[1969-1982] NLR (A) 144

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 2 of 1978

VICTOR IDARABAWABWIN EOAEO

v

LAWRENCE WILLIAM STOTT

17th October, 1978.

Elections - Parliament - nomination of candidates - inaccessibility of Returning Officer - unsuccessful bona fide attempt to find him - late delivery - whether nomination valid.

Application for a declaration that a nomination of the petitioner, rejected by the Returning Officer, was valid. 12 noon on Saturday, 7th October, 1978, was the time before which nominations of candidates for a parliamentary by-election had to be delivered to the respondent as Returning Officer. As he was the Director of Lands and Survey, the nominations were required to be handed to him at the Directorate of Lands and Survey, Government Offices, Yaren. On the morning of 7th October the respondent went to his office in the Directorate and remained there continuously from 10.30 a.m. until just after 12 noon. His office was an internal office, i.e. it was necessary to pass through an outer office in order to reach it. The door of the outer office was left unlocked so that persons coming to him with nominations could gain access. Because the public service works a five-day week, there was no-one in the outer office. At about 11.45 a.m., a married couple went to the Government Building with a nomination paper nominating the petitioner. The wife inquired of persons in the vicinity which building was the Directorate of Lands and Survey and went to the Directorate office. She opened the door of the outer office and looked inside; it appeared to her that no-one was present in the office. The respondent, who was utilising the time to do some of his work as Director of Lands and Survey, did not hear her. She left and returned to her husband. One or two minutes after 12 noon the husband went to the Directorate offices to see if the respondent was there and, if so, to hand the nomination to him. He met the respondent coming out of the door of the outer office. The respondent informed him that it was after 12 noon and on that ground refused to accept.

Held: (1) Prima facie the respondent was correct in refusing to accept the nomination after 12 noon, even though it was only one or two minutes late.

(2) However, although unintentionally, he had not been properly accessible at 11.45 a.m., when the first attempt to deliver the nomination was made. The attempt had been made bona fide and justice required that the nomination be treated as having been in fact delivered at that time.

(By Court: As the public service no longer works a 5½ -day week, as it did when the Electoral Act 1965-1973 was made in 1965, section 16 of the Act should be amended to enable the closing time for nominations to be during the working hours of the public service.)

Petitioner in person
R.J. Hooker for the respondent

Thompson, CJ:

These proceedings were wrongly commenced by petition and incorrectly titled as a miscellaneous cause instead of a civil action. However, in view of the urgency of their subject matter, the Respondent has waived objection to both irregularities.

The parties are substantially in agreement as to the relevant facts. A by-election is to be held on 21st October, 1978, in the Constituency of Ubenide. The Respondent is the Returning Officer for the by-election; he is also the Director Lands and Survey of the Republic.

Nominations of candidates for the by-election had, by virtue of section 16 of the Electoral Act 1965-1973, to be delivered to the Respondent by not later than noon on 7th October, 1978. He published notices to that effect; they were broadcast by radio, displayed in public places and printed in the Gazette. In those notices he stated that nominations were to be handed to him at the Directorate of Lands and Survey, Government Offices, Yaren.

The Petitioner's name is on the roll of electors for the Constituency of Ubenide. On 7th October, 1978, a written nomination of him was signed by two other persons whose names were on that roll. The Petitioner signified his consent to the nomination by adding his signature to it. Later that morning a Nauruan lady and her husband, Mr. and Mrs. Agege, went in their car to outside the Government offices at Yaren. Mrs. Agege got out of the car and went to try to deliver the nomination to the Respondent. She made inquiries from two people who were in the vicinity but she could not find him. The time was then about fifteen minutes before noon. She returned to the car and she and Mr. Agege then left the vicinity of the Government Offices. Some time later they returned to make another attempt to deliver the nomination. This time they drove their car in alongside the offices of the Directorate of Lands and Survey. Mr. Agege got out and went to the door of the offices where he was met by the Respondent, who informed him that it was after 12 noon. The Respondent accordingly refused to accept the nomination.

