[1969-1982] NLR (A) 164

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 1 of 1980

In the matter of the Nauru Local Government
Council Ordinance 1951-1967;

and

In the matter of an election in the District of Meneng.

4th March, 1980.

Elections - Nauru Local Government Council - electoral rolls - rolls to be maintained continuously, not prepared afresh for each election.

Election - Nauru Local Government Council - electoral roll - defective copy supplied by the Electoral Registrar to the Returning Officer - defect capable of affecting result of poll - election void.

Electoral petition to the Supreme Court as the Court of Disputed Elections. On 29th December, 1979, a general election was held to elect councillors to the Nauru Local Government Council. The Electoral Registrar, who is responsible for maintaining the roll of persons entitled to vote in each District, prepared for the election what he described as the roll of Meneng District and supplied it to the Returning Officer. In fact, the document was a copy of the roll used for the previous election with the addition of the names of persons who since the last election had become entitled to vote in the District and the deletion of the names of those previously on the roll who had died or ceased to be entitled to vote in that District. Unfortunately, when the copy was being typed, one whole page, containing more than thirty names, was omitted. The error-was not discovered until the evening of the polling day when complaints by the persons whose names had been omitted were investigated. The Returning officer admitted that the document given to him by the Registrar did not contain all the names which should have been included in it; but he argued that, having been prepared bona fide as the electoral roll by the registrar, it was the roll and; as all persons whose names were on it had been allowed to vote, the election was valid.

Held:
(1) The document prepared by the Registrar and supplied to the Returning Officer was not the electoral roll for the Meneng District, but merely a defective copy of the roll.

(2) The Registrar is required to maintain continuously at all times the electoral roll for each District and to make from time to time as the events necessitating them occur the alterations required by sections 16 and 17 of the Nauru Local Government Ordinance 1951-1967. He should not wait for an election to bring it up to date; and, if he does so, the document produced is not a new roll, distinct from that existing at the time of the previous elections, but merely an amended version of that roll.

(3) If an error is made in amending the roll and some names are incorrectly omitted, the rights of the persons whose names were on the roll prior to the amendment and should not have been removed from it are not affected by the error.

(4) As the margin of votes between the two candidates who obtained the highest and the second-highest number of votes respectively at the election was smaller than the number of electors whose names were erroneously omitted from the copy of the roll supplied to the Returning Officer, the error might possibly have affected the result of the election.

D. Gioura for the petitioner Respondent in person
D.G. Land for the Returning Officer

Thompson, CJ:

A general election to elect councillors to the Nauru Local Government Council was held on 29th December, 1979, under the provisions of the Nauru Local Government Council Ordinance 1951-1967. In the District of Meneng, Mr. J.A. Bop was declared by the Returning Officer to have been elected. These proceedings are a petition under section 34B of the ordinance, to this Court as the Court of Disputed Elections, disputing the validity of the election in Meneng District.

The facts are not in dispute; and it should be made clear at the outset that there has been no suggestion of any impropriety on the part of Mr. Bop or his supporters or of any elector of Meneng District, nor on the part of the Returning Officer, Mr. Cokanasiga. A mistake was made in the office of the Electoral Registrar as a result of which a number of names; which should have been included were omitted from what the Electoral Registrar described as the electoral roll prepared for the general election held on 29th December, 1979. As a result, a number of ladies who went to cast their votes were told that their names were not on the copy of the roll in the hands of the officials at the polling station and were refused the opportunity to vote.

Undisputed evidence was given by the Electoral Registrar, Mr. Degidoa, that he deputed to his subordinate, Mr. A. Deiye, the task of preparing what Mr. Degidoa called the electoral rolls for the general election for all the Districts; that Mr. Deiye did that by getting out the electoral rolls used at the last general election for the Council and the electoral rolls used at the last parliamentary elections, adding names of those not previously entitled to have their names on the rolls but now entitled to do so and deleting the names of those who had died or become ineligible to have their names on -the rolls; and that, after he had done. so, when the rolls were to be typed, one sheet of paper containing the names of 23 ladies and constituting part of the roll for Meneng District as prepared by Mr. Deiye was mislaid and not typed. As a result the so-called electoral roll for Meneng District for the general election omitted the names of 23 ladies whose names should have been included in it.

