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Posen v Stephens [2004] VUSC 14; Civil Case 151 of 2004 (3 December 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 151 of 2004

BETWEEN:

WILLIE POSEN AND LEON YAWHA
Petitioners

AND:

MOKIN STEPHENS
First Respondent

AND:

JOE NATUMAN
Second Respondent

AND:

KEASIPAI SONG
Third Respondent

AND:

ISAAC JUDAH
Fourth Respondent

AND:

LOUI NAMAK
Fifth Respondent

AND:

BOB LOUGHMAN
Sixth Respondent

AND:

MOSES KAHU
Seventh Respondent

AND:

MARTIN TETE
Eight Respondent

AND:

ELECTORAL COMMISSION
Ninth Respondent

Mr. Nigel Morrison and Ms Jennifer La’au for the Petitioners
Mr. Jack Kilu for the First, Second, Third and Fourth Respondents
Mr. John Malcolm for the 5th Respondent
Mr. Ishmael Kalsakau for 6th and 7th Respondents
Mr. Tom Joe for the 8th and 9th Respondents

JUDGMENT

INTRODUCTION: Nature of action and relief sought

This is an Election Petition (as amended) dated 27 August 2004. The Petition seeks, among other remedies, a declaration that the official declaration of the First, Second, Third, Fourth, Sixth and Seventh Respondents as elected Members of Parliament for Tanna Constituency on 6 July 2004 by the Electoral Commission, the Ninth Respondent, is null and void.

The Petitioners challenge the declaration on 2 grounds.

The first basis of the challenge is on the irregularities of and/or in the process of voting by way of proxy votes cast in favour of the First, Second, Third, Fourth, Sixth and Seventh Respondents during the legislative election of 6 July 2004.

The second ground of challenge is about the ability of the Electoral Commission to declare the number of votes cast for each candidate on Tanna Constituency in accordance with Rule 21(1) of Schedule 5 without complying fully or strictly with Rule 19(2) of the Election of Candidates Rules of Schedule 5 of the Representation of the People Act [CAP. 146].

By consent of all counsel on behalf of their respective clients it is agreed to deal with the second ground first, as a preliminary point because if the Petitioners succeed on that ground of challenge, it can determine at that stage the Petition without determining the first ground of the challenge.

On that basis, the first ground of the challenge is adjourned pending the determination of the second ground.

HEARING ON GROUND 2

The ground 2 of the Petition is set out below:-

Is the Electoral Commission able to declare the number of votes cast for each candidate on Tanna constituency during the 6 July general elections, in accordance with Rule 21(1) of Schedule 5 without complying fully or strictly with Rule 19 (2) of the Election of Candidates Rules of Schedule 5 of the Representation of the People Act [CAP. 146]?

The Petitioners provide no sworn statement nor evidence in support of this ground.

The Eight and Ninth Respondents file the following sworn statements in response.

• Two (2) sworn statements of the Principal Electoral Officer, Mr. Martin Tete, filed on 4 November 2004 and 18 November 2004; and
  
• A sworn statement of Mr. Jones Iakasu, the Registration Officer of Tanna and Outer Islands Constituencies during the Elections of 6 July 2004.
  

These statements are admitted into evidence. There is no challenge on the Sworn Statements of Mr. Jones Iokasu.

However, Mr. Tete was cross-examined on his sworn statements.

Having read the above Sworn Statements and considering the evidence in Court, THE FOLLOWING FACTS AND FINDINGS ARE ESTABLISHED:-

• On 17 May 2004, the Principal Electoral Officer appointed Jones Iokasu as the Registration Officer and election coordinator for Tanna and Tafea outer islands constituencies.
  
• In June 2004, the Registration Officer appointed 27 returning officers for the various polling stations on the island of Tanna.
  
• The general election took place on 6 July 2004. On the same date at 11:30 p.m. the Registration Officer received all the reports of the election results from the returning officers of the polling stations on Tanna.
  
• He then received all reports from the returning officers from the polling stations of Tafea outer islands constituencies on 8 July 2004.
  
• At that point in time, the ballot boxes were kept under the custody of police officers on Isangel, Tanna. Mr. Jones Iokasu went to the Police station at Isangel and verified the unofficial results he obtained from the various polling stations on Tanna and Tafea outer islands constituencies in the presence of Mr. Willie Niere Kapani, the area council secretary and the following police officers:- Wilfred Ros, Judah Isaack and John Rowel. The unofficial results obtained matched the tally sheets in the ballot boxes that were kept under the custody of the police at Isangel, Tanna.
  
