Joseph v Reynolds; Montoute v Hippolyte

• Jurisdiction: St Lucia
• Judge: Sir Hugh Rawlins, C.J.
• Judgment Date: 31 July 2012
• Neutral Citation: LC 2012 CA 5
• Docket Number: HCVAP 14 of 2012
• Court: Court of Appeal (Saint Lucia)
• Date: 31 July 2012

Court of Appeal

Rawlins, C.J.; Pereira, J.A.; Baptiste, J.A.

HCVAP 14 of 2012

Joseph v. Reynolds; Montoute

and

Hippolyte

Appearances:

Mr. Reginald Armour, SC, with him, Ms. Eugenia Dickson and Ms. Leonne Theodore-John, for the petitioners

Mr. Anthony Astaphan, SC, with him, Ms. ReneeSt. Rose and Mr. Leslie Mondesir, for the respondent Alvina Reynolds

Mr. Anthony Astaphan, SC, with him, Ms. ReneeSt. Rose and Mr. Thaddeus Antoine, for the respondent Emma Hippolyte

Civil practice and procedure - election petition — Whether Civil Procedure Rules were applicable to election petition proceedings.

Sir Hugh Rawlins, C.J.

1 This matter came to this court by reference inviting us to determine stated questions of law on election petitions.

BACKGROUND

2 Rule 22 of the House of Assembly (Election Petition) Rules, Cap. 1.02 of the Revised Laws of Saint Lucia 2008. Hereinafter, these rules may be referred to as “the Election Petition Rules”, permits an election court to reserve questions of law for determination by the Court of Appeal on the hearing of election petitions. The rule states as follows:

“If it appears to the judge on the hearing of any election petition or any special case that any question of law requires further consideration by the Court of Appeal, it shall be lawful for the judge to postpone the hearing, … until the determination of such question by the Court of Appeal and for this purpose to reserve any question of law for the determination of the Court of Appeal.”

3 General elections were held in Saint Lucia on 28th November 2011. After various recounts, the Returning Officers finally returned the respondents as the duly elected representatives for the electoral districts of Babonneau and Gros-Islet, respectively, on 1st December 2011. The petitioners challenged the results as returned by the Returning Officers for these districts, and, for this purpose, filed election petitions on 20th December 2011.

4 Section 89(1)(a) of the Elections Act, Cap 1.02 of the Revised Laws of Saint Lucia 2008 provides that a petition complaining of an undue return or undue election of a member of the legislature shall be presented within 21 days after the return made by a returning officer and within 28 days if the petition alleges corrupt practices. Section 89(1)(b) of said Act provides that security shall be given on behalf of the petitioner within 3 days after the presentation of the petition. This is for the payment of all costs, charges or expenses that may become payable by the petitioner to witnesses summoned by the petitioner or any respondent in the petition. Section 89(1)(c) stipulates the manner in which the security is to be given.

5 In response to the petitions, on 4th January 2012, the respondents filed and then served applications to strike out the petitions. The respondents allege in these applications that the petitioners failed to provide the security required by subsections 89(1)(b) and (c) of the Elections Act and by rule 9(1) of the Election Petition Rules. They further allege that the petitioners failed to serve notice of the security in accordance with rule 9(3) of the said Rules. The respondents also allege that the petitions contain vague and generalised allegations and disclose no cause of action against the respondents. The applications state that the petitions make allegations against the Presiding and Returning Officers in their petitions, but failed to join any of these officers as respondents; failed to plead material facts of objections to specific ballots made by or on behalf of the petitioners at the preliminary count; failed to plead material particulars to justify a scrutiny or recount of the votes; failed to identify specific votes which required scrutiny at the final count and failed to plead a prayer requesting a scrutiny or recount. The respondents further allege that the petitions are not signed by the petitioners as required by rule 3(1) of the Election Petition Rules, and, additionally, that the petitions are pleaded in vague, generalised and pejorative terms; are frivolous vexatious and a fishing expedition; constitute an abuse of the process of the court and are bad in law.

6 Notices of security for costs were filed on behalf of the petitioners on 9th January 2012 and served on the respondents on 9th January 2012. On 24th February 2012, the respondents further filed summonses for a case to be stated to the Court of Appeal. The applications and summonses came for hearing in the election court on 15th March 2012. With the consent of the parties, Wilkinson J issued an order which reserved the questions of law that are to be determined by this court and postponed the applications to strike out the petitions until after the questions are determined.

