Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 25 of 2003

In Re: The Elections Ordinance 1994; Hanchell v. Skippings and Others (CL 25 of 2003) [2003] TCASC 5 (19 June 2003);

Law report citations
Media neutral citation
[2003] TCASC 5
Coram
Ground, J

IN THE SUPREME COURT                                                                            ACTION CL No. 25/03

TURKS & CAICOS ISLANDS

IN THE MATTER OF THE ELECTIONS ORDINANCE 1994 (THE ORDINANCE)

AND IN THE MATTER OF THE ELECTION OF NOEL SKIPPINGS AS THE MEMBER OF THE LEGISLATIVE COUNCIL FOR ELECTORAL DISTRICT NUMBER 5, SOUTH CAICOS NORTH, IN THE GENERAL ELECTIONS HELD ON THE 24TH DAY OF APRIL 2003.

BETWEEN:

McALLISTER HANCHELL

Petitioner

- and -

NOEL SKIPPINGS

STANLEY WILLIAMS

DAVID BOWEN

Respondents

Mr. A. Misick QC and Mr. C. Greene for the petitioner;

Mr. R. Mahfood QC; Mr. P. Davis; Mr. S. McCann; Mr. B. Duncanson; and Mrs. S. Cartwright-Robinson for the first respondent; and

Mr. D. Woolgar and Ms. Brooks for the 2nd and 3rd respondents.

JUDGMENT

INTRODUCTION

1.             This matter arises out of the election held in Electoral District No. 5 (South Caicos, North) as part of the general election held on 24th April 2003. The petitioner and the first respondent were the only candidates, and they received 140 and 142 votes respectively, so that the respondent was declared duly elected to the seat. The petitioner now brings an election petition to challenge that.

2.             Election petitions arc the only way of challenging an election. They are provided for, and governed by, Part IV of the Elections Ordinance. They may be brought on the grounds of an undue election or an undue return. Without going into all that is encompassed by that, an irregularity on the part of election officials is sufficient to produce an undue election if it is such as to affect the result: Morgan & Ors. -v- Simpson & Ors. [1974] 3 All ER 722. I will deal further with what that means below.

3.             The petitioner alleges various errors and irregularities on the part of the Supervisor of Elections, concerning the registration or non-registration of various individual voters. It was alleged in the Petition that these irregularities were deliberate, being done to promote or procure the election of the first respondent. That was not pursued before me as a ground for claiming relief, although it was not abandoned. Having heard the evidence I find that any errors or irregularities as occurred were not the result of such a deliberate purpose, but were rather the result of carelessness on the part of the Supervisor and his staff. I do not think that it was ever expressly alleged that the first respondent had solicited them, but I think it proper to acquit him of all suggestion of wrong-doing.

BACKGROUND

4.             The conduct of elections is governed by the Elections Ordinance (‘the Ordinance'). It provides a system of registration of electors to determine who can vote and in which District. It also provides for the post of Supervisor of Elections (The Supervisor’), who is required to exercise general direction and supervision over the administrative conduct of elections, as well as to discharge specific functions assigned to him by the Ordinance. The Supervisor is the second respondent to these proceedings. It seems that his is a part-time post, and in non-election years it is something of a sinecure. In particular, he tells me that the annual register of electors is usually produced by simply rolling forward the register from the previous year, and that applications from new voters to be added are rare.

5.             That situation changes dramatically in election years. These are usually predictable from the constitutional requirement that the legislature be dissolved by the Governor every four years, unless it has been dissolved sooner. When an election is imminent, the political parties are keen to ensure that everyone who is entitled to be registered is on the Register, and that any changes in residence are reflected accurately on it. As a matter of practice the Supervisor stalls the process around the 30th November of the year preceding the likely election, that being the date by reference to which a person’s qualifications are to be ascertained.

6.             The Supervisor’s office is in Grand Turk. Application forms for registration can be obtained there and in the District Commissioners’ offices in the other Islands. In Providenciales it is the Chief Secretary’s office. When completed, the forms can be handed in at those offices. I think it has to be recognised that there are features special to the Turks & Caicos Islands which makes this process more than usually difficult: the absence of street names and house numbers and the lack of house-to-house postal delivery means that methods used elsewhere for postal registration arc simply not available. Those factors also make obtaining further information directly from an applicant much more difficult. This is compounded by the application forms, which do not require a contact telephone number. Although the forms have a space for the applicant’s full residential address, in all the examples before the court that has invariably been completed by simply stating the applicant’s electoral district.

7.             The application form itself requires that it be signed in the presence of the Supervisor. That is obviously impractical for forms submitted at District Commissioners’ offices, and seems to be ignored. Indeed the forms used in this case omit the signature line for the Supervisor which appears in the version printed in the Ordinance. It also seems that the Supervisor accepts forms which are not personally signed by the applicant: most if not all of the forms submitted by Mr Skippings for late registration are signed by him “p.p.” that applicant. This practice may spring form the provisions of s. 15(1) of the Ordinance. That section deals with claims made in the claims and objections process, which “may be made by a person on his own behalf or on behalf of another person.” I can find nothing that allows application forms to be signed by anyone other than the applicant. No point is taken on that in this Petition, possibly because the practice is common to both sides. However, that means that in the case of the disputed late applications the Supervisor did not even have the benefit of the applicant’s own signature as a warranty of the truth of their contents.

