Case lawyers Anthony Astaphan, right, and James
Case lawyers Anthony Astaphan, right, and James

The Caribbean Court of Justice (CCJ) may soon be asked to decide whether another election matter will have its day in the court of Dominica.

A recent decision by the Eastern Caribbean Court of Appeal saw the dismissal of an appeal filed by the United Workers Party (UWP) against the decision of High Court Judge Raulston Glasgow.

However, the main debate within the party currently is: should the matter be brought to the CCJ, Dominica's final court.

An executive member of the UWP told the SUN since the judgment was handed down, many have stated that the matter should be laid to rest whilst others have opposing views.

"To be honest some people are saying it is a waste of money to go to the CCJ with this case especially as we've had two unfavourable rulings but others say in the interest of justice and to break the norm of unfair elections in Dominica, we should try our hand at the CCJ," the source who chose to remain anonymous stated.

The party official said the matter is still being discussed and they are hoping that an amicable decision will be reached.

The matter arose succeeding the December 2019 general elections in Dominica, where the Dominica Labour Party (DLP)emerged victorious. In January 2020, the UWP filed election petitions alleging several irregularities in the election process and sought to have the court overturn the results in St. Joseph, Mahaut, Morne Jaune, La Plaine, Castle Bruce, Salybia, Roseau Valley, Roseau Central, Roseau South, and Wesley constituencies.

The respondents in turn filed applications to strike out the petitions on the basis, inter alia, that the petitions did not disclose causes of action against them and were abusing the process of the court.

The applications to strike out the matter before trial was heard and granted by Justice Glasgow in October 2020 and the election petitions were struck out on the basis that the petitions lacked the necessary details or specificity to disclose causes of action against any of the respondents.

The High Court Judge also awarded costs to the respondents in the sum of $5,000 stating that the petitions could have done that under a single or at the most two petitions, deeming the ten a "waste paper, time, and money to respond to all ten petitioners which were unnecessary."

Discontented, the UWP, in November 2020, appealed the decision claiming that the Judge specifically erred in law.

They also appealed against the order of cost stating that "the Order fails to consider that the Petitioner's/Appellants summary for direction application in January 2020 requested that the petitions be dealt with as one petition and for further directions of the court."

At the appeal hearing on April 28, 2021, lead counsel for the DLP team Senior Counsel (SC) Anthony Astaphan told the Judges that the court had no jurisdiction to entertain the appeal, asking that the matter be dismissed with cost to the respondents.

He said Justice Glasgow's decision was not a final decision to which a right of appeal attached under sections 40(6) and 40(7) of the Constitution of the Commonwealth of Dominica ("the Constitution"), and therefore there is no jurisdiction vested in the Court of Appeal to hear and determine the appeals.

Astaphan further argued that it was an abuse of the court process that the petitioners came to appeal the ruling of Justice Glasgow.

However, the attorney for the petition, Zahidha James said this is a matter of public importance with implications for democracy.

She further pointed out a number of the Judge's legal findings which, she says, were erroneous, arguing that the matter before the learned Judge was of great public importance and, therefore, it is not in keeping with the overriding objective and the public interest for the election petition proceedings to end at this stage in view of the judge's errors.

James added that if the ECSC has no jurisdiction to hear the matter politicians would feel free to do as they please.

In the judgment of Chief Justice, Hon. Dame Janice Pereira, Hon. Mde. Gertel Thom Justice of Appeal and the Hon. Mr. Gerard St. C. Farara, QC Justice of Appeal [Ag.], the Judges said the application challenging the jurisdiction of the Court to hear an appeal, in circumstances such as the present case, it would be highly unusual for the Court to examine any alleged substantive errors or demerits of the decision of the court below, prior to the determination of the threshold of jurisdiction.

"Such an examination would be tantamount to an assumption of jurisdiction in relation to the substantive appeal for the purpose of determining whether the Court in fact had jurisdiction, "the appeal judges wrote in a 27-page ruling.

They added that although election petitions involve matters of considerable public interest, there are no legal principles that permit resort to such a course in proceedings of this nature.

The Judges further stated, there is no sustainable argument in this case that the learned judge exceeded the scope of inquiry required on an application to strike, and therefore that his treatment of the respondents' applications to strike out the election petitions transformed his decision into a final decision.

"The judge clearly confined himself to assessing the pleadings with a view to determining whether they were sufficient to sustain particularised cases for the avoidance of the election. In the circumstances, the judge's decision was not a final decision within the contemplation of sections 40(6) and 40(7) of the Constitution," the ECSC judges concluded.

The appeal was dismissed and the petitioners/appellants shall, within 21 days, pay costs to each of the respondents in the sum of $2,000.