IN THE SUPREME COURT TURKS AND CAICOS ISLANDS IN THE MATTER OF SECTION 49(1)(F), SECTION 50(3), SECTION 51 (2)(E) AND SECTION 53(2) OF THE TURKS AND CAICOS ISLANDS CONSTITUTION IN THE MATTER OF A CHARGE REGISTERED ON PARCEL 60804/136, THE BIGHT & THOMAS STUBBS, PROVIDENCIALES, TURKS AND CAICOS ISLANDS ( THE ANM CHARGE ) IN THE MATTER OF CHARGES REGISTERED ON PARCELS 10407/21 & 10403/184, EAST SUBURBS, GRAND TURK, TURKS AND CAICOS ISLANDS AND 10508/56, SOUTH SUBURBS, GRAND TURK, TURKS AND CAICOS ISLANDS ( THE GAL CHARGES ) IN THE MATTER OF A CHARGE REGISTERED ON PARCEL 10409/85, EAST SUBURBS, GRAND TURK, TURKS AND CAICOS ISLANDS ( THE EAA CHARGE ) IN THE MATTER OF A CHARGE REGISTERED ON PARCEL 10403/102, EAST SUBURBS, GRAND TURK, TURKS AND CAICOS ISLANDS ( THE HDT CHARGE ) IN THE MATTER OF CHARGES REGISTERED ON PARCELS 60809/156 & 60809/166, THE BIGHT & THOMAS STUBBS, PROVIDENCIALES, TURKS AND CAICOS ISLANDS ( THE JOC CHARGES ) IN THE MATTER OF CHARGES REGISTERED ON PARCELS 10403/98, EAST SUBURBS, GRAND TURK, TURKS AND CAICOS ISLANDS 60610/157 AND 60610/161, NORWAY & FIVE CAYS, PROVIDENCIALES, TURKS AND CAICOS ISLANDS ( THE VDW CHARGES ) BETWEEN THE HONOURABLE ATTORNEY GENERAL PLAINTIFF AND (1) AMANDA ANISHA MISSICK 1 ST DEFENDANT (2) GEORGE ALEXANDER LIGHTBOURNE 2 ND DEFENDANT (3) EDWIN ANDRE ASTWOOD 3 RD DEFENDANT (4) HUGH DEREK TAYLOR 4 TH DEFENDANT (5) JOSEPHINE OLIVIA CONNOLLY 5 TH DEFENDANT (6) VADEN DELROY WILLIAMS 6 TH DEFENDANT
Date of Hearing: 13 th March 2013 Date of Decision: 14 th March 2013 Mrs. R. Knowles Acting Attorney General and with her Mr. R. Cosgrove and Miss C. Hippolyte Mr. A. Misick QC and with him Mr. J. Misick for the 1 st and 2 nd Defendant Mr. A. Woods QC and with him Mr. A. Garland for the 3 rd and 4 th defendants and Mr. N. Skippings for the 4 th Defendant Mr. D. Cadman for the 5 th and 6 th Defendant JUDGMENT 1. For the purposes of determining this preliminary point raised only by the 1 st defendant, six affidavits were admitted into evidence without challenge to the facts stated therein. This allowed the Court, for the purposes of determining this preliminary point, to be presented with an agreed set of facts for that limited purpose, such facts being sufficient to allow consideration of the preliminary point. The agreed facts are as follows. 2. This is the hearing of an application by the Plaintiff by way of Originating Summons filed on 8 th March 2013 for the determination of questions by way of a challenge to the veracity of the section 50(1) declaration of the 1 st Defendant made on 1 st March, nomination day for the by-election to be held on 22 nd March 2013. 3. On October 25th 2012, the 1 st Defendant completed and submitted a declaration to the Integrity Commission ( the Commission ) declaring her interest in a residential conditional purchase lease on parcel 60400/277 ( the Lease ) and Freehold title to parcel 60804/136 with government charge registered ( together the Properties ). 4. On October 25th 2012 the 1 st Defendant completed and submitted her nomination and declaration forms to the Supervisor of Elections ( the Supervisor ) declaring that she was qualified to be elected to the House under section 46 of the Constitution and not otherwise disqualified under section 49. 5. On October 26th 2012 the Supervisor published the declarations of all candidates contesting the 2012 General Elections.
