(I) The First Respondent is a Grenadian by birth;

(ii) The First Respondent has acquired citizenship of Canada;

(iii) The First Respondent acknowledged the fact of his Canadian citizenship publicly;

(iv) The First Respondent was required to subscribe to an oath of allegiance as a condition; and

(v) The First Respondent was nominated, contested the elections for the Constituency of the Town of St. George and was declared the winner.

The contention of the Attorney-General as embodied in the Claim is that there has been a violation of section 31 (1) (a) of the Constitution, which reads as follows:

"31 (1) No person shall be qualified to be elected as a member of the House of Representatives if he - (a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state;"

The Claim is stated to be brought pursuant to section 37 (1) (b) of the Constitution, which addresses the determination of questions as to membership of Parliament.
More specifically subsection (1) para (b) provides:

"37 (1) The High court shall have jurisdiction to hear and determine any question whether -

(b) Any person has been validly elected as a member of the House of Representatives;"

Subsequent to the service of the Fixed Date Claim Form and the affidavits in support thereof, the First Respondent (Peter David) applied by an Amended Notice of Application filed on February 13, 2006 for the said Fixed Date Claim Form to be struck out.
The application seeks the dismissal of the Fixed Date Claim Form on three alternative grounds, namely:

(i) The High Court has no jurisdiction to entertain the Claim since the special jurisdiction conferred by section 37 (1) (b) of the Constitution to hear and determine any question as to whether any person has been validly elected as a member of the House of Representatives may not be invoked by Fixed Date Claim as employed by the Attorney-General;

(ii) The Fixed Date Claim Form discloses no reasonable cause of action and is an abuse of the process of the court; and

(iii) The Claim is defective and incurable for failure to comply with mandatory requirements of CPR2000.

The present proceedings are for the consideration of the Amended Notice of Application which has been vigorously opposed on behalf of the Attorney General.

The Supervisor of Elections and Brenda Hood, the second-named and third named Respondents respectively, were not represented nor did they take part in the hearing of the application.

Before dealing with the arguments on both sides, it is pertinent to avert to the procedural basis upon which the court can entertain the present application. This was referred to in the skeleton argument of the First Respondent without challenge.

It is provided by Rule 9.7(1) (a) of the Civil Procedure Rules 2000 that a defendant wishing to dispute the jurisdiction of the court to try the claim may apply to the court for a declaration to that effect. However, before doing so, an acknowledgment of service must be filed Rule 9.7(2) as has been done in the present proceedings on February 9, 2006.

Further, such application must be made within the time limited by the Rules for the filing of a defence (Rule 9.7 (3), that is to say, as a general rule, within a period of 28 days after the date of service of the Claim Form with the Statement of Claim.

The present Claim having been brought by Fixed Date Claim Form, the court exercised its powers of case management at the first hearing and rendered direction for the hearing of the application challenging the jurisdiction of the Court.

Jurisdiction Challenge

The fons et origo of the challenge to the court's jurisdiction is the conceded fact that the Claim by the Attorney-General has been brought pursuant to section 37 (1) (b) of the Constitution.

The Claimant argued that this provision conferred wide jurisdictional powers on the High Court to determine questions as whether any person has been validly elected to the House of Representatives. The point was made that, since the factual matrix of the Claim was discovered outside of the statutory period prescribed by section 100 of the Representation of the People's Act, 1993 ("RPA"), the present case is not nor intended to be one to be initiated by an election petition.

The distinction was made that this claim seeks to impugn the eligibility of the First Respondent to be nominated and elected by virtue of his lack of qualification for membership of the House of Representatives and does not seek to challenge the conduct of an election. The argument followed a similar one put in Gladys Petrie V. A-G (1968) 14 WIR 292 (at P. 297 E) to the effect that to hold the court to be powerless to adjudicate upon the question as to whether a person has been validly elected as a member of the House of Representatives would be to render section 31 of the Constitution redundant.

To complete the argument, learned counsel for the Attorney-General (Hugh Wildman) conceded that had the facts alleged come to the knowledge of the Attorney-General in the context of an election, then the matter would properly have had to be brought by way of election petition.

Put another way, it was said that since the conduct of an election was not in issue, the Claimant was not required to proceed by way of an election petition. It was reasoned that any other interpretation of section 37 as it applied to section 31(1) (a) of the Constitution would allow for a continuing breach of entrenched provisions of the Constitution.

Learned Counsel relied on the case of Jones vs. Gibbs et al (1998) 2 WIR 311, wherein the High Court of Grenada held pursuant to the 1967 Grenada Constitution Order (section 37 of which was identical to section 37 of the present Constitution), that since no provision was made under section 37 (5) of the Constitution by the legislature as to the procedure to be followed in bringing an application under section 37 (1) before the High Court, the applicant was within his right to bring an application to determine the validity of his appointment as a Senator by originating summons.

The said section 37(5) enacts:

"37 (5) Parliament may make provision with respect to -

(a) the circumstances and manner in which and the imposition of conditions upon which any application may be made to the High Court for the determination of any question under this section; and

(b) the powers, practice and procedure of the High Court in relation to any such application"

It must at once be pointed out that the Jones' case dealt with the eligibility of the applicant to be appointed as a Senator of the legislature contrasted with the present case which addresses the validity of the election of a member of the House or Representatives.

The significance of this divergence of fact shall assume significance when I return to treat with the Jones' case in the context of section 97 of the RPA. The same distinction would also arise with reference to the recent case of Spencer V. Yearwood - Civil Suit No. ANUHCV2003/0139, in respect of which there was no jurisdictional challenge.