8.             Perhaps because of the difficulty of contacting applicants, the Supervisor has developed the practice of making informal inquiries about an applicant’s qualifications. He is a retired Commissioner of Police, and he says he has a network of old colleagues whom he consults on such matters. I would have thought that process not a happy one because it is secret and not open to challenge by the applicant or anyone else concerned. This is particularly so when it is used for late registrations which will not be subject to the claims and objections process. It is not surprising that it has given rise to mistrust and suspicion.

9.             Much of the dispute in this case is concerned with the way in which late additions were made to the Register under s. 23(2) of the Ordinance. In all districts the candidates put in numerous late applications. In this case many are dated 1st April, less than a month before the election. A week or so before the election the Supervisor held meetings with the candidates from all the constituencies to discuss the late applications, and only after that did he make his decision in respect of them. The outcome of that process was then only notified to the candidates when the revised Register was finally published at about midday on the day immediately before the election. There was, therefore, no opportunity to correct any errors or omissions, and that has cause a sense of grievance and, indeed, led to this Petition. If the procedure for late registration is to be maintained, it would be preferable if time limits were inserted to ensure publication of the results in good time before election day.

THE LAW

10.          Before turning to the specific cases there are three preliminary points of law which I need to deal with. They concern (i) the right to vote of young persons who become 18 after the qualifying dale but before the election; (ii) whether the Register of Electors is final as to the qualification to vole of a person appearing on it, or whether those qualifications are open to challenge on an Election Petition; and (iii) the correct test for when an election is to be voided by reason of innocent irregularities.

(i) Young Persons Becoming 18 After the Qualifying Date

11.          The qualifying date is the date on which a person must fulfill the statutory requirements for qualification. The concept is established by the Constitution, which in s. 27(4) defines the qualifying date as -

“…. such date as may be appointed by or under any law as the date with reference to which the qualifications of persons for registration as electors for the purpose of the election of members of the Legislative Council, are to be ascertained.”

12.          The date itself is fixed by s. 9 of the Ordinance. For any election occurring after 1st March in any one year, it is the 30th November of the preceding year. A person not qualified on that date, but who becomes qualified thereafter, remains unqualified to vote in an election held in the 12 month period beginning with 1st March of the following year. There is great practical sense in this, because there has to be finality and a fixed date by which the qualification of electors can be ascertained. This is particularly so because the legislation provides an elaborate mechanism for establishing a definitive list of the people who may vote (known as the Register of Electors), and that takes time. The legislative framework allows that lime.

13.          The Elections Ordinance was originally enacted in 1994, when it was known as The Voters Registration and Election Regulations Ordinance (#14 of 1994). It did not fix the qualifying date, but conferred the power to do so upon the Governor by proclamation. In 1997 sweeping changes were introduced by the Voters Registration and Election Regulations (Amendment) Ordinance of that year. Among the innovations was a concept of pre-registration, which allowed young people who would attain the age of 18 following the qualifying date to be placed on the Register, along with the date when they would become 18, and to vote at any election held after they reached that age. That is now contained in section 21 of the revised edition of the Ordinance1. The section follows similar English provisions, and was a very laudable attempt to maximise the franchise.

1The name of the Ordinance was also changed on the revision, to its present much shorter form.

Unfortunately it took no regard of the absolute nature of the qualifying date, or the constitutional requirement that the qualifications of a voter had to be ascertained on the qualifying date. It is, I am afraid, plainly contrary to the Constitution.

14.          Do I have power to strike that provision down on an election petition? I do not think so: the ability to raise constitutional points before the courts is limited to the fundamental rights and freedoms in Part VIII of the Constitution: see ibid. s. 81. It is not extended to Part III which governs the legislature and the electorate. In any event, even if the point could be entertained in the procedural sense, I would decline to do so. If it was to be taken, it should have been taken before the election. Having gone to the polls without having challenged it, it is not now competent for a candidate to challenge the list in that way, and to that limited extent I follow Radix-v-Gairy (1978) 25 WIR 553 WIAS. To hold otherwise would upset the foundation of the whole election, which no-one wants me to do.

I consider, therefore, that on the hearing of this Petition I should apply the provisions of s. 21 of the Ordinance on the question of a voter’s age, and regard a voter who was 18 on the day of the poll, as duly qualified (at least in respect of age).

(ii) Finality of the Register

15.          The second preliminary point concerns the finality of the Register. Mr Woolgar, for the Supervisor, argues that the Register is final as to the qualifications of a person to vote, subject to certain exceptions which do not apply here. He relies upon s. 78 of the Ordinance and the English case of In Re Petersfield Election Petition, Stowe -v- Joliffe (1874) 9 CCP 734, which was decided upon an almost identical provision.

16.          Section 78 reads-

“At any election a person shall not be entitled to vote unless his name is on the Register of Voters for any electoral district for the time being in force by virtue of this Ordinance, and every person whose name is on such Register shall, subject to the provisions of this Ordinance, be entitled to demand and receive a ballot paper and to vote:

Provided that nothing in this section shall entitle any person to vote who is prohibited from voting by any law in force in the Islands, or relieve such person from any penalties to which he may be liable for voting.”

