Williams v Giraudy et Al

JurisdictionSt Lucia
JudgeSt. Bernard J.A.,Berridge J.A.,Davis C.J.
Judgment Date07 November 1977
Neutral CitationLC 1977 CA 2
Docket NumberElection Petition Appeal No. 6/1977
CourtCourt of Appeal (Saint Lucia)
Date07 November 1977

Court of Appeal

Maurice, C.J.

St. Bernard, J.A.

Berridge, J.A.

Election Petition Appeal No. 6/1977

Williams
and
Giraudy et al

W. Cenac, Q.C. and B. Edwards for the appellant.

V. Floissac Q.C. and K. Monplaisir for the respondent.

Constitutional Law - Election — Petition for election to be declared void — One set of ballot papers not placed in box with others, but the Returning Officer knew where it was and he presented it still sealed — No objection by those present when he showed that it was still sealed — Petition dismissed by High Court — Decision of High Court upheld.

1

St. Bernard J.A. (read by Davis C.J.): This is an appeal from the High Court under subsection (6) of section 34 of the St. Lucia Constitution Order, 1967, and arises out of an election held on the 6th May, 1974, in which the appellant and the respondent Giraudy were candidates for the electoral district of Vieux — Fort South. At the preliminary count the appellant polled 801 votes and the respondent 799, but at the final count on the following day the respondent rolled 801 and the appellant 765 votes. The respondent was declared elected by a majority of 36 votes.

2

This electoral district was divided into three polling divisions and two of those divisions — K–1 and K–2 – were subdivided into two polling stations. These carried names with the letters beginning A to I and J to Z. The station that is most important in this appeal is K–1, J to Z. At this station the respondent polled 136 votes at the preliminary count. These votes were counted in the presence of the appellant's agents and there was no objection to any of them. They were placed in an envelope and sealed. This sealed envelope was placed in a larger envelope which was also sealed. This envelope ought to have been placed in a ballot box, which also should have been sealed, but this was not done as the box could not have been closed and sealed as it was too small for the purpose. Frances Innocent, a poll clerk, stated that all the election material was not placed in the box as it was too small. The envelope was left out. The following day the Returning Officer took up his position for the final count. When the box was opened in the presence of the appellant and his agent the returning officer observed that the envelope for Giraudy was missing and on inquiry the presiding officer stated “Oh! I know what happened”. He went into the office in full view of all present and took the envelope. Here the agent stated, “Should not the envelope have been in the box?” The seal of the larger envelope was in tact. He broke it and took out the smaller envelope. The returning officer examined it and saw the seal was in tact, and showed the red wax seal to those present. The votes were counted and the total was the some, 136. The agent said, “That's all right”.

3

Counsel for the appellant challenged the judge's finding on this issue of fact and stated that he used an affidavit which was not in evidence. The affidavit was inadmissible but without the affidavit there was sufficient evidence to support the finding.

4

The appellant prayed for a scrutiny of all the ballots cast for the respondent and the ballots rejected by the Returning Officer with reference to the appellant. He was granted leave to amend this prayer and the relief claimed was for a scrutiny of all the ballots for the respondent and the appellant and of all rejected ballots and a declaration that the appellant was the duly elected candidate and ought to have been returned.

5

The petition contained allegations of irregularity other than the issue in respect of the envelope containing 136 votes. These were not pursued at the trial as the appellant was precluded from giving evidence in this regard for failure to observe an order of court for particulars in respect of them within the prescribed time. This ardor was the subject of appeal to the Court of Appeal and was dismissed. The appellant then under Rule 4(2) of the Election Petition Chapter 121 of the Laws of St. Lucia, moved the court for an order that notwithstanding the failure of the appellant to deliver the particulars ordered by Bruno J. on the 23rd September, 1974, the appellant should be allowed to give evidence at the trial on these. This application was refused and this refusal is raised as one of the grounds of appeal.

