Fountain v Smith et Al

JudgeBryce, C.J.
Judgment Date06 April 1973
CourtElection Court (Bahamas)
Docket NumberNo 650 of 1972
Date06 April 1973

Election Court

Bryce, C.J.; Smith, J.

No 650 of 1972

Smith et al

Eugene Dupuch QC and Bradley Callender for the petitioner.

Vivian O Blake, Dr Lloyd Barnet and Rubie Nottage for the first respondent.

Gerald Collett QC, Attorney General and Alpin Russell for the second respondent.

Elections - Equality of votes cast determined by the returning officer

Bryce, C.J.

This petition arises out of the Parliamentary Election for the constituency of North End, Long Island, Rum Cay and San Salvador, for a representative for that constituency. The petitioner, Cyril Stanley Smith Fountain, and the first named respondent, Philip Patric Smith, were the only candidates, and a poll was held on 19 September 1972. On 22 September 1972, the second named respondent, who was the returning officer, declared the result of the poll to be an equality of votes between the candidates and, in accordance with s 66 of the Representation of the People Act 1969, he declared the election void. A fresh poll was taken on 6 October 1972, and the returning officer declared the result of this poll to be that the first named respondent had been elected. In due course, on 18 October 1972, the writ was presented to Parliament.


At the hearing of the petition, Mr. Blake, counsel for the first respondent, raised the point which had been pleaded in the answer, that the Court had no jurisdiction to entertain the petition. Put very baldly, and in a way which cannot possibly do justice to Mr. Blake's full and able argument, it appears that this contention is based on the claim that the Court's jurisdiction is founded in the Constitution and in the Representation of the People Act 1969, and that the Court cannot go behind the returning officer's determination of 22 September 1972, namely that there was an equality of votes, because the Act makes no provision for such an inquiry and has provided that in such a case there shall ‘be a fresh poll.


However, in our view, the jurisdiction of the Court stems entirely from s 41 of the Constitution. The material part of that section reads:

  • ‘(1) An Election Court … shall have jurisdiction to hear and determine any question whether; (a) any person has been validly elected as a Representative; or (6) … (which does not concern us) …

  • (2) Subject to the following provisions of this section the Legislature may by law make, or provide for the making of, provision with respect to- (a) the institution of proceedings for the determination of any question referred to in sub-section (1); and (b) the powers, practice and procedure of an Election Court in relation to any such proceedings.’


And then there follow three more subsections which are not, we consider, pertinent to the matter in issue.


The Constitution, therefore, first in this section, declares the extent of the Court's jurisdiction, and then delegates, as it were, to the Legislature the task of making suitable provision for the practice and procedure and powers of the Court in the exercise of the jurisdiction so granted. Such provision has been made by the Legislature by the Representation of the People Act 1969.


The Constitution also, by s 36, requires that members of the House of Assembly should be persons qualified in accordance with the provisions of the Constitution and elected in the manner provided by or under any law for the time being in force. Such a law as to the manner of election is contained, again, in the Representation of the People Act 1969.


Thus it appears to us that under the Constitution, the Court has jurisdiction to hear and determine whether any person has been elected in the manner provided by the Act and in the exercise of that jurisdiction the Court is to follow, and may exercise, the practice and procedure and powers provided by that Act. The Constitution, then, by s 41, confers the jurisdiction on the Court. It is a cardinal rule, that save where it may be permitted by the Constitution itself, no Act of the Legislature can derogate from its provisions. Accordingly in our view the Act must be read in such a way that it does not conflict with or derogate from the provisions conferring jurisdiction on the Court.