• Mr. Jones Iokasu, then instructed the police officers to pack the valid votes, void votes and the electoral rolls into eight (8) ballot boxes.
  
• On 9 July 2004, the following person escorted the ballot boxes from Isangel Police Station to White Grass Airport:- Mr. Jones Iokasu and his driver, Mr. Sam Yalulu, Vanair official man Rom Kapalu, four (4) police officers:- Judah Isaack, John Rowel, Wilfred Ros, and John Graham.
  
• On arrival at the airport, they stopped at the gate in order for Vanair official to open the gate so that the ballot boxes can be unloaded directly into the aircraft.
  
• While waiting the Vanair official to open the gate, fifty (50) strong men approached the vehicle and forcedly removed four (4) ballot boxes from the vehicles, smashed them and immediately set fire on them. Four (4) other ballot boxes were save and retained by the police in Tanna as there were criminal investigations relating to the burning of the ballot boxes in Tanna constituency. They were brought to Port Vila at the custody of the Electoral Commission on 17 November 2004.
  
• On 12 July 2004, Mr. Jones Iokasu, the registration officer for Tanna constituency spoke to Mr. Martin Tete, the Principal Electoral Officer, by phone about the incidents and the results of the elections. Mr. Tete informed Mr. Iokasu not to fax him any report/information and because of the tension, he required Mr. Iokasu to write his report and bring it with him in Vila.
  
• On 12 July 2004, Mr. Martin Tete sought legal advice from the office of the Attorney General over Mr. Iokasu’s reports of the election results notwithstanding the burning of the ballot boxes on 9 July 2004 at White Grass International Airport.
  
• In his letter of 12 July 2004 to the Attorney General, Mr. Tete was concerned that Rule 19(2)(a), (b), (c), (e) and (f) of the Election of Candidate Rules of Schedule 5 of the Representation of the People Act [CAP. 146] cannot be provided by the returning officer because 4 ballot boxes containing general election reports were destroyed and burnt by some angry protestors at the White Grass International Airport on Tanna.
  
• Mr. Tete sought legal opinion of the Attorney General as to whether or not without complying with sub rules (a), (b), (c), (e) and (f) of Rule 19(2) of Schedule 5 of the Act [CAP. 146] as the result of the incident at the White Grass Airport, can the Electoral Commission still be able to cause the results of the 6th July 2004 General Election on Tanna and outer island constituencies on the Gazette together with other constituencies within the time frame provided by law.
  
• On 13th July 2004, the Registration Officer, Mr. Jones Iokasu flew to Vila and presented his report of the election results on Tanna and Tafea outer islands constituencies to the Electoral Commission.
  
• On 15 July 2004, the Attorney General wrote to the Principal Electoral Officer and advised him that Mr. Iokasu, the registration officer has complied with the requirements of finalizing and making his election report available to the Electoral Commission and that the declaration of candidates for Tanna and Tafea outer island should proceed as provided under Rule 21 of the Election of Candidates Rules Schedule 5 of the Act [CAP. 146].
  
• On 15 July 2004, the Electoral Commission declared the official results of Tanna and Tafea Outer Islands constituencies in accordance with Rule 21(1) of Schedule 5 of the Act following the registration officer’s report of the election results.
  

It is a finding that on 12 July 2004 the Principal Electoral Officer was concerned that because of the burning of 4 ballot boxes the requirements of sub rules (a), (b), (c), (e) and (f) of Rule 19 (2) of Schedule 5 of the Representation of the People Act [CAP. 146] cannot be met.

It is also a finding that the requirement of sub rule (d) of rule 19(2) of Schedule 5 of the same Act [Cap. 146] will be met as the number of votes cast for each and all candidates were formally announced by the presiding officers in accordance with rule 19 (1) of Schedule 5 of the Act. The registration officer has the information about the number of votes cast for each and all candidates for Tanna and Outer Islands constituencies. That information is available before and after the burning of the 4 ballot boxes.

Before the burning of the 4 ballot boxes on 9 July 2004, the returning officers presiding in various polling stations on Tanna and Tafea Outer Islands provided the results of the elections in each polling stations of these two constituencies. This includes the number of votes cast for each candidate in the constituencies of Tanna and Tafea outer islands.

