Hudson Kemuel Tannis Appellant v Emery Winston Robertson Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | CECIL LEWIS, C.J. (Ag.),ST. BERNARD, J.A.,LOUISY, J.A.(Ag.),Acting Chief Justice |
| Judgment Date | 14 March 1973 |
| Judgment citation (vLex) | [1973] ECSC J0314-1 |
| Court | Court of Appeal (Saint Vincent) |
| Date | 14 March 1973 |
| Docket Number | Civil Appeal No. 1 of 1972 |
IN THE COURT OF APPEAL
The Honourable the Acting Chief Justice
The Honourable Mr. Justice St. Bernard
The Honourable Mr. Justice Louisy (Acting)
Civil Appeal No. 1 of 1972
H.B. St.John, Q.C.(Barbados) and J. Adams for appellant
C.O. Phillips, Q.C. and F. Adams for respondent
At a general election held in St. Vincent on April 7, 1972, the parties to this appeal were rival candidates for election to a seat in the House of Assembly to represent the West Kingstown constituency. Hudson Kemuel Tannis (hereinafter referred to as the appellant) was declared by the Returning Officer to be duly elected. The unsuccessful candidate Emery Winston Robertson (hereinafter referred to as the respondent) filed an election petition dated April 27, 1972 in which he sought a declaration that the appellant "was not duly elected and that his election and return are wholly null and void."
The legislation regulating elections in St. Vincent is an ordinance originally intituled the Legislative Council (Elections) Ordinance No. 13/1951 but by virtue of s. 9(5) of the Existing Laws (Adaptation) Act No. 3/1969 the title of this Ordinance was changed to The House of Assembly (Elections) Ordinance; and for the purposes of this appeal it will be referred to as "the Ordinance".
It was alleged in paragraph 3 of the petition that the appellant "was by himself and by his agents guilty of the corrupt practices of bribery, treating, undue influence and of aiding, abetting and counselling the commission of election offences." These allegations failed.
It was also alleged in paragraph 4 of the petition that "many irregularities were committed in the course of the said election in the said [West Kingstown] Constituency". The irregularities were specified but the only one relevant to this appeal is that contained in sub-paragraph (iii) of paragraph 4 which reads:
"4(iii) That contrary to section 70 of the Ordinance Alfred Mandeville of New Montrose, the authorised agent of the said Hudson Kemuel Tannis, left the Polling Division No. 6A several times and communicated with Gale De Shong of Villa and H.B. Crichton of Frenches and others and disclosed the names and number of persons who voted in Polling Division No. 6A."
This allegation was the only one which the trial judge found to be established and on the basis of his finding (the terms of which will be later mentioned) he declared the appellant's election void and issued a certificate to that effect to the Governor pursuant to s. 75 of the Ordinance.
The questions which fall to be decided in this appeal are: (a) was there sufficient evidence to justify the judge's finding? and (b) if so, what is the effect in law of his finding.
The section of the Ordinance which requires the secrecy of the voting at a polling station to be maintained in section 70 which reads as follows:
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"70. (1) Every officer, clerk and agent, in attendance at a polling station shall maintain and aid in maintaining the secrecy of the voting in such station, and shall not communicate except for some purpose authorised by law before the poll is closed, to any person any information as to the name or number on the list of electors of any elector who has or has notapplied for a ballot paper or voted at that station, and no person shall interfere with or attempt to interfere with an elector when marking his vote or otherwise attempt to obtain in the polling station any information as to the candidate for whom any elector in such station is about to vote or has voted.
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(2) Every officer, clerk and agent in attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting and shall not attempt to communicate any information obtained at such counting as to the candidate or candidates for whom any vote is given in any particular ballot paper.
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(3) No person shall, directly or indirectly, induce any voter to display his ballot paper after he has marked it so as to make known to any person the name of the candidate or candidates for whom or against whose name he has so marked his vote.
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(4) Any person who acts in contravention of any of the provisions of this section shall be liable, on summary conviction, to imprisonment for six months or to a fine of two hundred and forty dollars."
The pertinent material relating to the allegation contained in paragraph 4(iii) of the petition on which the judge based his finding is to be found in the evidence of the witness hereinafter mentioned.
The respondent said in examination-in-chief:
"After lunch I saw Tannis's Agent, Alfred Mandeville at No. 6A Polling Station. He was leaving the Polling Station and speaking to Gale DeShong, one DeSouza and to H.B. Creighton.
