Active v Scobie
| Jurisdiction | Dominica |
| Judge | Berridge, J |
| Judgment Date | 20 January 1969 |
| Neutral Citation | DM 1969 HC 6 |
| Docket Number | No. 177 of 1968 |
| Court | High Court (Dominica) |
| Date | 20 January 1969 |
West Indies Associated States Supreme Court. High Court
Berridge, J.
No. 177 of 1968
Armour, J. B. and Degazon F. for the petitioner
Charles, M.E. for the first named respondent
Austin, L.I., Attorney General for the second named respondent
Constitutional Law - Election controversy — Roseau Town Council Ordinance Cap. 189 — Mandatory and directory principles.
Facts: Under the Roseau Town Council Ordinance, the court was empowered to review any question in respect of any ballot paper in a dispute over elections.
Held: That the use of pencil to mark ballot was “directive” and not “mandatory”. If the legislature had intended it to be mandatory it would have said so. As to whether the respondent had been duly elected, held that some ballot papers were to be disregarded as invalid and of the other 26 valid ballots, 10 were valid for the petitioner and 16 for the respondent. This would in fact increase the respondents majority. Petition dismissed.
At the Roseau Town Council elections held on the 31st Octobers 1968, in accordance with the provisions of the Roseau Town Council Ordinance, Cap. 189 of the Revised Laws of Dominica, 1961 Edition, there were 10 candidates contesting five seats and the five highest on the poll, of whom the respondent was fifth, were declared to be elected.
As between the respondent and the petitioner who was sixth on the poll the number of votes declared after a second count on the 1st November 1968 was as follows:
For Edward Scobie 587 votes
For Arnold Active 585 votes
On the 20th November, 1968 the petitioner subsequently filed a petition in paragraph 6 of which he states that the second respondent had rejected 38 ballots and in paragraph 7 of which he states that he objected to the presiding officers decision in respect of 10 of the said 38 rejected ballots and finally prayed that the court do order the opening of any sealed packet or packets of documents or paper relating to the election for inspection to enable the petitioner to institute and maintain a petition questioning his non return at the Election.
Following proceedings in Chambers on the 6th December and the 18th December, 1968 all rejected ballots were produced for inspection by both parties and their legal advisers in the presence of the Deputy Registrar (in the absence of the Registrar) and the Presiding Officer on the lath December, 1968.
The petitioner, on the 20th November, 1968, also filed the petition which is before the court, paragraphs 6 and 7 which are in identical terms with those of the first mentioned petition, with the prayer (1) that it may be determined that the respondent Scobie was not duly elected (2) that it may be determined that he was duly elected (3) that the coat of the petitioner of this petition may be ordered to be paid by the respondent or otherwise as to the court may seem fit.
At this stage it is convenient to state that it Bias submitted by the Hon. Attorney General that John Davis, second named respondent be struck out from the proceedings in the absence of any imputation of misconduct to him. Harmon v Park (1880) 6 Q.B.D. 323 is authority for saying that it is not open to a petitioner to make a returning officer a respondent or not at his option and while he shall be treated ipso facto as a respondent by reason of a complaint, that term must be taken to mean an imputation of misconduct.
I am satisfied that the conduct of the presiding officer in this matter has been in no way tinctured by any element of fraud, corruption or unfairness and it is accordingly ordered that the name of John Davis be struck out from the proceedings,
It was pointed out to counsel for the petitioner that notwithstanding the fact that the court could only determine this matter after scrutiny of the ballots no mention of scrutiny had been made in the petitioners prayer.
Counsel applied for and was granted leave to amend the prayer by the addition of the following as item (4): “that the court may scrutinize the said rejected allots objected to with a view to determining that your petitioner was duly elected.”
On the 18th December, I968ia total of 46 and not 38 rejected ballots were produced and subsequently inspected by the parties.
The 46 rejected ballots aforesaid were admitted in evidence as Exhibits-
A. 1 — A. 14
B. 11 — B. 15
C. 16 — C. 31
D. 32 — D. 46
Counsel for the petitioner objecting to the admission of all but those marked A. 1 to A. 10 inclusive.
In support of his objection learned counsel for the petitioner contended that (I) Sec. 59 of Cap. 189 rendered the 36 ballots irrelevant to the issue and that the time limit for the respondents raising any objections which was provided by the said section, had already expired on the 27th November 1968 the date on which the respondent filed his affidavit. (2) Sec. 52 (1) of Cap. 189 limited the category of rejected ballot papers which should be countenanced, in other words, he contended that only the ballot papers endorsed “Rejected. Rejection objected to” at the time of the count thereof were properly before the court. (3) Section 53 of Cap. 189 rendered the Presiding officers decision on this score final subject to reversal on petition questioning the election ox return.
Counsel also referred to Halsbury's Laws of England 3rd Edition Vol. 14 page 310 para. 559 dealing with application for re-count.
In addition counsel referred to the case of Lord Monkswell & others v. Thompson [1898] 1 Q.B. 479 in which a petition was filed for a recount of the votes given for the petitioner and the respondent consequent upon the petitioner's questioning of the correctness of the returning officers figures. In this case it was held that tie petitioner was entitled to the seat for it was enough for him to establish that he had more voted than the respondent and that it was unnecessary far him to recount the votes given for the other successful candidates.
Learned counsel for the Respondent submitted that the procedure to be followed was governed by section 60 of Cap. 189 and that in implementing this procedure the court was entitled to decide any question arising out of the presiding officer's decision in respect of any ballot paper.
Counsel also contended that the facts of Monkswell case were not on all fours with the instant matter, a point which was not disputed by counsel for the petitioner.
Reference to Woodward v. Sarsons, the leading case on this subject, will show that in that case no objection was taken at the counting by the petitioners contention was based on information obtained on the inspection of ballot papers some 10 weeks after the election.
On the inspection of the ballot papers on behalf of the respondent which took place subsequently to the inspection on behalf of the petitioner it appeared that certain other ballot papers had been dealt with by the respective voters in a manner similar to that disclosed in the case of those objected to by the petitioner and the sum total of all those ballot papers were brought under the scrutiny of the court.
As far as the contentions of learned counsel for the petitioner regarding sections 52(1) and 53 of Cap. 189 are concerned I am of the opinion that the powers of review with which the court is imbued under section 53 relates to any question in respect of any ballot paper upon which the presiding officer may have given a decision.
In any event the Presiding Officer placed into container which was handed over to the Deputy Registrar 46 ballot papers which he rejected and which were not counted by him and it was open to him to find that the papers marked in ink were not properly marked or at all and this fell within paragraph (d) of subsection (2) of section 52 of Cap. 189 as being rejected for want of voters' mark.
I do not share the view that the court is precluded from considering the ballot papers merely because they were not endorsed in accordance with section 52 (1) of Cap. 189 if the court is satisfied that they were rejected by the Presiding Officer and I am fortified in this view by the fact that in the Cato & another v. Allen & another the court fit to consider the 60 votes found in envelopes marked “spoiled” notwithstanding the fact that in all cases the ballots were not marked “Spoiled” in accordance with the provisions of the St. Vincent Ordinance and I consider that the court can determine the issue only by considering the validity or otherwise of all 46...
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