Prevost v Blackmore et Al

• Jurisdiction: Dominica
• Judge: Rawlins, J.
• Judgment Date: 14 September 2005
• Neutral Citation: DM 2005 HC 6
• Docket Number: DOMHCV 0177 of 2005
• Court: High Court (Dominica)
• Date: 14 September 2005

High Court

Rawlins, J.

DOMHCV 0177 of 2005

Prevost

and

Blackmore et al

Appearances:

Mr. Keith S. Massiah, QC, with him Mr. Roysdale Forde and Mr. Duncan Stowe, for the claimant.

Mr. Anthony Astaphan, QC, with him Mrs. Heather Felix-Evans, for the 1st defendant.

Mr. Kondwani Williams for the 2nd, 3rd and 4th defendants.

Civil practice and procedure - Striking out — Application to strike out claim that person elected to seat in House of Assembly on the ground that it was unsustainable, misconceived etc. and an abuse of the process of the Court — Jurisdiction of Court in relation to striking out — Finding that the claim should have been brought by Petition rather than a constitutional challenge — Claim stuck out.

Rawlins, J.

1 The Claimant, Mr. Prevost, and the 1st defendant Mr. Blackmore, contested the general parliamentary elections held in Dominica on Thursday 5th May, 2005. They were the candidates for the Mahaut Constituency. Mr. Prevost was the candidate for the United Workers Party (UWP). Mr. Blackmore was the candidate for the Dominica Labour Party (DLP). After the final count of the votes on 6th May, 2005, the Returning Officer certified that Mr. Blackmore received the majority or 2,064 of the votes, and that Mr. Prevost received 1,813. The Returning Officer therefore declared Mr. Blackmore to be the Member elected to Parliament for the Mahaut Constituency.

2 On 22nd June, 2005, Mr. Prevost filed the Claim herein by way of a Fixed Date claim Form. He claims various declarations and Orders. Briefly stated, he urges the Court to declare that Mr. Blackmore was not qualified to be elected as a Member of Parliament because he had not satisfied the requirements of 32(1)(f) of the Constitution of Dominica. He also prays for a declaration that Mr. Blackmore should be disqualified as a Member of Parliament because he violated section 32(1)(f) and section 32(5)(a) of said Constitution. He further prays for a declaration that he (Mr. Prevost) be deemed the rightfully elected candidate or Member for the Mahaut Constituency since he was Mr. Blackmore's only opponent in the elections for that Constituency.

3 The crux of Mr. Prevost's complaint is that at the date when Mr. Blackmore was nominated by the DLP as the candidate for the Mahaut Constituency, he (Mr. Blackmore) was a Special Advisor to the Prime Minister of Dominica under ‘a government contract’ within the meaning of section 32(6) of the Constitution. Further, Mr. Prevost claimed that contrary to section 32(1)(f) and section 32(5)(a) of the Constitution, Mr. Blackmore failed to disclose the nature of the contract or his interest in the contract, or that he held and was acting in an office or was appointed in an office by the government at the time of the election.

4 On 1st July, 2005, Mr. Blackmore applied to strike out the Claim on the ground that it was unsustainable, misconceived, frivolous, vexatious and an abuse of the process of the Court, and that it has no prospect of success at a trial. The Application is based on 2 main grounds. The first is that the Claim, in effect, challenges the validity of the election, and can therefore only be made by way of Petition rather than by a Fixed Date Claim form. I shall consider this ground first in this Judgment. If Mr. Blackmore prevails on this ground, it will be unnecessary to consider the second. The second ground is that Mr. Blackmore was employed under a contract of service, and disqualification by reference to section 32(1)(f) and section 32(5)(a) of the Constitution does not apply to a person who is employed under a contract of service. As a precursor to considering the issues that arise on any of these grounds, I shall first briefly reiterate the trite principle that relate to the jurisdiction of the Court to strike out cases in the context of the present case.

JURISDICTION TO STRIKE OUT

5 The Court has jurisdiction to strike out cases, where the pleadings are bad and incurable. In Dominica, constitutional proceedings may be instituted by Motion or by Fixed Date Claim Form. Yet, an originating constitutional action, which is instituted by any other means known to the Court, will not necessarily be struck out in the interest of promoting access to the Court, especially in fundamental rights proceedings. (See, for example, Re Blake (1994) 47 W.I.R. 174.). In the present case, however, counsel for Mr. Blackmore is contending that the originating proceeding, by way of Fixed Date Claim Form, is bad and cannot be cured.

6 The essence of the second ground of the Application to strike out the Claim is that the Claim discloses no reasonable cause of action. The Court has always had jurisdiction to strike out actions on this ground if, having examined the Claim, it finds that the action will have no chance of success even if the pleading process were to continue and the matter goes to trial. This is a jurisdiction, which the Court exercises very sparingly and only in the most clear and obvious cases, for example, when it is clear that the case has no legal basis. This is because the Court errs on the side of having trials on the merits of cases.

THE ORIGINATING PROCEDURE

7 The Claim in this case was instituted by Fixed Date Claim Form pursuant to Part 56 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (“the Rules”). It asserts that Mr. Blackmore's election as a Member of Parliament for the Mahaut Constituency is invalid because he breached the provisions of section 32(1)(f) and section 32(5)(a) of the Constitution.

8 Mr. Forde, learned counsel for Mr. Prevost, submitted that the claim was properly brought by fixed Date Claim Form because it falls squarely under the Constitution. He said that Part 8(1)(5)(d) of the Rules mandates Part 56 procedure where, as in this case, the complaint is that Mr. Blackmore did not comply with section 32 of the Constitution. He submitted that there is no limitation on the original jurisdiction of the High Court to hear section 32 contraventions pursuant to section 103, the redress clause, in cases instituted by Motion or Fixed Date Claim Form. He submitted further, that only clear language could limit the jurisdiction of the Court to entertain such proceedings and section 40 of the Constitution does not contain any such limiting words.

9 Subsections 32(1)(f) and 32(5)(a) of the Constitution provide:

• “32(1) A person shall not be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he: (f) Subject to such exceptions and limitations as may be prescribed by Parliament, has an interest in any government contract and has not, within seven days of his nomination as a candidate for election or, as the case may be at least seven days before the date of his prospective appointment, disclosed the nature of the contract and of his interest therein by means of a notice published in the Official Gazette and in a daily or weekly newspaper circulated in Dominica;

• (5) If It is so provided by parliament and subject to such exceptions and limitations (if any) as Parliament may prescribe, a person shall not be qualified to be elected or appointed as a member if- (a) he holds or is acting in any office or appointment (whether specified individually or by reference to a class or office of appointment);”

10 Section 40(1)(a) of the Constitution confers jurisdiction on the High Court to hear and determine any question whether a person has been validly elected as a Member of Parliament. Section 40(2) provides...