Edison Lewis Appellant v Reuben Harris The Superviser of Elections The Returning Officer Respondents [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: ST. BERNARD, J.A.,CHIEF JUSTICE
• Judgment Date: 22 October 1976
• Judgment citation (vLex): [1976] ECSC J1022-1
• Docket Number: CIVIL APPEAL NO. 2 of 1976
• Date: 22 October 1976

[1976] ECSC J1022-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 2 of 1976

Between:

Edison Lewis

Appellant

and

Reuben Harris

The Superviser of Elections

The Returning Officer

Respondents

Appearances:

Sydney Christian for Appellant

C.O'R Phillips Q.C. Claude Francis for 1st respondent.

J.B. Fuller for other respondents.

ST. BERNARD, J.A.

1 At a general election held on the 18th day of February, 1976, the appellant and the first respondent were candidates for the Constituency of St. Phillips South. At the close of the polls the Returning Officer declared the result was a tie with each candidate polling 497 votes. As a result of this the Supervisor of Elections by Gazette dated 20th February, 1976, gave notice of a fresh election of that Constituency to be held on the 6th March, 1976. The first respondent, by petition, challenged the holding of fresh elections on the ground that he had been validly elected for the Constituency as the Returning Officer had rejected six votes in his favour as being void because the mark on the ballot was made in ink and not in pencil as provided for at the polling station. The trial judge upheld this contention and declared the first respondent as the duly elected candidate.

2 There were five grounds of appeal. The first two grounds dealt with excerpts from the judgment of the trial judge which he adopted from the well known case of Woodward v. Sarsons (1874–1880) All E.R. 262. Grounds three and four dealt with omissions and irregularities on the part of the Returning Officer and other election officials relating to the conduct of the elections, while ground five alleged that the judge was wrong in holding that the six rejected ballots were valid without having inspected them.

3 Counsel argued ground five first. On this ground he submitted that it was never established that there were six rejected votes in favour of the respondent Harris since all the witnesses who gave evidence in this regard gave different versions and there was no inspection of these ballots as they could not be found after the election. He referred the Court to the evidence of Ivor Bird, Alfred James, Ickford Emanuel and Herbert Dyett, the Returning Officer and pointed out that although they all stated, save Emanuel, that there were rejected votes in ink cast in favour of Harris their versions were all different. Emanuel, he said, stated that there was one spoilt vote at Bethesda cast for Harris and there were four rejected votes from Freetown but he could not remember whether they were in ink or whether they were blank votes. He remembered, however, that Ivor Bird had a heated argument with the Returning Officer over votes in ink which he had rejected.

4 In regard to irregularities and omissions referred to in grounds three and four Counsel submitted that no rejected ballots were marked in accordance with rule 53 (3) of the Election Rules, 1975. Similarly there were irregularities or omissions in respect of rules 49 (1), 53 (3) and (4), 56 (1), 61 (1) (b) and 60 (2), and because of these irregularities the result of the election was affected.

5 In reply to these arguments Counsel for the respondent Harris submitted that up to the time the votes were counted there were no irregularities and that at the end of the count the evidence was overwhelming that Harris was ahead in votes and ought to have been declared the duly elected candidate.

6 A review of the evidence indicates that there were no irregularities in conducting the elections up to the time when the votes were all counted. When the votes were counted the Returning Officer inquired of the poll clerks the total number of votes cast for each candidate. Molly Dickson gave her total as 499 for the appellant and 500 for the first respondent. Norris Scholar, the other poll clerk, gave his total as 498 for the appellant and 500 for Harris, the respondent. The Returning Officer then inquired of the agents for the respective candidates their totals. Ivor Bird who was assisted by Alfred James gave the totals as 496 for appellant and 499 for Harris, while Ickford Emanuel gave his totals as 499 for each candidate. The Returning Officer in order to satisfy himself, then counted the votes for each candidate in the presence of the agents and poll clerks who assisted and got totals of 497 votes for each candidate. He then declared there was a tie.

7 Counsel for the respondent submitted that the recount by the Returning Officer was irregular as he was not requested...