Originating Summons dismissed.
In response to the Defendants’ submission that procedurally, the application is improper due to the existence of disputes of fact which may not be resolved in a proceeding brought by an originating summons, the court found that that while there were recognizable differences in the evidence between that of the Plaintiffs and Defendants, there was no real dispute regarding the veracity of matters. Therefore, the originating summons was not an improper procedure to use to seek constitutional relief (para 36-38) Order 5 r.4(2) RSC.
In response to the Defendants’ submission that section 21(2) of the Constitution operates as a jurisdictional bar to the entertaining of this application for constitutional relief, because there exist other remedies such as is being explored by the bringing of an abuse of process application by all of the Plaintiffs, the court found that the Plaintiffs assumed the burden of persuading the court that the abuse of process – which they had resorted to in the trial process – was not a true alternative as it did not offer adequate means of redress. The Plaintiffs failed to discharge that burden. In the present situation, there is an alternative means of redress, and it is an application to stay proceedings, brought within the criminal process, to which the Plaintiffs have already helped themselves (paras 39-69). Missouri Bain Thompson v The Commissioner of Police 2015/PUB/con/00015 per Charles J (Bahamas), Herbert Bell v DPP and another [1985] AC 937, Gibson v The Attorney General of Barbados [2010] CCJ 3 (AJ), (2010) 76 WIR 137, Urban St Brice v The Attorney General of St Lucia [2016] ECCJ (Unreported) SLUHCV AP 2012/0027, at 27 DISTINGUISHED.
In response to the Defendants’ submission that the originating summons should be struck out under Order 18 r.19(1)(d), the Court found that the present application was pursued in the circumstance of a double-headed attack and in the face of section 21(2) of the Constitution, that the application has no bona fides and was contrived for the possible purpose of increasing the chances of the Plaintiffs’ success in their plaint against the defendants. But the court stopped short of describing it as frivolous and altogether an abuse of process. Therefore the court chose not to strike out the suit, but dismissed it (paras 70-81).
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