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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 0256 OF 1999
BETWEEN:
TU’UAKITAU COKANAUTO
Petitioner
AND:
VILIAME SAUSAUWmp;
RETURNING OFFICER TAILEVU
NORTH/OVALAU OPEN CONSTITUENCY
Respondents
Counsel: S. Matawalu & Associates for the Petitioner
Kelemedi Bulewa Esq. for the 1st Respondent
Mr S. Banuve, Ms S. Basewaiy & Mr Rigamoto for the 2nd Respondent
Hearing: 9th June 199e 1999
Decision: 11th June 1999
JUDGMENT
On 20th May 1999, an Election Petition was filed in the High Court, being the Court of Disputed Returns, on behalf of Tu’uakitau Cokanauto
(the Petitioner). That Petition stated that the Petitioner was a candidate in the General Elections 1999 held between 8th and 15th May 1999, for the Tailevu North/Ovalau Open Constituency, and that the 1st Respondent Viliame Sausauwai, had been declared as duly elected in error.
The Petition specifically alleged that the Returning Officer for the Constituency (the 2nd Respondent) had erred in the distribution of the votes on the third progressive count thus rendering the election of the 1st Respondent void. The Petition moved the court for a declaration that the 1st Respondent was not duly elected, for a declaration that the Petitioner was duly elected and for costs.
On 24th May 1999 an amended Petition was filed in the High Court. The error alleged to have been made was the same in both petitions. However
the amended Petition did not allege that the election was void. Instead the Petitioner asked for the following relief:
1. An Order that the Second Respondent count "de novo" the votes cast for the election of a member of the Tailevu North/Ovalau
Open Constituency in the presence of the Supervisor of Elections and/or the Chief Registrar of the High Court. And that the Supervisor
of Elections and/or the Chief Registrar report to this court as soon as possible the result of the recount.
2. Leave be granted to the Petitioner and the Respondents, by themselves or their respective authorised agents to examine all registers
and other documents (including all ballot papers used at or in connection with the election) and to be present at the recount.
3. A Declaration that the first Respondent who was returned as elected was not duly elected; and
4. A Declaration that your Petitioner was duly elected a member of the House of Representatives.
5. Such other or further Order or Direction or Declaration as this Court may deem just and fair.
6. Costs.
The Petition was set for hearing on 27th May 1999 in open court. On that day whilst the Petitioner and the 2nd Respondent appeared, the 1st Respondent did not, nor was he represented. On that day Counsel agreed to a recount since such recount would effectively determine
the direction that the hearing would take. Mr S. Banuve for the 2nd Respondent, appeared with Mr W. Rigamoto and consented to a recount. However, counsel agreed that since the alleged error was in
relation to the distribution of the valid votes alone, a recount of the valid votes would suffice. The court then ordered a recount
of all valid votes by the Supervisor of Election under the supervision of the Chief Registrar.
The Court reconvened on 3rd June 1999. On this occasion, the 2nd Respondent was represented by Mr K. Bulewa, who submitted that the recount was flawed in that the invalid votes had not been counted.
Mr Bulewa also submitted that there were irregularities in the counting of the valid votes.
The Court then ordered a scrutiny of all invalid votes under the supervision of the Chief Registrar and the Supervisor of Elections.
The Court further ordered that the results of the recount and scrutiny were to be given in evidence by the counting officer responsible.
When the Court reconvened on 7th June 1999, it was informed by the Supervisor of Elections that some invalid ballot papers that had been misplaced had been found
and that he required more time for the scrutiny. The Court adjourned until 8th June 1999 for hearing.
