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Samuel v Electoral Commission [1998] VUSC 69; Civil Case 033 of 1998 (7 October 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 33 OF 1998

IER">IN THE MATTER OF:
ELECTION OF MEMBERS OF PARLIAMENT
OF THE REPUBLIC OF VANUATU.

AND IN THE MATTER OF:
THE REPRESION OF THE PEOPLES ACT [CAP [CAP. 146]

BETWEEN:

JENECK SAMUEL
OF MALEKULA
Petitioner

AND:

ELECTORAL COMMISSION OF PORT VILA
Respondent

Coram: Acting Chief Justice Lunabek J.

Counsel: Mr. Hilary Toa of Public Solicitor’s office for the Petitioner.
Messrs Bill Bani and Fairua Arthur of the Attorney General’s Office for the Respondent.

REASONS FOR JUDGMENT

This is an Election Petition. The Petitioner asks this Court to declare:

1. That the election inconstituency of Malekula ofla of 6th March 1998 be invalid and therefore null and void.

2. That there be a fresh re-election in the Malekula Constituency.

3. Such further declarations and/or orders as the Court shall deem fit.

By Oral application by Counsel before the Court on Lakatoro, on 5th August 1998, the Petitioner seeks to add another Declaration which is then the subject of an Amended Petition filed on 25th August 1998. No objection was raised by the Respondent for the Petition to be amended and the amendment sought is due to the subsequent admission by the Respondent of a disputed factual issue before the Court as we will come to it later on. Leave is now granted for the Petitioner to amend the Petition to this effect:

4. That there be a recount of the void and counted votes and of the counting of votes for the constituency of Malekula.

The declarations and orders sought in the Petition, were made by reason of substantial non-compliance with the relevant laws, rules, orders and regulations in the conduct of the elections of 6 March 1998 as pursuant to the Representative of the People’s Act [CAP. 146].

The Petitioner, Jeneck Samuel, was an Independent candidate for the constituency of Malekula. The Respondent is the Electoral Commission of the Republic of Vanuatu. The following persons are all candidates representing different political parties, affiliations and/or groupings:

Telukluk Paul, Ciriaque Metmetsan, Vital Soksok, Dick Tete, Johnny Kalwaisin, Josiah Tom Merifar, Thyna Jacob, Sato Kilman, Saimon Esmon, Andre Lesines, Korty Edward, Brownie Dona Ron, John Sethy Regenvanu, Malau Naonie Janita, Molonturola Ludovic, Lawa Melenamu, Jackleen Ruben Titecks, Malere Raymond.

There were 21 Candidates including the Petitioner who contested the General Elections of 6 March 1998 for 7 Seats in the Constituency of Malekula.

On March 16th 1998, the Respondent declared the following candidates as having been duly elected in the elections for the Constituency of Malekula for the 7 seats:

CANDIDATES AFFILIATION VOTES

Sato Kilman MPP 1351

Saimon Esmon MPP 838

Paul Telukluk UMP 716

Josiah Tom Merifar NUP 659

Jackleen Reuben Titecks IND 604

John Morrison Willie VP 567

Jacob Thyna MPP 564

None of the 7 declared elected members of Parliament have taken part in this Election Petition.

>THE GROUNDS ONDS OF THE PETITION

This Petition proceeds on the ground that:-

A. There has been substantial non-compliwith the relevant laws, rul, rules, orders and regulations in the conduct of the elections and are particularised as follows:-

(a) the Respondent has acted in contravention of the law

(i) by failing to keep the proper record of the votes which is required to make under this Act.

The Petitioner filed a sworn Affidavit in support of this Petition.

THE RESPONSE ONSE TO THE PETITION

The Respondent makes reference to the ground A and a(i) and says as follows:

(e Petitioner has failed to d to identify in Ground A which particular relevant law, rules, order and regulations that the Respondent has not compiled with and therefore they deny Ground A.

(ii) Save that it is admitted that the Respondent has overlooked the number of votes registered in favour of the Petitioner in the Espigles Bay Polling Station at Malekula to the amount of 24, the Respondent denies that they have contravened the law, therefore Ground (a) (i) is denied.

The Respondent further denies that the Petitioner is entitled to the relief sought.

A sworn Affidavit of Jeanette Bolenga, the Principle Electoral Officer of Private Mail Bag 033, Port Vila, was filed on 13^th July 1998 in support of the Defence.

