republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO

Claim No. CV 2015 - 03133 IN THE MATTER OF

SECTION 52(2) OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO

AND

IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT, CHAP. 2:01

AND

IN THE MATTER OF A PARLIAMENTARY ELECTION PETITION FOR

THE CONSTITUENCY OF MORUGA/TABLELAND HELD ON THE 7TH DAY OF SEPTEMBER 2O15

AND

IN THE MATTER OF THE ELECTION PROCEEDINGS RULES 2001,

BETWEEN

CLIFTON DE COTEAU Petitioner

AND

DR. LOVELL FRANCIS Respondent BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES Mr. Anand Ramlogan S.C., Mr. Kent Samlal, Mr. Wayne Sturge and Mr. Gerald Ramdeen, Attorneys-at-Law for the Applicant. Mr. Russell Martineau S.C and Ms. Alana Bissessar, Attorneys-at-Law for the Respondent.

REASONS

Introduction

1. On the 18th

September, 2015, the Applicant, Clifton De Couteau sought the Court’s leave

pursuant to Section 52(2) of the Constitution of the Republic of Trinidad and Tobago1 to

file a Representation Petition under the Representation of the People Act2.

1 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

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2. The Statement of Clifton De Couteau, as well as his supporting affidavit were dated the

18th

September, 2015. Because the documents were prepared after 4:00 p.m. on the 18th

September, 2015, they were lodged with the Registrar of the Supreme Court and filed on

the 22nd

September, 2015 and on the 21st September, 2015 respectively.

3. This Application immediately followed the hearing of the Application of Vasant

Vivekanand Bharath3 (“the related matter”) on the 18

th September, 2015. In the course

of that hearing, it was represented to the Court by Senior Counsel, Mr. Ramlogan, that the

five (5) Applications which followed were essentially the same as that of the related

matter. Mr. Ramlogan, S.C. also underscored the extreme urgency of this Application,

because of the time by which the Petition would be required to be filed if leave were

granted. Accordingly, because of the submission as to urgency and because Mr.

Ramlogan, S.C. had assured the Court that arguments would be the same as those in the

related matter, this matter was determined without an oral hearing.

4. I perused the filed documents and I was satisfied that the Application was not frivolous or

vexatious and that it could not be said that it had no chance whatever of success. I granted

leave as sought. My reasons for so doing are set out below.

Procedural History

5. At the hearing of the Application for leave the Court was seized of the following

documents:

The Statement of Clifton De Couteau as lodged with the Registrar of the Supreme

Court on the 18th

September, 2015 and later filed on the 22nd

September, 2015.

2 The Representation of the People Act, Ch. 2:01

3 The Application of Vasant Vivekanand Bharath – CV 2015-03107

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By this Statement, the Applicant sought the Court’s leave to file a Representation

Petition to seek these items of relief:

“a. that it be determined that Dr. Lovell Francis was not duly elected or

returned for the constituency of Moruga/Tableland and that the election

was void;

c. all necessary and consequential order [sic] and directions and such

further and/or other reliefs as the Court shall deem fit”

The Application for leave was supported by the affidavit of Clifton De Couteau

sworn and lodged with the Registrar of the Supreme Court on the 18th

September and

filed on the 21st September, 2015.

6. The Applicant also filed a Draft Petition.

Facts

7. On the 7th

September, 2015 the people of Trinidad and Tobago went to the polls in order to

elect members of the House of Representatives pursuant to Section 69 of the Constitution4.

8. Mr. De Couteau had been validly nominated to contest the general elections in the

constituency of Moruga/Tableland. He received ten thousand, two hundred and eight

(10,208) votes, while his opponent from the People’s National Movement (PNM), Dr.

Lovell Francis won at ten thousand, eight hundred and eight (10,808) votes5.

9. Mr. De Couteau deposed that on the day of the poll, the Election and Boundaries

Commission (“the EBC”) had issued a media release that voting time had been extended to

7:00 p.m. on account of inclement weather.