17.          This argument is re-inforced by s. 27(5) of the Constitution, which provides -

“A person registered as an elector shall be entitled to vote at an election unless he is prohibited from so doing by reason of his conviction, prior to the election, of an election offence which disqualified him from voting”

18.          In the Petersfield case (supra) it was held as follows:

“From the Reform Act to the Ballot Act, the tendency of legislation has been to make, with certain exceptions, the register conclusive. ... I think the true construction of these sections, which all remain, is, to make the register conclusive not only on the returning officer, but also on any tribunal which has to inquire into elections, except in the case of persons ascertained by the proviso.”

19.          There is one difference between the Ordinance and the English model, and that is, despite the apparent finality conferred by s. 78, a registered elector may be challenged al the polls by being required to take an oath in the prescribed form (Form 23). That oath covers certain aspects of his qualification, including age, immigration status and residence in the islands, but does not deal with residency in the electoral district. If those matters can be raised at the polls, it is arguable that the register is not final in respect of them. On the other hand, Mr. Mahfood, for first respondent, argues that the oath is the remedy of a candidate who doubts the register, and that having failed to demand the oath of the various candidates concerned, the petitioner is now too late to raise the matter on an Election Petition. While not expressly endorsing that, Mr. Woolgar argues that the oath is concerned with the accuracy of the Register, which is distinct from its finality

20.          To put the point in perspective one needs to look at the process by which the Register is created. The Register is produced after a process of public consultation. What happens is that the Supervisor draws up a list for each district, which is published. People can then make claims and objections in respect of that list - asking respectively that names not on it be inserted and that names on it be removed. The Supervisor then holds public hearings in every district on these claims and objections, and there is an appeal to an adjudicator from his decision. The decision of the adjudicator on the appeal is final and the Ordinance expressly provides that no appeal shall lie therefrom. I think it is general knowledge, and in any event the evidence in this case clearly demonstrates, that in the run up to election years the claims and objections process is taken very seriously by the candidates and their respective supporters, and is pursued vigorously. It ought to be final.

21.          Once the list has been gone over in this way, the Supervisor amends it to reflect the outcome of the process and to take into account various other matters, and it is then published as the Register. That is supposed to be done not later than 28th February in each year, although the evidence indicates that in this case it was not in fact published until 24th March. At that point the Register is, however, still not set in stone. It can be amended by the Supervisor to correct errors, and in particular, if it does not give effect to a decision on a claim or objection, the Supervisor, on becoming aware of that is under a duty to make the necessary correction: s. 23(1). Some of the complaints in this case arc concerned with his alleged failure to fulfill that duty.

22.          However, the Supervisor’s powers to change the Register go beyond that. By virtue of section 23(2) he can add any person, not being someone whose name was on the initial list, if he “is satisfied by such evidence as he may require” that that person is “entitled to be registered in (he Register.” Now that is a radical provision, and one whose true import is signaled neither by the side note (“Correction of Register”) nor by the explanatory memorandum of the Bill which inserted it in 1977. It allows the Supervisor, without any apparent check or balance, without having to tell anybody, and without having to subject himself to public scrutiny in any way, to add whoever he likes provided that he is satisfied of their entitlement on the basis of whatever evidence he thinks is enough.

23.          Against that background I turn to the effect of section 78. If the English case law applies, it makes the Register final. Counsel for the petitioner, Mr. Misick, argues that the provisions of the English Act from which the section derives were different in material particulars from our Ordinance, and that it had had a different legislative history which had coloured judicial interpretation of it. However, I do not think that the route by which the English court arrived at its interpretation of s. 78 is material. The law having been declared on that form of words, I think that they continue to carry that meaning when later adopted in derivative legislation. Indeed, I think that it was plainly the intention of the framers of the legislation, when they adopted almost verbatim the old English provisions, to incorporate the case law on them. That is one of the advantages of borrowing existing phraseology from other jurisdictions, and it would take a lot to persuade me otherwise. I hold therefore that the Register is final as to qualification2, and that the subject cannot be re-opened on an election petition.

24.          That means that an error or wrong decision on the question of whether or not a person is qualified to be on the Register cannot be reviewed on an election petition. Otherwise the court on a petition would be acting as a court of appeal from the Supervisor. I think that that is so even where the Supervisor has taken into account matters which he should not properly have taken into account; or arrived at a decision which no reasonable person properly directing himself could have arrived at. In saying that, I do not purport to decide whether or not such matters could be challenged before an election by judicial review, but it is too late after the election to do so.

25.          Docs that finality apply even to decisions made after the claims and objections process by the Supervisor under s. 23(2)? I am afraid it must. The power to add people was introduced by amendment into an Ordinance which already contained s. 78. That section must have the same meaning in respect of all persons on the Register, irrespective of the provision under which they were put there. There is no way of construing the section in a different sense in respect of additions made under s. 23(2), unhappy though that outcome may be. I am bound, therefore, by what the legislature must be presumed to have intended, although I am compelled to observe that s. 23(2) is a most unfortunate provision, and I would urge the legislature to reconsider it before the next election, and either remove or at least modify it. Otherwise the same problems will recur.

