Supreme Court
Action No. 225 of 1979
21st December, 1979.
Staine, J.

Mr. Dean O. Barrow, for the Applicant.
Mr. R. Rajasingham, Solicitor General, for the Respondent.

Judicial Review - Application to quash the decision of the Revising Officer for the Dangriga Electoral Division ordering Applicant's name to be struck off the Register of Electors for the Dangriga Electoral Division - Applicant alleging three grounds in support of application, namely (1) that the Revising Officer had failed to publish the list by the date fixed by law, (2) that the Revising Officer had failed to state in the notice ultimately published by him the grounds upon which objection was made to the retention of Applicant's name on the Register of Electors for the Dangriga Electoral Division, (3) that the records disclosed on their face an error - Meaning and effect of Rule 35(3) of the Representation of the People Registration Rules - Whether Rule 35(3) requires a Registering Officer to give reasons for striking a person's name off the Electoral Register - Rules of natural justice - Whether Registering Officer had a duty to inform Applicant that it was intended to remove his name from the Electoral Register and the reasons therefore - Applicant averring that list was not published on date required by law - Respondent averring that list was published before date fixed by law - Conflicting affidavit evidence - Approach of Court to conflicting affidavit evidence - He who asserts must prove what he asserts - Natural justice - Definition - Meaning of Certiorari - Certiorari is a discretionary remedy, and as such the Court should refuse to exercise it if Applicant has alternative means of redress by way of Appeal.

By this Motion the Applicant, with the leave of this Court previously obtained, applies for an Order of Certiorari for the purpose of removing into the Supreme Court and quashing, a decision made on the 20th day of August, 1979 by Mr. Norrin O. Meighan, Revising Officer for the Dangriga Electoral Division, by virtue of which Order the Applicant's name was ordered to be struck off the Register of Electors for the Dangriga Electoral Division.

In support of his Application the Applicant filed two Affidavits sworn to by himself, and attached to these Affidavits were exhibits, which were copies of documents obtained from the Registration Officer for the Dangriga Electoral Division.

At the hearing of the Motion, two grounds in support of the application were argued, and of which notice had been given. Leave of the Court was sought to argue a further third point which had not been anticipated, but which, as Counsel for the Applicant put it, arose when the Respondent filed documents in reply. The leave of the Court was granted.

The basis of the application was that the Revising Officer had wrongly entertained a notice purporting to be a notice containing names of electors, to which the Registration Officer had objected, in conformity with Rule 35(3) of the Rules of the Representation of the People's Ordinance 1978. Rule 35(3) reads:

"(3) The Registration Officer shall on or before the 15th day of the month of February, May and August of any year, publish a list of the names of any persons to whose continued registration he objects for the reason that he believes that they were disqualified to be registered or did not on the date of their application for registration, possess the qualifications necessary for registration in his division."

The second ground of objection was that the notice did not contain the grounds upon which objection was being made, and therefore the Applicant did not know the case he had to meet. It was argued that this was tantamount to nonconformity with the rules of natural justice.

The third ground argued in this motion was that on the face of it, the records disclosed an error. Counsel was not able to elaborate on this submission.

The case for the Applicant, as argued by Mr. Barrow ran thus: Dealing with the first ground of the application, rule 35(3) requires the Registration Officer to publish on or before the 15th August, the names of the persons to whose registration the Registration Officer is objecting, and also the reasons for his objection. Further, the Registration Officer had by this notice to inform the person to whom objection was being taken as being registered as an elector, the grounds on which the objection was being raised; otherwise the person affected would have no means of knowing for what reason the Registration Officer was objecting to the inclusion of his name on the list of electors for that particular electoral division.

Mr. Barrow argued further, and this was recited in the Affidavits of the Applicant, that the publication of the list of names did not take place until sometime subsequent to the 15th of August. Thus there was non-conformity with the provision of rule 35(3) in two respects, viz (a) the list was not published until the stipulated date had already passed; and (b) the list gave no indication why the objection was being taken. That being the case the publication was a nullity, and the Revising Officer in acting upon that nullity exceeded his jurisdiction.

