Walters v Humphries and De Freitas

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Robotham J.
• Judgment Date: 16 September 1980
• Neutral Citation: AG 1980 HC 2
• Docket Number: Suit No. 36 of 1980
• Date: 16 September 1980

High Court

Robotham, J.

Suit No. 36 of 1980

Walters

and

Humphries and De Freitas

Appearances:

Sydney Christian for the petitioner.

Cosmos Phillips, Q.C., for the respondent Humphries.

Tajmol Hosein, Q.C., Cosmos Phillips Q.C., and Janet Noseworthy for the respondent De Freitas.

Constitutional law - Elections — Register — Whether several names were inserted in and deleted from the register after the Writ of Elections was issued without sufficient cause — Whether election result nullified thereby.

Robotham J.

1 This is a petition presented by Hyacinth Walter under the provisions of the Representation of the People Act 1975, (hereunder referred to as the Act) questioning the return of the first respondent Hilroy Humphries as being the person duly elected for the Constituency of All Saints in the State of Antigua at an election held on April 24, 1980. The second respondent Malcolm De Freitas was the Returning Officer for the said Constituency.

2 At this election, the respondent Hilroy Humphries polled a total of 896 votes, and the Petitioner polled 887 votes, thereby losing by a margin of 9 votes.

3 The complaint of the Petitioner under paragraph 3 of the petition is that the Returning Officer conducted the election or caused it to be conducted, on the basis of newly defined boundaries created by the Constituencies Commission (Amendment) Order 1979 (No. 36 of 1979) and that the electoral register which incorporated these boundaries was not as a result prepared in accordance with the provisions of the Act and the registration regulations made there under. The effect of this was that persons who were entitled to vote in the Constituency of All Saints were not allowed to do so, and persons who were not entitled to vote, were allowed to do so.

4 There is further complaint under paragraph 4 of the petition that the Supervisor of Elections and his servants or agents in holding the election committed diverse breaches of the Registration Regulations in that after the Writ of Election was issued on April 8, 1980 several names were inserted in and deleted from the Register of Electors for All Saints and that the power which he purported to exercise in doing this under Regulation 19(4) of the Registration Regulations was exercised in each case without sufficient cause as is required by the Regulation. The net result was an undue election. The main particulars given in the petition are as follows:

UNDER paragraph 3 of Petition

• (1) The boundaries of 9 of the 17 Constituencies (one of which was All Saints) were altered by Order 36/79 with effect from October 1, 1979 and an Electoral Register was prepared by the Revising Officer without legal authority purporting to include or exclude names with a view to carrying into effect the provisions of the said Order. (Paragraph 3 of Petition).

• (2) The electoral register the revision of which commenced in July 1979 ought to have been published on or before August 22, 1979, but its publication was delayed to give effect to the changes which were invalidly made consequent on the Order (Paragraph 3(a) of Petition).

• (3) There was no authority vested in the Revising Officer or the Supervisor of Elections, or their servants or agents to make any changes in the list as it stood when it was signed by Dunbar Cenac the Revising Officer on August 19, 1979, and that the purported exercise of this power under Regulation 26 of the Registration Regulations in order to comply with Order 36/79 was wrong in Law. (Paragraphs 3(b) and (e) of petition).

• (4) The changes in the boundaries of the 9 Constituencies could only legally have been effected when the preparation of the register for 1980 began in July 1980, in accordance with the provisions of the Act in particular Sections 4 — 9 thereof. (Paragraph 3(d) of Petition).

• (5) In all the circumstances the Returning Officer ought to have construed the Writ of Election issued on April 8, 1980, as applicable to the Constituency of All Saints as defined immediately before coming into operation of the said Order on October 1, 1979. The Electoral Register therefore which ought to have been used at the said election was the register which. should have been published on or before August 22, 1979, without any changes purporting to be made under the said Order. (Paragraph 3(c) of Petition). The Electoral Register which in fact was used, was wholly unauthorised in Law, and did not conform with the provisions of the Act. (Paragraph 3(f) of Petition).

