Submission of Jalil Dabdoub for 1st Respondent Civil Appeal No 47 of 2008 JD Current Working Copy2

Respondent’s Skeleton Arguments IN THE COURT OF APPEAL SUPREME COURT CIVIL APPEAL NO. 47 OF 2008 SUPREME COURT CLAIM NO. 2007 HCV 039210 BETWEEN DARYL VAZ APPELLANT A N D ABRAHAM DABDOUB RESPONDENT

Background to the Appeal

1. This Appeal and Counter-Appeal arises out of the ruling of the

Learned Chief Justice on an Election Petition. That Election Petition

had it’s roots in the general elections of September 3rd, 2007; in

which the Appellant and the Respondent were candidates for the

West Portland constituency for the Jamaica Labour Party and

People’s National Party respectively..

2. As a result of the polls of September 3rd, 2007, the Appellant was

returned as the elected Member of the House of Representatives

for the constituency of West Portland.

3. This return was challenged on an Election Petition by the

Respondent on the grounds :

1. That the Appellant was on the 7th. day

of August 007 not qualified to be

nominated or elected to the House of

Representatives for the Constituency of

West Portland by virtue of the fact that

he was a citizen of and owed allegiance

to the United States of America, a

foreign power.

2. That the Appellant was on the 7th. day

of August 2007 not qualified to be

elected to the House of Representatives

for the Constituency of West Portland as

he by his own act was under an

acknowledgment of allegiance to the

United States of America, a foreign

power.

4. In that Election Petition the Respondent also claimed the following

declarations and Orders, inter alia:

1. A determination that the Respondent

being the only qualified validly

nominated candidate on the 7th of

August 2007, was and is entitled to be

returned to the house of

Representatives as the duly elected

member for the constituency of West

Portland.

2. An Order that the Respondent be

returned as the duly elected Member of

the House of Representatives for the

constituency of West Portland.

3. A declaration that the nomination of the

Appellant on the 7th of August 2007 is

invalid, null and void and of no legal

effect.

5. The Learned Chief Justice after the hearing of evidence in the

Election Petition made inter alia, the following Orders :

1. The first Respondent was not qualified

on nomination Day, August 7th, 2007 to

be elected to the House of

Representatives for the constituency of

West Portland.

2. His nomination on that day is invalid,

null and void and of no legal effect. He

was not duly returned or elected as a

Member of the House of

Representatives and I am obliged to

certify accordingly to the speaker of the

House of Representatives.

3. The petitioner is not entitled to be

returned as the duly elected Member of

the House of Representatives for the

constituency of West Portland and his

claim for an order that he be returned

as such is also refused.

4. I make no Order as to costs in respect

of the petitioner and the first

respondent as against each other. The

petitioner must bear the costs of the

second and third respondents herein, to

be taxed if not agreed.

It is items 3 and 4 of the Chief Justice’s ruling that this Counter –Appeal

addresses.

The Evidence before the court in the Election Petition

6. Daryl Vaz’s mother, Sonia, was born in Puerto Rico1 on 24 May

1938.2 as a United States citizen.3 In 1959, She married Jamaican

Douglas Vaz.4 Daryl Vaz the appellant was born in Jamaica on 15

December 1963.5

She registered her son’s birth at the United States Embassy in

Jamaica, making the Appellant a United States citizen.6

7. At the age of 4 years old, the Appellant was added to his mother’s

passport.7 On 17 June 1978, Sonia Vaz applied for a United States

passport for Daryl Vaz,8 at the time he was about 14 years of age.

8. Having attained the age of majority, the Appellant applied for and

received a renewal of his passport three (3) times: 31 October

1984, 21 January 1994, and 5 May 2004.9 The Appellant used his

United States passport to travel on numerous occasions thereby

invoking the protection of the United States.10

9. The Appellant admitted to travelling on his United States Passport

to numerous countries before and after nomination day August 7th,

2007. He signed a Jamaican Immigration form on which he

1 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17.

2 Closing Submissions of First Respondent (Supreme Court) para 6; Affidavit of Mr Vaz, para 5.

5 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 17;

7 Closing Submissions of First Respondent (Supreme Court) para 8. 8 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33.

10 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23, 31.

described himself as a United States citizen and registered as a

United States citizen at an American College in Miami.11

10. Section 349 (a) (5) of the Immigration and Nationality Act 1996

(US) provides a statutory framework for renouncing United States

citizenship12. The evidence however is that the Appellant made no

renunciation under this provision at the time he was nominated for

Parliament on 7 August 2008.

11. On 7 August 2007, Daryl Vaz was nominated as the Jamaica Labour

Party’s candidate for seat of West Portland.13 Abe Dabdoub was the

People’s National Party’s candidate for the same seat.14 Vaz

remained a United States citizen up to and past the date on which

he nominated for election and remained at citizen at the time of

trial. He even admitted to owing allegiance to the United States of

America.15

12. During the election campaign, including before Nomination Day

there was substantial publicity of Vaz’s United States citizenship

and passport including the validity of Vaz’s nomination , in fact Vaz

himself admitted to being a United States citizen through his

mother. The Director of Elections responded to that publicity and to

various Notices being circulated in the constituency. On 16 August

2007, the Director of Elections issued a Press Statement, which was

circulated and publicized in the media.16 It asserted that all

candidates had been properly nominated. It did not contradict the

facts on which Daryl Vaz’s incapacity rested that is Mr. Vaz’ United

States citizenship and United States passport.

11 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23

12 Record of Appeal, Volume 2, Cross-examination of George Crimarco, 235-236

15 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 23, 31.

16 Dabdoub v Vaz [2008] SC Jamaica, 47.

13. On 29 August 2007, Abe Dabdoub issued a Notice of

Disqualification and Legal Opinion in which he stated the fact that

whereas among other things, Daryl Vaz was a citizen of the United

States of America and the holder and was as a result by virtue of

the provisions of Section 40 (2) (a) of the Constitution of Jamaica

qualified to be elected. This fact was publicized in the media, by

house-to-house visits, and by preparation and distribution of a

Notice of Disqualification and posters.17 On the back of the Notice

of Disqualification was a Legal Opinion by Gayle Nelson, Attorney-

at-Law which stated inter alia, :

“It is not only a matter of taking foreign

citizenship or swearing allegiance to a foreign

power or state which disqualifies but also the

voluntary acknowledgment of allegiance,

obedience or adherence to a foreign power or

state. For example, working for any branch of

the secret service of a foreign power or state

even if not a citizen of the State will disqualify

the candidate. Also, applying for a passport of

the foreign power or state or a renewal thereof

amounts to an acknowledgment of allegiance,

obedience or adherence to a foreign power or

state which disqualifies a person from being

elected to the House”18.

14. On 31 August 2007, the Director of Elections issued another Press

Release.19 This again asserted that all 146 candidates had been

properly nominated. It also alleged that “persons are apparently

seeking to mislead electors that votes cast for certain candidates will

17 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 41–44. 18 Record of Appeal, Volume 1, Page 384

be wasted. This is False”.20 Once again these Press Release did not in

any way contradict the facts set out in the 1st. Respondent’s Notice

of Disqualification namely that (1) Daryl Vaz was a U.S. Citizen (2)

was the holder of a U.S. passport and (3) by virtue of the provisions

of Section 40 (2) (a) of the Constitution of Jamaica not qualified to

be elected.

15. The general election was held on 3 September 2007.21 Vaz was

returned to the seat of West Portland and was sworn in as a

member of the House of Representatives.22

Issues raised by the Appeal and Counter-Appeal

16. This Appeal and counter-appeal between them raise two (2)

substantive, issues. They are as follows:

1. Was the Appellant, by virtue of his own

act, under an acknowledgement of

allegiance, obedience or adherence to a

foreign power or state, and as a result

not qualified to be elected to the House

of Representatives pursuant to the

provisions of Section 40 (2) (a) and

Section 39 of the Constitution of

Jamaica?

2. Is the Respondent Dabdoub, entitled to

be returned as the duly elected Member

to the House of Representatives for the

constituency of West Portland?

20 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 48. 21 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 2.

This issue will also involve two (2) sub-

issues,

1. what was the effect of the Appellant

Vaz’s nomination having regard to the

fact that he was not qualified to be

elected pursuant to the Constitution and

2. Was there sufficient due notice to the

electors of the constituency of the facts

causing Vaz’s disqualification?

17. Notwithstanding the answer to the first sub-issue, if the answer to

the second sub-issue is yes, then the Claimant/Petitioner must, as a

matter of law be returned as the duly elected Member to the House

of Representatives for the constituency of West Portland.

Was the Appellant, by virtue of his own act, under

an acknowledgement of allegiance, obedience or

adherence to a foreign power or state, and as a

result not qualified to be elected to the House of

Representatives pursuant to the provisions of

Section 40 (2) (a) and Section 39 of the

Constitution of Jamaica?

18. This issue addresses the grounds 1 to 7 of the further grounds

upon which the Respondent appeals that the ruling of the Learned

Chief Justice should be upheld23.

19. Section 39 of the Constitution of Jamaica mandates “the primary

qualification”24 for election to the House of Representatives.

Pursuant to this section a candidate must be a Commonwealth 23 Grounds 1 -7 Counter-Notice of Appeal, pgs 23-26 of the Record of Appeal

24 Chaitan v A-G (Court of Appeal, Republic of Trinidad and Tobago, 31 July 2001) 32

citizen aged 21 years or over and must have been ordinarily

resident in Jamaica for 12 months before being nominated for

election. The section provides in relevant part :

“Subject to the provisions of section

40 (my emphasis) of this constitution,

any person who at the time of his

appointment or nomination (my

emphasis) for election –

a. is a Commonwealth citizen of the age of

twenty-one years or upwards; and

b. has been ordinarily resident in Jamaica for

the immediately preceding twelve

months,

shall be qualified to be appointed as a

Senator or elected as a member of the

House of Representatives and no other

person shall be so qualified.” (My

emphasis)

20. Section 40 (2) (a) of the Constitution of Jamaica sets out certain

status for persons to be qualified for election to the House of

Representatives. That section provides in relevant part:

(2) No person shall be qualified to be

appointed as a Senator or elected as a

member of the House of

Representatives who (my emphasis) —

(a) is, by virtue of his own act, under any

acknowledgment of allegiance, obedience

or adherence to a foreign Power or State.

