Lewis v Harris et Al

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: St Bernard J.A.
• Judgment Date: 01 January 1976
• Neutral Citation: AG 1976 CA 10
• Docket Number: Civil Appeal No. 2 of 1976
• Date: 01 January 1976

Court of Appeal of West Indies Associated States (Civil Jurisdiction)

Davis, C.J.; St. Bernard, J.A.; Peterkin, J.A.

Civil Appeal No. 2 of 1976

Lewis

and

Harris et al

Constitutional law - Election Procedure — Irregularities and omissions taking place after polling — Supervisor of Elections declared a tie between two candidates and gave notice of a fresh election — First respondent challenged supervisor's notice by court action and trial judge declared him to be the winner — Whether irregularity in action by returning officer who counted votes without consent of candidates in order to satisfy himself that poll clerks made error — Whether six votes rejected by Returning Officer as marked in ink instead of pencil were validly rejected — Whether sufficient evidence on which trial judge could have concluded that first respondent was duly elected candidate or whether there should have been a fresh election — Finding that recount by Returning Officer on his own volition was reasonable in the circumstances — Finding that the six rejected votes should be counted as valid in favour of the first defendant — Finding that irregularities and omissions complained of did not affect the results of the election and there was sufficient evidence before the trial judge to support the conclusion at which he arrived — Appeal dismissed.

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 conducing...