Morarji v Singh [1997] FJHC 147; Hbc0509j.96s (10 October 1997)

Fiji Islands - Morarji v Singh - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC 509 OF 1996

BETWEEN:

JAYANTI MORARJI AND FOUR OTHERS

PETITIONERS

AND:

PREM SINGH AND FOUR OTHERS

FIRST FIVE RESPONDENTS

AND:

THE RETURNING OFFICER, NADI TOWN COUNCIL ELECTIONS

SIXTH RESPONDENT

AND:

THE SUPERVISOR OF ELECTIONS

SEVENTH RESPONDENT

AND:

THE ATTORNEY-GENERAL OF FIJI

EIGHTH RESPONDENT

S. Matawalu for the Petitioners

D.S. Naidu for the First Five Respondents except in HBC 511/96 for the First Four Respondents

S. Banuve for the Sixth and Eighth Respondents

I. Tuberi and J Apted for the Seventh Respondent

Dates of Hearing: 12th, 21st November, 2nd, 3rd, 4th, 5th, 6th, 9th, 10th December, 1996; 11th June, 1997

Dates of Submissions: 11th, 30th June, 29th July; 19th, 22nd August, 1997

Date of Judgment: 10th October, 1997

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC 510 OF 1996

IN THE MATTER

BETWEEN:

AMJAD ALI AND FOUR OTHERS

PETITIONERS

AND:

SHREE VENKANA CHETTY AND FOUR OTHERS

FIRST FIVE RESPONDENTS

AND:

THE RETURNING OFFICER NADI TOWN COUNCIL ELECTION

SIXTH RESPONDENT

AND:

THE SUPERVISOR OF ELECTIONS

SEVENTH RESPONDENT

AND:

THE ATTORNEY-GENERAL OF FIJI

EIGHTH RESPONDENT

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. 511 OF 1996

BETWEEN:

PRADHUMAN RANIGA AND FOUR OTHERS

PETITIONERS

AND:

DANESH RANIGA AND FOUR OTHERS

FIRST FIVE RESPONDENTS

AND:

THE RETURNING OFFICER NADI TOWN COUNCIL ELECTIONS

SIXTH RESPONDENT

AND:

THE SUPERVISOR OF ELECTIONS

SEVENTH RESPONDENT

AND:

THE ATTORNEY-GENERAL OF FIJI

EIGHTH RESPONDENT

JUDGMENT

INTRODUCTION:

In September 1996, General Elections were held for the Nadi Town Council as well as all other municipal councils in Fiji. Writs for all the elections were issued by the Electoral Commission on September 11, 1996, and polling was held in all of Fiji's municipalities on Saturday, September 28, 1996.

The results in all municipalities except Nadi were not disputed by the unsuccessful candidates.

Ten candidates stood for election in each of Nadi's 3 Wards. Five candidates in each Ward were endorsed by the political party known as the National Federation Party ("the National Federation Party"), while the remaining five were endorsed by another party called the Nadi Ratepayers and Citizens Association ("the Ratepayers"). At the conclusion of the counting of the votes after polling had ended, the Returning Officer for Nadi Town, who holds the Public Service position of "District Officer" Nadi and is a Respondent to each of the petitions ("the Respondent - District Officer, Nadi"), declared the results of the count for each Ward. His declarations were subsequently notified in the Extraordinary Fiji Republic Gazette of Friday, October 11, 1996 and I take judicial notice of the declarations.

In Namaka Ward he declared Prem Singh, Salesh Mudaliar Kumar, Abdul Gani, Saketa Leone and Kamenieli Nawaqavonovono to be elected by majorities of 91, 75, 72, 71 and 61 respectively. The winning candidates in this Ward belonged to the National Federation Party.

In Martintar Ward he declared Shree Venkana Chetty, Mohammed Jamal, Surendra Kumar, Josephine Williams and Bal Ram of the National Federation Party to be elected by majorities of 111, 104, 98, 97 and 96 respectively.

In Nadi Ward he declared Dhanesh Raniga, Dilip Khatri, Satish Patel, Vilikesa Driu and Shasta Nandan of the National Federation Party to be elected by majorities of 107, 97, 39, 33 and 12 respectively.

It will thus be seen that the candidates of the National Federation Party made a clean sweep of all the Council seats in the municipality of Nadi and conversely, the candidates of the Ratepayers Party failed to win a single seat.

The unsuccessful candidates in all three wards now petition this Court to have the results of the elections in Nadi declared void and a new election held to fill the vacancies thereby created.

THE HEARING:

The hearing of the evidence, interlocutory matters and concluding oral arguments took ten days. The transcript of evidence and oral submissions runs to 923 pages.

I was told that this is the first time the High Court has been asked to consider most of the legal issues raised by these Petitions so that this Judgment sets out the background facts and law at some length. It then discusses the legal issues raised by, and the law relevant to the three petitions which were issued on the 21st October, 1996, and then examines the factual matters raised by the evidence adduced by all sides.

THE PETITIONS:

The joint Petitioners in each case comprised unsuccessful candidates from the Ratepayers Party. One unsuccessful candidate from each of the Martintar and Nadi Wards, however, did not join in the petitions filed for these wards.

The Returning Officer for Nadi Town (District Officer, Nadi), the Supervisor of Elections and the Attorney-General (in a nominal capacity) were also made respondents to each petition.

The petitions were heard together for the convenience of the Court and the parties as well as because of their general commonality between the contents of the 3 petitions. But for my unexpected illness which required me to be out of Fiji between late December 1996 and the middle of April 1997, it was not possible for me to resume the Hearing after the adjournment on the 10th December 1996, until the 11th June 1997. This has resulted in the delivery of this Judgment much later than I would have wished because of the expedition normally required in hearing and disposing of electoral petitions. Indeed prior to the adjournment in December all parties were under the impression that the Court was obliged to give its decision on the petitions within two months after the date on which the petitions were filed. This was due to Regulation 17 of the Electoral (Election Petitions), Regulations 1992, but it was later discovered that this regulation had been repealed so that the Court was no longer under the pressure of having to give its decision not later than the 21st December, 1996. Nevertheless, as a general principle, despite the repeal of this regulation I consider it desirable in normal circumstances that Judgment on electoral petitions should be given as soon as possible after the Hearing and submissions conclude, the reason being that it is desirable that the results of Municipal Council elections and, of course, Parliamentary elections should be known as soon as possible for the purpose of enabling the business of local and parliamentary government to proceed as quickly as possible.

All three petitions pray for the same relief-

"that this Honourable Court do determine that the election ... be declared absolutely void and a new election be held to fill the vacancies thereby created".

All of the petitions are also made on identical grounds although, of course, the particulars specified in support differ from ward to ward.

These grounds are:

(a) That the "election" of the first five named Respondents on 28th September, 1996 for the [Martintar/Namaka/Nadi] Ward in the Nadi Town Council is absolutely void, such elections having been procured by an electoral college whose qualification have been largely in contravention of the provisions of sections 11 and 12 of the Local Government Act and the Regulations thereunder and the provisions of the Electoral Decree 1991 and Regulations.

(b) That in spite of your Petitioners' objections to the inclusion in the Electoral Roll of persons not resident in the [Martintar/Namaka/Nadi] Ward and the double appearances in the said roll of names of certain voters while the Authenticity of Company nominees and those of estates were not confirmed, the election was allowed to proceed.

(c) That the nominations and elections were conducted under circumstances which left no doubt whatsoever that the Returning Officer and the Town Clerk exhibited bias against your petitioners and had conducted themselves in a manner which overtly confirmed their deference to the first five named Respondents at the expense of your Petitioners".

In summary, the petitioners seek to avoid all of the elections held in Nadi last year, mainly on the basis of alleged irregularities which took place during the period prior to the actual election when voters were being registered and the electoral rolls were being prepared and finalised.

Ground (a) seeks to avoid the elections principally on the basis that the voters whose names appeared on the electoral rolls were "largely" unqualified under sections 11 and 12 of the Local Government Act (Cap.125).

Ground (b) complains that the elections were allowed to proceed despite the petitioners' objections to the inclusion of non-residents on the rolls, the double entry of certain voters' names and the authenticity of nominations of voters by companies and trustees.

The final ground (c) is that the Returning Officer,District Officer, Nadi as well as the Town Clerk of the Nadi Town Council, who was assisting him with administrative responsibilities, both exhibited bias against the Petitioners and conversely, deference to the Respondents.

