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Sope v Principal Electoral Officer [1987] VULawRp 6; [1980-1994] Van LR 313 (16 October 1987)

[1980-1994] Van LR 313

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 169 of 1987

BETWEEN:

BARAK TAME SOPE AND OTHERS
Applicants

AND:

THE PRINCIPAL ELECTORAL OFFICER
Respondent

Coram: Chief Justice Cooke

Counsel: Mr K Mataskelekele for applicant
Mr S Hakwa, attorney general for respondent

JUDGMENT

[ELECTIONS - ADMINISTRATIVE LAW - electoral list irregularities,
Mandamus application]

An application was made that leave be granted for the Applicant to apply for an Order of Mandamus. This the Court granted and in view of the urgency of the application for Mandamus, I allowed Counsel for the Applicant to proceed. Mr Hakwa, the Attorney General, raised no objection.

Mr Kalkot Matas Kelekele's contention was that the Applicant and some fifty nine other persons did not have their names registered on the electoral list. The Applicant made an affidavit in which he swore that the registering officer did come to his house and register three female relatives who lived with him. That when they, the three relatives inquired about his electoral card, the registration officer advised the three relatives that his electoral card was valid. He stated he wanted to verify this and asked members of his family if they saw the officer to tell him to come to the house again. That the officer was told but did not appear. Therefore, thinking that his electoral card was valid he went on the 19th August 1987 to Ifira Polling Station to vote in the Efate Local Government election but was told his name was not on the electoral list. That later he was told some sixty persons were not able to vote because of similar circumstances.

It may be asked why the Applicants did not appeal against their non-registration but I think the explanation is that there was a Bill passed through Parliament. The Representation of the People (Amendment) Act No. 16 of 1987, which rectified the situation and which was assented to by the President, but having some doubts that such Amending Act may be unconstitutional, the Applicant made this application to the Court for an Order of Mandamus.

I listened carefully to the submissions of Mr Kalkot Matas Kelekele for the Applicants and Mr Hakwa for the Attorney General. However, bearing in mind the views expressed by Lord Coleridge C.J. in Wells v Stanforth (1885) 16 QBD 244, at page 245 in a somewhat similar case, he stated:-

"The consequences of allowing this objection (i.e. an objection to registration) would be disastrous in the power which it would give to an overseer who choses to run the risk of disfranchising persons who are entitled to the franchise, and have done all they could do to secure it. Even if the Acts were silent on the subject, we should require very distinct words in the Statutes to compel us to come to the conclusion, that it was the intention of the legislature to enact anything from which such a consequence should follow."

I feel certain that the Applicants were sure that their plight of not being registered was rectified when the Representation of the People (Amendment) Act No. 16 of 1987 was assented to by the President and I must give every consideration to such for this late application.

Yes, their application is late but I am of the opinion that due to force of circumstances they were placed in this invidious position. I have reached the conclusion that the registering officer did not carry out his duties as he should have done viewing the number of persons not registered and having in mind the views of Lord Coleridge aforesaid which I totally endorse. In normal circumstances I may well have refused the Order of Mandamus but I consider this to be an exceptional case. I allow the application made by the Applicants. An Order of Mandamus will issue to the registering officer to include in the register the names of the Applicants and provide them with cards where necessary.

16 October 1987

FREDERICK G COOKE
CHIEF JUSTICE