Dabdoub (Abraham) v Vaz (Daryl) et Al and Vaz v Dabdoub

• Jurisdiction: Jamaica
• Judge: PANTON, P. , SMITH. J.A.: , HARRISON, J.A.
• Judgment Date: 28 November 2009
• Neutral Citation: JM 2009 CA 10
• Judgment citation (vLex): [2009] 3 JJC 1302
• Date: 28 November 2009
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE HARRISON, J.A

BETWEEN

ABRAHAM DABDOUB

APPELLANT

AND

DARYL VAZ

1 ^ST RESPONDENT

AND

CARLTON HARRIS

2 ^ND RESPONDENT

AND

THE ATTORNEY-GENERAL OF JAMAICA

3 ^RD RESPONDENT

AND

C.A. 47/2008

BETWEEN

DARYL VAZ

APPELLANT

AND

ABRAHAM DABDOUB

RESPONDENT

Gayle Nelson, Jalil Dabdoub and Winston Taylor, instructed by Gayle Nelson and Co. for Abraham Dabdoub

Ransford Braham and Mrs. Suzanne Risden-Foster, instructed by Livingston, Alexander & Levy for Daryl Vaz

Ms. Danielle Archer, instructed by Director of State Proceedings, for the 2 ^nd and 3 ^rd respondents

ELECTION PETITION - House of Representatives - Whether respondent qualified to sit in House - Costs

PANTON, P.

1 These consolidated appeals are from a decision of McCalla, C.J. in respect of a challenge by Mr. Abraham Dabdoub concerning the right of Mr. Daryl Vaz to sit in the House of Representatives, the latter having been elected on the 3 ^rd September, 2007, Member of the House of Representatives for the constituency of West Portland. The learned Chief Justice found that Mr. Vaz was not qualified to be elected to the House. However, she found that Mr. Dabdoub was not entitled to be returned as the duly elected Member. In the circumstances, she made no order as to costs in respect of both candidates as against each other, and ordered Mr. Dabdoub to pay the costs of the returning officer and the Attorney-General.

On February 27, 2009, we made the following Orders:

C.A. 45/2008

Appeal dismissed, save that the order for costs made below is set aside; and substituted therefor is an order that the appellant Dabdoub is to have the costs of those proceedings as against the respondent Vaz. There is no order as to costs in respect of the other respondents.

C.A.47/2008

• (i) Appeal dismissed.

• (ii) Counter-notice of appeal dismissed in respect of the votes thrown away.

• (iii) The certification by the learned Chief Justice to the Speaker of the House of Representatives and her order for the holding of a by-election in the constituency of West Portland are affirmed.

• (iv) There shall be no order as to costs in respect of the appellate proceedings.

2 Both men were rival candidates for election in the constituency of West Portland in the General Election held on the 3 ^rd September 2007 they having been nominated on August 7, 2007. Mr. Dabdoub, the unsuccessful candidate for the People's National Party received 6033 votes whereas Mr. Vaz, the candidate for the Jamaica Labour Party received 6977, the margin, of victory for Mr. Vaz being 944 votes.

The Claim

3 On October 1, 2007, Mr. Dabdoub filed a fixed date claim form in the Supreme Court claiming that he had "a right of return as the duly elected Member of Parliament for the Constituency of West Portland". He sought the following:

• "1. A Determination that the First Respondent was, on the 7 ^th August, 2007, not qualified to be elected to the House of Representatives including for the constituency of West Portland.

• 2. A Determination that the nomination of the First Respondent on the 7 ^th August, 2007 is invalid, null and void and of no legal effect.

• 3. A Determination that the Claimant/Petitioner, being the only qualified validly nominated candidate on the 7 August 2007, was and is entitled to be returned to the House of Representatives as the duly elected member for the Constituency of West Portland.

• 5. (sic) An Order that the Claimant/Petitioner be returned as the duly elected Member of the House of Representatives for the Constituency of West Portland.

• 6. A Certificate directed to the Speaker of the House of Representatives pursuant to Section 20(f) of the Election Petitions Act that the 1 ^st Respondent was not duly elected or returned and that the Claimant/Petitioner is the duly elected and duly returned candidate for the constituency of West Portland.

• 7. Alternatively the Claimant/Petitioner claims a determination that the 1 ^st Respondent did breach Sections 91 and 92 of the Representation of the People Act and that the said election be declared null and void.

• 8...

• 9..."

