Loftus Durand v President of the Commonwealth of Dominica, Charles A. Savarin
| Jurisdiction | Dominica |
| Judge | Pereira CJ |
| Judgment Date | 17 April 2020 |
| Judgment citation (vLex) | [2020] ECSC J0417-1 |
| Docket Number | DOMHCVAP2019/0006 |
| Court | Court of Appeal (Dominica) |
| Date | 17 April 2020 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Dame Janice M. Pereira, DBE Chief Justice
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
DOMHCVAP2019/0006
Ms. Cara Shillingford and Ms. Zahidha James, instructed by Justin Simon, QC for the Appellants
Mr. Lennox Lawrence and Ms. Jodie Luke for the 1 st Respondent
Mrs. Heather Felix-Evans for the 2 nd and 3 rd Respondents
Mr. Levi Peter, Attorney General, and Ms. Tameka Hyacinth-Burton, Solicitor General, for the 4 th and 6 th Respondents
Mr. Stephen Isidore for the 5 th Respondent
Civil interlocutory appeal — Expedited appeal — Whether appeal can be heard summarily — Election dispute — Objection to register of electors — Procedure for nominations for an election — Application for leave to seek judicial review — Jurisdiction of the high court to hear election matters — Whether the high court has jurisdiction to hear election matters prior to elections taking place and without the filing of an election petition — Constitution of the Commonwealth of Dominica, Chapter 1:01, Laws of Dominica Revised Edition 1990 — House of Assembly (Elections Act) Cap. 2:01 Laws of the Commonwealth of Dominica — Registration of Electors Act Cap. 2:03 Laws of the Commonwealth of Dominica — Registration of Electors Regulations Cap. 2:03, Laws of the Commonwealth of Dominica — Rule 62.6 of the Civil Procedure Rules 2000
On 6 th November 2019, the President of the Commonwealth of Dominica (“the President”) set dates for nominations and for general elections in the Commonwealth of Dominica (or “Dominica”). The general elections were set for 6 th December 2019 and the nomination day was set for 19 th November 2019. In error, the notice published by the Chief Elections Officer in the Dominica Official Gazette (“the Gazette”) stated that the nomination day was “Wednesday the 19 th of November 2019”, which said day did not exist as the 19 th November 2019 was in fact a Tuesday. This error was corrected in a subsequent issue of the Gazette.
On 18 th November 2019, the register of electors was published by the Chief Elections Officer. One thousand three hundred (1,300) objections to the register of electors were filed. However, none of the objections were heard by the Chief Elections Officer by the scheduled nomination day or, indeed, by the date of the hearing this appeal. Instead, nomination day proceeded on Tuesday 19 th November 2020.
On 26 th November 2019, the appellants filed an ex parte notice of application for leave to apply for judicial review. The application for leave to apply for judicial review was broadly premised on five complaints, namely that: (i) the nominations for the election were received unlawfully in breach of the procedure set out in the House of Assembly (Elections) Act; (ii) the Chief Elections Officer failed to hear and determine the outstanding objections to the register of electors prior to the election; (iii) the President of Dominica acted unreasonably and in bad faith by refusing to adjourn the election pending the determination of the objections; (iv) the government of Dominica breached the appellants' legitimate expectation that electoral reform, including a voter verification exercise and the implementation of voter identification cards, would be conducted prior to the election; and (v) the Dominica Broadcasting Corporation (“DBC”) discriminated against the United Workers Party by not permitting them to have access during the period of time leading up to the general election.
On the basis of the application for leave to seek judicial review, the appellants also sought two interim injunctions which requested that the court: (i) halt the holding of elections and (ii) restrain the DBC from discriminating against any political party or candidate in the scheduled elections, pending the determination of the complaints raised in the application for leave and the proposed substantive application for judicial review.
The proposed application for judicial review questioned the respondents' conduct and the validity of the scheduled election. It sought coercive orders to: (i) quash the decision of the respondents to proceed with the elections, (ii) compel the respondents to update the register of electors, (iii) compel the respondents to hear and determine all objections to the voter's list, (iv) quash the revised register of electors published during the week of 17 th November 2019 and, (v) compel the DBC to treat the United Workers Party and the Dominica Labour Party equally by providing equal and comparable access to the radio station.
