Lindsay Fitz-Patrick Grant Respondent/Petitioner v Glen Fitzroy Phillip Applicant/1 Respondent Leroy Benjamin Applicant/2 Respondent Heskith Benjamin 3 Respondent William Dore 4 Respondent Myrna Walwyn 5 Respondent [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judgment Date | 04 November 2010 |
| Judgment citation (vLex) | [2010] ECSC J1104-1 |
| Docket Number | Claim No. SKBHCV2010/0026 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 04 November 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. SKBHCV2010/0026
In the matter of the National Assembly Elections Act, Cap. 162 of the laws of Saint Christopher and Nevis
And in the matter of the Constitution of Saint Christopher and Nevis
And in the matter of an Election for the Electoral District/constituency 4 held on 25 January 2010
Mr. Terrence Byron, Mr. Vincent Byron and Mr. Delara McClure Taylor for the Respondent/Petitioner
Dr. Henry L.O.S. Browne for the Applicant/1 st Respondent
Mr. Anthony Astaphan S.C. and Mr. Sylvester Anthony instructed by Mr. Arudranauth Gossai for the Applicant/2 nd Respondent
Mr. Arudranauth Gossai for the 3 rd, 4 th and 5 th Respondents
Election Petition — allegations of bribery, treating and corruption and other illegal practices — applications to strike out petition under statutory and inherent jurisdiction — no election rules in St. Christopher & Nevis — whether English rules of practice and procedure apply — whether Civil Procedure Rules 2000 apply
Form and contents of petition — material facts must be pleaded for bribery — Jacqui Quinn- Leandro and Others v Dean Jonas referred to-
Part V of National Assembly Elections Act, Cap. 162 — Election Petitions, sections 82–87 referred to — Section 36 of the Constitution
General elections were held in the Federation of St. Christopher & Nevis on 25 January 2010. The petitioner and Glen Fitzroy Phillip ("the 1 st respondent") were rival candidates for the Constituency known as Saint Christopher #4 ("Constituency #4").
On 26 January 2010, the Returning Officer in Constituency #4 declared that the 1 st respondent had obtained 1185 votes and the petitioner 1156 votes. Accordingly, the petitioner lost the candidacy in Constituency #4 to the 1 st respondent who was declared the winner by 29 votes.
On 13 February 2010, the petitioner filed this election petition citing breaches of the National Assembly Elections Act 1 ("the Elections Act") and of the St. Christopher and Nevis Constitution ("the Constitution"). He prayed that " it may be determined that the said Glen Fitzroy Phillip was not duly elected and that the election was void".
On the 15 th March 2010, the 1 st and 2 nd respondents applied to strike out the Petition in its entirety on a number of general and specific grounds.
HELD:
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(1) The election jurisdiction is such a "special and peculiar" jurisdiction: Patterson v Solomon [1960] AC 579 that "election proceedings" do not fall within the definition of "civil proceedings" under CPR 2.2. Accordingly, without express application by the Election legislation, the Civil Procedure Rules 2000 do not apply.
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(2) Paragraphs 16, 22 and 23 (c) alleged misconduct against the Government. Accordingly those paragraphs are struck out for failing to join the Attorney General: Ethlyn Smith & Others v Delores Christopher and Others BVIHCV2003/0097 (Rawlins J) Judgment 23 rd July 2005 (unreported) applied.
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(3) Dishonesty in any civil case, electoral or otherwise, must be clearly and specifically pleaded with a level of precision that is not required in pleading a mere irregularity; and there is no material difference
between pleading bribery and treating: See Rawlins CJ in Jacqui Quinn-Leandro and Others v Dean Jonas and Others HCVAP 2010/018 (CA) Judgment 27 th October 2010 (unreported) and Ferdinand Frampton DOMHCV 2005/0149, 150, 151, 152 and 154 (Rawlins J) Judgment 28 th October 2005 (unreported) followed. The petitioner pleads general allegations of bribery and treating which are insufficient to meet the requisite standards for material facts and particulars. Consequently these allegations are struck out for failing to disclose a reasonable cause of action. -
(4) Paragraphs 1 —23 are not paragraphs jointly or severally which could result in the avoidance of an election.
