THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

COMMONWEALTH OF DOMINICA

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 18111

day of December 2009

BETWEEN

RONALD A.K.A "RON" GREEN

Petitioner

AND

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. ATIORNEY GENERAL OF DOMINICA

Respondents

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 (8ections) Act Chap. 2.01

Respondents

BETWEEN

MAYNARD JOSEPH

Peblioner

AND

1. ROOSEVELT SKERRIT

2. THERESA ROYER (Returning Officer for the Constituency of Vleille Case)

3. GERALD BURTON (Chairman of The Electoral Commission)

4. ALICK LAWRENCE (Member of The Electoral Commission)

5. KONDWANI WILLIAMS (Member of The Electoral Commission)

6. MCDONALD CHRISTOPHER (Member of The Electoral Commission)

7. BERNIE DIDIER (Member of The Electoral Commission)

8. DOMINICA BROADCASTING CORPORATION

9. THE ATIORNEY GENERAL OF THE COMMONWEALTH OF DOMINICA

Respondenls

Appearances Mr Douglas Mendes S C and Mr S. Young and t.4r. G. Letang lor the PebiJOI'Iers Mr Anthony Astaphan S C. and Mrs. H. Felix-Evans for lhe First Respondents Mrs Kathy BuffOI)'·Royer and Ms Sherma Dalrymple for the Second Respondents

2011: March 31<~,

Apnl1" June 7"

JUDGMENT

(1) THOM, J On the 111" day of December 2009 General Elecnons were hP.kl 1n The

Commonwealth or Dominica

(2) The FII'St Respondents were the successful candidates RooseveH Skernt was the

successful candidate 111 the V.e• le Case constituency and is now the Pnme Mm•ster

Petter S<!Jnt.lt!dll web the successful candidare in the constituency ol La Plaine and i~ now

a M mster ol Government

(3) Ronald Green was the unsu<:eesslul candidate 111 the La Pla1ne oonsutuency and Maynard

Joseph was the unsuccessful candidate in lhe Vieille Case constituency.

[4] Both Petitioners challenged the validity of the nominat1on and election of the F~rst

Respondents.

[5] On the 251h day ol August 2010 the Honourable Justice Errol Thomas ruled lhalll1e 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) or the Constitution of

Dominica.

[6) On the 3"' day of January 2011 the Petitioners made application to the Court 1n v.1"11Ch they

sought the folloWing orders

(1) That jUdgment be entered for the Petiti>ner in default of Defence,

(1) Altemauvely, that the FIISt Respondent do file and serve hrs Oe1ence to

the Pebllon Wlthrn 21 days;

(•) Thallhe First Respondent do provide disclosure of all documents relevant

to the matter 111 quesUon in this Petitiln vmich now or have been 1n hiS

control. 1ncludrng such documents which are or were 1n hiS phys1ca

possessron or which he has or has had the right to 1nspect or take cop1cs

or or which he has or has had a right to possession or;

4

(iv) That tho First Respondent do provide the disclosure sought al (3) above

wrth a list of documents. such list being confirmed as true and accurat~ hy

atfidavit lo be sworn to by the First Respondent. wrth both the hst and

affldavn being filed and served within 21 days after the fi'ing and service of

the First Resi)OOOenls Defence herein That there be mspecton of the

documents on the ist wit!Wl 14 days of the fi'ing and serw:e of the ~ld

list and affidavrt

(v) That the FIISt Resi)OOOent disclose any French passports whether current

or cancelled. which are now or have been in his control, mdud'"IJ such

passports which are or were in his physical possession or which he ha:; or

has had the nght to rnspect or take copies of or wh1ch he had or has had a

nght to possession of;

(vi) That the First Respondent do provide the disclosure sought at (5) above

v1a the swearing of an affidavit providing the said information to be filed

and served Within 21 days alter the filing and service of his Defence

heroin;

(vii) That the Chl9f Elections Officer, Ms. Merina Williams, do provide the

Petitioner with a copy of the Form 13 Declaration of the First Respondent,

within 21 days;

(vui) That the Chief Bections OffiCer, Ms. Merina Williams, the Second

Respondent. do deliver to the Registrar of the High Court all of the

documents referred to 111 Section .i4(1) of the House of Assembly

(EiectJOOs) Act Chapter 2:01 of the _aws of the Commonwealth of

Dominica, as .,._ as a copy of the Form 13 Declaration of the FlfSt

Respondent wrthlll 21 days of the date of lh1s Order and thar she do

provide the Pebboner Y<1th an llldex of all documents so del•vered w•lh•n

21 days,

(1x) That the RegiStrar of the High Court do permit the Petitioner and/or h1s

Attorneys at Law access to, and copies of. aD documents from the Chief

Etect1ons Otficer •

[7] The Applicahon was opposed by the Respondents.

(81 At the hearing of the Application lhe Petilioners did not pursue the relief for Judgment tn

deldUil nor lhe re'~l sought at sulrparagraph (viii).

(91 The Pe~llotlt!IS based thelt application for the Orders co:

(a) CPR 2000

(b) The House of Assembly (Elections) Act

(c) The tnherentJunsdiCbon of the CouJt

(101 The Respondents contend that CPR 2000 do not apply and lhe Court's jurisdtchon under

the constttution and the House of Assembly (Elections) does not include power to make

the Interlocutory orders that the Petitioners seek. The jurisdiction conferred by Parl•ament

on lhe High Court is a spectal junsdtctton and the Coun cannot use its inherent jurlsdtctlon

to grant the Orders sought.

tSSSUES

11 11 The Issues the Coun must determine are whether the Court is empowered to order the

Ftrst Respondent to file a detence and order discovery, and whether the Cour1 c;hould

order lhe Chief Elections Officer to lodge the Form 13 Declaration of the Ftrst Respondents

w•th the Registrar of the Hgh Court for tnspection by the Penboners.

