Ezechiel Joseph The Petitioner v Alvina Reynolds The Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Sir Hugh Rawlins CJ,Chief Justice,Justice of Appeal,Sir Hugh A. Rawlins,Janice M. Pereira,Davidson K.
• Judgment Date: 31 July 2012
• Judgment citation (vLex): [2012] ECSC J0731-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2012/0014
• Date: 31 July 2012

[2012] ECSC J0731-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Sir Hugh A. Rawlins Chief Justice

The Hon. Mde. Janice M. Pereira Justice of Appeal

The Hon. Mr. Davidson K. Baptiste Justice of Appeal

HCVAP 2012/0014

Between:

In the Matter of an agreed case stated to refer questions of law to the Court of Appeal pursuant to Rule 22 of the House of Assembly (Election Petition) Rules Cap 1.02 of the Revised Laws of Saint Lucia 2001

and

In the Matter of Election Petitions disputing and challenging the result of the Returning Officers for the Electoral Districts Of Gros Islet and Babonneau in the General Elections of 28th November 2011 in Saint Lucia

Ezechiel Joseph

The Petitioner

and

Alvina Reynolds

The Respondent

Between:

Lenard "Spider" Montoute

The Petitioner

and

Emma Hippolyte

The Respondent

Election Petitions — Referral of questions of law to the Court of Appeal — Rule 22 of the House of Assembly (Election Petition) Rules, Cap 1.02 of the Revised Laws of Saint Lucia, 2001 — Whether the Civil Procedure Rules 2000 are applicable to election petition proceedings — Extent of applicability — Whether rule 26.9 of CPR 2000 applicable for relief from sanctions — Whether disclosure under CPR 2000 available

General elections were held in Saint Lucia on 28^th November 2011. On 1^st December 2011, the Returning Officers returned the respondents as the elected representatives for the electoral districts of Babonneau and Gros-Islet, respectively. The petitioners challenged the results by way of election petitions filed on 20^th December 2011. In response, the respondents filed and served applications to strike out the petitions on the grounds, among others, that the petitioners failed to provide the security required by the Elections Act and by the House of Assembly (Election Petition) Rules; the petitions contain vague and generalised allegations and disclose no cause of action against the respondents; the petitions make allegations against the Presiding and Returning Officers in their petitions, but failed to join any of these officers as respondents, and that the petitions are not signed by the petitioners as required by the Election Petition Rules. With the consent of the parties, the election court judge reserved a number of questions of law that are to be determined by the Court of Appeal pursuant to rule 22 of the Election Petition Rules.

In the main, the referred questions invite the Court of Appeal to determine whether the Civil Procedure Rules 2000 ("CPR 2000") created under section 17 of the Supreme Court Order of 1967 (now Cap 2.01 of the Revised Laws of Saint Lucia, 2001) are applicable to elections proceedings. Additionally, the Court of Appeal is invited to determine, whether in any event, in keeping with the ex p Huddleston principle, even if a Returning Officer is required to be joined as a party, where the substantive issue for the determination of the Court concerns objections made to the ballot count, the provisions of CPR 2000 for further information and disclosure apply to create a duty on the Returning Officer to make his record on the objections available to the Court.

Held: remitting the case to the High Court for the hearing of the applications, and ordering the parties to meet their own costs in the referral proceedings:

• 1. With respect to question 1.1 of the reference, the rules of civil practice and procedure are only applicable to election petition proceedings to the extent that there is an express statutory provision that permits the rules to apply.

  Dictum in by Lewis CJ, in Duporte v Freeman (1968) 11 WIR 497, at pages 498 and 499C; in Ethlyn Smith v Delores Christopher et al and Reeial George et al v Eileene Parsons et al 0097 and 0098, Claim Nos. BVIHCV2002/0097 and 0098, High Court of the British Virgin Islands (delivered 23^rd July 2003, unreported), at paragraphs 19 and 25; in Williams v The Mayor of Tenby and Others (1879) 5 CPD 135 at page 138; and in Ferdinand Frampton and Others v Ian Pinard and Others 0152 and 0154, Claim Nos. DOMHCV2005/0149, 0150, 0151, 0152 and 0154, High Court of the Commonwealth of Dominica (delivered 28^th October 2005, unreported), at paragraph 29 applied.