There is no demur that the locus standi of the Attorney-General as explicitly relied upon to bring the Claim is to be found in section 37 (2) of the Constitution which so far as relevant, reads:

"37 (2)... An application to the High Court for the determination of any question under subsection (1) (b) of this section may be made by any person entitled to vote in the election to which the application relates or by any person who was a candidate in the election or by the Attorney General.."

The submissions on behalf of the First Respondent were premised upon the stated application by the Attorney-General for declarations that the First Respondent is ineligible to be nominated as a candidate for the Constituency of the Town of St. George and that his nomination and election are null and void, and also upon the concession, on the pleading and arguendo, that the Claim is being brought under the jurisdictional power of the court residing in section 37 (1) of the Constitution.

The fundamental contention of the First Respondent is that the declarations sought are substantially an application seeking a determination of the question as to whether Peter David has been validly elected to the House of Representatives.

It was asserted that such question required the invocation of the election petition procedure prescribed by section 97 (2) of the RPA since the specific election petition jurisdiction was conferred on the High Court by the conjoint effect of section 37 (5) of the Constitution and the said section 97 (2).
Ergo, no election petition having been filed, the court has no jurisdiction to determine the Claim by the Attorney-General.

It was further argued that this specific election petition jurisdiction cannot be sidestepped or outflanked by invoking the original jurisdiction conferred on the High Court by section 101 of the Constitution to resolve constitutional questions or by invoking the wider special election jurisdiction conferred on the high Court by section 37 (1) of the Constitution.

The point was made that in the exercise of the specific election petition jurisdiction, the High Court had the power to interpret provision of the Constitution directly relevant and integral to the determination of the question including questions as to disqualification based on citizenship, as in this case.

Further, the High Court has jurisdiction upon an election petition to interpret the Constitution as well as statutory provision to ascertain the nature and extent of its jurisdiction.

In defence of the challenge to the jurisdiction of the court by way of an objection in limine, the First Respondent asserted that such an attack ought to be mounted within the proceeding rather than by way of a collateral proceedings such as by a constitutional motion, as was the case in Peters V. A-G (2002) 3 LRC 32.

The court was urged to treat the defect in procedure as fatal having regard to the strict compliance required of election petitions. In addition, the court was invited to strike out the claim as being an abuse of the process of the court as it sought to avoid the safeguards prescribed for election petitions.

As I see it, the present application requires the court to decide, as an issue of law, whether the jurisdiction conferred to the High Court under section 37 (1) (b) of the Constitution to determine "any question whether any person has been validly elected as a member of the House of Representatives", can only be invoked by way of election petition to the exclusion of any other method of starting proceedings.

In order to understand the genesis of the jurisdiction of the court, it is useful to briefly refer to its historical contest. Such jurisdiction was never enjoyed by the courts at common law. It would appear that from time immemorial, the electoral issues were resolved by the vote of the entire House of Commons in the exercise of its privilege.

This political approach subsequently gave way to a tribunal comprised of members of the house. There followed a system by which election petitions were tried by selected committees of members. In 1866 the courts of law were by stature entrusted with the trial of controverted elections of the House. In the case of Grenada, this jurisdiction has been conferred by the Constitution.

The declarations sough by the Attorney-General are aimed at nullifying the nomination and subsequent election of the First Respondent. The disqualification complained of is grounded upon section 31 (1) (a) of the Constitution.
Section 37 (1) falls under the heading of "General Provisions" in Chapter 3 of the Constitution which chapter is devoted to "Parliament". Subsection (b) thereof confers on the High Court jurisdiction to hear and determine any question whether any person has been validly elected as a member of the House of Representatives.

The locus standi to invoke such jurisdiction is provided for in section 37 (2), wherein the Attorney-General is identified as one of the persons permitted to apply to the court for the determination of among other questions, any question under section 37 (1) (b) of the Constitution.

This is the wider election jurisdiction upon which the Attorney-Genera has relied for the purpose of bringing proceedings by Fixed Date Claim Form. However, the matter does not end there as subsection (5) of section 37 has granted power to parliament to pass legislation with respect to the exercise of that jurisdiction.

it must here by borne in mind that section 37 enjoys the deepest level of entrenchment in the Constitution. Since section 37 (5) has not been stipulated to have been made subject to the provisions of the Constitution, the entrenchment has been removed to allow for Parliament to pass ordinary legislation by a simple majority.

This legislative dispensation was similarly employed in para 5 of Article 71 of the 1970 Constitution of Guyana which was similar in terms of section 37 (5) of the Grenada Constitution.

The following dictum in Singh V. Butler (1973) 21 WIR 34 (at P.44H) is helpful in making the point.

Bollers, CJ said:

"The words subject to the provisions of the Constitution are conspicuous by their absence. It is clear, therefore, the parliament has been given carte blanche in relation to passing laws in respect of the circumstances and manner in which and the conditions upon which proceedings for the determination of any question arising under art. 71(a) (b) (c) and (d) may be instituted in the High Court..."

This wide power to enact election laws for the determination of any question under section 37 pursuant to section 37 (5) has been exercised by the parliament of Grenada in the RPA, section 97 to 100 under the heading "Part VIII Election Petitions".

Section 97(1) enacts:

"97 (1)-In accordance with section 37 of the Constitution, the High Court shall have jurisdiction to hear and determine any question whether any person has been validly elected as a member of the House of Representatives, on application being made to the High Court for the determining of any such question" (emphasis added)

I pause here to highlight two aspects of section 97 (1). Firstly, there is a specific reference to section 37 of the Constitution; and secondly, the section is made specific to "any question whether any person has been validly elected as a member of the House of Representatives".
In effect the wording of section 37(1) (b) has been repeated.

(To be Continued)