2 The current edition of Halsbury’s Law, 4 cd. Vol. 15, para. 925, states that the Register is not final in respect of the age qualification, and it cites Stowe -v- Joliffe (supra) as the authority for that. I think that that is an error, and that a correct reading of the case demonstrates that the Register is also final in respect of the age qualification.

26.          Is the finality conferred on the Register by s. 78 proof even against irregularity? I do not think so. I have been shown no law on this. However, it is one thing to say that, the Supervisor having taken a decision on qualification, it cannot be reopened on an election petition. It is quite another to say that if he contravenes the statute, or the duties placed upon him by the statute, that contravention should be immune from correction. Different considerations of both sense and policy apply. It is a very sound public policy that, a decision having been made as to qualification in the registration process, it should not thereafter be open to repealed question. But the public interest in ensuring that the law is applied properly is much greater.

27.          What would amount to an irregularity for these purposes? I think that a failure to implement a decision made on the claims and objections process is in a different category from a mere error of judgment. Once a decision has been made through the statutory process it should be implemented. If it were otherwise the Supervisor could, either by deliberate intent or carelessness, negate the whole claims and objections process. Similarly, a failure to make or announce a decision on a claim or objection, is irregular, because it deprives those concerned of their right of appeal. I think, therefore, that such matters, which strike at the root of the process, can be questioned on an election petition notwithstanding the finality of the Register on the question of qualification.

(iii) The Correct Test for Avoiding an Election

28.          As I noted in paragraph 2 above, I take it to be the law that an election is avoided by innocent irregularities which affect the result. For a modern statement of this principle see Lord Denning in Morgan & Ors. -v- Simpson [1974] 3 All ER 722 at 728:

“Collating all these cases together, I suggest that the law can be stated in these propositions: (1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of- whether the result was affected or not. That is shown by the Hackney case where two out of 19 polling stations were closed all day, and 5,000 voters unable to vole. (2) If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls -- provided that it did not affect the result of the election. That is shown by the Islington case where 15 ballot papers were issued after 8 p.m. (3) But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rule or a mistake at the polls - and it did affect the result -- then the election is vitiated. That is shown by Gunn v. Sharp where the mistake in not stamping 102 ballot papers did affect the result.”

29.          I held in Misick -v- Forbes (1999) C.L 22/99, a case arising out of the last general election, that that applies here, as part of the common law of the Turks & Caicos Islands, notwithstanding that we do not have the statute that Lord Denning was applying. I said:

“I appreciate that Lord Denning was construing a particular statute, while I am applying the common law (our legislation being silent on the point), but I am quite satisfied that I should apply similar principles in this case, because they were evolved and refined by the judges over the years, and accord with common sense and justice.”

30.          I think that, in view of the points taken in this case, I now need to substantiate that. It is no longer easy to determine what the common law really was in England, because the matter has been governed by statute since the Ballot Act of 1872, which introduced the ancestor of the test Lord Denning was construing. However, in Morgan -v- Simpson (supra) Lawton L.J. made an attempt to pierce that historical veil. His analysis is at p, 733 e - j. He found that prior to the Ballot Act there was no reported case which considered the question of what happened where, although the election had been conducted substantially in accordance with the law as to elections, there had been a minor irregularity which affected the result. However, he said:

“It seems to me likely that Parliament in 1872 intended to apply to the new system of voting the same principles for declaring elections invalid as the House of Commons had applied before 1868.”

31.          In other words, the English legislation represents the common law. He rejected various passages from the judgment of Lord Coleridge CJ in Woodward -v- Sarsons (1875) LR 10 CP 733, to the effect that the common law would only avoid an election if there was no real election at all or the election was not really conducted under the subsisting election laws. Lawton LJ considered that that was not a comprehensive statement of the common law, because the facts of that case had not called for one. He said, at p. 735 e:

“I accept that at common law the irregularities had to be substantial to render an election invalid if, as in Woodward -v- Sarsons, the irregularities did not affect the result. As I would have expected from a principle evolved front the practice of the House of Commons, this accords with common sense. But when irregularities affect the result, as in this case, I cannot see why a principle applicable to wholly different circumstances should operate to produce a result which many reasonable people would regard as unjust.”

32.          I find, therefore, that Lord Denning’s formulation is both an interpretation of the statute before him, and a statement of the common law. The next question, which did not arise in Morgan -v- Simpson, is whether “did affect the result” is the right formulation, or whether it should be “may affect the result.” Mr. Mahfood argues that it must be conclusively shown that any irregularity affected the result, before an election can be avoided, and he relies on the strict wording of Lord Denning's formulation of the test. He says that test cannot be met here, because we do not know how anyone excluded may have voted, and in the case of those who did vote, the only way of telling with certainly how they voted is by a scrutiny, which was not claimed in the Petition.

33.          In Morgan -v- Simpson the Court of Appeal was in fact construing a negative provision. What the statute said was that no election should be declared invalid if it appeared to the court that it was so conducted as to be substantially in accordance with the law as to elections, and that the act or omission did not affect its result. It was therefore a saving provision. Lord Denning said:

“That section is expressed in the negative. It says when an election is not to be declared invalid. The question of law in this case is whether it should be transformed into the positive to show when an election is to be declared invalid. So that it would run: “A local government election shall be declared invalid... if it appears to the tribunal having cognisance of the question that the election was not so conducted as to be substantially in accordance with the law as to elections or that the act or omission did affect the result.”