SUBMJSSIONS OF THE PETITIONERS

APPLICABILITY OF CPR 2000

(121 Learned SeniOf Counsel for the Petdioners submtt!ed thai the proVISions of CPR 2000

apply to Elecuon PelltiOils Elecbon Petitions are civil proceedrngs and are tllOOded 10 Part

2 2( 1) They are not excluded by Part 2.2(1 )(e) since the Chtef Jushce has not made any

Rules under Secbon 68(2) of the House of Assembly (Elecbons) Acl

1131 Learned Senior Counsel agreed that Election Petition proceedings are special c11ld

peculiar, thai they do not mvolve ordinal)' CIVIl nghts. He submitted however that there IS

no dCCiSIOO by any or the Courts of the Eastern Caribbean Supreme Coun that decided

that CPR 2000 do not apply to elecliln petition proceedings In the cases of Ethlyn Smsth

BVI HCV 200310097 and f[l!mpton v Pinnard DOM 'iCV 2005/0149Rawllns J (as he

then was) did not determine that CPR 2000 was noi applicable to eleclioo pel•toos but

rather only determined that CPR 2000 could not be resorted to. to make amendments or

JOIIl partiOS to an ele<:llOO petition. The cases decided that tnose proVISIOnS or CPR 2000

that are sncoOSIStent With the statute cannot be applied. Learned Senior Counsel referred

the Court to the deCISIOn of the Court of Appeal or Trinidad and Tobago 111 Peters v The

Attomey·General CA No. 2112001 where the Court found that the rules of the Supreme

Court were applicable

[14) The legal authorities show that historically the Court always made orders for disclosure In

election petition proceedings. The position was altered by Section 26 or lhe UK

Parliamentary Election Act1868 wh1ch provides in effect that in the absence of rules made

under tho Election Act, the principles, practice and rules by which Committees of the

House of Commons had dealt wsth election petitions shall be observed by 1he Cour1 m the

case of election petitions Therefore the UK cases ol Wells v Wren [1880) SCP 0546 and

Moore v Kcnnord 11883) IOQB 290 arc not applicable in Dominica since there is no

SIITidar statutory proVISIOn sn Dom1mca The rules of the Committee of the House of

Convnons never applied to Dorrwuca.

STATUTORY PROVISIONS

[IS] learned Senior Counsel referred the Court to Section 40 or the ConsbtuiiOO of Dom1ruca

and Sections 65 • 68 of the House of Assembly {Elections) Act. and submitted that

nolwlthslanding rules were not made pursuant to SecllOO 68 there are sufficient d•rechons

g1ven Ill the House of Assembly (Eieclions) Act itself for the Coun to detellllllle 1he

procedure lor the dctcrm•na\lon of electJon petitions.

7

[16) Learned Senior Counsel subrnrtted that Section 65 identifies the persons who can institute

an etectJon pell«on. Section 66 provides in effect that election petitions are to be !tied 111

the same manner as proceedrngs rnstituted by Claim Form. The word "tned" m Sectroo 66

IS wide enough to include all the procedural steps tha! are to be taken from the tune

proceedmgs <Jre commenced It mec.JS that CPR 2000 is incorpoo!ted 111o the legiSialive

scheme for determmrng elecbon pelrtlons. Thls reqwres a Respondent to grve a defence

and to make disclosure Learned Senior Counsel referred the Court to the decision of tilt!

Court of Appeal of T nnldad and Tobago 111 Peters v The Attorney-General vmere the

Court found that 1n the absence of the rules. the RSC appfied even though they agreed

that election pet11lons were speoal proceedings.

[17) Learned Senior Counsel further submitted that Section 17 of the Supreme Court Order

empowers lhe Chief Justice and two judges to make rules in relation to the jurisd1CI10n of

!he High Court. One jurisdiction of the High Court is in relation to election petitions. They

can make rules applicable to election petitions subject to any other law including the

House of Assembly (Elections) Act. Since no rules have been made under this Act CPR

2000 which has been made by the Chief Justice and two judges applies to election

pcltlrons.

[18) Learned Senior Counsel further submitted that pursuant to Sectlon 66 all wttnesses would

have to file wttness statements. The Petitioners would need to know what matters to

respond to so rather than the Petrbooers have to see1t ieave to file further w !ness

statements the tna1 would be ronducted m an expeditious manner if the Court ordered the

Respondents to l1le a defence and to diSClose aD documents relevant to the electJOO

pebllon The Coort has the aulhonty to make such ordefs under Secoon 66 Villlch

provides tor an etecooo petition to be hied in !he same manner as procecdlllgs

commenced by cla1m form

INHERENLJURISDtCTtON

[191 I m11ned Santor Counsel submllled that where jurisdiction is vested in a Court but there arc

no rules or procedure established for the exercise of that jurisdiction then the Coun can

exercise rts Inherent JUrisdiction for lhe purpose of regulating lhe proceedings • see Peters

v Attomev·Gonoral, Langley v North-West Water Authority (1991) 1WLR p 697·

Wilson v Church (1878)9 Ch D 552; Attorney-General v Caskill l1882)20 Ch D 519

and lhe texts Halsbury Law 4f> ed. Volume 37 p.59, and Disclosure by MatlheWl> and

Hayek

(20) There c-dllnot be a fair trial if !here is no defence Of discovery 1o ensure lhatlhe prov.~oos

of the Constrrutoo that relate 10 qualrficalion of membefs of the House are grven effect to

The Court must have the power to QTVe directioos to file a defence and for discovery Pnor

to Sechoo 26 of the UK Parliamentary Elections Act. the Court granled drscovery and

Interrogatories

(21) Learned Somor Counsel further submitted that cases such as William v Tenbv (1879)

C.P.D 135 and Duport v Freeman [1968) 11WIR 497 are not applicable lo the present

case since lhese cases deal with the issue of extension of time to file the petrhon oulsldo

of tho stalutory tirno period. They do not lay down general principles applicable 10 electiOn

pohtlons.

(22) The expressro unrus rule rs not applicable to exclude disclosure srmply because the Chrel

Clecbons Offrcer is requrrcd by statute to disclose certain documents pursuant to Section

47 of the House of Assembly (Eiectlons) AcL Paruament never Intended to lllhrbtt the

Court from dOing JUStiCe between parties to an elecOOn petition by prohrbi1Jng drscovery -

see Colhoun v Brooks. Dean v Wilsengrad.

D!SCOVERY BY CHIEF ELECTIONS OFFICER

(23) Learned SeniOr Counsel referred the Court to SedJon 47 of the House of Assembly

(Elections) Act and subnvl1ed that pursuant to Section 47 the Court rs empowered to order

the Chref Elechoos OffJCer to lodge wrth the Registrar of the Hrgh Court the Form 13 whiCh

the F1rst Respondents would have attested to. The documents would show that the

Respondent~ hao ~worn that they were qualified to be elected and thai the document is

relevant to these proceedings to show lhal on the date of nomrnatron the First

Respondents swore falsely to a statutory declaration and therefore their nomination wa<,

•tself 1nvalid and that they were not eligible to be elected.

