Ronald A.K.A "Ron" Green Petitioner v 1. Petter Saint Jean 2. Merina Williams 3. Marcella Augustine 4. Earl Blackmore 5. Gerald Burton (Chairman of the Electoral Commission) 6. Alick Lawrence (Member of the Electoral Commission) 7. Kondwani Williams (Member of the Electoral Commission) 8. Don Christopher (Member of the Electoral Commission) 9. Bernie Didier (Member of the Electoral Commission) 10. Dominica Broadcasting Corporation 11. Attorney General of Dominica Respondents [ECSC]
| Jurisdiction | Dominica |
| Judge | Thom, J |
| Judgment Date | 07 June 2011 |
| Judgment citation (vLex) | [2011] ECSC J0607-1 |
| Court | High Court (Dominica) |
| Docket Number | DOM HCV 006 OF 2010 |
| Date | 07 June 2011 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
DOM HCV 006 OF 2010
In the matter of the House of Assembly (Elections) Act Cap 2:01
And
In the Matter of a Parliamentary Election for the Constituency off La Plaine held on the 18th day of December 2009
And
DOM HCV 7 of 2010
In the Matter of House of Assembly Election for the Constituency of Vieille Case, held on the 18th day of December 2009
And
In the Matter of the Commonwealth of Dominica Constitution Order (1978) Sections 31, 32(1)(a), 40 and 103;
And
In the Matter of the House of Assembly (Elections) Act Chap. 2.01
Respondents
On the 18th day of December 2009 General Elections were held in The Commonwealth of Dominica.
The First Respondents were the successful candidates. Roosevell Skerrit was the successful candidate in the Vieille Case constituency and is now the Prime Minister. Petter Saint Jean was the successful candidate in the constituency of La Plaine and is now a Minister of Government.
Ronald Green was the unsuccessful candidate in the La Plaine constituency and Maynard Joseph was the unsuccessful candidate in the Vieille Case constituency.
Both Petitioners challenged the validity of the nomination and election of the First Respondents.
On the 25th day of August 2010 the Honourable Justice Errol Thomas ruled that the only issue which should proceed to trial is whether the Respondents were disqualified from nomination or election by virtue of the provisions of Section 32(1) (a) of the Constitution of Dominica.
On the 3rd day of January 2011 the Petitioners made application to the Court in which they sought the following orders:
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(i) That judgment be entered for the Petitioner in default of Defence;
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(ii) Alternatively, that the First Respondent do file and serve his Defence to the Petition within 21 days;
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(iii) That the First Respondent do provide disclosure of all documents relevant to the matter in question in this Petition which now or have been in his control, including such documents which are or were in his physical possession or which he has or has had the right to inspect or take copies of or which he has or has had a right to possession of;
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(iv) That the First Respondent do provide the disclosure sought at (3) above with a list of documents, such list being confirmed as true and accurate by affidavit to be sworn to by the First Respondent, with both the list and affidavit being filed and served within 21 days after the filing and service of the First Respondents Defence herein. That there be inspection of the documents on the list within 14 days of the filing and service of the said list and affidavit;
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(v) That the First Respondent disclose any French passports, whether current or cancelled, which are now or have been in his control, including such passports which are or were in his physical possession or which he has or has had the right to inspect or take copies of or which he had or has had a right to possession of;
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(vi) That the First Respondent do provide the disclosure sought at (5) above via the swearing of an affidavit providing the said information to be filed and served within 21 days after the filing and service of his Defence herein;
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(vii) That the Chief Elections Officer, Ms. Merina Williams, do provide the Petitioner with a copy of the Form 13 Declaration of the First Respondent, within 21 days;
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(viii) That the Chief Elections Officer, Ms. Merina Williams, the Second Respondent, do deliver to the Registrar of the High Court all of the documents referred to in Section 44(1) of the House of Assembly (Elections) Act, Chapter 2:01 of the Laws of the Commonwealth of Dominica, as well as a copy of the Form 13 Declaration of the First Respondent, within 21 days of the date of this Order and that she do provide the Petitioner with an index of all documents so delivered within 21 days;
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(ix) That the Registrar of the High Court do permit the Petitioner and/or his Attorneys at Law access to, and copies of, all documents from the Chief Elections Officer."