On that day the following witnesses were called in relation to the recount;
PW1 Ilisapeci Natau
PW2 Walter Rigamoto
PW3 Isoa Tikoca
The substance of PW1's evidence was that she was the Count Team Leader for the recount ordered by the Court. Her evidence was that
there were 5 candidates for the constituency. They were as follows;
Adi Litia Cakobau (Soqosoqo ni Vakavulewa ni Taukei)
Josefa Vosanibola (Veitokani ni Lotu Vakarisito)
Manlal Patel (National Federation Party)
Viliame Sausauwai (Nationalist/Vanua Tako Lavo)
Ratu Tu’uakitau Cokanauto (Fijian Association Party)
At the original count Viliame Sausauwai had been declared duly elected by a majority of two votes, over Tu’uakitau Cokanauto,
after the fourth count on re-distribution of preferences. She said that on a recount a total of 13,748 votes were found against an expected total of 13,754. She said that the voting process was then followed and 13 ballot papers were
found which were invalid. The total number of valid votes was then 13,735. The absolute majority was calculated at half plus one of the total. She said that since none of the candidates had an absolute majority,
the next step was to look at the preferences.
After the 1st count on the distribution of preferences, no winner could be declared as there was no absolute majority. The candidate with the lowest
number of votes was excluded. His votes were then distributed according to the preferences and the counting continued.
On the 4th count the Petitioner had the absolute majority over the 1st Respondent. PW1 also gave evidence of the scrutiny of the invalid votes. In the initial scrutiny only 808 ballot papers were found
of which 12 were found to be valid by the Supervisor. Five of these went to Adi Litia Cakobau, 4 to Sausauwai, and 3 to Cokanauto.
PW1 then scrutinised the second batch of invalid votes and although 1,083 were expected, a total of 1,087 were found. Again 12 ballot
papers were found to be valid and were redistributed to the candidates.
The final result of the scrutiny and of the recount was that Sausauwai had 6411 votes whilst Cokanauto had a total of 7,348 votes.
PW1 explained that an error was made in the original count, in the redistribution of the votes of Adi Litia Cakobau after she had
been excluded.
Walter Rigamoto was PW2. He gave evidence of the disappearance and discovery of the second batch of invalid votes totalling 1,087.
He said the ballot papers had been found in a carton box sealed with tape, in a larger box containing the ballot paper accounts,
at the Commissioner Central’s stationary office in Nausori. He said that the ballot papers which were identifiable by the Constituency
No. "47" had clearly been included in the original counting at the Suva Grammar School (the Count Centre), but had been
sent to Nausori in error. All other ballot papers had been kept in the Government Buildings Holding Cell.
Isoa Tikoca was PW3. He gave evidence that whilst the carton box of invalid ballot papers had been in his office, there had been a
24 hour guard, and that the stationary room had been kept locked day and night. He said that since the box was sealed (and marked
"doubtful") and because the room had been secured there was no chance of tampering with the ballot papers.
All witnesses were cross-examined by counsel for the 1st Respondent. In respect of PW3, counsel sought to cross-examine on postal ballot papers.
Hitherto, no objection had been made to postal votes, nor were any such particulars specified in the Petition.
The Court asked Mr Bulewa for the relevance of the questions on the exclusion or otherwise of postal votes. Mr Bulewa replied by saying
that he wished to show that the irregularities in the conduct of the election for the Tailevu North/Ovalau open seat rendered the
election void, and that he was seeking a declaration accordingly.
As such a declaration was not sought in the Petition, the Court asked for submissions as to whether the Court could consider making
such a declaration. On hearing submissions from all counsel I ruled that it was not open to the Court to grant relief that was not
the subject of the Petition.
I now give reasons for that Ruling. Section 73(2) of 1998 Constitution provides that-
"the validity of an election or return may be disputed by Petition addressed to the Court of Disputed Returns and not otherwise".
Section 147 of the Electoral Act 1998 provides that-
"proceedings must not be had on a petition unless the requirements of section 144 and section 145 are complied with".
Section 144 of the Electoral Act requires, inter alia, that the Petition set out the facts relied on to invalidate the return, specify with particularity the specific
matters complained of, and contain a prayer asking for the relief claimed.
The Petition before the Court does not ask that the election be declared invalid, nor is there a complaint before the Court that there
were irregularities in the counting of postal votes.
In response to the Court’s query, Mr Bulewa said that he was not aware of the numbers of the postal votes complained of, but
that he was aware that they were in two boxes.
