Hayles v Hamilton
| Jurisdiction | Jamaica |
| Judge | Panton, P. |
| Judgment Date | 17 June 2010 |
| Neutral Citation | JM 2010 CA 119 |
| Date | 17 June 2010 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | Civil Appeal No. 165/2009 |
Court of Appeal
Panton, P.; Harris, J.A.; Dukharan, J.A.
Civil Appeal No. 165/2009
Abraham Dabdoub and Gayle Nelson instructed by Gayle Nelson & Co for the appellant.
Ransford Braham, Mrs. Nesta-Claire Smith-Hunter and Mrs. Suzanne Risden-Foster instructed by Ernest A. Smith & Co for the respondent.
Civil Practice and Procedure - Striking Out the Claim — Whether the Supreme Court had the jurisdiction to adjudicate on a claim in respect of the validity of the election of a member of the House of Parliament where the time period had expired pursuant to Section 49 of the Representation of the People Act — Whether section 44 of the Constitution of Jamaica permitted a challenge to a person being validly elected — Consideration of Theberge v. Laudry (1876) 2 App. Cas. 102 — Whether there was a time limit for a challenge to be mounted in respect of someone who has been elected but did not have the necessary qualifications for such election at the time of the election — Consideration of The Attorney—General of Grenada v. David and Another [GDA HCV 2006/0018 and Dabdoub v. Vaz and Others SCCA nos. 45 and 47/2008 — Appeal dismissed — Finding that the trial judge was correct in its refusal to strike out the claim — Sections 40 (2)(a), 41(1)(d) and 44(1)(a) and 44(2) of the Constitution of Jamaica — Section 4 of the Election Petitions Act.
Appeal dismissed. Paragraphs 1 and 2 of fixed date claim form are not to be proceeded with. The other paragraphs of the fixed date claim form are in order and may be proceeded with. Costs to the respondent to be agreed or taxed.
This appeal is from the decision of Donald McIntosh, J. on 4 December 2009, dismissing an application by the appellant to strike out a fixed date claim form and particulars of claim filed by the respondent.
In view of the decision at which we have arrived, it is important to set out the claim in full. It is dated 19 August 2009, and was filed in the Supreme Court on 3 September 2009, by the respondent who was the unsuccessful candidate for the constituency of Western Hanover, in the General Elections held on 3 September 2007. The following are the reliefs that are being sought:
“1. A Declaration pursuant to Section 44(2) of the Constitution of Jamaica, that the respondent, Ian Hayles, Member of Parliament being a citizen of the United States of America, has by virtue of that status taken an Oath and/or made a Declaration and/or Acknowledged allegiance, obedience or adherence to a foreign Power or State in contravention of Section 41 of the Constitution of Jamaica rendering him ineligible to continue to sit as a Member of Parliament of the House of Representatives.
2. A Declaration pursuant to Section 44(2) of the Constitution of Jamaica, that the respondent, Ian Hayles, Member of Parliament being a citizen of the United States of America and the holder of a United States of America Passport numbered 140882861 issued by the Government of that country, has by virtue of that act and status acknowledged allegiance, obedience or adherence to a foreign Power or State in contravention of Section 41 of the Constitution of Jamaica rendering him ineligible to continue to sit as a Member of Parliament of the House of Representatives.
3. Further and/or in the alternative a Declaration pursuant to Section 44(2) of the Constitution of Jamaica, that the respondent, Ian Hayles Member of Parliament being a citizen of the United States of America and/or the holder of a United States of America Passport numbered 140882861 issued by the Government of that country, is by virtue of his own act, under an acknowledgment of allegiance, obedience or adherence to a foreign Power or State in contravention of section 40(2)(a) of the Constitution of Jamaica which, by virtue of such status rendered him disqualified for election as a Member of the House of Representatives.
4. Further and/or in the alternative, a Declaration pursuant to the inherent jurisdiction of the Supreme Court as guardian of the Constitution of Jamaica that the respondent, Ian Hayles Member of Parliament being a citizen of the United States of America and/or the holder of a United States of America Passport numbered 140882861 issued by the Government of that country, has by virtue of that status taken an Oath and/or made a Declai ion and/or acknowledged allegiance, obedience or adherence to a foreign Power or State in contravention of Section 41 and/or Section 40(2)(a) of the Constitution of Jamaica rendering him disqualified to be elected as a Member of Parliament and/or rendering him ineligible to continue to sit as a Member of Parliament of the House of Representatives.
