Lindsay Grant
The Eastern Caribbean Appeal Court has delivered a fatal blow to a bid by Minister of Tourism, Hon. Lindsay Grant to go to the Privy Council in London to challenge rulings of the two courts that ordered him to pay US$283,333.33 or EC$762,999.99 in costs to former Labour Government Minister and parliamentary representative, Mr. Rupert Herbert, coming out of the 2004 General Elections.
Appeal Court Judges, – Chief Justice Her Ladyship Dame Janice Pereira, Appeal Court Judge, Hon. Gertel Thom and Acting Appeal Court Judge, Hon. Michael J. Fay heard the motion by Mr. Grant on December 4, 2017.
At the conclusion of the hearing both parties were informed that the Court of Appeal would dismiss Grant’s Notice to Her Majesty in Council and the reasons for the dismissal would be provided in due course.
In authoring the December 17th 2017 judgement, Justice Michael Fay stated that the factual circumstances of this matter are set out in detail in the judgement of this Court dated 14th July 2017 and that no useful purpose is served by repeating them at length in this judgement.
“In brief and insofar as is relevant to this application, the Court of Appeal held on 14th July 2017 that (a) The general rule is that the High Court’s jurisdiction to deal with election petitions is a statutory jurisdiction that is separate and distinct from the Supreme Court’s ordinary civil jurisdiction.
“When the Court of Appeal in the Federation of St. Christopher and Nevis hears appeals from the High Court in election proceedings it occupies a unique position in the Court’s hierarchy in that it is the final Court of Appeal. Section 36 (1) of the Constitution of St. Christopher and Nevis vests jurisdiction to hear and determine cases related to the election of members to the National Assembly in the High Court and sections 6 & 7 deal with appeals from the decisions of the High Court in election cases. The effect of subsections 6 and 7 is that there is a right of appeal to the Court of Appeal from final decisions of the High Court in election cases and importantly for the purpose of this appeal, there is no right of appeal from a decision of the Court of Appeal to Her Majesty in Council (Privy Council). The Court of Appeal is the final Court in election proceedings. This affects the principle of stare decisis and how this court should deal with its previous decisions,” Acting Appeal Court Justice Jay wrote.
“It was not necessary for the purposes of a notice of application before it to consider the judgement dated 14 July 2017 other than to record that the consequences of the majority decision of this court on the said date was that a decision of the first instance judge to quantify the cost to be paid by Mr. Grant to Mr. Herbert by determining what costs was reasonable for him to pay rather than by determining the costs in accordance with the Civil Procedure Rules 2000 CPR part 64 and 65 was upheld and the appeal was dismissed.
The application before us was a motion of notice filed on 3rd August 2017 by Mr. Grant seeking leave to appeal the decision of this court dated 14 July 2017 to Her Majesty in Council (Privy Council),” said the Court pointing out that Ms. Foreman, who appeared with Mrs. John-Sargeant, put her case forcibly and with great skill,” Justice Fay noted.
“The difficulty that she faced is found in sections 36 (1) and 6 and 7 of the Constitution which provide insofar as is relevant to this matter as follows: (1) that the High Court shall have jurisdiction to hear and determine any question whether (a) any person has been validly elected as a representative and (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.
Section 7 – No appeal shall lie from any decision in the Court of Appeal in the exercise of the jurisdiction conferred by subsection 6 and no appeal shall lie from any decision of the High Court in proceedings under this section other than a final decision determining any such question in subsection 1 of this section,” said the judgement posted on the Court’s website.
Justice Fay pointed out that the Court has already found in paragraph 27 of its judgment dated 14 July 2017 “that the effect of subsections 6 and 7 is that there is a right of appeal to the Court of Appeal from a final decision of the High Court in election cases and importantly for the purposes of this appeal, there is no right of appeal from decisions of the Court of Appeal to Her Majesty in Council (Privy Council).
“Prima facie that would appear to be fatal to the prospects of the Notice of the Motion before us.”
He noted that Ms. Foreman sought to urge the three-judge panel that costs do not form part of the election petition.
“Her submission was to the effect that the election petition proceedings were long past and all that was before the Court of Appeal was an issue of costs. This submission is not one that appears prima facie attractive and Ms. Foreman was unable to take us to any authority whether in an election petition case or any other form of legal proceedings in which the issue of costs had been held to be a separate proceeding in a substantive proceedings,” the Appeal Court said.
“Ms. Foreman also sought to persuade us that the determination of the quantum of costs was not for the purposes of subsection 36 (6) and (7) a final decision of the High Court determining any such question as is referred to in subsection 1 because it is a decision on costs and not a final decision on whether any person has been validly elected as a Representative.
“In our view the incidence and quantification of costs ought to be canvassed as part and parcel of a question arising under section 36 (1) as to whether a person has been validly elected as a representative. Moreover, if it was not a part of such a question Section 36 (7) would operate to preclude any appeal to the Court of Appeal and would mean the High Court either had no jurisdiction to award costs in determination of that question or that the High Court was the final court for the purposes of the incidents and the quantification of costs in election proceedings.
However we do not need to decide that point in order to dispose of this Notice of Motion because irrespective of whether the incidence and quantification of costs is part of section 36 (1) question, we have no doubt whatsoever that it is part of the election proceedings. Section 36 (7) does not provide that there shall be a right to appeal from a decision of the Court of Appeal, whether with leave or not, to Her Majesty in Council. It provides only for an appeal from a final decision of the High Court to the Court of Appeal – it follows that no such leave can be granted.”
“We therefore dismiss the notice of motion,” ordered Justice Fay with the concurrence of Dame Janice M. Pereira, Justice of Appeal and Gertel Thom, Justice of Appeal.
Mr. Herbert was represented by Mr. Anthony Astaphan SC and Ms. Angelina Gracy-Sookoo of the Chambers of Sylvester Anthony.