THE ISSUES

Legal Issues

The legal issues raised for the decision of the Court by the grounds and particulars of the petitions, the evidence adduced in support of the petitions, and the oral argument of the Petitioners maybe summarised as follows -

• what are the High Court of Fiji's powers to declare a local government election void and on what basis might it do so?

• is the effect of section 11(3) of the Local Government Act that if a voter's name appears more than once on a roll, that person is disqualified from being on the roll at all?

• is a nomination of a voter by a company under the Local Government Act (Cap.125) void because it is not under common seal and not signed by 2 directors and/or the company secretary?

• what is the meaning of the term "trustees" under section 11(4)(b) of the Act and in particular does it include trustees of deceased persons' estates?

• are persons who qualify to vote as "lawful tenants" under section 11(4)(a) of the Act also required to be resident in the municipality?

• is the Registration Officer obliged to give an objector a copy of any written reply given to the Registration Officer by a voter objected to?

• is the Registration Officer obliged to give written notification of his decision on an objection to the objector within any specified time?

• did any of the Respondents have power to delay an election if there was insufficient time to investigate objections fully?

• if an electoral roll used for an election contains the names of unqualified persons, is this an irregularity which can, in itself and regardless of whether those persons voted and affected the result, vitiate the election and empower the Court to declare the election

void?

• if not, must such irregularities have affected the result of the election before the Court can exercise its power?

• if so, who has the burden of proving first, that the irregularities occurred and second that the result of the election was or was not affected?

• can a person who is appointed both Registration Officer and Returning Officer for a constituency, be petitioned against in his capacity as Returning Officer for alleged irregularities that occurred while performing his functions as Registration Officer?

• is hearsay evidence admissible?

• if so, how much probative value may be placed upon it?

• whether on the Hearing of a petition any additional particulars maybe incorporated in the petition?

THE LAW GOVERNING LOCAL GOVERNMENT ELECTIONS

The law governing local government elections is to be found in the Local Government Act (Cap.125) and each of the disputed elections was held under the Local Government Act. The principal Act contains only very basic provisions governing local government elections.

Subsections 9(1) to (3) and subsection 10(1) make provision for the qualifications and term of elected councillors.

Sections 11 and 12 are the main provisions which apply to electors, elections and voting power, and ground (a) of each of the Petitions specifically alleges a contravention of these sections. Accordingly, these (as they existed at the time of the disputed elections) are set out in full -

Qualifications of electors

"11.-(1) Every person of or over the age of twenty-one years who is a citizen of Fiji and who is the occupier or owner of land within the municipality shall be entitled to be enrolled as an elector.

(2) In the case of a municipality divided into wards, a person registered to be an elector shall be entitled to be enrolled only in respect of the ward in which he occupies or owns land.

(3) The name of an elector shall not appear more than once on the electoral roll of any ward.

(4) A person shall be an occupier for the purpose of this section if -

(a) he has, during the three months immediately preceding the date of closing of the electoral roll in the year in which he applies for registration been in joint or several occupation as a lawful tenant of land within the municipality of land included in the municipality by virtue of an extension of its boundaries; or

(b) he is nominated in writing as an elector by a body corporate which is, or by trustees who are, in occupation as aforesaid or as owners of land within the municipality:

Provided that the body corporate or trustees shall not nominate more than three persons for enrolment as electors as occupiers in any ward; or

(c) he has resided in the municipality or in a place included in the municipality by virtue of an extension of its boundaries for a continuous period of twelve months at the time of enrolment.

Elections and voting power

12.-(1) Every person whose name appears on the electoral roll of a municipality shall be an elector in that municipality for the purposes of this Act.

(2) No elector shall give -

(a) more than one vote for any one candidate; or

(b) more votes in all than the total number of councillors to be elected for the electoral area.

(3) An election shall be determined by the majority of valid votes cast at the poll.

(4) No person shall be subject to incapacity to vote in a local government election by reason of his being or acting as the returning officer thereat." (my emphasis)

The proper construction to be given to these sections is at issue in these proceedings and I will return to it later. I note here, however, that section 11(4)(b) of the Local Government Act, together with various other sections of the Act which are not relevant here, was amended on 10th March, 1997.

The amendment to section 11(4)(b) was to delete the proviso to subsection 4(b). There was much argument as to the meaning of the word trustee it being contended by the petitioners that the word meant "trustees of a body corporate". In support of their contention the petitioners even obtained an opinion from a well-known firm of Sydney solicitors to this effect. I had serious doubts about this interpretation, preferring the interpretation for which the respondents argued, namely that the word trustees was meant to refer not to trustees of bodies corporate but to trustees of an estate, my view being that if the draftsman of the subsection had meant it to have the meaning contended for by the petitioners he should have inserted the adverb "thereof" after the word "trustees" and he did not do so. However, in my view the matter has now been put beyond doubt by the amendment to section 11.

In the notes giving the objects and reasons for the Bill to amend the Act which were circulated to members of Parliament in September, 1996, the following note is given: Clause 5 - Amends Section "11" of the Act by deleting the proviso to paragraph (4)(b). The effect is that a body corporate or a trustee of an estate can nominate only 1 nominee in a ward. Under the existing proviso, a body corporate or a trustee is entitled to nominate not less than 3 persons.

I was informed by Counsel for the Respondents that the interpretation for which they contend had been the interpretation given to subsection 4 ever since 1982, and that this was the interpretation applied during all municipal elections, at least since then.

Local Government (Election) Regulations (Cap.125)

Apart from the general broad provisions of the Act, the bulk of the law governing the process of local government elections is to be found not in the principal Act, but in the subsidiary legislation which the Electoral Commission is empowered to make under section 13. At present these provisions are found in the Local Government (Elections) Regulations ("the Local Government Regulations").

At the outset, there is one very important thing to note about the Local Government Regulations. This is that they clearly distinguish in a number of ways between the registration of voters and the compilation of electoral rolls on the one hand, and the actual conduct of an election on the other.

First, they officially vest responsibility for voter registration and rolls in an officer called "the Registration Officer" who is to be appointed by the Electoral Commission under regulation 6. Responsibility for conducting the election itself is, on the other hand, vested in another officer called the Returning Officer, who is to be appointed under Rule 1 of the Second Schedule to the Regulations. There is admittedly, nothing to prevent the Commission from appointing the same person to each office, and, indeed, in the instant case, the District Officer, Nadi was so appointed. However, the Regulations clearly distinguish between these 2 offices and the responsibilities of each.

It is submitted by the Seventh Respondent that the fact that 2 different officers are provided for reflects an underlying fundamental distinction between electoral roll preparation and the conduct of elections. This distinction also exists in other common law countries as well.

It is therefore argued that the Returning Officer cannot, in that capacity, be held accountable on a petition for actions which he took in his capacity as the Registration Officer, except insofar as those actions are found to have adversely affected his conduct of the election, and then only if they are found to have affected the result.

In the present case, the distinction does not matter because, I presume for practical purposes in the Nadi Council elections, the Returning Officer and the Registration Officer were one and the same person but where in any election two different persons hold these offices it seems to me that Mr Apted is right, and I accept his submission.

The Registration Process

Because the Petitioners rely principally on what they allege took place during the registration, enrolment and compilation process in Nadi, it is necessary here to consider the rules governing these processes and to refer to certain evidence given by Rajeev Narayan f/n Guru Charand who was the respondent Returning Officer, District Officer, Nadi on days 8 and 9 of the Hearing.

The Electoral Rolls

Under Regulation 6(2) every registration officer must, in accordance with the procedure set out in the First Schedule, prepare and revise electoral rolls for the municipality ward or wards for which he has been appointed.

Under Rule 9 in the First Schedule, fresh electoral rolls are to be prepared every third year for the purposes of the triennial general election of Councils, and in the interim the rolls are to be revised at least once annually. As 1996 was a general election year, the Registration Officer was required by the rule to compile fresh rolls. Here I take judicial notice of the fact that the then City councillors had been elected on October 2 1993. Accordingly, under section 9(3) of the Act there was an obligation to hold an election on or about October 2, 1996.

Under rule 1, the process of preparing a roll is commenced by a notice calling upon qualified persons to apply for registration during a specified period.

As reflected in the oral evidence of various witnesses, the Respondent Returning Officer (District Officer, Nadi), in his capacity as Registration Officer, issued such a notice on July 8, 1996 and this was published as Gazette Notice 1423 in the Fiji Republic Gazette of the same day. The notice allowed applications to be made until August 17, 1996. Presumably because of a poor response from qualified persons, on August 15, 1996, the District Officer issued another notice extending the registration period for a further one week until August 24, 1996. This notice was published in an Extraordinary Fiji Republic Gazette on August 16, 1996.

