Chand v Ravea [1994] FJHC 36; Hbc0130j.94s (20 April 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0130/94S

IN THE MATTER of the Electoral Decree 1991 and
the Electoral (Conduct of Elections) Regulations 1992 and
Electoral (Election Petitions) Regulations 1992

AND

IN THE MATTER of a Snap Election of Indian Member for
the Nasinu East/Rewa East Indian Constituency (29) for
House of Representatives held between 18th February to 25th February, 1994.

BETWEEN:

RAM CHAND
(f/n Sukh Lal) of
Wainivesi, Tailevu, Barrister & Solicitor
Petitioner

AND:

POASA RAVEA
of Suva, Civil Servant, Commissioner, Central Division
First Respondent

AND:

HARNAM SINGH GOLIAN
of Suva, Businessman
Second Respondent

S. Sharma: For the Petitioner
D. Singh: For the First Respondent
N.S. Arjun: For the Second Respondent

Date of Hearing: 20th April 1994
Date of Interlocutory Judgment: 20th April 1994

INTERLOCUTORY JUDGMENT

The Second Respondent seeks further particulars under paragraph 4(a)(i) to (xii) of the Petition herein and requires the Petitioner to state the number of ballot papers containing the various characteristics or faults alleged by the Petitioner, for example, the number of ballot papers which did not contain the sign of a tick in the space provided, the number of ballot papers alleged to contain a tick outside the compartment or demarcation line, the number of ballot papers which contained a cross in the space provided in the ballot paper and so on as alleged in paragraph 4(a) of the Petition.

In support of the request for further particulars counsel for the Second Respondent remarked that even if for example any ballot paper used in this poll did not contain the sign of the tick in the space provided or contain a tick or marking outside the compartment or demarcation line that would not of itself invalidate the vote cast. He argued that the Petitioner must have some evidence on which to base his petition and that it is no answer for the Court to direct the parties to count the votes shown on the voting papers now being held under my order of 22nd March 1994 as this would amount to a recount of votes. Counsel argued that if the Petitioner is seeking a recount then he should proceed by Summons with a supporting affidavit or affidavits. He further argued that if the Court were to direct the parties to count the votes now being held by the Chief Registrar this would be nothing more than a fishing expedition and so unfair to the Second Respondent. Counsel referred me to the Fourth Edition of Halsbury Vol. 15, Paragraph 940 which states the English practice in disputed Election Petitions. However Mr. Arjun readily concedes that there is no similar practice or legislation in Fiji.

He finally submits that it is only fair to the Second Respondent that the Petitioner should give the details requested in the request for further particulars.

The Petitioner opposes the application. His Counsel argues that to accede to the application would be for the Court to supplement the Electoral Regulations. He submits that the petition complies fully with Regulation 5 of the Electoral (Election Petitions) Regulations 1992 which sets out the requisites of any petition. He also refers me to Regulation 10(iii) and Regulation 17 of these Regulations. He denies that the Petitioner is engaged on a fishing expedition and says that he is complaining only of 300 ballot papers which allegedly do not comply with the Electoral (Conduct of Elections) Regulations 1992.

Regulation 10(1)(iii) of the Election Petition Regulations provides so far as relevant that subject to the Regulations, the powers of the Court shall, as nearly as circumstances admit, be the same, and the Court shall have the same powers as on the trial of a civil action, and without limiting the generality of that shall include (iii) the granting of any party to a petition of leave to inspect in the presence of the Supervisor or an Officer of the Court, the registers and other documents used in connection with any election. Although the word "documents" is not defined in Regulation 2, the Interpretation Regulation, I have no doubt that it includes the most vital documents relevant in any election, namely the ballot papers. For this reason I can see no reason either in common sense or law to prevent the parties inspecting and if necessary counting the voting papers currently being held by the Chief Registrar. It seems to me that if they do so it may well expedite the determination of this petition because I would have thought it would give the Petitioner a reasonable estimate of his chances of success in the petition.

According to his petition, and this is not in dispute, the margin of votes separating the declared successful candidate, the Second Respondent from the Petitioner was 66 so that it seems to me only fair that the Petitioner should be able to inspect and count the votes in the office of the Chief Registrar. I would not regard such an exercise as a fishing expedition but as a means of giving effect to the intention of the Electoral Regulations.

It would have been a simple matter for the Draftsman of the Electoral (Election Petitions) Regulations to have enlarged the number of requisites of a petition if this had been thought desirable. Instead all the Petitioner is required to do under Regulation 5 is to state the facts on which he relies to invalidate an election or return and the facts which enable the specific matter or matters on which the Petitioner relies to be identified with sufficient particularity. In my view there is nothing in Regulation 5 which requires the Petitioner in this case to go beyond the particulars he has provided in Paragraph 4(a) of his petition.

If the parties now inspect the ballot papers being held by the Chief Registrar it should become obvious to them what are the number of ballot papers containing the various characteristics or deficiencies alleged in the petition.

Finally I note that under Regulation 17 the Court should give its decision on a petition without delay. In my judgment to allow the request of the Second Respondent could well result in unnecessary delay and so run contrary to Regulation 17.

The application is therefore refused and I order that the parties do inspect and obtain copies of the relevant ballot papers and returns under the supervision of the Chief Registrar within the next seven days. I adjourn the matter for mention at 9.00 a.m. on the 2nd of May 1994.

JOHN E. BYRNE
JUDGE

HBC0130J.94S