6. On October 26th 2012 the Commission also published the Register of Notices of Contracts with Government ( the Integrity Notice ) of all candidates contesting the 2012 General Elections. 7. No challenge was raised to the declaration made in respect of the 2012 election. 8. The 1 st Defendant was elected on November 9th 2012 as the Member of the House for District 7 held on November 9th, 2012 and was subsequently sworn in as a Minister of Government with the responsibility for Health and Human Services. 9. On February 7th 2013 the Supreme Court ruled the election in District 7 held on November 9th 2012 void having determined that another candidate Dr. Edward Smith was not qualified to contest the election in District 7 and which affected the election result. 10. A Writ for a By Election was issued and on March 1, 2013 two candidates for the by-elections completed nomination and declaration forms. One of the two candidates was the 1 st defendant. On March 5, 2013 the Supervisor of elections published those nomination and declaration forms pursuant to section 50(1) of the Constitution. In the section 50(1) declaration both candidates indicated that they were qualified for election in the House of Assembly under section 46 of the Constitution and that no disqualification mentioned in section 49 applied to them. 11. However, by the close of nomination for the by-election on March 1, 2013, the Integrity Commission had received only one Nil section 49(1) (f) Notice; it came from Isaac Oral Selver, PDM candidate for the by-election. The Notice was received by the Commission on February 28, 2013. At about 4:10pm on Monday 4 March 2013 the Integrity Commission received a faxed section 49(1)(f) Notice from the 1 st Defendant. 12. On March 5, 2013, the Commission formally acknowledged receipts of these 2 Notices by e-mails to the relevant persons. Also on March 5, 2013 the Commission in accordance with section 49(3) issued a press release publishing these Notices and referred to matter to the Attorney General for consideration and action under section 50(3) of the Constitution. 13. When Ms. Missick made her section 50(1) declaration to the Supervisor of Elections on 1st March 2013, declaring that no disqualification mentioned in section 49 of the Constitution applied to her she had not, at that time, given notice of that section 49(1)(f) contract to the Integrity Commission by March 1, 2013, nomination day since the issue of the new Writ. Such disclosure had been made in the notice to the Integrity Commission of 25 October 2012 prior to the nomination of the 1 st defendant in the General Election, which notice was identical in terms to the notice subsequently given to the Commission on 4 March 2013. The relevant disclosure for the purposes of this application was a registered charge reflecting a
Belonger discount. There has been no change in the intervening period as regards the 1 st defendant and any contracts between her and the Government. 14. The preliminary question which arises is whether the 1 st defendant was required, on or before her nomination day of 1 March 2013 for the by election, called following the decision in the earlier petition concerning the result of the General Election to give notice again to the Integrity Commission of the same facts which pertained at the time of the later by election as had been contained in the earlier notice. 15. Section 63 (3) of the Elections Ordinance (Ordinance 14 of 2012) describes the resultant by-election as being deemed to be held as part of the last general election held preceding the issue of the writ. Given the agreed fact that the 1 st defendant had disclosed this interest in question for the purposes of that general election and that her position had not changed in the interim I find that she was not, strictly, required to file a further notice to the Integrity Commission for the purposes of the by-election. 16. Repeat filing was the position taken by the Integrity Commission. I do not need to decide whether the 1 st defendant made a conscious decision not to follow the advice of the Commission on principle or whether this unfortunate situation arose through oversight. It is perhaps necessary, though, to make clear that this decision is confined to by elections arising from a successful challenge by Petition to an election. It does not extend to a by election resulting from other reasons such as resignation or other disqualification. Nor will it assist a candidate in such a by election who was not previously a candidate who had given notice under section 49 (1) (f) of the Constitution, or any candidate who had not subsequently reported any change. 17. Given those constraints it is easy to see why the best advice a prospective candidate could be given and should heed would be, through abundance of caution, file a further notice. One only needs to examine the present situation the 1 st defendant finds herself in to come to the conclusion that the simple, albeit non mandatory, step of confirming in a further notice that her interest as previously declared had not changed, would have been a worthwhile investment. 18. It is, perhaps, worth going further and pointing out a consequential effect of this decision. A candidate will remain bound by his or her original notice at the post petition by election should he or she choose to stand again. The possibility therefore exists of being caught inadvertently or otherwise, by any change that may have occurred between the two events. 19. Later in these proceedings it may be that the Court will have the opportunity to determine other questions raised in the hearing of this matter including, amongst other things, whether the interest she had declared was an interest covered by the legislation. Those questions might involve other defendants and I have not yet
heard from their counsel on those matters. This decision is therefore not yet complete but sufficient to allow those involved to prepare for the forthcoming by election knowing that this action brought against the 1 st defendant will not ultimately succeed if only for the reasons expressed in this preliminary ruling. Goldsbrough CJ