21. The clear intent and purpose of these constitutional provisions is to

prevent parliamentarians from having loyalties to different

governments. The constitutional provision is necessary to avoid

both actual and perceived conflicts of interest that may flow from

any allegiance or loyalty owed to another nation-state. Clearly,

Parliamentarians most be loyal, committed and tied to the country

they serve and no other. The appearance of divided loyalties

on the part of a parliamentarian who owes a duty of

allegiance to a foreign power or state as well as to Jamaica

is most undesirable. The mere appearance of allegiance to

a foreign power or state by a Parliamentarian is most

undesirable much less one who in reality is under an

acknowledgment of allegiance to such foreign country.

This intent and purpose of the provision is even clearer if one

examines section 44(1) (d) of our constitution. That section

provides in relevant part:

“The seat of any member of either House shall

become vacant if:

(d) he ceases to be a Commonwealth

citizen, or takes any oath or makes any

declaration or acknowledgment of

allegiance, obedience or adherence to

any foreign power or state, or does,

concurs in or adopts any act done with

the intention that he shall become a

subject or citizen of any foreign power

or state.”

22. The framers of the constitution of Jamaica went to great lengths to

ensure the integrity and undivided loyalty to Jamaica of

Parliamentarians and to ensure there is no split allegiance on their

part. Section 39 addresses the qualifications for election to the

House of Representatives, Section 40 (2)(a) provides that persons

with a particular status, such as a Judge of the Supreme Court or

Court of Appeal, persons with foreign allegiances, persons who are

insane, bankrupt or have a contract with the Government of

Jamaica, are not qualified to be elected to the House of

Representatives or appointed to the Senate, and Section 41(1)(d)

addresses what will cause a seat to be vacated including the issue

of split allegiance in the event that any Parliamentarian would have

the audacity to seek foreign citizenship or to make an

acknowledgement of allegiance to a foreign power or state after

being elected or appointed to Parliament. The framers of the

Constitution could not have made their position more clear - split

allegiances and any perception of divided loyalties has no

place in Jamaica’s House of Parliament.

23. In this matter, the foreign power and state at the centre of the

issue is the United States. There can be no dispute that the United

States is a foreign power and state. It is the holding of United

States citizenship, which Vaz failed to renounce and confirmation of

that citizenship by the holding of and travel on a United States

passport by Vaz that has placed him under an acknowledgment of

allegiance and in breach of our constitution.

24. As the determination of a foreign Power is not in dispute, the words

that are important in an interpretation of section 40(2) (a) of the

constitution are “allegiance’, “under any acknowledgment” and

“by virtue of his own act”.

Allegiance

25. Allegiance is the obligation of fidelity and obedience to government

owed by an individual in consideration for the protection that

government gives. It is a legal obligation in which there are two

parties the subject and the sovereign25. It is referred to as the

mutual bond and obligation between the sovereign and his subject

25 Words and Phrases Legally Defined 4th Ed. , pg. 115.

(a government and its citizens) because the subject has a duty to

serve and be loyal and the sovereign a duty to protect26. Therefore

as a result all citizens owe allegiance to the country of which they

are citizens27.

Under any Acknowledgment

26. The word acknowledge means to own avow or admit, to confess, to

recognize one’s act28 . The noun acknowledgment means to admit,

affirm, to concur with, declare, testify or own as genuine,

acceptance and acquiescence29.

27. The meaning of the word acknowledgment itself and the various

legal authorities, indicate clearly, that an ‘acknowledgment’ of

allegiance may be a formal acknowledgment (eg applying for

citizenship or a passport) or an informal acknowledgment (failing to

renounce the citizenship which carries with it the acknowledgment

of allegiance.)30

28. It is submitted that the status of being under an acknowledgment

of allegiance may be made by the concerned person or from the

foreign state or power itself. The acknowledgment may be made by

the state for by example the granting of a passport, the conferment

of citizenship pursuant to the laws of the foreign state (as is the

situation with Vaz herein) which then places the citizen under an

acknowledgement of allegiance.

26 Words and Phrases Legally Defined 4th Ed. , pg. 115 and Joyce v DPP [1946] AC 347, 366, 368, 370 27 Joyce v DPP [1946] AC 347.

28 Black’s Law Dictionary 6th Ed. Pg 23

29 Black’s Law Dictionary 6th Ed. Pg 23 The Oxford Thesaurus, Pg. 10 30 Nile v Wood (1986) 167 CLR 133, 140 Sykes v Cleary (No 2) 176 CLR 77.

29. The evidence of Mr. George Crimarco ( Mr. Vaz’s witness on foreign

law), in the court below is that under the immigration law of the

United States :

i. Mr. Vaz acquired U.S. citizenship by

derivation through his mother who

was born in Puerto Rico. He was

registered at birth. That citizenship

was acquired by Vaz pursuant to

Section 301 (a) (7) of the Immigration

and Nationality Act 1952

ii In order to obtain a US passport one

has to apply for same, and satisfy the

Secretary of State that you are a

person owing allegiance to the US.

This is necessary as under the US

statute, 22 USC 212, only persons

owing allegiance to the US can obtain

a US passport. That is the evidence of

George Crimarco.31

iii. He agreed that a United States

passport is a request addressed to a

foreign power that the bearer of that

Passport may pass safely and freely.

He agreed that under U.S. law a

passport is by its character a political

document by which the bearer of the

Passport is recognized in foreign

countries as at least a U.S. National.

31 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 228 and Evidence of George Crimarco,Transcript of Notes of Evidence, Record of Appeal Vol. 2, - 228, 325-327

He also agreed that a United States

passport is proof of allegiance to the

United States. He was referred to the

United States Supreme Court case of

Haig v Agee32.

iv. All U.S. citizens owe allegiance to the

United States

30. It is submitted then that under United States law, the United

States, as a foreign power or state can acknowledge the allegiance

of an individual. The examples given in evidence by George

Crimarco are clear.

31. Under United States law an applicant for a United States passport

must satisfy the Secretary of State that they owe allegiance to the

United States before a passport can be issued. It follows then that

the issuing of a United States passport to that applicant is an

acknowledgment and recognition of allegiance by the United

States, that the applicant owes allegiance to the United States.

32. Another example of the foreign state or power acknowledging

allegiance of the concerned person is by the conferment of

citizenship. When Mr. Vaz acquired U.S. citizenship by derivation

pursuant to Section 301 (a) (7) of the Immigration and Nationality

Act 1952, the United States by operation of its law acknowledges

and recognizes that Mr. Vaz owes allegiance to the United States.

The fact that Mr. Vaz chose to keep his citizenship is an

acknowledgment of that allegiance owed to the United States by

virtue of the status of his citizenship.

33. It is submitted that a person may fall under an acknowledgment of

allegiance by performing not only formal positive acts but also may

make an informal acknowledgment. In so far as an informal

32 453 U.S. 280

acknowledgment is concerned, it is submitted that a person can

“confess” “acquiesce in” or “”own as genuine” an existing

allegiance without doing anything. In keeping with the meaning of

the word acknowledgement the failure to renounce/disavow the

existing allegiance is an admission, recognition, acceptance,

acknowledgment and confession of that allegiance.

34. Deane, J in Sykes v Cleary at pg. 127 in looking at section 44(1) of

the Australian Constitution said : 33

‘is under any acknowledgment of

allegiance, obedience, or adherence to a

foreign power’) involves an element of

acceptance or at least acquiescence

on the part of the relevant person34

(my emphasis).

35. It is to be noted that in section 44(1) of the Australian Constitution

the words “under any acknowledgment of allegiance’ is used, as it

is in the Jamaican Constitution. Deane, J at pg. 127 in interpreting

the words “any acknowledgment of allegiance” said further:

“An Australian-born citizen is not

disqualified by reason of the second limb

of s44 unless he or she has established,

asserted, accepted, or acquiesced in,

the relevant relationship with the

foreign power (my emphasis).35

36. It is clear then that the failure to disavow/renounce the allegiance

is in effect an act of acknowledgment of allegiance. It is a

conscious and voluntary decision by the individual to keep that

bond between himself/herself and the sovereign. The holding by

the Appellant of a United States passport which he acquired 33 Nile v Wood (1986) 167 CLR 133, 140 . 34 Sykes v Cleary (No 2) (1992) 176 CLR 77, 35 Sykes v Cleary (No 2) (1992) 176 CLR 77.

(pursuant to United States law) because he owed allegiance to the

United States, carries with it the duties and obligations of

allegiance.

37. The Appellant, Voluntarily (by virtue of his own act), made the

conscious decision not to renounce thereby acknowledging,

accepting and acquiescing in the allegiance he is under by virtue of

his citizenship. The Appellant’s testimony in the court below was

that he knew he could renounce his citizenship but chose not to.36

38. The importance of renouncing the foreign citizenship is clearly

underscored in the Grenadian case of Spencer v Smith37. In that

case, despite the fact :

1 that Yearwood obtained his Canadian

citizenship by naturalization,

2 had made the necessary application

under Canandian law to renounce his

Canadian citizenship38

The Grenadian Court still held that Yearwood was still under an

acknowledgment of allegiance to Canada as he had not effectively

completed the renunciation process, he having failed to submit a

required document to the Canadian High Commission;39 as a result

he was not qualified.

39. What is clear from Smith and Spencer is that despite Yearwood’s

(apparent intention) to divest himself of Canandian citizenship by

renouncing same, this was not taken into consideration by the

Court. What the Court wanted to see done and required was that

the formal ties were severed, failing which it was the Court’s view

that Yearwood was not qualified to be a Senator.

36 Evidence of Daryl Vaz, Transcript of Notes of Evidence, Record of Appeal Vol. 2- 282-283 37 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003 38 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003, 2 39 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003, 2

40. A formal acknowledgment of allegiance entails some positive act.

These positive acts include but are not limited to the holding of,

applying for, renewing of and the travel on a foreign passport40,

the taking of an oath of allegiance to a foreign state or power and

describing yourself in official documents as a citizen of a foreign

state41. It is to be carefully noted that even decisions of the United

States Supreme Court hold that the travel on a passport is an

acknowledgment of allegiance by the person so travelling42

41. The case of Joyce v DPP43 is most instructive. The House of Lords

said that the mere holding of a British passport by Joyce (albeit

obtained by misrepresentation and by an alien) was enough to put

him under a duty of allegiance to the Crown. The Court said :

“But the possession of a passport by

one who is not a British subject gives

him rights and imposes upon the

sovereign obligations which would

otherwise not be given or imposed.”44

42. Joyce’s situation is different to the Appellant, but not as clear.

Joyce misrepresented that he was a British subject in order to get

the passport and he was also an alien; the Court placed no

relevance on this. Lord Jowitt LC said:

“The question is not whether he

obtained British citizenship by obtaining

the passport, but whether by its receipt

he extended his duty of allegiance

40 Joyce v DPP [1946] AC 347 41 Gerard Carney, ‘Foreign Allegiance: A Vexed Ground of Parliamentary Disqualification (1999) 11(2) Bond Law Review 245

42 Blumen v Haff 78 F 2nd 833 and Action S.A. v Deltamar 951 F 2nd 504 (Record of Appeal volume 4)

43 [1946] AC 347 44 Joyce v DPP [1946] AC 347, 369

beyond the moment when he left the

shores of this country. As one owing

allegiance to the King he sought and

obtained the protection of the King for

himself while abroad.”45

The Joyce case is authority for the proposition that the mere

holding of the passport puts a person in the status of being under

an acknowledgment of allegiance to the sovereign, notwithstanding

that the passport was wrongly acquired or that the person is an

alien. Joyce was under an acknowledgment of allegiance by the

mere possession of the passport.

