Ronald Green v Petter Saint Jean and Others
| Jurisdiction | Dominica |
| Judge | THOM, J,Gertel Thom |
| Judgment Date | 10 January 2012 |
| Judgment citation (vLex) | [2012] ECSC J0110-1 |
| Court | High Court (Dominica) |
| Docket Number | DOMINICA HIGH COURT CIVIL CLAIM NO. 6 OF 2010 |
| Date | 10 January 2012 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
DOMINICA HIGH COURT CIVIL CLAIM NO. 6 OF 2010
DOMINICA HIGH COURT CIVIL CLAIM NO. 7 OF 2010
In The Matter of the House of Assembly (election) Act Cap2:01
In The Matter of a Parlimentary Election for the Constituency of La Plaine Held On yhe 18th Day of December 2009
In The Matter of the House of Assembly Election for the Constituency of Vieille Case Held on The 18th Day of December 2009.
In The Matter of the Commonwealth of Dominica Constitution order (1978) Sections 31, 32(1) (a), 40 And 103.
In The Matter of The House of Assembly (election) Act Chapter 2.01.
On September 7, 2011, I made an order setting aside subpoenas issued against Mr. Petter Saint Jean and Mr. Roosevelt Skerrit and struck out part of the witness statement of Mr. Ron Green. I indicated then that the reasons for my decision would be delivered at the same time as the judgment in the substantive matter. I do so now.
On January 8, 2010, the Petitioners filed Election Petitions against the Respondents.
After preliminary matters were determined by the Court the Election Petitions were scheduled to be heard on September 5, 2011. An Order was made for witness statements to be filed on or before August 12, 2011.
On 12th August 2011, both the Petitioners and the Respondents filed witness statements.
On 22nd August 2011, on the application of the Petitioners the Deputy Registrar of the High Court issued subpoena duces tecum and subpoena ad testificandum against the Respondents.
On August 31, 2011 the Petitioners filed 13 additional witness statements.
On September 2, 2011, the respondents made application to the Court for the following reliefs:
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(a) That the subpoenas issued to the Respondents be set aside.
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(b) The 13 witness statements filed on the 31st August 2011 not be admitted into evidence.
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(c) All hearsay evidence be struck out.
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(d) All material facts or particulars which have not been pleaded or perfected in the Petitions within 21 days be deemed inadmissible and struck out.
The grounds on which the applications were made can be summarised as follows:
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(i) The Registrar or Deputy Registrar of the High Court had no jurisdiction or authority under the House of Assembly (Election) Act to issue the subpoenas.
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(ii) The subpoenas are oppressive and an abuse of the process of the Court for the following reasons:
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(a) Delay
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(b) They seek to discover documents, disclosure of which has already been refused.
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(c) The Petitioners seek to coerce evidence in relation to matters which have not been pleaded in the Petitions.
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(d) No factual basis for the subpoena
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(e) Self-incrimination.
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(a) No provision was made in the order for the filing of additional witness statements.
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(b) They contain hearsay evidence which is inadmissible.
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(c) They contain material facts and particulars which were not pleaded in the petitions.
Learned Senior Counsel Mr. Astaphan submitted that the Registrar or Deputy Registrar had no jurisdiction to issue the subpoenas. Learned Senior Counsel referred the Court to Section 67 of the House of Assembly (Election) Act and submitted that a Respondent was not a witness within the meaning of Section 67. He is a party to the proceedings. Sections 65 and 68 make reference to members of the House of Assembly while Section 67 makes no mention to members, therefore Parliament did not intend for the Respondent to be included in the term witness in Section 67.
Learned Senior Counsel also referred the Court to the textPowers Duties and Liabilities of an Election Agent and of a Returning Officer at a Parliamentary Election in England and Wales p 711 where the Learned Author stated:
"Witnesses are subpoenaed and summoned in the samemanner as at nisi prius (31 & 32 Vict. C. 125, S.31) and are subject to the same penalties for perjury. The Judges at the trial may by order, compel the attendance of a witness, under penalty of a contempt of Court, and may themselves examine such witnesses who may afterwards be cross-examined by the Petitioner and Respondent."