• 2. Section 39 the Constitution of Saint Lucia confers the jurisdiction to make laws to regulate electoral matters upon Parliament. Section 39(6) provides for the circumstances, the manner in which and the conditions upon which any application may be made to the High Court for the determination of any question under section 39. It also provides that the powers, practice and procedure of the High Court in relation to any such application shall be regulated by such provision as may be made by Parliament. Parliament enacted the Elections Act, in which sections 88, 89 and 90 provide the regime by which the validity of an election may be challenged in court. Neither the Constitution nor Parliament expressly provided for the application of CPR 2000 to election proceedings. However, by section 89(2) of the Elections Act, Parliament empowered the Chief Justice to make rules concerning the deposit of security; the practice and procedure for service, and for the practice and procedure for the hearing of election petitions and matters related thereto. 'Hearing' refers to practice and procedure during the trial process. The rules, the Election Petition Rules, which the Chief Justice made in 1948 have been continued in force under the present Elections Act. In rule 26(2), the Chief Justice provided that in any matter not provided for by the Election Petition Rules, the practice and procedure of the Court in a civil action shall apply and have effect and the judge may in any such case direct what the procedure shall be. The Chief Justice thereby validly incorporated the civil practice and procedure contained in the rules of court, now CPR 2000, into election proceedings. However, the incorporation could be valid only for the purposes for which Parliament empowered the Chief Justice to make rules under section 89(2) of the Elections Act— for the deposit of security; the practice and procedure for service, and for the practice and procedure for the hearing of election petitions and related matters.

• 3. With respect to question 1.2 of the reference, it follows from the above that CPR 2000 applies to the extent that they provide for the deposit of security; the practice and procedure for service, and the practice and procedure for the hearing (actual trial) of election petitions and matters related to this, pursuant to Rule 26(2) of the Election Petition Rules. CPR 2000 cannot replace or amend any constitutional or statutory provisions for election proceedings. Ultimately, however, it is the judge who is hearing the matter who is to direct what actual procedure is to be followed from those aspects of CPR 2000.

• 4. In response to question 1.3.1 of the reference, a petitioner in election proceedings in Saint Lucia cannot rely on any provision of the CPR 2000 to apply to the court to enlarge the time prescribed for the doing of specific acts and taking of specific steps prescribed by the Elections Act or the Election Petition Rules. This is because the provisions prescribing the time for the doing of specific acts and taking specific steps in the Elections Act are substantive, conditions precedent and peremptory, unless they go to form. If those provisions are not complied with, a petition is rendered a nullity and is subject to be struck out as such. CPR 2000 cannot be relied upon in election petition proceedings to import an interlocutory process, particularly in the pre-trial stages of the proceedings. The Parliament of Saint Lucia has not conferred upon the Chief Justice or any authority a general power to incorporate the rules of civil practice for election petition proceedings.

• 5. In response to question 1.3.2 of the reference, it follows from the foregoing that a petitioner in Saint Lucia cannot, upon good reason given, rely on any provision of CPR 2000 to apply to the court to vary, modify, amend or perfect the petition notwithstanding that the 21 days prescribed by section 89(1)(a) of the Elections Act have expired or apply to extend or enlarge the time for the performance of the obligations or requirements prescribed by sections 88 and 89(1)(b) and (c) of the Elections Act or the Election Petition Rules. The exception would be in matters that go to form.

  Theberge v Laudry [1876] 2 App Cas 102 [1876] 2 App Cas 102 (PC) , especially from pages 106–108; Patterson v Solomon [1960] AC 579 (PC), especially page 589; Devan Nair v Yong Kuan Teik [1967] 2 AC 31 [1967] 2 AC 31 (PC); Browne v Francis-Gibson and Another (1995) 50 WIR 143 (1995) 50 WIR 143 (ECCA), especially per Sir Vincent Floissac CJ, at page 148;

  Russell (Randolph) and Others v Attorney-General of St Vincent and the Grenadines (1995) 50 WIR 127 (1995) 50 WIR 127 (ECCA) , especially per Sir Vincent Floissac CJ at page 138; Stevens v Walywn and Another (1967) 12 WIR 51 (1967) 12 WIR 51 (ECCA) applied. Ferdinand Frampton and Others v Ian Pinard and Others 0152 and 0154, Claim Nos. DOMHCV2005/0149, 0150, 0151, 0152 and 0154 High Court of the Commonwealth of Dominica (delivered 28^th October 2005, unreported); Lindsay Fitz-Patrick Grant v Glen Fitzroy Phillip et al, Claim No. SKBHCV2010/0026, High Court of Saint Christopher and Nevis, Saint Christopher Circuit (delivered 4^th November 2010, unreported), especially at paragraph 16; George Prime v Elvin Nimrod et al, Claim No. GDVHCV2003/0551, High Court of Grenada (delivered 19^th March 2004, unreported); Daven Joseph v Chandler Codrington et al and Paul Chet Greene v Eleston Adams et al 0147 and 0148, Claim Nos. ANUHCV2009/0147 and 0148, High Court Antigua and Barbuda (delivered 30^th June 2009, unreported), especially at paragraph 59, cited with approval. Peters (Winston) & Another v Attorney-General &...