Quinne-Leandro v Jonas; Maginley v Fernandez; Spencer v Simon
| Jurisdiction | Antigua and Barbuda |
| Judge | Rawlins, C.J. |
| Judgment Date | 27 October 2010 |
| Neutral Citation | AG 2010 CA 8 |
| Docket Number | HCVAP No. 18 to 20 of 2010 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 27 October 2010 |
Court of Appeal
Rawlins, C.J.; Edwards, J.A.; George-Creque, J.A.
HCVAP No. 18 to 20 of 2010
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, 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
Constitutional law - Election petition — Whether trial judge erred in holding that late voting properly pleaded — Whether trial judge erred in finding that there was no late voting by persons who joined the lines after the statutory closing time in one constituency — Whether judge erred in declaring the results of the elections in the contested constituencies invalid — Election Rules — Representation of the People (Amendment) Act — Appeal against trial judge allowed.
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:–
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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 is also to allow the parties to present evidence and counter-evidence on the issues to be tried. The trial judge erred in holding that late voting was properly pleaded because the issue was neither raised on the facts pleaded in the petitions nor by way of further particulars. Late voting was not therefore a live issue for the trial notwithstanding that the petitioners sought to bring it in subsequently in evidence that was presented for the trial.
Donald Halstead v Henderson St. Clair Simon & Hubert Henry (1989) 1 O.E.C.S. L.R. 198 and dicta in Charan Lal Sahu v Giani Zail Singh, [1985] LRLC (Const.) 31; Ethlyn Smith & Others v Delores Christopher and Others, High Court Claims Nos. BVIHCV2003/0097 and 2002/0098 (23 rd July 2003); Ferdinand Frampton v Pinard and Others, Claim No. DOMHCV2005/0149,150,151,152 and 154 (28 th...
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