Bailey et Al v Cenac et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J
• Judgment Date: 29 August 1978
• Neutral Citation: AG 1978 HC 35
• Docket Number: 64 of 1978
• Date: 29 August 1978

High Court

Bishop, J.

64 of 1978

Bailey et al

and

Cenac et al

Sydney P. Christian for appellants.

Comos Phillips, Q.C., Attorney General for respondents.

Elections - Electors list — Objection to inclusion of names on the list on the ground that the persons were no longer residing in the constituency of Barbuda — Meaning of “reside” considered Finding that it could not be said that the Revising officer had no evidence from which he made the findings that he had.

Bishop, J

1 In Antigua, the annual revision of a register of electors is governed by the Representation of the People Act 1975 (also called herein the Act). In relation to an election, the word “elector” means any person whose name is for the time being on the register to be used at that election.

2 Thursday next, 31 ^st August, has been fixed as the day for an election of a member of the House of Representatives, in the constituency of Barbuda.

3 Now in order to have electors registered, provision is made for the appointment of a registration officer for that constituency and his duties include preparation and publication every year of a register of electors. The date of the publication is governed by the Act.

4 There is also statutory provision for the appointment of a revising officer for the constituency, and as far as the matter now before me is concerned, subsection (3) and (4) of section 7 of the Act state:

“(3) It shall be the duty of each revising officer to hold a tribunal…. for the purpose of hearing and determining…. objections in respect of the electors list prepared…. by the registration officer appointed for that constituency.

(4) The tribunal to be held…. shall be in public and shall be held at such time and in such place as the Registration Regulations in the Second Schedule… may specify.”

5 Section 9 of the Act explains that with a view to the preparation of the register the registration officer shall have prepared and published electors lists showing the persons appearing to him to be entitled to be registered together with their qualifying addresses; and, the revising officer shall hear and determine objections to the appearance on the electors list of the names of persons appearing thereon. Such hearings shall be held in public at such time, in such place and in such manner as the Registration Regulations appoint.

6 On Tuesday 15 ^th August, the revising officer appointed for the constituency of Barbuda held a tribunal in that constituency. As stated in the Statement of Material Facts filed on the 22 ^nd August at 2:30 p.m. he did so “to determine several Objections which were made to certain names in the Electors List for the Constituency of Barbuda.” It is undisputed that the revising officer heard the objection of Wilfred Walbrook, an elector in the said constituency, who objected to the inclusion of the following 13 names:– Alson Bailey, Claudia Bailey, Josephine Desuza, Judith Drinkwater, Randolph Drinkwater, Rolston Drinkwater, Winifred Drinkwater, Elaine James, Fariel Jeffrey, Raymond Jeffrey, George Nedd, Ifield Nedd and Steadroy Thomas. There was one reason advanced, namely, that the person was no longer residing in the constituency of Barbuda.

7 The revising officer explained what took place in these words:

“5. At the commencement of the sitting, the name of each person objected to was called but no one appeared.

6. The Tribunal proceeded to hear evidence from the objector who said that he knew the persons in question and although they were born in Barbuda they were no longer residing there. He said that they had all left Barbuda between ten to fifteen years ago and have since been residing and working in Antigua. They were brought back in 1976 specifically to get registered. Since that last visit in 1976 neither one has returned.

7. Mr. Punter, the registration officer, when asked if the persons objected to were so informed, told the Tribunal he knew they were all living in Antigua but did not know their addresses so was unable to inform them.”

8 Then the decision of the Revising Officer was stated thus:

“I was satisfied with the evidence tendered and held that the persons objected to were not residing in Barbuda and accordingly struck the names out of the electors list.”

9 According to Regulation 17 of Registration Regulations (also called herein the Regulations) “Any person aggrieved by a decision of the revising officer may appeal to a judge of the High court in accordance with Part IV hereof.” Each of the 13 persons whose names were struck from the electors list, apparently aggrieved, sought to appeal against the decision of the revising officer, given on Tuesday 15 ^th August and not Tuesday 14 ^th August as stated in their notices which the revising officer said he received on the 22 ^nd August.

10 Now regulation 31 of the Regulations, in its first paragraph states as follows:

“A person desiring to appeal against the decision of a revising officer must give notice of appeal to the revising officer and to the opposite party (if any) when the decision is given, or within seven days there after, specifying the grounds of appeal;”

11 and regulation 33 (1), so far as is relevant to the matter before me, states:–

“Any…. notice…. which is required by these regulations to be made to the… revising officer shall be in writing and sent by post or delivered to his office or to the address specified by him for the purpose.”

12 The question arises: Has each of the persons complied with the relevant Regulations?

13 Perhaps this is the appropriate place to state that the revising officer filed a statement that the notices of appeal which were given to him on the 22 ^nd August were “all based on the same grounds” and by virtue of paragraph (3) of Regulation 31 I decided that I would consolidate the appeals rather than select a case as a test case. My decision so to do was based on the fact that that consolidation was stated in the paragraph as the first of the alternatives and on the fact that learned counsel appearing for the parties had no objection to such a course of action.

14 I turn now to the notices of appeal which were filed on the 22 ^nd August. Each notice was undated and stated that the decision of the revising officer was given on Tuesday 14 ^th August; and it was this latter mentioned fact which misled me into asking whether the notices of the appeals before me had been submitted to the revising officer in time, under regulation 31. It was subsequently brought to my attention that Tuesday was the 15 ^th August as stated by the revising officer in his statement of material facts. So that the question of time within which notice was given ceased to be important.

15 Learned counsel for the appellant informed this Court that the notices of appeal were handed to the Supervisor of Elections at the office of the Supervisor of Elections. Clearly the person did not follow the provisions laid down in the regulations quoted earlier, in that the notices of appeal were not given to the revising officer of the constituency nor were they delivered to this office, which I would imagine would be at the place where the tribunal was held. Be that as it may, the fact that the notices reached the revising officer before the expiration of the time laid down, may be regarded as meeting the purpose of the regulation i.e. to bring it to the notice of the revising officer. I make no decision as to whether the notices, served as they were on the revising officer, were improperly served and therefore bad, because I have decided these appeals on the basis of the facts and the grounds of appeal. However I shall say, that in my view the proper mode of service is as stated in the regulations — on the revising officer at this office or other specific address, and not on the Supervisor of Elections for transmission to the revising officer, as seemed to have happened in the appeals before me. I leave this point with the question: what would have been the position if these notices of appeal had reached the revising officer after seven days had elapsed from the date of his decision?

16 Learned counsel for the respondents asked this Court to find that the undated notices were “nullities” and thus there were no appeals before the court. In disagreeing with learned counsel so far as these particular notices were concerned, I have been influenced by the fact that the notices referred to the date of the decision appealed against, and the fact that the notices reached the revising officer within the stipulated period. Thus the importance of the date of the notice was greatly diminished; but undoubtedly the omission of the date is undesirable and there was no sufficient reason given why notices could not have been dated before handing them in. In my view it can only reflect in one direction and in one way when documents which ought to be dated are not dated by the persons signing them and are being dealt with by counsel or solicitor before they reach the court. In this case there were thirteen undated notices.

...