It is inescapable to me that section 97 creates a narrower Œelection petition jurisdiction" in respect of questions as to the membership of the House of Representatives as distinct from the wider" election jurisdiction conferred on the High Court by section 37 applicable to the determination of questions of membership of Parliament other than questions as to the validity of the election of a member of the House.

The former jurisdiction which is narrower must be commenced by election petition and the latter wider jurisdiction can be commenced under the Rules of Court in the ordinary way.

The election petition jurisdiction is further proscribed in relation to the right of appeal.

Subsections (2) and (3) of section 98 provide:

"98(2) An appeal shall lie as of right to the Court of Appeal from any final decision of the High Court determining such a question as is referred to in section 97.

(3) No appeal shall lie from any decision of the Court of Appeal in exercise of the jurisdiction conferred by section (2) and no appeal shall lie from any decision of the High Court in proceedings under this section or section 97 other than a final decision determining such a question as is referred to in section 97".

As to the certification of the result, section 98(4) stipulates:

"98(4) The High Court or the Court of Appeal as the case may be shall certify to the Governor-General and the Supervisor of Elections its determination of the election petition brought before the court; and the return shall be confirmed or altered, or a writ for a new election shall be issued as the case may require in accordance with such determination."

The foregoing are special provisions which represent a departure from the ordinary rights of appeal and the general remedies cognizable under the civil law of Grenada. Further special provision as to time within which an election must be presented and as to security for costs are enacted by section 100 of the RPA.

These provisions were the subjects of the judgments in Prime V Nimrod - Civil Suit No. GDAHCV2003/051 and Sabga V Solomon (1963)

It has been oft recognized that these special provisions have been designed to safeguard the desirability of expedition in the determination of questions as to the membership of the elected House of Representatives to serve the higher purpose of stability and certainty in the administrative affairs of Government.

The main plank of the submissions made on behalf of the Attorney General is that the issue to be litigated under the Claim is a constitutional issue as to the interpretation of section 31(1) (a) and not an election issue.

Learned Counsel (Hugh Wildman) prayed in his aid the case of Jones V. Gibbs (supra). In that case, proceeding were commenced by way of originating summons in respect of the question as to whether the applicant was qualified to be appointed as a Senator.

Let me immediately accept the correctness of that decision which allowed the action to proceed by way of ordinary civil procedure. The simple reason is that the issue concerned membership of the Senate and not a question as to the validity of membership of the House of Representatives.

The case of Spencer V. Yearwood which was concerned with membership of the Senate of Antigua and Barbuda can be explained on the same basis.

What then is the true substance of the Claim? Assistance can be gleaned from the case of Peters v A-G (2002) 2 LRC 32.

The applicants in that case where both citizens of Trinidad and Tobago by birth and also had applied for and attained citizenship of the United States of America and Canada. They were nominated as candidates for the general elections of the House of Representatives. However, subsequent to nomination day but before the election day, they renounced their overseas citizenship. They were successful at the polls in their respective constituencies.

The defeated candidates applied for leave to bring Œrepresentation petitions" (the nomenclature statutorily applied to what are styled Œelection petition" in Grenada).

Leave having been granted, the applicants brought constitutional motions under the human rights constitutional jurisdiction of the High Court.

They contended that the bringing of the representation petitions was a violation of their constitutionally guaranteed fundamental human rights and that the issue of their disqualification on citizenship grounds from being validly elected to the House of Representatives was of no relevance.

It was further argued that the jurisdiction of the High Court to determine whether a person has been validly elected as a member of the House does not include a right to determine qualification for election, including citizenship qualification but is restricted to determining whether there were illegal electoral practices.

The latter argument was roundly rejected by de la Bastide, CJ who affirmed the finding of the trial judge that the question as to whether a person was validly elected included the question whether he was qualified for election.

In the words of the learned Chief Justice (at p 70 h):-

"It is difficult to see how a person can be validly elected as a member of the House of Representatives if he is not qualified to be a member."

The same reasoning can be applied to the Attorney-General"s argument. The applicants in Peters v A-G further urged that they were entitled to have the provision of the Constitution concerning their alleged disqualification from membership of the House interpreted by the constitutional court prior to the hearing of the representation petitions.

If acceded to, such procedure would allow for a right of appeal to the Privy Council on the interpretation of the Constitution. Each applicant sought declarations that the petitions were null and void and that he was duly qualified to be and entitled to remain a duly elected member of the House.

The trial judge having rejected their constitutional motions, they appealed. de la Bastide, CJ astutely observed that the applicants by their constitutional motions were seeking to have determined by the constitutional court the same issue raised on the representation petitions.