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(5) An illegal practice must refer to a practice defined as such in section 99 of the Elections Act, alternatively, it may refer to an election irregularity or offence during the conduct of the election which could have affected the result of the election: Radix v Gairy (1978) 25 WIR 553 followed. The allegations of making false statements about the petitioner's nationality and the allegations of illegal practices, misconduct or irregularities against the 2 nd to 5 th respondents, namely issuing illegal instructions prior to polling day failing to allow access to National ID cards, failing to require an oath from voters objected to, and failure to record objections to voters on polling day are struck for failing to constitute illegal practices under the Elections Act, or failing to constitute election irregularities or offences during the conduct of the election which could have affected the result of the election.
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(6) The allegations of procuring prohibited voters and persons to vote, failure to implement adequate arrangements to hear and determine objections to the Voters List, and the illegal registration policy are struck out for failure to disclose an irregularity during the conduct of the election which could have affected the result. There is a comprehensive statutory regime to address these matters which should have been challenged before the election: Radix v Gairy (above) and Frampton (above) followed.
This is an application to strike out in its entirety an election petition instituted by Lindsay Fitz-Patrick Grant ("the petitioner") on 13 February 2010.
The petition arose out of the General Elections that were held in the Federation of St. Christopher & Nevis on 25 January 2010. The petitioner and Glen Fitzroy Phillip ("the 1 st respondent") were rival candidates for the Constituency known as Saint Christopher #4 ("Constituency #4").
On 26 January 2010, the Returning Officer in Constituency #4 declared that the 1 st respondent had obtained 1185 votes and the petitioner 1156 votes. Accordingly, the petitioner lost the candidacy by 29 votes to the 1 st respondent. The 1 st respondent was therefore declared the winner.
On 13 February 2010, the petitioner filed this election petition citing breaches of the National Assembly Elections Act 2 ("the Elections Act") and of the St. Christopher and Nevis Constitution ("the Constitution"). He prayed that " it may be determined that the said Glen Fitzroy Phillip was not duly elected and that the election was void."
The remaining respondents were various election officials. Leroy Benjamin ("the 2 nd respondent") was the Supervisor of Elections whose duty was to exercise general supervision over the registration of voters in elections of parliamentary representatives and over the conduct of such elections. 3 The 3 rd to 5 th respondents were the Chairman and the Members of the Electoral Commission respectively whose function was to supervise the 2 nd respondent in the exercise of his functions in supervising the registration of voters and the conduct of the election in Constituency #4 4. To be succinct, the 3 rd to 5 th respondents played no active role in these proceedings.
The election petition was duly served upon each of the respondents as well as the Returning Officer for Constituency #4 and the Attorney General. However, neither the Returning Officer nor the Attorney General has been joined as parties to these proceedings.
On 15 March 2010, the 1 st respondent and the 2 nd respondent (whom I shall refer to together as "the respondents") filed virtually identical applications seeking to strike out the election petition in its entirety.
The applications to strike out the election petition were made pursuant to the statutory and inherent jurisdiction of the court. The court can strike out a statement of case or part of it if it discloses no reasonable grounds for bringing or defending a claim or where the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings.
Striking out is often described as a draconian step, as it usually means that either the whole or part of that party's case is at an end. So, the power to strike out pleadings at a preliminary stage will be
In Citco Global Custody NV v Y2K Finance Inc, 6 Edwards JA dealing with an application to strike out made pursuant to the Civil Procedure Rules, 2000 ("the CPR") stated that "on hearing an application made pursuant to CPR 26.3 (1)(b), the trial judge should assume that the facts alleged in the statement of case are true.
In Dean Jonas and others v Jacqui Quinn Leandro and Others, 7 Blenman J. in dealing with similar applications to strike out parts of election petitions stated as follows:
General Observations: Jurisdiction to strike
[95] The jurisdiction of the Election Court is special and exclusive in the determination of questions as to elections: see Gladys Petrie et al v Attorney General et al 14 WIR 290, 293 per Bollers CJ. In fact, it is a parliamentary jurisdiction that is conveniently assigned to the judiciary by the Constitution and the Legislature: see Randolph B Russell et al v The Attorney General for the State of Saint Vincent and the Grenadines 50 WIR 127 at 137.
[96] It is the law that a petition or a pleading would be struck out if it discloses no reasonable cause of action. The Court in deciding whether to strike out a petition or parts thereof is mindful of the fact that it should be slow to drive persons from the seat of...
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