Joseph Parry and Appellant v Mark Brantley Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: Mitchell JA [AG.],Don Mitchell Justice of Appeal [Ag.]
• Judgment Date: 27 August 2012
• Judgment citation (vLex): [2012] ECSC J0827-1
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: HCVAP 2012/003 HCVAP 2012/005
• Date: 27 August 2012

[2012] ECSC J0827-1

IN THE COURT OF APPEAL

EASTERN CARIBBEAN SUPREME COURT

NEVIS CIRCUIT

Before:

The Hon. Mde. Janice M. Pereira Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCVAP 2012/003

HCVAP 2012/004

HCVAP 2012/005

Between:

Joseph Parry and

Appellant

and

Mark Brantley

Respondent

Between:

[1] Leroy Benjamin (The Supervisor of Elections)

[2] Bernadette Lawrence (Registration Officer for the Constituency of St. John's)

Appellants

and

Mark Brantley

Respondent

Between:

Hensley Daniel

Appellant

and

Mark Brantley

Respondent

Appearances:

Dr. Henry Browne, Mr. Oral Martin with him, for Mr. Joseph Parry and Mr. Hensley Daniel

Mr. Anthony Astaphan, SC, Mr. Sylvester Anthony with him, instructed by Ms. Angela Sookoo of Sylvester Anthony & Associates for Mr. Leroy Benjamin and Ms. Bernadette Lawrence

Mr. Douglas Mendes, SC, Mr. Dane Hamilton QC, Mr. Keithley Lake, Ms. Jean Dyer, Ms. Dahlia Joseph, and Mr. Brian Barnes with him for Mr. Mark Brantley

Election petition appeal — Whether Constitution establishes a special Constitutional Court — Whether Elections Act establishes a special Elections Court of limited jurisdiction —203 registered voters removed from the Register — List of objections not published by Returning Officer as required by Regulations — Notice of objection not given to objectees — Notice of hearing of objection sent by registered post — Objectees not receiving notices within the 5 days minimum time required by the Regulations — Objectees disenfranchised on objections made by ruling party — Returning Officer a supporter of ruling party — Supervisor of Elections failing to publish Revised Monthly Lists — Supervisor of Elections ignoring request from opposition party to publish Revised Monthly Lists — Supervisor of Elections ignoring direction from Electoral Commission to restore removed names — Election eventually contested on a List published just 5 days before election — Persons removed from List not having opportunity to appeal — Whether duty to ensure receipt of notice of a hearing at which a person's rights may be affected — Whether proceedings such as hearing of objections to voters which do not come to the notice of the objectee are not a nullity — Whether failure to communicate an administrative decision which is adverse to an individual is not without legal effect — Whether failure to give notice of right of appeal invalidates the decision against which an appeal may be brought — Apparent bias — Bad faith and misfeasance in public office — Whether judge right to find election invalid and void — Government Radio Station only covering campaign events of ruling party — Opposition party political campaign not covered by Government media — Right to freedom of expression — Right not to be discriminated against on basis of political opinion — Right of the opposition to equal time on state media — Whether costs should have been ordered

This is an appeal from a decision of a trial judge in Nevis in which he granted some of the reliefs sought by Mark Brantley who lost the July 2011 election to the Nevis Island Assembly seat in District St. John's 2 constituency to Hensley Daniel by a margin of 14 votes. The evidence accepted by the judge was that the Registration Officer removed 203 registered voters from the Register of Voters in the months prior to the election. These were all removed on objections made by the governing party led by Joseph Parry and of which Mr. Daniel is a member. The Registration Officer did not ensure the objectees received notice of the making of the objections and of the date, time and place at which the objections would be considered. The Registration Officer was a party supporter of Mr. Parry's party, the party in power. The election to St. John's 2 was eventually contested on the basis of a revised list which was published just 5 working days before the election.

Bernadette Lawrence, the Registration Officer, did not post a List of Objections as required by the Regulations. She served notices of the objections on the voters by delivering the notices to the Post Office for posting by registered post. Some 114 of those notices were registered by the Post Office less than 5 days before the date of the hearing, or, in some cases, after the hearing date itself. She considered that the requirement for 5 days applied only to cases where the notice was served in writing and not to registered post. She took the view that she was not required by the law to be satisfied that the notices had been served. The result was that she heard the objections in the absence of the persons objected to, and she ordered the removal of their names from the Register.