SUBMISSIONS OF THE RESPONDENTS

[241 learned $elll()( Counsellor the F11'SI Respondents submitted that the JUnsdiCIJon vested 10

the HJQh Court by SeciJon 40 of the Constitutiln is not the ordinary civil junsdiCt!On ol the

Court but a special and peculiar Jllllsdiction This has been established 10 numerous cases

Wlthoul and W1thl0 the tastem Canbbean. learned Sen10r Counsel referred the Court to

several cases Including Theberge v laud!'/ 1876 2 AC. 102 pp. 1()6.108. Patterson v

Solomon [19601 AC 579 at page 589, Ouporte v Freeman [1968) 11 WIR 497 Browne v

Francis-Gibson and Another [1995] 50 WIR p. 143; Russell v Attorney-General of

Saint Vincent and the Grenadines [1995]50 WIR 128, and Eugene Hamilton v Cedric

liburd and Others CA Nos 11 and 11A of 2005.

[25] Learned Senior Counsel further submitted that election petition proceeding are not CIVil

proceedings within the meaning of CPR 2000. CPR 2000 do not apply to elechon petlhon

proceedings - see Etnlvn Smith v Christopher and Supervisor of Elections BVI HCV

2003/0097. Frampton and Others v Pinard and Others DOM HCV 2005/0149 Wells v

Wren [1880) SCP 0546; and Moore v Kennard [1883] 1008 290]. These deos1ons and

the texts Rogers on Elections vol 11 2!P ed. pp 230 to 204; and l eigh and

leMerchant's Election law 4• ed. at p. 219 to 222 establish lhat the e!ectloo Court has

no JUnsdiCbon to change or amend a pelitJon. and that discovery and 1nspectoo are ~m,ted

to elecbon documents under the particular CITCUlllS!allces prescn'bed under Secuon 47 of

the House of Assembly (E:ecllons) Act

[261 leamed Senior Counsel also relied on submissions made by leamed Sen10r Counsel for

the Pet.IK>ncrs who was then Counsel for the Respondents 1n the election pebllon case 111

AntJQua of Dean Jones and v Jacgui Quinn leandro and Others where learned Semor

Counsel submilted as follows

'6 In lhf!ir applications for orders that the parties exchange and serve on the Court w1tness slattlments, the Petitioners rely on Sections 46(2) and 63 of thfl Representation of the People Act, both of which vest in the Election Court '' the

IU

same powers, JUnsdictJon afld authonty" of the High Court 'as 11 the peht1on were an ordinary action Within its jurisdiCtion: It appears that the Pe~lioners w111 contend that the effect of these Sections is to make the Eastern Canbbean Supreme Court CIVIl Procedure Rules 2000 applicable to election petiOOils. induding those rule~ requinng the parties to proceedings to file witness statements. The FIISt Respondent submrts that thiS argument is flawed for the followrng reasons

7 FIIStly Secbons 46(2) en! 63 vest the powers, jurisalCfion and authonty of the Hrgh Court 11 the Election Court in reJalJoo lo peli!ions but stop short of making the full gamut of the CMI Procedure Rules applicable to election pellllOnS In effect the Pcbtoocrs are readtng Secllons 46(2) and 63 as provi<f11g that "the practrce and procedure of the High Court sha) apply to an eiecfion pebbon as If the pebtoo was an ordinary action'. but these sections do not say so

8 Furthermore. any such mterpretation is contradicted by other proVtSoos of the Act wh1ch dear1y envrsron that rules specific to election petitions will have been made Thus, Section 44(3) provides that the pebtion should be in such form as may be prescnbe<l by the Rules of the Supreme Court; SectJon 45(6) prov1des that lhe jurisdiction of the Court to permit the amendment of a pelition should, subject to rules of Court. be exercised by a judge sitting in Court or in chambers; Section 44(2) provides thai security for costs shall be given in the prescribed manner, Section 47(5) provides that an objection to be recognizance shall be made in the prescribed manner; Section 50(1) provides that the notice of the time and place of trial shall be given In the prescribed manner. If it was the intention of the persons drafting lhe legislation lhal the Civil Procedure Rules were to apply an election petition as if it were an ordinary action, there would have been no need to make provisions for the prescribing of the various matters just referred to Indeed. the Pet1tloners would have been required to file Claim Forms, there would have been the need lo schedule Case Management Conferences etc , but none of th1s has ever been thought necessary to take place.'

[271 Learned Senl()( Counsel submitted that 1! is for Parliament to amend the House of

Assembly (EiectJons) Act and expressly Incorporate CPR 2000. Unless this IS done CPR

2000 do not apply Learned Senior Counsel submitted that in ihese 1unsd1Ctrons where the

CMI procedure rules apply 11 was done expressly by legislation. Learned Senl()( Coun~

referred the Court 1o the Secborl 24(3) of the Election Penti:lns Act of JamBICa Secoon 4

of the Elecbon ProceedlllQs Rules of Trinidad and Tobago and Secoon 4 of me UK

Elecbon Peht10n Rules 1960

1281 Sechon ?4(3) reads

"(J) An eleCtiOn petition shall be deemed to be a proceeding In the Sup1e111e Cuurt and, subject to the prov1sions of this Act and to any directions given by the Ctuel

II

Justice, the provisions of the Judicature (Civil Procedure Code) Law and the rules of Court shall so far as practicable, apply to election petitions.'

(291 Section 4 oflhe Tnmdad and Tobago Election Proceedings Rules reads

'(4) Sub,.ect to the proVISionS or the Act and these Rules. the pracbce and procedure of the HIQh Court. II!Ciudmg the rules relabng to 1/le dtSCOvery and lllspec!Jon of documeniS and the delive!y of intermgatones, sha apply to a pe~tJon or reference under these Rules as if it v;ere an ordinary civil acbon w1thin ots runs<hcboo •

[30) Sect1011 4 of the UK ElectJon Pebtion Rules reads:

'(4) Subject to the proviSlOns of the Act and these Rules, the practice and procedure of the High Court, indudlng the rules relating to the d1scovery and Inspection of documents and the delivery of interrogatones, shall apply to a petition under these Rules as if it were an ordinary action within its JUriSdlchon, notwithstanding any different practice. principle or rule on which the Committees of the House of Commons used to act in dealing with election petitions."