Applications

Rule 2 in the First Schedule provides for the form and time during which applications for registration are to be made. The rule requires that applications must be in a form approved by the Electoral Commission and be witnessed by, and contain a declaration made before, a person appointed by the Registration Officer for that purpose. These persons are in reality Witnessing Officers but in oral evidence given during the hearing and in various documents they have been referred to as "Registration Officers". Their role and function should, however, not to be confused with that of the Registration Officer proper, who was the Respondent (District Officer, Nadi).

Rule 3 makes it an offence to knowingly make any false statement or declaration in an application for registration.

Rule 5 is obviously designed to give effect to the prohibition against the double registration of a voter imposed by section 11(3) of the Act supra. It provides that it is an offence for a person to apply for registration as a voter in any ward in which he or she is already registered as a voter unless the earlier application has been withdrawn.

Rule 6 gives a Registration Officer the special discretionary power to make such further enquiries as he deems necessary for the purpose of satisfying himself of an applicant's qualifications.

In my view this is a discretionary power which should only be used sparingly for example when an application form on its face, suggests that an applicant might not be qualified and that further enquiries should be made. A former Supervisor of Elections, Mr Peter Howard, gave evidence on the 4th day of the Hearing that all registration systems generally operate on a trust system as there is insufficient time and resources to justify investigating each and every application.

As he put it:

"We usually take things at face value. It is only when objections arise that we have to do further enquiries. In most situations we do not unless it is a clear error then we usually rely on the objections and then do further enquiries".

Registration from other sources

Applications are not the only means of becoming a registered voter. Rule 6A (which was inserted by an amendment in 1982) also allows the Registration Officer to place on the rolls the names of persons "who appear to him to be qualified pursuant to information received from such sources as the Supervisor of Elections may from time to time approve". PW4, Jon Apted, the then Supervisor of Elections gave opinion evidence that municipal ratebooks might be adopted under this provision, if response to voter registration had been slow.

It seems to me this is only common sense and I accept it as good law also.

Rule 4 requires that rolls contain an alphabetical listing of all electors. Under rule 7(1) the Registration Officer is required to compile rolls 'as soon as possible' after the end of a registration period and to give notice that the rolls are available for inspection. The purpose of this period is to invite objections which I refer to later.

Compilation of Rolls in 1996

The Registration Officer published such a notice when the rolls were opened for objections in the Fiji Republic Gazette on August 30, 1996, only six days after the close of the registration period.

According to Mr Apted in his submission, similar notices were issued on the same day by Registration Officers for the other municipalities (whose registration periods ended a week earlier than Nadi's) and as nothing hinges on this statement I accept it. It would thus appear that the Respondent, District Officer, Nadi, was working to a national programme for all municipalities. This was because the terms of all councils in all municipalities were due to expire under section 9(3) of the Act on the same date, namely October 2, 1996.

In short, the Respondent, District Officer, Nadi had only 6 days in which to prepare his rolls. This is the background to the evidence given by the Petitioners' witnesses, the Respondent District Officer, Nadi and the Acting Supervisor of Elections that the first version of the rolls, the so called "provisional rolls", were rushed and not fully satisfactory, in so far as the names and addresses of 50 voters on the Namaka roll had been jumbled through computer error and that the names of some applicants had been entered twice, and had to be withdrawn and corrected.

In the meantime, a dispute had arisen over the manner in which companies as bodies corporate should nominate their voters under section 11(4)(b) of the Act. The Respondent, Acting Supervisor of Elections had issued a ruling that company nominations forms required the presence of the company seal. By arrangement with the said Acting Supervisor, the Petitioners' party officials were given access to inspect all company nomination forms in order to ensure that those voters nominated on forms which did not have a company seal were excluded from the roll. Members of the NFP party then filed a civil action in the High Court at Lautoka seeking

a similar privilege. This action was withdrawn after the Plaintiffs were allowed equal access to the application forms.

Objections

Under rule 7(2), following the publication of the Registration Officer's notice, a voter may object to the inclusion of any other voter on the roll within 14 days. Evidence has been given in these proceedings that approximately 700 objections were received by the Respondent (District Officer, Nadi) mostly on the final day.

Apart from a requirement of writing and delivery within the 14 day objection period, no minimum content for objections is prescribed by the Regulations or Rules.

Paragraphs (3) to (6) of rule 7 set out the powers of the Registration Officer and the procedures which he must follow in dealing with objections.

Under paragraph 3, upon receipt of an objection he has a wide discretion to make 'such inquiries as he considers advisable' and under paragraph 4 may dismiss an objection if he considers that it has no merit or is frivolous. It is to be noted that the Returning Officer may do this without first notifying the voter objected to of the objection and giving him or her the opportunity to be heard, and may instead rely on the inquiries he considered advisable.

Under paragraph (5), if he does not dismiss the objection i.e. if he believes that the objection may have merit, he must then send by personal delivery or registered mail addressed to the voter against whom the objection has been lodged a notice requiring him to or her to answer the objection within a specified time. If the person does not answer within the time allowed, the Registration Officer must deal with the objection and "may either dismiss or sustain" it. If the Registration Officer sustains an objection, paragraph (6) requires him to notify only the voter concerned (i.e. the one against whom the objection is sustained). If the objection is dismissed, he is required to notify both the objector and the voter concerned. There is no requirement that the Registration Officer must dismiss an objection if a voter does not respond. Nor is there any legal requirement that any answer given by a voter objected to must be supplied to the objector. The only requirement for any notice to be given to an objector is if an objection is dismissed.

It seems to me from the three petitions, the oral evidence of the petitioners and their written submissions (para 5 p.41) that they have not clearly distinguished between the two different kinds of "answers" that are possible under the Rules. Thus in my view it is incorrect to claim as the petitioners do that "the Local Government (Elections) Regulations require each objection to be answered by the election officials. In my opinion they do not.

The evidence of Jayanti Morarji (5th day of Hearing, pp. 22 and 54) shows that the petitioners' complaint was that they had not received copies of answers supplied by the persons to whom they had objected, which the petitioners call "objectees". In my Judgment the answers required to be given to them by the Registration Officer advising how he had dealt with each objection were received by the petitioners on the eve of the election and in any event should have been apparent from the contents of the final roll.

Thus in my judgment, the complaint by Mr Morarji that for the whole of the elections 700 objections were lodged and only 261 answers to these were received, meaning that 439, not 539 as alleged by the Petitioner, objections were not answered cannot be sustained.

I must say, however, on this question that I consider it regrettable that such answers as the Registration Officer was obliged to give were not received until the eve of the election. It seems to me that objectors should be notified of the result of their objections much earlier than the eve of an election, and I suggest this is something which the Electoral Commission should look into before the next elections in 1999.

Still on this question I consider that Mr. Morarji was under a misapprehension when he said in evidence on the 5th day that all objections made by him or his Ratepayers' Party could not legally have been dismissed without obtaining an answer in the form of a statutory declaration from the voter objected to, and that he was entitled to a copy of the answers. There is no such legal requirement on any voter who has received an objection.

Rule 8 however, requires the Registration Officer to settle all objections within fourteen days after the end of the objection period and then publish the names, addresses and occupations of all qualified electors. This list is commonly referred to as the final roll and it is used for the purposes of the poll. In these cases, as I have said, the Respondent, District Officer, Nadi, was required to deal with 700 objections between August 30 and September 14, 1996.

In the meantime before the end of the 14 day period, the Electoral Commission had, on September 11, 1996 issued writs of election for all municipalities including Nadi. Under regulation 5(2), the writ prescribed the nomination date and the date of the poll if the election was contested. Regulation 5(1) of the Regulations vests the Commission, not any of the Respondents, with the power to issue writs fixing these dates. These writs were published in an Extraordinary Fiji Republic Gazette No. 53 on September 13, 1996. The writs required nominations of candidates to be received on September 20, 1996 and the poll to be held on September 28, 1996.

Section 10(1) of the Act effectively requires that candidates must be on the roll before they can be nominated or elected. Accordingly, I have no doubt that the Respondent, District Officer, Nadi was under immense pressure to have the rolls finalised and published for the purposes of nominations just 6 days after the close of objections. This is also the background to the Petitioners' complaints that they received his answers to their objections (under rule 7(6) on "the eve of the elections". An objective look at the timetable will show that this was only 6 days after the very short period prescribed for investigating the 700 objections, and during which time his first priority would have been finalising the roll for the purposes of nomination.

