REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CvA. Nos.26 & 29 of 2001

                                                BETWEEN

WILLIAM CHAITAN                                          APPELLANT

   AND

FARAD KHAN                                                            RESPONDENT

CvA. Nos.27 & 30 of 2001

                                                BETWEEN

WINSTON PETERS                                                         APPELLANT

   AND

FRANKLYN KHAN                                                            RESPONDENT

Panel:  R. Hamel-Smith, J.A.

            J. Permanand, J.A.

            L. Jones, J.A.

Appearances:

            Dr. F. Ramsahoye, Q.C. and A.Ramlogan for appellant Chaitan

            Mr. F. Hosein and A. Ramlogan for appellant Peters

            Mr. A. Alexander, S.C., F. Solomon, S.C., D. Mendes, R. Armour and

            Mr. C. Quamina for the Respondents

Date:   March 28, 2001

JUDGMENT

Delivered by R. Hamel-Smith, J.A.

The appellants have challenged the decision of the trial judge before who petitions brought by the respondents are listed for trial, rejecting their application for a stay or adjournment of those petitions to a date after the Court of Appeal determines their appeals. Those appeals are against the decision of the High Court which ruled in favour of the respondents in Constitutional motions. Those motions have a direct bearing on the conduct of the hearing of the petitions. The Court of Appeal recently ruled that the hearing of those appeals be deemed urgent and fixed the date of hearing for April 24, 2001. 

In his ruling which forms part of the record before us, the trial judge considered the several authorities presented to him and the provisions in the Representation of the People Act ("RPA") that mandated that the petitions be heard expeditiously. I need not refer to those authorities in detail for they support the need for election petitions to be determined speedily, a matter that is not in doubt. The only observation that I make is that none of them were preceded by a Constitutional motion that challenged the competency of the petitions th emselves.

According to the trial judge, having taken into account the relevant law, the provisions of section 52 of the Constitution which give the Court jurisdiction to hear the petitions, the provisions of section 113 (3) of the RPA that give the discretion to adjourn the trial from time to time, he was of the view that it was in the public interest that the two petitions should be heard and determined speedily and expeditiously, notwithstanding the fact that the Constitutional motions had not yet been determined by the Court of Appeal.  

I fully appreciate that the judge was dealing in a summary way with the application so I am very circumspect to be too critical of his decision. I think however that it is plain from reading his reasons that he did not give any or any in depth consideration to the nature of the appeals that were pending but I shall return to this shortly.

The respondents submitted that there was no right of appeal from the decision of the judge in this matter and, if there was a right, the exercise of a judge's discretion is not something with which a Court of Appeal would lightly interfere. Counsel referred to Maxwell v Keun 1KB [1928] 645.

I prefer not to decide the first issue in light of the appeals pending before the Court of Appeal that may have a bearing on procedure in election petitions. On the second issue, there is no doubt that a Court of Appeal will be slow to interfere with the exercise of a judge's discretion. It is, as was said in Maxwell, that it would be in extraordinary circumstances it would review the decision of the judge who had exercised his discretion in dealing with a matter before him. The judge in that case refused to allow an adjournment of a trial because of the absence of the plaintiff. The plaintiff was on active duty in India and was unable to attend the trial. The Court of Appeal was of the view that the refusal would defeat the rights of the plaintiff altogether and to do that would be an injustice to one or other of the parties. It allowed the appeal. 

This statement of the law was reviewed in re Yates' Settlement Trusts 1954 1All ER 619 at 621. Maxwell was referred to and the Master of the Rolls in reviewing the authorities, said that:

"it may well be that an important case, is known to be subject to appeal to the House of Lords, or from a judge of first instance to the Court of Appeal, a judge may reasonably and properly think that it is in the general public interest not to decide another case on the same lines until the result of the case under appeal has become known. I say that it may be so. It depends very much on all the circumstances of the particular case".

While the case propounded by the Master of the Rolls was a hypothetical one, it at least shows that where such a case arises due consideration must be given to all the circumstances before exercising the discretion to adjourn or refuse an adjournment.

The judge stated that he would be hard pressed to unearth authority for the proposition just stated. As a result he discarded any consideration of the appellants' submission on this point.

An election petition of this kind is certainly novel in this jurisdiction. I am not aware that the procedure has ever been resorted to since the introduction of the RPA in 1967. If there has been it was not of significance and none were referred to us. The RPA contemplates that Rules of Court would be made to regulate the procedure to deal with petitions. Some 34 years on no rules have been made. The appeals in question challenge the competency of the petitions themselves based mainly on the failure to make rules. It is a significant challenge so much so that this Court (differently constituted) deemed the hearing urgent. Whether the appellants will succeed on appeal is not a matter for this Court at this time. What is material to the hearing of these petitions is that if the appeals are successful, the trial judge would be deprived of jurisdiction to hear the petitions altogether. It is true that Justice Archie ruled against the Constitutional motions but the appellants are exercising their undoubted right of appeal to challenge that decision.

The appeals have been fixed for hearing on April 24, 2001, some 28 days off. The appellants complain that if they are required to proceed with the trial of the petitions without a ruling from the Court of Appeal the Court hearing the petition will be deprived of the benefit of any guidance the Court of Appeal may render to the Court below. It is, they say, in the public interest that the petitions be deferred therefore until the appeal is determined as this will save substantial costs and judicial time.   

