Judge Grants Leave To Appeal Contempt Of Court Decision

Judge Drops The Gavel On Decision
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Judge Drops The Gavel On Decision

Basseterre, St. Kitts – Nevis
September 23, 2009

The Eastern Caribbean Court of Appeal has granted the Government of St. Kitts and Nevis leave to appeal the Contempt ruling against the Federation’s Attorney General, Dr. the Hon. Dennis Merchant.

Senior Counsel, Mr. Anthony Astaphan disclosed Wednesday that His Lordship Justice of Appeal, Michael Gordon also issued an Order granting the application for leave to appeal the refusal of High Court Judge Her Ladyship Rita Joseph-Olivetti discharge the injunctions which were issued by Resident Judge Mr. Justice Francis Belle.

“Justice Olivetti refused to discharge these Orders on a variety of grounds. AT the Court of Appeal this morning (Wednesday in St. Lucia), a single Judge of the Court of Appeal (Michael Gordon),  issued an Order granting, to the extent that leave was necessary, leave for us to appeal that refusal to discharge the injunctions,” said Mr. Astaphan.

“Indeed what was for us most satisfying, was that, that decision was made after considering submissions made both on behalf of the appellants, which are us and the respondents, which are Mr. Lindsay Grant and Mr. Shawn Richards,” said Mr. Astaphan.

“So it’s a good first step. It means that we have passed a threshold required for a successful prosecution of an Appeal and we are hoping to have everything filed by Friday at the very latest so we can expedite the hearing of the appeal on the question of the injunction,” said Astaphan in a telephone interview.

Senior Counsel also disclosed that the Court of Appeal has asked the Appellants (Government) to consent that the Contempt of Court Appeal be heard on the 8th of October in St. Vincent.

“We have readily agreed to that suggestion, because it’s a recognition that this Appeal on the question of Contempt is very urgent, and we are now waiting on the other side to consent,” said Astaphan.

He said he hopes that the lawyers for Richard and Grant “will not prevaricate and withhold consent to delay the hearing of the appeal in relation to the Contempt findings against the Attorney General.”

Mr. Astaphan noted that the Justice Errol Thomas is still to give his judgment in the substantive matter.

“We are awaiting his judgment most patiently. We are hoping obviously for all of the best. But so far we are happy with the Grant of Leave to Appeal the refusal to grant the injunctions. We are also very happy that the Court of Appeal wants to expedite the hearing of the Contempt matter,” said Astaphan.

“We are putting the challenge out to the lawyers for Mr. Richards and  and and Mr. Grant, if you think your Appeal is so, so absolutely strong, let us agree to have this matter heard in St. Vincent on the 8th of October to get an expeditious hearing from the Court,” said Astaphan.

He called for an end to “playing politics” in this Constitutional matter and “get these matters heard so we can go and have the General Election and let the people decide.”

The lone Parliamentary Representative in the 15-member lawmaking body and the unelected PAM political leader, Mr. Lindsay F. P. Grant have brought law suits against the Governor General, Attorney General, Electoral Commission, Supervisor of Elections and Constituency Boundaries Commission.

The Attorney General has asked the Court of Appeal to set aside the Judgment and Orders of the Justice including the Order of costs of the Learned Judge on several grounds.

He contended among other issues that the learned Judge erred in law and misdirected herself when she failed to strike out the application to cite the Appellant for contempt; the learned Judge erred in law and misdirected herself when she failed to consider and/or hold that the Respondent Shawn Richards has failed to meet the burden and standard of proof required to establish the serious quasi-criminal offence of contempt and that the learned Judge erred in law and misdirected herself when she held that she relied on matters which allegedly occurred in the National Assembly to hold that the Appellant was present in the National Assembly on the 8th July 2009 “and participated in the proceedings to lay the report.”

Also that by his legal advice, that the without notice order did not preclude the laying of the report before the National Assembly, the Appellant as Attorney General, facilitated the Government in violating the orders and as a result was in contempt of court.

The Appellant also contends that the learned Judge erred in law and misdirected herself when she failed to consider and/or hold that the without notice injunctions and orders against the Appellant as Attorney General, was in constitutional proceedings (which are not civil proceedings for the purposes of the Crown Proceedings Act) meaningless as (i) the Attorney General had absolutely no statutory duty to perform in respect of these proceedings, (ii) the orders made no mention of the proceedings of the National Assembly or section 50 (3) of the Constitution and no Minister or Member of the Assembly were parties to the proceedings, and (iii) the Boundaries Commission had already submitted its report to the Governor General.

Other grounds for appeal are that the learned Judge erred in law and misdirected herself when she held that “the Government had violated the without notice order” in that this issue was not before the Learned Judge’; there was no application before the Court concerning any breach by the Government, and there was and is no basis in fact or law for this extraordinary finding and that the learned Judge erred in law and misdirected herself when she failed to consider that the application to commit the Appellant for contempt is barred and the jurisdiction of the High Court ousted by the provisions of section 3 of the National Assembly (Powers and Privileges) Act Cap 167, and the provisions of section 45 of the Constitution; by Article 9 of the Bill of Rights which is part of the common law of the Federation of St. Kitts and Nevis and violated the fundamental principles of legal professional privilege.

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