Elaborating along these lines, Mr. Barrow argued in the first place, that the failure of the Registering Officer to publish the list on or before the 15th August, as is required by Rule 15(3), had to be coupled with the failure of the Registering Officer to indicate the precise grounds upon which his objections were being based. This, as it were, would combine to make a two-fold error, the first aggravating the second. Thus put, the sequence which would flow would be exacerbated. In this case the result would have been that tacked on to a nullity, that is the late publication of the list, there would have been a failure to notify the Applicant of whatever case he was expected to meet and so the Applicant would be at a total loss as to what approach he should make, or was so in law entitled or bound to make.

Mr. Barrow argued further that in the letter addressed to the Applicant by Mrs. Elaine Rose Ciego, the Assistant Registering Officer, which letter was attached to Mrs. Ciego's Affidavit sworn to on the 2nd day of November, 1979, and filed on that day, Mrs. Ciego had informed the Applicant that his registration in the Dangriga Electoral Division would have been cancelled and that this name was to be transferred to the Stann Creek Rural Division. Continuing his argument, Mr. Barrow submitted that put thus, the Applicant was given the impression that he had no choice in the matter and that it was a fait acompli and he could do nothing about remedying the situation. The Applicant was therefore at a disadvantage, and it would have been otherwise, had this not taken place. So in the totality the Applicant had been put to great difficulty and in essence deprived of his rights, since the basic rules of natural justice were thus circumvented.

In addressing himself to the Affidavits sworn to and filed on behalf of the Respondent by Mr. A. K. Bodden, Mr. A. L. Ferrera and Mr. G. V. Bautista, Mr. Barrow dealt cursorily with these matters. The Affidavit of Mr. Bautista and Mr. Ferrera added nothing to the case since Mr. Bautista could not supplement what had not been done by the Registering Officer. Mr. Ferrera the Registering Officer, had failed to comply with the law and could not therefore be heard on another occasion making a submission which would have the effect of correcting his error. As for Mr. Bautista, although his Affidavit would have been otherwise relevant, he was seeking to do the job which should have been done by Mr. Ferrera, the Registering Officer, and the Court should not be persuaded by any submission that in accepting Mr. Bautista's Affidavit, that Affidavit would have the effect of showing that the Applicant did not reside within the boundaries of the Dangriga Electoral Division, and thus had no claim to be registered in that Division. Mr. Barrow argued strongly that the Court should not be persuaded by argument or otherwise that the evidence given by Mr. Bautista's Affidavit had the effect of showing that the Applicant had no claim to be registered in the Dangriga Electoral Division, since Mr. Bautista was not qualified by virtue of law to make such a finding.

In reply to the submissions made by Mr. Barrow, the Solicitor General in the first instance submitted to the Court, that the document tendered in evidence as indicating that notice had been given to the Applicant of the intention to object to his name remaining on the Dangriga Electoral District, was unchallenged. That document was dated the 15th August and was signed by the Registering Officer Mrs. Ciego. This indicated that the Applicant was not qualified to be registered as a voter in the Dangriga Electoral District, and had so informed him.

The Solicitor General submitted also that Rule 35(3) set out the grounds on which the Registration Officer could object to a person's name remaining upon the list but, nowhere in this Rule was it stated that the Registration Officer had any obligation to inform the person to whose name objection was being taken, the grounds for objection to his name remaining on the Register. The Rule merely recited the conditions under which the Registering Officer could object to the removal of the name and since this was a matter of law, the Applicant was deemed to know it, and could not be heard to say that he was not aware of the existence of this Rule, since the maxim 'ignorance of the law is no excuse' would apply.

