Smith v Christopher et Al; George et Al v Parsons et Al
| Jurisdiction | British Virgin Islands |
| Judge | Rawlins, J. |
| Judgment Date | 23 July 2003 |
| Neutral Citation | VG 2003 HC 12 |
| Date | 23 July 2003 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHCV 0097 of 2003 |
High Court
Rawlins, J.
BVIHCV 0097 of 2003
Mr. Francis Belle for the petitioners in both Claims
Mr. Joseph Archibald, QC, with him Mrs. Dancia Penn, QC, Mr. Sydney Bennett, QC, Mr. Oscar Ramjeet and Ms. Michelle Matthew for the respondents Delores Christopher, Eileene Parsons, and Paul Wattley
Mr. Arden Warner, Principal Counsel, with him Ms. Shona Griffith and Mr. Baba Aziz, Senior Crown Counsel, for the Supervisor of Elections.
Elections - Appeal to challenge the results of General Elections — Elections Act, No. 16 of 1994 — Interpretation of the Act — Condition precedent of security for cost before presenting a petition — Validity of votes — Disfranchisement of voters who do not vote by placing an X — Petition must state a cause of action — Joinder of Returning Officer must be done within the time limited to institute proceedings — One petition to be instituted against each member of the Legislative Council whose election to that Council is challenged — Petition struck out.
General Elections were conducted in the Territory of the British Virgin Islands on 16 th June 2003. Elected members were declared and returned to constitute the Legislative Council. A Court usually prefers political matters to be settled in the political sphere. There are times, however, as in this case, when candidates or other interested persons call upon the Court to enter as arbiter, pursuant to the Elections Act, No. 16 of 1994 (“the Act” or “the 1994 Act”).
This Act regulates and controls the conduct of elections within this Territory. It also declares the electoral boundaries of the districts; regulates the registration of voters and arrangements for elections; identifies electoral offences and provides for consequences and punishment for those offences. It also recognizes the role and purview of the Court as arbiter in electoral matters in Part IV, which includes sections 58–63 of the Act.
The petitioners in the cases before us are candidates who participated in the 16 th June 2003 elections, and who seek to challenge the results for the Fifth and Territorial Districts. In keeping with the requirements of section 58 of the Act, they brought petitions in this Court. The question whether the petitioners have the necessary locus standi which is the relevant interest or nexus to present these petitions does not arise. They are candidates in the electoral districts to which the petitions relate. They therefore satisfy section 58(b) of the Act and section 49(2)(a) of the Constitution of this Territory.
In Claim No. BVIHCV 2003/0097, (“Claim 97”), Ethlyn Smith, a candidate in the Fifth District, petitioned the Court on 8 th July 2003. She prays for an order for a recount of the votes that were cast in the elections for that district. She asks the Court to determine whether the first named respondent, Delores Christopher, who was returned as the elected representative for that district, was duly elected and ought to have been returned. In the alternative, she prays for an order that the election was void. The petition is supported by her Affidavit of even date, and an Amended Affidavit dated 9 th July 2003. The petition names Ms. Christopher and the Supervisor of Elections as respondents. It was brought within the 21 days stipulated in section 59(1)(a) of the Act.
In keeping with section 59(1)(c) of the Act, Ms. Smith and the Honourable Omar Hodge entered security with the Registrar of the High Court on 10 th July 2003 in the sum of $5,000.00. This is for the payment of costs, charges and expenses to the respondents if this becomes necessary.
Reeial George and Irene Penn-O'Neal brought Claim No. BVIHCV 2003/0098 (“Claim 98”) on the same 8 th July 2003. They contested the elections for the Territorial or “At Large” constituency. They brought the petitions against Eileene Parsons and Paul Wattley, 2 of the persons who contested the Territorial constituency, and who were returned as duly elected members for that district in third and fourth positions. They petition the Court to declare the return of Ms. Parsons and Mr. Wattley void. In the alternative, they pray for an order that the votes which were recorded as having been cast in the election for the “At Large” District should be recounted to determine whether the petitioners Ms. Penn-O'Neal and Mr. George were duly elected.