The provisions of section 144 and 147 of the Electoral Act and of Section 73(2) of the Constitution enact principles of election petition law that date back to the English Ballot Act 1872.
Those principles are not only that mere irregularities do not avoid elections unless the Court is satisfied that the irregularities
affected the result of the election and that the election was not conducted in accordance with the law, but also that the Petition
must be heard quickly and that there must be a degree of finality to the decision of the Court. More importantly for the purpose
of this application, the Courts hearing election petitions as early as 1893, have held that the inquiry must be limited to the matters
particularised in the Election Petition Munro -v-Balfour [1892] UKLawRpKQB 185; (1893) 1 QB 113.
In the decision of Cameron -v- Fish [1904] HCA 49; 1 CLR 314, the High Court of Australia held that the petitioner must be kept strictly to the case made by the petition since allowing new matters
to be raised during the hearing, could in principle allow new relief to be sought after the lapse of the statutory time limit.
In Osborne -v- Shepherd (1981) 2 NSWLR p 277 at p 280, Powell J sitting as a Court of Disputed Returns, considered the meaning of Section 155 of the Parliamentary
Electorates and Election Act 1912 which provides:
"The validity of any election or return may be disputed by petition to the Court of Disputed Returns, and not otherwise".
He held that the legislature governing the Court constituted a "code". He said at page 280 that:
". . . . it is not open to the plaintiff to invoke the general jurisdiction of this Court, and if he is to seek any form of relief
in relation to the election, he must invoke such jurisdiction as the court has in its character of the Court of Disputed Returns
and, further, that he must invoke that jurisdiction at the time, and in the manner, provided for by the Act".
I agree with the reasoning of Powell J. Scott J in Josefa Rusaqoli -v- Attorney-General & Others Civil Action No. HBC of 1994 said of the now repealed Electoral (Conduct of Elections) Regulation 1992 and the Electoral Decree 1991:
"In my opinion the clear intention of the Decree was to provide an exclusive mechanism, to be laid down by Regulation through
which election matters could be questioned. Were this not the case then the restrictions and requisites of the Regulations could
simply be circumvented . Furthermore, it is a general principle of our system of law that where a specific method for questioning
a particular activity is provided by law then that specific method should be adopted and not, without exceptional cause, any other".
There are therefore sound reasons to confine this inquiry to the ambit of the matters alleged in the Petition.
As such I ruled that the 1st Respondent could not ask the court to inquire into the circumstances of the postal voting, nor could the 1st Respondent ask the Court to declare the election void.
Counsel then proceeded to make final submissions to the Court. Sir Vijay Singh submitted that the result of the recount should be
upheld, and that the Petitioner be declared the duly elected member for the Constituency.
He argued that any irregularities and errors made by the Returning Officer were natural in the circumstances of a general election.
However these errors were not sufficient to render the election a nullity since it was clear what the will of the electorate was.
Mr Bulewa for the 1st Respondent urged the Court to reject the result of the recount. He argued that the Court had an inherent power to order a recount,
but that such recount had to be a complete one, encompassing valid and invalid votes. He argued that the Court did not have the power
to separately order a scrutiny of the invalid votes and that the recount/scrutiny result was therefore ultra vires the Court of Disputed
Returns. He further submitted that there were serious doubts about the custody of the ballot papers and that the Court should therefore
dismiss the Petition since the result of the recount was unreliable.
A brief study of the history of election petitions in England, Australia, and New Zealand highlight some common principles. The first
is the need to dispose of such petitions speedily. The second is that irregularities in the conduct of elections are not in themselves
grounds to declare the elections void unless the irregularities affect the result and give rise to a conclusion that the elections
were not conducted in accordance with the provisions of the relevant laws.
In respect of the Petition before me, the relief sought is not a declaration that the election was void, but that the irregularities
led to the wrong result. The Court is asked, having recounted and scrutinised the ballot papers, to find that on a mathematical calculation,
the Petitioner is in fact the duly elected member for the Constituency.