After the burning of the 4 ballot boxes Mr. Tete wrote to the Attorney General to seek his legal opinion as a result of the burning of the 4 ballot boxes, because the requirements (a), (b), (c), (e) and (f) of rule 19 (2) of Schedule 5 of [CAP. 146] cannot be met. However, the requirement (d) of rule 19 (2) of Schedule 5 which is about the number of votes cast for each candidate in the constituencies of Tanna and outer islands can be met.

Finally it is also a fact that the information for the Official Report under Rule 19(2) will not be complete because of the burning of the 4 ballot boxes on Tanna on 9 July 2004.

THE LAW

The relevant provisions of the Representation of the People Act [CAP. 146] are set out below:-

PART III

ELECTION OF MEMBERS OF PARLIAMENT

METHOD OF VOTING AND PROCEDURES

37. The method of voting procedures to be observed during polls, and the manner of counting votes and declaring the election of candidates shall be in accordance with the provisions of Schedule 5.
    

PUBLICATION OF RESULTS

38. As soon as practicable after an election the Electoral Commission shall cause the results to be published in each constituency in such manner as it considers appropriate and in the Gazette.
    

PART XIV

ELECTION REPORTS

REPORT BY PRINCIPAL ELECTORAL OFFICER AND ELECTORAL COMMISSION

39. (1) Not later than 3 months after an election is held, the Principal Electoral Officer shall submit a report about the election to the Electoral Commission.

(2) The Electoral Commission shall not more than 3 months after receiving the report of the Principal Electoral Officer make a report to Parliament concerning the conduct of the election which shall include a statement on the overall costs thereof, information on difficulties encountered and how they were dealt with and recommendations for improvements and changes in procedures for future elections .

PART XVI

ELECTION PETITIONS

ELECTIONS ONLY TO BE CHALLENGED UNDER THIS ACT

54. (1) The validity of any election to Parliament may be questioned by a Petition brought for that purpose under this Act and not otherwise;

(2) Every election petition shall be heard by the Supreme Court.

55. An election petition may be presented by one or more of the following:-
    
    • (a) a person who is registered to vote at the election to which the petition relates;
      
    • (b) a person claiming himself to have been a candidate at such election.
      

ELECTION PETITIONS TO BE IN WRITING AND COPIES TO BE SERVED ON AFFECTED PERSONS

58. (1) An election petition shall be in writing and shall specify the ground or grounds upon which an election is disputed.

(2) The Supreme Court shall cause a copy of each election petition to be served on any person whose election may be affected by the petition and allow such person a reasonable time in which to make any submissions in writing on such petition and an opportunity to be heard on the hearing of the petition.

DECISIONS OF COURT IN ELECTION DISPUTES

60. (1) On hearing a petition the Supreme Court may –

(a) declare the election to which the petition relates is void;

(b) declare the candidate other than the person whose election is questioned was duly elected; or

(c) dismiss the petition and declare that the person whose election was duly elected; or

(2) The Supreme Court may make such orders as to the payment of costs by any person appearing before it as it may deem fit.

GROUNDS FOR DECLARING ELECTION VOID

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) bribery, treating, undue influence or other misconduct or circumstances whether similar to those herein before enumerated or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(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 affect the result of election;

(c) the candidate was at the time of his election a person not qualified or disqualified for election; or

(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) The election of a candidate shall be declared void if he is convicted by a Court of committing a corrupt practice or of attempting or conspiring to commit a corrupt practice.

(3) Notwithstanding the provisions of subsection (1) –

(a) where upon the hearing of an election petition the Supreme Court finds that any agent of a candidate has been guilty of a corrupt practice and the Supreme Court further finds that the candidate has proved to the Supreme Court that –

• (i) no corrupt practice was committed by the candidate himself or with his knowledge or consent or approval;
  
• (ii) the candidate took all reasonable means for presenting the commission or corrupt practices at such election;
  
• (iii) in all other respects the election was free from any corrupt practice on the part of the candidate; and
  
• (iv) such corrupt practices did not affect the result of the elections, then, if the Supreme Court so decided, the election of such candidate shall not by reason of any such practice be void;
  

(b) where upon the trial of an election petition the Supreme Court finds that there has been failure to comply with any provision of this 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 reasons of such failure, be void.