4 The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

5 See paragraph 2 of the Draft Proposed Petition exhibited as “C.D.1” to the affidavit of the Applicant, Clifton De

Couteau

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10. He stated, at paragraph 11 of his affidavit, that he had never been personally advised by the

EBC of the extension of voting time and that at 5:15 p.m. on election day, it was brought to

his attention by one of his activists that the PNM had placed a post on its Facebook page

indicating that voting time had been extended.

11. Mr. De Couteau stated that he called Mr. Davendranath Tancoo, who was General

Secretary of the Unit National Congress (UNC) in order to verify the information. Mr. De

Couteau stated that he was informed by Mr. Tancoo and believed that Mr. Tancoo had also

heard the rumour and was in the process of verifying it.6

12. Mr. De Couteau referred to his unsuccessful attempts at contacting the returning officer,

Mr. Cecil Bailey7. Mr. De Couteau also stated that he received a report from Mr. Rajiv

Katwaroo of the refusal of a Presiding Officer to extend voting time.8 The report of Mr.

Katwaroo was exhibited to the affidavit of Mr. De Couteau and marked “C.D.4”. From the

report of Mr. Katwaroo, I inferred that there was evidence that information concerning the

extension in voting times had not been uniformly disseminated and had not reached

officials of all polling stations.

13. Mr. De Couteau stated that by 6:15 p.m., his activists had left the campaign office and that

his election mobilization team had practically shut down.9

14. At paragraph 17, Mr. De Couteau stated that he received numerous complaints from

constituents that they were unaware of the extension. Mr. De Couteau deposed that his

6 Paragraph 12 of the affidavit sworn by Clifton De Couteau on the 18

th September, 2015


th September, 2015


th September, 2015


th September, 2015

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supporters complained that no one contacted them to inform them of the extension so that

they could cast their vote.10

15. Mr. De Couteau exhibited an article dated the 8th

September, 2015, purportedly written by

Gail Alexander. Ms. Alexander had this to say:

“Inclement weather throughout all of Trinidad and Tobago marred yesterday’s

exercise...Rains which began midmorning and continued late into the evening

prompted the PNM to seek to have the EBC extend the close of poll time from 6:00

p.m. to 7:00 p.m. in Trinidad though not in Tobago.”11

Submissions

16. In this Application, Mr. Ramlogan, S.C. relied on Submissions made in support of the

Application of Vasant Vivekanand Bharath.12

Law

17. Section 69 of the Constitution of the Republic of Trinidad and Tobago13

provides for the

conduct of a general election of members of the House of Representatives in Trinidad and

Tobago. General elections are conducted according to the provisions of the

Representation of the People’s Act14

.

18. By Section 3 of the Representation of the People Act15

, the EBC is required to exercise

general direction and supervision over the administrative conduct of elections. The EBC is

10

Paragraph18 of the affidavit sworn by Clifton De Couteau on the 18th

September, 2015 11

See “C.D.5” annexed to the affidavit sworn by Clifton De Couteau on the 18th

September, 2015 12

Application of Vasant Vivekanand Bharath – CV 2015-03107 13

The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01 14

The Representation of the People Act, Ch. 2:01 15

Ibid

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required to enforce on the part of all Election Officers fairness, impartiality and

compliance with the Representation of the People Act16

.

19. By Section 71(8) of the Constitution17

, the EBC is empowered to regulate its own

procedure.

20. By Rule 27 of the Election Rules18

, the taking of the poll for a general election is required

to be held between 6:00 a.m. and 6:00 p.m. Rule 27(2) requires that the polling station be

kept open, if at the time of the closing of the poll, there are electors in the polling station

who had not cast their vote.