The Respondent has sworn in an affidavit that he was in the office of the Director of Lands and Survey in the offices of the Directorate of Lands and Survey continuously from 10.30 a.m. that morning until shortly after 12 noon. The Petitioner has informed this Court that he does not dispute that fact. He has, however, elicited from the Respondent an admission that, while waiting for nominations to be delivered - most of them had been delivered on earlier days and only two were delivered that morning - he was doing some of the work of his office as Director of Lands and Survey and at times was quite absorbed in that work. The Petitioner's case is essentially that the Respondent, by remaining working quietly in an inner office and by not remaining attentive to sounds of people entering the outer offices, was not properly accessible.

Mrs. Agege gave evidence that she went to the offices of the Directorate and went into two of the outer offices, but not sufficiently far to realise that there was an inner office or that the Respondent was there. In spite of cross-examination she gave a coherent and consistent account of what she did and I am satisfied that she told the truth Mr. Hooker, representing the Respondent, has submitted that, on Mrs. Agege's own account, she did not make an adequate attempt to find the Respondent.

The Petitioner has submitted that in accordance with the maxim, "de minimis non curat lex", a Returning officer should accept a nomination delivered at 12.01 p.m. or 12.02 p.m. I am unable to agree. The Act is clear; nominations must be delivered "by not later than noon". The axe falls at noon and the Returning Officer has no power to accept a nomination after that.

However, if a nomination is taken for delivery in good time and delivery is frustrated only by the non-accessibility of the Returning Officer, it seems to me that, by the application of general equitable principles, the nomination ought to be regarded as delivered in good time and the Returning officer should accept it even though it comes into his physical possession after 12 noon. That, however, is a situation which ought not to arise; persons appointed to be Returning officers for elections should take care to see that it does not.

The risk of the Returning Officer not being properly accessible on the morning of the day on which nominations close has increased substantially since the Electoral Act was made as an Ordinance in 1965. At that time the public service worked a 52-day week. A senior public officer appointed as the Returning Officer could stay in his own Office and get on with his ordinary work confident in the knowledge that more junior officers were working in the offices to which the public had more immediate access and that they would direct in to him persons coming to deliver nominations. But now on a Saturday morning the outer offices are unmanned, unless the staff who normally work there are rostered, and paid, to work overtime. Not all those who nominate candidates, can be expected to be familiar with the lay-out of the Government Offices; some are no doubt diffident about exploring apparently unmanned offices. It would be unfortunate if that diffidence deprived their candidate of his nomination.

Upon giving full consideration to the evidence and the facts agreed by the parties, I am satisfied that Mrs. Agege made a bona fide attempt to find the Respondent and failed to do so because he was absorbed in his work in the inner office and she was insufficiently bold to explore the apparently empty offices until she found him. It is a borderline case but I am satisfied that it is one in which the nomination ought to be regarded as delivered before noon.

Before making an order on the basis of that finding, I wish to stress that, if I had not been satisfied that Mrs. Agege came to the Directorate of Lands and Survey in good time and made a bona fide attempt then to deliver the nomination, this Court could not properly have declared that its delivery at 12.01 or 12.02 p.m. was valid and should have been accepted. Those who leave such matters to the last minute must accept the consequences if they misjudge the time and are too late.

I would also suggest that, in order to obviate the risk of a Returning Officer being insufficiently accessible while working in his office, the Electoral Act 1965-1973 should be amended to make the closing time for nominations 4.30 p.m. on the Friday afternoon fifteen days before the date of the election, instead of noon on the Saturday fourteen days before that date.

The petition is granted. I declare that the nomination of the Petitioner, received as evidence in these proceedings as Exhibit 1, was validly delivered to the Respondent in accordance with section 16(2) of the Act. I direct the Respondent, as the Returning Officer for the by-election, to publish the name of the Petitioner as a candidate, together with the names of those who nominated him, as required by section 18(2) of the Act.