STATUTORY PROVISIONS

[311 Learned Senior Counsel submitted that in constru1ng the Sections 66, 67 and 66 of the

Act, the Court must took at the jurisdictional genesis off the Court and the Act as a whole

(321 The first sentence in SectJon 66 cannot be construed as conferring on the HIQh Cour1

JUnsdiCIJOn to deal wnh rnter1ocutory matters. If Parliament had mtended to confer an rnter1ocutory runsdiCIJon then words sim~ar to those used on the Jamaica Elecllons Act

would have been Included 1n the House of Assembly (Elecbons) Act

(33( Pnor to the statutory proVISrons the Court did not have jurisdiction to deal woth e ectoo

pebllons so Parlramentlard down a ·bench mark'" as to tne mode of the mal It would be 111

the same manner as proceedongs commenced by a claim fomn

(34] 'Tnc<f means tho hean(IQ of the election petition. It does not include the 1nterlocuiOI'f

stages such as case management and Pre-trial review that are applicable in c1v11 acl1ons

commenced by Claim Form. The section concludes by stating what the Judge should do at

the conclusion of the tnal.

[35) Section 67 vests in the Election Court certain powers which a Judge would have in CIVil

matters such powers to be exercised as nearly as arcumstances Will admd, thus

rc<:ogOIZlng that the tnal of an elecbon petition will not fit squarely wtth a tnal or a e~va

actoo

[36] Secllon 68 proVIdes for rules to be made by the Chief Juslice alone to be appkable to

etectJon penbons Thus rules made by a different rule makilg authority as is the case w'th

CPR 2000 cannot be appicable to the determination of elecbon pebbons A different rule

mak1119 body cannot make rules for the elecbon jurisdiction of the Court In Peters v The

Attornev-General the statutory proVlSIOOS which the Court considered are nol s1milar to

those 1n Dom1mca and further 10 T rin1dad and Tobago the legislation proVIdes for the same

rule making authonty to make rules for all jurisdictions of the Court.

INHERENT JURISDICTION

[37] Learned Senior Counsel submitted that the inherent jurisdiction of the Court cannot be

used to confer a power that was not expressly conferred by Parliament except in relation to

strike out· sec Nair v !elk [1967] 2A.C. 31 . The inherent jurisdicllon of the CoUll cannot

be used to confer power on an election Court for interlocutory purposes to make orders for

the filing of defence and discovery.

(36) Pnor to the UK 1960 Rules the UK Courts held that they had no jurisdiCbon to order

disclosure • see Wells v Wren and Moore v Kennard

DISCOVERY PURSUANT TO SECTION 47 OF THE HOUSE OF ASSEMBLY ELECTIONS ACT

(39] Learned Counsel for the Ch1ef Elecbons Officer submitted that the Petrtioners h~e f311ed

to adduce ooy eVldeoce as requited by Section 47 and therefore the Order sought should

not be granted

LAW AND COURTS ANALYSIS

APPLICABILITY OF CPR 2000

(40) The relevant proVISIOn IS Part 2 2 of CPR 2000. Par122 of CPR 2000 reads:

"APPLICATION OF THESE RULES 2 2 ( 1) Sub,ect to paragraph 3 these Rules apply to aJ civil proceedongs Ill the Eastem Caribbean Supreme Court in any of the Member States Of T emtories

(2) In these rules "civil proceedings· include Judaal ReVIew and applications to the Court under the Consbtubon of any Member State or T erritOIY under Pan 56

(3) These Rules do not apply to proceedings of the following kind {a) fam1ly proceedings;

(b) Insolvency (Including winding up of compames);

(c) non-<:ontentious probate proceedings,

(d) proceedmgs when the High Court 1s acting as a pnze court: and

(e) any other proceedings in the Supreme Court instituted under any enactment in so far as rules made under that enactment regulate those proceedmgs.

(4) Notwilllstandmg paragraph 3(d) these Rules apply to proceedings when lho High Court is acting as a prize court in Saint Vincent and the Grenadines

(41) The question that ai'ISCS is whether election petitions are civil procee<hngs WTlhin the

meamng of Part 2.2 and whelhef they are excluded under Part 2.2(3). Both sides referred

the Court to a number of d&Cisiolls emanating from the Eastem Canbbean Supreme Court

111cludulQ Ouporte v freeman. Browne v Francis-Gibson· Russell v Attorney-General

of Saint Vmcent and the Grenadines. and Eugene Hamilton v Cednc liburd In a of

these cases the Court has conSlstently stated that the junsdicbon of lhe Htgh Court to

determ.ne election pellllon IS a pecubar and special jurisdiction. It is not a 1unsdoe!Jon that

determines ordinary c1w nghts It IS a parliamentary jurisdiction.

!42) In Browne v Francis-Gibson and Another Chief Justice Str V.ncent Floissac saKI at pp

148-151

'The Jud1c1al Committee of the Privy Counsel has repeatedly affirmed that the jurisdiction conferred on local courts of a British Colony or former Bnltsh Colony to

14

clelcrrmne queshons as to the vaUdity of elections and appointments to the local legislature •s a peculiar and special jurisdiction in at least five respects. F•rsUy. oonstrtubooally the JUnsdiction is a parliamentary junsd1Chon oonvemently ass•gned to the JudlCial'f by !he conslrtutJon or by legislation. II iS not a junsdrctiOfl to detemune mere ord1nary civil righls Secondly, !he parliamentaty questiOns v.1'uch lhe loca' coorts are constitutionally or sla!ulonly aulhonsed to determoe are expected to be determllled expecfrtiously so that the compositiorl of the legislature may bo established as speedily as possible. "llirdly tne legiSlature must have envtSaged that the patllamentary question would be delerm1ned e.thef on ltlelf mcnts or purely on procedural grounds and without heanng evidence Fourthly, because of lhe urgency of the parliamentary question, tile legislature 1s presumed to have 1ntended that the decision of the local original and appelta:e courtS would be unappealable to Her MajeSty in Cooncil Rnally, the presumpoon aga111st appeals to Her M31esty in Council is usually confirmed by 1mpenat or local leg1slabon declanng the declsiOfls of the local courls to be final and unappealable In any event. the presumption IS rebuttable only by spec1fic 1rnpenar or local legislation unequivocally authonZJng such appeals."

(43) In Russell v T~e Attornev-General of Saint Vincent and the Grenadines S11 V1ncent

Flolssac emphasized the distinction between the constitutional junsdiction of the Court

conferred by Section 96 and the Parliamentary jurisdiction conferred by Secl•on 36

Sections 36(2)(2) and (7) of the Saint Vincent and lhe Grenadines Constitution Is in the

same terms AS Section 40(1)(2) and (5) of the Dominica Constitution.