Section 66 of the Act sets out the procedure to be followed where on the counting of the votes at a poll an equality of votes is found to exist between any candidates and the addition of a vote would entitle any one of those candidates to be declared elected …' This we take to mean a true equality of valid votes cast for each candidate respectively. If, therefore, certain votes are in fact invalid and should not have been counted, or others, which were rejected, are in fact valid and should have been counted, a total arrived at by the inclusion or exclusion of such votes will not reveal a true equality of votes. But a true equality of votes is an essential prerequisite to the exercise by the returning officer of the powers under s 66, and if, in fact, he purports to exercise those powers when there is not in truth an equality of valid votes, his act is unauthorized and a nullity. Accordingly if that nullity embraces the holding of a fresh poll, it follows that the fresh poll is also a nullity and of no effect. Therefore any person declared to be elected by the fresh poll would not be validly elected. He has not been elected in accordance with the provisions of the Act because the essential pre-requisite for the holding of the fresh poll, the true equality of votes, is lacking and the procedure of the fresh poll cannot therefore be said to be in accordance with the Act.


Accordingly we consider that we have jurisdiction to entertain this petition whereby the Court is, in effect, being asked to determine whether or not the petitioner was validly elected as a representative on 19 September 1972. To discover the answer to this question we must necessarily inquire into whether or not there was a true equality of votes from the poll on that day. If it eventuates that there was such a true equality, then, of course, the action of the returning officer was in accordance with the Act, the later fresh poll was held in accordance with the Act, and its result is valid and binding. If, on the other hand, there was not such a true equality, then it seems that the person who is found to have had a majority of valid votes should be declared to be elected and the result of the poll on 6 October disregarded because it was not held in accordance with the Act.


The petitioner contends that he had a majority of lawful votes on the poll taken on 19 September 1972, and that consequently he was then elected and should have been so returned. He asks for a scrutiny of the votes cast at the poll of 19 September 1972, and for a recount thereof, and that it should be determined that the poll held on 6 October 1972, was void and of no effect because the petitioner was himself duly elected on 19 September 1972.


In the particulars filed by the petitioner, the petitioner claims that in arriving at the result of the poll held on 19 September 1972, certain votes were wrongly rejected and others wrongly accepted by the returning officer. Of these he contends that two votes, rejected by the returning officer, should have been counted in his favour. One of these bore a cross against the name of the petitioner but had also a mark in green ink, a line, and the other bore no cross but, in the space against the petitioner's name, the words ‘Cyril Fountain’ were written in handwriting. He further contends that one vote admitted by the returning officer should have been rejected because, in addition to the cross in the space against the first respondent's name, there appears a line in green ink on the paper. He further claims that four other votes, accepted by the returning officer, were invalid votes because the persons casting them were not qualified to vote in the constituency in accordance with the Act, three of them because they were not resident, as required, in that constituency, and the fourth, because his name had been placed on the register after 31 July 1972, the date on which the register of persons entitled to vote in the constituency closed for the purposes of the election on 19 September 1972.


We, first, proceeded to hear evidence relating to the contention of the petitioner that certain persons had voted at the poll on 19 September 1972, when they were not qualified to do so in that constituency under the Act. This allegation divides into two. First, it is alleged that three persons, whom we will refer to as A, B, and C, had not been ordinarily resident in premises in the constituency during the period of six months immediately preceding the polling day, and thus failed to comply with the requirements of s 9(2) (c) of the Act. Second, it is alleged that one person who voted and whom we will refer to as X, should not have done so, because his name was not placed on the relevant part of the register until after the date on which the register was to be deemed closed for the purposes of the election.


So far as the first category is concerned, it was contended on the part of the 3 first respondent that the provision of sub-s (2) of s 8 of the Act affected the meaning of the term ‘ordinarily resident’, and that it was necessary for the petitioner to establish positively that the person who voted had not resided at all in the constituency during the relevant period and that, if he had been absent, his absence had not been due to any one of the reasons specified in the subsection. In our view, the subsection provides that in certain circumstances a person's absence does not prevent his still being regarded as ‘ordinarily resident’, nevertheless apart from such circumstances the meaning of the expression ‘ordinarily resident’ in the Act, is to be construed according to its generally accepted meaning.


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