Thompson v Attorney General

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Kerr, P.,Carey, J.A.,White, J.A.
• Judgment Date: 26 March 1982
• Neutral Citation: JM 1982 CA 16
• Docket Number: Civil Appeal No. 23 of 1981
• Date: 26 March 1982

Court of Appeal

Kerr P.(Ag.), Carey, J.A., White, J.A.

Civil Appeal No. 23 of 1981

Thompson

and

Attorney General

Mr. Hugh Small for appellant

Mr. A.B. Edwards and Mr. R.G. Langrin for respondent

Statute - Interpretation — Election Petitions Act s. 13 — Withdrawal of petition — Whether costs payable — Discretion of court

Facts: The appellant and O.S. were chief contestants in GeneraL Elections for the constituency of western St. Andrew. A petition was filed by the Attorney General praying that the election be declared null and void on the grounds of alleged irregularities. A petition was subsequently filed by O.S. on the same grounds. The Attorney General therefore applied for leave to withdraw his petition. The appellant applied for costs. The trial judge granted leave to withdraw but refused to make an order as to costs. An appeal was lodged against the failure to award costs. Section 13 states “if a petition is withdrawn the petitioner shall be liable to pay the cost of the respondent”. The question was whether s. 13 removes the discretion of the judge to award cost.

Held: Appeal dismissed. When the Act is read as a whole it is clear that the discretion of the judge has not been removed.

1 Kerr, P. (Ag.): The appellant and one Owen Stephenson were the chief contestants in the General Elections of October 1990 for the constituency of Western St. Andrew. The respondent Attorney General as he was empowered to do under the Election Petitions Act (hereinafter referred to as the Act) on November 7, 1990 filed an election petition praying therein that the said election be declared by the Court “null and void” on the grounds of the irregularities alleged therein. At the time of the filing of the petition Stephenson had been declared the winner but on a magisterial recount on January 6, 1981, the appellant was declared the successful candidate. On January 29, 1981 Stephenson filed his own election petition alleging certain irregularities and praying that he be returned as the successful candidate or that the election be declared void. To this petition the appellant duly responded by a formal reply and cross-petition.

2 By summons dated 20th March the respondent applied for leave to withdraw his petition on the grounds inter alia:

“That the filing of the Attorney General's Petition was done in the public interest and I verily believe, that that interest will be served by the Petition filed by Owen Stephenson, having regard to the similar allegations, made therein.

“That since another Election Petition has now been filed no useful purpose will be served by having two Election Petitions, before the Court in the same matter.

“That the changed circumstances in having two Election Petitions before the Court in the same matter coupled with the fact that the Returning Officer, if made a party to the proceedings filed by Owen Stephenson may have to be defended by the Attorney General or his representative, necessitate and indeed compel the withdrawal of the Attorney General's Election Petition.”

3 Upon the summons coming up for hearing before Parnell, J. in Chambers, there was no appearance on behalf of Stephenson. The Attorney appearing for the appellant did not oppose the respondent's application but applied for costs, resting his application on Section 13 of the Act. The learned trial judge no doubt mindful of the exceptional public importance of the matter, adjourned to open court and then and there in an oral judgment granted the Petitioner leave to withdraw the petition but decreed that “there be no order as to costs.” It is against that decree that the appeal is brought.

4 Mr. Edwards for the respondent took a preliminary objection to the hearing of the appeal on the grounds that by Section 11 (1)(e) of the Judicature (Appellate Jurisdiction) Act, no appeal shall lie without leave of the judge or the Court of Appeal on a discretionary order for costs and that in the instant case this was such an order.

5 In reply, Mr. Small contended that the trial judge had no discretion to disallow costs - the only issue being left to him is the matter of quantum. The provisions of the Act were not only in keeping with the general principle that costs follow the event but the purposeful intent and effect of 13 made it obligatory on the judge to award costs. He frankly conceded that his researches failed to reveal any case directly in point but adverted the Court's attention to a number of cases in which the word “Iiable” arose for interpretation including - Littlewood v. George Wimpey & Co. Ltd. (1953) 2 All E.R. p. 921; Collins v. Collins & Another (1947) 1 All E.R. p. 793; and to the definitions in Strouds Judicial Dictionary and in “Words and Phrases Legally defined.”