Learned Senior Counsel submitted that the above passage shows that witnesses do not include the Respondents to an election petition since a Respondent would have to cross-examine himself.
Learned Senior Counsel for the Petitioners in response submitted that in determining whether the Respondent to an Election Petition is included in the term witness in Section 67, the Court must consider what witness can be subpoenaed in a civil action. Learned Senior Counsel referred the Court to Section 4 of the Evidence Act which provides that parties to civil proceedings are both competent and compellable witnesses. Learned Senior Counsel submitted that in a civil action a party to the proceedings could be subpoenaed to produce documents and also to testify —seeAdelaide Steamship Company case; and Mcllwain v Ramsey Food Packaging [2005] KCA p. 123. further the passage in the text _Powers Duties and Liabilities of an Election Agent and of a Returning Officer at a Parliamentary Election in England and Wales referred to by the Respondents does not in any way exclude a Respondent as a witness who can be subpoenaed. Learned Senior Counsel also referred the Court to Phipson on Evidence 13th ed. p. 677, Paragraph 30:02 where under the rubric "Subpoena ad Testificamdum" it is stated:
"The process may be used for the purposes of hearings before an arbitration or official referee; as well as to the trial of election petitions."
Learned Senior Counsel also referred the Court toHalsbury Laws of England 4th ed, Vol 17paragraph 244 and submitted that in civil proceedings before the High Court a writ of subpoena is issued by the Court office. Therefore the Registrar or Deputy Registrar can issue the subpoena —see Soul v Inland Revenue Commissioner [1963] 1 W.L.R. 112.
Section 67 on which the Petitioners rely gives the Election Court the same power, jurisdiction and authority as in a trial of a civil action in the High Court. A subpoena may be issued for witnesses in the same manner as in a trial of a civil action in the High Court. Who may issue a subpoena for a witness in an election petition is the same as in a trial of a civil action. InHalsbury Laws of England 4th ed Vol 17 paragraph 244 the Learned Author stated:
"The attendance of witnesses in proceedings in the High court is enforced by the writ of subpoena ad testificandum issuing out of the Central Office, the Crown Office and Associates Department, a departmental registry or a district registry. Issue of a writ of subpoena takes place upon its being sealed by an Officer of the office out of which it is issued."
This issue was also considered inSoul v Inland Revenue Commissioner [1963] 1 WLR where under Section 51 of the Income Tax Act 1952, the Commissioner had power to summon a person to give evidence but not to produce documents, so a subpoena duces tecum was issued out of the Crown Office. Lord Denning in holding that the subpoena was properly issued stated at page 113:
"When the powers of an inferior tribunal as to obtaining evidence are incomplete, the Queen's Bench has always fromtime immemorial had power to grant its aid to those tribunals by itself issuing subpoenas. It seems to me that that course was perfectly justifiable in the Crown Office in this case. It never has been the practice as far as I know, for actual leave to be obtained from a Master or a Judge for the issue of those subpoenas. They are issued as of course out of the Crown Office. Nor is it the practice in a subpoena duces tecum."
I agree with Learned Senior Counsel for the Petitioners that the Registrar/Deputy Registrar has jurisdiction to issue a subpoena. The applicable law is the law as stated inHalsbury Laws of England and the case of Soul v Inland Revenue Commissioner. It has always been the practice for subpoena to be issued by the Registrar or Deputy Registrar of the Court. In some instances subpoenas have been issued by the Court. However the real question is whether the Registrar or Deputy registrar can issue a subpoena ad testificandum and or a subpoena duces tecum to a party to an election petition. If yes whether the subpoenas should have been issued.
Whether the Registrar or Deputy registrar could issue a subpoena to a party to an election petition would depend on whether a party to an election petition falls within the meaning of witness in Section 67. I am of the view that witness in Section 67 is to be given its ordinary meaning. Section 67 does not provide that the Parties to an Election Petition are witnesses at the trial of the Petition. Rather Section 67 gives authority and set out the procedure for the Election Court to subpoena witnesses. They are to be subpoenaed in the same manner as in a trial of a civil action....
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