Mahabir v Cuffie and Returning Officer for the Constituency of La Horquetta/talparo
| Jurisdiction | Trinidad & Tobago |
| Judge | Dean-Armorer, J. |
| Judgment Date | 15 April 2016 |
| Neutral Citation | TT 2016 HC 64 |
| Docket Number | CV 2015-03123 |
| Court | High Court (Trinidad and Tobago) |
| Date | 15 April 2016 |
High Court
Dean-Armorer, J.
CV 2015-03123
Mr. Anand Ramlogan S.C., Mr. Wayne Sturge, Mr. Gerald Ramdeen, Ms. Jayanti Lutchmedial,
Mr. Douglas C. Bayley, Mr. Varun Debideen, Mr. Kent Samlal, Attorneys-at-Law for the petitioner
Mr. Douglas Mendes S.C., Mr. Michael A.A Quamina, Mr. Terrence Bharath, Ms. Elena Araujo, Attorneys-at-Law for the respondent.
Civil practice and procedure - Application to have the Representation Petition dismissed on the ground that the petitioner failed to serve Notice of the Presentation of the Petition in the time prescribed by section 110 of the Representation of the People Act — Whether in the exercise of the jurisdiction conferred by the Representation of the People Act, the court had the power to enlarge or abridge timelines prescribed by that Act — Whether the petitioner presented his petition to the Registrar as required by section 107(2) when it was given to the Assistant Registrar — Whether presentation was made when the Petition was affixed with the stamp of the court.
The Court has heard a Notice of Motion filed by the First respondent seeking to have the Representation Petition dismissed on the ground that the petitioner failed to serve Notice of the Presentation of the Petition in the time prescribed by Section 110 of the Representation of the People Act [The Representation of the People Act Ch. 2:01].
In the course of this Ruling the Court considered whether in the exercise of the jurisdiction conferred by the Representation of the People Act [The Representation of the People Act Ch. 2:01], the Court had the power to enlarge or abridge timelines prescribed by the Act [The Representation of the People Act Ch. 2:01 ].
On the 18th September, 2015 leave was granted to the petitioner to file a Representation Petition pursuant to Section 52(2) of the Constitution [The Constitution Ch. 1:01].
A defence was filed by Maxie Cuffie, the First respondent on the 23rd October, 2015.
The decision to grant leave was appealed by the respondents. However the Court of Appeal, on the 30th November, 2015, dismissed the respondents' appeal.
When the matter was remitted to the High Court for the hearing of the Representation Petition, the First respondents filed a Notice of Application on the 10th December, 2015, to have the Petition dismissed. It is the Notice of Motion filed on the 10th December, 2015 that now engages the Court's attention. The Notice of Motion was supported by affidavits of the First respondent, Maxie Cuffie and Elena Araujo, attorney-at-law.
By order dated the 11th December, 2015, directions were given to the parties in respect of the filing of affidavits and submissions.
On the 14th January, 2016, the affidavit of attorney-at-law, Kent Samlal was filed in opposition to the Notice of Motion.
Parties filed Written Submissions and on the 3rd March, 2016 the Court heard supplemental viva voce submissions.
On the 7th September, 2015, General Elections were held in the Republic of Trinidad and Tobago. The First respondent, Maxie Cuffie was the representative for the People's National Movement (PNM). The result was in favour of Maxie Cuffie and by extension the PNM. Bonifacio Mahabir was a cocoa farmer in the constituency of Talparo and was entitled to vote as an elector at the Elections of the 7th September, 2015
On the 18th September, 2015, attorneys-at-law for the petitioner filed an Application under Section 52(2) of the Constitution [The Constitution Ch. 1:01] for Leave to present an Election Petition. Leave was granted as sought on the 18th September, 2015.
At around 7:10 p.m. on the said 18th September, 2015, the petitioner's Application for Leave to issue a Representation Petition was lodged with Assistant Registrar, Mr. Vigel Paul at the High Court of Justice, San Fernando [Paragraph 12 of the affidavit of Kent Samlal filed on the 14th January, 2016].
On 19th September, 2015, the Petition of Bonifacio Mahabir was left with Vigel Paul, Assistant Registrar of the Supreme Court, at around 5:30 p.m.
On the 19th September, 2015, the petitioner's Petition was prepared out of an abundance of caution. The need to act with caution was motivated by the awareness of the petitioner and his attorneys-at-law that the deadline for filing the Representation Petition fell on the 19th September, 2015, which was Saturday.