The petition is supported by Affidavits of both petitioners, which were filed on the 8 th July 2003. There is a Notice, which is evidence that the petitioners paid $5,000.00 into Court as security for the respondents’ costs. This was, no doubt, intended to be in satisfaction of section 59(1)(c) of the Act.
These petitions came for hearing on Tuesday 15 th July 2003. On the day preceding this, however, Solicitors for the petitioners in both cases filed applications for directions and for leave to amend the petitions. They prayed, among other things, for leave to amend the Petitions to include prayers that rejected ballots marked with a “tick” rather than with a “cross” or “X” be declared valid votes. They also prayed for leave to amend the petitions to join the Returning Officers for the Fifth District and the At Large District as respondents.
In Claim 97, they prayed, additionally, for leave to add a ground to request a recount. The ground is that during the counting of votes, the Supervisor of Elections unlawfully purported to take over the count and decided that votes marked with a “tick’ were rejected votes. In the amended petition that was exhibited to that application, they added this as a prayer. They also added a prayer that the Court should order the spoilt ballots and rejected votes for the Fifth District to be examined and recounted to determine whether they should be considered spoilt or rejected votes.
It will be recalled that on the first day of the hearing, I indicated that the pleadings and supporting documents do not disclose any grounds upon which the elections may be declared null and void. The main consideration, therefore, is whether Orders should be made, in any respect, for a recount of votes in the constituencies that are the subject of the petitions. The issues for consideration came on preliminary objections.
There are three preliminary objections that are common to both cases. The first is that the provisions contained in the Act, particularly those that relate to the time stipulated and for entering security for costs, are mandatory requirements and conditions precedent. The second is that the non-joinder of the Returning Officers, who are the primary actors under the Act, as respondents in the petitions, is fatal. They state that the petitions cannot be amended at this stage to add the Returning Officers because the time within which that should have been done, 21 days after the return of the candidates, has expired. The third objection is that the joinder of the Supervisor of Elections in her official capacity is wrong by virtue of the Crown Proceedings Act.
There are 2 preliminary objections that relate to Claim 98. They are, first, that the failure of the petitioners to provide the prescribed security for the prosecution of the petition, in accordance with section 59(1)(b) of the Act, is fatal to the petition. The second is that it is wrong in law to join 2 elected members as respondents in the petition, because only 1 candidate may be a respondent.
There is an additional preliminary objection that relates to Claim 97. The respondents say that the petition is a nullity because it fails to disclose any cause of action against anyone. They insist that even if the Court takes the Affidavit as stating grounds, the petitioner's complaint is that she received votes marked with a tick, but she is not entitled to them.
In his submissions, learned counsel, Mr. Joseph Archibald, QC, traced the history of the jurisprudence in this area of the law to 1879 and the locus classicus, Williams v. The Mayor of Tenby and Others [1879] C.P.D. 135. The legal principles stated in the head-note is that it is a condition precedent to the trial of a municipal election petition, that within 5 days after its presentation, the petitioner should serve a notice of the presentation in the manner prescribed by statute, as well as notice of the nature of the proposed security and a copy of the petition, as required by the Municipal Election Act 1872 and related Rules.
This case is interesting because our 1994 Act reproduces some of the requirements contained in the 1872 Act. Both Acts provide, for example, that a petition shall be presented within 21 days of the election, unless there is complaint of corrupt practices. Both Acts also provide for the amount and the form in which security shall be entered. The Court of Common Pleas found that the wording of the provisions in the 1872 Act made them mandatory, and that the requirements for the presentation of petitions are conditions precedent.
This is a strict interpretation of what may appear on the face to be procedural provisions. However, the Courts have consistently said that they are substantive provisions. In Williams v. Tenby, Grove J. rationalized this approach at page 137. He said that the meaning of the enactment is that a petition should not be kept long hanging over the heads of persons elected, and therefore must be presented within 21 days. During that time, a petitioner should read the Act and ascertain what he or she has to do. He said, further, that the Courts find great inconvenience in ordinary cases where there is power to extend the time, because the Courts are then occupied with applications for extension of time. The rationale is that, in election petition cases, it is most important that the time of...
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