While the family, friends and well-wishers were at the funeral service of Mr. Antoine Defoe, one of the three Respondents in the CCJ Civil Appeal No DMCV2020/001 with Mr. Mervin John Baptiste and Edingcot St. Valle,  the CCJ was in the process of delivering its decision in an excessively delayed matter before it that emanated from the December 2014 general elections. The Respondents filed criminal complaints in the Magistrates’ Court pursuant to sections 56 and 59 of the House of Assembly (Elections) Act (the “Elections Act”).

The central issue for determination before the CCJ was whether a Magistrate in Dominica has the jurisdiction to hear and determine a criminal charge of treating against a duly elected and sitting member of the House of Assembly or whether such a charge must instead be heard and determined as a constitutional matter by the High Court, by way of an election petition.

The application for judicial review before the High Court of Dominica was heard by Justice Stephenson Brooks, who held that the Respondents’ attempt to charge the Appellants with the criminal election offence of treating could not be heard by a Magistrate. Justice Brooks held that:

(i)                the effect of the charges of treating that were brought by the Respondents was to challenge the validity of the election of the Appellants;

(ii)             the validity of an election could only be challenged in the High Court by way of an election petition brought in accordance with the provisions of the Elections Act; and

(iii)           section 59 of the Act, which permits trial of the offence of treating by the Magistrate, was in conflict with section 40 (1) (a) of The Constitution of Dominica (“the Constitution”) which provides that the High Court shall have jurisdiction to hear and determine any question regarding the validity of the election of a candidate, and therefore, had to be construed in a manner that brought it into conformity with the Constitution.
Justice Brooks considered that it could not have been the intention of the legislature to dictate the composition of the House of Assembly by a summary jurisdiction process. She concluded that the Magistrate acted in excess of his jurisdiction by entertaining the complaints and issuing the summonses. The trial judge quashed the complaints and summonses and made no order for costs.

The Respondents were dissatisfied with the decision of Justice Brooks and appealed to the ECSC of Appeal, which by a majority of 2-1, allowed the appeal and ordered the reinstatement of the complaints and summonses.  A strong dissent was entered by Blenman JA,

The Appellants served Notice of Appeal the CCJ and listed nine grounds of appeal against the decision of the Court of Appeal.  Essentially, the Appellants argued that

(i) under the Constitution of Dominica the High Court enjoys exclusive jurisdiction to hear and determine all election petitions concerning an undue election or undue return against an elected Member. They maintain that an allegation of the corrupt practice of treating is directly relevant to the question of an undue return. Were the High Court to find that a corrupt practice had been committed by an elected Member and make a report of guilty, as it would be required to do, the Member would be incapable of retaining his or her seat. The Respondents submit that this special jurisdiction of the High Court was not so engaged because the complaints of treating were summary offences which would form the subject of a complaint before a Magistrate, and not allegations of undue election or return which would form the subject of an election petition to the High Court. They claim that the Magistrate had jurisdiction to consider and determine the complaints.

The parties disagree on four main points which may conveniently be encapsulated as follows:

(i) whether two parallel systems of adjudication existed under the Elections Act, one under the jurisdiction of the Magistrate and the other under the jurisdiction of the High Court, to try treating, (“the two parallel modes of trial point”);

(ii)   whether the summary trial of the offence of treating was consistent with the constitutional provisions for giving the High Court jurisdiction to determine the validity of elections and the composition of the House of Assembly, (“the constitutionality point”);

(iii)      whether the decades of election law decisions by Caribbean courts had confirmed the exclusive jurisdiction of the High Court to try, by way of election petition, all electorally corrupt practices (such as treating) that could have the effect of altering the composition of the House, (“the weight of jurisprudence point”); and

(iv)        whether an interpretation of the Elections Act that led to different treatment by the criminal law of members of the House as compared with ordinary citizens would breach the constitutional principles of the rule of law and equality before law (“the equality before the law point”).

The following were the Orders of the CCJ:

(a) The appeal is dismissed.

(b) The following orders of the Court of Appeal were  affirmed, namely:

  1.   The complaints filed by the Respondents and the summonses issued by the Magistrates’ Court are reinstated; a
  2.  The Chief Magistrate shall proceed to assign a Magistrate to hear the complaints filed by the Respondents.
  3. The stay of proceedings granted by the Court of Appeal in the order dated 14th July 2020 regarding the execution of the judgment and/or all the proceedings in the Magistrates’ Court, is discharged.
  4. The Appellants shall pay to the Respondents EC$25,000 in costs in furtherance of the pre-trial agreement between the parties

The full judgment of the court can be accessed via this link https://ccj.org/wp-content/uploads/2021/03/2021-CCJ-4-AJ-1.pdf.

DomincaPatriot extends congratulation to the Respondents and their Counsels, Ms. Cara Shillingford and Mr. Wayne Benjamin-Marsh and by extension all patriotic citizens of the Commonwealth of Dominica in this significant victory. We also express deepest condolences to the family of the deceased patriot, Mr. Antione Defoe.


Leave a Reply

Your email address will not be published. Required fields are marked *