Mattison v Junor et Al

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Smith, C.J.
• Judgment Date: 05 October 1977
• Neutral Citation: JM 1977 CA 32
• Docket Number: Not yet available
• Date: 05 October 1977

Election Court

Smith, C.J.

Not yet available

Mattison

and

Junor et al

Appearances:

W. Spaulding and A.J. Dabdoub, for petitioner

K.D. Knight and J. Sinclair for respondent

L. Ellis and R. Langrin, for returning officer

Constitutional Law - Election controversies

Smith, C.J.

1 On March 8. 1977, a general election was held for the return of councilors to serve on the Parish Council in this parish, and at the election for, what I shall call, the Boroughbridge division, electoral division No. 19, the petitioner Mr. Mattison and the respondent Mr. Junor were the candidates. As is stated in the petition, the respondent Mr. Junor was declared duly elected. It was agreed by the parties that at that election Mr. Junor obtained 1,286 votes. Mr. Mattison 887 votes, 2 ballots were rejected and so Mr. Junor had a majority of 399 votes. Those were the figures upon which the respondent Junor was returned as duly elected and the figures have not been challenged.

2 On April 5, 1977, the petitioner Mr. Mattison filed an election petition in which he claimed, on the allegations made in the petition, that he is the only person who was properly nominated for that electoral division, that he should have been declared duly elected and returned, that the respondent was not qualified to be nominated nor qualified to be elected, consequently he is the only person so qualified, being the only person properly nomination.

3 The allegations made in paragraphs (4) to (8) of the petition are as follows: “(4) that at the time of the nomination Mr. Junor, the P.N.P. candidate, was not on the list of electors to vote for an election of persons to the House of Representatives as provided by the Parish Councils Act; (5) that at the time of such purported nomination the said John Junor was registered as an elector on the list of voters at P.D. 60 No. 19 on the voters' list with an address at No. 1 Hollywood Close, Kingston 6, in the Constituency of S.E. St. Andrew in the parish of St. Andrew: (6) that at the time of the election the name of the said John Junor appeared on the said list of voters for the said constituency in St. Andrew as stated in paragraph (5) hereof;

4 (7) that at the time of the election the name of the said John Junor appeared on the supplementary list of voters for the parish of St. Ann in respect of the division of Boroughbridge, purporting that he was a bona fide elector for the said parish; (8) that having regard too the facts set out above and paragraphs (4), (5) and (6) in particular of which the said Returning Officer and the Chief Electoral officer knew or ought to have known and in respect of which they were subsequently informed, the respondent John Junor could not have been properly and legally registered as a voter in the said parish of St. Ann.”

5 Section 17 (2) of the Parish Councils Act sets out the qualifications for nomination of a candidate to fill a vacancy on a Parish Council as a councilor. The sub-section provides as follows:

“Any six or more electors qualified to vote in an electoral division for which an election is to be held may nominate any person qualified to be a councilor of the Parish Council as a candidate by signing a nomination paper in the prescribed form and causing such nomination paper to be handed to the returning officer between the hours referred to in sub-section (1).”

6 Now, to find who is qualified to be a councilor of the Parish Council, one looks at s. 7 of the Parish Councils Act and sub-s. (1) provides as follows:

“No person shall be capable of being elected or having been so elected of sitting or voting as a member of the Parish council in any parish -

• (a) ……………………………….

• (b) who is not entitled to vote at the election of a member of the House of Representatives for some constituency comprised in the parish.”

7 So that, on the day of nomination, for a person to be qualified for nomination he must be entitled to vote at the election of a member of the House of Representatives for some constituency comprised in the parish and he can only be entitled so to vote if his name appears on the official list of electors for a constituency in the parish.

8 The emphasis here is on a local representative. The person who is to serve on the Parish Council must be a local person, someone who is resident in the parish, and this is to be contrasted with the provisions for a general election to fill seats in the House of Representa- tives, where a candidate may present himself for election although he does not live in the constituency or in the parish of which the constituency is a part. And, of course, the law contemplates that any person who offers himself for election to a Parish Council must be a bona fide resident of the parish.

