Eugene Hamilton Petitioner v [1] Cedric Liburd [2] Leroy Benjamin [3] Wayland Vaughn Respondents [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | ALLEYNE, C.J. [AG.],Justice of Appeal,Brian Alleyne, SC,Chief Justice [Ag.],Michael Gordon, QC,Denys Barrow, SC |
| Judgment Date | 03 April 2006 |
| Judgment citation (vLex) | [2006] ECSC J0403-3 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 03 April 2006 |
| Docket Number | CIVIL APPEAL NOS.11 AND 11A OF 2005 |
IN THE COURT OF APPEAL
The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]
The Hon. Mr. Michael Gordon, QC Justice of Appeal
The Hon. Mr. Denys Barrow, SC Justice of Appeal
CIVIL APPEAL NOS.11 AND 11A OF 2005
CIVIL APPEAL NOS.12 AND 12A OF 2005
CIVIL APPEAL NOS.13 AND 13A OF 2005
These appeals and counter-appeals arise in consequence of an interlocutory order made by Justice Davidson Baptiste in a series of election petitions filed by the respondents following the general election held in the Federation on the 25th day of October 2004, in a consolidated hearing, the order being dated the 28th day of July 2005. This court had given the appellants leave to appeal, and the appeals and counter-appeals were also being heard together. At the conclusion of the appeal we dismissed the appeal, and promised to give reasons in writing, which we now do.
At the commencement of the hearing of the appeals learned counsel for the respondents took an objection in limine to the jurisdiction of the court to hear and entertain an interlocutory appeal in election petitions. The skeleton arguments on this issue were filed only on March 18th, before which neither the court nor the appellants had notice of the intention to make this objection in limine.
Learned counsel for the respondents argued, in limine, that the right to appeal requires legislative authority, and that in the absence of statutory authority therefor the Court of Appeal cannot properly entertain an appeal.
In consequence, learned Queen's Counsel for the respondents submitted that the court has no jurisdiction to entertain an appeal against an interlocutory order on an election petition. Counsel submitted that the appellate jurisdiction of the court is conferred by statute and in the absence of statutory authority neither the High Court nor the Court of Appeal can create such a right.
The jurisdiction of the court to hear and determine any question whether any person has been validly elected as a Representative to the National Assembly of the Federation is conferred by section 36(1) of theConstitution of the Federation of Saint Christopher and Nevis1, and the right of appeal is addressed by subsections ( 6) and (7) of the same section. These subsections are reproduced in full.
Section 36 ( 6) and (7) read:
(6) An appeal shall lie as of right to the Court of Appeal from any final decision of the High Court determining any such question as is referred to in subsection (1).
(7) No appeal shall lie from any decision of the Court of Appeal in exercise of the jurisdiction conferred by subsection (6) and no appeal shall lie from any decision of the High Court in proceedings under this sectionother than a final decision determining any such question as is referred to in subsection (1) of this section.2
Learned Queen's Counsel for the respondent submitted that the jurisdiction conferred on the court by section 36(1) of the constitution is a special jurisdiction separate and distinct from the ordinary jurisdiction of the High Court in civil matters conferred by section 7(1) of theEastern Caribbean Supreme Court (St. Christopher & Nevis ) Act3 (hereinafter the Supreme Court Act), and of the Court of Appeal under section 31 of that Act. Counsel asserted that section 82 of the Constitution and Elections Act (renamed the National Assembly Elections Act and hereinafter referred to as the Elections Act)4 makes provision as to who may present an election petition, and section 83 contains procedural provisions. Neither section
confers jurisdiction. Sections 86A and 87 make provision with respect to how the jurisdiction may be exercised. None of these sections purports to confer jurisdiction on the court.In support of this proposition counsel relied on the case ofPatterson v Solomon [1960] 2 All E.R. 205, which emphasized the special nature of the jurisdiction, and that the principles there adumbrated do not depend on whether or not the jurisdiction was formerly exercised by the legislature.
Learned Queen's Counsel submitted that sections 7 and 31 of theSupreme Court Act confer jurisdiction in civil matters on the Supreme Court (the High Court and the Court of Appeal). Counsel submitted that this jurisdiction clearly does not include the jurisdiction in matters concerning 'any question whether any person has been validly elected as a Representative'6, a jurisdiction which falls squarely within the provisions of section 36 of the Constitution, and which the legislature cannot, and has not purported to, usurp under the ordinary civil jurisdiction of the court.
Counsel for the respondent contended that the limitation on appeals provided by section 36(7) of the Constitution cannot be overridden by legislation other than legislation which effectively and explicitly amends the Constitution. Section 96(7) of the Constitution clearly places the jurisdiction conferred by section 36 outside the pale of the regular civil jurisdiction of the High Court, and section 98 of the Constitution is explicitly made'subject to section 36', thus limiting the appellate jurisdiction of the Supreme Court within the boundaries established by section 36.
Learned Queen's Counsel submitted that there is good reason for the Constitutional provisions making it imperative that election petitions be disposed of speedily, by limiting the right to appeal and thus eliminating opportunities for delays caused by legal maneuvers. As was said inDa Silva v A.G. of Ceylon7,the subject matter is
such that the determination must be final, demanding immediate action by the proper executive authority and admitting no appeal. Counsel asserted that this case before us illustrates the point, being a case where the question of membership of the legislature remains in question some 18 months after the election, by reason of procedural appeals, a clearly highly undesirable situation.8In response, Mr. Anthony Astaphan, S.C., lead counsel for the first appellants in the appeals, submitted that the jurisdiction of the High Court under section 36 of the Constitution is a parallel jurisdiction with that under the Supreme Court Act. Counsel referred in particular to subsections (1), (5), ( 6) and (7) of section 36. Counsel submitted that under the parallel jurisdiction all the rights and remedies of the High Court available under its ordinary civil jurisdiction are available in addition to the rights and remedies provided for under the section 36 (Constitutional) jurisdiction.
Learned senior counsel submitted that, unlike the Constitutions of Trinidad and Tobago and some others, the Constitution of the Federation does not provide explicitly that questions arising under section 36(1) shall be determined under a law prescribed by Parliament. Counsel submitted that section 36(1) provides for the enforcement of the provisions of section 28 and other questions connected with membership of the National Assembly or the Nevis Island Assembly. He contended that in relation to the Elections Act, matters relating to the constitution fall under the Constitutional...
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