6

The trial judge found that there was a non-compliance with section 48(10) (re-numbered 55(10)) as there was no evidence to show that the envelope was tampered with between the preliminary and final counts. This non-compliance, he found, did not affect the results of the election.

7

There are five grounds of appeal and these will be dealt with in the manner in which they were argued.

8

On ground one counsel argued that the failure of the presiding officer to place the envelope containing the 136 ballots in the ballot box was a non-compliance with the provisions of section 48(10) of the Elections Ordinance, Ch. 121 and this failure affected the result of the election as the returning officer had no legal right to count these ballets since to do so was also a, non-compliance with section 50 (2)(a).

9

Sections 48(10) and 50 (2)(a) read respectively:

“48(10) The poll book, the several envelopes containing theballot papers — unused, spoiled, rejected or counted for each candidate — each lot in its proper envelope, the envelope containing the official list of electors and other documents used at the poll shall then be placed in the large envelope supplied for the purpose, and this envelope shall then be sealed and placed in the ballot box. The ballot box shall then be locked and sealed with the seal of the presiding officer and forthwith transmitted or delivered to the returning officer. The returning officer may specially appoint one or more persons for the purpose of collecting the ballot boxes from a given number of polling stations and such person or persons shall, on delivering the ballot boxes to the returning officer, take the oath in the form set out as Form No.45 in the First Schedule.”

“50(2) After all the ballot boxes have been received, they shall be opened at the place, date and time specified in the notice referred to in subsection (2) of section 27 of this Ordinance for the final count of votes, and in the presence of such candidates or their representatives as are present by the returning officer, or, where the same person is returning officer for more than one electoral district, by him or the election clerk for the electoral district concerned, and the returning officer or such election clerk, as the case may be shall –

(a)count the votes contained therein cast for each candidate (allowing the candidates and their representatives to see such votes) and determine whether any of the votes so cast should be rejected;”

10

He contended that the words “contained therein” in section 50 (2) (a) referred to the ballots placed in the box and were mandatory. He further submitted that the polling was not complete until the returning officer made his declaration. In support the cases of Active V. Scobie (1969) 13 W.I.R. 194; Cato v. Allen (1958) 1 W.I.R. 68 and Morgan v. Simpson [1974] 3 All E.R. 722 were cited.

11

Counsel for the respondent submitted that both sections 48 (10) and 50 (2) should be interpreted as directory only since the purpose of placing the envelope in the ballot box was to ensure that the votes were not tampered with between the preliminary and the final counts and this object could be achieved without placing the ballots in a box. He argued to hold that a breach of section 48 (10) invalidated the election would work grave injustice since the preliminary count and the final count was the same and there was no evidence or any suggestion that the votes were tampered with. In support of the contention that the words in sections 48 (10) and 50 (2)(a) were directory only counsel cited the case of Montreal Street Railway Company v Normandin [1917] A.C.170 and submitted that section 48(10) related to the performance of a public duty over which neither party had any control.

12

The learned author of Maxwell on The Interpretation of Statutes, 9th Ed. at page 379 states,

“On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconveniences or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them.”

13

When section 51 of the Elections Ordinance is examined, it will be observed that it makes provision for the counting of ballots in cases where ballot boxes have not been returned. The section gives the returning officer power to ascertain by such evidence as he is able to obtain the total number of votes cast for each candidate and to declare elected the person appearing to him to have the largest number of votes. In my view the purpose of this provision is to show that where there is some irregularity or failure in the due performance of duties imposed by the Ordinance such irregularity or failure to perform does not, of itself, invalidate the election if there is satisfactory evidence showing that the result of the election is not affected. In the present case the ballots show that them was no tampering. On both sides it was agreed that 136 valid votes were placed in the envelope at the preliminary count and 136 valid votes were found in the envelope at the final count. The fact that the sealed envelope was not placed in the sealed ballot box, in my view, did...

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