Constantine D Bogle v Dean Ripton Jones, Dean Ripton Jones, Franklyn Holness, Marvelyn Pitter and The Attorney General
| Jurisdiction | Jamaica |
| Judge | Sykes J |
| Judgment Date | 20 March 2018 |
| Neutral Citation | [2018] JMSC CIV 33 |
| Docket Number | CLAIM NO. 2016HCV05124 |
| Court | Supreme Court (Jamaica) |
| Date | 20 March 2018 |
[2018] JMSC CIV 33
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Sykes J
CLAIM NO. 2016HCV05124
and
and
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Bert Samuels, Bianca Samuels and Dana Daynia instructed by Knight Junor and Samuels for the petitioner
Marvalyn Taylor-Wright, Anwar Wright and Christal Brown (received judgment) instructed by Taylor-Wright and Company for the first respondent
Susan Reid Jones and Carla Thomas instructed by the Director of State Proceedings for second and fourth respondents
ELECTION PETITION — WHETHER CANDIDATE ELIGIBLE FOR ELECTION — MEANING OF ‘HAS RESIDED’ IN AREA FOR TWELVE MONTHS IMMEDIATELY PRECEEDING DAY OF ELECTION — WHETHER CANDIDATE IS PUBLIC OFFICER WITHIN THE MEANING OF SECTION 3 OF CIVIL SERVICE ESTABLISHMENT ACT — EFFECTIVE DATE OF RESIGNATION — REPUDIATORY BREACH OF EMPLOYMENT CONTRACT — WHETHER CANDIDATE RESIGNED FROM JOB BEFORE DATE OF LOCAL GOVERNMENT ELECTION
Mr Constantine Bogle and Mr Dean Jones faced the electorate in the Yallahs Division of St Thomas Municipal Corporation in the local government elections held on November 28, 2016. Mr Dean Jones was victorious. Mr Bogle is challenging that victory on the ground that Mr Jones was not eligible for nomination and election.
Mr Bogle says that Mr Jones was eligible to be nominated because (a) he was not resident in the division as is required by law and (b) he was a public servant at the time of his nomination. Mr Jones refutes both of these attacks on his election. The court now needs to decide whether Mr Bogle's assertions are true. Both issues are addressed in the order stated in this paragraph.
The Local Government Act (‘LGA’) and the Eighth Schedule to the Representation of the People Act (‘RPA’) contain all the relevant provisions for the resolution of this issue.
Local Authority is defined in section 2 (1) of the LGA. It says:
Local Authority means a body categorised as such under section 6.
Section 6 states:
Local Authorities shall be categorized as –
(a) Municipal Corporations, constituted in accordance with section 7; and
(b) City Municipalities or Town Municipalities constituted in accordance with section 8
Section 7 states:
A Municipal Corporation shall be a body corporate, having a perpetual succession, to which section 28 of the Interpretation Act shall apply.
There is no need to refer to section 8 because it is not contended that the Local Authority in St Thomas is a City Municipality or Town Municipality.
From what has been said so far the genus is Local Authority and the species are Municipal Corporations, City Municipality or Town Municipality.
The LGA speaks to the composition of the Municipal Corporation. In the parish of St Thomas the Local Authority is a Municipal Corporation. Section 10 (1) states that:
(1) The Council of a Municipal Corporation shall be comprised of one Councillor for each electoral division in the area within the jurisdiction of the Municipal Corporation.
Section 13 (1) provides:
Subject to subsection (2), the Councillors entitled to sit on the Council or a Local Authority are the Councillors elected from the electoral divisions wholly contained within the boundaries of the Local Authority.
Under section 2 (1) of the LGA:
Councillor means a person who, by virtue of being elected in accordance with the Eighth Schedule of the Representation of the People Act, is entitled to sit on the Council of Municipal Corporation, City Municipality or Town Municipality.
These are the relevant provision for the issue under discussion. From what has been said, the St Thomas Municipal Corporation is comprised of councillors who are entitled to be elected from the electoral divisions wholly within the boundaries of the area governed by the St Thomas Municipal Corporation. Yallahs is one such division.