The oral evidence all shows that these rolls, amended after objections had been dealt with, generally referred to as "final rolls", were published on September 19, 1996.

It also emerged in the evidence given by the Petitioners' witnesses (e.g. PW14 Pradhuman Raniga, Day 7 p.29 et seq) and in the evidence of the Respdondent, District Officer, Nadi, who was PW21 - Rajeev Narayan (on Day 9 at p.11 et seq) that after publication of the final rolls, on the eve of the election the District Officer, Nadi discovered that the names of 7 persons still appeared twice. He therefore took the wise precaution of crossing out the superfluous entry in and pasting special instructions on the copy of the final roll which was to be used by the Presiding Officer at the poll. This was to ensure that only one vote was cast in respect of that person, and in doing so the District Officer was acting responsibly.

The Petitioners have submitted in their oral evidence and written submissions that this action was required to be gazetted. In fact, there is no such requirement in the Local Government Act or the Regulations.

THE LAW GOVERNING ELECTION PETITIONS

General Law

Election petitions are the traditional method by which Parliamentary and local government elections are to be challenged. Indeed, in Fiji Scott J, has held that the parliamentary election or a return can only be questioned by an election petition. (See Josefa Rusaqoli v Attorney-General & Anr, Civil Action HBC 0149/1994). At p.6 of the judgment he stated:

In other words in Fiji must the questioning of elections exclusively be by petition, as is the position in England and Wales? I am satisfied that it must. In my opinion the clear intention of the Decree was to provide an exclusive mechanism, to be laid down by Regulation, through which election matters could be questioned. Were this not the case then the restrictions and requisites of the Regulations could simply be circumvented.".

He was there referring to the restrictions on time and place for filing petitions which are imposed by the electoral petition regulations to which I shall refer shortly.

Local Government Election Petitions - The Law

The Local Government Act itself makes no provision for election petitions. Accordingly, the starting point for stating the Fiji law applicable to local government election petitions is regulation 10 of the Local Government (Elections) Regulations which provides-

"Unless otherwise specifically provided in these Regulations, the provisions of the law for the time being in force relating to offences in connection with the conduct of the elections in the House of Representatives and in connection with election petitions shall apply mutatis mutandis to elections to a council under the provisions of these Regulations."

There is no other specific provision in the Regulations applying to elections. It was not disputed before me that this means that the law relating to election petitions in respect of elections to the House of Representatives is to apply with necessary modifications to petitions in respect of Local Government elections.

In this exercise it is therefore, essential first to state the statutory and common law governing Parliamentary election petitions and, from this, deduce whether, and if so how, it should be modified in its application to local government petitions.

Parliamentary Election Petitions - The Constitutional and Statutory Law

Section 46(1) of the Constitution contains the broad grant to the High Court of this special jurisdiction to hear parliamentary election petitions. It provides -

"(1) The High Court shall have jurisdiction to hear and determine any question whether -

(a) any person has been validly elected as a member of the House of Representatives;

(b) any member of the House has vacated his seat or is required, under the provisions of section 44 of this Constitution, to cease to perform his functions as member of the House."

It may be noted here that subsection (3) also provides-

"(3) A determination by the High Court in proceedings under this section shall not be subject to an appeal."

The Constitution makes no further provision in regard to election petitions.

Special Jurisdiction

It is well settled that in hearing election petitions, the High Court is not exercising its ordinary original civil jurisdiction. At common law, jurisdiction to hear Parliamentary petitions was originally vested in the legislature itself and it was only in the nineteenth century that jurisdiction was transferred to the English Courts.

These special circumstances have already been recognised in relation to Parliamentary elections by the High Court of Fiji in The Fijian Association v Adi Litia Samanunu Cakobau & Ors CA 0250/1995. Fatiaki J at p.7 stated-

"This Constitutional tradition is succinctly explained by Lord Upjohn in the course of delivering the judgment of the Privy Council in Devan Nair v Yong Kuan Teik (1967) 2 A.C. 31 when he said at p.38:

Constitutionally decisions' on questions of contested elections are vested in the assembly for which the contested election has been held, but in the course of the nineteenth century many countries, including this country and many of Her Majesty's possessions overseas, adopted the view that, as the deliberations of the assembly itself were apt to be governed rather by political considerations than the justice of the case, it was right and proper that such questions should be entrusted to the courts.

Almost a century earlier in 1876 and in similar vein, Lord Cairns in delivering the judgment of the Privy Council in Thebverge v Laundry (1876) 2 A.C. 102 said of two (2) Acts of the Quebec Parliament dealing with controverted elections at p.106 -

"These two Acts of Parliament ... are Acts peculiar in their character. They are not Acts constituting or providing for the decision of mere ordinary civil rights. They are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony, for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known."

[See Also: generally Eskine May's 'Parliamentary Practice' (21st edn) at p.80]

In the context of the present application and paraphrasing the above dicta there is not the slightest doubt in my mind that the 'peculiar' and previously 'unknown jurisdiction' of the High Court in electoral matters arises from and is to be found exclusively in section 46 of the Constitution and nowhere else."

ELECTORAL DECREE, 1991

The Electoral Decree, 1991 which provides the statutory framework for elections to the House of Representatives makes no substantive provision on election petitions. Section 3(e) of the Decree, however, empowers the Electoral Commission to-

"make regulations for the purpose of carrying out the provisions of the Constitution and [the] Decree relating to elections and in particular .... for .... (e) election petitions."

On 12 April 1992, in pursuance of that power, the Electoral Commission made the Electoral (Elections Petitions) Regulations, 1992 [Legal Notice No.39/92] ("the Petition Regulations").

ELECTORAL (ELECTIONS PETITIONS) REGULATIONS, 1992

Formal Requirements for Petitions

The Petitions Regulations specify a number of formal requirements for a valid parliamentary petition.

Time and Place of Filing

Regulation 3 allows a petition to be presented by any voter and requires that it be filed in the Court's registry in Suva within 21 days after the Returning Officer has declared any candidate or candidates to be elected. I consider that no modifications are necessary to apply these requirements to local government election petitions and I am satisfied that the petitioners did comply with them.

The Supervisor of Elections, properly in my view, also concedes that as the 21st day after the declaration fell on Saturday October 19, 1996, it was proper under section 51(b) of the Interpretation Act (Cap.7) that the Petitioners be allowed to file on the next following Monday October 21, 1996.

Deposit

Regulation 6 also requires that -

"At the time of filing the petition, each petitioner shall deposit with the Registrar of the Court or the Deputy Registrar of the Court the sum of $100 as security for costs".

Regulation 8(1) further provides that -

"Subject to paragraph 7(2) and 7(3) and to paragraph (2) of this regulation [none of which relate to the deposit or otherwise to regulation 6], no proceedings shall be had on a petition unless the requirements of regulation 6 are complied with".

Likewise I consider that these requirements need no modification to apply to local government petitions.

It emerged during the hearing of the evidence that the Petitioners had not paid any deposit at the time their petitions were filed. It would have been open to counsel for the Respondents to take an objection at the early stages of the proceedings and to submit, with the support of common law authorities, that the petitions were bad ab initio and that deposits could not be made after the 21 day period for filing had elapsed.

However, they did not do so but Registrars and their clerks should be aware of this requirement and in all future cases enforce regulation 6 when necessary.

Contents of Petitions

Under regulation 8(2), this Court is vested with power, at any time to relieve the Petitioner from the latter requirement, if satisfied that the petition sufficiently identifies the matters on which the Petitioner relies and the granting of relief would not unreasonably prejudice the interests of another party.

In the present case, the Petitioners in their affidavits and in their oral evidence have attempted to add numerous particulars not stated in their petitions.

On the 6th day of the Hearing, the Petitioner in CA HBC 510/96 attempted to add to his petition the names of certain people whom he alleged did not satisfy the requirements for registration in that they did not reside at the relevant time in the Martintar Ward. On objection by the Respondents, I ruled that because of regulation 5(b) of the Electoral (Elections Petitions) Regulations, 1992, this could not be done. At p.28 of the transcript of the 5th December, 1996, I quoted regulation 5(b) and then said:

""With sufficient particularity"; those are the important words, in my opinion, and it follows from that the petition is, by law, expected to contain all the particulars on which the petitioners propose to rely. I interpret Regulation 5(b) thus, and as these additional names have not been mentioned in the petition, I rule that no further evidence on them should be led."