43. In the instant case there is no doubt having regard to United States

law46 and the Joyce case that Vaz was, like Joyce, under an

acknowledgment of allegiance to the United States (a foreign

power or state) by the mere possession of the United States

passport.

By virtue of his own act

44. The words by virtue of his own act clearly denote a voluntary act or

a voluntary acceptance of the allegiance by the concerned person.

A positive act is an acknowledgment of allegiance; however this

positive act is also indicative of the existence of the allegiance

being voluntary47. In much the same way the failure to disavow or

renounce that foreign allegiance of which the concerned person is

45 [1946] AC 347 at 370. 46 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 228 and Evidence of George Crimarco,Transcript of Notes of Evidence, Record of Appeal Vol. 2, - 228, 325-327

47 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003 and Chaitan v A-G, Trinidadian Court of Appeal, 31 July 2001

aware is also an acknowledgment of allegiance by the concerned

person who accepts, concurs in or acquiesces in that allegiance48.

45. The clearest example of a positive act of acknowledgment of

allegiance is the voluntary acquisition of foreign citizenship. The

cases of Spencer v Smith, (Antigua) and Barbuda and Chaitan v A-

G, (Trinidad) 49 are illustrations close to home.

46. In Spencer v Smith, the court was faced with the following facts:

the Respondent had obtained Canadian citizenship by naturalization

(having lived and worked in Canada for a period of time) and had

not taken all the necessary steps reasonably required to renounce

his foreign citizenship prior to his appointment to the Senate. The

Respondent did however take steps to renounce his Canadian

citizenship, although he had failed to submit all the required

documentation in support of his application.50 As a result the court

found that the Respondent was not qualified to be appointed a

Senator at the time of his being appointed a Senator.

47. Section 30(1) (a) of the Constitution of Antigua and Barbuda is in

pari materia with section 40(2) (a) of the Jamaican Constitution.

Mitchell, J of the Antigua and Barbuda High Court of Justice

interpreted section 30(1) (a) as follows:

“The words of the constitution

concerning qualification to sit in the

Senate are clear and unambiguous. A

person who by his own act is under any

acknowledgment of allegiance to a

foreign power or state is not qualified to

be appointed as a Senator. The law of

Canada in renouncing Canadian

48 Sykes v Cleary (No 2) 176 CLR 77 49 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003 and Chaitan v A-G, Trinidadian Court of Appeal, 31 July 2001 50 Spencer v Smith ,Antigua and Barbuda High Court of Justice, 23 June 2003, at pg. 2

citizenship is equally clear and

unambiguous. He must make application

supported by the necessary

documentation before he can

reasonably expect to receive his

Certificate of Renunciation of Canadian

citizenship. Mr Yearwood’s earlier

unilateral effort at renouncing Canadian

citizenship was ineffective. While Mr.

Yearwood may no longer be so

disqualified, the relevant time for the

application of the section is at the time

the appointment was made. At the time

the appointment was made he was not

qualified to have been so appointed. “

48. Spencer v Smith then supports the proposition that positive acts of

acknowledgment of allegiance are clear indications of

voluntariness. However, it also stands for the proposition that if

one is aware of the allegiance then unless one renounces it, the

keeping of that allegiance is a voluntary act, in much the same way

the renouncing of the allegiance is a voluntary act. The concerned

person voluntarily decides to keep it or voluntarily decides to

renounce it.

49. Mitchell, J in Spencer v Smith relied on the case of Chaitan v A-G(

another case wherein the Respondent acquired Canadian

citizenship) in examining section 30(1) (a) of Constitution of

Antigua and Barbuda (which is identical to section 40(2) (a) of the

Jamaican Constitution), with section 48(1)(a) of the Constitution of

Trinidad and Tobago. The Trinidadian provision says:

No person shall be qualified to be

elected as a member of the House of

Representatives who:

is a citizen of a country other than

Trinidad and Tobago having become

such a citizen voluntarily or is under a

declaration of allegiance to such a

country (emphasis added).

50. It is to be observed that in so far as the Trinidadian constitution is

concerned the word voluntariness is apparently limited to the

acquisition of foreign citizenship. However, under the same

constitution you are not qualified to be elected if “under a

declaration of allegiance to such a country”. A citizen is always

under a declaration of allegiance to the country of his citizenship;

as a result the Trinidadian Constitution like the Jamaican

Constitution affects qualification once the concerned person is a

citizen of a foreign country, whether such citizenship was

voluntarily acquired or not.

51. The words by virtue of his own act can also be satisfied by the

failure to act. That is, in accepting, concurring in and recognizing

the foreign citizenship for example. Michael Pryles, in his article

entitled ‘Nationality Qualifications for Members of Parliament’

states:

“The element of voluntariness can be

demonstrated by the person concerned

concurring in the possession of the

foreign nationality. This can be shown in

a number of ways. If the foreign state

permits its nationals to divest

themselves of their nationality, a failure

to do so could demonstrate that the

holding of the foreign nationality is

voluntary51

52. Sykes v Cleary (No 2)52 and Sue v Hill 53 adopts this approach.

Section 44(1) (d) of the Australian Constitution does not contain

the words ‘by virtue of his own act’. However, in Sykes v Cleary (No

2) Deane J said the words ‘acknowledgment of allegiance,

obedience, or adherence to a foreign power’ has an ‘element of

acceptance or at least acquiescence on the part of the relevant

person’.

53. In Sykes v Cleary, Deane J recognised that while the words by

virtue of his own act were not in the Australian Constitution but the

mental element of being by his own act was implicit. Deane, J

stated :

“ In conformity with the purpose of the

sub-section, the second limb should, in

my view be construed as impliedly

containing a similar mental element with

the result that it applies only to cases,

where the relevant status, rights or

privileges have been sought, accepted,

asserted or acquiesced in by the

person concerned. 54“ (my emphasis)

54. The facts in Sykes v Cleary were that the concerned persons did

not voluntarily acquire the foreign citizenship. On this point Deane

J said:

51 Michael Pryles, ‘Nationality Qualifications for Members of Parliament’ (1982) 8 Monash University Law Review 163, 174. 52 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ), 113 (Brennan J), 128 (Deane J), 131 (Dawson J), and 139 (Gaudron J). 53 Sue v Hill (1999) 199 CLR 462 at, for example, 529 (Gaudron J). 54 176 CLR 77, 127

“Where the relationship with the foreign

power existed before the acquisition (or re-

acquisition) of Australian citizenship … what

will be involved is not the acquisition or

establishment, for the purposes of s 44, of

the relevant relationship with the foreign

power but the relinquishment or

extinguishment of it.”55

Deane J said, said further:

‘the qualifying element which must be read

into the second limb of section 44(i) extends

not only to the acquisition of the disqualifying

relationship by a person who is already an

Australian citizen but also to the retention of

that relationship by a person who has

subsequently become an Australian citizen

will not be within the second limb of section

44 (i) if he or she has done all that can

reasonably be expected of him or her to

extinguish any former relationship with a

foreign country.” 56

55. Sue v Hill provides another example.57 The facts in that case was

that a Senator who was a dual Australian–UK citizen (by UK birth)

had, as an adult, renewed her UK passport, which was current at

her nomination and election. She was deemed not qualified on the

basis that her renewal of the passport was an acknowledgement of

allegiance to the U.K . This case is similar to the instant case, and

Vaz, like the Senator, as an adult, acquired and /or renewed a

55 176 CLR 77, 127. 56 176 CLR 77, 128. 57 (1999) 199 CLR 462.

United States Passport. Vaz however travelled on his passport,

there is no evidence in Sue v Hill of any travel on the passport.

56. The Australian High Court addressed the issue of a candidate who

had inherited citizenship by reading into the constitutional provision

the requirement that candidates take all reasonable steps to

renounce their foreign citizenship, as far as the foreign country’s

laws allow.58

57. It is submitted that the same approach that the Australian courts

have taken is applicable to the Jamaican Constitution. This is clear

when the relationship between section 40(2) (a) and section 41(d)

is examined (see paragraph 20 -22 supra.)

58. As discussed at paragraph 20-22 above, section 41(d) of the

Jamaican Constitution mandates ( by using the word shall) that the

seat of a Member of either House shall become vacant if the

Member ‘concurs in or adopts any act done with the intention that

he becomes a subject or citizen of a foreign power’.

59. Section 41(d) appears to be wider than section 40(2) (a) because it

disqualifies a Member if he concurs in or adopts any act done with

the intention that he shall become a foreign citizen; but in fact it is

not wider.

60. In interpreting the constitutional provisions, unless the phrase ‘by

virtue of his own act’ in section 40(2) (a) means concurs, adopts,

the situation could arise where a candidate is qualified under

section 40(2) (a) at the time of nomination but would then have to

vacate his seat under section 41(d) after he is a sitting Member of

Parliament. Also could the Constitution really be saying that you

can sit in the house of Representative if you owe allegiance to a

foreign state provided that that allegiance exists prior to your

election? Interpreting ‘by virtue of his own act’ as including ‘failing

to take all reasonable steps necessary to divest oneself of foreign

58 See, for example, 199 CLR 462 at 529 (Gaudron J).

nationality’ avoids these absurd results; which is clearly contrary to

the intent and policy of the constitutional provisions?

61. The Appellant in his Grounds of Appeal 59 claims that the provisions

of Section 40(2)(a) of the Jamaican constitution are not applicable

to him, because he having obtained his United States citizenship

not by virtue of his own act but by operation of law through his

mother. The Appellant is attempting to convince this court that it is

the establishment by the concerned person of the foreign

citizenship which creates the prohibition.

It is submitted that this approach is wrong for three (3) reasons.

62. Firstly, the approach ignores the authorities and the application by

the authorities of similar constitutional provisions (see supra.)