The power of the court to order the scrutiny of documents relating to an election is given to it by virtue of section 148(1)(c) of
the Electoral Act which provides that the Court may:
"grant to a party the petition leave to inspect, in the presence of the Supervisor or an officer of the Court, the registers
and other documents used at or in connection with any election and to take, in the presence of the Supervisor or the officer of the
Court, extracts from those registers and documents".
A Court of Disputed Returns has been held to have an inherent right not only to inspect tendered ballot papers only (Petersfield Case Stowe -v- Joliffe [1874] UKLawRpCP 24; (1874) LR 9 CP 446) ) but also to order a recount (Land Monkswell -v- Thompson [1898] UKLawRpKQB 29; (1898) 1 QB 479. However such an inherent power can only be invoked by Petition, which of course was the case here.
On the recount of the valid ballot papers, and on the scrutiny of the invalid papers, it was clear that counting errors had been made
by the Count Team. I accept the evidence of PW1 as to the correct result of the poll, and I accept the evidence of PW2 and PW3 that
the invalid papers included the second batch found in the Commissioner Central’s office on 7th June 1999.
In Dunbier -v- Mallam (1971) 2 NSWLR 169, the Court of Disputed Returns was asked to declare that the Petitioner was the duly elected candidate for Campbelltown for the New
South Wales Legislative Assembly. Section 161(1) of the Parliamentary Electorates and Elections Act 1912 provided that the Court
had power to "declare any candidate duly elected who was not returned as elected". In considering a Petition requesting
such relief Hardie J said:
"when asked to declare a candidate duly elected who was not returned as elected, the task of the court is to do what the returning
officer should, under the statute, have done, and to correct any errors which the officer may have made, where the votes recorded
are still traceable and identifiable. The court’s function in such a case involves decisions on the validity or invalidity of
disputed votes, and if necessary, a consequent adjustment of the returning officer’s calculations and figures; the ultimate
exercise is a mathematical one. That form of relief is not available where impropriety is relied upon, or where the votes admitted
to the poll should have been rejected and evidence is not available as to the manner in which those votes were cast. The normal case
for this type of relief is where votes have been rejected by the returning officer because of departure from the statutory directions
apparent on the face of the ballot papers".
It is precisely this form of relief that is sought here. It is clear on the evidence, and there is no real dispute, that an error
was made on the redistribution of the votes of Adi Litia Cakobau after she was excluded. A correction of that error on a recount/scrutiny
ordered by the court is the relief sought.
Mr Bulewa for the 1st Respondent submitted that the recount was unreliable because of the irregularities in the custody of the papers, and that therefore
it was not possible for the court to conclude what the real result of the election was.
However, having heard the evidence in this matter, having examined the votes previously declared to be invalid but now held to be
valid by the Supervisor, and having taken into account the breaches of statutory procedure committed in the custody of the invalid
ballot papers, I am satisfied that the final result of the election is as follows:
Viliame Sausauwai: 6,411 votes
Ratu Tu’uakitau Cokanauto: 7,348 votes
I am satisfied that despite irregularities in the counting and custody of the ballot papers, that the election for the Tailevu North/Ovalau
open seat was conducted substantially in accordance with the Constitution and the Electoral Act, and that the will of the electorate is reflected in the result of the recount and scrutiny.
I therefore grant the Petitioner relief as follows:
Viliame Sausauwai, the 1st Respondent is declared not to be duly elected and, Tu’uakitau Cokanauto is declared the duly elected member for the Tailevu
North/Ovalau Constituency, of the House of Representatives.
A copy of this decision and the order of this Court will be sent to the Speaker of the House of Representatives, to the Attorney-General
and to the Supervisor of Elections today, in accordance with Section 155 of the Electoral Act 1998.
The costs of the Petitioner, and of the 1st Respondent are to be paid by the 2nd Respondent, to be taxed if not agreed.
Nazhat Shameem, Ms
JUDGE
At Suva
11th June 1999
Hbc0256j.99s
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