Lindsay Fitzpatrick Grant Petitioner v Rupert Herbert 1 Respondent Leroy Benjamin 2 Respondent Wentford Rogers 3 Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: BELLE J.
• Judgment Date: 12 July 2006
• Judgment citation (vLex): [2006] ECSC J0712-2
• Date: 12 July 2006
• Court: High Court (Saint Kitts and Nevis)
• Docket Number: SKBHCV 2004/0182

[2006] ECSC J0712-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ST. CHRISTOPHER CIRCUIT

(CIVIL)

A.D. 2006

SKBHCV 2004/0182

In the Matter of the National Assembly Elections Act Cap. 162 of the Laws of Saint Christopher and Nevis (Revised Edition 1961)

And in the matter of the Saint Christopher and Nevis Constitution Order 1983

And in the matter of an Election for the Constituency 4 held on 25th day of October, 2004

Between:

Lindsay Fitzpatrick Grant

Petitioner

and

Rupert Herbert

1^st Respondent

Leroy Benjamin

2^nd Respondent

Wentford Rogers

3^rd Respondent

1 BELLE J. This is the fourth step in a marathon of proceedings brought to resolve matters arising from a Petition which was filed by Mr. Lindsay Grant of the People's Action Movement on 13^th November 2004 challenging the election of Mr. Rupert Herbert the 1^st Respondent and the candidate for the St Kitts & Nevis Labour Party on October 25^th 2004. Indeed on 26^th October 2004 the 3^rd Respondent had declared that the Petitioner received 919 votes the 1^st Respondent 970 and one Winston Warner 11. By order dated 28^th July 2005 a number of the allegations made in the Petition were struck out by Baptiste J on an application aimed at striking out the entire Petition. Both the Respondents and the Petitioner appealed against the decision of Baptiste J. However the Court of Appeal refused to hear the Appeal having upheld a submission by counsel for the Petitioner that the court lacked jurisdiction to hear an appeal on an interlocutory proceeding in an election Petition.

BELLE J.

2 At the outset Mr. Misick announced that the Petitioner would not be proceeding with the issue raised in paragraph 20 (i) of the Petitioner's affidavit of November 15^th 2004. This paragraph alleged that when numerous persons who were qualified to vote in the Elections did vote therein, identifying numbers or other marks were placed on ballot papers by Presiding Officers, in violation of the secrecy of ballot as it allowed the tracing of an elector's vote contrary to section 62 (1) of the National Assembly and Elections Act ("the Act") and Section 29(4) of the Constitution (The Constitution of the Federation of Saint Christopher and Nevis). It was a wise decision on the part of the Petitioner not to pursue this allegation.

3 Mr. Misick had also during the trial applied to have the number of ballots cast in constituency No. 4 polling division 2A recounted. I decided to wait to hear the addresses on the law before making a final decision on this matter. After having time to reflect I am of the view that such a recount and disclosure would serve no useful purpose. It is more than likely that if all of the votes in this polling division were to be declared null and voidbecause of the failure to inspect digits, both sides would lose a considerable number of votes. In this case the exact number is unknown. The result of such a count would be unlikely to make any difference in the result of the elections. Moreover this application should have been urged upon the court on some evidential basis and supported by the argument that there would be a change in the result or at least that the Respondent was likely to lose a specific number of votes which would affect the result. The Petitioner failed to make any such allegation and therefore the application for disclosure is refused. I do not see why in the circumstances of this case the court should assume that declaring the votes in polling division 2 A void would affect the result. The cases McAllister Hanchell v Noel Skippings et al Action CLNo. 25/03 and William Bruce Williams v Emmanuel Henry Geraudy (1978), 25 W.I.R 529 are instructive on this point.

4 Mr. Misick stated in his opening address on the behalf of the Petitioner that the Petition was asking the Court to avoid the Election of the 1^st Respondent because of irregularities committed by the Supervisor of elections and persons for whom he is responsible. Mr. Misick pointed out that the Court's jurisdiction was to be found in section 36 of the Constitution, while the procedure which was set out in Section 86 (1) of the Act was one of the most important provisions in that regard. There is no contention on these submissions.