The Solicitor General argued further that the requirement of holding Court to revise the list did not provide for the informing of persons to whose name objection was being taken has been wrongly included on that list. Again, this was merely a requirement of the law. The Court sat every month and as a matter of law would have had to sit in the month of August. Therefore the Applicant had been advised of such a sitting of the Court. And had he knowledge of the law and it is presumed he did had, again he cannot be heard to say that he was not aware of the law; but, in this case, the Applicant was informed by letter that the Court would sit and was invited to attend. He was also invited to make application for his name to be included on the list of names to be registered in the Stann Creek Rural Electoral District. And had he been minded to take advantage of this offer he would have been informed as to what the position was. As it turned out, the Applicant did not attend the sitting of the Court, and his name was struck off the list of the Stann Creek Electoral District and the Applicant, said the Solicitor General, did not attend because he knew he was not entitled to be registered in the Dangriga Electoral District. Further argued the Solicitor General looking at the Affidavits of Mr. Bodden and Mr. Ferrera, it was clear that the Applicant had been informed before the 15th August, that he was not entitled to be registered in the Dangriga Electoral District and that his name would be removed, and that he could further apply to be registered in the Stann Creek Rural Electoral Division. And if that were not sufficient, argued the Solicitor General, the Surveyor, Mr. Bautista had informed the Applicant that the Dangriga Electoral Division boundary did not include the Applicant's residence. So again from another source the Applicant was aware that he was not entitled to be registered in the Dangriga Electoral District.

As a rider to his arguments, the Solicitor General submitted that nowhere in the Affidavits of the Applicant did he state that he was entitled to be registered in the Dangriga Electoral Division. And this, argued the Solicitor General, was because the Applicant knew that he was not entitled to be so registered and was being careful not to mislead the Court.

The final submission made by the Solicitor General was that in this case Certiorari did not apply because the Applicant had a right to appeal under Rule 50 of the Rules of the Representative of the Peoples Ordinance 1958 and further, even if the Court were minded, the Court would not make an order which would be of merely temporary duration because if the Applicant was not entitled to be registered in that Electoral Division and the Court ordered his name to be restored it would again be removed once a fresh application was made. It appears to me that from the submissions made and on the basis of the law relevant to the application, there is no need to digress ad libitum on deciding this issue.

The leading authority and well known case on the subject made is the case of Local Government Board against Arlidge (1915) A.C. 120 in which, the case of Board of Education against Rice (1911) A. C. 179 was cited with approval. The submissions that Rule 35(3) does not require a Registering Officer to give reasons for striking off the names of an elector is well founded.

A cursory reading of this Rule would reveal that nowhere in its contents, nor by application, does the Rule require a Registering Officer to inform a person who is given notice that it is intended to apply to have his name removed from the Electoral Register of a particular Division. The Rule does not also require that the Registering Officer give reasons of the Registering Officer's reasons for so doing. The requirement is a legal one, and places a duty upon the Registration Officer to act in accordance with that Rule. But nowhere in its wording, not even by the most ingenious stretching of the meaning of these words, can it be said that a duty is created whereby the Registering Officer is required to inform the person whose name it is intended to remove, his reasons for so doing. The cases in which a Registering Officer can so act are only two in number and are cited in the law, and it seems to me that it must necessarily follow that anybody acquainted with the law would know the reason for applying to remove his name from the Electoral Register. So the argument that if an elector is not informed of the reason for applying to remove his name, he would be left without information as to the case he had to meet, fails. The reasons being only two in number makes it even more certain that the person affected would be properly informed, despite the lack of information from the Registering Officer. And the Registering Officer has a duty to act in accordance of the law, and even a failure so to act would not have availed the Applicant unless it could be shown that he was directly affected by the Registering Officer failing to inform him of the legal requirements. In this case I do not think it can be argued that the Registering Officer failed in his duty because the law recited no requirement to inform the Applicant why it is proposed to remove his name.