UNDER paragraph 4

• (6) After the Writ of Election was issued the Supervisor of Elections inserted and deleted names in and from the Register of Electors purporting to do so under Regulation 19(4) of the Registration Regulations but without sufficient cause being shown in each case. The names of 6 persons were given as having been added, (all but one of whom voted) and the names of 13 as having been deleted, none of whom were eligible, or permitted to vote in the Constituency. These names added and/or deleted would have totalled more than 9 votes and must have affected the result of the election.

UNDER paragraph 5

• (7) That the use of these invalid, unauthorised, illegal and corrected lists not only affected the result of the election but made the return of the Candidate Hilroy Humphries null and void and that in the premises there was an undue election.

UNDER paragraph 3 of Petition

UNDER paragraph 4

UNDER paragraph 5

5 For a proper understanding of this petition and before dealing with the evidence and the submissions, it is necessary to examine in some detail the relevant procedure to be followed in the preparation of the Register of Electors, starting with the commencement of the registration exercise leading up to the final certification of the list for 1979, and the effect Order 36/79 had upon the whole procedure.

6 The first step is the appointment of a Registration Officer for each Constituency by the Governor, under Section 6 of the pct. It is important to note at this stage that these Registration Officers are required under Section 18 of the Act to comply with any general or special directions which. may be given by the Supervisor of Elections with respect to the arrangements to be made by them for carrying out their registration duties. Revising Officers for each constituency have to be appointed, under Section 7 of the Act by the Governor.

7 In the preparation of the register the period July 1-7 in each year is set aside for application for registration to be made to the Registration Officer. After July 7, he is required to prepare three lists under Regulation 7.

8 List A: A copy of the register in force for the constituency, which in this case would be the 1978 register — in evidence to Exhibit 13.

9 List B: A list of new electors, that is, people who have applied for registration.

10 List C: A list of persons who have ceased to qualify for registration in the constituency. These lists give the reasons for disqualification. (See Exhibits 19A and 19B).

11 These lists have to be published in accordance with Regulation 8 on or before July 22. The purpose of the publication is to facilitate claims and objections being made in respect thereof and a notice must be published along with them specifying the manner in which, and the time within which claims and objections may be made (Regulation 9). After the expiration of the time limited for the making of claims and objections any person whose name appeared on list C and who failed to make a claim has his name automatically excluded from the list of electors. In respect of the claims and objections received, the Registration Officer makes a preliminary disposal of them under Regulation 12, and anyone that he fails to resolve is referred by him to the Revising Officer.

12 The Revising Officer at the appropriate time, holds a tribunal, determines the claims and objections, and initials any name struck out, or any name inserted, or any mistake or omission corrected, after which he is required to sign his name to every page of the electors list (Regulations 13 — 16). Any person aggrieved by the decision of the Revising, Officer may appeal to a Judge of the High Court under Regulation 17.

13 The process continues whereby under Regulation 19(1) upon completion of he revision of the electoral lists, and after the necessary alterations if any which are permitted to be made by the Registration Officer under Regulation 18 have been made, the Revising Officer after signing his name to such lists, is required to cause them to be printed and separately bound.

14 For practical purposes, this printing and binding is undertaken by the Supervisor of Elections. Of great importance and significance in Regulation 19(2) which reads:–

“The Revising Officer shall certify such bound list and shall thereupon transmit one copy to the Returning Officer for the constituency to which it relates and one copy to the Supervisor of Elections”.

15 There is no provision for the Revising Officer to certify the lists before they are bound, and a distinction must be drawn between that certification and the signing which he is required to do under Regulation 16(1) on completion of the revision. This aspect will be brought into focus when the question of “when is a Revising Officer functus officio” as raised by Counsel for the Petitioner is dealt with at a later stage.

16 Finally Regulation 19(3) reads:

“The copy of the lists transmitted to the Supervisor of Elections shall be deemed to be the Register of Electors for that constituency and shall remain in force until the next list of electors have been revised and certified in accordance with the provisions of the Act and the Regulations”.

17 The effect of this Section is two-fold. It declared what is the Register of Electors, for the constituency, and preserves the Life of it until the next list is published. When read in...