SCHEDULE 5

THE REPRESENTATION OF THE PEOPLE ACT [CAP. 146]

ELECTION OF CANDIDATES RULES

COUNTING OF VOTES

16. (1) Immediately a poll is closed the returning officer shall administer the counting of the votes which shall be done by –

(a) opening the ballot box or boxes;

(b) the returning officer removing all envelopes from each box;

(c) the returning officer taking the ballot papers from the envelopes;

(d) the returning officer reading out the name on each ballot paper;

(e) the polling clerks recording the number of votes case for each candidate on 2 tally sheets provided for that purpose.

(2) If the number of envelopes is found to be more or less than the marginal signatures or initials made in the roll in accordance with rule 11 (c) the discrepancy shall be stated in the report provided for in rule 19 (2).

VOID BALLOT PAPERS

17. Any ballot paper which –

(a) by any writing or mark thereon identifies the voter;

(b) is not in an envelope or is in a non-official envelope; or

(c) is in envelope containing more than 1 ballot paper;

shall be void and shall not be counted.

DECLARATION OF VOTES AND REPORT ON VOTING

19. (1) When a returning officer is satisfied that the count or recounts are complete he shall declare counting of votes completed and formally announce the votes cast for each candidate.

(2) Immediately after declaring the counting of votes completed the returning officer shall complete the official report on polling which shall state –

(a) the number of registered voters;

(b) the number of voters who voted;

(c) the number of void ballot papers;

(d) the number of valid votes cast for each candidate;

(e) such other matters as these rules provide shall be included; and

(f) such other matters as the Principal Electoral Officer shall direct may be included.

(3) The report shall be made in duplicate in French, English or Bislama.

(4) It shall be signed by the returning officer and the polling clerks. It shall be countersigned by such of the candidates as may be present at the count.

(5) After it has been signed the report shall be placed in a sealed envelope.

(6) The returning officer shall also seal in separate packets the counted and void ballot papers and endorse on each packet –

(a) a description of its contents;

(b) the date of polling; and

(c) the name and number of the polling station.

(7) The packets referred to in subrule (6) shall immediately they have been sealed and endorsed be signed on the outside by the persons referred to in subrule (4)

(8) The report and the sealed packets referred to in subrule (6) shall be delivered to the registration officer responsible for the constituency in which the poll was taken by the returning officer or by a person instructed by him.

NOTIFICATION OF VOTES CAST FOR EACH CANDIDAE TO ELECTORAL COMMISSIONER BY REGISTRATION OFFICER

20. When a registration officer has received all the reports provided for in rule 19 including reports from any polling stations where a new poll has been held under the provisions of section 35 he shall notify the Electoral Commission of the number of votes cast for each candidate in the constituencies for which he is responsible.
    

DECLARATION BY ELECTORAL COMMISSION OF CANDIDATES ELECTED

21. (1) The Electoral Commission shall as soon as practicable after receiving notification in accordance with rule 20 from all the registration officers announce the number of votes cast for each candidate in each constituency.”

SUBMISSIONS

Mr. Nigel submits on behalf of the Petitioners as follows:-

The Electoral Commission declares the official results of the election of Tanna and Outer Islands constituencies on the basis of rule 21(1) of Schedule 5 of the Act [CAP. 146].

Rule 21 relies upon receipt of the notification of the Electoral Commission by the Registration officer.

It is then argued for the Petitioners that the report under rule 19(2) of Schedule 5 are not done as confirmed by the evidence of Mr. Tete. It is therefore submitted that if the official report under rule 19 (2) are not done, it is not possible to make findings of notification of the Electoral Commission as set out under rule 20 of the Schedule 5 and so the Electoral Commission cannot make the declaration she made on 15 July 2004 in relation to election of candidates on Tanna and outer islands constituencies.

Mr. Nigel further submitted that Mr. Tete acknowledges in his evidence that because of the absence of report under rule 19 (2), he sought comfort for the Attorney General before the Commission proceeded. Further it is said whether there is in existence informal information available, they do not assist. The report under rule 19(2) of Schedule 5 is the requirement. It is the process that is to be followed.

It is also said that although the Registration Officer checks the tally sheets there is no evidence that he compiled the official report under rule 19(2).

It is also said the information were are not available in the declaration for reliance as compared to the declarations made in respect to other constituencies on the same date.