The ex parte application for leave to apply for judicial review and for injunctive relief was refused at first instance. The trial judge upheld a preliminary objection by the respondents that the nature of the applications required them, in law, to be determined by the High Court in its exclusive jurisdiction to hear matters concerning the composition of parliament under section 40 of the Constitution of the Commonwealth of Dominica (“the Constitution”), and in accordance with the mandatory procedure for doing so as outlined in section 40 of the Constitution.
The appellants appealed and sought to have the appeal heard summarily. The appeal was heard on 5 th December 2019 and the main issues arising for determination were: (i) whether the Court had jurisdiction to hear the appeal on an expedited basis and treat the appeal as a summary appeal notwithstanding the appellants' non-compliance with CPR 62.6; and (ii) if the Court had jurisdiction to hear the appeal, whether the court below had jurisdiction to hear and consider on its merits, the application for leave to seek judicial review and to grant the interim and constitutional relief sought.
Held: Allowing the appeal to the extent that the application for leave to apply for judicial review in relation to the claim made against the Dominica Broadcasting Corporation, be remitted to the court below for the hearing of the application for leave on its merits; but dismissing the appeal in all other respects; refusing the application for an interim injunction seeking to restrain the respondents from holding general elections in the Commonwealth of Dominica on 6 th December 2019, or on any date prior to 5 th February 2020; and making no order as to costs, that:
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1. Whilst the requirements under CPR 62.6 for requesting a summary appeal are conjunctive in nature and the requirements under CPR 62.6 had not been met in this instance, CPR 62.6, like all procedural provisions under Part 62 of the CPR, is not itself the source of the court's jurisdiction in relation to appeals. The court has a broad jurisdiction to hear appeals and is not bound to refuse to hear an appeal because of non-compliance with a procedural provision.
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2. The court in determining whether to exercise its jurisdiction to hear the appeal must exercise that power with a view to dealing with cases justly. The factors surrounding the appeal, namely: (i) the fact that the proceedings in the court below were truncated and were determined on a single preliminary point of law, (ii) there was no substantial inquiry or finding of fact, (iii) the matter was of recent vintage, (iv) there would be little to no injustice to the respondents in hearing the appeal and, (v) the matter was of extreme and exceptional urgency and of great public importance to the people of Dominica, were sufficient bases upon which the court could exercise its jurisdiction to hear and consider the appeal.
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3. Section 40 of the Constitution confers exclusive and exclusionary jurisdiction on the High Court to hear election matters. Therefore, questions which fall within the election jurisdiction of the High Court cannot be determined within the ordinary jurisdiction of the High Court in civil matters but must instead follow the mandatory and specific procedures outlined in section 40 of the Constitution. These mandatory procedures include the stipulation that an election petition must be filed in order to commence proceedings under that section. The ordinary and grammatical meaning of Section 40(1)(a) of the Constitution, read in conjunction with section 65 of the House of Assembly (Elections) Act, indicates that the court's election jurisdiction encompasses questions which relate to the process of the election, or the returns in each electorate, and the existence of any element of unlawfulness therein.
Browne v Francis-Gibson and anor (1995) 50 WIR 143 applied; William Bruce Williams v Emmanuel Henry Giraudy and anor (1975) 22 WIR 532 applied; Patterson v Solomon [1960] 2 All ER 20 applied; Eugene Hamilton v Cedric Liburd et al Saint Christopher and Nevis Civil Appeal Nos. 11, 11A, 12, 12A, 13 and 13A of 2005 (delivered 22nd March 2006, unreported) applied; Russell v AG of Saint Vincent and the Grenadines (1995) 50 WIR 127 followed; House of Assembly (Elections) Act Cap. 2:01 Laws of the Commonwealth of Dominica applied; Ezechiel Joseph v Alvina Reynolds HCVAP2012/0014 (delivered 31st July 2012, unreported) applied; Payne v Adams [2009] NZHC 508 applied.
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4. With the exception of the DBC, the court's election jurisdiction under section 40 (1)(a) of the Constitution was engaged with respect to the appellants' application for leave to apply for judicial review and for injunctive relief. The court's jurisdiction was engaged as the object and purpose of the appellant's...
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