Lauron Baptiste v Vil Davis Returning Officer

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 27 February 2018
• Neutral Citation: VC 2018 HC 11
• Docket Number: CLAIM NO. 202 of 2015
• Court: High Court (Saint Vincent)
• Date: 27 February 2018

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Henry, J.

CLAIM NO. 202 of 2015

Between

Lauron Baptiste

Petitioner

and

Vil Davis Returning Officer

and

Veronica John Presiding Officer

and

Montgomery Daniel

and

Sylvia Findlay-Scrubb Supervisor of Elections

Respondents

Consolidated With

Between

Benjamin Exeter

Petitioner

and

Winston Gaymes Returning Officer

and

Kathleen Jeffers Presiding Officer

and

Sir Louis Straker

and

Sylvia Findlay-Scrubb Supervisor of Elections and the Attorney General of Saint Vincent and the Grenadines

Respondents

Appearances – Claim No. 202 of 2015:

Mr. Bertram Commissiong Q.C. with Mrs. Kay Bacchus Baptiste, instructed by Ms. Maia Eustace for the petitioner.

Mr. Douglas Mendes S.C. with him Mr. Michael Quamina instructed by Mr. Joseph Delves for 1 ^st, 2 ^nd and 4 ^th respondents.

Mr. Grahame Bollers and Mr. Carlos James for the 4 ^th respondent.

Appearances – Claim No. 203 of 2015:

Mr. Stanley John Q.C., with him Mrs. Kay Bacchus Baptiste, Mr. Keith Scotland (absent), Mrs. Zhinga Horne-Edwards (absent) instructed by Ms. Maia Eustace for the petitioner.

Mr. Douglas Mendes S.C. with him Mr. Michael Quamina instructed by Mr. Joseph Delves for 1 ^st, 2 ^nd and 4 ^th respondents.

Mr. Grahame Bollers and Mr. Carlos James for the 3 ^rd respondent.

Mr. Anthony Astaphan S.C. with him Mr. Kendrickson Kentish instructed by Mr. Richard Williams and Ms. Danielle France of the law firm Williams and Williams, for the 5 ^th respondent.

Civil practice and procedure - Abuse of process — Election petition challenging results of election — Whether Supervisor of Elections ought to deliver documents relating to the election to the Registrar of High Court — Whether inspection of ballot papers was required for the purpose of the petition.

DECISION

INTRODUCTION

Henry, J.

1 This decision arises from an election petition initiated by Mr. Benjamin Exeter, a candidate in the general elections held on 9 ^th December, 2015 in St. Vincent and the Grenadines. Mr. Exeter ran on the ticket of the main opposition party, the National Democratic Party (‘NDP’) in the constituency of Central Leeward. The candidate fielded by the incumbent Unity Labour Party (‘ULP’) — Sir Louis Straker, was declared the winner.

2 On 31 ^st December 2015, Mr. Benjamin Exeter filed an election petition challenging the results. He has contended that the outcome was tainted by major irregularities in the polls, which rendered it invalid. He is seeking a declaration that the election is void and that Sir Louis Straker was not duly elected or returned.

3 The other respondents are the returning officer Mr. Winston Gaymes, the presiding officer Ms. Kathleen Jeffers, Mrs. Sylvia Findlay-Scrubb the Supervisor of Elections (‘Supervisor’), and the Honourable Attorney General. They have refuted the allegations of irregularities and strenuously resist the petition.

4 By Notice of Motion filed on 29 ^th June 2017, Mr. Exeter applied for an order:-

• ‘1. directing the Supervisor of Elections to deliver forthwith to the Registrar of the High Court documents relating to the election held in the Constituency of Central Leeward on the 9th day of December 2015;

• 2. that the said ballot boxes be opened by the Registrar … and that permission be … granted for the Registrar and [Mr. Exeter] … to inspect all ballot papers contained in the ballot boxes with a view to determining the accuracy of the allegations …’ that:

  • i. the ballots were pre-printed with the official stamp or stamped by the Presiding Officers;

  • ii. some 222 ballots at Polling Station CLF and 99 at Polling Station CLF1 appeared defective and/or willfully cut in such a manner that a portion of the ballot paper was absent and that they bore neither the stamp nor initials of the Presiding Officers; and/or

  • iii. 238 ballots at Polling Station CLB and 210 at Polling Station CLB1 bore the Presiding Officer's initials below the line which should have separated the names of the candidates from the remainder of the top portion of the ballot paper and were deliberately cut in an irregular manner, whereby the top portion of the ballot which should have contained the space for the endorsement of the Presiding Officer's initials and the official mark was severed or absent; and/or

  • iv. the official mark and the Presiding Officer's initials were endorsed on the counterfoils of those defective ballots.'