9 On nomination day, which was February 21, 1977, it is clear that the respondent Junor was not qualified to be nominated as his name did not then appear on any official list of electors for any constituency in the parish of St. Ann. This requirement must have been known to Mr. Junor because, on February 12, 1977, he made application to be registered as an elector in the constituency of St. Ann, S.W. The application was made in pursuance of rule 22 of the rules for the preparation of official lists contained in the First Schedule to the Representation of the People Act. That rule allows for continuous registration of persons who are qualified to be registered as electors in any polling division but whose names do not appear on the electoral register. The rule allows any such person to make application to the chief electoral officer for registration at any time, whether within an enumeration period or not, and there is a prescribed form which he must complete and submit.

10 There is no evidence as to what happened to Mr. Junor's application after it was made, to whom it was handed or anything to that effect, but it turns out eventually that it was processed. The application form provides for a declaration to be made by the applicant that the particulars stated in the application relate to him personally, are true and correct, that he is qualified to be registered as an elector and, a matter which is relevant to this case, that his name does not appear on the electoral register. Now, those last words are no doubt included in view of the provisions of s. 5(5) of the Representation of the People Act; which provides that, notwithstanding anything to the contrary, no person shall be entitled to be registered as an elector for more than one polling division. The facts show that when that application was made by Mr. Junor his name appeared on the electoral register for the constituency of St. Andrew. S.E., polling division No. 60. So that if it was known to Mr. Junor when he made his application on February 12 that his name was on the official list in the constituency of St. Andrew S.E., the declaration that his name does not appear on the electoral register was a false declaration, known by him to be false. Mr. Junor must have had that knowledge because, as the evidence shows, on February 18 he wrote a letter to the chief electoral officer in which he stated that he was a candidate in the upcoming Parish Council election in the Boroughbridge division of South West St. Ann, that he “presently” held a vote in Mr. Eric Bell's constituency and in the light of the law relating to this matter he applied for a revocation of his vote in the constituency now held by Mr. Bell. That letter, according to the evidence given by the chief electoral officer, was not received by him.

11 On nomination day no objection was made to Mr. Junor's nomination, although it appears that those opposing him in that electoral division, particularly Dr. Gallimore, opposing him in the sense of being members of the opposing party, knew or had reason to believe that he was not qualified to be nominated. The evidence given Dr. Gallimore is that on nomination day he telephoned the chief electoral officer informing him of suspicions or information that he had that the respondent Junor was registered as an elector in St. Andrew, although he could not say precisely where in St. Andrew. The chief electoral officer admits receiving a telephone call from Dr. Gallimore, but he apparently did nothing about it.

12 Subsequently, Dr. Gallimore made enquiries and discovered that Mr. Junor's name appeared on the list in St. Andrew, S.E., and he discovered the precise polling division and the number on the official list of electors. On March 1, he wrote a letter to the chief electoral officer concerning the information he had received. The letter made the allegation that the respondent Junor was not qualified to be nominated as a candidate in St. Ann for the division in which he was nominated as he was not registered in the parish as an elector. The letter called upon the chief electoral officer to direct the returning officer for St. Ann, S.W., to declare the petitioner as the only candidate properly nominated and, thus the duly elected candidate for the Boroughbridge division. It was pointed out that the respondent Junor was not eligible to be an elector for the parish of St. Ann since his name already appeared on the electoral register. This letter was copied to the returning officer, who is the second respondent in this case, and the evidence, which is not denied, is that on the day following, that is on March 2, Dr. Gallimore accompanied the petitioner to see the returning officer, handed him a copy of the letter and called upon him to declare the petitioner, as the duly elected candidate for the division. The returning officer replied that had no power in the matter that it was a matter for the court, or words to that effect.

13 The chief electoral officer said he sought the advice of the Attorney General's department when Dr. Gallimore's letter was received and it may be that he took no action because of the advice...