Gale De Shong used to go around with Tannis on his campaigns.
DeSouza campaigned in the Stoney Ground area for Tannis.
When Mandeville left this Station he had an electoral roll on which certain names were ticked as they voted.
DeShong would drive away so would Creighton and DeSouza after Mandeville spoke to them:
The 3 men would come singly.
I spoke to Stevens the Presiding Officer objecting to the conduct of the people anddrew his attention to what was going on.
He replied saying that the agent could leave any time he wanted provided he was there during the last hour.
Others were in DeShong's car and they went into the station to vote leaving after in DeShong's car.
DeSouza came with Cyril Roberts and others but after Mandeville spoke to him and pointed to the electoral list, Roberts the driver drove off with everyone."
George Maule a witness for the respondent said:
"We went to Sgt. Samuel's Polling Station. There I saw DeSouza in the road standing. Mandeville came from the Station with an electoral list and came and spoke to DeSouza. He was pointing to the list. Cyril Roberts drove up in a car also.
DeSouza left by car with Roberts after Mandeville spoke to him.
Mr. Robertson spoke to the Presiding Officer who called Mandeville back to the Station and told him he can't do such things."
Beulah Stapleton the respondent's agent at Polling Station No. 6A said:
"On polling day I was agent for Mr. Robertson at Station 6A Sgt. Samuel's Residence.
Mr. Tannis had an agent there. I had an electoral list so did the other agent, Mandeville.
As the people came up to vote the agent for Mr. Tannis ticked off the names on the list.
He left the Polling Station many times to communicate with cars and the people in them. I did not recognise the people to whom he spoke. He communicated with the drivers of the cars.
Mr. Robertson came to the Station and I reported to him.
Robertson spoke to the Presiding Officer and said he objected to Mr. Mandeville leaving the Station and communicating with the drivers."
The appellant's evidence on this issue was as follows:
"DeShong was active in taking people to the polls. I dont know Charles Roberts. He is a supporter of mine. DeSouza came to my table and loft on several occasions. DeShong never said that certain people had not voted nor had De Souza. DeShong was my assistant. DeSouza was also helping at the table at Fordes."
The appellant's agent Mandeville said in examination-in-chief:
"On Election day I was agent for Tannis at Station No. 6A at Samuel's home.
I know Gale or Bertram DeShong who came to the Polling Station. I spoke to him. I came out into the road to do so. I know Mr. Creighton He did not come to the Station on that day.
As far as DeShong is concerned I did not disclose the names of the persons who had voted at 6A Station. I gave someone the Poll list."
In cross examination he said:
"I saw Mr. Robertson there several times. I did not hear his agent report to him that I loft Station and showed lists to others. Nor did I hear Robertson do so. I had given my list to one of the workers and he took it away. I did not show any to DeShong. I was not pointing to a list when I spoke to DeShong. DeSouza came there once, DeShong twice. I spoke to DeSouza but did not show him my list—the second list—I did not tell him of who voted."
When re-examined he said:
"I saw Mr. Tannis at Polling Station, I had a list there when he came the second time I still had the first list.
The second list came after mid-day. Mr. Tannis came into the Station.
Someone took the first list from me and gave me a second list at the Polling Station.
DeSouza came in front the Polling Station."
Bertram DeShong who is also known as Gale DeShong said in examination-in-chief:
"On 7.4.72 I was in Walker Piece and then I went to the Polling Station where I spoke to Mr. Mandeville. I left but did not findMr. Edwards whom I was looking for. Later I went back to the Polling Station with 3 persons, came out and I left.
At the Station no one came to me."
In cross examination he said:
"At Station No. 6A I saw Mandeville inside. I called him and asked for someone. He did not come to me with any paper in his hand. I never discussed people who had voted or yet to vote.
I did not see Hubert DeSouza on 7.4.72.
Grenville Stevens who was the Presiding Officer at Polling Station No. 6A was called as a witness for the appellant. He said:
"Tannis agent left the Station before closing hour. Robertson drew my attention to the fact that Mandeville had left his position. He did so twice. He took his Electoral list with him and I saw him talk to persons whom I dont know.
On two occasions I saw Mandeville speaking to persons in a car."
After a very careful review of this evidence the trial judge came to the following conclusion:
"I am satisfied that the agent, on more than one occasion, went to a car in which Gale DeShong, among others, was present, took with him his lists on which was indicated those who had already voted and those...
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