22 nd November 2010.
On the 5 th November 2010 a defence was not filed on behalf of any of the Defendants instead the application which is being dealt with now with the affidavit in support was filed.
On the 22 nd November 2010, the Court ordered that the parties to file and serve written submissions and the matter was adjourned to the 6 th December 2010, when both Counsel expanded on their written submissions and the Court's decision was reserved.
In a nutshell, the Claimant who is a member of the Electoral Commission is seeking by way of Fixed Date Claim form filed herein on the 14 th September 2010 with an Affidavit in support to obtain a number of declarations from the Court on the grounds that his constitutional rights have been violated and he is also seeking consequential relief in the form of injunctions, damages and costs.
The Claimant contends that the Defendants are in breach of various sections of the Constitution in that they have sought to direct and control the Electoral Commission ("the Commission") of which he is a member, treated him in a discriminatory manner and that the first Defendant has pursued a course of action which was calculated to hinder him from enjoying his right of freedom of association.
The Defendants by way of application filed on the 15 th November 2010 sought to have the Claimant's claim struck out on the following grounds:
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(i) That the allegations contained in the claim are misconceived and discloses no cause of action and are an abuse of the process;
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(ii) That the Claimant has no Locus Standi to bring the matter;
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(iii) The Claim is without merit and has no prospect of success at trial.
In response to the Defendants' application the Claimant contends as follows:
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1. That the Defendants have failed to comply with the order of Court of the 22 nd November 2010 and should therefore be debarred from proceeding with the application to strike out and that sanctions should be made against the Defendants in respect of an unless order not complied with. It should be noted immediately that there was no unless order made against the Defendants and accordingly the Court will not be making any sanctions against the Defendants.
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2. That he (The Claimant) has Locus Standi to bring the applications because he is a person with the relevant interest who has been aggrieved and as such, is entitled to apply to the Court for redress. The Claimant contends that when the Defendants prevented the issue of Voter ID Cards and called him a "lazy commissioner" it resulted in him being personally disparaged and slandered.
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3. That he needs an order mandamus from the Court ordering the Defendant to provide funds for the electoral commission to have the voter ID cards issued.
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4. That an issue to be determined by the Court is whether the first named Defendant in his personal capacity is immune from suit for breach of Constitutional provisions.
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5. That the statement of case sufficiently discloses a cause of action and when considering the striking out of the case the Court should focus on doing justice to the case of both the Claimant and the Defendants.
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6. That his case is not unreasonably vague, incoherent or vexatious and that striking out his claim would be unduly harsh because it raises serious issues of fact which can only be properly determined at the trial and that he has reasonable prospects of success.
The Court has the discretion to strike out a party's statement of case either in the whole or in part. Part 26 (3) of the CPR 2000 ("CPR") provides that:
"(1) In addition to any other power under these Rules, the Court may strike out a statement of case or part of a statement of case if it appears to the Court that —
a there has been a failure to comply with a rule, practice direction, order or direction given by the Court in the proceedings;
b the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
c. the statement of case or the part to be struck out is an abuse of the process of the Court or is likely to obstruct the just disposal of the proceedings;…"
It is settled law that the jurisdiction to strike out is to be used sparingly and is appropriate only in plain and obvious cases.
"When dealing with such applications the Court's function is limited to the scrutiny of the statement of claim. It tests the particulars which have been given in each averment to see whether they are sufficient to establish a cause of action. It is not the Court's function to examine the evidence to see whether the plaintiff can prove his case or to assess its prospects of success…" 1
It is trite law that a Claimant who comes to the Court must state a case that is known to or created by law. The case (statement of claim or statement of case) stated must disclose sufficient facts that are material to the issue to render the claim viable and which would permit the person who has to answer the case to know what case he has to meet. Pursuant to Part 26(3) of CPR and in its inherent jurisdiction the Court can strike out a statement of case which discloses no cause of action, or parts of the case which are vague, immaterial, unknown to law, or which is found to be abusive of the process of Court or is frivolous or vexatious.
Usually such applications are made as soon as it becomes apparent to the applicant and it is not unusual for the application to be made upon receipt of the statements of case after the filing of the acknowledgement of service and before the filing of the defence.
A statement of case before the Court must disclose a reasonable cause of action which is simply stated as "a factual situation the existence to which entitles a party to obtain from a Court a remedy against another person" 2. A statement of claim can be struck out if it discloses no reasonable cause of action.
What is a reasonable cause of action? " A reasonable cause of action is one with some chance of success when only the allegations on the pleadings are concerned." 3
In considering applications to strike out a statement of case the Court ought to bear in mind that "so long as the statement of claim or the particulars disclose some cause of action, or raises some question fit to be decided by the judge or jury the mere fact that the case is weak and not likely to succeed is no ground for striking out" 4.
At this stage of the proceedings the Court is not required to carry out a detailed and minute examination of the facts, allegations and documents of the case to see whether there is a cause of action contained therein. "…The purpose of considering an application to strike out a statement of claim, the truth of the allegations contained in the pleading is assumed" 5
The second named Defendant Mr. Levi A. Peter, the Learned Attorney General ("Mr Peter") deposed to an affidavit in support of the application to strike out. Mr. B McDonald Christopher deposed to an affidavit in
In summary the Defendants have through the Learned Attorney General said that:
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[i] He has read and relies on the Notice of Application filed on behalf of the Defendants and that the grounds of the application stated therein were true.
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[ii] The Claimant has not been requested or authorized by the Elections Commission to bring the claim;
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[iii] That the Defendants have not filed an answer to the claim since they believe that on the face of the claim there is no case to answer and as such they are relying on the application to strike out the claim.
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[iv] In the event that their application fails they would wish to defend the claim and accordingly he is asking to be relieved from sanctions and for leave to file the defence in 14 days.
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[v] The Claimant would not be prejudiced if the application is granted as he is fully cognizant of the Defendants' defence in the matter.
In summary Mr Christopher said as follows:
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[i] That the Defendants' (Applicants') affidavit was insufficient in that it failed to adduce evidence in support of the Claimant's application. That the grounds of application are speculation and belief and not facts.
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[ii] That the right of action is his cause of action which is founded on the Defendants' contravention of the Constitution and that he is entitled to seek redress from the Court.
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[iii] That there was a legitimate expectation by members of the public that Voter ID's would be issued before the...
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