34.          Now, in making the reversal, Lord Denning was concerned to translate the “and” in the savings provision to an “or’’. That is what the case was about. He was not concerned on the facts before him with whether the lest on the second limb should be “did” or “may”, because in that case it could be shown conclusively, by looking at the ballots rejected because of the irregularity, that it had not affected the result. He did not, therefore, need to put his mind to the point and probably did not do so. But if he had, I have no doubt that he, and the other members of the court, would have expressed it as “may” because that is what happens when you reverse a provision like that: If the court can only save an election if it is satisfied that the irregularity did not affect the result, then if the irregularity may have affected the result the court cannot be so satisfied.

35.          That I am right on that is shown by earlier decisions on the point. The courts had, in fact, been reversing the provision, to gel a positive rule, long before Lord Denning. In The Islington Division Case [1901] 50 M & H 120, Kennedy J expressed it as follows:

“It appears to us to be convenient, at this point, to state our view of the law in regard to this matter. Our opinion is that an election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, where the Court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and the result of the election, i.e. the success of one candidate over the other, was not, and could not have been, affected by those transgressions. If, on the other hand, the transgressions of the law by the officials being admitted, the Court sees that the effect of the transgressions was such the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether the transgressions may3 not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the Court is then bound to declare the election void. Il appears to us that this is the view of the law which has generally been recognised, and acted upon, by the tribunals which have dealt with election matters.”

36.          I have been taken through a great deal of law on the subject, the petitioner arguing that Islington Division case correctly states the test, and the respondents arguing that the test is correctly slated by Lord Denning in Morgan -v- Simpson (supra). Having reviewed all the cases with some care I have no doubt that the test is accurately stated in the passage set out above in the Islington Division case, and that were it otherwise it would be unworkable.

Applying that test to a narrow margin, such as in this case, I think that it means that if the number of irregular voles, or the number of persons irregularly excluded, or some combination of the two equals or exceeds the margin, then the result of the election was affected, and it is void.

3The italicization of “may" is not mine - it is present in the original report. For a lengthy disquisition on why the test should be framed that way, due to the difficulty of quantifying the effect of irregularities, see the judgment of Grove J in the Borough of Hackney 2 O’M & H 77. He eventually proposed the test “whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election", but “may have affected” is more succinct.

37.          That is the view the Canadian courts4 have come to in comparable cases. The fact of a narrow margin is obviously relevant to the question whether an irregularity affected the result, but if authority was needed it can be found in Camsell et al. -v- Rabesca et al. [1987] NWTR 186 (NWTSC), as quoted in Flookes -v-Strake (1989) 100 AR 98 (QB):

“Further, as illustrated by the facts before the court here, the margin of victory will be important in considering whether the irregularity might have changed the result."

38.          The fact that, if the irregularities exceed the margin, the result might have been affected is also self-evident, but again if authority were needed there is Canadian authority on the point in MacDonald -v- MacNeil (1990), 95 NSR (2d) 137 (TD):

“.. . I find that two person voted who were ineligible to vote. As I have determined that the difference between the top two persons is only two votes, the fact that two ineligible persons voted, means that those votes were not in accordance with the principles laid down in the Act, and the noncompliance affected the result of the election. With two ineligible voters, a new election is necessary.”

39.          It was also argued by Mr. Davis for the first respondent that the rule as to irregularities is limited to things occurring on the day of the election, and not in the process leading up to it. However, I reject that argument. The election is not just the events of the day, but is the whole process leading up to the actual poll, and there is no reason in principle to distinguish between irregularities in the preparatory acts, and the events of the day itself.

4 It has been argued with some force by Mr. Davis that the Canadian law is different, because the Canadian legislation only allows an election to be void and set aside, and does not allow for another candidate to be declared as elected following the striking off of void voles on a scrutiny. While accepting the difference in the legislation, I do not think that it has any bearing on how the test is to be applied. It just means that it gets applied more often, and to the sort of circumstances that we are considering.

THE INDIVIDUAL CASES

40.          Against that background, I turn to the individual cases. Some have been abandoned since the Petition, and the ones set out below are the only live ones. There is evidence in the petitioner’s witness statement that each voted in ED 5 (with the exception of Kenrick Hall, who voted in ED 6), and that was not challenged. I do not, therefore, now need to go to the poll book to check that they in fact voted.

(i) Michael Dudley Williams

41.          On the evidence I find that he is not resident in ED 5, and was not so on the qualifying date. He was on the initial list for ED 6 and, with his first name mis-spelled as ‘Micheal’, also on the list for ED 5. I find that at the claims and objections hearing for ED 12 the Supervisor ordered that he be registered there, and he gave instructions for that to be implemented by his assistant, the Elections Officer, Mrs. Wealthy Saunders. It seems that the Register is now wholly computerised. She searched for the name using the search facility in the programme, and it found the correctly spelled version of his name in ED 6. The software allows a selected name to be moved to another district, in the sense of deleting it in one and adding it in another, and she moved that occurrence of it to ED 12, as instructed. Because his name was mis-spelled where it occurred in ED 5, that was overlooked, and no manual check on the printed list was carried out which could catch it. Michael Dudley Williams’s name therefore wrongly remained in ED 5, where he voted.