Secondly, no where in Section 40(2)(a) does the constitutional

provision speak to the establishment of the foreign citizenship as

being the sin qua non of causing the person to run afoul of Section

40(2)(a). Most importantly an application of the Appellant’s

interpretation would lead to outrageous results and defeat the

intent and purpose of the constitutional provisions on qualification

for membership to the House of Representatives. For example,

under the Appellant’s erroneous interpretation of Section 40(2)(a)

the following situation could occur. Vaz having obtained citizenship

through his mother ( not by virtue of his own act on their

interpretation) and being a person who owes the duties of

allegiance to the United States ( a fact admitted to in evidence by

him)would be qualified to be elected. However, Mr. X, who

obtained citizenship through naturalization (and owing the same

duties of allegiance to the United States as Vaz) would not be

qualified to be elected because he is by virtue of his own act under

an acknowledgment of allegiance. So that, in effect there would be

a person (Vaz) sitting in the House of Representatives who has a 59 Record of Appeal pg,17

divided loyalty to both the United stets and to Jamaica. This is

clearly in derogation of the constitutional provisions and of their

intent and purpose.

63. The Learned Chief Justice herself gave a slightly erroneous

interpretation of the words by virtue of his own act. The error the

Chief Justice made was to give a narrow meaning to the said

words. The Learned Chief Justice said :

“If he had not renewed his passport but

nevertheless retained his American

citizenship in such a case there could

have been no doubt that he had

obtained American citizenship

involuntarily and no question of

disqualification could have arisen “60

64. It is submitted that the Chief Justice interpretation is flawed for

several reasons. Firstly, it ignores the application by the authorities

of similar constitutional provisions (supra).

65. Secondly, when the Chief Justice says “If he had not renewed his

passport but nevertheless retained his American citizenship in such

a case there could have been no doubt that he had obtained

American citizenship involuntarily “. She has made an error in that

a passport does not give rise to nor create citizenship; however

citizenship (or at least the owing of allegiance) is a pre-requisite for

a passport. So that, a person may be a citizen of a country and not

hold a passport for that country. The person would still owe duties

and obligations of allegiance to that country. However, a person

cannot hold a passport for a country unless he is a citizen of that

country.

66. The third reason the Chief Justice is wrong is because an

application of her interpretation would lead to outrageous results. 60 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 33.

For example, under the Chief Justice’s erroneous interpretation of

Section 40(2) (a) the following situation could occur. Vaz being a

citizen of the United States (and owing duties and obligations of

allegiance to the United States) could refrain from obtaining and/or

renewing his United States passport and as a result (under the

Chief Justice’s interpretation) would be qualified to be elected.

However, Mr. X, being a citizen of the United States and having

renewed his passport would not be qualified to be elected (under

the Chief Justice’s interpretation) because he is by virtue of his own

act under an acknowledgment of allegiance. So that, in effect there

would be a person (Vaz) sitting in the House of Representatives

who has a divided loyalty to both the United States and to Jamaica.

This is clearly a derogation of the constitutional provisions and of

their intent and purpose. What message is the Chief justice

sending, it could never be that you can be a United States citizen

and serve in the House of Representatives so long as you don’t

have a United States passport!

67. It is submitted that under Section 40(2)(a) of the Jamaican

Constitution a person is not qualified if he is a foreign citizen, if he

has taken positive acts that denote allegiance to a foreign power or

state, and/or if he fails to renounce any foreign citizenship he may

have regardless of how same was acquired.

68. The evidence relevant to this issue as found by the Chief Justice

are summarised as follows :

i. Vaz was born in Jamaica of a United

States citizen mother and a Jamaican

father.

ii. Vaz’s mother registered his birth at the

United States Embassy. This registration

under Section 301(b) of the United

States Immigration and Nationality Act

made Vaz a United States citizen.

iii. Vaz was added to his mother’s United

States passport when he was four (4)

years old. In 1978 when Vaz was 14

years old, his mother applied for a

United States passport for him.

iv. Thereafter, as an adult Vaz applied and

received a renewal of his passport 3

times: 31 October 1984, 21 January

1994, and 5 May 2004.

v. Vaz used his United States passport in

various overseas travels.

vi. Vaz signed Jamaican Immigration forms

and held himself out as a United States

citizen and registered as a United States

citizen at an American College in Miami.

vii. Vaz in his evidence said he never

renounced his United States citizenship

although Section 349 (a)(5) of the

Immigration and Nationality Act 1996

(US) provides a simple mechanism for

renouncing same, and he admitted in

his evidence that he was aware that he

owed a duty of allegiance to the United

States.

viii. George Crimarco the witness called by

Vaz on United states immigration law

agreed that a person who makes an

application for a United states passport

and signs the passport form was

affirming his allegiance.61

ix. Crimarco further agreed that all United

States citizens owe allegiance to the

United States and that only persons who

owe allegiance to the United States can

obtain a United States passport. He

cited United States statute USC 213.62

x. Crimarco on the 28th of January

testified that the “applicant of a US

passport who signs the statement on

the passport forms affirms that he has

allegiance to the US “. It is important to

note that to the question “would you

agree that a person who makes this US

application form truthfully and signs

oath is acknowledging his allegiance to

the US, by making a passport

application?” , Mr. Crimarco answered ”

I would say they are affirming their

allegiance, yes”.

xi. Crimarco also testified that under U.S.

case law a United States Passport is

proof of identity. He also agreed that it

is also evidence of allegiance. He agreed

that it is a request addressed to a

foreign power that the bearer of that

Passport may pass safely and freely. He

agreed that under U.S. law a passport is

61 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 22 62 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 22

by its character a political document by

which the bearer of the Passport is

recognized in foreign countries as at

least a U.S. National.

Xii. Crimarco also gave evidence about the

United States statute U.S.C. Section

1481. He said this statute sets out the

renunciation process under United

States law. He went through the process

one would have to go through to

renounce U.S. citizenship if one lived

overseas.

69. It is submitted that Vaz, by virtue of his own act was under an

acknowledgment of allegiance to a foreign power or state. That

foreign power or state is the United States, a fact not in dispute in

this case. He underscored his acknowledgement of allegiance by

applying for an obtaining a United States Passport, on numerous

occasions. He further, by virtue of his own act, a voluntary act,

acknowledged his allegiance by utilizing the passport to travel to

various countries thereby seeking and benefiting from the

protection afforded him by the United States of America in return

for his allegiance. The fact of his utilizing the passport as a means

of travel is a matter of public record in Jamaica.63 After citizenship

was conferred on him by the United States of America (whereby

the United States acknowledged Vaz’s allegiance). Vaz recognized

and accepted that by virtue of being a citizen he was under an

acknowledgment of allegiance to the United States, a foreign power

especially when he failed to renounce/disavow that allegiance by

renouncing his United States citizenship.

63 Record of Appeal, Volume 4, Exhibits 3, 5A and 5B, and 14 Pages 41-43. 46, and 89

70. It is submitted that as a result Vaz was on Nomination Day, August

7th, 2007 not qualified to be elected to the House of

Representatives because :

i. because at the time of nomination, he

was a United States citizen,

ii he failed to renounce his United States

citizenship thereby voluntarily choosing

to remain under an acknowledgment of

allegiance to the United States,

iii prior to Nomination Day he held a

United States passport,

iv prior to Nomination Day, he applied for,

renewed, and travelled on his United

Is the Respondent Dabdoub, entitled to be

returned as the duly elected Member to the House

of Representatives for the constituency of West

Portland?

This issue will comprise of two (2) sub-issues,

1. What was the effect of the

Appellant Vaz’s nomination

having regard to the fact that

he was not qualified to be

elected pursuant to the

Constitution and

2. Was there sufficient due notice

to the electors of the

constituency of the facts

causing Vaz’s disqualification?

_______________________________________________

71. The following section is based on the assumption that this court will

find that the Appellant Vaz was in breach of the constitution of

Jamaica.

What was the effect of the Appellant Vaz’s

nomination having regard to the fact that he was

not qualified to be elected pursuant to the

Constitution?

_______________________________________________

72. Section 39 and Section 40(2) (a) of the Constitution of Jamaica sets

out the qualification for election to the House of Representatives.

The relevant words used are:

In Section 39 - “…..shall be qualified to be appointed as a

Senator or elected as a member of the House of

Representatives….. “

And in Section 40 No person shall be qualified to be appointed

as a Senator or elected as a member of the House of

Representatives who.’

73. The operative words in the constitutional provisions relevant to this

case are “qualified ‘and ‘to be elected. “‘ The word qualified

means possessing the legal power or capacity, or status to do

something. The Oxford Dictionary gives the following meaning to

disqualified “to bar someone from a competition because he or she

has broken a rule or is not qualified” and the following to qualified

– to have the right or competence to do something. In the instant

case that something is “to be elected”. The use of the word

qualified indicates clearly that a person not qualified for election is

barred from the election process.

74. It is submitted then that a person who fails to meet the

qualification status of Sections 40(2) (a) and Section 39 of the

Jamaica constitution is not able to be elected. As no one can be

elected unless they are nominated, and nomination is the process

of putting forward duly qualified candidates 64 it follows, that if one

is not qualified to be elected then one is not qualified for

nomination. The Learned Jurist Lewis, CJ said in Nedd v Simon65:

“ …nomination is a legal prerequisite to

election, and a valid nomination, in the

sense that the person nominated is

legally qualified to be nominated as a

candidate , is a legal pre-requisite to his

being validly elected.”

75. A closer look on the Prescribed Nomination Form66 clearly indicates

the statutory intention and purpose of ensuring that only persons

qualified for election pursuant to the Jamaica Constitution are

nominated.

76. The Representation of The People Act clearly sets out that only

persons qualified for election to the House of Representatives are

to be nominated67. The Nomination Paper begins with a

certification by the persons nominating a candidate. That

certification is that the person being nominated is qualified under

Section 39 of the Constitution of Jamaica. It is to be remembered

that Section 39 is subject to Section 40(2) (a) of the Constitution.

64 Representation of the People Act , Section 23 (2)

65 Nedd v Simon(1972) 19 WIR 347

66 See pg 102 of the Record of Appeal 67 Representation of the People Act Section 23(2)

As a result if a person is not qualified under Section 39 or Section

40(2) (A) of the Constitution of Jamaica then he would not be

eligible for nomination.

77. Section 23(2) of the Representation of the People’s Act provides:

“Any ten electors qualified to vote in a

constituency in which an election is to

be held may nominate any person

qualified to be elected to the House

of Representatives as a candidate……..in

subsection(1). “68

The words of the provision clearly indicate that only persons qualified

to be elected can be nominated. The section stipulates that class

of person eligible for nomination. Vaz at the time of nomination

was not qualified to be elected. It is to be carefully noted that

Section 23(2) of The Representation of the People Act does not

refer to persons as candidates. This Act only refers to persons as

candidates after they are deemed qualified for election (See Section

23(2) of The Representation of the People Act), that is, after they

are properly nominated,

Vaz was not qualified pursuant to the constitution as a result his

nomination was Ipso facto, null and void.