When that so-called roll had been typed ready for e general election, the Electoral Registrar published a notice in the Gazette, as Gazette Notice No. 362 of 1979, inviting members of the public to inspect the electoral rolls. He gave evidence that no one did so. As Mr. Lang, who represented the Returning Officer, has pointed out, more interest had been shown by the candidates and they d looked at the rolls, the error would probably have been discovered and corrected before the election. But, Mr. Lang has submitted, since those were the electoral rolls prepared for that general election, persons whose names were not on them were not electors for that election.

On careful consideration of the provisions of the ordinance I have come to the conclusion that that submission is misconceived. It is based on a misconception of the requirements of the ordinance in respect of the keeping of electoral rolls, a misconception apparently shared by the present Electoral Registrar and his predecessors. That misconception is that an electoral roll for a District is required to be prepared for one election and that, after that election that roll ceases to have any validity and a new roll has to be prepared for the next election. That is a misconception is clear from the provisions of sections 16(2) and (4) and 17(1A) and (2) of the Ordinance.

Section 14A requires the Electoral Registrar to cause to be kept in respect of each District a roll of the names of all Nauruans entitled to have their names entered upon the roll of that District. Section 16(2) entitles an elector whose name is on the roll of one District to have it transferred to the roll of another District if he moves from the former District to the latter; section 16(4) requires him to apply within one month after he takes up residence in the latter District for the transfer to be made. Section 17(1) requires the Electoral Registrar to strike from the roll for a-District the names of any persons who are for any reason not entitled to have their names enrolled; section 17(1A) requires the Electoral Registrar to notify such persons that their names have been struck from the roll. Section 17(2) requires the Electoral Registrar to cause rolls to be altered as required to take account of any change in the place of living of any elector and any alteration in the boundaries of a District.

It is clear from the above provisions that, at least since 1959 when. sections 14A and 17(1A) were added to the ordinance and sections 16(4) and 17(2) amended, the Electoral Registrar has had a duty to cause an electoral roll for each District to be kept at all times, and not only when an election is about to be held. The roll today for any District should be the roll prepared for that District in 1959, with all names which were on it then, and all the names lawfully added to it since, still on it, except for any lawfully removed as required and authorised by the Ordinance. Each roll is a continuing roll. What the Electoral Registrar is required to prepare for each election is a copy of the roll as it is at the time. He has called the list of names of electors in Meneng District which he gave to the Returning officer for the general election on 29th December, 1979, the electoral roll for that District for that election. As I have already made clear, in thinking that a new roll had to be prepared for that election he was labouring under a misapprehension as to the requirements of the Ordinance. What in fact he gave to the Returning Officer was a defective copy of the roll as it should have been at the time.

At the election, therefore, 23 electors were wrongly deprived of their right to vote. The margin by which Mr. Bop won the election was 6 votes. It may well be the case since a whole page of names in alphabetical order was omitted from the copy, those voters were a representative segment of the whole electorate and their votes would have cancelled out one another and not affected the result. Nevertheless, because the winning margin was so much smaller than the number of electors deprived of their right to vote, there can be no certainty of that. The only proper-course for this Court, therefore, is to declare the election void. By virtue of section 34Q of the Ordinance, a new election must be held. At that election all those persons whose names are on the roll for Meneng District will be entitled to vote. In case any doubt still remains regarding who those persons are, I state again that they are all persons whose name have at any time since 1959 been on the roll for the District for Nauru Local Government Council elections, except for any of those persons whose names have lawfully been removed from the roll in accordance with the provisions of the ordinance.

Accordingly, I declare the election held on 29th December, 1979, to elect a Councillor for Meneng District to be absolutely void.