(44] At page 138 Sir V1ncent said:

Accordmgly there are sufficient differences between the constitubonal junsdtehon conferred by Section 96 and the parliamentary junsdJCtion conferred by SectiOn 36 Whereas the constitutional jurisdiction is available to any person wtlh a relevant interest the partlamentary jurisOJCOOn is available only to the Attorney­General and candidates and voters al lhe impugned election. Whereas the constJMIOflal JUnsdiction is regulated by procedural rules (If any) made by the Ch1ef Jusliee the parliamentary jurisd'lCtion is regulated by procedural rules enacted by Parl•amenl Whereas there is an ultimate appeal to Her Ma1esty '" Couool from dllo:;l()IIS g1veo 1n the exercise of the conslitubonal JUnsdiCLon there 1s no such appeal from decisions given in the exercise of the Parliamentary jUOsdiCtiOfl

(45] All of the above mentiOned authonties have stated very dearly that the )UnsdJCtJon ol the

High Court to determ1ne electiOn petitions is not the same as the ordinary CIVIl )unsd•ct1on

nor the constitution3t jurisdiction. The Parliamentary jurisdiction r.onfRrred on the High

Court ls to deal specifically w1th matters pertaining to Par1iament - !he memberships ot the

15

Parliament Such proceedings are not wrthin the ordinary civil proceedrngs whiCh are

regulated by CPR 2000 Indeed CPR 2000 made express provisions lor CPR 2000 to

apply to apphcatoos under the Colls~tullon. Such applications arc 11ctuded as avd

procecdangs rn Part 2 2(2)

[46] Learned Senaor Counsel for the Pebtloners emphasized 1nat none of the cases referred to

by the Frrst Respondents determined that CPR 2000 did not apply 10 elecbon pehbons

The statements by Rawlins J (as he then was) in Eth!yn Smith v Christopher and

Supervisor of Elections BVI HCV 200310097 and Frampton and Others v Pinnard and

Others DOM HCV 200510149 are not definitive statements that CPR 2000 do not apply to

elecbon petitiOn cases

[471 In Ethlyn Smith case, after considering the provisions of Section 63 of the Bntash Virg~n

Islands Election Act which is in very similar terms to Section 67 of the Domrnrca House of

Assembly (Eieclions) Act. the only difference being that rn Section 67 of the Dominica

legislation In addition to the words "subject to the provisions of this Act" lhe words "or any

Proclamation to be made by the President' are included. Rawlins J (as he then was) said

al paragraphs 18 and 19:

"18 It may appear that thrs provision can be relied upon to bnng rnto these proceedrngs the provisions contained in the Eastern Caribbean Supreme Court Crvrl Procedure Rules 2000 {the Rules). These Rules could have been par11Cular1y helpful to the case for the peli1ioners because joinder of parties rs almost an automatiC process par1iculcl1y befone the case management stage In normal CMI procedure Cilher the court of i1s own volition on the applicabon of a party could add new partaes. substitute an existing party or remove a party even at a case management conference Part 19 of the RILes v.ookl regulate ali of the rssues that rela•e to nlJS-10inder of parties raised in these cases

19 The drfhculty lor the pebbonels however is that on the principles enuncaated 111

the elechon cases we cannot go to the Ru:'es.'

(48) In Frampton and Others v Pinnard and Others Rawfrns J (as he then was) said at

paragraph 15 under tile headrng 'General Principles":

' 15 The nonmal civ1l procedure rules in our case. the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (the Rules) are not applicable for example to iorn new partres after \he time provided for the presentation of the petltron, unless the election statutes provide for il. ..

16

And at paragraph 29·

"29 Learned Counsel lor the Petitioner contended that the Rules are applicable 10

these cases to permrt amendments on interlocutOI'f process, the JOinder of add•honat parties and Interrogatories, fOf example. I do not thlllk that the Rules are applicable in etecoon cases 111 Dominica because lhe election statutes do not prov1de for 1t In ar.y event. thiS in my respectful view, IS not the cntJCal consideration here. The question 1s whe!hei tne Coon could pemlll pet•IIOOers n etect100 cases to ClltUmvent lhe mandatOI'{ requtrernent to present and perlect the•r pet,tiOOs Wltlun the time tinuted and embalk upon a lengthy 1ntet1ocuto1y process The autllonties are aga1nst it·

(491 HaVIng revteWed lhe above statements and lhe comext in which they were made t agree

Wlth Learned Semor Counsel IOf lhe Petrtioners that Rawlins J (as he then was) did not

decide that as a general rule CPR 2000 do not apply to election pelit1011s However hav1ng

regard to the numerous cases that have established that the election JUilsdJcbOn 1s a

Parliamentary JUriSdiction which does not deal with ordinary civil rights but rather w1th

matters perta•nmg to Parliament - the membership of Parliament. As Str Vmcent Fto1ssac

said In Rus§ell v The Atlornev-Generat "whereas the constitutional JUnsdiction Is

regulated by procedural rules made by the Chief Justice, the Parliamentary tunsdictlon is

regulated by procedural rules enacted by Parliament." I find that election petitions are not

c1vil proceedings within the meaning of Part 2.2 of CPR 2000.

STATUTORY PROVISIONS

(50) Learned Sentor Counsellor the Petrtioners contended ltlat the provisions of CPR 2000 are

applicable to electJon petrboos by virtue of Sections 66, 67 and 68 of the House of

Assembly (Elections) Act and Sect100 17 of the Supreme Court Order

(51( The startlllQ polllt IS Section 40 of lhe Constitution. Sec!ion 40 reads as lollo-NS

"( 11 The HIQh Court shal have jurisdiction to hear and detemune any questJOO whelher-

(a) any person has beeo validly elected as a Representative Of Senator.

(b)

(c) .. ..

(d) ... .

17

(2) An apphcalion to the High Court for the derermination of any question under subsccbOn ( 1) of this section may be made by any person entitled to vole an the election to whiCh the application relates or by any person who was a candidate at that election Of by the Attorney-General and. if it is made by a perron other than the Attorney-General. the Attorney-General may intervene and may then appear or be represented il the p.oceedrngs.

(3)

(4) .

(5) The orcumstances and matter in which and the imposatoo of condmons upon which any appliCabon may be made to the Hign Court for the determanatiOil of any question under thiS section and the powers, practice and procedure of the HJ9h Court 10 relabon to any such appf~eation shall be regulated by such provrs1011 as may be made by Parliament

(6) ...

(7) ..

(8) .. ..