PINARY HARY HEARINGS

On 27th May 1998, Counsels for both parties appeared before this Court in Chambers. rs and Directions were issued as to the filing and service of all relevant affidavits and documents in support of the Petition and Defence.

On 15 July 1998, Counsels attended a Conference Hearing before me in chambers. Counsel for the Petitioner informed the court that the Petitioner will be calling more than 10 Witnesses and he requested for the Petitioner that the Election Petition be held at Lakatoro - Malekula - because the Petitioner’s witnesses are on the Island of Malekula.

The Respondent indicated by counsel that they will be calling 2 or 3 Witnesses.

The Petition was fixed for hearing on 5 August 1998 at Lakatoro, Malekula at 9 am o’clock.

On 5 August, 1998 at Lakatoro, Malekula, Counsel for the Petitioner proceeded setting out three (3) main issues respectively:-

1. The Petitioner questioned the official result of a particular polling station, that of Espigles Bay - Malekula. He says the Petitioner had scored 24 votes while the official result indicates he had scored nil (0).

2. The Petitioner contested the election as Jeneck Samuel but his name on the official electoral records came out to be Jeneck Isaiah.

3. The Petitioner says according to unofficial results he scored 530 votes, but the official result shows that he has 320 votes only.

The Petitioner’s Counsel has, then, informed the court that he has just received the Respondent’s Defence to the Petition on the morning of the hearing of the Petition on 5 August 1998 and that the Respondent has admitted in the Defence that the Petitioner has scored 24 votes as alleged.

After brief discussions with Counsels in Court, the court adjourned the proceedings for a short period of time. Thereafter, in Court, Counsel for the Petitioner informed the court that some of the witnesses are not turn up. One of the Petitioner’s Witnesses was still in Vila and others are still at Espigles Bay.

The Court then directed that the hearing of the Petition should proceed and that it is the responsibility of each party to prepare and ready to proceed with his/her case as directed.

Counsel of the Petitioner then formally applies to withdraw issues 2 and 3 raised above. The two (2) issues are respectively:-

- That of the Petitioner’s name; and

- That of the unofficial and official results of the election.

These two (2) issues were then withdrawn by the court as requested by the Petitioner’s counsel. It was then on that basis that application was made to amend the Petition by adding a declaration at paragraph 4 of the Prays:

"4. That there be a recount of the void and counted votes and of the counting of votes for the constituency of Malekula."

The application was made on the basis of section 62 of the Representation of the People Act[Cap 146].

ISSUES:

The question for the determination of this court is twofold:-

1. Is this a proper case warranting the court to exercise its dits discretion under section 62 of the Representation of the People Act [Cap 146]?

2. If the answer to question 1 is No, then, on the basis of the Respondent’s admission that the Petitioner has in fact scored 24 votes at the polling station of Espigles Bay as alleged, does it likely to affect the result of the Elections of 6th March 1998 in the Constituency of Malekula so as to render the election on Malekula constituency invalid.?

SUMMARYOOF COUNSELS SUBMISSIONS

Counsel for the Petitioner submits in substance to the following effect. The respondents have failed to total up the votes for the Malekula Constituency properly so that there was a miscount of the total number of votes for the Petitioner on Malekula Constituency. They failed to include the total number of votes of twenty four (24) votes for the Petitioner at Espigles Bay in the total number of votes to show that he has no votes at Espigles Bay. The admission of that failure by the Respondent gives rise to very serious questions of the certainty of all the other polling stations in Malekula Constituency whether for the Petitioner alone or all other candidates. Further that failure throws considerable doubt on the correct standing of the final number of votes for all candidates in the Malekula constituency. It is therefore submitted that rather than calling for the invalidity of elections, the only way to ensure that the other results are not mistaken or tampered with is for the court to order that there be a recount of votes for the Malekula Constituency under Section 62 of the Representation of the People’s Act [CAP. 146].

Counsels for the Respondent admit that the Petitioner had 24 votes collected at Espigles Bay Polling Station. They were recorded but not included in the tallying of votes by the officers of the Respondent. It, thus, submitted for the Respondent that:-

(a) The Petitioner had not been deprived of any votes, nor his votes cut. In actual fact the 24 votes in his favour at Espigles Bay are on the record and are not lost votes.

(b) The Petitioners total number of votes as published in the official results is 320. "(Total A)". If there had been 24 votes included in the total number of votes cast in his favour, this would bring his total to 344 ("Total B"). Both these totals would place the petitioner in 17th place out of 21 candidates which contested the 7 Seats for the Malekula Constituency.

