Mitchell (Phyllis Mae) v Desmond Gregory Mair, Derrick Mais and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: SMITH, J.A. , HARRISON, J.A: , PUKHARAN, J.A. (Ag.) , SMITH, J.A.:
• Judgment Date: 16 May 2008
• Neutral Citation: JM 2008 CA 35
• Judgment citation (vLex): [2008] 5 JJC 1602
• Court: Court of Appeal (Jamaica)
• Date: 16 May 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE DUKHARAN, J.A. (Ag.)

BETWEEN

PHYLLIS MAE MITCHELL

APPELLANT

AND

DESMOND GREGORY MAIR

1 ^ST RESPONDENT

AND

DERRICK MAIS

2 ^ND RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

3 ^RD RESPONDENT

Abraham Dabdoub, Gayle Nelson, Mrs. Donna Scott-Mottley and Chumu Paris

Ransford Braham and Ms. Daniella Gentles ^st

Mrs. Nicole Foster-Pusey and Ms. Danielle Archer ^{nd rd}

ELECTION PETITION - Candidate - Whether 1st respondent qualified for election to House of Representatives - Whether nomination as candidate invalid, null and void - Election Petitions Act - Civil Procedure Rules 6.6 - Interpretation Act S. 52

SMITH, J.A.

1 This is an appeal against an order of Mrs. Marva McIntosh, J. made on October 12, 2007 whereby the learned trial judge held that a Notice of Presentation of Petition dated October 1, 2007 and the accompanying documents were not served on the 1 ^st respondent in accordance with the provisions of the law and that the matter was not properly before her.

2 During the last General Election, the appellant and the 1st respondent represented the People's National Party and the Jamaica Labour Party respectively in the constituency of North East St. Catherine. The 1st respondent emerged victorious and was eventually sworn in as a Member of the House of Representatives.

3 On the 1 ^st October, 2007 the appellant filed a Notice of Presentation of Election Petition and security for costs, a Fixed Date Claim Form (Election Petition) and an affidavit in the Supreme Court.

4 The Petition, which was filed pursuant to the Election Petitions Act, seeks an order that the 1st respondent was not qualified to be elected to the House of Representatives and that his nomination as a candidate for the constituency of North East St. Catherine was invalid, null and void as on nomination day he was a Venezuelan National.

5 The 2nd respondent is the Returning Officer for the said constituency. The 3rd respondent, the Attorney General, is sued pursuant to the provisions of the Crown Proceedings Act.

6 On the 2 ^nd October, 2007 the 1st respondent was handed a sealed envelope whilst he was sitting in Parliament which was in session. This envelope contained the abovementioned Notice of Presentation of Election Petition, the Fixed Date Claim Form (Election Petition) and the affidavit of the appellant.

7 On the 9 ^th October, 2007 the 1st respondent's attorneys-at-law filed and served an Acknowledgement of Service of the said documents. On the 17 ^th October, 2007 the 1 ^st respondent's attorneys-at-law filed a Notice of Application for Court Order to strike out the Election Petition documents and/or their service on the 1 ^st respondent. The Notice of Application to strike out was served on the appellant on the 22 ^nd October, 2007 for hearing on the 31 ^st October.

8 On the 31 ^st October, 2007 affidavit evidence was put before the court below to the effect that the Election Petition documents were sent by registered mail on the 9 ^th October, 2007 to the 1 ^st respondent at the address given on his nomination paper. (See affidavit of Lescine Prendergast sworn to on the 23 ^rd October, 2007).

9 The learned judge held that:

• (i) The service of the documents on the 1 ^st respondent in Parliament when it was in session was null and void.

• (ii) The Election Petition was not served in accordance with the provisions of the law and, accordingly the matter was not properly before the court.

10 As stated at the outset, this appeal is against the above decision.

11 Grounds of Appeal

12 The grounds of appeal filed are as follows:

• 1. "The learned judge erred in stating that the Petition was not served in accordance with the law for the following reasons:

  • (i) The Petition was presented to the Supreme Court on the 1 ^st day of October 2007 and there was evidence in the Affidavit of Donna Scott-Mottley of the Petitioner's Attorney-at-Law seeking to have the Registrar give a date for first hearing which was not obtained until the 9 ^th day of October 2007.

  • (ii) There was evidence in the Affidavit of Lescine Prendergast that service was effected by registered post on the 9 ^th day of October 2007 by addressing same to the 1 ^st Respondent at the address given by the Respondent on his nomination paper.