78. It is submitted then that pursuant to Sections 39 and 40(2)(A) of

the constitution and pursuant to the Representation of the People

Act, the nomination of the Appellant Vaz was null and void and of

no legal effect. Thus the Learned Chief Justice was correct when

she held that the Appellant’s “nomination on that day is invalid, null

and void and of no legal effect “.

79. The nomination of Vaz being of no legal effect, it then follows that

only persons qualified for election who were duly nominated on

nomination day are part of what remains of the election process, 68 Representation of the People Act Section 23 (2)

that is the taking of the poll. The only person who was qualified to

be elecabated and who was duly nominated was the Respondent,

Dabdoub. As a matter of law, as there is only one such qualified

candidate who was duly nominated then he is the only person

eligible to be returned to the House of Representatives as he was

the only person who was in fact nominated.

80. Section 27 of the Representation of the People Act makes provision

for the scenario whereby only one person is duly nominated.

Section 27 states in relevant part :

“Whenever only one candidate has been

nominated in the time fixed for that

purpose, the Returning Officer shall

forthwith make his return to the Chief

Electoral Officer…………that such

candidate is duly elected for the said

constituency……..to the person elected.”

81. In Stewart v Newland and Edman (1972) 69, Rowe, J (as he

then was) held that despite S 676 of the Civil Procedure Code, he

had no jurisdiction to extend the time for service of the Petition as

the requirements of the Election Petitions Act were mandatory and

must be strictly complied with. The Representation of the People

Act is the statute which concerns elections in and the procedures

therein. It is submitted that in keeping with the approach of Rowe,

J in the Stewart case, this Court should also strictly construe the

provisions of the Representation of the People Act.

82. Further Section 27 (2) it is submitted mandates by use of the word

shall that the Returning Officer has the power to reject a

nomination which does not comply with the requirements of the

Representation of the People Act. The relevant section reads as

follows:

69 12 JLR 847

“The returning officer shall include in his

return to the Chief Electoral Officer a

report of his proceedings and of any

nomination proposed and rejected for

non-compliance with the requirements

of this Act.”

83. Among the requirements of the act is that only person qualified for

election are to be nominated (supra.). As a result the nomination of

Vaz would be contrary to the provisions of the act.

84. In Nedd v Simon70 in a similar situation the Court refused to return

the only duly qualified candidate on the approach taken above. The

reasons the Court gave are firstly,:

“This section is obviously intended to

apply to a situation where after the

expiration of three hours from the time

appointed for receiving nomination

papers,…………………to declare such

person elected”.

In the instant case the situation is different in that the

Representation of the People Act provides for a return by

acclamation by the Returning Officer, if only one candidate is

nominated within the time set for nomination. This must be taken

to mean a valid and legal nomination. As Vaz’s nomination in this

case was not legal and valid, it follows that he was not nominated

and as a result the Respondent should have been returned by

acclamation.

85. The second reason the court gave in Nedd v Simon why they did

not adopt the approach outlined above is that “a valid nomination

includes the case of a person who is disqualified in fact, but whose

disqualification is not apparent on the Nomination paper “.71

70 Ned v Simon (1972) 19 WIR 347

71 Ned v Simon (1972) 19 WIR 347

It is submitted that the facts in the instant case fall within the

position outlined in Nedd v Simon that is the Appellant’s

disqualification was apparent on the nomination paper.

86. A closer look on the Prescribed Nomination Form72 clearly indicates

the statutory intention and purpose of ensuring that only persons

qualified for election pursuant to the Jamaica Constitution are

nominated. There is an explicit provision on the face of the

nomination form which requires persons and the Candidate to

certify that they are qualified pursuant to the Constitution of

Jamaica, specifically the provision which is the subject of this

Appeal. But for the misrepresentations of the certifying persons

who nominated the Appellant and the misrepresentations of the

Appellant, the Returning Officer would not have accepted the

nomination of the Appellant. The court is asked to examine these

facts against the background that the Appellant’s United States

citizenship was the subject of great public debate and discussion

and was brought to the attention of the Returning Officer.

87. Respondent Dabdoub did in fact on nomination day advise the

returning Officer that Vaz was not qualified to be elected by virtue

of the fact that he was an American citizen. The qualification of Vaz

was also the subject of widespread public discussion on radio. The

question for this Court to decide is whether this having been

brought to his attention what was the duty of the Returning Officer.

88. It is submitted that the Respondent Dabdoub, being the only

candidate qualified to be elected and the only candidate who was

duly nominated, is as a matter of law and by operation of the

Representation of the People’s Act and the constitution of Jamaica

to be returned as the duly elected Member to the House of

Representatives.

89. This is however not the only ground upon which we submit that

Dabdoub should be returned to the House of Representatives. It is 72 See pg 102 of the Record of Appeal

submitted that Dabdoub having served Notice of and the facts

given rise to Vaz’s disqualification be so notorious and known to the

electors that the Respondent should also as a matter of law be

returned to the House of Representatives.

Was Notice of Disqualification given to the electors of the

constituency and the legal implications thereof.

________________________________________________

90. It is settled law throughout Parliamentary Democracies the world

over that the mere receipt by a candidate not qualified for election

of the highest number of votes at an election, that candidate does

not become the elected member.

91. The Appellant is the court below attempted to argue that the

application of this law “would fly in the face of the implicit right of

the citizens of Jamaica to participate in the democratic process and

to have his votes counted.73

92. The right to vote is a derivative of any democratic system of

government. However, it is to be noted that a democracy is not

comprised solely of the right to vote. If this was all that a

democracy entails what would exist would be mob rule and

anarchy. Rather, the right to vote being one of the derivatives of a

democracy is not exercised in a vacuum. The right to vote is

exercised within the framework of systems and laws to preserve

the democratic process and the rights of citizens. One of the

systems and laws within which the right to vote to is exercised is

the votes thrown away rule.

93. The votes thrown away law, mandates that where a candidate

successful at the polls is not qualified for election or is disqualified 73 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 40

then the qualified candidate with the next highest amount of votes

is to be returned once certain requirements are met 74 . These

requirements are as summarized as follows:

There is a candidate with a pre-existing facts, which facts are such

that the candidate is not qualified for the election, the facts which

give rise to the lack of qualification must exist prior to and on

nomination day .This disqualification prevents the candidate from

nominating and contesting the election. These facts must be known

by the electorate or brought to their knowledge. However, the

electorate need not know the consequences of these facts.

94. When these requirements are met, the votes cast for the candidate

with the highest number of votes are wasted or thrown away;

these votes are not legal votes and as a result cannot be

counted. As a result the candidate with the highest number of

legal votes is returned the winner.

95. In making a determination on the facts which created the

incapacity or disqualification, the authorities say that there are two

(2) types of factual situations which give rise to incapacities. These

are referred to as conduct incapacities and status incapacities75.

This is one of the areas where the Learned Chief Justice fell into

error, whereby she wrongly classified the Appellant’s incapacity as

being one of conduct rather than one of status.

96. The first incapacity the authorities address is incapacity as a result

of the conduct of the candidate. This is incapacity based on

candidate offence or misconduct during the campaign and at or

around the time of nomination. These cases normally are never

clear cut, so that the actual incapacity is not clear until there is

74 Stephen Mattison v John Junor (1977) 15 JLR 194, Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008),Peiris v Perera (1969) 72 New Law Reports of Ceylon 232, Drinkwater v Deakin (1874) 9 LRCP 626, Re Parliamentary Election for Bristol South East, In re [1964] 2 QB 257, Nedd v Simon (1972) 19 WIR 347 75 Drinkwater v Deakin (1874) 9 LRCP 626, County of Tipperary (1875) 3 O’Malley and Hardcastle 19, Re Wood (1988) 62 ALJR 328.

some pronouncement by a court. One example is an allegation of

bribery against a candidate, if proven then the candidate is in fact

disqualified, however only a court could make a determination that

the candidate did in fact engage in for example, bribery during the

election and as a result is disqualified. It is to be noted however

that the incapacity based on conduct would apply only to the

current election. If the candidate was convicted of bribery during a

first election, his status at a subsequent election is now that of a

person not qualified by virtue of the fact of his prior conviction (

whereby his status as a convicted felon renders him not qualified

from being elected)76

97. The second class of incapacity the authorities address are

incapacities arising out of facts which existed before nomination

day affecting the status of the candidate. Halsbury’s Laws of

England and the authorities 77states that these incapacities

generally arise out of a candidate’s nationality, age, gender, and

prior criminal convictions.78 It is submitted that in the instant case

it was Vaz’s status as a United States citizen under any

acknowledgment of allegiance that caused him not be qualified to

be elected to the House of Representatives and as a result not

eligible for nomination.

98. If the facts which give rise to the disqualification are known by the

electorate then the votes thrown away law is applicable. It does not

matter how the facts have come to their knowledge. If the facts

are notorious no notice need be given. It is not necessary that such

notice be given by the opposing candidate. The case of Peris v

Perera states that the electorate need not have actual knowledge

of the facts; they can be presumed to have knowledge of the facts

76 Drinkwater v Deakin (1874) 9 LRCP 626

77 Drinkwater v Deakin (1874) 9 LRCP 626

78 Halsburys Laws of England Vol 15(4) para 835

giving rise to the disqualification in certain situations79. The

situations where knowledge can be presumed are where the facts

are notorious or where for example there was media publicity and

where posters were displayed.

99. While it is required is that electors know of the facts giving rise to

the disqualification they need not know the legal consequences of

those facts, as ignorance of the law is no excuse80. To be

successful on this ground a litigant need only show that the

electors knew of the facts giving rise to the disqualification,81 that

is in this case that Vaz was a United States citizen and Vaz was also

the holder of a United States passport. Where Vaz is a citizen of the

United States the voters can be presumed to have knowledge that

he owes allegiance to the United States. Where Vaz is the holder of

a United States of America passport the Voter can be presumed to

have knowledge that he, being of approximately 44 years of age,

must have applied for it or must have applied to renew it.

100. The Learned Chief Justice accepted that the principle of votes

thrown away is “established in the law of Jamaica and was

considered in the case of Stephen Mattison v John Junor “82.

She went on however to erroneously hold that the principle of

votes thrown away on an application to the facts did not apply in

the instant case, and as a result ordered a by-election.

