IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0291 OF 2005

BETWEEN:

ARVIND KUMAR SINGH, SAHEED MOHAMMED and
ASHOK PRAKASH
PLAINTIFF

MAHENDRA PAL CHAUDHRY
Secretary-General, Parliamentary Leader of the FIJI LABOUR PARTY and the duly Registered Officer. Under the provisions of the Electoral Act Cap 18 of 1989.
SECOND PLAINTIFF

AND:

NACANIELI LOMANI,
District Officer/Returning Officer Ba Town Council, Ba.
FIRST DEFENDANT

BA TOWN COUNCIL
a duly constituted Town Council under the provisions of Local Government Act Cap 25.
SECOND DEFENDANT

Mr A. Singh & Mr R. Chaudhry for the Plaintiffs
Mr A. Patel for the First Defendant
Mr A.K. Narayan for the Second Defendant

Date of Hearing: 14 October 2005
Date of Judgment: 18 October 2005

RULING OF FINNIGAN J

INTRODUCTION

There is to be a municipal election next Saturday 22 October 2005 to elect the Councillors of the Ba Town Council.

The three applicants seek to challenge the Returning Officer’s rejection of their nominations as candidates for the Yalalevu Ward.

There are only three seats for that ward and only three other nominations. It is a fact accepted by Counsel for the Returning Officer that the Returning Officer has already declared the other three candidates duly elected. 

The applicants seek three remedies. They are if I may say so rather wordy. The first two amount to an application for Declaration that the purported rejection of the nominations is of no effect. The third is for an order vacating the Returning Officer’s declaration that the other three candidates were elected unopposed and seeks a separate fourth remedy, an order that the Returning Officer must conduct the elections next Saturday “according to law”, i.e. with the three applicants on the ballot.

This Ruling has nothing to say about the issues or about these remedies. It is entirely about procedure. In particular the question is whether I may convert an Originating Summons in the High Court into an Electoral Petition in The Court of Disputed Returns. 

The Documents:

At the outset the supporting affidavit of Arvind Kumar Singh is challenged on the ground that it is not properly sworn. Counsel for the Ba Town Council points out that it is sworn before a solicitor in the employ of the City Agents of the Solicitors for the applicants. He relies on the High Court Rules Order 41 Rule 8. My ruling is that by the terms of Rule 8 this affidavit clearly must be held not “sufficient” and therefore it cannot be read.

The two Defendants have mounted a strong challenge as to the form of the application itself. It is this challenge that preoccupied Counsel last Friday and on which I must now rule.

In a nutshell the challenge is that the application falls well short of satisfying the mandatory requirements of an Electoral Petition.

Counsel for the Applicants engaged those arguments and mounted a creditable detailed reply which amounted to a submission that the application contained within it most of the various mandatory requirements of an Electoral Petition, and that what was missing could be overlooked without doing injury to the law. He pointed out that at present there are no Rules for Electoral Petitions. Under S. 160 (2) of the Electoral Act 1998 the applicants must follow the High Court Rules, “with all necessary changes”. He relied on two judgments of the High Court, Morarji –v- Singh, and Prasad –v- Singh, both supplied as reported on the internet.

Morarji was a comprehensive judgment in which the Judge Byrne J set out the facts and the law at great length because the legal issues had not previously been considered. I have simply been unable to absorb this judgment except in its broad scope, but I do note that it was decided in 1997 before most of the legislation I have to consider came into being.

There is now a new Constitution, a new Electoral Act, there are now no Electoral (Election Petitions) Regulations. There has not been time for me to consider and judge what statements of principle made in that case are still valid. I accept however that on the substantive issues this judgment has extensively considered the provisions of the Local Government Act Cap 125 revised 1985 which is still in force. 

I do accept from p. 15 of the internet version of the judgment given to me that since at least 1994 this Court has accepted that Election Petition is the only means of challenging an election or election return. The authority for that is the judgment of Scott J in Rusaqoli –v- A-G & Anor. HBC0149.1994. That decision was made under the now repealed Electoral Degree 1991 but I accept it. This is because of the clear provision now made in Article 73 (2) of the 1998 Constitution.

(2)	“The validity of an election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise”.

The second case, Prasad was a judgment of Gates J delivered in 2002 under the present legislation. Counsel for the Applicants submits that he followed the procedure followed by the Applicants in that case. If that is so, it is not made clear by the judgment which he supplied. The Judge clearly stated at page 2 of the internet copy supplied that there was a Petitioner who had filed an Election Petition with the High Court as the Court of Disputed Returns. Counsel should note that this is not “a” Court of Disputed Returns as both Judges have said. Under Article 73 of the Constitution this Court is THE Court of Disputed Returns from which there is no appeal.

What the applicants have filed here is not an Election Petition. They came to the High Court as Plaintiffs. They filed an Originating Summons, specifically citing High Court Rules Order 7, Rule 2 in the title of their document. That is the provision for Originating Summons. The document is entituled “In the High Court of Fiji, Western Division at Lautoka”. It has, as one would expect, been given a standard classification of HBC and the next number, 291 of 2005. It has a normal supporting affidavit, a filing fee was paid and there was no payment of the $500.00 security which is a mandatory requirement of Section 145 of the Electoral Act 1998. It was given no different treatment from any other originating summons, with the consequence that it was called along with 38 or 39 other matters in the normal Friday Chambers Callover of new and interlocutory matters. It was for that reason an inconvenient time to hear argument but the need for a hearing by then was urgent.