It is further said for the Petitioners that the Electoral Commission made declaration in respect to Tanna and outer islands constituencies without the rule 19 (2) of Schedule 5 report.

It is submitted that rules 19, 20 and 21 also are not rules that provide for half of the results. They provide for the full and detailed information. It is submitted that the Electoral Commission did not receive information in accord with rule 19 (2) of the Election of Candidates rules of Schedule 5 of the Act [CAP. 146]. Therefore, by declaring the results of the Election of Tanna and outer islands on 15 July 2004, the Electoral Commission exercises the power which is not in accord with Schedule 5 of the Election of Candidate Rules of the Act [CAP. 146].

The Petitioners by counsel, submitted finally that there is a breach of rule 19 of Schedule 5. The non compliance of rule 19 affect rule 20 and rule 21 of Schedule 5 of the Act [CAP. 146]. As such, the non compliance with the provision of the Act affect the results of the election. The Petitioners rely on section 61 (1) (b) of the Representation of the People Act [CAP. 146] to declare null and void the election of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents.

Section 61 (1) (b) of the Representation of the People Act [CAP. 146] provides:-

“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 –

...

(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;

....”

The submissions of the Respondents by their respective counsel can be summarized as follows:-

The Respondents submitted that the evidence of the registration officer, Jones Iokasu is not challenged. He provided his report of the results of the election of Tanna and outer island constituencies of 6 July 2004 to the Electoral Commission on 13 July 2004.

It is said although the report was made after 4 ballot boxes were burnt on 9 July 2004, the information provided in the report itself were provided by the returning officers and extracted by the registration officer before the burning of the ballot boxes. They submit that the Electoral Commission complied with rule 21(1) of Schedule 5 of the Representation of the People Act [CAP. 146] after being notified by the registration officer, Jones Iokasu of the number of votes cast for each candidate in the constituencies of Tanna and outer islands. They say this is sufficient for the Electoral Commission to make declaration in accordance with rule 21(1) of the Election of the candidate rules of Schedule 5 of the Act.

It is further submitted that the Electoral Commission has a statutory duty to make declaration under rule 21(1) as soon as practicable once the Commission is notified of the number of votes cast for each candidate.

It is submitted rule 19 is distanced from rule 20 of the Schedule 5.

Rule 21 is specific. If the Electoral Commission is notified of the number of votes cast by each candidate, he can make declaration under rule 21 of Schedule 5.

Finally, the respondents submitted it is lawful for the Electoral Commission to make the declaration she made on 15 July 2004 in respect to Tanna and outer islands constituencies.

They request the Court to exercise its discretion under section 61 (3) (b) to refuse the relief sought.

Section 61 (3) (b) provides:-

“GROUNDS FOR DECLARING ELECTION VOID

61. ...

(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 this 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.”

APPLICATION OF THE LAW

This is an election dispute Court. The jurisdiction of the Supreme Court is set out under Part XVI of the Representation of the People Act [CAP. 146]. This Court is not dealing with the offences arising out of the burning of the ballot boxes. These offences will be dealt with by the criminal Court.

The circumstances of this election dispute case warrant proper consideration. The basis of this challenge is not about the voting or the counting processes of the election of 6 July 2004 on Tanna and outer islands constituencies. It is about the failure of the registration officer of the two (2) constituencies to provide full report information on the results of the election of 6 July 2004 to enable the Electoral Commission to make declaration under rule 21 (1) of Schedule 5 if the Act.

The failure of the election authorities is due to incidents which are foreign to the conduct, ability and control of the election authorities. These incidents occurred three (3) days after the counting of votes and also after the formal announcement of numbers of votes cast for each candidate in the two (2) constituencies in accordance with rule 19 (1) of Schedule 5.

Applying the law to the facts as found, the starting point for consideration must be rule 19 of Schedule 5 of the Act [CAP. 146].

Rule 19 of Schedule 5 provides:-

“DECLARATION OF VOTES AND REPORT ON VOTING

19. (1) When a returning officer is satisfied that the count or recounts are complete he shall declare counting of votes completed and formally announce the votes cast for each candidate.

(2) Immediately after declaring the counting of votes completed the returning officer shall complete the official report on polling which shall state:-

(a) the number of registered voters;

(b) the number of voters who voted;

(c) the number of void ballot papers;

(d) the number of valid votes cast for each candidate;

(e) such other matters as these rules provide shall be included; and

(f) such other matters as the Principal Electoral Officer shall direct may be included.