21. Rule 56 of the Election Rules19

states:

“s. 56 (1) Where proceedings at a polling station are interrupted or obstructed by

riot or open violence, the Presiding Officer shall suspend the

proceedings and report the matter to the Returning Officer. Where

the poll is not reopened by 6:00 p.m. it shall be adjourned until the

following day.

(2) Where the poll is adjourned at a polling station under this rule –

(a) the hours of the poll on the day which it is adjourned shall be

the same as for the original day’ and

(b) references in this Act to the close of the poll shall be construed

accordingly.”

16



The Election Rules, Ch. 2:01 19

Ibid

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22. Section 52 of the Constitution of the Republic of Trinidad and Tobago20

states:

s. 52 (1) “Any question whether:-

a) Any person has been validly appointed as a Senator or validly elected

as a member of the House of Representatives;

.....

Shall be determined by the High Court

s. 52 (2) Proceedings for the determination of any question referred to in sub

section (1) shall not be instituted except with the leave of a Judge of the

High Court.

23. Section 52(2) of the Constitution21

is echoed in Section 106 of the Representation of the

People Act22

Chapter 2:01 which provides:

“The following questions shall be referred to and determined by the High Court in

accordance with sections 106 to 129:

a) Where leave has been granted under section 52 (2) of the

Constitution, any question whether any person has been validly

appointed as a Senator or validly elected to the House of

Representative and;

......

20


Ibid 22

The Representation of the People Act, Ch. 2:01

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(2) Every such reference shall be by a petition, in this Act referred to as a

Representation Petition.

(3) A petition complaining of no return or an insufficient return shall be deemed to

be a representation petition.”

24. Sections 107 and 108 of the Representation of the People Act23

identify the proper persons

who may present representation petition as well as the time lines for such presentation.

25. According to Rule 6 of the Election Proceedings Rules24

, an application for leave to the

High Court must be made ex parte. Rule 6 provides:

“An application for leave to institute proceedings pursuant to section 52 of the

Constitution shall be made ex parte and be supported:

a) By a statement setting out the name and description of the applicant,

the relief sought and the grounds on which it is sought; and

b) By an affidavit verifying the facts relied on.”

26. Chief Justice de la Bastide in Re the Constitution of Trinidad and Tobago, William

Chaitan; Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin

Khan and Farad Khan25

explained the purpose of granting leave under Section 52(2) of

the Constitution26

. According to de la Bastide, C.J., the requirement for leave in election

proceedings serves the same purpose as it is intended to serve in Judicial Review

23


The Election Proceedings Rules, Ch. 2:01 25

William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001. 26

The Constitution of the Republic of Trinidad and Tobago, Ch. 1:01

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proceedings that is, to prevent the launching of actions that are frivolous and vexatious and

plainly have no chance whatever of success. Chief Justice de la Bastide had this to say:

“While election proceedings may be regarded as “sui generis”, they are more akin

to civil than criminal proceedings... whenever leave is required before civil

proceedings are commenced, it is the invariable practice that such leave is may be

applied for and granted ‘ex parte’. The most common case in which such leave is

required is for the institution of judicial review proceedings... the requirement for

leave in these cases serves the same purpose as it is intended under section 52,

namely to prevent the launching of actions that are frivolous and vexatious or

plainly have no chance whatever of success.”27

(emphasis mine)

Reasoning and Decision

27. In the instant Application, as with the related matter28

, the Court’s concern was to decide

whether or not to grant leave under Section 52(2) of the Constitution29

. The Court

considered whether the case as presented appeared to be frivolous or vexatious, or whether

it plainly had no chance whatever of success.

28. In so doing, the Court was guided by the test to be employed at an application under

Section 52(2) of the Constitution30

, as expounded by de la Bastide C.J., in the well-known

and landmark decision in Chaitan and Peters v. AG31

, where the learned Chief Justice

27

Per Chief Justice de la Bastide in C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001 re Constitution of Trinidad and Tobago, William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan at pg. 16 of 40 28

Application of Vasant Vivekanand Bharath – CV 2015-03107 29


Ibid 31

William Chaitan, Winston Peters v. The Attorney General of Trinidad and Tobago, Franklin Khan and Farad Khan C.A.CIV.21 of 2001 and C.A.CIV.22 of 2001.