The need for caution was expressed by Kent Samlal, learned attorney-at-law for the petitioner in this way:
“Having regard to the fact that the deadline for filing of the Representation Petition for the constituency of La Horquetta/Talparo would have fallen to be the 19th September, 2015 that is eight (8) days after the Return of the Election Writ, the petitioner's Petition was prepared out of an abundance of caution provided to the Assistant Registrar of the High Court of Justice, San Fernando, Mr. Vigel Paul to see whether it could be immediately filed and served. Mr. Paul however indicated that whilst he could take custody of same, he could not file the documents until Monday…”
On the 19th September, 2015, at 5:30 p.m. Assistant Registrar, Mr. Vigel Paul took into his custody the Petition of Bonifacio Mahabir with the Supporting Affidavit [As stated in the letter dated 22nd January, 2016, from Mr. Paul to Ms. Elena Araujo. This letter is exhibited as “E.A.3” to the affidavit of Elena Araujo filed on behalf of the respondent on the 22nd January, 2016].
In his letter of the 22nd January, 2016 and addressed to Ms. Elena Araujo, Mr. Paul described the circumstances in which he received the documents on the 19th September, 2016:
“The documents were received by me in the lobby of the Supreme Court, Sub-Registry, San Fernando at the Information Desk. In accordance with the standard Protocol for receiving documents outside of the opening hours of the Registry…the Petition and the copies were endorsed as having been taken into my custody together with the date and time. Following the protocol, I would have indicated to the petitioner's attorney-at-law that the documents would be filed on Monday (the 21st) when the Registry opens and that they may attend then to collect their stamped copies. I do not recall any specific request comment or indication given by the petitioner's attorney-at-law at that time.
As I was proceeding on vacation on September 21, 2015, I placed the documents in my office and sent an e-mail note to Ms. Tricia Bhagwandeen-Sadho, Assistant Registrar, letting her know where they were so that she could process them when the Registry opened the following Monday…” [Extract from the letter of Mr. Paul exhibited as “E.A.3”]
Thereafter, on the 21st September, 2015, both the Application for Leave and the Petition were filed and the petitioner paid the sum of twenty thousand dollars ($20,000.00) such sum being the security of costs as required by Section 109 of the Representation of the People Act [The Representation of the People Act Ch. 2:01].
The First respondent was served with the Petition of the 24th September, 2015.
On the 28th September, 2015, the petitioner's Notice of Presentation of the Petition and the nature of the petitioner's security were served on the First respondent's attorneys-at-law.
The issue to be determined by the Court is whether the Presentation of the Petition was done within the prescribed statutory time limit.
Parties relied on the Written Submissions of their respective Senior Counsel.
Written Submissions were filed on behalf of Maxie Cuffie, the First respondent on the 22nd January, 2016. By their Written Submissions learned Senior Counsel for the respondent cited cases in support of their contention that, in election law, a breach of a time limitation will result in the dismissal of the Petition.
Learned Senior Counsel argued that the Petition of the petitioner had been lodged with the Registrar in accordance with Section 107(4) of the Act [The Representation of the People Act Ch. 2:01] on the 19th September, 2015. By virtue of such presentation, according to learned Senior Counsel, the petitioner ought to have served Notice in accordance with Section 110 of the Act [Ibid] on the respondent by the 25th September, 2015. Because Notice had in fact been filed on the 28th September, 2015, there had been a fatal breach of the time limitation and the Petition ought to be dismissed.
Written Submissions were filed on behalf of the petitioner on the 5th February, 2016.
At paragraph 16 of his Written Submissions, learned Senior Counsel identified the single issue before the Court in this way:
“Was the Petition presented when the Assistant Registrar took custody of the documents on Saturday 19th September, 2015 or when they were filed and returned on Monday 21st September, 2015. In the case of the former service was outside the statutory period whilst in the case of the latter the First respondent was properly served.”
It was submitted by learned Senior Counsel for the petitioner that Section 159(2) [Section 159(2) o the Act provides: “Where anything required by or under this Act falls to be done on a Saturday or Sunday or on any excluded day that thing may be done on the next day not being a Saturday, a Sunday or one of the excluded days…”] of the Act [The Representation of the People Act Ch. 2:01] provided “a complete answer” to the proposition of the First respondent. Learned Senior Counsel for the petitioner relied on Section 25(4) of the Interpretation Act [The Interpretation Act Ch. 2:01] in support of his argument.
Learned Senior Counsel relied also on Rule 7(2) of the Election Proceedings Rules [The Election Proceedings Rules – The...
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