The Application was opposed by the Respondents.
At the hearing of the Application the Petitioners did not pursue the relief for judgment in default nor the relief sought at sub-paragraph (viii).
The Petitioners based their application for the Orders on:
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(a) CPR 2000
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(b) The House of Assembly (Elections) Act
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(c) The inherent jurisdiction of the Court.
The Respondents contend that CPR 2000 do not apply and the Court's jurisdiction under the constitution and the House of Assembly (Elections) does not include power to make the interlocutory orders that the Petitioners seek. The jurisdiction conferred by Parliament on the High Court is a special jurisdiction and the Court cannot use its inherent jurisdiction to grant the Orders sought.
The issues the Court must determine are whether the Court is empowered to order the First Respondent to file a defence and order discovery, and whether the Court should order the Chief Elections Officer to lodge the Form 13 Declaration of the First Respondents with the Registrar of the High Court for inspection by the Petitioners.
Learned Senior Counsel for the Petitioners submitted that the provisions of CPR 2000 apply to Election Petitions. Election Petitions are civil proceedings and are included in Part 2.2(1). They are not excluded by Part 2.2(1)(e) since the Chief Justice has not made any Rules under Section 68(2) of the House of Assembly (Elections) Act.
Learned Senior Counsel agreed that Election Petition proceedings are special and peculiar, that they do not involve ordinary civil rights. He submitted however that there is no decision by any of the Courts of the Eastern Caribbean Supreme Court that decided that CPR 2000 do not apply to election petition proceedings. In the cases ofEthlyn Smith BVI HCV 2003/0097; and Frampton v Pinnard DOM HCV 2005/0149 Rawlins J. (as he then was) did not determine that CPR 2000 was not applicable to election petitions but rather only determined that CPR 2000 could not be resorted to, to make amendments or join parties to an election petition. The cases decided that those provisions of CPR 2000 that are inconsistent with the statute cannot be applied. Learned Senior Counsel referred the Court to the decision of the Court of Appeal of Trinidad and Tobago in Peters v The Attorney-General CA. No. 21/2001 where the Court found that the rules of the Supreme Court were applicable.
The legal authorities show that historically the Court always made orders for disclosure in election petition proceedings. The position was altered by Section 26 of the UK Parliamentary Election Act 1868 which provides in effect that in the absence of rules made under the Election Act, the principles, practice and rules by which Committees of the House of Commons had dealt with election petitions shall be observed by the Court in the case of election petitions. Therefore the UK cases ofWells v Wren [1880] 5CP D546 and Moore v Kennard [1883] 3 10QB 290 are not applicable in Dominica since there is no similar statutory provision in Dominica. The rules of the Committee of the House of Commons never applied to Dominica.
Learned Senior Counsel referred the Court to Section 40 of the Constitution of Dominica and Sections 65 – 68 of the House of Assembly (Elections) Act, and submitted that notwithstanding rules were not made pursuant to Section 68 there are sufficient directions given in the House of Assembly (Elections) Act itself for the Court to determine the procedure for the determination of election petitions.
Learned Senior Counsel submitted that Section 65 identifies the persons who can institute an election petition. Section 66 provides in effect that election petitions are to be tried in the same manner as proceedings instituted by Claim Form. The word "tried" in Section 66 is wide enough to include all the procedural steps that are to be taken from the time proceedings are commenced. It means that CPR 2000 is incorporated into the legislative scheme for determining election petitions. This requires a Respondent to give a defence and to make disclosure. Learned Senior Counsel referred the Court to the decision of the Court of Appeal of Trinidad and Tobago inPeters v The Attorney-General where the Court found that in the absence of the rules, the RSC applied even though they agreed that election petitions were special proceedings.
Learned Senior Counsel further submitted that Section 17 of the Supreme Court Order empowers the Chief Justice and two judges to make rules in relation to the jurisdiction of the High Court. One jurisdiction of the High Court is in relation to election petitions. They can make rules...
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