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compared the Section 52(2) application to applications for leave for judicial review. The

purpose of leave in both kinds of cases was “to prevent the launching of actions that are

frivolous and vexatious or plainly have no chance whatever of success…”

29. I considered the affidavit of Mr. Clifton De Couteau together with the written and oral

submissions which had been made in the related matter32

and on which Mr. Ramlogan,

S.C. relied. It was my view that it was not possible to classify this case as frivolous or

vexatious or having no chance whatever of success. In my view, the Applicant had

surmounted the very low threshold provided by the law and could proceed to the inter

partes stage, where the merits of his application could be fully ventilated and assessed.

30. The very clear evidence was that on the 7th

September, 2015, as Trinidad and Tobago went

to the polls, the EBC extended voting time by one (1) hour due to inclement weather. The

evidence which emerged from the affidavit of Mr. De Couteau suggested that the

Applicant and his constituents were unaware of the extension of polling time.

31. It was also undisputed on the evidence that the Applicant received complaints from his

supporters who wished to vote and were prevented from doing so either by their ignorance

as to the alteration in voting time or because they were prevented from voting because

officials at polling booths were unaware or uncertain of the change. Mr. De Couteau

provided no evidence of the number of persons who complained. It was my view however

that there was evidence that there were numerous persons who would have voted for the

Applicant, had they known of the alteration in voting times. From such evidence, it was

possible to infer that it was open to the Applicant to argue that the breach by the EBC had

excluded a number of his supporters from voting and had thus materially affected the result

of the election.

32

Application of Vasant Vivekanand Bharath – CV 2015-03107

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32. I proceeded to apply the law to the facts which emerged from the affidavit of Mr. De

Couteau. It was clear that by altering polling times, the EBC had acted contrary to the

times provided by Rule 27 of the Election Rules33

, and that there was no provision which

authorised such a change. By Section 71(8) of the Constitution34

, the EBC was invested

with power to regulate its own procedure. It was however arguable that an alteration in

polling times was not a matter of procedure and that the times were established, so as to

ensure certainty as to voting times, and a level playing field for all concerned.

33. In my view, it was arguable that the Election Rules35

envisaged that there would be set

polling times that would not be changed, even where the polling day was adjourned

because of riot or violence36

. It was therefore arguable, in my view, that the Election

Rules37

were structured to avoid arbitrariness, uncertainty and unfairness. This was

arguably beyond the power of the EBC to change by regulating its own procedure.

34. I considered whether the allegation that the EBC had omitted to alert Applicant and his

supporters of the extension in a timely manner may have further exacerbated the illegality.

In my view, there was evidence of persons who would have voted for the Applicant had

they been aware of the change and that those votes may have materially affected the

outcome of the elections38

. These were in my view, issues which were not frivolous and

which ought to be ventilated at a full hearing.

35. It appeared to be arguable that the action of the EBC constituted a serious illegality, which

could arguably have had the effect of rendering the poll null and void. In my view, it was

33




Rule 56 of the Election Rules, Ch. 2:01 37

Ibid 38

Paragraph 18 of the affidavit sworn by Clifton De Couteau on the 18th

September, 2015

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arguable that such illegality, if established inter partes could not be described as a mere

breach of the Election Rules39

, where such breach only became relevant if it materially

affected the outcome of the election.

36. It was therefore my view that it was appropriate to grant leave so that the entire matter

could be ventilated with full evidence and arguments from the EBC.

Dated this 27th

day of October, 2015.

M. Dean-Armorer

Judge40

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Ms. Joezel Williams & Ms. Aleema Ameerali, Judicial Research Counsel (JRC)

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