42.          There is no doubt that the names originally listed in ED 5 and ED 6 were the same person, and it has not been seriously contended otherwise. There is no doubt that on the claims and objections the Supervisor ordered that that man be registered in ED 12. The error that was made was, I find, innocent and explicable (if somewhat careless), but it meant that the Supervisor failed to correct the Register to give effect to his decision.

43.          The decision having been made it should have been implemented. The failure to do so was drawn to the attention of the Supervisor by a letter from the petitioner of 28th March 2003 (in which he even replicated the misspelling on the Register, so there was no real excuse for not finding it), and from the Secretary General of the PNP of 29th March. To both the Supervisor replied that it would be corrected. It was not corrected, either because Mrs. Saunders made the error referred to above, or, sure in her own mind that the correction had been made, she refused to do anything further about it. That does not legitimise either the original irregularity, or the subsequent failure to correct it.

(ii) Dacces Harris Jnr.

44.          I find on the evidence that there are two men called Dacces Harris, who arc lather and son. The Decese Harris that appears in the Register for ED5 is one of them, notwithstanding the variant spelling. That name appeared on the original list for ED 5 as ED/05/360, with his occupation given as ‘Diver.’ In the final Register that name has been joined by one Elaine Harris, who I am told is the wife of the younger man. The Supervisor’s evidence is that they both live in ED 5 and are properly registered there. He says that the older man had initially been registered in ED 6, but at his own request made at the hearings for Five Cays (ED 12), where he now lives, he was moved to that district.

45.          However, in his letter of 11th April 2003 to the Secretary General of the PNP concerning corrections to the register for ED 6 (South Caicos South), the Supervisor answered a query about Dacces Harris Jnr. by confirming that he was to be registered in ED 6. In his evidence he now says that that was a mistake.

46.          There is conflicting evidence about what happened at the claims and objections hearing in ED 6, Mr. Gardiner producing his notes to show that both the father and the son were dealt with, and a claim by the son to be registered in that district was allowed. Mr. Norman Saunders gave evidence of his recollection in support of that. However, the Supervisor’s notes, made on his pre-printed list of the claims and objections for that district, only record one occurrence of the name in the claims for ED 6, and his recollection is that that was the father. He says that the young man was correctly registered in ED5, where he lives with his wife Elaine. She originally appeared on the list for ED 6, but at the claims and objections for ED 5 she made a claim to be on the Register for ED 5, and that was allowed. She appeared, therefore, on the final register for ED 5, and no objection was or is taken to that. Against that background I am not persuaded that her husband made a claim in ED 6, which would have been heard on the same day as his wife’s claim to be moved to ED 5. In any event, what is certain is that, although the name Decese Harris appeared on the original list for ED 5, there was no objection to it made on the claims and objection for that district. Given that, I consider that the petitioner has not made out the case for an irregularity in respect of this name.

(iii) Kenrick Hall

47.          This young man gave evidence and described himself as an ardent supporter of the PNP (the petitioner’s party). The evidence is that at the claims and objections for ED 7 (Middle Caicos) the Supervisor decided that this man should be registered in ED 5, and he accepted that. He was, however, erroneously registered in ED 6, where I find that he has no connection or residency. The mistake was again made by the Elections Officer, who thinks that, when moving the name, she mistakenly clicked on ED 6 as the destination district, rather than ED 5. I find that explanation plausible, and am satisfied that nothing corrupt occurred here.

48.          The point is taken that this error was not drawn to the attention of the Supervisor in any of the correspondence. I find that to be so. On that basis it is argued that the Supervisor was under no duty to correct this, as the duty imposed by s. 23(1) only arises when the Supervisor becomes aware of the error. Mr. Hanchell says that it was mentioned, at a meeting held on 16th April. That was not expressly challenged in cross-examination, and I accept it. In any event, the question whether the duty to correct it had arisen is a quite separate question from whether there was an error. The irregularity is the failure to give effect to the outcome of the claims and objections process. It does not need notice to make it irregular. If notice is given, however, and the Supervisor still fails to correct the error, that is a further irregularity.

49.          I therefore find that the omission of this man from the final register for ED 5 was an irregularity. For the reasons given above, I think that it can be made the subject of an election petition, and that is so whether or not it had previously been drawn to the attention of the Supervisor.

(iv) Melvin McDonald McIntosh

50.          There is no such person as this. A young man called Melvin McDonald Forbes gave evidence, and said that he was sometimes mistakenly called McIntosh as he had a brother of that name. There is a lot of dispute about whether an application was made in the name of McIntosh or not, and what became of it, but I do not need to go into that. Even if the Supervisor’s office had received the application and lost it, or failed to process it, that does not amount to an irregularity unless it was done it bad faith. Had Mr. Forbes applied at the proper lime, any such omission could have been cured in the claims and objections process. By applying late, he takes the risk of administrative error. I think that such an error is quite different in a quality from a failure to give effect to a decision made on a claim or objection, because it affects a much earlier stage in the process, before any decision had been made on the applicant’s right to be registered. I do not consider that there is any evidence of bad faith or corrupt purpose surrounding the omission of this name to change that. In any event, there was and is no such person. His real name is Forbes. There was no obligation on the Supervisor to register someone who did not in fact exist.