79 See also Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79

80 Nedd v Simon (1972) 19 WIR 347 , Wakefield Case (1842) Barron and Austin’s Election Cases 270,

81 Parliamentary Election for Bristol South East, In re [1964] 2 QB 257,. Drinkwater v Deakin (1874) 9 LRCP 626 , 82 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 36

101. The Chief Justice came to the aforementioned conclusion because

she found that “there was no sufficient notice based on facts which

are clear, definite and certain”.83

102. An examination of the facts as it relates to notice and as found by

the Chief Justice shows that regrettably, the Learned Chief Justice

erred on the application of the facts to the law in the instant case.

103. The facts as found by the Chief Justice on this issue were that the

electors had notice by :

a. Notice of Disqualification was widely

publicized in the constituency of West

Portland by house to house visits.

b. Notice of Disqualification was widely

publicized in the constituency of West

Portland at public meetings,

c. Notice of Disqualification was given

through discussions in the media, in the

news and on talk shows.

d. Notice of Disqualification was given by

distribution of the colour Posters

throughout the constituency.

e. Notice of Disqualification was given by A

Fixed Date Claim Form which

particularized the Appellant’s

disqualification was filed and received

widespread publication in the media.

f. Notice of Disqualification was also given

by way of a formal document entitled

“Notice of Disqualification’ which

contained on back as part of the said 83 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.

Notice a Legal Opinion by Gayle Nelson,

Attorney-at-Law.

104. There was however other pieces of evidence on this issue which

the Learned Chief Justice failed to account for. This is one of the

errors she made. One of these pieces of evidence by itself is

sufficient for the votes thrown away principle to apply. This piece of

evidence is :

Petitioner’s unchallenged evidence that

the First Respondent admitted on media

talk shows to being a United States

citizen and having a United States

passport

105. Despite her own holding and the evidence which she found the

Learned Chief Justice in analyzing the votes thrown away principle

came to the conclusion that :

i. “the Notice of disqualification put out

by the Respondent merely says that Vaz

is a citizen of the United States and the

holder of a United States passport. It

does not state any act of

acknowledgment by him. Therefore it

does not satisfy the legal requirements

of being clear, definite and certain”; 84

ii. The Appellant’s acknowledgment of

allegiance is based on “positive acts by

the first respondent of applying for

renewal and travelling on his American

passport as an adult “ 85 and “ I find

that the first respondent’s qualification is

based on conduct as it was in the

Drinkwater case “ 86

iii. the facts were also in dispute because

of the press release of the Director of

Elections, as such the facts were not

“clear, definite and certain” so as to fall

within the Votes Thrown Away

principle.87

The foregoing were all errors on the part of the Learned Chief

Justice in analyzing the notice which the electorate had and in

applying the votes thrown away principle.

106. The first of these errors the Chief Justice made was when she

dismissed the Notice of Disqualification for “merely stating that Vaz

is a citizen of the United States and the holder of a United States

passport”.

107. As discussed under issue 1(supra. Para. 28 -35) an

acknowledgment can be made by the foreign State or it can come

from recognition and acceptance by the individual. The Appellant,

Vaz was under an acknowledgment of allegiance by virtue of his

United States citizenship and his United States passport. This was

the view of the Learned Chief Justice when she correctly said at

of her judgment that:

“ I hold that the words

“acknowledgment of allegiance,

obedience and adherence to a foreign

power” in section 40(2)(a) of the

Jamaican constitution are wide enough

86 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 49 87 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.

to embrace a citizen who is a subject of

a foreign power. “88

108. If this interpretation of the Jamaican Constitution is correct, as we

submit it is (see supra.), then the Notice of Disqualification

circulated by the Respondent was sufficient notice based on facts

which are clear, definite and certain. This is even more so when

one recalls that the Legal Opinion was also part of the said Notice

of Disqualification.

109. If the Chief Justice’s interpretation of Section 40(2)(a) of the

Jamaican constitution is correct there is sufficient notice to the

electorate once the Notice of Disqualification stated the fact that:

(1) Vaz was a United States citizen; and/or (2) was the holder of a

current United States passport. Those facts were stated in the

Respondent’s Notice of disqualification circulated to the electorate.

On the Chief Justice’s own finding as to the interpretation and

effect of Section 40 (2)(a) of the Jamaican constitution the Notice

did not need to state any particular act of “acknowledgment by

Vaz”, it was enough that it stated that he was a United States

citizen and the holder of a United States passport and that he was

disqualified by Section 40 (2) (a) of the Constitution of Jamaica

which states “is, by virtue of his own act, under an

acknowledgment of allegiance, obedience…………….to a foreign

power or state.”

110. Notwithstanding the foregoing the Notice of Disqualification went

further. The Notice of Disqualification also had thereon a legal

opinion89. That legal opinion went on to state that:

“ Also applying for a passport of the

foreign power or state or renewal 88 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 34 89 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 43

thereof amounts to an acknowledgment

of allegiance, obedience or adherence to

a foreign power or state which

disqualifies a person from being elected

to the house”

Regrettably the Learned Chief Justice seems to have overlooked

this important phrase as it is not recorded in her judgment as being

part of the Legal Opinion which she delivered in the said

Judgment.This phrase clearly states that the application and

renewal of a passport “amounts to an acknowledgment of

allegiance”.

111. Having regard to the Chief Justice’s own interpretation of Section

40(2) (a) of the Jamaican Constitution it is submitted that the

Notice of Disqualification met the legal requirements of stating the

facts which gave rise to the Appellant’s disqualification. The Chief

Justice was therefore wrong when she said that:

“the Notice of disqualification put out by

the Respondent merely says that Vaz is

a citizen of the United States and the

holder of a United States passport. It

does not state any act of

acknowledgment by him. Therefore it

does not satisfy the legal requirements

of being clear, definite and certain”;90

109. It is submitted that the Notice was sufficient since the voters knew

about Vaz’s United States citizenship and passport, votes for Mr.

Vaz are not legal votes, have been thrown away and the

Appellant should be returned as the Member of Parliament of West

Portland.

110. It is submitted that the Chief Justice also erred in concluding that

there was no sufficient notice on the basis that the Appellant’s

acknowledgment of allegiance is based on “positive acts by the first

respondent of applying for renewal and travelling on his American

passport as an adult “ 91 and “ I find that the first respondent’s

qualification is based on conduct as it was in the Drinkwater case

“ 92 . She went to say that “the Notice of disqualification put out by

the Respondent merely says that Vaz is a citizen of the United

States and the holder of a United States passport. It does not state

any act of acknowledgment by him. Therefore it does not satisfy

the legal requirements of being clear, definite and certain”; 93.

111. Assuming arguendo, that the Learned Chief Justice was correct in

finding that “ the first respondent’s qualification is based on

conduct as it was in the Drinkwater case “ , her conclusion, that

“there was no sufficient notice based on facts which were clear

definite and certain” was not.

112. Even if as the Chief Justice posits a positive act of acknowledgment

of allegiance was required by the Appellant, it is submitted that

there would still be on the facts before her sufficient notice to the

electorate.

113. It is a notorious fact, which every citizen–elector must be taken to

know, that a person, such as the Appellant being around 45 years

of age, who holds a United States passport( as was stated in the

Notice of Disqualification) must have applied for and renewed the

passport “issued to him” . Where facts are notorious and the issue

of the respondent candidate’s qualification subject to widespread

public discussion, no notice is needed at all.94

91 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 44. 92 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 49 93 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 45. 94 Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79; Gosling v Veley (1847) 7 QB 406, 439.

114. Notwithstanding any lack of knowledge on the part of any elector

that the Appellant did or did not apply for and renew his passport,

the legal position in Jamaica is clear. The Passport Act provides

that persons should apply for passports. As such, it is the legal

position in Jamaica that all passport holders must have applied for

same. As a result the electors must be taken to know that a holder

of a passport must have applied for and or renewed same as that is

what they would know about passports as a result of the law of

Jamaica, a law of which they are presumed to know and ignorance

of the law is no excuse.

115. The notice need not contain reference to notorious facts. It is a

notorious fact that passports do not last forever, and that the

Appellant being an adult who holds a United States passport, must

have applied for his passport. The Notice did not need to make

explicit such well-known matters: it only need “put a person of

ordinary care and intelligence on inquiry”.95

116. In any event the Learned Chief Justice even if she was right that

the Notice of Disqualification was required to state “any act of

acknowledgment by him (Vaz)” her conclusion was again wrong.

117. As discussed at paragraph 91 (supra.) the Notice of Disqualification

also had thereon a legal opinion96. That legal opinion went on to

state that:

“ Also applying for a passport of the

foreign power or state or renewal

thereof amounts to an acknowledgment

of allegiance, obedience or adherence to

a foreign power or state which

95 Parker’s Law and Conduct of Elections para 5.74; Drinkwater v Deakin (1874) 9 LRCP 626, 642. 96 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 43

disqualifies a person from being elected

to the house”

Had the Chief Justice not overlooked this phrase she most certainly

would not have been able to say about the Notice of

disqualification that “ It does not state any act of acknowledgment

by him. Therefore it does not satisfy the legal requirements of

being clear, definite and certain”;

118. The phrase in the Notice of Disqualification clearly states that the

application and renewal of a passport “amounts to an

acknowledgment of allegiance”. As such the Learned Chief Justice

was wrong when she said that the Notice merely stats that Vaz “ is

a United States citizen and holder of a United States passport. “

119. A part of the Chief Justice’s error was in her holding that the act of

renewing and travelling on a passport are acts of “conduct”.

According to her they were required to be “adjudicated upon by a

court” before they can be proved.97 In reaching this conclusion, the

Chief Justice discussed and relied on Drinkwater v Deakin.98

120. The facts in Drinkwater were that Deakin the winning candidate

had alleged committed bribery on and after nomination day. The

case stood for the proposition that the bribery committed by

Deakin did not result in votes cast for him being thrown away

although the losing candidate posted notices during the campaign

alleging bribery.

121. The court said that there was no certainty about the bribery

allegations, (they were in effect only allegations) or more

importantly their legal effect. As such, until a court adjudicates the

facts and legal consequences of the candidate’s offence or conduct,

then voters cannot be taken to “know” of the disqualifying offence.

98 Drinkwater v Deakin (1874) 9 LRCP 626.

Drinkwater involved allegations of conduct related to events after

nomination day and campaign events. In that case, voters could

not be expected to be in a position to assess allegations of

disqualification through misconduct and where the candidate’s

nomination would not be null and void; it would be the election

that would be held to be null and void and not the nomination of

the candidate. Drinkwater was clearly a disqualification based on

campaign events and conduct.

122. In the instant case, the facts are markedly different. The Appellant

being around 45 years old at the time of nomination had prior to

nomination day been a United States citizen owing that country

allegiance. He also prior to nomination day held a United States

passport. This status was in existence prior to nomination day. The

Appellant’s citizenship and constitutional status on nomination day

rendered him unqualified for nomination and election.