5 Mr. Misick also submitted that the language in the section was the same as that addressed in the caseMorgan and others v Simpson [1974] 3 All ER 722. According to counsel, in Morgan, Denning LJ had summarized the law in the following terms. The result of Elections could be avoided if;

1. The elections were conducted so badly that they were not in accordance with the law.

2. If conducted in accordance with the law, the election would not be avoided provided that any breaches of law did not directly affect the result.

3. If breaches though trivialmay have affected the election results, the election was avoided.

This latter interpretation of Morgan and Simpson is contradicted in the judgment of Ground CJ in the caseMcAllister Hanchell v Noel Skippings et al

6 Mr. Misick submitted further that there were three categories of complaint made in the Petition; these were: 1. the compilation and integrity of the Voters List. 2.irregularities in conduct on polling day and 3. the fairness and impartiality of the Supervisor of Elections.

7 Counsel contended that as far as category 1 was concerned the submission was that in the system of elections provided for in the Act the integrity of the Voters List is crucial to election results reflecting the free will of the constituency. To elaborate he argued that if as a consequence of breaches in compilation of the Voters' List, election results could thereby be affected, and then the free will would not have prevailed.

8 Mr. Misick submitted further that in the second category the Petition raises a number of issues fundamental to a fair election. Firstly it raised the secrecy of the ballot, which is so fundamental that it has been elevated to and is now embodied in the constitution. Section 29 (4) of the Constitution says that in any election of representatives votes should be given by ballots in such a manner as not to disclose how any person votes. If voting is not secret it gives rise to all kinds of mischief including intimidation corruption and fear in an electorate. That is why the matter of secrecy is in the constitution to ensure that as far as humanly possible it is observed. It cannot be certain that the breach of secrecy did not impact on how persons voted.

9 Counsel submitted that if it is established that there was a violation of secrecy provisions; it is not an election substantially in accordance with the Act and the election should be avoided in spite of whether the ballot secrecy was proven to be a factor

10 In the third issue was the category "identification of voters," which involved persons being delivered with a ballot and allowed to vote. It is useful to refer to section 68 (4) of the Act. Indeed Mr. Misick noted that it stated that every voter shall "declare a name address and occupation." When stated, the polling clerk should identify the voter on the register. When satisfied that a person is qualified, name address and occupation should be placed in the poll book. Proper identification is essential for the process to work. Counsel gave the example that one complaint was that voters were allowed to enter the polling booth and give a number instead of name, address and occupation, a clear breach of the Act. The election officials should be able to compare the name with that on the Register, but givinga number circumvents this. If however the names are the same the persons should be dealt with pursuant to section 72 of the Act

11 Counsel added that another allegation related to identification of voters was that the digits were never checked. This failure meant that election officials could not be sure that persons who voted before did not vote a second time. He referred to section 72 which stated that persons applying after another had voted in the same name shall establish identity to the satisfaction of the election official. Counsel opined that this provision was designed to ensure that a person votes only once and that another person does not vote in a name, which is not his. All is subject to identification. Firstly according to learned counsel a person must prove his qualification to vote; second he is required to take the oath, and thirdly he must establish his identity as being a person entitled to vote, to the satisfaction of the presiding officer. In some cases a person had already voted and the person who came in with the same name was not administered any oath.

12 Counsel cited a broad principle that the matter was not about a personal contest between a winner and a loser, but the public has an interest in a free and fair election, which is paramount. If unfair damage is done not to the candidate but to the larger populace it is important that these allegations be looked at. The Poll Book and the Voters List would establish whether the allegations were true or not counsel insisted. He alleged that with regard to section 72, even where the oath was administered it was not the practice to ask for identification of the voter.

13 Counsel further submitted that the other point raised in the Petition related to fairness and impartiality of the Supervisor of Elections. He opined that the Supervisor was appointed pursuant to section 34 of the Constitution by the Governor General and according to section 35 of the Act the Supervisor is not to subject to directions and control of any other authority.

14 Section 83 of the Act directs that the Supervisor is to exercise certain powers. Sections 57 and 58 granted the right to make appointments. Counsel submitted that the Supervisorfailed to record objections. In addition on election day only one side was permitted in the restricted area.

15 Counsel also addressed...