Daven Joseph Petitioner v Chandler Codrington Davidson Benjamin Pauline Simon Lorna Simon Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman J
• Judgment Date: 30 June 2009
• Judgment citation (vLex): [2009] ECSC J0630-3
• Docket Number: CLAIM NO. ANUHCV2009/0147
• Court: High Court (Antigua)
• Date: 30 June 2009

[2009] ECSC J0630-3

IN THE HIGH COURT OF JUSTICE

IN THE HIGH COURT OF JUSTICE

CLAIM NO. ANUHCV2009/0147

CLAIM NO. ANUHCV2009/0148

Between

Daven Joseph

Petitioner

and

Chandler Codrington

Davidson Benjamin

Pauline Simon

Lorna Simon

Respondents

Between

Paul Chet Greene

Petitioner

and

Eleston Adams

Wigley George

Shoy Gregory Athill

Cora Huggins

Lorna Simon

Respondents

Appearances:

Mr. Douglas Mendes SC with Mr. Kendrickson Kentish and Mr. Leon Chaku Symister for the No.1 Respondents/Applicants in the Joseph and Greene matters.

Mr. Russell Martineau SC with Ms. Emily Simon-Forde for the No.3 and No.4 Respondents/Applicant in the Joseph matter and for the No.4 and No.5 Respondents/Applicant in the Greene matter.

Mr. Hugh Marshall Jr. for the Petitioners/Respondents

Blenman J

1 General Elections are always a matter of great national importance and so they are in Antigua and Barbuda.

2 On the 12^th March, 2009, General Elections were held in Antigua and Barbuda. The two main parties that contested the elections are namely: the Antigua Labour Party (ALP) and the United Progressive Party (UPP). In Barbuda, the Barbuda People's Movement (BPM) contested the election against the ALP.

3 Mr. Chandler Codrington was the UPP candidate and he ran in the All Saints West constituency against Mr. Daven Joseph who was the candidate for the ALP. The elections having been held, Mr. Codrington was declared the winner (and was duly elected). In the St. Paul's constituency, Mr. Paul Chet Greene was the ALP candidate and he ran against Mr. Eleston Adams who was the UPP candidate. Mr. Adams was declared the winner in that race.

4 Ms. Lorna Simon is the Supervisor of Elections. Ms. Pauline Simon and Ms. Cora Huggins were the Returning Officers/Election Officers.

5 It appears as though the elections were hotly contested and some of the ALP candidates seem to be dissatisfied with the manner in which the elections were conducted. Several petitions were filed in relation to the General Elections seeking to have it declared void. In fact, a total of six petitions were filed. However, on the first day of the hearing, the Court, having listened to the submissions of all learned Counsel, ordered that the first four petitions were to be consolidated and heard together and the applications in those four petitions were to be dealt with together. The other two petitions were similarly ordered tobe consolidated (the Joseph and Greene petitions) were dealt with together. Indeed, both Mr. Joseph and Mr. Greene have filed Elections petitions in which they seek to challenge the results of the elections in relation to a number of alleged breaches. There are no allegations of fraud or corruption in the petitions. The Joseph and Greene petitions were each filed on the 23^rd March, 2009 and each has a first affidavit in support thereof.

6 The winning candidates, Mr. Adams and Mr. Codrington, have each filed applications seeking to have the petitions dismissed. The grounds of their applications include that the petitions were not filed within the mandated period of 7 days. Mr. Adams also complains about the service of the petition. He says that Mr. Greene did not serve him with the petition within the stipulated 5 day period and therefore the petition should be struck.

7 Ms. Lorna Simon, the Supervisor of Elections has also filed an application in each petition and contends that both the petitions should be dismissed in so far as they were not filed within the time stipulated by section 45(2) of the Representation of People Act (as amended) Cap 379 Laws of Antigua and Barbuda.

8 Issue

The issue that arises for the Court to resolve is whether the Court should dismiss both of the petitions, that have been brought by Mr. Joseph and Mr. Greene respectively.

9 Mr. Daven Joseph's Petition

The Court will first address Mr. Daven Joseph's petition. Mr. Joseph has filed a petition together with the First Affidavit in Support. Mr. Carl Andrew, the process server has filed an affidavit of service in which he states that he served Mr. Chandler Codrington with the petition and the first affidavit on the 26^th March, 2009.

10 Mr. Chandler Codrington's application

Mr. Codrington seeks to have the petition dismissed on the ground that it was not presented within 7 days after the return, neither was he served within the stipulated time.

