Jacqui Quinn-Leandro v Dean Jonas
Jurisdiction | Antigua and Barbuda |
Judge | RAWLINS, C.J.,Chief Justice,Justice of Appeal,Hugh A. Rawlins,Ola Mae Edwards,Janice George-Creque |
Judgment Date | 27 October 2010 |
Judgment citation (vLex) | [2010] ECSC J1027-1 |
Court | Court of Appeal (Antigua and Barbuda) |
Docket Number | HCVAP 2010/018 |
Date | 27 October 2010 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins
Chief Justice
The Hon. Mde. Ola Mae Edwards
Justice of Appeal
The Hon. Mde. Janice George-Creque
Justice of Appeal
HCVAP 2010/018
HCVAP 2010/019
HCVAP 2010/020
Mr. Douglas Mendes, SC, with him Mr. Kendrickson Kentish, Mr. Michael A.A. Quamina and Mr. Chaku Symister for the Appellant in Civil Appeal No. 18 of 2010
Mr. Russell Martineau, SC, with him Ms. E. Patricia Simon-Forde for the Appellants in Civil Appeals Nos. 19 and 20 of 2010
Mr. James Guthrie, QC, and Mr. Anthony Astaphan, SC, with them Ms. Rika Bird and Ms. Samantha Marshall for the Respondents in Civil Appeals Nos. 18, 19 and 20 of 2010
Election Petitions — Whether the trial judge erred in holding that late voting was properly pleaded — Whether the trial judge erred in finding, as a matter of fact, that there was no late voting by persons who joined the lines after the statutory closing time in one constituency —Whether the trial judge erred in holding that voting after the statutory closing time by persons who were in the lines at that closing time did not breach electoral law -Whether the judge erred in holding that the late opening of the polls breached electoral law —Whether the judge erred when she held that late opening of the polls did not result in substantial non-compliance with electoral law — Whether the judge erred in declaring the results of the elections in the contested constituencies invalid — Sections 24 and 32(4) of the Representation of the People (Amendment) Act, No. 17 of 2001 of the Laws of Antigua and Barbuda — Rule 1(7), 26(1), 36 and 40 of the Election Rules, No. 11 of 2002 of the Laws of Antigua and Barbuda
General Elections to elect members of Parliament for Antigua and Barbuda were held on 12 th March 2009. Subsequently, election petitions were instituted by the 3 respondents in these appeals. They challenged the validity of the election of the 3 appellants in the constituencies in which they (the appellants) were returned as the elected members.
The petitioners claimed that electoral officials used 'photo lists' instead of the Register for Elections, as prescribed by law for the conduct of the elections. Difficulties which developed in the printing of these lists caused some polling stations to open late. Voting then continued to various times past the 6:00 pm scheduled closing time in some polling stations in the St. George and St. John's Rural West constituencies. The petitioners claimed that the late voting breached Rule 1(7) of the Election Rules. This rule provides that polling in a general election shall be between the hours of 6:00 am and 6:00 pm on the day of the elections. The reasons for the late voting were disputed. However, the trial judge found that it occurred because persons, who were waiting in the line when the polling stations closed at 6:00 pm, were permitted to vote after 6:00 pm.
There were 4,414 registered voters in the St George constituency. 3,488 electors voted. There were 20 rejected ballots. 926 or about 20.9% of the registered voters in that constituency did not vote. 79.1% of the electorate voted as opposed to 92.26% in the previous General Elections held in 2004; a difference of 13.1%. The respondent/appellant, Jacqui Quinn-Leandro received 1,985 votes. The respondent, Dean Jonas received 1,483 votes. The margin of appellant Quinn-Leandro's victory was 502 votes.
There were 3,577 registered voters in the St John's Rural North constituency. 2,827 electors voted. There were 9 rejected ballots. 750 or about 20.97% of the voters registered in the constituency did not vote. 79.03% of the electorate voted as opposed to 91.10% in the previous General Election held in 2004; a difference of 12.07%. The respondent/appellant, John Maginley, received 1,462 of the votes cast. The petitioner/respondent, Charles Henry Fernandez, received 1,356 votes. The margin of appellant Maginley's victory was 106 votes. There was no late voting in this constituency.
There were 4,996 registered voters in the St John's Rural West constituency. 4,021 electors or 80.48% of the electorate voted in the constituency, as opposed to 89.48% in the previous General Election held in 2004, a difference of 9% voted. There were 9 rejected ballots. 975 or about 19.52% of the electorate registered in the constituency did not vote. The respondent/appellant, Winston Baldwin Spencer, received 2,259 votes. The opposition candidate, Gail Christian, received 1,743 votes. The margin of appellant Spencer's victory was 506 votes.
The petitioners prayed for orders declaring the elections in the 3 contested constituencies invalid. They contended that the elections were conducted in breach of electoral law. They also insisted that the elections were not conducted substantially in accordance with electoral law. They further contended that the matters which they complained of affected the results of the elections in the 3 contested constituencies.