On further reflection I consider that this does not preclude an application to amend a petition provided it is made within a reasonable time before the hearing. By "reasonable time" I consider that in normal circumstances this will be no later than fourteen days before the date fixed for the hearing. This would give respondents to any petition sufficient time to investigate the additional material sought to be included in the petition. The obvious reason for the requirement in section 5 is so that respondents will know in sufficient time before the Hearing the case they have to meet.

The High Court's Powers to Grant Relief on an Election Petition

Regulation 10 of the Petitions Regulations sets out the powers of the High Court in relation to Parliamentary election petitions. Insofar as relief is concerned, the Court has power-

"(v) to declare that any person who was returned as elected was not duly elected;

(vi) to declare any candidate duly elected who was not returned as elected;

(vii) to declare any election to be absolutely void;

(viii) to dismiss or uphold the petition in whole or in part;

(ix) to award costs.

Paragraph 10(v) to (viii) must be read with regulation 19 which provides -

"19. Effect shall be given to any decision and order of the Court as follows:

(a) if any person returned is declared not to have been duly elected, the person shall cease to be a member;

(b) if any person not returned is declared to have been duly elected, the person may take his or her seat accordingly;

(c) if the election of any person or persons is declared absolutely void a new election shall be held to fill the vacancy or vacancies thereby created.

Again, I see no reason to modify regulations 10 and 19 in order for them to apply to local government elections.

The Petitioners in this case are therefore praying for relief under paragraphs 10(vii) and 19(c). The Respondents, on the other hand, pray that this Court exercises its powers under paragraph 10(viii) and (ix), that it is to say, to dismiss the petitions wholly and order costs against the Petitioners.

Neither the Petitioners nor any of the Respondents are seeking the Court's exercise of its powers under paragraph 10(1)(vi) i.e. a declaration that a candidate who was not returned as elected was actually duly elected.

I take paragraph 10(1)(vi) to mean that even where a Petitioner prays only for a declaration that, an election was wholly void the Court always has a discretion, if it thinks it fair and just on the evidence to exercise its powers under paragraph 10(1)(vi) and instead declare someone who was not returned, as having been duly elected.

On What Basis May the High Court Grant Relief?

As with the comparable provisions in New Zealand and English legislation but unlike the Australian provision quoted in the Australian case cited by the Petitioners Bourne v Murphy (unreported), the Petitions Regulations do not affirmatively prescribe any grounds either for finding an election or return "undue" and declaring that a candidate who was returned as elected was not duly elected or to declare any election void.

Regulations 14 and 15 of the Petition Regulations, however, provide implicitly and in a negative way, that an election may be declared invalid for failure to comply with the legal requirements and may be declared void for corrupt or illegal practices committed by or with the knowledge and consent of the person elected.

In my judgment these petitions stand or fall on these two regulations which I now set out in full:

Irregularities not to invalidate election

14.-(1) No election shall be declared invalid by reason of any failure to comply with any provision of the Regulations if the Court is satisfied that the failure did not affect the result of the election, and that the election was so conducted as to be in accordance with the requirements of the provisions of the Constitution and the Decree.

(2) For the avoidance of doubt and without limiting the generality of the foregoing no election shall be declared invalid by reason of -

(a) any failure to comply with the times prescribed for doing any act; or

(b) any omission or irregularity in filling up any appropriate form prescribed by the Decree or by the Regulations; or

(c) any defect or invalidity in the appointment of any election officer or polling or counting agent or any failure by any such person to sign or make any declaration; or

(d) the non-attendance of any candidate, or of any agent nominated by him at any act or thing required under the Regulations to be done before him; or

(e) any absence of, or mistake or omission or breach of duty by, any election officer, whether before, during, or after the polling,

if the Court is satisfied that the failure, omission, irregularity, want, defect, absence, mistake, or breach did not affect the result of the election, and the election was so conducted as to be in accordance with the provisions of the Constitution and the Decree.

Voiding election for corrupt or illegal practices

15.-(1) If the Court finds that a person returned as elected or some other person, with the knowledge and consent of the person returned as elected, has committed or has attempted to commit any bribery or undue influence, the election of the person returned as elected shall be declared void.

(2) The Court may not declare that any person returned as elected was not duly elected, or declare any election to be void:

(a) on the ground of any corrupt practice or illegal practice committed by any person other than the person returned as elected and without the knowledge and consent of the person; or

(b) on the ground of any corrupt practice or illegal practice other than bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the person should be declared not to be duly elected or that the election should be declared void." (my emphasis)

In construing the comparable New Zealand provision to regulation 14, the Full Court of the (then) New Zealand Supreme Court in Re Hunua Election Petition [1979] 1 NZLR 25 stated at p.260-

"It is to be noted that the section is expressed in the negative and provides that the Court shall not set aside an election by declaring it invalid if the Court is satisfied of the matters referred to in the latter part of the section. By implication, should the Court not be so satisfied then it would appear that the Act contemplates that the Court may set aside an election as invalid on either of the four grounds (a) to (d) set out in that section. Where does this authority come from? It appears to us that it comes from the common law power vested in a Court as discussed in Woodward v Sarsons and that s.167 merely directs that that power shall not be exercised in the cases stated if the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections and the failure, omission, irregularity, want, defect, absence, mistake or breach did not affect the result of the election."

The similarity between regulation 14 and section 167 of the New Zealand Electoral Act will immediately be seen by quoting that section which provides:

"No election shall be declared invalid by reason of-

(a) Any failure to comply with the times prescribed for doing any act; or

(b) Any omission or irregularity in filling up any form prescribed by this Act or by regulations made thereunder; or

(c) Any want or defect in the appointment of any official or scrutineer; or

(d) Any absence of, or mistake or omission or breach of duty by, any official, whether before, during, or after the polling,

if the Court is satisfied that the election was so conducted as to be substantially in compliance with the law as to elections, and that the failure, omission, irregularity, want, defect, absence, mistake, or breach did not affect the result of the election".

In the instant case, as conceded in their written submissions, the Petitioners do not allege corrupt or illegal practices (as defined in the Petitions Regulations) to have occurred nor do they attack the candidacy qualification of those elected. Instead they allege various irregularities in the exercise by electoral officers in the performance of their functions.

What "Necessary Modifications" must be made to Regulation 14?

It will be noted from the emphasised portion of the above-quoted regulation that the provision saves Parliamentary elections in which there was some irregularity if "the election was conducted so as to be in accordance with the Constitution and the [Electoral] Decree" (as well as the result was not affected).

As the Constitution and the Decree do not prescribe the method of conducting local government elections, this provision must be construed with necessary modifications in its application to local government elections.

On that footing, in my judgment in cases such as the instant, if the Court is satisfied that despite various irregularities the result was fair then that is the end of the matter. It must be appreciated that not every breach of a provision of the Local Government Act should result in an election being invalidated. As was stated in Morgan v Simpson [1974], 3 All ER 722 at p.729 by Stephenson L J of the comparable English provision at p.327 in the Representation of the People Act 1949:

"The negative form of the section emphasises that an election is a serious and expensive matter and is not lightly to be set aside."

And then His Lordship continued a little further quoting from s 37 of the 1949 Act, at-

h '... it is negatively stated to limit occasions when an election must be declared invalid. In other words it is an enabling section setting out the circumstances in which, despite irregularity, a new election need not be held.'

In many of the cases there are references to Woodward v Sarsons [1875] UKLawRpCP 68; 1875 LR 10 CP 733 where Lord Coleridge CJ stated the common law rules for elections as follows at p.743:

"... the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws."

Interestingly it should be noted that in Woodward the Court was concerned with how the principles applying to Parliamentary elections should apply to Local Government elections. Thus when regulation 14 of the Electoral Petitions Regulations refers to the Constitution, where local government elections are concerned, I consider the term "substantial compliance" or its equivalent should be taken to mean substantial compliance with the provisions of the Local Government Act or to section 12(3) of that Act which states that an election shall be determined by the majority of valid votes cast at the poll.

In Morgan v Simpson at p.728 Lord Denning M.R. thought the law governing disputed elections could be stated in three propositions:

(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election was vitiated, irrespective of whether or not the result was affected (Hackney, 2 O'M & H 77),

(2) If it was so conducted that it was substantially in accordance with election law, it was not vitiated by a breach of the rules or a mistake at the polls - provided it did not affect the result (Islington, (1901) 17 TLR 210.

(3) Even though the election was conducted substantially in accordance with election law, nevertheless if there was a breach of the rules or a mistake at the polls, and it did affect the result, the election was vitiated (Gunn v Sharpe [1974] QB 808).