11 Mr. Codrington stated in his affidavit as follows:

"I was nominated as the candidate for the United Progressive Party at the General Election for the Constituency of All Saints West held on March 12^th 2009. On the night of the said March 12^th 2009, the Returning Officer declared that I was duly elected as the Representative of the All Saints West Constituency.

On March 13^th 2009, the Returning Officer returned me as the said Representative to the Electoral Commission by endorsing such return of the Writ of election for the said constituency. A true copy of the said return is hereto attached and marked "CC1".

On March 13^th 2009, the Governor General of Antigua and Barbuda appointed Mr. Baldwin Spencer as the Prime Minister of Antigua and Barbuda, having determined that Mr. Spencer was the leader of the political party in the House of Representatives, namely the UPP, which had won the majority of seats in House of Representatives at the said General Elections. The UPP was declared to have won 9 seats, the BPM one seat, whilst the Antigua Labour Party was declared to have won 7 seats.

On the 26^th day of March 2009, I was served with documents which purported to consist of a Notice of the presentation of a petition challenging the validity of my election as the representative of All Saints West, a notice of the nature of the proposed security and a copy of the petition. The petition appears to have been filed in court on March 23^rd 2009."

12 The Supervisor of Elections' application

Ms. Lorna Simon, the Supervisor of Elections has also applied to have the petition dismissed on the ground that it has been filed in breach of section 45(1) of the Representation of People Act since it was not presented within 7 days after the return was made in respect of Mr. Codrington. In her affidavit of support she states:

"Following the General Elections held in Antigua and Barbuda on March 12, 2009, the Returning Officer for the Constituency of All Saints West in those elections delivered tome the writ with the certificate endorsed thereon for the election in that constituency on March 13, 2009.

On the same March 13, 2009 I entered the name of Chandler Codrington from the certificate on the writ returned to me in the "Return" book kept by me at my office. The book is and has always been open to the public for inspection at reasonable times. There is exhibited "LS1" a true copy of the writ with the certificate endorsed thereon. There is also hereto exhibited and marked "LS2" a true copy of the entry of the name of Chandler Codrington in the Return book on March 13, 2009."

13 Mr. Daven Joseph's opposition

Mr. Joseph opposes both of the applications to have his petition dismissed and has filed

an affidavit to that effect. He says as follows:

"That I am advised by Counsel and do verily believe that pursuant to Section 45 of the Representation of People Act Cap 379, the period specified for the filing of an Election Petition is seven (7) daysafter the return has been made in respect of the member to whose Petition the Election Petition relates.

I am further advised by Counsel and do verily believe that a Return can only be made in the prescribed manner specified at Section 57 of the Election Rules appearing as Schedule 1 under the Representation of the Peoples Act and incorporated as Law by reason of Section 12 thereof.

That there is no evidence of an "endorsement on the Writ of Election" for the relevant Constituency presented to the Court to determine the actual date that the Return was made, if at all, accordingly in the absence of a Return we are unable to calculate the expiration of the prescribes seven (7) days for filing the Election Petition.

Without prejudice to the aforesaid, and on the unsubstantiated assumption that the return was made on the 13^th March, 2009 my Election Petition was filed with the prescribed time on the basis of the following.

Firstly, the Election was held on Thursday the 12^th day of March, 2009. The Return was being assumed on Friday the 13^th day of March, 2009. Between the 13^th March and the day of filing the Petition which was the 23^rd March, 2009 there were ten (10) calendar days, inclusive of both days. During that period, there was one public holiday being the 13^th March, 2009. There was also two (2) Saturdays being the 14^th and the 21^st March, 2009 and two (2) Sundays, being the 15^th and the 22^nd March, 2009.

That I am advised by Counsel and do verily believe that in computating time as set out in Section 45 of the Representation of the Peoples Act, regard must be had to Section 63 of the said Act which governs the Jurisdiction and Procedure to be adopted in Election Petitions. This Section stipulates that the 'High Court shall have the same powers, jurisdictions and authority with respect to an Election Petition andproceedings thereon as if the Petition were an ordinary action within its jurisdiction".

I am advised by Counsel and do verily believe that this Section of the Act incorporates the Civil Procedure Rules of 2000. These are the rules applicable to all Civil Proceedings in the High Court by reason of Part 2.2 of those rules.

Counsel further advised me that the computation of time is set out at Part 3.2. By this, the day on which the period begins and ends, public holiday, Saturday and Sunday would be excluded from the computation of the seven (7) day period. In fact, no day that the Registry is closed would be included. The said period would therefore run from 16^th to 24^th March, 2009."

14 Mr. Paul...