(c) The test to be applied is that applied in the case of Blanchard -v- Cole (1950) D.R.L. 310 C.N.(A). The test is that if the number of mis-counted votes exceeds the plurality of votes cast, the election cannot stand.

In this case, the Petitioner claims that 24 votes were not included in his total number of votes cast. With total A(320) there is a margin of 244 votes, between the 17th position and the 7th position. [564 - 320 = 244]. With total B (344)there is a margin of 220 votes between the 17th position and the 7th position [564 - 344 = 220]. Both margins [244 & 220] far exceed the number of votes claimed to be miscounted by the Respondent.

It is then submitted, for the respondent, that the court uses this test to ascertain the fact that the number of votes claimed by the Petitioner, if in fact were counted, do not exceed the respective margins in paragraph (c) and therefore should dismiss the petition.

THE LAW.<

The relevant statutory provisions.

National elections to Parliament of Va are governed by the Representation of the People’s Act [CAP. 146].

S

Section 61 (1) (b), (d) and (3) (b)

"S. 61 (1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that:-

(a) ...

(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election;

(c) ...

(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.

(2) ...

(3) Notwithstanding the provisions of subsection (1)

(a) ...

(b) Where upon the trial of an election petition the Supreme Court finds that there has been failure to comply with any provision of the Act but the Court further finds, that it is satisfied that the election was conducted in accordance with the principles laid down in this Act and that such failure did not affect the result of the election, the election of the successful candidate shall not by reason of such failure, be void."

The last relevant provision is Section 62 which reads:

"S. 62: When on an election petition the election is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes the Supreme Court may direct an examination of the counted and void votes and of the counting of votes."

I now proceed with the two questions for the determination by this Court in turn.

I. Thecixercise of the Supreme Court discretion under Section 62 of the Representation of the People Act [CAP. 146].

Section 62 of the Act re/p>

""S. 62 When on an election petition the election is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes the Supreme Court may direct an examination of the counted and void votes and of the counting of votes."

By perusing the language of Section 62 of the Act, it transpires that for the Supreme Court to exercise its discretion, the following requirements must be fulfilled:

(1) There must be an election petition;

(2) The election must be claimed for an unsuccessful candidate; and

(3) The ground of the petition must be that the unsuccessful candidate had a majority of lawful votes.

An application under Section 62 of the Act is an interlocutory application made before the Supreme Court on the basis of Rule 28 of the Election Petition Rules 1998.

No specific procedure is provided under the Rules. The Court gets assistance from the laws of England in Halsbury’s Laws of England, Third Edition, Volume 14 as to the procedure to be followed.

Thus, application under Section 62 is an application asking for a re-count of votes. That application should be made by summons to the Judge of the Supreme Court hearing the Petition before the trial on an affidavit showing the grounds on which the application is based.

A re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the presiding officer/returning officer which is that the unsuccessful candidate has the majority of lawful votes.

At least two clear days before the making of an interlocutory application or motion before the Supreme Court, notice of it should be given at the Electoral Commission office and to the other side.

Any summons, notice, or document required to be served on any person with reference to proceedings respecting an application under Section 62 of the Act, for the purpose of causing him to appear before the Supreme Court, or of giving him an opportunity of making a statement or showing cause, or being heard by himself before the Supreme Court for the purpose of Section 62 of the Representation of the People Act [CAP. 146], may be served as provided under Rule 14 of the Election Petition Rules of 1998.

In the situation where there are more than two (2) candidates for more than one (1) seat and a petition is presented against one, claiming against him a re-count and seat, it is not necessary for the Petitioner to claim a general re-count, that is as regards the other candidate or candidates as well; on the re-count against the Respondent resulting in the Petitioner’s favour, he becomes entitled to the Respondent’s seat.

How then is t is the re-count to be made?

If the application is granted, the Supreme Court is to order the re-count to be taken before the trial by an offippointed for the purpose; tse; the order directing it, furthermore generally directs that it shall be taken at the Supreme Court Building either in open Court or otherwise.

The Respondent’s ballot papers are counted by the Petitioner and are then handed to the Respondent to be checked by him, and those for the Petitioner are similarly dealt with by the Respondent. If any are disputed, the opinion of the appointed officer is sometimes asked and given, and if any paper remains disputed by either party, the officer reserves it for the decision of the Supreme Court, setting out in its decision thereto.

After the counted ballot papers have been thus disposed of, the rejected ballot papers are dealt with in like manner.