[52] Section 40 confers [urisdictlon on the High Court to hear and determine any question

whether In subsection (1 )(a) a person has been validly elected as a Representative of the

House. Subsection (2) outlines who may make an application under subsection (1)(a).

those persons rnclude any person who has been a candidate at the election In thiS case

both of the Petrt1011crs were candidates rn the election held on December 18, 2009 Whale

subsectJon 5 provides that the powers pracbce and procedures of the High Coun when

heanng such applicatiOns shal be an accordance WTlh provisions as are made by

Panaamcnt

[53] The House ol Assembly (Eiecbons) Act IS a pre-existing Act which deals wth the elecbon

of members to the House The relevant sections are Sections 66 - 68 They read as

lot lows

"66 Every election petition shall be tried before the High Court an the same manner as a sua! commenced by a claim form. AI the conclusiOn of the tnal the Judge shall determine whether the member of the House of Assembly whose return or election IS oompta1ned of or any and what other person was duly rcturru.'ll or elected, or whether the election was void. and shall certify the determination to the President and, upon the certificate being given, the determination shall be

IK

f1nal; and the return shall be confirmed or altered, or a wnt for a new elecllon shall be issued, as the case may require, in accordance with the determmabon

67. At the tnal of an elecboo pelttion the Judge shan. subjeCt to the prov1soos of th1s Act or of any Proclamation to be made by the President. have the same powers, jurisdiction irld authority. and Wl1nesses shal be subpoenaed and swom 1n the same manner as nearly as circumstances wi'll adrnrt. as 111 a tna1 of a c:M actoo111the High Court. and shal be subject to the same penalties tor pei)Ury

68 { 1) The foloWlng proVISions shall apply with respect to the presentallon of an eleciiOO pebbon.

(a) The petition shal be presented within twenty-one days after the return made by the retum1ng offioer of the member to whose elechon the pe~hon relates. unless II concerns an allegabon of corrupt pracbces upon the mak1ng of the return ot election and specifically aneges a payment of money or other reward to have been made by any member. or on h1s account, or w1th his privity, since the time of the return, 10 pursuance or In furtherance ol the corrupt practices, in which case the pet1t1on may be presented at any Ume wiltlin twenty-eight days after the dale of payment,

(b) AI the time of the presentation of the petilion or within lhroe days afte1wards, security for the payment of all costs, charges and expenses that may become payable by the petitioner-

(i) To any person summoned as a witness on his behalf: or

{ii) To the member whose election return is complamed of, or to any other person named as a respondent in the peution,

shaD be given on behalf of the petitioner

(c) Tho secunty shal be an amount not exceealllg twelve hundred dollars and shal be gJVen by recogniz.ance io be entered 1nto by any numbt:r of suretteS not exceedJOQ lour approved by the RegiStrar of the HIQh Court ex by way of deposit of mooey in the liigh Court, oc partly Ill ooe way and partly in the other.

(2) Rules not 1nconsrstent Wllh the proVISions of this Act or any law as to tile depos1t of secunty and the pracbce and procedure for ihe serviCe and heanng of electoo pelltions and matters incidental thereto. may be made by the Chief Jushce.·

19

(54] II 1S agreed by all that the Chief Justice has not made rules pursuant to Section 68(2)

(55] The quesbon that anses IS in the absence of rules made by the Chief Justice pursuant to

Sect1011 68(2) does CPR 2000 apply to the determination of election pebtions

(56] As stated earlier Sect1011 40(5) of the Constitution of Dominica speafically proVIdes that the

powers pracbce and procedure or the High Court when determining an elecllOn pebtJOn

shall be regulated by such proVlSlOI\s as may be made by Parliament. SectiOI'Is 66, 67 and

68 of the House of Assembly (EiecOOns} Act set out the powers and procedure or the H1gh

Court in determ1mng electiOn pebbons

(57] The leg1slauve scheme established by these provisions is as follows, Section 66 prov1des

In effect that election pet1t1ons shall be tried before the High Court in the same manner a

suit commenced by Claim Form. I agree wilh tile submission of Learned Senior Counsel

lor the First Respondents that Section 66 relates to the mode of trial of election petitions,

that they are to be tried in the same manner as proceedings commenced by Claim Form

The amendment made by the Interpretation and General Clauses (Amendment) Act 2000

docs not 1n any way change the effect of Section 66. Section 66 must be read in its

entirely The section must be read in context. When read as a whole tned" means the

actual heanng of the election pelltoo. II does not include the interlocutory process outhned

1n CPR 2000 that Is appliCable to the orchnary civil proceedings AI the conclusion ot that

heanng tho Judge IS requ1red to certify the detenrunaOOil to the Parliament

(58] SectiOn 67 provides for the Judge at the trial to have powers, junsdiCbon and authonty to

summon Wltnesses and have them sworn in the same manner as nearly as orcumstances

will admt as 111 the tnal of a civil acOOil The same penalties for perjury apply

(59] Secbon 68 proVIdes for the bme within which tile erectlon penhon must be presented

secunty for costs and the manner in which it should be given, and that Rules not

inconsistent with the above are to be made by the Chief Justice.

[60) As stated earl1er the Ch1ef Justice has not made rules pursuant to Seclion 68(2) Learned

Senior Counsel for the PebtJoners contended that in the absence of rules made under

Secbon 68 CPR 2000 appl1es by vitue of the provision of Section 17{1) of the Supreme

Court Order whiCh reads as follows:

"17(1) SubJect to the proVISIOns of this Order and any other law 1n IO«:e 1n any of the States the Cluef Justice and any other two Judges of the Supreme Court selecled by hun may make rules of Court for regulating the practiCe and procedure of the Court of Appeal and lhe High Court in relation to their respectrve JUnsdiCtiOn and powers 1n respect of any of the States.·

[61) Section 40(5) of the Conshtuboo specificaVy provides for the prachce and procedure lor

determ1nahon of election pebi.JOns to be by rules as may be made by Parliament Seclton

68(2) specifiCally provides that the rules are to be made by the Chrel JustiCe CPR 2000

was made by the Ch1ef Justice and two Judges as is provided in the Supreme Court Order

Parliament In Sect1on 68(2) havmg specifically made provision for the rules applicable to

election petitions to be made by the Chief Justice, rules made by another rulo makmg

authority as Is the case w1lh CPR 2000 cannot be applied to election petiltons.

[62) I note further that m the jurisdictions where CPR applies it is as a result of express

statutory provisions In Jamaica Seclton 24(3) of the Election Petitions Act read

"(3) An election petition shall be deemed to be a proceeding in the Supremo Court and subject to the provisions of this Act and to any directions given by the Ch1el Justice the provisions of the Judicature (Civil Procedure Code) law and the rules of Court shall. so far as practicable apply to election petition.'

