Morarji v Singh [1996] FJHC 75; Hbc0509.96s (2 December 1996)

Fiji Islands - Morarji v Singh - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NOS. 509, 510 AND 511 OF 1996

of the Local Goal Government Act and Regulations made thereunder

AND:

IN THE MATTER of t of the Electoral Decree 1991 and Regulations made thereunder

AND:

IN THE MATTER of the Elections of the Nadi Town Council,
Namaka, Martintar and Nadi Wards held on 28th September 1996.

BETWEEN:

JAYANTI MORARJI
f/n Morarji Kalidas,
AMZAD ALI
f/n Subhan Ali,
PRADUMAN RANIGA
f/n Mohan Lal
and 10 Others

PETITIONERS

AND:

PREM SINGH
f/n Pritam Singh,
SHRI VENKANNA CHETTY
f/n Siddaya Chetty,
DHANESH RANIGA
f/n Lalji Bhanji Raniga
and 19 Others

RESPONDENTS

S. Matawalu for the Petitioners <0"> D.S. Naidu for the 15 Respondents

S. Banuve for 6th and 8th Respondents

S. Rabuka for the 7th Respondent

Dates of Hearing: 12th, 21st November 1996: 0"> Date of Ruling: 2nd December 1996

RULING

On the 28th of September 1996 Municipal Council Elections were held hree Wards of the Nadi Town Town Council as a result of which 15 candidates were elected for the next three years. They are all the Respondents except the 6th, 7th and 8th in all three petitions.

The Third Respondent in Action No. 511 Satish Patel f/n Jayantibhael has not taken any part in these proceedings.

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Presently before the Court are three petitions issued on the 21st of October 1996h seek to have the electionction for the three Wards declared void and a new election held to fill the vacancies thereby created.

Alsore the Court and the subject of this ruling are three Summonses issued on the 8th of Novembovember 1996 seeking orders that the election petitions in each action be dismissed on the grounds:

(a) that none of them disclosy reasonable cause of action;

ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> (b) that each of them is scandalous, frivolous and vexatiand

(c) that each of them is otherwise an abuse of the process of the Court.

The Summonses alaim that the withdrawal/discontinuance of the civil action No. 482 of 1996 by the Petitionetioners was contrary to paragraph 24 of the Electoral (Elections Petitions) Regulations 1992, made under the Electoral Decree 1991 1991 (Legal Notice No. 39) and therefore the Petitioners are estopped from proceeding with the present actions.

Each Summons also seeks an order that the Petitioners pe Respondents their costs of each action and each applicatiication or Summons.

I do not propose in this ruling to go into any detail athe matters alleged in each petition but broadly speaking ting they allege that the Returning Officer for each election had made undue returns or undue election of the first five named Respondents to be members of their respective Wards for various reasons set out in each petition.

There are allegations that all the elections had been procured by an Electoral College whose qualifications have contravened the provisions of Sections 11 and 12 of the Local Government Act Cap. 125 and the Regulations thereunder; of the provisions of the Electoral Decree 1991 and its Regulations; that various voters' names appeared more than once in the Electoral Roll of each Ward; that certain named persons have not continuously resided in the municipality for a period of at least 12 months at the time of registration in the Electoral Roll and were permitted to vote; that a number of nominations of electors for certain named limited liability companies are invalid in that they contravene Section 11(4)(b) of the Local Government Act; that a number of named estates were permitted to participate in the elections although unauthorised persons other than the trustees of the estates voted on their behalf; that there was bias and hostility shown to the Petitioners by the Town Clerk of the Nadi Town Council and one Robin Ali who had the control and supervision of nominations and that the Respondents failed to reply to certain objections made by the Petitioners.

The broad thrust of the persuasive submissions I have received so far from counsel for the ipal Respondents is that evat even if there were certain irregularities in the procedures followed by the Returning Officer of the Nadi Town Council, the Supervisor of Elections and the Attorney-General of Fiji, because of the majority of votes received by the five elected Respondents compared with the number of votes received by the Petitioners such irregularities if they existed did not affect the result of each election. Put another way it is submitted that when one looks at the highest votes of the 1st unsuccessful Petitioner and the lowest votes of the respective successful Respondent and compares them the number is so high that it could not affect the result of each election.

It is also submitted that the Petitioners have not shown that there were any corrupillegal practices prior to,r to, during or after the elections which would cause this Court to declare the elections void.

In answer t Respondents' submissions counsel for the Petitioners argues equally persuasively that I sh I should not dismiss the petitions at least at this stage and he cites several well known authorities in support. I shall mention only some of these.