In their submissions the petitioners cited the remarks of Isaacs J in Bridge v Bowen [1916] HCA 38; [1916] 21 CLR 582 at pp.623-4, which was a case of an election under the Sydney Corporation Act of N.S.W. Section 56(1) of the Act provided that -

"(1) If it appears upon affidavit that any person declared to be elected . . . an alderman has been unduly elected the Supreme Court, or any Judge thereof, may grant an order calling upon such person to show cause to the Court why he should not be ousted of the said office."

Isaacs J said at pp.623-4, "I condense the result into the following relevant propositions:

(1) The election of an officer - in other words, his selection by the constituency - may be attacked only for a defect which affects him.

(2) If the defect strikes at the entire election, either because there was no real election at all or because some official irregularity has occurred, he is affected because his title is claimed through it, and he must meet the defect if he can.

(3) If there has been no real election, his selection so-called is necessarily void.

(4) If there has been any official irregularity in the conduct of the election, where the law requires absolute and strict adherence or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless he can show the result could not have been affected by it.

(5) Where the defect complained of does not strike at the election as an entirety, but is confined to some breach of law in individual instances, then he is not necessarily affected, and is not affected at all unless he or his majority is shown to be connected with the defect.

(6) If the law does not provide any means of so affecting him he is not affected, and, as his selection cannot be regarded as unduly made, it must rest where it is."

The Petitioners submitted that only the fourth proposition of Isaacs J, applies to this case. I agree because once again we have a court, in this instance the High Court of Australia, stating that notwithstanding any official irregularity in the conduct of an election the results will not be declared void if the Respondent or the person elected can show that the results could not have been affected by the irregularity.

What is meant by "official irregularity"? This term was considered by Beazley JA, in Bourne v. Murphy unreported Judgment of the New South Wales Court of Appeal, November 1996, where at p.16 of his Judgment he said:

Meaning of "irregularity"

The Macquarie Dictionary defines "irregular" to mean "not conforming to rule, or accepted principle, method, course, etc." "Irregularity" has a corresponding meaning. The Oxford English Dictionary defines "irregularity" to mean "want of conformity to rules, deviation from or violation of a rule, law or principle". The meaning of the word "irregularity" was considered by the High Court in R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. Gibbs CJ stated at 368:

"The notion of an irregularity in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election."

Basing themselves on this proposition the petitioners then made certain submissions on the burden of proof and argued that this was on the respondents to show that their election should be upheld. I do not agree. In my judgment the onus shifts to a successful candidate only if the petitioner proves either that there has been some official irregularity in the conduct of the election where the law requires absolute and strict adherence or where there has been a substantial departure from a directory enactment. If this Court were to apply Bridge v Bowen and some of the other cases mentioned, for example of Bourne v. Murphy and others, then the petitioners must first prove the breach in the conduct of the election of a mandatory provision or a substantial departure from a directory provision; in other words to first offer evidence of such (see Scarcella v Morgan [1962] VicRp 30; (1962) VR 201 at p.203); and for reasons which I shall give shortly, I am of the opinion they have not done so.

However, whilst I accept with respect the six propositions stated by Isaacs J, as I have said earlier the success or failure of these petitions depends on whether I am satisfied that notwithstanding irregularities in the very broadest sense of the term the result was not affected thereby. I am satisfied that it was not.

Here it is useful to note the Judgment of Griffith, CJ in Bridge v Bowen at p.590 of 21 CLR who quoted with approval the statement of Bramwell B in the North Durham case 2 O'M & H 105:

"But where it is of such a general character that the result may have been affected, in my judgment, it is no part of the duty of a Judge to enter into a kind of scrutiny to see whether possibly, or probably even, or as a matter of conclusion upon the evidence, if that intimidation had not existed, the result would have been different. What the Judge has to do in that case is to say that the burden of proof is cast upon the constituency whose conduct is incriminated, and unless it can be shown that the gross amount of intimidation could not possibly have affected the result of the election it ought to be declared void."

At p.592, Griffith, CJ also referred to Woodward v Sarsons, part of the judgment of which I have already quoted, and also quoted the concluding passage of Coleridge, CJ who said:

"But, if the tribunal should only be satisfied that certain mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament."

Immediately before Isaacs, J, listed his 6 relevant propositions, he said at p.623:

"If, on the other hand, the onus is not impossible, then the person alleging the defect must on all accepted notions of law and fair play be expected to prove it. The second objection to the argument of onus resting on the party attacked is this. If the law places the onus on him now, it always did. But when the cases on personation are referred to, it is seen that the reverse is the case. And that is the constant rule of law which does not alter merely because evidence is lacking."

I make two comments on these quotations:

First, on the statement by Bramwell B, on the North Durham case. The evidence satisfies me here only that certain mishaps occurred in these elections. I am not satisfied either that a majority had been or that there was reasonable ground to believe that a majority might have been prevented from electing the candidate they preferred. I therefore hold that the extent of such mishaps does not entitle this Court to declare the election void.

Secondly, on the remarks of Isaacs J, the evidence satisfies me here that the onus resting on the petitioners was not impossible so that, paraphrasing the words of Isaacs J, the petitioners must on all accepted norms of law and fair play be expected to prove it. For reasons which I shall give shortly, I find that the petitioners have not proved their case to my satisfaction.

I turn now to some of the evidence given at the hearing beginning with Action 509/96, the Namaka Ward.

Ground A alleged -

"That the 'election' of the first five named Respondents on 28th September, 1996 for the Namaka Ward in the Nadi Town Council is absolutely void such elections having been procured by an electoral college whose qualification have been largely in contravention of the provisions of sections 11 and 12 of the Local Government Act and the Regulations thereunder and the provisions of the Electoral Decree 1991 and Regulations."

It appeared from the particulars given later in the Petition and from the affidavit and oral evidence of one of the Petitioners PW4 Mr Jayanti Morarji that the alleged lack of qualifications arose for the following reasons -

(a) names of voters allegedly appeared twice;

(b) non-residents of the municipality were registered as voters;

(c) the manner of nomination by certain companies of their electors was allegedly invalid because they were contrary to the provisions of the Local Government Act and the Companies Act;

(d) various voters were allegedly invalidly nominated by trustees or others acting on behalf of the estates of deceased persons contrary to the Trustees Act and the Local Government Act.

In this Ward the lowest polled successful candidate had a majority of 61 over the highest polled unsuccessful candidate. Particulars were given of 12 persons whose names, it was alleged appeared twice on the roll for this Ward.

To make good this allegation the petitioners were required to prove by direct evidence-

(1) That these were in fact double registrations (i.e. each entry was for the same person);

(2) That if the entries were for the same person one or more voted more than once so that these votes affected or may have affected the result.

It was argued by the petitioners that the mere fact that a person's name appeared more than once on an electoral roll disqualified the person absolutely from being on the roll. They based their argument on section 11(3) of the Local Government Act which as I have said earlier states:

'The name of an elector shall not appear more than once on the electoral roll of any ward."

Again I do not accept this argument. The evidence of Mr Peter Howard and Mr Jon Apted was to the effect that a voter's name can appear on a roll more than once either because of clerical error, or because of an honest mistake by a voter or because of a deliberate dishonest intention to vote more than once. In the latter case, rule 5 of the First Schedule of the Local Government Act makes such conduct an offence. The onus is on the petitioners to satisfy the Court that in each case there was more than one entry for the same person and that the person voted more than once and that this affected the result.

The evidence relevant to this ground was given by Jayanti Morarji and Abdul Gani.

It is clear from his evidence that Mr Morarji was relying on hearsay evidence from other sources in that he claimed that the entries related to the same person through advice from such other persons.

I reject this evidence because it is hearsay and because I am satisfied that when the petitioners saw two entries on the roll of persons with similar names they assumed that this was a mistake and that there was only one such person. They gave no evidence of any search for any other person.

The proper course for the petitioners would have been to call the persons whose names appeared twice to give evidence but they did not do so. At one stage when this evidence was being given, Counsel for the 6th and 8th respondents warned that the respondents expected the petitioners to call such evidence if they wished to be believed by the Court. In my view, they should also have produced copies of the application for registration forms to compare signatures to which they had been given access during the interlocutory stages of these proceedings. Again they failed to do so.

An example of the failure of the petitioners to substantiate this allegation was the case of Permal Pillay who, Jayanti Morarji said in his evidence-in-chief on 4th December 1996, had been identified to him by one Suresh Pratap as a person whose name appeared twice. However, when Abdul Gani gave evidence on the 8th day in cross-examination he said that there are two Permal Pillays and that he knew them both.