4 The particulars of claim alleged, among other things, that Mr. Vaz "is a businessman, a citizen of the United States of America, and the holder of a United States of America passport issued by the Government of that country through its embassy in Kingston, Jamaica". This was communicated by Mr. Dabdoub to the returning officer, Mr. Carlton Harris (2 ^nd respondent in appeal no. 45), in the presence of witnesses at the time of the nomination exercise. Accordingly, Mr. Dabdoub was claiming that the nomination of Mr. Vaz was null and void and he Dabdoub was therefore the only validly nominated candidate and as such was entitled to be returned as the duly elected Member of Parliament for the constituency. The passport number of Mr. Vaz is quoted as 710898440, and it is alleged that he has used it for travel.

5 The main plank of the claim by Mr. Dabdoub is stated in paragraph 11 of his particulars of claim thus:

"... Section 40(2)(a) of the Constitution of Jamaica specifically provides that no person shall be qualified to be elected as a Member of the House of Representatives who is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State".

The particulars of claim state further that the United States of America is a foreign Power or State, and that posters were published indicating the names of candidates (including Mr. Vaz) who were thought to be persons who had sworn allegiance, adherence and obedience to a foreign power and so were disqualified in accordance with section 40(2)(a) of the Constitution. The particulars state that the constituents were advised not to waste their votes.

6 The particulars of claim further alleged that Mr. Dabdoub had heard a statement on radio attributed to the respondent Vaz denying that he had sworn allegiance to any foreign country, and that he held a United States passport by virtue of his mother who is a United States citizen. Consequently, Mr. Dabdoub sought and received legal opinion and prepared a Notice of Disqualification which he printed and published to the constituents of West Portland, maintaining that Mr. Vaz was disqualified.

7 Paragraphs 23 and 24 of the particulars of claim contain allegations of corrupt efforts by Mr. Vaz "directly and indirectly by himself and other persons on his behalf" to influence the voters in the constituency to vote for him, by distributing "to hundreds of voters" food and zinc sheets. Notwithstanding the damning nature of these serious allegations, Mr. Dabdoub's counsel advised the Honourable Chief Justice at a case management conference on or about November 1, 2007, that he would not pursue them. Given the details of these particulars, if there was evidence to support them, it is unfortunate that such evidence was not presented so that the Court would have been in a position to pronounce thereon. Allegations of corruption are not to be lightly pleaded and, when pleaded, efforts should be made to prove them.

The Defence

8 In his Defence filed on November 16, 2007, Mr. Vaz contended that he was duly nominated and elected. He admitted being a citizen of the United States of America, and the holder of a United States passport. He is also a citizen and national of Jamaica, and holds a valid Jamaican passport. He was born at Nuttall Hospital in the parish of Saint Andrew, his parents being "Douglas Vaz former member of the JLP and Minister of Government and Sonia Mais nee Vaz" (sic). His mother was born in Puerto Rico, and as such is a citizen of the United States as of right. She lived in Puerto Rico until she was ten years old. She then went to reside in New York in the United States of America where she remained for eleven years until she married Douglas Vaz in 1959 and came to Jamaica to live. She remained in Jamaica until recently when she migrated to Canada.

9 Mr. Vaz first acquired a United States of America passport in 1968 when he and his siblings were added to his mother's passport. She had registered his birth at the United States Embassy in Jamaica. This registration process resulted in Mr. Vaz acquiring United States citizenship "by virtue of derivation at birth pursuant to Section 301(A)(7) of the Immigration and Nationality Act of 1962 which is now called U.S.C. Section 1401(G) and which was then 8 U.S.C. Section 301(A)(7)".

10 The pleading further discloses that sometime after 1978, Mr. Vaz' mother was instrumental in securing Mr. Vaz' own passport. Since becoming an adult, he has applied to renew it and his current valid United States of America passport was issued in 2004.

11 Mr. Vaz denied acting in contravention of section 40(2)(a) of the Constitution, and has pleaded that he has not by virtue of his own act been under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State. His position is that "by operation of United States law he has been under an allegiance to that Power from birth by reason of his United States citizenship which he acquired as a matter of right at birth and not by virtue of any affirmative act by either himself or his mother. This fact is evident on the face of the Report of Birth Abroad dated 2 ^nd December 1964" (para. 14 of the Defence).

12 In the alternative, he contended that having regard to the fact that he was a United States citizen at birth, the acquisition and/or renewal of his United States passports did not as a matter of law confer on him any status and/or disability that he did not already have prior to the acquisition or renewal of the passports. There is no oath-taking requirement nor any...