The first is the remf Fletcher-Moulton, L.J. in Dyson v. Attorney-General [1910] UKLawRpKQB 203; (1911) 1 K.B. 410 at 419 that:that:

"To md it is evident that our judicial system would never permitermit a Plaintiff to be driven from the judgement seat in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad."

Similarly, Lindley M.R. observed in Hubbuck & Sons Ltd. v. Wilkinson [1898] UKLawRpKQB 176; (1899) 1 Q.B. 86 at p.91:

"The .., summary procedure (i.e. under O.18 R. 18) is only appropriate tate to cases which are plain and obvious so that any master or judge can say at once that the Statement of Claim as it stands is insufficient, even if proved, to entitle the Plaintiff to what he asks."

A more recent authority is the judgment of Barwick C.J. in General Steel Industric. v. Commissioner for Rail Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 at pp.129-130 who first quoted with approval the statement of Dixon J. (as he then was) in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 who said:

Sir Garfield Barwick C.J. then continued:

&quotough I can agree with Latham C.J. in the same case when he said that the defendant should buld be saved from the vexation of the continuance of useless and futile proceedings (1), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

In an earlier Victorian case Niven v. Grant 29 VLR 102 at6 Holroyd J. said when dealing with an application to strikstrike out part of a pleading:

"In the arguof the point or points set down, not only must all the fact facts alleged in the pleading which is attacked be accepted as true, but it must be taken for granted that on all other points that pleading is unassailable."

Applying these well known propons of law to the facts of the present case one thing must be said at the outset: in the vahe various affidavits which have been filed on behalf of the parties there is undoubted dispute as to facts which thus gives rise to certain triable issues. I confess at the present time to certain reservations about the Petitioners' case in each petition but I remind myself that none of the various deponents has been cross-examined on his affidavit and after cross-examination the Court may be in a better position to determine each petition. I also remind myself that under Section 18 of the Electoral (Election Petitions) Regulations 1992 there is no right of appeal against the decision of this Court on the three petitions. It therefore is important that I should not finally shut out the Petitioners from the judgment seat unless there are overwhelming reasons for so doing. In what was tantamount to a cri de coeur Mr. Matawalu said on p.68 of the transcript of the second day's proceedings "I would implore Your Lordship to grant us the right to proceed and prove our case so that at the end of day we can be satisfied, irrespective of the result of the case".

I would be a very deaf judge if I were not to accede if humanly possible to such a plea and for these reasons, despite the reservations I hold on certain aspects of these petitions, at this juncture I am not prepared to dismiss them summarily in accordance with the Respondents' Summonses.

There remains the question of withdrawal. In these cases the Petitioners did nohdraw their earlier petitiotitions but discontinued them. Under Order 21 Rule 2 of the Rules of the High Court a Petitioner may, without the leave of the court, discontinue the action. Here the Petitioners did not withdraw their petitions under Regulation 24 of the Electoral (Election Petitions) Regulations 1992 where leave is necessary. I therefore reject the Respondents' submission on this question.

The hearing of the petitions will therefore continue but I direct that the costs of each Summons be in the cause.

JOHN E. BYRNE

JUDGE

Legislation and authorities referred to ling:

Electoral Decree 1991 (Election Petitions) Regulation 1992

Local Government Act Cap. 125

Dyson v. Attorney-General [1910] UKLawRpKQB 203; (1911) 1 K.B. 410

General Steel Industries Inc. v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Hubbuck & Sons v. Wilkinson (1899) 1 K.B. 86

Niven v. Grant [1903] VicLawRp 54; (1903) 29 VLR 102

The following additional cases were referred to in ant:

Hospitals Contribution Fund of Australia v. Hunt [1938] ArgusLawRp 58; (1983) 44 ALR 365

Electoral (Registration)(Amendment) Regulations 1992 (Legal Notice No. 21) dated 22nd February 1992

Electoral (Registration)(Amendment No.2) Regulations 1992 dated 28th February 1992

Fox v. Stirk & Another (1970) Vol.3 ALL E.R. 7

Morgan & Others v. Simpson (1974) 3 ALL E.R. 722

R. v. His Honour Judge Sir Donald Hurst Ex-parte Smith (1960) 2 ALL E.R. 385

Re Wellington Central Election Petition, Shand v. Comber (1973) 2 NZLR 470

Woodward v. Sarsons & Another [1875] UKLawRpCP 68; (1874-80) ALL E.R. Rep. 262

Parker's Conduct of Parliamentary Elections

Schofield's Election Law

Schroeder "Challenging an Election"

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