The evidence of the petitioners on double registration satisfies me that in most cases it was based on assumption and I accept the evidence of Rajeev Narayan, Nadi District Officer, on this question. Indeed I should say here that I found Mr Narayan a very convincing witness and I accept the evidence he gave on double registrations without any hesitation.

Non-Residents of Municipality Allegedly Registered as Voters

In paragraph (b) of the Particulars of the Petition, the Petitioners particularise 11 voters whose names appeared on the roll with the qualification "tenant" and challenge their inclusion on the basis that they are not "residents".

On the 6th day of the hearing, I allowed the Petitioners to add six names to the particulars of the voters who were alleged to have been disqualified because they resided out of Namaka subject to them paying the costs of the day.

It is clear to me from the Petitions and the evidence given on behalf of the petitioners that they misunderstood section 11(4) of the Local Government Act in that they appear to believe that a tenant must also be a resident. This is simply not so. Paragraphs (a) and (c) of subsection 4 provide that lawful tenancy for three months or residence for twelve months are alternative qualifications.

To succeed on this ground, the petitioners were obliged to lead probative evidence that-

• these voters were not tenants or residents or owners (depending on their claimed qualification) at all in the ward;

• that if not so qualified they voted; and

• their votes affected the result.

Except for the cases of Sailesh Chand and Renuka Chand and Dulari Janak, Kumari Suruj and Wati Kala, the petitioner Morarji could not prove by direct evidence that these persons resided outside the Ward. In the case of one person Chinna Kodia, the witness admitted that he relied on the report of a committee who went looking for evidence on this ground. Apart from Mr Sailesh Chand whom he said he knew personally, he could not prove either that the qualifications of these people depended on residence and that they were not qualified and therefore were on the roll illegally.

I accept that Mr Sailesh Chand lives in the CAAF compound which is outside the Ward but have doubts about Mrs Renuka Chand's place of residence. Mr Chand gave evidence that because of his work, his wife and their infant child spent most of their time at her parents' residence which was within the Ward. However, because the petitioners failed to call Mrs Renuka Chand and did not lead any evidence that she was not qualified on the basis of her spending most of the time in her parents residence, I hold that they have not satisfied me as to her living outside the Ward.

The Petitioners called Constable Apete to give hearsay evidence as to one Nirmala Singh's alleged statement that she had not filled an application for registration but had voted. When I remarked to Counsel for the Petitioners that even if the statement were produced it would have no weight unless the maker of the statement was cross-examined, Counsel agreed and then undertook to have the statement produced the following day. It was not.

Accordingly, I disregard this evidence. Similar observations apply to the evidence of Constable Biu Matavou who gave evidence that one Vijay Latchmi Datt had applied for registration but had been included on the rolls and voted. I likewise reject this evidence as pure hearsay.

Navindra Dutt

The credibility of the District Officer, Nadi, was attacked by the petitioner Morarji on the ground that in response to his objection to Mr Dutt, Mr Morarji received an answer that appeared to both sustain and dismiss the objection and that Mr Dutt's name appeared on the final roll. This was later clarified by the evidence of Rajeev Narayan at pp.87-8 on Day 8 of the hearing where he explained that he had dismissed the objection but erroneously used the form for sustaining the objection. He said at p.88, that the error was a human one in view of the large number of objections.

The effect of all this evidence is that the petitioners have proved that only one or at most two of the named voters was unqualified. There is a possibility that Renuka Chand was not qualified but on balance I am prepared to hold she was.

The essence of the Petitioners' challenge was that a company nomination is required to be mde under the common seal of the company, and that affixing of the seal for each specified company had to be witnessed by at least 2 officers (either a Director or Secretary) of the Company.

There is nothing in the Companies Act or the Local Government Act which requires a company or body corporate to nominate under seal for the purposes of section 11.

The previous tendency of the law to require the use of seals as proof of a company's act has long been abandoned.

Section 36 of the Companies Act (Cap 247) permits written and oral contracts to be entered into on behalf of a company by "any person acting under its authority express or implied".

Moreover section 40 provides-

"A document or proceeding requiring authentication by a company may be signed by a director, secretary or other authorised officer of the company and need not be under its common seal."

"Authenticate" and "authentication" are defined in the Shorter Oxford Dictionary as follows -

Authenticate - To invest with authority; to give legal validity to; establish the validity of, to establish the title to credibility of a statement, or of a reputed fact, to establish the genuineness of.

Authentication - Stem of authenticate, the action of authenticating; the condition of being authenticated.

Because of this, the Supervisor of Elections submits that the whole of the petitioners' challenges on this ground are without legal foundation. I tend to agree but in the light of the fact that when these elections were held, section 11(4)(b) of the Local Government Act had not been amended, I can understand the concern of the former Acting Supervisor of Elections, Mr Rabuka, in disallowing nominations by companies made only by a rubber stamp. Until the amendment a body corporate could nominate three persons for enrolment as electors as occupiers in any ward which was a negation of the ordinary principle of one vote one value.

The effect of the amendment is to give effect to that principle so that hereafter in my judgment companies may make their nomination of an elector merely by affixing a rubber stamp if this is more convenient.

Trustees

I have already dealt with this subject and only add that seven estates in the Namaka Ward were challenged by the petitioners but they did not lead any direct evidence regarding the challenged estates except at pp.27-8 of the transcript of Day 5. There Mr Morarji stated that the petitioners had doubted the existence of the estates within the Ward, and had lodged objections. These were disallowed by the Returning Officer. The petitioners objected. The trustees were required to make a statutory declaration as to the existence of the estates. When I asked Mr Morarji in what legislation such a requirement could be found, he replied that it was in the rules and regulations governing elections.

I am satisfied there is no such legal requirement so that I dismiss the petitioners' challenge on this ground.

Ground B

"That in spite of your Petitioners' objections to the inclusion in the Electoral Roll of persons not resident in the Namaka Ward and the double appearances in the said roll of names of certain voters while the authenticity of Company nominees and those of Estates were not confirmed, the election was allowed to proceed."

The essence of the complaint on this ground was that the Respondents allowed the "election to proceed" despite not having dealt with the Petitioners' objections to their satisfaction. It is submitted that their claim as to the election being allowed to proceed is misconceived in that it was not within the power of the Respondent District Officer, Nadi nor any other Respondent to halt the election. The writs of election which were issued by the Electoral Commission commanded the Respondent District Officer, Nadi, to hold the nomination and polling on specified dates. Apart from the District Officer's legal inability personally to change these dates, there was also the fact that the 3 year term of sitting councillors was due to expire on October 2.

The Petitioners in their oral evidence have complained that the irregularities alleged to be committed by the Registration Officer included his failure to deal properly with objections. They alleged that he was required to, and failed to deliver objection notices to the persons against whom they objected. It is submitted by the Respondents that paragraphs (3) and (5) of rule 7 make clear that he was entitled to make his own enquiries prior to notifying the voters objected to and to dismiss the objections if he found there was no merit or that they were without merit or objectionable, before sending an objection notice. The evidence given by the Respondent, District Officer, Nadi was that he caused council records to be checked and relied on records of ownership and other licences as evidence of claimed qualifications. It is submitted that he was empowered to do this, and acted properly in the circumstances. I agree.

The Petitioners also alleged that the Respondent did not obtain statutory declarations, and fill out and send various notices which were used for the 1993 roll compilation. I consider that these were a matter of internal practice only and are not required by the Regulations.

I have previously expressed the view that paragraph (5) gives the Returning Officer a discretion to dismiss an objection, even if the voter objected to does not answer an objection notice. In my view what is required of a registration officer acting under rule 7, is that he must reach his decision by considering the facts alleged in the objection and those which appear to him from a voter's application form and other information available to him. If he has any doubt then I consider he should give the benefit of that doubt to the voter objected to. This is because of the basic principle of all electoral legislation that all qualified persons should be entitled to elect the candidates of their choice.

Here again it seems to me Mr Morarji and his colleagues have laboured under the mistaken belief that the Registration Officer was obliged to send notices to all voters objected to, and that in the absence of any answer from those objected to, the Registration Officer was obliged to sustain the objections.

As I have said, the onus is on the petitioners to prove to the Court in each case where the Registration Officer was wrong to dismiss an objection and how this affected the result. They have failed to so satisfy me.

Ground C

"That the nominations and elections were conducted under circumstances which left no doubt whatsoever that the Returning Officer and the Town Clerk exhibited bias against your Petitioners and had conducted themselves in a manner which overtly confirmed their deference to the first five named Respondents at the expense of your Petitioners."