Leroy Benjamin, the Supervisor of Elections and Chief Registration Officer, did not publish the Revised Monthly Lists for Nevis as required by the Elections Act. Such publication would have publicised the removal of the names from the Register. He took the view that Mr. Brantley was aware that it had never been the practice to publish the Revised Monthly Lists, and had in fact previously won elections under this system without complaint. Both Mr. Brantley and the leader of Mr. Brantley's party wrote Mr. Benjamin some months prior to the election requesting that he publish the Revised Monthly Lists, but he did not respond. The Electoral Commission, which is charged with supervising the Supervisor of Elections, directed Mr. Benjamin and Ms. Lawrence to restore to the List the names removed by Ms. Lawrence without notice to the objectees after hearing a complaint from Mr. Brantley, but Mr. Benjamin sought legal advice and, based on that advice, neither he nor Ms. Lawrence responded to the Commission or complied with the direction.

The trial judge also found that the decisions of Ms. Lawrence were tainted by apparent bias, but he did not hold that there was apparent bias because of her relationship with Mr. Parry's party. She had acted previously as polling agent for Mr. Daniel and she had attended executive party meetings at which she advised on financial matters.

The trial judge declared the election invalid on the ground that the principles of natural justice had not been followed in the process of upholding the objections. The trial judge also found that the Government's Radio Station's failure to carry any of Mr. Brantley's party's political events during the election campaign violated Mr. Brantley's fundamental constitutional right not to be discriminated against on the grounds of his political beliefs. The judge ordered each party to bear their own costs.

On the appeal, Mr. Parry and Mr. Daniel submitted that the trial judge had erred in making findings of a constitutional nature in dealing with an election petition. As an "Elections Court" he was limited to the jurisdiction granted by the statute governing elections. He erred in hearing objections to the registration process because as an Elections Court he was limited to dealing with errors in the election process. The proper forum for appeals against decisions of the Registration Officer was the appropriate appeal tribunal, and not the judge sitting in an Elections Court on the hearing of an election petition.

Mr. Parry and Mr. Daniel submitted that the trial judge erred in granting Mr. Brantley the constitutional declaration he sought. The sole function of an Elections Court is to determine the validity of membership in the Assembly. Constitutional relief is to be sought in a section 18 "Constitutional Court", which is a court peculiar unto itself.

Mr. Benjamin and Ms. Lawrence submitted that the trial judge misconstrued the law governing objections and failed to consider that the vast majority of the notices were returned by the Post Office on the basis that the addressees were not resident in St. John's, and were therefore not qualified to be registered. On the assumption the Registration Officer erred in not giving adequate notice to the objectees, the judge should either have sent the matter back to the Registration Officer for determination after proper notice, or the judge should have decided the matter of the residence qualification himself on the basis of the evidence. It was not open to him to have set the election aside.

On his cross-appeal, Mr. Brantley urged that the trial judge erred in failing to find, as he should have, that the List of Voters used for the election in the Constituency of Nevis 2 (Parish of St. John) was not the list required by section 48(1) of the Act to be used at the election. He also urged that, having found that the disenfranchised voters were not notified of the date and place for the hearing of objections to their registration, nor were they notified of the results of the objection hearings, and that the Registration Officer had failed to publish the List of Objections, the learned judge was wrong not to have found that as a consequence of any or all of these failures, the removal of the disenfranchised voters from the List was unlawful, null and void and of no effect. He also urged that, having found that the Registration Officer was in breach of the Regulations in not immediately sending out the notices of objection, the trial judge was wrong not to find that the Registration Officer acted in breach of Regulation 19 and was wrong not to find that the removal of the disenfranchised voters from the List was, on this additional basis, unlawful, null and void and of no effect. He also urged that the learned trial judge's failure to find that the decision of the Registration Officer to uphold the objections in all the circumstances was tainted with bias was wrong.

Held: (1) dismissing the appeals of Leroy Benjamin, Bernadette Lawrence, Joseph Parry and Hensley Daniel and upholding the decision of the trial judge (i) to declare the election for the constituency of Nevis 2 (St. John's) invalid and void and that...