Stevens v Walwyn & Harris

• Jurisdiction: Saint Kitts and Nevis
• Judge: St. Bernard, J.
• Judgment Date: 26 July 1967
• Neutral Citation: KN 1967 CA 4
• Docket Number: No. 1 of 1966
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 26 July 1967

The West Indies Associated States Supreme Court.

Bernard J.A (President),

Bishop, J.A.

Peterkin, J.A.

No. 1 of 1966

Stevens

and

Walwyn & Harris

Appearances:

Sir Geoffrey Boon for the appellant.

Adams with Brooks for the respondent Walwyn.

Archibald for respondent Harris.

Statutory construction - Section 83 Constitution and Elections Ord., Cap. 162 — Petitions — Conditions precedent to a valid petition.

Facts: To be provided whether the trial judge's decision was right in law. Court upheld the trial judge's findings that section 83 of the Constitution and Election Ordinance cap. 162 are peremptory and impose conditions that must be complied with before the petition can be considered to have been properly presented as required by law.

St. Bernard, J.

1 JUDGMENT OF THE COURT DELIVERED BY At a sitting of the court at Basseterre on the 26th July, 1967 we dismissed the appeal with costs and stated that we would give our reasons in writing at a later date. We do so now.

2 On the 15th August 1966, Ivor Stevens the appellant in this case, filed in the Supreme Court of St. Christopher-Nevis Anguilla a document dated 12th August 1966, and headed “Petition”. Another document of the same data and headed “Bond” was taken and acknowledged by the above-named Ivor Stevens, Richard Caines and William Valentine Hubert …….. before the Registrar of the Supreme Court at St, Christopher Nevis-Anguilla.

3 The document headed “Petition” did not contain a prayer, and on 2nd November 1966, a summons was filed seeking leave to amend it by inserting a prayer.

4 The matter came on for hearing on 17th November 1966, and again on 19th December 1966.

5 Heyliger J., the learned trial judge, heard counsel for the applicant and for the respondent and he held “that there was no valid petition before the court and to grant the amendment asked for ……….. would be permitting a petition to be presented outside the time specified in section 83.” (The section referred to is to be found in the Constitution and Elections Ordinance Cap, 162 of the laws of St. Christopher Nevis-Anguilla).

6 Counsel for the respondents also submitted that the document headed “Bond” was bad in that it failed to comply with the requirements of section 83 of the Constitution & Elections Ordinance Cap. 162. The learned judge heard argument on this point and he stated: “………I considered the objection raised about the absence of a recognisance. The word used in section 83 (1) (c) relating to the question of security is “shall” and the language is peremptory. I held that the requirement for the recognisance was a condition precedent ……….”

7 The appellant has appealed against the decision of the trial judge on the ground that he was wrong in law:

1

In refusing the appellants' application to add a formal prayer at the end of the petition as is usual in the case of petitions. 2. In holding that the security given for costs, charges and expenses did not comply with the law and in the alternative in refusing the application of the appellant to be allowed to deposit the sum of $1,200.00 in court to secure the payment of all costs, charges and expenses. 3. In refusing to determine the issue raised in the petition as is required by section 86 of the Constitution and Elections Ordinance Cap. 162. 4. In dismissing the petition.”

8 At the outset of the hearing of this appeal, the question of jurisdiction of this Court to entertain the appeal was raised. In the course of his submission, counsel for respondent Gilbert Harris contended that the trial judge had furnished a certificate as required by law, and on his so doing that was a final determination of the matter; or in other words there was no right of appeal available to either party. (Counsel conceded that if the matter were interlocutory, then this Court would have the power to entertain an appeal).

9 Counsel for the respondent Eugene Walwyn associated himself with the arguments raised by counsel for the other respondent and urged further that if the matter before this Court were interlocutory nevertheless the effect of this was “to dispose of the matter finally.”

10 Counsel for the appellant submitted that there was no final determination and the learned trial judge did not do what he was required to under section 86 of the Constitution and Elections Ordinance Chapter 162, i.e. he did not decide if the member was duly elected or whether the election was void.

11 We reserved our ruling on this point of jurisdiction and proceeded to hear the appeal on the presumption that we had jurisdiction to entertain it.

12 On the question of Jurisdiction, Section 86 of the Constitution and Elections Ordinance Chapter 162 states:

“Every election petition shall be tried in the same manner as an action in the Supreme Court by a judge sitting alone. At the conclusion of the trial the judge shall determine whether the member of the Council whose return or election is complained of or any, and what, other person was duly returned and elected, or, whether the election was void, and shall certify such determination to the Administrator, and, upon his certificate being given, such determination shall be final;.……”

13 A document dated, 22nd December 1966, and signed by the learned trial judge stated inter alia

“In accordance to section 86 of the Constitution and Elections Ordinance (Cap.162) I have the honour to certify that the above petition was heard in Nevis on the 19th instant and I found that the petitioner did not have a valid petition before the court, and that he did not comply with the statutory requirement of entering into a recognizance for security for costs.

In the circumstances I found that the petition failed and that no further proceeding could be had.

I therefore dismissed the petition.”

14 Although it did not follow slavishly the words of section 86, this certificate showed that the trial judge decided that the challenge challenge of the election had failed because the petition was not valid, and that no further proceeding could be had on it. Thus, the member whose return was complained of and no other...