123. While a determination of the Appellant’s status would involve

reference to facts about him, inclusive of his action, these facts are

pre-existing facts (existing before nomination day) which rendered

him unqualified to be elected and therefore nominated, because

these facts existed prior to nomination day.

124. As a result, in the case at bar, the Appellant’s nomination was null

and void, the same situation in the Grenadian case of Nedd v

Simon99 and as found by the Learned Chief Justice in the court

below. So that, even if the Chief Justice was correct that it was the

Appellant’s conduct that caused his disqualification, she was wrong

in her conclusion; because his conduct of applying for and

renewing his passport occurred prior to nomination day.

99 Nedd v Simon(1972) 19 WIR 347

125. The authorities appreciate that a question of a candidate’s

qualification is not fact-free. Re Wood100 involves, like the instant

case, a constitutional disqualification based on foreign allegiance.

126. In Re Wood, the High Court of Australia said :

“Thus an election might have been held to

be voidable where the disqualification

arose only on a judicial finding that the

candidate has engaged in disqualifying

conduct; for example, bribery of electors:

see Drinkwater v. Deakin (1874) LR 9 CP

626. In that case Brett J. (as he then

was) said (at p 644):

"There is a manifest distinction between

an offence avoiding an election and

incapacity.If a man is incapacitated,

though at the election

in question neither he nor any elector is

guilty of a fault, the election is void.

The same distinction underlay the

decision of Mitchell J. in Crafter v. South

Australia (1981) 28 SASR 86 where her

Honour construed the statute as

conferring jurisdiction on the Court of

Disputed Returns to invalidate an election

only as from the date of its declaration of

invalidity. But a person who lacks the

qualifications required by s.16 of the

Constitution and prescribed by s.163 of

the Act cannot be a senator and is 100 Re Wood (1988) 62 ALJR 328,

therefore incapable of being chosen as a

senator. That incapacity does not flow

from the making of a judicial

declaration that he lacks the

requisite qualifications. “ ( my

emphasis)

127. The Court in Re Wood went on to say that :

“ As Senator Wood was not an

Australian citizen prior to 3 February

1988, he was not entitled to be

nominated for election as a senator:

s.163 of the Act. His election and return

could not create the legal capacity to be

a senator which s.163 denies. …… The

constitutional requirement is not

satisfied by a de facto election and

return of a candidate who does not

possess the prescribed qualifications.

……. In Vardon v. O'Loghlin [1907] HCA

69; (1907) 5 CLR 201 (at p 208) Griffith

C.J., speaking for the Court, said that

when the election of a person returned

as a senator is invalid -

"the return is regarded ex necessitate as

valid for some purposes unless and until

it is successfully impeached. Thus the

proceedings of the Senate as a House of

Parliament are not invalidated by the

presence of a senator without title. But

the application of this rule is co-

extensive with the reason for it. It has

no application as between the sitting

senator and any other claimant for the

place which he has taken, or as

between him and the electors, by

whom he was not in fact chosen."

Or, it might be added, "by whom he

could not lawfully have been

chosen.”

128. It is submitted that a Constitutional disqualification such as an

acknowledgment of allegiance is such that “The incapacity does not

flow from the making of a judicial declaration that [the candidate]

lacks the requisite qualifications”.101 There is a clear distinction in

Wood ( following Drinkwater) of an election that was “void” for the

fact that the candidate was not qualified to be elected, from an

election that is “voidable” for reason of a candidate engaging in

“disqualifying conduct; for example, bribery of electors”, as was the

case in Drinkwater.

129. The authorities clearly support our proposition that

acknowledgment of allegiance to a foreign power is such a

disqualification that once the electors have notice of same the

votes cast for the disqualified candidate are thrown away.102 Morris,

J in Tipperray said as much:

“while the Court of Common Pleas

declined to seat Mr. Deakin, in giving

illustrations and instances of cases in

which a man would be clearly disqualified,

so as to entitle his opponent to claim his

101 Re Wood (1988) 62 ALJR 328, 332.

102 County of Tipperary (1875) 3 O’Malley and Hardcastle 19. Halsburys Laws of England Vol 15(4) para

seat, one of the very instances given is

that of a convicted felon. I now come to

the question of alienage. If the other

question is clear, this one of alienage is, if

possible, clearer.” 103

130. The authorities state that there is a difference between a

candidates disqualification based on candidate offence or

misconduct around the time of nomination and the campaign,

which are inherently uncertain until a judicial ruling by an election

court; and qualification to nominate and to be elected dependent

on pre-existing facts and qualifications such as gender, prior felony,

date of birth, or dual citizenship, which are not so uncertain.

131. Notwithstanding the authorities position it is the Respondent’s view

that a reading of Section 40(2) (A) of the Jamaican constitution

makes it clear that the disqualification of a candidate under that

provision is based on a candidates status and qualification as

contrasted with disqualification based on a candidate engaging in

“disqualifying conduct; for example, bribery of electors”, as was the

case in Drinkwater.

132. It is submitted that the words used in Section 40(2) (a) of the

Constitution itself clearly denotes that the candidate’s qualification

is based on his status and not of offence or misconduct.

133. The meaning of the phrase “under an acknowledgment of

allegiance” and the word “acknowledgment” both contained in

Section 40(2)(a) of the Constitution of Jamaica supports our

position. The phrase “under an acknowledgment” denotes a

position. The word under clearly denotes a position not a conduct.

Therefore if the candidate is in a position (under) of owing

103 (1875) 3 O’Malley and Hardcastle 19, 46.

allegiance to a foreign power or state he is not qualified to be

elected.

134. The use of word “acknowledgment” in Section 40(2) (a) of the

Constitution of Jamaica also supports our position that the

candidate’s qualification is one of his status and not of offence or

misconduct. We refer the Court to the definition of

acknowledgment (see para. 26 supra.). The word acknowledges

means to concur with. The candidate cannot concur with this

allegiance unless it exists prior to his being elected. This situation

clearly speaks to the candidate’s status whereby there are certain

pre-existing facts which render him unqualified for election.

135. As such the Chief Justice was wrong when she failed to appreciate

that having found that Vaz was under an acknowledgment of

allegiance, his disqualification was of the type that once notice was

had by the electorate then the votes given for Vaz were illegal

votes and are to be thrown away.

136. It is submitted then that on this second limb of her analysis ( see

para 86 ii supra.) the Learned Chief Justice should have found that

there was sufficient notice and that the Respondent should have

been returned as the duly elected Member of the House of

Representatives.

137. The disqualification of the appellant herein arises out of a statutory

Constitutional provision. Persons are taken to know the law as

ignorance of the law is no excuse. In the Leominster 104 case, the

candidate not qualified also ran afoul of a statutory provision.

138. In that case the votes cast for the candidate were thrown away,

the court said :

104 (1819) Corbett and Daniell’s Election Cases 1.

“This principle at least, has been

established, that where the

disqualification is created by statute,

and the fact bringing the party within

the operation of the act, is

uncontradicted and notorious, a

candidate labouring under such

disqualification, is no longer eligible…”

There is no dispute here that the facts giving rise to the Appellant’s

disqualification were notorious and uncontradicted, in fact they

were affirmed by the Appellant himself. The votes cast for the

Appellant should as a matter of law be thrown away.

139. The final basis upon which the Chief Justice held that the instant

case failed to fall within the votes thrown away principle was her

reliance on the press releases of the Director of Elections. She

found that the facts were in dispute because of the press release of

the Director of Elections, as a result the facts were not “clear,

definite and certain” and therefore she could not apply the votes

thrown away principle.

140. It is submitted that the Learned Chief Justice’s reliance on this

press releases were wrong in law and that on the evidence before

her she could not have come to the conclusion she did..

141. The evidence clearly discloses that there is nothing in either of the

two (2) Press Releases which raised any dispute about the salient

facts brought to the attention of the electors. Those facts are that

whereas, Fact No. 1, Daryl Vaz was a United States Citizen and,

Fact No. 2, the holder of a United States passport he is, Fact No. 3,

is by virtue of section 40 (2) (a) not qualified to be elected. The

press Releases did not dispute the aforementioned facts. As a

result the Learned Chief Justice erred when she held that:

“having regard to the statement and

press release issued by Mr. Walker …

there was no sufficient notice based on

facts which are clear, definite and

certain, to the knowledge of the

voters…”105

142. The authorities address a situation such as that outlined above. In

Re Parliamentary Elections for Bristol South East there was a

dispute about the status of Wedgewood Benn to stand for the

House of Commons. The status which gave rise to Benn’s inability

to be qualified was his hereditary peerage The fact that Benn was

the eldest son of a hereditary peer who had died so Benn acceded

to the peerage was not disputed.

143. In the Bristol South East case, notices were sent out to the electors

which alleged that Benn was not eligible to be elected because of

his inherited peerage. Thereafter, Benn issued counter-notices

denying his right to sit in the Lords and in effect denying that he

was disqualified. Notwithstanding the uncertainties created by

Benn’s counter-notices, the court held that that Benn was

disqualified.

144. In the Bristol South East case it was fairly notorious to the

electorate that Benn was of noble birth and fairly notorious that his

father had died. There were implications on his father death as no

writ had been issued or applied for by Benn and as a result he

could not sit in the House of Lords. This created a situation of

questions of mixed fact and law Nonetheless, the votes for Benn

were held to have been illegal votes and as such thrown away.

145. In the instant case there are no complicated facts, no facts

contradicted the Respondent’s Notice of Disqualification nor did the

facts give rise to any complicated legal issues as in the Bristol 105 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 50.

South East case. As a result, it is submitted that this Honourable

Court should follow the approach in the Bristol South East case

and find that the votes cast for the Appellant were illegal votes and

were thrown away.

146. It is submitted then that the Notice of Disqualification circulated by

the Respondent meets the legal standard as it clearly states one of

basis on which Vaz, by his own act, is not qualified to be elected,

that is because he is under acknowledgment of allegiance to a

foreign power. It states correctly that he is a United States citizen

and the holder of a United States passport.

147. Vaz, by his own act, is under acknowledgment of allegiance to a

foreign power—by his travel on and renewal of his United States

passport—this is a fact that the voters can be presumed to know

that a man of the Appellant’s age must have applied for or renewed

a passport issued to him. These are facts existing prior to

nomination day that establish Vaz’s recognition and acceptance of

his United States citizenship and the acknowledgment that he is

under an acknowledgment of allegiance to the United States.