(v) Stevenson George Jennings

51.          He was registered late under s. 23(2) at the request of Mr. Skippings, who completed and signed his application form. Mr. Jennings cannot himself read or write. The form asks for registration in ED 5. Mr. Jennings came and gave evidence that he lives in ED 6, and has done so for the last two years. He had left the choice of district up to the person taking the form from him. I accept that, and find that the choice of district was not his, but was made either by a political agent for Mr. Skippings or the candidate himself, but I also find that Mr. Skippings believed on reasonable grounds that Mr. Jennings did in fact live in ED 5.

52.          This was a man who had lived in various places over the years. It is plain that the supervisor carried out some investigation, as there is written on the form “Wealthy to check Boundary”. He may have come to the wrong conclusion, but in the absence of bad faith, that is not now reviewable.

(vi) Jacinth Nadine Forbes

53.          She was registered late under s. 23(2) at the request of Mr. Skippings, who completed and signed her application form. It contained a tick opposite the declaration as to residence. In his witness statement Mr. Hanchell says that she resides near him and that he knows her, and that she was living abroad for about six years and only returned weeks before the election. If that were so it would mean that she did not meet the residency requirement of 12 months in aggregate during the preceding two years. There is no evidence led to controvert that. However, although her registration might be wrong, there is nothing to suggest that it was corrupt or irregular in the sense explained above. I consider, therefore, that the Supervisor’s decision in respect of this person is not now reviewable, but the question of her residence is a point which can be taken at the poll by requiring her, pursuant to s. 48(2) of the Ordinance, to take the oath of qualification before she is allowed to vote.

(vii) Delano Francil Malcolm

54.          He was registered late under s. 23(2) at the request of Mr. Skippings, who completed and signed his application form. There is very little evidence on this, as he did not come and give evidence himself, but in any event there is nothing to suggest irregularity, and it is not now reviewable

(viii) Myrlchina Lewis

55.          This young lady was not on the original list. A claim was entertained for her on the claims and objections, although no claim form has been produced. We can tell that a claim was made because her name appears on the Supervisor’s printed list of claims which were prepared for the hearing in South Caicos North. In his notes of the hearing he recorded no decision, but his evidence is that he recalls the name coming up and he allowed it subject to an investigation of her Belonger status.

56.          The evidence is that the PNP representatives at the hearing objected to her claim to be registered. There is a dispute over whether the only objection concerned her Belongership, or whether her age and residency had also been queried. I do not think I have to resolve that. The Supervisor should have made a decision in respect of her at the hearing or soon after, and announced it in time for it to be subject to the appeal process. I cannot now speculate on what if any points may have been taken on an appeal had he conducted himself properly in this respect.

57.          However, the Supervisor did not announce a decision after the hearing and he did not include her name on the Register when it was published. While it is arguable that that must mean he had decided against her, he says he conducted his investigation, but he had to wait until April when he received an adoption document to confirm her status. He was then satisfied. In fact, a further application was then made by Mr. Skippings, some time after the 1st April 2003, when the new form is dated. That form attached the adoption order, and I think that that is what the Supervisor refers to. At that late stage the claim could only have been for the Supervisor to act under s. 23(2), and it does not purport to have been a claim to have him correct the Register to implement the claims and objections. Nor could it have been - the Supervisor communicated no decision on that.

58.          In the event, the Supervisor allowed the claim at that late stage and put the young woman on the amended register as published the day before the election. In doing so he did not have a copy of her birth certificate, relying upon the recitals in an adoption order as to her age. The form was not signed personally by her, but was signed on her behalf by Mr. Skippings. That must have been apparent to the Supervisor, not least because it was signed “p.p.’’. He should not, therefore, have taken the statements in it at face value without more, but should have required a birth certificate and proof of the requisite one year’s residency. As it turns out, he said in his evidence that he assumed residency from the fact of adoption, making a mistaken assumption as to the requirements of the Adoption Ordinance in that respect.

59.          Both her age qualification and her length of residency at the qualifying date are challenged in these proceedings. The point on her age qualification is that she attained 18 after the qualifying date, but before the election. As indicated above, that is not a point which I think can be taken in these proceedings. As to her residency, the facts are that she is a young Haitian lady who was adopted by Brennett and Anita Lewis of South Caicos on 14th August 2002. She is the natural daughter of Mrs. Lewis. There is a strong prima facie case, from the adoption application itself, that she first entered the country on 25th March 2002, in which case she would not have satisfied the residency requirement at the qualifying date. There is no evidence against that - she has not come and given evidence, although she is a pupil at the Marjorie Basden High School in South Caicos, nor have her adoptive parents, who are resident there and well-known to the first respondent. In those circumstances I find that she did not meet the residency qualification, and that there was no evidence on which the Supervisor could find she did.