Counsel for the applicants clearly overlooked High Court Rules Order 9 which is the provision for Petitions. In the regrettable absence of any Rules which the Chief Justice is empowered to make under S. 160 (1) & (2) of the Electoral Act 1998, under Subsection (2) that was the obvious and proper procedure to follow.

The Issue

The question I have to decide is whether to convert this Originating Summons in the High Court into an Electoral Petition under Article 73 of the Constitution and Part 7 of the Electoral Act 1998 and to commence proceedings in The Court of Disputed Returns, sitting in open Court as required by S. 148 of the Electoral Act 1998. The alternative is to reject this application without hearing.

The prime consideration for me is Article 73 (7) of the Constitution. There is no appeal from whatever I decide if I am to decide this in The Court of Disputed Returns. 

The second consideration is whether there is sufficient compliance, enough to make what has been filed a complete Electoral Petition with all the mandatory features. Along with that, what discretion do I have?

The applicants have filed a second originating document, which is a second Originating Summons filed without leave and now entitled “Amended Petition”. What were “Plaintiffs” are now “Petitioners”. With it is a valid affidavit sworn by Mr Chaudhry. Counsel submits it contains all the mandatory elements. 

Amendment is provided for in the High Court Rules. This is at Order 20 Rule 3, 5 and 6 but I doubt that this permits changing the nature of the action cause or matter, or changing a “plaintiff” into a “petitioner”, even if leave were sought, which it was not. To me the “Amended Petition” has no validity.

I return to the Originating Summons and the mandatory elements. These mandatory elements are in the Electoral Act 1998, Part 7.

S. 141	-	Petition is defined as a petition referred to in 
Article 73 of the Constitution. Therefore Article 73 must be considered. It has 7 parts.

S. 142	-	A Petition must be filed.

S. 143	-	The persons whose elections are complained of 
must be Respondents.

S. 144	-	There are 5 more requirements including that 
the Petition must be signed by the Petitioner. The petition must be signed within 6 weeks of the declaration of the Poll. Preferably therefore it must prove or claimed the date of the declaration of the poll.

S. 145	-	It must be accompanied by a deposit of 
$500.00 security.

S. 147	-	There can be no proceedings on a Petition 
“unless the requirements of Ss. 144 & 145 are complied with”. However I refer to Subsection (2). I may relieve the applicants of strict compliance but only of strict compliance with S. 144 (b), the particulars of facts on which they rely.

I need only state these requirements and measure against them what the applicants have filed, to conclude that the Constitution and the Electoral Act 1998 do not permit me to be so flexible as to convert their application.

1.	They have filed no petition;

2.	They have not joined the candidates whose election they challenge;

3.	They have not deposited the mandatory security. I do not propose to follow the obiter comments of Byrne J in as much as they might be capable of being construed as the applicants seek to interpret and apply them. Neither can there be any allowance made for any dispute or misunderstandings with local agents about making the deposit.

4.	Article 73 (3) (a) of the Constitution allows only 3 classes of person to be Petitioners, Mr Chaudhry the second applicant cannot be a party to this application as an Electoral Petition.

5.	Prima facie, some at least of the remedies sought are outside the jurisdiction of the Court of Disputed Returns. I refer to one in particular, an order that the Returning Officer should conduct next Saturday’s election “according to law”.

6.	Therefore there can be no gain to the applicants in having their grievance disposed of before the election. There is in fact no urgency and no remedy available to them will be lost if I reject the present application. In my opinion the Electoral Petition is designed not to be used for urgent intervention in elections. Likewise urgent applications for such relief are excluded by Article 73 (1) (2) and (3).

7.	I turn briefly to the substantive grievance. While I make no attempt to resolve the substantive claims, I note from the untested affidavits particularly Mr Chaudhry at para. 6 and Mr Ram at para. 5, that prima facie the applicants did not comply with Rules 5, 6 and 7 of the Rules for Election in the second Schedule of the Local Government (Elections) Regulations, the subsidiary legislation made under the Local Government Act, Cap 125 Rev. 1985.

The Originating Summons herein for these first 6 reasons is dismissed for want of jurisdiction. It is dismissed in the High Court where it was filed. I doubt that the Court of Disputed Returns was constituted by these proceedings. If it were then in that Court I would still dismiss the proceedings for the same 6 reasons.

For guidance of parties in the absence of Rules, I suggest that in future applicants should:

(i)	Entitule their petition in the High Court of Fiji, ……Registry, Sitting as The Court of Disputed Returns;

(ii)	Create the Petition in terms of High Court Rule Order 9;

(iii)	Create and comply with a checklist of the mandatory requirements for Electoral Petition in Article 73 of the Constitution and Part 7 of the Electoral Act 1998.

There will be costs for the two Defendants. These I assess summarily for convenience and certainty. I assess them at about the level of reasonable indemnity costs. The Electoral Petitions procedure is a specialized procedure provided largely for the benefit of politicians and political parties in the democratic arena. One expects Counsel to be specially well prepared and certain in their use of these proceedings. 

In saying this I acknowledge that the applicants were handicapped considerably by the absence of Rules made under S. 160 of the Electoral Act 1998. These would be the “exclusive mechanism” as described by Scott J in Rusaqoli (above). That is a matter for them to pursue and remedy if they wish.

Costs are allowed, at $1,000.00 to each Defendant.

D.D. Finnigan
JUDGE

At Lautoka
18 October 2005