Exeter v Supervisor of Elections

• Jurisdiction: St Vincent and the Grenadines
• Judge: Cottle, J.
• Judgment Date: 28 December 2015
• Neutral Citation: VC 2015 HC 91
• Docket Number: SVGHCV 2015/0193
• Court: High Court (Saint Vincent)
• Date: 28 December 2015

High Court

Cottle, J.

SVGHCV 2015/0193

Exeter

and

Supervisor of Elections

Appearances:

Mr. Stanley John QC and Ms. Maia Eustace for applicant

Mr. Anthony Astaphan SC, Mr. Richard Williams and Mr. Graham Boilers for the respondent

Elections - Application for an order to produce election documents — Whether the application for an order to produce election documents should be granted where there was no danger that these documents were in any way at risk of being tampered with and the applicant had had the opportunity to inspect all the ballots and satisfy himself of the accuracy of the count — Finding that the applicant had shown any grounds, far less any strong grounds, to grant the application.

Cottle, J.

1 This is an application by Benjamin Exeter, a candidature in the recent General Elections held in St. Vincent and the Grenadines on 9th December, 2015. On the 17th December, 2015, the application was filed at the Court Office. The applicant seeks the following orders.

1

) An order that the respondent produce forthwith all ballot boxes in her custody in the constituency of Central Leeward for which constituency the applicant stood as candidate. The boxes are to be delivered to the Registrar of the High Court; 2) An order that the said ballot boxes be opened by the Registrar in the presence of the applicant and the applicant be permitted to inspect all the ballot papers contained therein; 3) An order that the sealed packets containing counterfoils in the ballot boxes be opened by the Registrar in the presence of the applicant did the applicant be permitted to inspect did open the packets of counterfoils.

2 The grounds of the applications are set out. I reproduce them in full. The grounds of this application are that:

• a) The applicant/Intended petitioner was a Candidate representing the New Democratic Party (‘NDP’) in the relation to the elections held on 9th December, 2015 for the Central Leeward Constituency.

• b) The applicant/Intended petitioner accompanied by his representatives/agents attended the final count of votes cast in the polls for the Central Leeward Constituency which was conducted by Mr. Winston Gaymes the Returning Officer for that Constituency.

• c) At the final count the applicant/Intended petitioner and his representatives/agents were denied the opportunity to inspect the counterfoils for the polling stations (save that they were shown to the counterfoils in respect of one Polling Division only) after the representatives of the Candidate of the Unity Labour Party (‘ULP’) Sir Louis Straker, questioned the Returning Officer's production of the counterfoils to the applicant's representatives/agents.

• d) Contrary to the House of Assembly Elections Rules the Returning Officer ignored objections by the petitioner's representatives at the final count and counted as valid more than three hundred (300) ballots which were defective in material respects in that they appeared to have been willfully mutilated in such a manner that contrary to Rule 31 (1) of the House of Assembly Election Rules, neither an official mark nor any initial of the Presiding Officer appeared on them, and other similarly mutilated which appeared among the ballots in the boxes for other Polling Divisions were ruled invalid by the respondent.

• e) The number of ballots which were declared at the end of the purported final count conducted by the Retuning Officer was Two Thousand Four Hundred and Ninety Seven (2497) to Sir Louis Straker and Two Thousand One Hundred and Eighty Four (2184) to the applicant/Intended petitioner, making a difference between them of Three Hundred and Thirteen (313) votes.

• f) Repeated requests which were made by the applicant/Intended petitioner and his representatives/agents on his behalf while the final count was being conducted, to be permitted to examine the counterfoils of these ballots and other electoral documents in respect of the Polling Station referred to in (d) above, were denied by the Returning Officer.

• g) The Presiding Officer was obliged to prepare a Form 16 Statement pursuant to Rule 41 of the House of Assembly Rules after the preliminary count of the ballots for each Polling Station. The information contained in the Preliminary count of the ballots for each Polling Station in respect of used ballots and returned ballots when combined is greater that the number of ballots shown as having been received from Returning Officer and during the final count the Returning Officer refused the applicant/Intended petitioner's request for a recount and the request which was made by his representatives/agents on his behalf to have sight of the counterfoils for this Poling Division.

• h) In relation to another Polling Station, during the purported final count conducted by the respondent, he did not produce a Form 16 Preliminary Statement of the Poll and in spite of objections by the applicant/Intended petitioner and objections made on his behalf by his representatives/agents, the First respondent proceeded to count the ballots for that Polling Division and declared the results of the count.

• i) Due to the denial by the Returning Officer of the applicant/Intended petitioner's repeated request to see counterfoils in general and in particular counterfoils relating to Polling Divisions where there were mutilated ballots which did not show either the official mark of the Presiding Officer's initials as required by Rule 31 (1) of the House of Assembly Rules, and given the Returning Officer's refusal to entertain any requests for the recounts by the applicant/Intended petitioner and the circumstances fully explained in the applicant/Intended petitioner was denied the opportunity to conclusively assess the validity of the final count.

• (j) Accordingly, the applicant/Intended petitioner informed the Returning Officer at the purported final count that he did not accept the validity of the recount and that he will be challenging same in Court.

• k) Based on these irregularities as fully set out in the applicant/Intended petitioner's affidavit, the applicant/Intended petitioner is advised and verily believes that there was an undue return of the polls in the Constituency of Central Leeward as a result of the breaches of the applicable laws including the Elections Rules and the effect of those breaches was that the elections were conducted so as not to be substantially in the compliance with the law and that that materially affected the results of the election.

• l) Section 57 of the Representation of the People Act Cap 6 of the 2009 Revised Laws of St. Vincent & the Grenadines provides that s Petition complaining of an undue return or undue election of a member of the House of Assembly be presented within twenty one (21) days after the return of the Writ is made by the Returning Officer.

• m) The return relating to Sir Louis Straker certifying him to the candidate with the greater amount of ballots (2497 to 2184) and hence the winning candidate was made on 10th December, 2015 by the First respondent after purporting to conduct a final count, the results of which was challenged by the applicant/Intended petitioner.

• n) The orders sought herein are required for the purpose of an Election Petition which is to be lodged on behalf of the petitioner in accordance with the law thereunto applicable complaining of the undue return or undue election of Sir Louis Straker to the House Assembly.

3 The application was supported by an affidavit sworn to by the applicant and another sworn to by Ms. Maia Eustace, one of his legal representatives. The application was made on an ex parte...