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TURKS AND CAICOS SUN DECEMBER 22ND - DECEMBER 29TH, 2012 LOCAL NEWS ACTING CHIEF JUSTICE MARGARET RAMSAY-HALE’S RULING IN CHESHIRE HALL/RICHMOND HILL ELECTION PETITION CASE
IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS PETITION NO. CL 237/12 IN THE MATTER OF THE ELECTIONS ORDINANCE 2012 AND IN THE MATTER OF SECTION 53 OF THE TURKS AND CAICOS ISLANDS CONSTITUTION ORDER 2011 AND IN THE MATTER OF THE ELECTION OF AMANDA MISSICK AS THE ELECTED MEMBER OF THE HOUSE OF ASSEMBLY FOR ELECTORAL DISTRICT NUMBER 7, CHESHIRE HALL AND RICHMOND HILLS, PROVIDENCIALES IN THE GENERAL ELECTION HELD ON THE 9TH DAY OF NOVEMBER, 2012 BETWEEN: ORAL ISAAC SELVER PETITIONER -AND1. EWARD EMANUEL SMITH 2. AMANDA A. MISSICK 3. SUPERVISOR OF ELECTIONS 4. THE ATTORNEY GENERAL RESPONDENTS BEFORE RAMSAY-HALE J.
Mr. Allan Wood QC for the Petitioner instructed by Alvin Garland of Garland & Co. Mr. Ariel Misick and Mr. Jamal Misick for the 2nd Respondent The 1st Respondent appearing and not represented Heard on the 4th and 5th of December, 2012 The Court also considered the case of Omoth v Ghostkeeper to which it was referred by Counsel for the Petitioner outside of the hearing on the 7th December, the written comments on that decision by Counsel for the Second Respondent which were received on the 11th December the Petitioner’s response dated the 12th December and the Second Respondent’s further response received on the 17th of December, 2012.
RULING 1. This is the ruling on the Second Respondent’s application brought under the Court’s inherent jurisdiction to strike out the Election Petition presented by Mr. Oral Selver, a candidate for Cheshire Hall and Richmond Hill Electoral District in the general election held on the 9th day of November, 2012 on the ground that it discloses no cause of action and is an abuse of process. THE PETITION 2. The Petition is brought pursuant to s 59 of the Elections Ordinance 2012 on the ground that Ms. Missick was unduly returned as a member of the House of Assembly. The facts as outlined in the Petition are that on Election Day, 844 votes were cast: 58 votes for the First Respondent, 364 for the Petitioner and 394 for the Second Respondent who was declared the winner by a margin of 30 votes. 3. It is asserted by the Petitioner that at the time the First Respondent made the declaration that he was qualified for election under s 46 and not disqualified under s 49 of the Turks and Caicos Islands Constitution Order 2011, as required by section 50(1), the First Respondent was not qualified to be elected a member of the House by virtue of his allegiance to a foreign state as set out in s 49(1) (a). The Petitioner contends that only a person who is duly qualified for election can be lawfully nominated and in the result, the First Respondent’s nomination was an irregularity in the election process. 4. The Petition alleges that as a result of the irregularity, 58 votes were cast for the First Respondent. Given there were only 30 votes between the Second Respondent and the Petitioner, had those 58 votes been otherwise given, the outcome of the
election might have been different. THE SUBMISSIONS 5. Counsel both agree that that, as a matter of law, an election can only be avoided on the grounds identified by Ground CJ in Hanchell v Skippings, that there was either such a defect in the election machinery that the election was not substantially in accordance with the law, or the election was conducted substantially in accordance with the law, but there was an irregularity which may have affected the results. 6. The gravamen of the submission made by Mr. Misick QC in his application to strike out the Petition is that the nomination of a person who is disqualified from election to the House of Assembly under s 49(1) (b) is not an irregularity in the election machinery and that once the candidate is duly nominated, votes cast for him must be counted. Further, it is only where the disqualified candidate wins that the issue of his disqualification becomes a matter that can be raised in an election petition. Where the candidate who is disqualified from sitting does not win, no petition can be brought against him as he is a candidate for whom votes could be given. 7. In Hobbs v Morey [1904] KB 74, on which he relied in support of his submission, the Court held that the candidate’s disqualification from election to the office of councillor for a ward in a borough did not void the votes cast for him, the disqualification not being apparent on the face of the nomination. His nomination was valid; the votes given for him counted and could not be treated as thrown away. Kennedy J at p 78 of the judgment said, citing Lord Watson in Pritchard v Mayor of Bangor [1883]13 App Cas 241, “If no objection is made, or if objections are stated and repelled by the mayor, then the nomination becomes a valid nomination. I do not mean to suggest that it is final and conclusive upon questions of disqualification which may be taken to it, but I think it was intended to be conclusive to this effect, that the nomination paper so sustained as valid should form the basis of the election, and that the nominee should be treated as a person for whom votes could be given before the returning officer.’ 8. Kennedy J continued, “The expression ‘valid nomination’, therefore, includes the case of a person who is disqualified in fact but whose disqualification is not apparent on the nomination paper, and whose nomination has been sustained by the mayor. That being so, the election must proceed….” 