[63] Sect100 4 of the T Midad and Tobago Election Proceelflll!}S Rules provides as follows

4 Sub)E!CI to the proVISIOOS of the Act and these Rules. the practJCe and procedure of the H19h Court. including the rules relating to d1sco..ery and 111spec110n of documents and the delivery of interrogatones shal apply to a pehtoo « referenoe under the Rules as if d were an Old1nary CIVIl acboo Wlthin 1ts JUnsdJCliOO •

[64 J Secbon 4 of the UK Elecllon Pebhon Rules reads.

'4 Subteet to the provisiOns of the Act and these Rules, the practice arid procedure of the High Court, including the rules relating to lhe discovery and inspection of documents and the delivery of interrogatories shall apply to a pet1hon under these rules as 1! 11 were an ordinary action within its juriSdiction,

21

notwithstanding any different practice, principle or rule. on which lhe Comm11tee of the House of Commons used to acl in dealing with election petition.'

165} Learned Semor Counsel for the Petitioners contended that while legiSlation has been

passed 1n TMidad and Tobago. Jamaaca and the United Kingdom which made express

prov1s100s for the rules to govern election petitions. in Dominica Parliament has a ready

provided for the 11\COIJ)OlatiOO of CPR 2!XXJ [Its predecessor) through Sec!IOO 66. I

respectfully diSagree If it was the 1ntenbon of the Pat1Jament of DominiCa to Incorporate

CPR 2000 through Secbon 66 then Pacliamenl would not have expressly made proVISIOO

Ill SectJon 68(2) for the Chief Jusbce to make rules. Bearing in mind CPR 2000 and 11S

predecessor were made by a drfferent rule making autnonty. As stated eatl.er the

amendment by the Interpretation (Amendment) Act 2000 did not in any way change the

effect or Sect1on 66.

INHERENT JURISDICTION

]66] The Learned Authors of Hatsburv Laws 4111 ed. vol 37 at paragraph 14 outhned the nature

of the inherent jurisdiction of the Court as follows:

·unlike all other branches of law, except perllaps cnmmat procedure there ts a source ollaw which is peculiar and special to civil procedure law and is commonly called 'the inherent jurisdiCtion of the court.' In the ordinary way lhe Supreme Court. as a Supenor Court of record, exercises the full plenitude of judiCial power In all matters concerning the general administration of justice with1n 1ts lenilorial hm1ts, and enjOys unrestricted and unlimited powers in all matters of substanltve taw both CIVtl and cnmtnal, except in so far as that has been taken away 1n unequivocal terms by statutory enactment The tenn inherent junsdictoo • s not used 1n contradiSiillCbon to the jurisOx::tion of the coun exercisable at common law or conferred on rt by statute or rules of court. for the coun may exertJse tiS lllhcrent jurisdiCtion even 10 respect of matters which are regulated by statute or rule of court The JUnsddlon of llle court which is cornpnsed w•lh n the term tnherent IS that which enables rt to fulfil itself property and effecllvely as a coun

of law The 0vemd1ng feature of the inherent jurisdiction of !he coun IS that It IS a part or procedural taw boll! cMI and Climinal and not a part of subs1annve law rt IS exerCISable by summary process, withou1 a plenary inal; 1! may be tnvoked not only In relahon to partJes tn pending proceedings, but in rclabon to any one whether a party or not. and in relation to matters not raised in the litigat•on between the part1es; 11 must be cfiStinguished from the exerc1se of tud•c1al dtscrel10n. and 11 may be exercised even in circumstances governed by rules of court. fhe Inherent iurisdiclion of the court enables it to exercise (1) control over process by regulating its proceedings, by preventing the abuse of process ana by compelling tile observance of process: (2) control over persons, as lor example

22

over m1nors and mental patients, and officers of the court. and (3) control over the powers of 1nferior courts and tribunals.

In sum. 11 may be said thatlhe inherent jurisdiction ollhe court is a virile and VIable doc1rine. and has been defined as being lhe reserve or fund of powers, a residual source of powers. Which lhe court may draw upon as necessary Whenever 111s JUst or equitable to do so. in particular to ensure the observance of the due process of law to prevent mproper vexation or oppresSIOn, to do JUStiCe

between the parteS and to secure a fair trial between !hem.

[67) It ts settled law that where JUnsdtCborl has been conferred by starute but matters of

procedure lor lhe exetcase ollhal jUlisdJCbon have not been prescribed lhen the Court has

an Inherent 1unsdiction to direct the procedure to be adopted - see Jaundao v The

Attorney-General of Guyana (1971] A.C. 972; Port Construction and Others v Seamen

and Waterfront Workers Trade Union [1972] 21 WIR p. 505.

[68] In Langley v North West Water Authority [1991]1WLR 697, Lord Donaldson said at p

702:

·Although there Is no statutory authority for making local practice directions, none is needed because every court has inherent jurisdiction to regulate liS own procedures, save in so far as any such direction is inconsistent with statute law or statutory rules of court •

[69] The authonhes mentioned eanier such as Russell v The Attorney-General and

Frampton v Pinnard all emphasiZe that lhe main purpose of the special jurisdichon g1ven

to the High Court tn election petiiK>n matters is to ensure that the membersh1p of

Parliament 1s detetmtned exped1ll0usly

[70) n Frampton v Pinnard Rawlins J (as he then was) said at oaragraph 16

16 Elt;ctJon challenges should be mounted before a new legrslature St:S and beg111s rts WQII( or as soon as possible thereafter in order that the legiSlature mtghl be defin tively lawfully consbluted It goes to the issue or legtllmacy Electora laws and the•r UlterpretabOn by the courts are intended to facditate thiS •

(711 The Parliament of DomtniC3 did no1 provide for there to be an intenocutory process which

included discovery. Scchon 40 of the Constitutioo and the House of Assembly (Eiechons)

Act show that the legislal1ve scheme established lor the determ1nahon or elect100 pelll•ons

does not Include an Interlocutory process. The non-inclusion of the Rules of Court with 1\s

Interlocutory process was a deliberate design by Parliament. The High Court therefore

cannot exercise its Inherent jurisdiction to create a new scheme or vary the scheme

established by Par1tament

(72) There has been much diSCUSSClll by both sides of the case Peters v The Attorney·

General of Trinidad and Tobago However having reviewed the case. I find that 1t 1S not

apphcable to the present case. Peters was deCided on the specffic legislatrve provisoos 11

T nllldad and Tobago whiCh are qwte different from the leg1sla!Jve prov~soos 111 [)c:)m.ntea

Peters conflll'Tled the pnnaple enunciated m Jaundoo v The Attorney Gene~t of

Guyana that where the junsdiCbon has been g1ven !o the Court that factlllal rules have not

been made would not prevent exerase ollhe jurisdiction

(73] In ~the Court did not exercise its inherent jurisdiction. Chief Justice De Ia Bast1de