That is one side of the coin. On the other side, in the respondents' favour, there is nothing to prevent the petitions from being heard while the appeal is pending. The judge had already decided that he shall follow the ruling of Justice Archie on the jurisdiction point so that the petition can be determined on its merits. There can be no injustice to the appellants if this course is adopted and the issue of inconsistent decisions will not arise. And, in any event, the Act itself calls for a speedy determination of the petitions.

It must be accepted we are in unchartered waters and it is necessary for a trial judge to strike a balance, taking into consideration not only the public interest that these petitions should be heard speedily but also the public interest that there should be certainty in the law and be alive to the issues that confront him in the determination of the petitions.  

The judge appears to have considered the question of expedition as paramount and failed to weigh in the balance the nature of the appeals that were about to be heard. No one doubts the need for expedition in the hearing of these petitions but it is not the sole factor to be taken into account in the circumstances of this case.

Counsel for the respondents did suggest that the motions were filed for the purpose of delaying the hearing of the petitions. There is no evidence to support this contention and while one party may have a particular view of the motive behind his opponent's action, which is understandable, it is of no relevancy to this Court. Provision is made in the rules to deal with any matter that is an abuse of the process or that is frivolous and vexatious. The Constitutional motions have never been challenged on any of these grounds, at least there is nothing before us to indicate otherwise. They were filed shortly after the petitions were brought and there appears to have been no objection that they be heard before the petitions. The appellants exercised their right of appeal and given the importance of the challenge that goes to the heart of the petitions, the trial judge should have exercised restraint rather than haste.

When the Court of Appeal rules on the motions, the petitions will either go forward or be struck out. If the appeals are successful, it would be a matter for grave concern if at the same time, assuming the petitions are successful, there is an order of the High Court that upholds those petitions that have been struck down by the Appeal Court. There would be two valid orders each contracting each other. Awaiting the outcome of the appeals before the petitions are heard is prudent. At least, by then the court below will be bound by any ruling of the Court of Appeal. The applications before us are expressed in terms that seek only an adjournment until the determination of the appeals in the Court of Appeal. As Lord Denning stated in Yates, a judge must apply the law as laid down by the Court of Appeal "without any misgivings as to what the House of Lords may hereafter say".

Taking all these matters into consideration, I would reverse the order of the trial judge and order that the petitions be adjourned to May 1, 2001 to await the outcome of the appeals or further order.

With respect to the decision to hear the petitions together, I agree with the respondents that that can be the basis of a substantive ground of appeal after the determination of the petitions themselves. If the appellants can show that in some way the order was prejudicial or caused an injustice to their case then they can challenge the decision on appeal. It is in this context that the case of Ramkelwan v Alexander CvA 146/92 (unreported) is relevant and applicable. The order per se to consolidate is not as farfetched as it may seem given that the facts in both petitions are identical save for the allegiance sworn to.

In the very case referred to by the appellants, Nair v Teik [1967] 2 All ER 34, provision was made for consolidation and Lord Upjohn (p.40) viewed that provision as being solely for the purpose of expediting the petitions. I do not consider this ground of appeal urgent and would therefore order that it be deferred. It can await the final outcome of the petitions, should it become necessary.

I think that the fairest order in respect of costs is that costs of the appeals and in the court below be costs in the cause.

R. Hamel-Smith

Justice of Appeal

I agree entirely with the Judgment delivered by my brother Hamel-Smith J.A. I, however, would like to make the following observations.

In his ruling, the judge stated inter alia with regard to the application that was before him “Senior attorney for the Respondent, Chaitan, Dr. Ramsahoye made an oral application to this Court for a stay or adjournment or postponement of these proceedings. He then went on to clarify that he need not have said “stay” at all, he could say that he is applying for an adjournment of these matters. He is applying for an adjournment simpliciter of these matters; it is not a stay involving all the legal ramifications. His application is for an adjournment of the entire proceedings, meaning that nothing is to be done in the proceedings until the hearing and determination of the appeal in the constitutional motion by the Court of Appeal. He stated that the authority of this Court to adjourn these proceedings until the hearing and determination of the appeal is in its inherent jurisdiction.”

            Before this Court Senior Counsel for the Respondents urged the Court to refuse the appeal for the grant of a stay/adjournment in an interlocutory matter.  Counsel and referred to what de la Bastide, C.J.  stated in CvA.146/92 Seepersad Ramkelawan v Dhan Alexander, when an application for a stay was refused. “There are no circumstances in my view in which a party is permitted to stop a trial in order to challenge by way of appeal some ruling made in the course of that trial.”

In that case two rulings were challenged and the proceedings came to an abrupt halt for a period of some three years.

            With regard to the matter before this Court, the constitutional motions were filed on December 22, 2000 and heard in January 2001  Judgment was delivered on March 9, 2001.  An appeal was filed which challenged the jurisdiction of the court to hear the election petitions.

            This Court having found that the appeal should be heard expeditiously and as a matter of urgency, fixed the hearing for April 24, 2001 and of which the judge is aware. In the circumstances of this matter, as far as the application for the adjournment is concerned are in my view somewhat different and distinguishable from the facts and circumstances in Ramkelawan’s case and the submissions as advanced by senior counsel.

                                                            J. Permanand

                                                            Justice of Appeal

I agree for the reasons given with the judgments of Hamel-Smith, J.A. and Permanand, J.A.

                                                            L. Jones

                                                            Justice of Appeal