5. An Order that consequent on the Declarations made herein that the seat presently occupied by the respondent as Member of Parliament in the House of Representatives for the Constituency of Western Hanover be declared vacant and that the Speaker of the House be so advised.
6. A further order that consequent on the Order herein that the said seat be declared vacant that there be a by-election in respect of the Constituency of Western Hanover.
7. Costs to the claimant/applicant to be agreed if not taxed.”
In the particulars of claim (para. 2), it is stated that the appellant herein was at the time of the General Elections a citizen of the United States of America and the holder of a United States of America passport, and that thereby he has infringed section 41 of the Constitution of Jamaica in respect of the qualifications for sifting members of the House of Representatives. In paragraph 4 of the particulars, it is stated that at the time of nomination and at the time of the General Elections, he was a citizen of the United States of America and in possession of a United States of America passport, thereby infringing section 40(2)(a) of the Constitution of Jamaica governing the qualification for election of persons as Members of the House of Representatives. Paragraph 5 of the particulars states that section 44(2) of the Constitution of Jamaica empowers the Supreme Court to determine any question as to the qualification of members of Parliament, and that on a proper interpretation of that section the jurisdiction of the Supreme Court is unlimited.
In paragraph 8 of the particulars of claim, there is an assertion of the right of the respondent herein, pursuant to section 44 of the Constitution, to seek constitutional redress in respect of the appellant's status as “dual citizen and holder of a United States of America Passport” and to seek an order declaring the seat held by the appellant vacant, with the consequence that a by-election be held to fill the vacancy.
In an affidavit filed in support of the fixed date claim form, the respondent exhibited the copy of the front page of a passport which he says was issued by the government of the United States of America to the appellant. He swore that at the time the nominations and General Elections were held he was not aware of the appellant's status in this regard, and that the information as to the passport came to his knowledge several months after the General Elections.
In a notice of application for Court orders, filed on 22 October 2009, the appellant sought an order for the claim to be struck out. He listed the following as his reasons for making the application:
“(a) That the Supreme Court of Jamaica lacks jurisdiction to bear the claim;
(b) That the claim discloses no cause of action;
(c) That the claim is an abuse of the process of the Court; and
(d) That the claim, being substantially a claim which questions the election of a member of the House of Representatives, is not brought in accordance with the provisions of Section 44 of the Constitution of Jamaica and in accordance with the Election Petitions Act.”
In arriving at his decision, Donald McIntosh, J reasoned that the inherent power of the Court at first instance to strike out a suit should be exercised with great care and due diligence, and should only be exercised in clear-cut cases of abuse of process. He said that striking out is not encouraged by the constitution, is not in keeping with the main objectives of the Civil Procedure Rules, and does not meet readily with the approval of Courts of appellate jurisdiction. Further, he said, the power should not be exercised when there are vexed, diverse or serious issues of facts and or law to be decided. He saw the application as one in which there was an attempt to oust the jurisdiction of the Court by impliedly suggesting that a statute supersedes the constitution. He expressed himself thus at page 15 of the record:
“It cannot be thought that a statute so obliterates the rights of the citizen to petition the Court that that citizen cannot even bring his application to the Court. The Constitution gives the citizen the right to bring a petition before the Court in any Constitutional matter. It is for the Court to decide whether that citizen should be allowed to go to the Constitutional Court. The right of the citizen to petition the Court for Constitutional Redress has not been summarily aborted or abrogated by any statute.”
It was against this background that the learned judge dismissed the application to strike out the claim, with costs to the respondent to be taxed if not agreed.
In seeking to set aside the judgment of the learned judge, the appellant filed the following nine grounds of appeal:
“(a) The learned trial judge erred when he failed to recognize that on the claimant's own pleadings, the claimant, as a matter of law has no cause of action.
(b) The learned trial judge erred when he failed to recognize that on the facts as pleaded the claimant has failed to...
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