(as he then was) stated this very clearly at page 30·

• ... This the Rules Committee has not to date done. It is nevertheless, qu1te feasible in my view for lhe parties to election proceedings (and tho Court) to travel that routo with the assistance or (a) the RSC, 1975 (in so tar as they are by their terms and content applicable to election proceedings), (b) the policy and intent ot Parliament which can be gleaned from the prov1sions of Part VI and must govern the way In which those provisions are implemented, and (c) the rules of natural justice Despite the existence at present of some grey areas left by the failure ot the Rules Comm11tee to draw up a procedural code specifically tor election proceed1ngs, I th1nk that the High Court is quite capable of rece1vtng and determining representabon petrtions. It may be seen as doing so by drawing on tis lllherentjUnsdiChon bul in my view it is simply exercising the JUnsOICliOil gtven 11 by Section 52 ot the Consbtubon and Section 106 of the RP A with assistance from the three sources I have identified above:

(74) Hav1ng reV~BY.'ed the cases of Wilson v Church and Attorney-General v Caskill referred

to by Learned Senior Counsel for the Petitioners. I do not find that these cases advance

the Pe~boners' case The deaslon to order interrogatories was not based on the exerctSe

of the Inherent junsdiCbOO ol the Court but rather on the UK Rules of Court Order XXXI In

Wilson v Church the Court explamed that h!Stoncally discovery was only granted 1n the

Courts ot Equity DISCOvery was first granted by the Common Law Courts by legiSlatiOn

In Disclosure by Matthews and Malek 2"" ed. 2001 p.B paragraph 1 10 the Learned

Authors 1n outlin1ng the history of discovery stated:

"lhe Evidence Act 1851 and the Common law Procedure Act 1854 for the first t1me conferred powers on the common law courts to order general d1scovery and 10terrogatones. and although these were based on !he practice in Chancery, they were exercised somewhat more narrow1y than under that practice •

[75) In all of the cases where diSCOvery has been Ofdered 11 has been pursuant to statute

have not been referred 10 any case where discovery oc the general lllter1ocutory process

has been lllCOI'porated 11110 the elecoon petition process by way of the 11\herenttunsdiCtoo

of the Court.

1761 CPR 2000 does not make 1t mandatory for a defendant or a Respondent to file a defence

Rather 11 recognises that a defendant has a right to file a defence and regulates the bmc

within whk:h he must file the defence. the manner in which he must do so and the

consequences if he falls to me the defence with1n the time specified.

[77) Parl1ament not having Included discovery and indeed the interlocutory process in the

determination or election peUtions it would be wrong for the Court by way of its inherent

Junsdicllon to Include it. The election petitions could be determined 1n a la1r and JUSt

manner without the application of the interlocutory process.

[78) I agree that the Court can use tis inherent jurisdiction to determine the manner whiCh the

evidence of the Witnesses would be presented so 1hal the matter could be dealt Wtth

expeditiously 1n keep1ng w11h the legiSlative scheme and 1ntenlloo of parliament

DISCOVERY PURSUANT TO SECTION 47 OF THE HOUSE OF ASSEMBLY IELECTIONSJ.AC!

[79) The relevant proVISIOOS are seciJOI144(1) and Section 47(1) and (2) of the House of

Assembly (Eieclloos) Act The Parties do not <fJSpUte lhat Form 13 is an eleclloo

document referred to 1n SeciJon 44(1). Section 47(1) reads as follows·

'47(1) The Ch.el EleciJOns Officer shal keep the election documents referred to 111 Sect1011 44(1) in safe custody and shaD allow no person to have access to them. but If an elecbon petitiOn has been presented questioning the vahdtly of any electiOn or return the Chief Elections Officer shall. on the order of a Judge of the High Court dehver to the Registrar of the High Court the documents retat1nq to the election \hat is in dispute. llowever, after the expiration of twelve months from thf'

25

day of any election it shall be lawful for the Chief Elecbons OffiCers to cause the said docoments used at the election to be burnt

(2) No such clecbon documents in the cuslody of the Chief Elections OffiCei'S shall be Inspected or produced except under the order of a Judge of the High Court. and an order under thas subsccbon may be made by any such Judge on h s betng sabsfted by eVIdence on oath that the inspection or production of the eleebon docoments is requared for the purpose of institutlng or mamtaming a prosecuoon for an offence Ill relabon to an election or for the purpose of a petibon wfl1ch has been filed quesbon~~~g an election or return.

[80) The effect of Sectaon 47(2) IS that before a Judge makes an order reqUtnng the Chref

Electaons Officer to produce a docoment pursuant to subsection 47(1) the Judge must be

satisfied by ev1dence on oath that the inspection or productiOn, in the present case. IS for

the purposes of a pet1t1on which has been filed questioning an election or return

[81 1 Having examined !he affidavits of the Petitioners, when the affidavits are read in their

ent1rety, I am satisfied thal lhe production of the Form 13 is for the purposes of tho petit1on

which has been filed by the Petitioners questioning the validity of the election of the First

Re~pondents having regard to the provisions of Section 32(1) of the Constttulton of

Domlntca

(82] In conctusaon I find that CPR 2000 do not apply to the detenminahon of the election

peblions 1n Domnaca CPR 2000 is not incorporated into the leg1slabve scheme for

detenmming elecbon peubons as set out U'l Section 40 of the Constitubon of Domtntca and

the House of Assembly Act. I also find that the Court cannot use 11s mherent JUnsdiC!Ion to

grant the reliefs sought by the PebliOilers agamst the Farst Defendants t am sausfled that

the Clllcf Etecbons Offtcer should produce the Form 13 attested to by the FIISt

Respondents to the RegiS~ta- of the HIQh Court for inspedJon by the PetitiOners

1831 It is ordered

(1) Tho apphcal!On in relation to the FilS! Respondents is dismissed

(2) The Choef Elecbons Officer shal deliver to the Registrar of lhe H.gh Court

the Form 13 Declaration of the Rrsl Respondents Wtlhll'l seven days ol the

date of this Order

(3) The Registrar of lhe tfgh Court shaD permit the Pebbone~ and or lherr

Attorneys at Law access to and copies of the Form 13 DeclaratJon

delivered by the Ch.ef Bections Officer pu~uant to paragraph (2) of th1s

Order Within seven days of receipt of the said documents

(4) Each party shall bear their own costs

... , .. ~ ...................... .. Ge~-Thom HIGH COURT JUDGE