To be elected, Mr Jones must pass the residency standard found in paragraph 4 (4) of the Eighth Schedule of the RPA. This Schedule was added by the LGA. Paragraph 4 (4) states:
No person shall be capable of being elected a member of a Council or, having been so elected shall sit or vote in a Council unless the person has resided in the area within the jurisdiction of the relevant Local Council for twelve months immediately preceding the day of election.
There is no definition of ‘reside’ in the Eighth Schedule and neither is there one in the LGA or the RPA. Both sides have cited case law to support their interpretation of ‘has resided.’
In seeking to arrive at the meaning of ‘reside’ in this context, Mrs Taylor Wright for Mr Jones has placed before the court several authorities. The court now examines them. There is Inland Revenue Commissioners v Lysaght [1928] AC 234. The issue where was the meaning of ‘resident’ and ‘ordinarily resident’ for the purpose of section 46 (1) of the Income Tax Act 1918. Mr L was born in England to Irish parents. He was living in England up to 1919 when he partially retired and went to live in the Irish Free State. Until he retired, he was the managing director of an English company. After 1919 he did not maintain a definite place of residence in England but he came to England every month and remained for about one week for consultations with the other directors regarding the company's business. When he came on his monthly visits he stayed in a hotel. His wife did not accompany him. In respect of Ireland, he had no business interest except his estate. He had a bank account there and a small account in England. On these facts, the income tax commissioners levied taxes on him. His response was that he was not liable because he was ‘not ordinarily resident’ in England and neither was he a resident in the United Kingdom. The commissioners did not agree with him. He went to court. The trial judge agreed with him. The Court of Appeal reversed the trial judge. The House of Lord agreed with the trial judge.
Viscount Sumner in examining the provision of the statute began by examining the word ‘ordinarily’ in the phrase ‘ordinarily resident.’ His Lordship noted that the statute did not say ‘usually’ or ‘most of the time’ or ‘exclusively’ or ‘principally’ and neither did it say ‘occasionally’ or ‘exceptionally’ or ‘now and then.’ The learned Law Lord added that the opposite of ‘ordinary’ is ‘extraordinary.’ Then his Lordship went on to observe that ‘that part of the regular order of a man's life, adopted voluntarily and for settled purposes is not ‘extraordinary’.’ The court understands Viscount Sumner to be saying that that which is not extraordinary is ordinary. Then comes this important understanding from his Lordship. At page 244 his Lordship observed:
Grammatically the word “resident” indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question “then where is he resident himself?”
This important statement is saying that residence is not about property ownship but about the person himself distinct from any property he may own. He can be resident at a place though he has no property where he resides.
Viscount Sumner's analysis reinforced this point by saying that a person may be homeless but there is no doubt about their residence. His Lordship took account of Mr L's home in Ireland where his family was as was his demesne lands and farm but that attachment to Ireland did not preclude a finding that he was resident or ordinarily resident in England. The fact that he stayed in a hotel or even several hotels did not negate a finding that he was resident in England.
Viscount Sumner also took account of the proposition that in ordinary language a person is resident at his usual place of abode. His Lordship concluded that ‘[r]esidence here may be multiple and manifold' (page 245).
His Lordship examined the argument that Mr L only came for short periods (one week). This was his observation at page 245:
There is again the circumstance that Mr. Lysaght only comes over for short visits. Does this make any conclusive difference? If he came for the first three months in the year for the purpose of his duties and then returned home till the next year, would there not be evidence that he was resident here, and, if so, how does the discontinuity of the days prevent him from being resident in England when he is here in fact, if the obligation to come, as required, is continuous and the sequence of the visits excludes the elements of chance and of occasion. If the question had been one of “occasional residence” abroad in the language of General rule 3 these facts would have satisfied the expression, for residence is still residence, though it is only occasional, and I see no such fundamental antithesis between “residence” and “temporary visits” as would prevent Mr. Lysaght's visits, periodic and short as they are, from constituting a residence in the United Kingdom, which is “ordinary” under the circumstances.
Thus on the facts, the commissioners were entitled to hold that monthly visits lasting one week were sufficient to make the person ordinarily resident in England for tax purposes. Viscount Sumner noted that the brevity of the visits did not affect the principle though his Lordship did conclude that there may well be visits of such short duration that it could not be said that he was resident in England but that was not the case before his Lordship.
Lord Buckmaster (judgment delivered by Lord Atkinson) made the point that ‘residence’ in the income tax law was used in its...
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