Applied in this case, the Respondent admits that the Petitioner, Jeneck Samuel had scored 24 votes at the polling station of Espigles Bay as he alleged.

It has to be understood that, as a result of this admission by the Respondent, 24 votes were counted in favour of the Petitioner and this would bring his total votes to an amount of 344 but not 320 as shown by the official results of the election of 6 March 1998.

Counsel for the Petitioner, then, submitted that the Supreme Court exercises its discretion under Section 62 of the Act to direct an examination of the counted and void votes.

This can be verified from the written submissions when Counsel for the Petitioner, at paragraph 10, submits that:

"Rather than call for the invalidity of the elections the Petitioner submits that there should be a recount of all void and counted votes."

In this election petition, the Petitioner Jeneck Samuel is an unsuccessful candidate of the elections of 6 March 1998 in the Constituency of Malekula. In his Petition, he did not set out any ground that he had a majority of lawful votes in these elections. This is a fundamental requirement which is missing and therefore is not made out under Section 62 of the Act.

The admission by the Respondent of 24 votes which are to be counted in favour of the Petitioner is one thing and the Petitioner is credited with 24 votes which were overlooked/mis-counted.

The claim for the re-count of the counted and void votes are different thing. To re-count or to examine the counted and void votes the election must be claimed for the unsuccessful candidate/Petitioner on the ground that he had a majority of lawful votes as provided by Section 62 of the Act and I would add that a seat is claimed by and/or for the Petitioner against a Respondent successful candidate.

This is not what the Petitioner did. In this case, the Petition proceeds on the ground that there are substantial non-compliance of the Election Laws, Rules, Orders and Regulations by the Election Officials/Respondent.

Further as mentioned earlier on, at the request of the Petitioner’s Counsel, two other factual issues placed before the Court were withdrawn since the Petitioner is not ready or is not prepared to proceed with his case as directed.

In my view there is nothing in support of the application to examine the void and counted votes under Section 62 of the Act since the Petitioner is not claiming that he had a majority of lawful votes. The application for an examination or recount of counted and void votes under Section 62 of the Act must fail and I so order.

II. es the the failure of the Respondent to count 24 votes in favour of the Petitioner in the official results of the Elections, affect the result of the elections of 6 March so as to r the elections of Malekula kula Constituency invalid?

In this case, the correct test to be applied is the test applied in the case of Blanchard -v- Cole (1950) D. L. R. 310 C. N. (A.) as submitted by the Respondent. The test is that if the number of mis-counted votes exceeds the plurality of votes cast, the election cannot stand. In this case, the Petitioner claims that 24 votes were not included in his total number of votes cast. He has now a total of 344 votes in his favour.

According to the Official Election results of 16 March 1998, the Petitioner had 320 votes corresponding to 17th position. There are 7 seats for the Malekula Constituency and 21 candidates disputes the 7 seats. The 7th declared elected candidate obtained a total number of 564. Between the 7th position obtained by the last declared elected candidate to Parliament, and the 17th position obtained by the Petitioner, there is a margin of 244 [564 - 320 = 244 votes difference].

On 5 August, 1998 by the Respondent admission, the Petitioner is credited with 24 votes in his favour and this would bring his total votes to 344 and places the Petitioner in 17th position. The margin between the number of votes obtained by the 7th declared elected candidate which is 564 and the 17th position occupied by the Petitioner which is now 344, is 220 [564 - 344 = 220 votes in difference].

It transpires that both margins [244 and 220] far exceed the number of votes claimed to be miscounted and/or overlooked by the Respondent which is 24.

In this case, the admission by the Respondent of a miscount of 24 votes in favour of the Petitioner constitutes a failure by Election officials to keep proper record of the elections as provided under the Representation of the People Act [CAP. 146]. However there is no further evidence from the Petitioner that the election was not conducted in accordance with the principles laid down in the Act and that I am satisfied that the failure of miscounting or overlooking 24 votes at the polling station of Espigles Bay - Malekula - did not affect the result of the election.

It must be understood that the result means the success of one candidate over another and not merely an alteration to the number of votes given to each candidate. (emphasis Added).

The Petition fails. Declarations and orders sought by the Petitioner in his petition all are denied. The Respondent, the Electoral Commission shall issue a declaration published in the Official Gazette within 7 days as from today to effectuate the alternations of the total number of votes obtained by the Petitioner by adding 24 votes which brings his total votes to 344.

No order as to costs.

Dated at Port Vila, this 7th day of October, 1998.

BY THE COURT

Vincent LUNABEK
Acting Chief Justice.