6 Section 13 of the Election Petitions Act Provides:

“An election petition shall not be withdrawn without the leave of the Court, or of a judge in Chambers, upon special application made for such leave.

“No such application shall be granted unless The Court or Judge is satisfied that adequate notice has been given, in the case of an election to the House of Representatives in the Constituency, or, in the case of an election to a Parish Council, in the parish to which the petition relates, of the intention of the petitioner to make such application.

“On the hearing of the application for withdrawal, any person who might have been a petitioner in respect of the election to which the petition relates may apply to the Court or a judge to be substituted as petitioner for the petitioner so desirous of withdrawing the petition.

“If a petition is withdrawn the petitioner shall be liable to pay the costs of the respondent.”

7 From the cases, it is clear that the meaning of “liable” is often coloured by the context in which it is used. In making this observation I am not a little influenced by the following excerpt from “Words and Phrases Legally Defined”, 2nd Edition p. 154:

“‘The ordinary natural grammatical meaning of a person being liable to some penalty or prohibition is that event has occurred which will enable the penalty or prohibition to be enforced, but that it still lies within the discretion of some authorised person to decide whether or not to proceed with enforcement - cf. James v. Young (1884), 27 Ch. Div. 652; Re Loftus Ottway, (1895) 2 Ch. 235. The word ‘liable’ is sometimes used in the sense of exposure to liability, but this is not the ordinary natural grammatical meaning of the word. It would require a context to give the word this meaning.’ 30’ Keef v. Calwell, (1940) A.L.R 381, per Williams, J., at p. 401. “

8 The Election Petitions Act is a special statute dealing with the judicial process, pleadings, procedure and practice, both at first instance and on appeal. I therefore interpret Section 13 of the Act as not being concerned with the power of the Court to award costs but rather declaring that a petitioner who withdraws his petition is exposed to the risk of being condemned in costs in favour of the respondent.

9 In this the legislature has been wisely consistent. By Section 4 (d) (ii) of the Act (post) a member against whose election or return a complaint is made is designated a respondent whether or not the petitioner named him as such or made any of impropriety against him. However, he has a seat to lose and this Act gives him a locus standi. A petitioner could therefore not plead as an excuse or exemption from liability the fact that he neither named the member as a respondent nor included him in his allegations of irregularities in the election.

10 In Squibb Staff Association v. Certification Officer [1979] 2 All E.R. p.452 in interpreting the phrase “liable to interference” Lord Denning at p. 457 said:

“The material words are ‘liable to interference’. To be independent the trade union must be one which ‘is not liable to interference by an employer.

“The certification officer interpreted the words ‘liable to interference’ as meaning ‘vulnerable to interference’ or ‘exposed to the risk of interference’ by the employer. Whereas counsel for the association that it meant ‘likely’ or ‘not likely’ to be subjected to interference by the employer.”

11 and at p. 458:

“I agree that there are two possible meanings of the word ‘liable’. It is a very vague and indefinite word. Having, heard very good arguments on both sides, it seems to me that the certification officer's interpretation of ‘liable’ is correct and the interpretation is not correct.”

12 I am comforted by this decision in my interpretation of ‘liable’ in section 13. Accordingly I am of the view that section 13 and 23 are complementary; while section 13 imposes liability for costs to respondent on the petitioner who withdraws his petition, section 28 deals generally with the powers of the Court to award or disallow costs. It would be inconsistent with that power to hold that the judge has no discretion whether or not to order costs, on the withdrawal of a petition. If for example, before a respondent had retained counsel or incurred costs, the Attorney General had. given a firm undertaking that he intended to withdraw his petition, could not a judge, in such circumstances decline to order costs?

13 In short, I do not read into section 13 an erosion of the discretionary power of the, Judge in relation to the award of costs as conferred by Section 47 of the Judicature (Supreme Court) Act and as impliedly extended to Election Petitions by Section 24 (1) and (3) of the Act which reads:

• “(1) On the trial of an election petition the Judge shall, subject to the provisions of this Act and to any directions given by the Chief Justice, have all the powers, jurisdiction and authority of a Judge of the Supreme Court; and the Court held by him, shall constitute a Court of the Supreme Court.

• “(3) An election petition shall be deemed to be a proceeding in the Supreme Court and, subject to the provisions...