148. The Chief Justice’s finding that the facts were not settled and

established but in dispute because of the Director of Elections’

press releases was wrong. , The Press Releases did not contradict

the facts stated in the Respondent’s Notice of Disqualification. As a

result these facts were never in issue. In any event the electorate

need not know the legal consequences of the facts. The facts need

only be brought to the attention of the electorate. This was done.

149. Further, assuming arguendo that the Chief Justice is right that the

facts creating Vaz’s disqualification are the positive acts of using,

applying for, and renewing his United States passport, the

electorate knew, or can be taken to have known, those positive

acts. As a result, it is respectfully submitted that this Honourable

court has no discretion but to return the only duly nominated

candidate, the constitutionally qualified candidate and the

candidate with the highest number of legal votes. Fortunately,

there is a candidate who meets all those criteria and that person is

the respondent who should be retuned as the duly elected Member

of the House of Representatives for the Constituency of West

Portland.

150. In the Court below the Chief Justice made the following order as to

costs :

“Having regard to the foregoing I make

no order as to costs between the

petitioner and the first respondent as

against each other. The petitioner must

bear the costs of the Second and Third

Respondents. 106”

151. It is submitted that even if the Chief Justice was correct in terms of

the substantive findings and orders she made, she erred in relation

to the award of costs. It is trite law that in the normal course costs

follow the events.

152. The Election Petitions Act provides at section 28, in relevant part: -

“ All costs and charges and expenses of

and incidental to the presentation of a

petition and to the proceedings

consequent thereon, with the exception of

such costs, charges and expenses, as are

by this Act otherwise provided for, shall

be defrayed by the parties to the petition

in such manner and in such proportions

106 Dabdoub v Vaz (Supreme Court of Jamaica, 11 April 2008) 53

as the Court or Judge may determine,

regard being had to the disallowance of

any costs, charges or expenses which

may, in the opinion of the Court or Judge,

have been caused by vexatious conduct,

unfounded allegations or unfounded

objections, on the part either of the

petitioner or the respondent, and regard

being had to the discouragement of any

needless expense by throwing the burden

of defraying the same on the parties by

whom it has been caused, whether such

parties are or are not on the whole

successful. And the Court or Judge shall

give judgment for such costs in

accordance with such determination as

aforesaid. Such costs shall be taxed by

the proper officer of the Supreme Court

according to the same principles as costs

between solicitor and client is taxed in an

equity suit in the Supreme Court”.

153. In the Court below as between the Appellant and the Respondent

herein, the Chief Justice had to adjudicate on one substantive

issue, that issue was whether or not Daryl Vaz was qualified for

election to the House of Representatives pursuant to the

Constitution of Jamaica. The remedy which the court was asked to

grant was to return the Respondent herein as the duly elected

Member of the House of Representatives.

154. The court found that pursuant to the provisions of section 40 (2)

(a) of the Constitution of Jamaica, the Appellant Vaz was not

qualified to be elected, however the remedy granted by the court

was to unseat the Appellant Vaz and to order a by-election.

155. As the Respondent was successful in the Court below, it is

submitted that costs should have been awarded to the Respondent

as against the Appellant Vaz. This is so because normally costs

follow the event; this is the starting point for the exercise of judicial

discretion in awarding costs.107 In Johnsey Estates v Secretary of

State for the Environment108 Lord Justice Chadwick had this to say

“The principles applicable in the

present case may, I think, be

summarised as follows: (i) costs

cannot be recovered except under an

order of the court; (ii) the question

whether to make any order as to costs

- and, if so, what order - is a matter

entrusted to the discretion of the trial

judge; (iii) the starting point for the

exercise of discretion is that costs

should follow the event; nevertheless,

(iv) the judge may make different

orders for costs in relation to discrete

issues - and, in particular, should

consider doing so where a party has

been successful on one issue but

unsuccessful on another issue and, in

that event, may make an order for

costs against the party who has been

generally successful in the litigation;

and (v) the judge may deprive a party

107 Johnsey Estates v Secretary of state for the Enviorment (2001) EWCA 535

108 (2001) EWCA 535

of costs on an issue on which he has

been successful if satisfied that the

party has acted unreasonably in

relation to that issue; (vi) an appellate

court should not interfere with the

judge's exercise of discretion merely

because it takes the view that it would

have exercised that discretion

differently.”

156. Regrettably, the Chief Justice gave no reason for not ordering costs

to the Respondent herein as against the Appellant Vaz.

Notwithstanding the Chief Justice’s failure to outline the reasons

upon which she exercised her discretion not to award costs to the

Respondent as against the petitioner, it is submitted that she had

no basis to make the order she did.

157. The Respondent was successful in the action brought against Vaz.

His complaint was that Vaz was not qualified to be elected and the

court agreed with him and so held. There was no wrong doing or

even any allegation of any wrong doing on the part of the

Respondent. The only wrong committed was committed by the

Appellant Vaz. He was the holder of a United States passport, a

fact which he knew. He knew that his status as a United States

citizen had brought the issue of his qualification into dispute. It was

an issue well publicized in the media and upon which the said Vaz

commented prior to and after Nomination Day. As the Respondent

was successful against another litigant who committed a wrong

having knowledge of that wrong, it is submitted that costs should

be awarded to the Respondent as against the Appellant Vaz.

158. There was no evidence that the Respondent herein committed any

wrongful act, caused any vexatious conduct, unfounded allegations,

caused the costs of the litigation to be increased or unfounded

objections. There were absolutely no facts before the court upon

which the Chief Justice could have caused exercised her discretion

the way she did.

159. On the contrary, there were facts before the Chief Justice which

she should have taken into account and come to the conclusion

that costs should have been awarded to the Respondent herein as

against the Appellant Vaz. Firstly, the conduct of the trial in the

court below by the Appellant Vaz caused the Respondent to incur

unnecessary costs. This is clear when the court appreciates that the

Respondent herein had served a Notice to Admit Facts109 on the

Appellant Vaz, this Notice was never responded to. As a result the

Respondent was put to strict proof to prove each and every fact.

This included the calling of witnesses from as far away as Portland.

Interestingly, some of the issues raised in the Notice to Admit Facts

ere admitted to in testimony by the Appellant!! One such fact was

that he was on the 7th of August 2007 a citizen of the United States

of America110.

160. It is submitted that had the Appellant admitted the facts requested

in the Notice to admit Facts then the length and costs of the trial

would have been greatly reduced. As a result, notwithstanding the

remedy awarded by the Learned Chief Justice or by this Honorable

Court, the Appellant Vaz should stand the Respondent’s costs in

relation to the trial in the court below and this appeal.

161. The second aspect of the award of costs on which the Chief Justice

erred was when she awarded costs to the second and third

Respondents. The Chief Justice apparently made this decision

based on her finding that the Returning Officer was not guilty of

any wrong doing and acted quite correctly in accepting the

Appellant’s nomination.

162. It is submitted that the Learned Chief Justice failed to take into

account certain salient facts in the exercise of her discretion. The

109 Notice to Admit Facts ,Record of Appeal pg 55

110 Notice to Admit Facts, Record of Appeal pg. 55, item 3

first fact which she failed to take into account is that the election

Petition was never served on the Second and Thirds Respondents

neither did any of them file an Acknowledgment of Service.

163. At the Case Management Conference on October 31st, 2007 the

Respondent herein indicated clearly that there was no intention to

pursue a claim against the Second and Third Respondents. The

Affidavit of Winston Taylor, to which the Second and Third

Respondents in the court below have not answered, says at

paragraphs 5-6:

“5. That at the Case Management

Conference Mrs. Nicole Foster-Pusey

had indicated to the Chief Justice that in

many of these the Returning Officer

would not necessarily have to

participate. She stated that the Attorney

General side has not been served and

they would only have to file Defence if

there is action taken by the Returning

Officer that is being challenged.

6. Mr. Gayle Nelson stated that “with

regards to the AG’s position there is not

much to deal with on that side and we

intended not to proceed against them.

That is why they were not served. The

Returning Officer’s action was not

challenged. We are confident that they

were not served. We would discontinue

against them unless Your Ladyship

wishes for them to participate.

7. That the Learned Chief Justice stated

that she would like the assistance of the

Attorney General’s Department. That

she expected submissions from them.

“111

164. Having regard to the foregoing undisputed facts the Chief Justice

wrongly exercised her discretion in Ordering that the Respondent

herein is to pay the costs of the Second and Third Respondents in

the court below. It is to be noted that documents were served on

the Attorney-General’s Department only after the date of the Case

Management Conference. The Chief Justice should have made an

Order that there be no Order as to costs between the Respondent

herein and the Second and Third Respondents in the court below.

165. Lord Justice Chadwick in addressing an Appellate court’s jurisdiction

to review the exercise of a trial judge‘s discretion on an Order for

costs said:

“It is not for an appellate court even to

consider whether it would have exercised

the discretion differently unless it has first

reached the conclusion that the judge's

exercise of his discretion is flawed. That is

to say, that he has erred in principle,

taken into account matters which should

have been left out account, left out of

account matters which should have been

taken into account; or reached a

conclusion which is so plainly wrong that

it can be described as perverse - see

Alltrans Express Limited v CVA Holdings

Limited [1984] 1 WLR 394, per Lord

111 Supplemental Record of Appeal, Affidavit of Winston Taylor, 3 November 2008 Exhibit 5

Justice Stephenson at 400C-F and Lord

Justice Griffiths at page 403G-H. “112

It is submitted that the Chief Justice’s order as to costs, particularly

her order as it relates to the Respondent and Vaz “ is so plainly

wrong that it can be described as perverse “,113 and this court

should exercise it’s Appellate powers and set aside the said Order

of the Chief Justice.

166. In conclusion it is respectfully submitted that this court should

make the following findings:

(1) Daryl Vaz was not pursuant to the

constitution of Jamaica qualified to be

elected to the House of Representatives

(2) the votes cast for Daryl Vaz were illegal

votes and as a result were wasted or

thrown away,

(3) Abraham Dabdoub being the only duly

qualified candidate with the majority of

lawful votes was the duly elected to the

House of Representatives for the

constituency.

Respectfully submitted,

________________

Jalil S. Dabdoub

FILED by DABDOUB, DABDOUB & COMPANY, of No. 1 Melmac Avenue, Kingston 5, in the Parish of Saint Andrew, Attorneys-at-Law for and on behalf of the RESPONDENT herein whose address for service is that of his said Attorneys-at-Law.

112 Johnsey Estates v Secretary of State for the Enviorment (2001) EWCA 535

113 Johnsey Estates v Secretary of State for the Enviorment (2001) EWCA 535

Submission of Jalil Dabdoub for 1st Respondent Civil Appeal No 47 of 2008 JD Current Working Copy2

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