5 Mr. Exeter filed an amended Notice of Motion 5 months later 1, in which he supplemented those allegations. He deleted the assertion that the official mark and the Presiding Officer's initials were endorsed on the counterfoils. He alleged further that:

1

the referenced ballots appeared to have been willfully mutilated in such a manner that they were contrary to the rules; 2. there were similar looking ballots in ballot boxes from various polling stations which were ruled invalid by the returning officer even after he accepted similar looking ballots in ‘CLF’ and ‘CLF1’; 3. a majority of over 90% of the ballots counted at the ‘purported final count’ bore the official mark and the Presiding Officer's initials in a manner which is contrary to the rules; and 4. If the presiding officer folded the ballot paper to the line marked ‘Do Not Fold Beyond this Line’ she could have examined her initial and the official mark to verify that it was the same ballot, only by opening the ballot thereby invading the secrecy of the poll contrary to the law2; and 5. That contrary to the Rules3, no Form 16 Statement of the Poll was presented at the Final Count for Polling Station CL11 and in the case of others, the Form manifested various errors and1 On 9th November 2017.2 Specifically section 54 (3) of the Representation of the People Act (‘RPA’) and rule 31 (2) of the House of Assembly Elections Rules.inconsistencies such as the total number of ballots cast and the number of names on the voter's list4.

6 Mr. Exeter outlined 15 grounds on which the application is founded. Among them, he asserted that the orders are required for the purpose of determining issues in the election petition. He indicated that he relied in support of his Motion, on the relevant respects of all of the several affidavits filed in support of his petition.

7 Learned Senior Counsel Mr. Mendes filed written submissions and made oral arguments on behalf of Mr. Gaymes, Ms. Jeffers and Sir Louis. He argued that the alleged purpose of the requested inspection sought by Mr. Exeter is not borne out in the pleadings and that there are alternative ways of establishing what he has pleaded in the petition. He contended further that there is no evidence to support the pleadings and that the motion is perhaps a fishing expedition. He submitted to that it was an abuse of the court's process. He did not transmit an electronic copy of his submissions to the court as ordered and he provided no reasons for such default.

8 Learned counsel Mr. Grahame Bollers filed no written submissions on behalf of the Supervisor of Elections and he made no oral submissions. By Notice of Intention filed on 20 ^th July 2017, he signaled Sir Louis Straker's intention to adopt the arguments of the first, second, fourth and fifth respondents.

9 Learned Senior Counsel Mr. Astaphan filed written submissions on behalf of the Honorable Attorney General. He submitted that the motion is an abuse of the process of the court, because an earlier decision had been made by the court in December 2015, in respect of a similar application for inspection filed in identical circumstances.

10 By Notice filed on 4 ^th December 2017, the Honourable Attorney General signified that he intended to object to the validity and hearing of the Amended Notice of Motion on a number of grounds including that it is in substance and effect a new application and raises allegations not pleaded by Mr. Exeter. He canvassed each of those grounds in his submissions.

11 Before proceeding to hear the parties, the court asked each respondent through their respective legal representatives whether they had objections to the court hearing the Amended Motion. They each responded in the negative.

12 It should be noted that the 2015 proceeding was initiated by Notice of Application while that which was brought in 2017 was started by Motion. For ease of reference and convenience, the terms ‘motion’ and ‘application’ might be used interchangeably in this decision to describe both processes, unless the context indicates otherwise.

ISSUES

13 The issues which arise are whether:

1

This motion is an abuse of the process of the court? 2. The court should make an order: (a) directing the Supervisor of Elections to deliver to the Registrar of the High Court (‘the Registrar’) documents relating to the election held in the constituency of Central Leeward on 9th December, 2015? (b) that the referenced ballot boxes be opened by the Registrar in Mr. Exeter's presence and permission be granted for the Registrar and Mr. Exeter to inspect all ballot papers in the ballot boxes to determine the accuracy of the stated allegations?

LAW AND ANALYSIS

Issue 1 — Is the Motion an abuse of the process of the court?

14 On behalf of Mr. Gaymes, Ms. Jeffers and Mrs. Findlay-Scrubb, learned Senior Counsel Mr. Mendes submitted that the present motion is an abuse of the process of the court. He contended that Mr. Exeter filed an application on December 17 ^th 2015 for orders permitting inspection of all ballot papers and counterfoils for the Constituency of Central Leeward, which was dismissed by Justice Cottle. He remarked that the application would have addressed ballot boxes and papers from the polling stations mentioned in the current Motion.

15 He noted that on that previous occasion, Mr. Exeter's grounds included an assertion that he was denied inspection of the counterfoils at the final count and that more than 300 ballots were found to be defective in...