But the case does not end there. The Applicant also cites that the list was not published as required by law before the 15th August, 1979. And there is an Affidavit by Mrs. Ciego that the list were published on two separate occasions once on the 8th of August and again on the 15th of August. And publication was in conformity with the manner of publication laid down by the Ordinance and of the Rules. On the other hand, the Applicant alleges that the list of names was not published by the 15th August and cites this as a ground for his application, as there would have been non-conformity with the legal requirement, and thus the Revising Officer would have exceeded his jurisdiction as he acted upon such a list which would have been, in law, a nullity.

Since the Court is faced with two differing averments on the same subject matter then, I think, the burden of proof lies upon the Applicant since the maxim that he who has asserts must prove would apply, and both averments being by way of Affidavits without any further proof, the Court is left in a position where it has no recourse but to accept that there was a publication of the list on or before the appointed day. So that again the Applicant would have failed to produce to the Court any evidence that he was affected in any way by non-publication of the list.

But quite apart from the list having been published, assuming for the benefit of the Applicant non-publication of the list, and assuming that he had not been informed as he submits he should have been, it would still be necessary to consider whether the Applicant had not otherwise come to the knowledge of the reasons for applying to remove his name from the Dangriga Electoral Division list.

In the Affidavit of Mr. Bodden and that of Mr. Ferrera, they both state that the Applicant had been informed that he was wrongly registered in the Dangriga Electoral Division, and that it was proposed to remove his name. Mr. Bodden also deposed to having given the Applicant a form for the Applicant to fill out and to apply for registration in the Stann Creek Rural Division. Further, the evidence shows that the Applicant did in fact so apply, and it can only be assumed that he was duly registered in the Stann Creek Rural Electoral Division. Therefore on this basis he appears to have no matter of complaint.

It is necessary to look at the letter of Mrs. Ciego to the Applicant, in which letter she informed him that his name would be removed from the Electoral Register for Dangriga and that it would transferred to the Stann Creek Rural Division. It has been argued, that because of this, the Applicant was confused and indeed misled, since he believed that his name was being transferred to the Stann Creek Electoral Division without his even making an application so to do. This of course, was not possible as the law stands. The Registering Officer had no authority to make any such transfer and had Mrs. Ciego attempted to do so as she stated in her letter, that act would have been of no avail because it was an act without any legal authority. And although it seems harsh that the Applicant having been so informed cannot place, say, reliance on such a promise, that is the state of the law. The Applicant is deemed to know the law, and it is an irrebuttable presumption; he cannot place any reliance upon what was told by Mrs. Ciego in her letter but must be guided by the law. In any case I do not think that in truth the Applicant was misled because, according to the Affidavit of Mr. A. K. Bodden, the Applicant was given forms for registration as an elector in the Stann Creek Rural Division and was given it at his own request. Further, in the Affidavit of Mr. Bodden, Mr. Bodden recites that the Applicant appeared to accept that his residence was outside of the town limit of Dangriga, and his only inquiry when told of this was as to what he could do.

Another point worthy of mention is that as far back as the 31st of July, 1979 the Applicant became seised of knowledge that his residence was outside the limits of Dangriga Town. Because on that date Mr. Gustavo Bautista, the Principal Surveyor in the Government of Belize went down to Dangriga for the express purpose of doing a survey in connection with electoral boundaries and the Applicant was present when Mr. Bautista informed the Mayor of Dangriga, Mr. Alonzo Ogaldez, that the residence of the Applicant was outside the town limits. And again the Applicant appeared to accept this information without question. The case of Ridge v Baldwin (1964) A. C. page 41 shows in the judgment of Lord Reid that it does not matter how the information comes to the Applicant so long as he receives it before his application is made. In Ridge v Baldwin information given to a Solicitor that would have been valid had it been properly conveyed by a member of the Watch Committee, but what happened in that case was that the communication was faulty. But Lord Reid had no hesitation in saying that but for the fault, the information would have been valid and sufficient in law.

