Bowen _Norman_ v Robinson _Shahine_ and Williams _Neville_.pdf

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elation to whether or not Mr Oswest Senior Smith ought tobe declared the duly elected Member of Parliament. HisLordship indicated that as he had already made a ruling theClaimant should appeal.12. That on the 8 th day of October at approximately 2:30 p.m.the Claimant filed an Appeal and I beg to refer ThisHonourable Court to the Notice and Grounds of Appeal filedherein.13. That the Appeal had a good prospect of success.14. That having declared the seat vacant and an appeal havingbeen lodged the Election Petition is still not finalized andaccordingly no election should be held to fill the vacancy andstay of execution should therefore be issued.15. That should an election be held to fill the vacancy and theAppellant be successful on his Appeal the decision of theCourt of Appeal would result in confusion and furtherlitigation to determine who is the lawful Member ofParliament for the Constituency of Saint Ann North East.”[5] In a very helpful written submission provided to the court by Mr Dabdoub, theapplicant sets out the main bases of the application as follows:“STAY OF EXECUTION44. The Claimant submits that this Honourable Court ought tostay execution of the Judgment of the Honourable Mr JusticeRoy Jones on two basis:GROUND ONEThat the Learned Judge, having had notice that a Notice ofApplication was filed within fourteen days of the date ofpublication in the Jamaica Gazette, as required by Section 15of the Election Petitions Act, of the 1 st Respondent’s Noticeof Intention not to oppose the Petition lacked the jurisdictionto come to a conclusion in respect to the Petition as there
was an application for substitution of the 1 stpending before the Court.Respondent45. That there is no doubt that Neville Williams had a right to besubstituted as a Respondent and having had notice that anapplication had been filed within the time allowed bySection 15 His Lordship ought to have heard the saidApplication or await the outcome of the said Applicationbefore making his ruling declaring the seat vacant.46. That in failing to do so His lordship exceeded his jurisdictionas his right to determine the Petition had been suspendedby the intervention of Neville Williams.GROUND TWO47. From as long ago as 1859 in the case of the Athlone Election1859, it was decided that writ of election must [not] beissued if the seat which has been vacated be claimed onbehalf of another candidate. The ruling in that case wasthat the writ be withheld until after the trial of the claim.48. In this matter the proceedings under the Election PetitionsAct have not been completed as pursuant to the provisionsof the Act the Appellant has filed an appeal in which hecomplains that he was denied the opportunity to be heardon the question of the order seeking that the seat beawarded to Oswest Senior-Smith. In other words, the trialof the petition has not been concluded until his Lordshiprules on the question of whether the seat should beawarded to Mr Senior-Smith. That the Claimant havingclaimed the seat for another candidate the proceedingsought to be stayed pending the outcome of the Appealagainst the decision declaring the election null and void andthe seat vacant without deciding on the question of whethersome other person should be returned as the duly electedcandidate.49. Further the Appellant submits Section 20(f) requires HisLordship to determine if ‘any or what other person was dulyreturned or elected’ and that His Lordship failed to hearsubmissions in that regard despite the fact that the Petitionsought an order that Oswest Senior Smith be declaredelected.”
Page 1 and 2: [2010] JMCA App 27JAMAICAIN THE COU
Page 3: October 2010 be stayed pending the
Page 7 and 8: shall certify such determination to
Page 9 and 10: clear from Mr Clough’s affidavit
Page 11: [15] In the instant case, it seems

Bowen _Norman_ v Robinson _Shahine_ and Williams _Neville_.pdf

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