The Court of Appeal unanimously held that the issues raised by the constitutional motions could and should be decided in the proceedings on the representation petitions, including the citizenship disqualification question. Further, it was held that the proceedings should be pursued on the representation petitions and not on the constitutional motions.

Giving effect to this, the constitutional motions were dismissed and the representation petitions ordered to proceed in the election court. The learned Chief Justice made the following observation:

"To allow persons to apply for an interpretation of these provisions outside the context of election proceedings could render the whole regime prescribed for such proceedings by the Constitution and the Representation of the People Act irrelevant..."

I would respectfully adopt these words gratefully as reflective of my reasons for disagreeing with the main argument of the learned Counsel for the A-G.

Having regard to Peters v A-G I unhesitatingly hold that upon an election petition, the court can and ought to interpret such constitutional provisions that prescribe disqualifications from membership of the House of Representatives. It is of significance that the scheme devised by sections 97-100 of the RPA emanates from the Constitution itself. The jurisdiction created is special and sui generis. Disputes as to membership of the House of Representatives must be determined thereunder.

It is not open to the Attorney-General to sidestep this legislative scheme. To do so would be to deprive the proceedings of the statutory safeguards deliberately provided for by the legislature.

In endeavouring to circumvent the scheme the Attorney-General has embarked upon an abuse of the process of the court. It matters not that the election date has long passed and the information did not surface until after the time limits set out under section 100 of the RPA had passed.

No authority has been cited to advance and support the proposition that a challenge to the validity of the membership of an elected member of the House of Representatives can be brought outside of the procedure prescribed by section 97 of the RPA.

For completeness, it needs to be stated that the jurisdiction of the court as prescribed by section 101 of the Constitution is not applicable. Not only has this been conceded by learned Counsel for the Attorney General but also section 101(7) specifically eliminates questions referred to under section 37 from such original jurisdiction.

On the basis of the foregoing, the court is not clothe with the jurisdiction to entertain the claim in its existing form.

Procedural challenges

The Amended Notice of Application has been framed in the alternative. Having regard to my finding thus far, the alternative grounds have been rendered otiose. However, in the event that I am wrong, I shall treat shortly with the additional grounds, which were largely presented by means of the skeleton arguments and were not dealt with at any length by Counsel on both sides.

The First Respondent submitted that the Fixed Date Claim Form and the affidavits in support thereof do not disclose any legal basis for claiming that the Applicant was ineligible to be nominated as a candidate for the Constituency of the Town of St. George or for obtaining a declaration to the effect that his nomination and subsequent election to the House of Representatives is null void and of no effect.

It was urged that nothing was claimed against the First Respondent or any of the other Respondents. Confining myself to the case against the First Respondent, having perused the Fixed Date Claim Form and read the affidavits, I am satisfied that the Claimant has pellucidly set out the declarations being sought against the First Respondent and the affidavits provide the facts upon which the Claimant intends to rely.

The sufficiency of the evidence is a matter for the court should there be a hearing. The submission must therefore fail.
It was further submitted that the Fixed Date Claim Form has not been verified by a Certificate of Truth as required by Rule 3.12(1). This was responded to by an affidavit sworn to by Crown Counsel to the effect that the Certificate of Truth Form was detached by the counter clerk at the court office.

This averment was altogether interesting as such Certificate of Truth ought properly to form part of the statement of case. To date no such certificate has reached the court"s file. The requirement of a certificate of truth was ushered in with the new litigation culture introduced by CPR2000.

The importance of pleadings has been thereby elevated and the party is required to take responsibility for the pleading which can become evidence should the circumstances so demand. This is borne out by the use of the mandatory word "Œmust" in Rule 3.12 (1).

Having so said, the overriding objective requires that cases be dealt with justly and the court is obliged to consider also the saving of expense. I can see no impediment to the court acceding to an appropriate application to correct this important omission. This submission is therefore not fatal to the claim.

The First Respondent has also complained that he was not served with a form of acknowledgement of service as required by Rule 8.14 (1) (c). Without saying more, this omission can be cured by appropriate orders for the extension of time and the imposition of sanctions if necessary and does not attract fatality to this claim.

The final point worthy of mention is the submission that affidavit of Robert C. Nurse cannot be relied upon as proof of foreign law. This is a matter for the trial court and it would be premature to rule upon this matter at this stage of the proceedings.

The procedural objections are accordingly rejected in their entirety.

Order

It is ordered that the Fixed Date Claim Form stand dismissed for want of jurisdiction.

Costs

As the successful party, the First Respondent is entitled to his costs in any amount assessed by the Court in the absence of an amount agreed upon by the parties.

I consider a sum of $10,000.00 to be fair and reasonable having regard to the complexity of the matter.

Finally, the Court is extremely grateful to counsel on both sides for the tremendous assistance afforded and the extensive material made available for the resolution of this matter.