The phrase "contrary to the rules of natural justice" has been used with frequency but it is seldom defined. As a working rule, all that it means, I think, is that one must arrive at a just decision by just means. The question therefore, in this case, when that phrase is used, is whether in fact justice was done in this case, in my opinion it was. Forms of actions may have been omitted and contradictory, but it cannot be argued that there was anything done by which the Applicant was unjustly prejudiced or was prejudiced at all. The rules of natural justice do not mean merely that the appearance of formality must meet with strict adherence. What it does mean is that in substance justice and all that it connotes must have been applied. In this case I would say without hesitation that on that score the Applicant has no grounds of complaint.

It was argued by Mr. Barrow that the Court should not give any weight to the evidence of Mr. Bautista, since Mr. Bautista was not qualified to make the finding that he was seeking to make namely, that the residence of the Applicant fell outside of the Dangriga Town limits. But I think this is to lose sight of the whole purpose of the Order of Certiorari. The question therefore arises what is Certiorari. I can do no better than to follow the words of Atkins, L. J. when he said in the case of R. v Electricity Commissioners (1924) 1 K.B. 171 "wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the Kings Bench Division Exercise in the Writs of Certiorari and prohibition". In this case or in the case before us the right is now being sought to protect not merely the right to be put on the list of electors but the right to be put on the list of electors which would qualify a person to vote at an election; that is a substantive right. Before us Mr. Bautista's evidence was of the most cogent value and at end the Applicant, having come to knowledge by means of Mr. Bautista, cannot be heard to say that he did not know the reasons for objection being taken to the continued inclusion of his name on the list.

So all the arguments as to whether or not the list was published on the relevant date, or whether the Applicant was informed that the Court would sit to review the names it was intended to remove, or whether he was misled by Mrs. Ciego's letter telling him that his name was being transferred to the Stann Creek Rural Electoral Division, becomes of largely academical interest, because of an abundance of evidence, and evidence in thrown controversy by the Applicant, show that all along he was fully aware that he was not entitled to be registered in the Dangriga Electoral Division and, this perhaps explains his complacency in not following through the advice given to him by Mrs. Ciego to pursue the matter further if he so wished. The most cogent evidence of the Applicant's knowledge is the copy of the Resolution moved by the Dangriga Town Board and which is appended to Mr. Bodden's Affidavit. That appendage though silent speaks in most eloquent terms as to Applicant's state of mind. One further point remains to be canvassed. The Applicant is not entitled to an Order of Certiorari if in fact there was available to him another remedy, as indeed there was. By virtue of the provision of Rule 50, the Applicant could if he was dissatisfied with the decision of the Revising Officer, appeal to the Court for a review of his case, but such appeal would have had to be lodged within 48 hours of the decision having been made. It was argued on behalf of the Applicant that the Applicant could not pursue this remedy of appeal because the Applicant did not become aware of his true position until after the period of 48 hours had elapsed and, by that time it was too late to lodge an appeal.

I do not think that I can accept this submission. The Applicant had every means of knowing what his true position was, even before the final decision was taken. He himself had asked for and been given forms for registration as an elector in the Stann Creek Rural Division. So, it could not be said that he was unaware of his plight. Moreover the Applicant being in possession of this knowledge, and being minded to protect this right which he had, that is, the right to be registered in order to be a voter, should have acted with all due diligence, and failure so to act must be ascribed to his own dilatoriness.

I do not think the Applicant has made out a case for the grant of an Order of Certiorari and his application is therefore dismissed with costs to be paid by the Applicant. The Applicant had an alternative remedy of appeal under Rule 50 and he did not pursue it and he can blame no one but himself and even if it had been shown that he had good reasons to prevent him from so appealing, this Court could not issue an Order of Certiorari which would be of short duration not for the reason that it would be followed shortly by an application for the removal of his name but for the reason that Certiorari lies only where there is a real right to be protected and in this case the Applicant has not satisfied this Court that he was entitled to be registered in the Dangriga Electoral Division.

----------OO----------