(3) The report shall be made in duplicate in French, English or Bislama.

(4) It shall be signed by the returning officer and the polling clerks. It shall be countersigned by such of the candidates as may be present at the count.

(5) After it has been signed the report shall be placed in a sealed envelope.

(6) The returning officer shall also seal in separate packets the counted and void ballot papers and endorse on each packet –

(a) a description of its contents;

(b) the date of polling; and

(c) the name and number of the polling station.

(7) The packets referred to in subrule (6) shall immediately they have been sealed and endorsed be signed on the outside by the persons referred to in subrule (4).

(8) The report and the sealed packets referred to in subrule (6) shall be delivered to the registration officer responsible for the constituency in which the poll was taken by the returning officer or by a person instructed by him.

By perusing the language of rule 19 of the Schedule, it is clear that it provides for three separate and distinct functions for the elections officers. First, the declaration of votes cast for each candidate which must be formally announced by the returning officer of each polling station pursuant to rule 19 (1). Second, the report on voting as set out under rule 19 (2); and third, the delivery of the reports and other sealed packets to the registration officer responsible for the constituency in which the poll was taken (rule 19 (8)).

It is clear rule 19(1) can be independently applied from rule 19(2) for the purpose of the declaration under rule 21(1) of schedule 5 of the Act [CAP. 146]. I accept the submission that Rule 19(2) is distanced from Rule 20 and Rule 21(1) is specific.

In the present case, the evidence which is not in dispute is that on 6 and 8 July 2004, the registration officer of the constituencies of Tanna and outer islands had received the number of votes cast for each candidate which has been formally announced in accord with rule 19 (1). Once the registration officer is in possession of such information material, he shall notify the Electoral Commission about the same in accord with rule 20.

Rule 20 provides:-

“NOTIFICATION OF VOTES CAST FOR EACH CANDIDATE TO ELECTORAL COMMISSIONER BY REGISTRATION OFFICER

20. When a registration officer has received all the reports provided for in rule 19 including reports from any polling stations where a new poll has been held under the provisions of section 35 he shall notify the Electoral Commission of the number of votes cast for each candidate in the constituencies for which he is responsible.”
    

The evidence is that there is not enough information to fully comply with the requirements of rule 19(2)(a), (b), (c), (e), (f) because of the burning of 4 ballot boxes on 9 July 2004.

However, information under 19(2)(d) is available as it was formally announced under rule 19(1).

In the particular circumstances of this case, although the reports were burnt and it is not possible to comply with rule 19(2), it is however, sufficient for the Registration Officer to rely on information obtained in accordance with rule 19(1) and to notify the Electoral Commission under rule 20 for the purpose of declaration under rule 21(1) which provides:-

“DECLARATION BY ELECTORAL COMMISSION OF CANDIDATES ELECTED

21. (1) The Electoral Commission shall as soon as practicable after receiving notification in accordance with rule 20 from all the registration officers announce the number of votes cast for each candidate in each constituency.”

The Petitioners by counsel submitted that the non-compliance of Rule 19(2) affects Rule 20 and Rule 21(1) of Schedule 5. And such the non-compliance affects the results of the election. They rely on Section 61(1)(b) of the Act for the Court to declare void the election of the First, Second, Third, Fourth, Fifth and Sixth Respondents.

The particular circumstances of this case show that, even if there is non compliance with Rule 19(2), the evidence is that the election was conducted in accordance with the principles laid down in the Act and such non compliance of rule 19(2) do not affect the result of the election of Tanna and outer islands constituencies of 6 July 2004. Section 61(1), (3)(b) of the Act [CAP. 146] provides as follows:-

“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...

(3) Notwithstanding the provisions of subsection (1)-

(b) where upon the trial of an election petition the Supreme Court finds that there has been failure to comply with any provision of this 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.”

Applying Section 61(3)(b) of the Act [CAP. 146], the relief sought in respect to ground 2 of the Petition cannot succeed. It is refused.

The second ground of the Petition is dismissed.

The matter is listed for conference in respect to first ground which is still outstanding on 2 February 2005 at 9.30 a.m.

DATED at Port Vila this 3^rd day of December 2004

BY THE COURT

Vincent LUNABEK
Chief Justice