7 The questions to be determined are stated as follows:

• 1.1 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) apply in whole or in part to the jurisdiction created or conferred by section 39 of the Constitution of Saint Lucia, Cap. 1.01 including proceedings under the provisions of the Elections Act.

• 1.2 Whether and to what extent, if any, can CPR 2000 as amended apply in view of Rule 26(2) of the House of Assembly (Election Petition) Rules of Cap 1.02 of the Revised Laws of Saint Lucia, 2001.

• 1.3 Whether, on the assumption that CPR 2000 may apply in Saint Lucia, can a petitioner upon good reason given rely on any provision of CPR 2000 to apply to the Court to:

  • 1.3.1 Enlarge the time prescribed for the doing of specific acts and taking of specific steps prescribed by the Elections Act or House of Assembly (Election Petition) Rules;

  • 1.3.2 Vary, modify, amend or perfect the Petition notwithstanding that the 21 days prescribed by section 89(1)(a) of the Elections Act have expired; more specifically, 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 House of Assembly (Election Petition) Rules; and/ or

    • 1.3.2.1 Exercise its power under Part 26.9 upon a failure to comply with the provisions of the Elections Act and or House of Assembly Election Petition Rules and or election law of Saint Lucia.

• 1.4 If CPR 2000 is found to be applicable, does Rule 26.9 of CPR 2000 apply, upon proper explanation, to relieve the severity of provisions of the Elections Act or the requirement in Rule 19 of the House of Assembly (Election Petition) Rules, that a petition which complains of conduct of a Returning Officer, but does not make that Returning Officer a respondent to the Petition, and has not been served on that Returning Officer within the specified time is nevertheless liable to be struck out?

• 1.5 Whether, notwithstanding the absence of any provision of the Elections Act or Rule made by the Chief Justice (under the House of Assembly (Election Petition) Rules and on the assumption that the Returning Officer is not required to be joined as a party, where the substantive issue for the determination of the Court concerns objections made to the ballot count in relation to which objections the Returning Officer will have his Record, the provisions of CPR 2000 in respect of (further information and disclosure) apply so that there exists a duty on the part of the Returning Officer to make available that record to the Court (ex p Huddleston principle)?

8 The hearing of these questions was scheduled further to directions which this court issued on 30th March 2012. Upon those directions, the parties filed an agreed statement of case on 23rd April 2012, and their written submissions subsequently. An outline of the essential constitutional and statutory framework which governs the issuing of election petitions in Saint Lucia would be a helpful precursor to a discussion on the issues which this reference raises.

ESSENTIAL CONSTITUTIONAL AND STATUTORY FRAMEWORK

9 In my view, it is beyond contravention that section 39 of the Constitution of Saint Lucia, Part 7 of the Elections Act, and sections 88–90, in particular, are the bedrock for the essential constitutional and statutory framework which governs the issuing of election petitions in Saint Lucia.

10 Section 39 of the Constitution of Saint Lucia states as follows:

• “39.–(1) The High Court shall have jurisdiction to hear and determine any question whether–

  • (a) any person has been validly elected as a member of the House;

  …

  (6) The circumstances and manner in which and the imposition of conditions upon which any application may be made to the High Court for the determination of any question under this section and 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.”

11 Section 88 of the Elections Act states as follows:

“88. PETITION AGAINST DISPUTED ELECTION

A petition complaining of an undue return or undue election of a member of the House in this Act called an election petition, may be presented to the High Court by any one or more of the following persons, that is to say–

• (a) a person who voted or had a right to vote at the election to which the petition relates;

• (b) a person claiming to have had a right to be returned at such election;

• (c) a person alleging himself or herself to have been a candidate at such election.”

12 Section 89 of the Elections Act states as follows:

“89. PRESENTATION OF PETITION AND SECURITY FOR COSTS

• (1) The following provisions apply with respect to the presentation of an election petition–

  • (a) the petition shall be presented within 21 days after the return made by the returning officer of the member to whose election the petition relates, unless it concerns an allegation of corrupt practices upon the making of the return of...