9. In essence, the validity of a candidate’s nomination is not dependent on him being qualified to hold elected office but rather on whether the process of nomination set out in s 27 of the Election Ordinance has been complied with. If it has, then the candidate is duly nominated notwithstanding the information contained in the nomination form is incorrect. If the candidate’s nomination, once published, is not challenged in the Supreme Court as provided for in the Ordinance, the nomination of the candidate must proceed. 10. He also submits that this court has no power on an election petition to consider the validity of a candidate’s nomination as the question on an election petition is whether the candidate was qualified to be elected and not whether he was qualified to be nominated. He contends there is no qualification for nomination on the law, just a process which is contained in s 27 of the Election Ordinance with which the First Respondent had, in any event, complied. 11. He asked the Court to consider that had the Legislature intended that a false declaration invalidate a nomination, it could have said so, as it does in s 29(1) of the Ordinance which provides that, if a candidate fails to deposit the sum of $500 with the Treasury, his nomination “shall not have effect.” 12. The First Respondent offered himself for election and was duly nominated. Although he was not the successful party, the votes cast for him count and the election results fall to be considered as the expression of the freely exercised franchise by the people in the constituency to vote for their choice of
candidate in the election, ultimately casting 58 votes for the First Respondent, 364 votes for the Petitioner and 394 votes for the Second Respondent. Nothing the First Respondent did prevented voters from polling their votes in favour of their preferred candidates and in the circumstances the petition is bound to fail. 13. Mr. Wood QC in reply challenged the assertion that the Petition could not be brought against the First Respondent as he did not win the election. He referred the Court to the case of Lamb v McLeod [1932] 3WWR 596 where the Court held that there were two kinds of petition, the one where the petitioner seeks to oust the candidate who has been returned or has been declared duly elected and to have another candidate seated as the duly elected candidate and the other which does not attempt to assert the rights of another candidate and is not concerned in securing the seat for another person, but seeks that the seat be vacated on the ground of some act or omission which renders the election void. In Lamb’s case the matter complained of was the casting of votes in an election by 17 persons unqualified to vote where the margin of victory between the candidates was only 5. The Court held at page 3 that “it cannot be said that there was an electing of a member by the majority” as the intrusion by wrongdoers made “it impossible to determine for which candidate the majority of qualified votes were cast.” 14. The Canadian Court followed the decision in Wilson v Ingham (1895) 64 LJQB 775 where again the irregularity complained of had nothing to do with any act or otherwise of the successful candidate. In that case, by a mistake of the clerk of the returning officer, the ballot papers contained the name of a candidate who had withdrawn. The Court held that the election had to be declared void because his name was put on the ballot paper and voters were invited to vote for him when he was not a candidate with the result that thirty-four votes were given for him which, if otherwise given, might have affected the result. 15. In this matter, it is contended that the First Respondent’s false declaration is an irregularity in the election process and a breach of the Constitution by reason of which he was nominated to stand in the election. By virtue of that irregularity, the First Respondent inserted himself into the election as Mr. Wood QC put it and received 58 votes which, if otherwise given, might have affected the result. 16. With respect to the assertion that a candidate’s nomination cannot be challenged in an election petition, Mr. Wood QC submits that there is nothing in the language of s. 50(3) of the Constitution that precludes the question of a candidate’s qualification to be nominated being raised in an election petition brought under s 53 of the Constitution and s 59 of the Ordinance. THE JURISDICTION TO STRIKE OUT 17. The Court has inherent jurisdiction to stay any action which must fail. If the pleadings do not disclose a cause of action, the Petition may be struck out as an abuse of the process of the Court. The power of the Court to strike out the petition and deprive a party of the opportunity to present his case is a draconian remedy to be exercised only where it is perfectly clear that the action cannot succeed DISCUSSION 18. Mr. Misick QC submits that the question of the validity of a candidate’s nomination cannot be raised in an election petition and further, that the First Respondent, not having been the successful candidate is not a proper party to these proceedings, but I can see no reason in principle to limit the breaches of the statutory obligations which may form the subject matter of an election petition, or any reason in law to limit the persons who may be made party to it. The weight of the authorities goes to show that an election petition may be brought on the ground of any breach in the electoral process which directly affects the outcome of the election.
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