  • (iii) Section 6 of the Election Petitions Act specifically provides for service to be effected either by personal service or by registered post addressed to the respondent at the address given on his nomination paper."

• 2. "The Learned Judge ought to have rejected the 1 ^st Respondent's contention that service by registered post was out of time in view of the provisions of the Civil Procedure Rules 2002 and in particular Rule 6.6 which states that "a document served by registered post in the jurisdiction in accordance with these rules shall be deemed to be served 21 days after the date indicated on the post office receipt.

  The Learned Judge erred in accepting this contention in failing to realize that this contention is expressly negated by the express provision of Rule 2.2 (3) (c) of the Civil Procedure Rules 2002 particularly since Section 6 of the Election Petitions Act provides for a specific method of service by registered post to a specific address and therefore the Civil Procedure Rules 2002 do not apply in this regard."

• 3. "The Learned Trial (sic) further erred in not appreciating that The Election Petitions Act requires that service take place within ten (10) days of the date of presentation of the Petition and therefore the application of Rule 6.6. of the Civil Procedures Rules 2002 would render the express statutory provision in Section 6 of The Election Petitions Act in respect to service being effected by registered post absurd, nugatory and impossible to be effected in accordance with section 6 of the Election Petitions Act."

• 4. "The Appellant contends that Section 52 of the Interpretation Act is not applicable and that the Learned Judge further erred in placing any reliance on Section 52 of The Interpretation Act as such reliance must depend, in the first instance, on evidence from which the period of time for delivery in the ordinary course of post and there was no such evidence available to the Court."

• 5. "The Learned Judge erred in applying Section 52 of the Interpretation Act as the said Section 52 states clearly that it applies to delivery being deemed 'in the ordinary course of post' and registered post is not delivered 'in the ordinary course of post'."

• 6. "The Learned Judge further erred in applying Section 52 of the Interpretation Act as she failed to appreciate that once the Petitioner/ Appellant has done what is required by section 6, namely effect service by registered post in the manner and time set out specifically described in the said Section 6 of The Election Petitions Act, the Petitioner/Appellant cannot, should not and ought not to be penalized for any failure of the postal service in any particular case."

• 7. "The Learned Judge further erred in placing any reliance on the said Section 52 of the Interpretation Act as clearly the words in the said Section 52 of the said Act, 'unless a contrary intention appears', applies in these circumstances where Section 6 of the Election Petitions Act clearly sets out a specific method of post be 'registered post' and to a specific address derived from a specific document prescribed by law, namely, the address given by the Respondent on his nomination paper."

• 8. "If, which it is not admitted, the Civil Procedure Rules 2002 applies (sic) to these circumstances then the Learned Judge was wrong in not exercising her discretion to abridge the time set out in Rule 6.6 of the Civil Procedure Rules for the following reasons:

  • (i) The Appellant/Petitioner in effecting service, within ten days of the date of presentation of the petition, by registered post to the address of the 1 ^st Respondent given on his nomination (sic) did all that is required of the Appellant/Petitioner to effect service within the time specified in Section 6 of The Election Petitions Act.

  • (ii) That the Court has an overriding objective to exercise its powers and discretion in order to ensure that, in the interests of justice, matters are disposed of justly and on their merits rather than on technicalities."

• 9. "The learned Judge erred in failing to appreciate that the Affidavit of Phyllis Mae Mitchell made it clear that a Notice of Presentation of Petition and the security together with a copy of the Petition was left addressed to the 1 ^st Respondent at Gordon House, Duke Street, Kingston on Monday the 1 ^st October 2007, a day when the House of Representatives was not sitting, and therefore leaving of same was in keeping with the Election Petitions (Service of Notices) Directions, 1974 Section 2 (b)."

  These grounds embrace two (2) broad issues:

  • (1) Service of process in Parliament; and

  • (2) Service by registered mail

13 Service in Parliament

14 The appellant claims that on the 1 ^st day of October, 2007 she sent sealed copies of the Election Petition documents to Gordon House, Duke Street, Kingston, in an envelope addressed to the 1st respondent. Although the petition had no date for first hearing, this was done, she said, with a view to bringing to the 1 ^st respondent's attention the fact that an Election Petition had been filed against him.

15 In an affidavit sworn to on the 12 ^th October, 2007 the 1 ^st respondent swore that on the 2 ^nd October, 2007 whilst he was seated in Parliament which was in session, one of the ushers of the House of Parliament placed an envelope containing the Election Petition documents on his desk in front of him. These...