60.          Notwithstanding that finding, it follows from the my view of the finality of the Register that the case of this young woman would not be reviewable in these proceedings unless there was some irregularity in the way the Supervisor handled the matter. I think there was such an irregularity, in that he did not decide the question on her original claim either at the hearing or within a reasonable time thereafter. It was incumbent on him to do so and by not doing that he deprived the objectors of their right of appeal. I think the irregularity makes this reviewable, and that she should come off the Register.

(ix) Juliet Lewis

61.          She is the adoptive sister of Myrlchina, being the daughter of a Haitian employee of Mr. Lewis who died in or about 1992. She was registered late under s. 23(2) at the request of Mr. Skippings, who completed and signed her application form. There is no issue over her residence, but an argument over her age, the birth certificate produced at the adoption hearing says that she was born on 4th January 1986, while the respondent produces her TCI passport and a later birth certificate which gives her date of birth as 1985. The adoption order gives her date of birth as 4th January 1985, but that is in the recitals and is not conclusive: it is not part of the findings in the order and so is not a binding declaration. Even if the earlier date is accepted, she did not attain the age of 18 until after the qualifying date, but was 18 at the election.

62.          There is no irregularity here and it is not reviewable. In any event she passes for 18, and now has a passport which shows her birth-date as 1985, and the evidence would not have been clear enough for me to say otherwise.

(x) Elizabeth Hinson

63.          This lady is in a different category from the others complained of. She was permitted to vote at 7.21 p.m., which is after the time when the polls should, by statute, have closed. In this respect s. 33(3) of the Ordinance provides:

“(3) unless the writ otherwise directs, the polling stations shall be opened at seven o’clock in the forenoon and shall be closed at seven o’clock in the afternoon.”

64.          The reason for the poll being open late has been canvassed extensively in the evidence. I find that the polls opened 15 minutes late that morning because of a mix-up over the ballots. Because of that, the returning officer and the presiding officer agreed with the candidates that the poll would stay open 15 minutes late in the evening. Ms. Hinson presented herself during that 15 minute extension, but was turned away by a police officer who was unaware of this arrangement. The officer then informed the Returning Officer of this, and he made arrangements to have the lady returned and allowed her to vote. I think that that was technically an irregularity but was so trivial as to be de minimis.

65.          It was alleged in the Petition that the purpose of allowing Ms. Hinson to vote late was to promote or procure the election of Mr. Skippings. That allegation was not actively pursued, and it is regrettable that it was ever made. For the record I find that the Returning Officer, Mr. David Bowen, and the Presiding Officer, Ms. Maria Clare, acted in absolute good faith, with the knowledge and consent of the candidates. Il was a minor error of judgment to keep the polls open late, but it was one made out of a sense of fairness and duty, and not one for which they deserve any criticism, much less blame.

CONCLUSIONS

66.          I find that the Register is final, except in the case of procedural irregularities. I find that, due to procedural irregularities in the conduct of the election by the Supervisor of Elections:

(i)            One person - Michael Dudley Williams - voted in ED 5 when he should not have done;

(ii)           One person - Kenrick Hall - was excluded from voting in ED 5 when he should have been registered there;

(iii)          One person - Myrlchina Lewis - voted in ED 5 when she was not qualified to vote.

67.          It has been argued that, if I got to this point, I should look at the votes which were cast and strike them off for each candidate as appropriate. Such a process is called a scrutiny, and in England at least it is governed by special rules. It was not specifically claimed as a remedy, but in any event in opening the case Mr. Misick for the petitioner specifically disavowed such a process, and limited himself to a claim for a by-election. That was re-stated and clarified at the start of the third day of the hearing at the insistence of Mr. Mahfood. However, when Mr Woolgar opened the case for the Supervisor later that day, he submitted that I should adopt that process in any event.

68.          At the close of all the evidence Mr. Misick sought to retract his original concession, and demand a scrutiny. Mr. Mahfood strenuously objected to that, arguing that it would be unfair to allow it at that late stage, all the evidence having been taken on a contrary basis. Although I entertained some doubts as to the reality of that, this is a case in which the perception of fairness is paramount if the result is to be acceptable and respected by both sides, and I therefore refused to allow Mr. Misick to retract his concession. However, Mr. Woolgar stuck to his position that, if I found any votes were void, I should still strike them out and determine who was the winner when they were disregarded, thus saving the election, but not necessarily the return of Mr. Skippings.

69.          As it turns out I do not really have to decide this point. I have found that two votes were void, so that the likely outcome of a scrutiny would be an equality of votes, in which case there would have to be a by-election in any event, as required by s. 51(9) of the Ordinance. Nor would an inspection of the void votes do anything to correct the exclusion of Kenrick Hall, which would still have to be taken into account. In view of that, and given Mr. Mahfood’s objection, I decline to look at the ballots.

70.          However, given the numbers involved and the small margin, I have no doubt that these three irregularities were such as may have affected the result. I therefore declare the election void, and will so certify to His Excellency the Governor in accordance with section 62(2) of the Ordinance. There will then have to be a by-election, but that is not called by me - the writ for that is issued by the Governor on receipt of my certification that the election is void.

Dated this 19th day of June 2003

Richard Ground

Chief Justice