At the trial, the respondents to the petitions (the appellants in the appeal proceedings) insisted that late voting was never properly pleaded, or at all, in the petitions. They contended that this did not therefore arise as a triable issue. They also argued that the late opening of the polls and the use of the 'photo lists' did not breach electoral laws. They contended that, in any event, their return as elected members of the legislature should not be invalidated because any breach of electoral laws that might have occurred did not amount to substantial non-compliance with electoral law. They further contended that any breach of electoral law which may have occurred did not affect the results in the elections.
The trial judge found that the issue of late voting (voting after 6:00 pm) was properly pleaded and therefore raised a triable issue. She held that Rule 1(7) of the Election Rules required the polls to open for voting to begin at 6:00 am and to close at 6:00 pm. She found, as a matter of fact, that there was no voting by any person who allegedly entered the lines in the St. John's Rural West constituency after 6:00 pm. She further found, as a matter of fact, that there was late voting in the St. George and St. John's Rural West constituencies by persons who were in the lines by 6:00 pm, but who were permitted to vote after 6:00 pm. She held, however, that Rule 1(7) of the Election Rules permitted persons in line at 6:00 pm to vote after 6:00 pm because this was in keeping with an elector's constitutional right to vote pursuant to section 40 of the Constitution of Antigua and Barbuda. The judge accordingly held that the voting which took place after 6:00 pm did not breach Rule 1(7).
The learned judge found that the use of the 'photo lists' breached section 25(1) [sic section 24] of the Representation of the People (Amendment) Act, No. 17 of 2001. However, she held that the use of the 'photo lists' did not result in an election which was a sham or a travesty so that it prevented substantial compliance with electoral laws. The trial judge held, additionally, that the use of the 'photo lists' did not affect the results in the contested constituencies.
Premised on her decision that Rule 1(7) of the Election Rules required the polls to open for voting to begin at 6:00 am and close at 6:00 pm, the judge held that the late opening of the polls in the 3 contested constituencies breached Rule 1(7). Notwithstanding this, she found that the late opening and the consequent late start of voting did not cause substantial non-compliance with the law as to elections, having regard to the amount of time during which the polls were open and the high percentage voter turnout in each of the contested constituencies so that the election was not a sham or a travesty. She found, however, that some persons were denied the right to vote due to the late opening of the polls in the 3 constituencies. She stated that although she was unable to say how many such persons were denied the right to vote, in each case about 20% of the electors did not vote. However, the trial judge concluded that an indeterminate number of persons were disenfranchised because of the late opening of the polls. She was therefore not satisfied that the late opening did not affect the final result in each of the contested constituencies. She accordingly invalidated the election in the 3 constituencies, and ordered the parties to bear their own costs.
The respondents appealed, seeking to set aside the orders of the trial judge. The petitioners counter-appealed against the judge's finding of fact that there was no late voting in the St. John's Rural West constituency by voters who joined the line after 6:00 pm. They also challenged the judge's findings that Rule 1(7) of the Election Rules permitted voting after 6:00 pm by persons who were in the lines by 6:00 pm. They also contended that the judge should have found that the effect of the breaches of electoral law, which occurred due to the late opening of the polls, late voting and the use of 'photo lists' were so substantial that provided grounds for invalidating the elections, in any event, regardless of whether the results were affected or not. The petitioners/respondents seek orders dismissing the appeals with costs. They also seek costs of their petitions in the proceedings in the High Court.
Held: allowing the appeals, with the parties to meet their own costs in the appeal proceedings and in the High Court:-
-
1. The rule that a petitioner must raise an issue for trial in the pleadings is intended to permit a respondent and the court to know the issues that are to be tried and a respondent to prepare to meet those issues by counter-pleading. It...
To continue reading
Request your trial-
The Hon. Gaston Browne (The Leader of the Opposition) Appellant v Attorney General of Antigua and Barbuda First Respondent [1] Mr. Juno Samuel [2] Mr Nathaniel James [3] Mr Jack Kelsick [4] Mr. Anthonyson King [5] Mrs Glendina McKay [6] Mrs Paula Lee (members of the Antigua and Barbuda Electoral Commission under the provisions of The Representation of the People (Amendment) Act No 12 of 2011) Other Respondents [ECSC]
...Electoral Commission (1999) SALR 1 at paragraph [17]; Russell v The Attorney General (1995) 50 WIR 127 at page 139; Jacqui Quinn-Leandro and Others v Dean Jonas and Others Antigua and Barbuda High Court Civil Appeal HCVAP2010/018 at paragraphs [108] to [111] and [114] to [117] and Joseph Pa......
-
Re A Local Government Election for the Kinson South Ward of Bournemouth BC held on 7 May 2015
...analysis of the figures (see paragraph 17 above), as well as by the decision of the Court of Appeal of the East Caribbean States in Ouinn-Leandro v Jonas [2010] 78 WIR 216, where a close scrutiny of voter distribution and voting patterns was undertaken in order to draw inferential conclusio......
-
Mervyn Riviere Claimant v Ross University School of Medicine Defendant [ECSC]
...April 20, 2012 but the termination took effect from April 13, 2012. 12 See: Core Bundle of Documents, pp. 48, 49 & 54 13 See: Jacqui Quinn Leandro v. Dean Jonas, HCVAP2/018–020 per Rawlings CJ 14Kenrick Ambo v Dominica Air and Seaports Authority, Suit No. DOMHCV2010/0297. See: A.I. Ogus, Th......