Ground C essentially alleges bias by the Registration Officer and the Town Clerk who was assisting him. The Petitioners have adduced no evidence of bias. Evidence was given by PW4 Mr Jayanti Morarji, PW7 Mr Amjad Ali and PW14 Mr Pradhuman Raniga of their suspicion of the Town Clerk and his staff and they made various allegations that they had been treated differently in respect of access to registration forms. However, apart from stating their suspicion they provided no original evidence to bear out their suspicion of bias i.e. real evidence to show that the NFP candidates were given greater assistance or access to the forms than they had.

I believe at times emotions ran high during these elections. In cross-examination the petitioners mentioned their frequent visits to the Town Council chambers and their acrimonious and demanding interchanges with the Council staff. I am satisfied that the Council staff and the Returning Officer were, through force of circumstances, working under great pressure so that they would only be human if at times they were not always cool, calm and collected. Likewise, I can understand the frustrations of the petitioners who regarded these elections as being of the utmost importance.

Acrimony and heated words are one thing but in my view they do not prove bias and I am not satisfied that the respondents showed any bias towards the petitioners. I therefore, dismiss this ground.

Martintar Ward: 510/96

The majorities in this ward ranged from 111 votes to 96 votes. The grounds, particulars and evidence led in respect of the Martintar Ward petition will now be examined -

"Your Petitioners complain that the Returning Officer for the said election had made undue returns or undue elections of the first five named respondents to be members of the Martintar Ward in the Nadi Town Council upon the following grounds -

(a) That the "election" of the first five named Respondents on 28th September, 1996 for the Martintar Ward in the Nadi Town Council is absolutely void such elections having been procured by an electoral college whose qualification have been largely in contravention of the provisions of sections 11 and 12 of the Local Government Act and the Regulations thereunder and the provisions of the Electoral Decree 1991 and Regulations.

(b) That inspite of your Petitioners' objections to the inclusion in the Electoral Roll of persons not resident in the Martintar Ward and the double appearances in the said roll of names of certain voters while the authenticity of company nominees and those of estates were not confirmed, the election was allowed to proceed.

(d) That the nominations and elections were conducted under circumstances which left no doubt whatsoever that the Returning Officer and the Town Clerk exhibited bias against your Petitioners and had conducted themselves in a manner which overtly confirmed their deference to the first five named Respondents at the expense of your Petitioners.

Name of Voter Page No Line Nos Ser. Nos

1. Anita Prabhu 3 94,95 4546, 4546

2. Chhgan Bhai 5 221,222 6981,1947

3. Dhirendra Ragina 7 273,274 3324,3324

4. Irene Nisha 10 422,423 5972,5872

5. Mansukh Lal Pala 16 715,716 5806,182

6. Mohammed Yusuf 19 837,838 116,5962

7. Padmini Vikash 23 991,992 3768,1934

8. Prabha Ben 23 1029,1030 3323,3323

9. Rahmat Ali 25 1082,1083 2357,5966

10. Rahul Prakash Singh 25 1085,1086 1738,1738

11. Raj Deo 25 1092,1093 3737,4587

12. Ramasi Lupe 26 1129,1130 7208,7208

13. Rokoderea Kelerayani 26 1180,1181 3559,3550

14. Satya Verma 29 1292,1293 2572,523

15. Suresh Chandra 32 1425,1426 6807,4579

16. Sushila Wati Khan 33 1439,1440 3701,3701

Evidence

The Petitioners' evidence on this ground was provided principally by Mr Amjad Ali PW7 whose evidence appears in the transcript of Day 6 of the Hearing beginning at p.8

As admitted during cross-examination on p.43 of the transcript, much of his evidence on this issue is like that of Mr Morarji's objectionable and of no weight on the grounds of hearsay and also on the grounds that the Petitioners' appear to have assumed that having identified one person of the relevant name that both entries must necessarily be referred to that person. As stated earlier in relation to the Namaka Petition, nowhere do they give evidence that they even attempted to locate another person of the same name but could not find anyone. Neither did they even produce any applications for registration to compare signatures even though they had access to the forms during the objection period as well as during the interlocutory stages of the petition hearing.

At pages 11 to 17 of the transcript for Day 6, Mr Ali gives the following evidence of the source of his knowledge-

p.12 - Anita Prabhu - admission of typing error by Registration Officer

p.13 - Chagin Bhai - information of Navin Morarji

Chirendra Raniga - information of Navin Morarji

p.14 - Irene Nisha - personally met one Irene Nisha when investigating

p.14 - Mansukhlal Pala - identified by Navin Morarji

- Mohammed Yusuf - personal knowledge of one Mohammed Yusuf "therefore it is the same person"

p.15 - Pradumini Vikash - personal knowledge of one such person

- Rahamat Ali - personal knowledge of one such person

Rahul Prakash Singh - personal knowledge of one such person

Ramasi Lupe - information of Ponipate Lesavua

Rokoderea Kelerayani- " " "

Satya Verma - informtion of Ram Rajed

Suresh Chandra - personal knowledge

Sushila Wati Kiran - information of Sushila Ramesh

Even if the Petitioners' had produced admissible and probative evidence that these were double entries for one and the same person, it is clear from the witness's cross-examination testimony that the double appearance of the names could not have affected the result. At p.42 of Day 6 transcript he admits that of the 16 named, only 12 voted and then only once.

I therefore dismiss their challenges on this ground.

Non-Residents

Particulars

The Petitioners at paragraph (b) on page 6 of the Petition of their Petition listed the following 6 voters and alleged that they resided outside the municipality but voted in the election -

Name of Voter Page No Line No

1 Satya Nand 29 1290

2 Shah Nawaz Khan 30 1320

3 Shamima Khan 30 1334

4 Ronil Kishore 27 1184

5 Roshan Ali 27 1187

6 Mohammed Mukhtar 19 846,847

I consider that this evidence suffers the same defects as that provided by Mr Morarji for the Namaka Petition. It also suffers from the evident defect referred to in relation to the 'double entry' challenges that they have assumed that there can only be one person of a particular name.

It would appear that the Petitioners (and PW7 in particular) have assumed wrongly either that all categories of qualified registrants must reside in the town, when in fact only those who apply to register as residents must be resident in the relevant ward. Alternatively, they have assumed that a person claiming to register on the basis of a tenancy or ownership of land needs to reside there as well, which he need not, when he or she could be the owner of a vacant lot or hold a commercial tenancy. It is to be noted that PW7 Mr Ali gave no evidence as to whether the challenged voters claimed to be qualified on the basis of residence or some other ground such as nomination or tenancy. I consider that his evidence on this matter therefore has no probative value at all.

I therefore hold that the Petitioners have provided no probative evidence to substantiate these challenges which accordingly must fail.

Company Nominees

At paragraph (c) of the following Petition, the Petitioners purport to list 21 companies which they claim were contrary to the Local Government Act and Companies Act-

1. Sheiks Rent A Car Ltd

2. Gosai Transport and Contractors - Nota Ltd

3. Hamacho Restaurant (Fiji) Ltd

4. South Pacific Holiday Ltd

5. Combine Taxis Ltd

6. Lomolomo Beach Resorts Ltd

7. Raniga Jewellers Ltd

8. Aleems Investment Ltd

9. Raniga Jewellers Ltd

10. Boulevars Investment Ltd

11. Wai Vanua Co Ltd

12. Travellers Beach Resort Ltd

13. No.1 Auto Hans Ltd

14. Ksaan & Naiveli Investment Ltd

15. Aotea Agencies Ltd

16. Kennedy Hotels Ltd

17. Roxy Motor Pars Ltd

18. Palas Auto Services Ltd

19. Holly Hock Ltd

20. Ginko Ltd

21. MP Pala Investment Ltd

It will be noted that Raniga Jewellers Ltd is listed twice at No.7 and No.9. The total number of challenged corporate nominators should have been 20.

Evidence

The initial evidence on this ground was given by PW6 Mr Mohammed Aleem Khan (on Day 6 beginning on p.1 of the transcript).

Mr Khan gave evidence that 5 companies of which he was a director had nominated voters. Of these only 3 are listed in the Martintar Petition. These are -

- 6 Lomolomo Beach Resort

- 8 Aleems Investments

- 16 Kennedy Hotels Ltd

Therefore in my view, Mr Khan was duly authorised to make the nominations and these were valid.

As to the remaining 17 companies, no oral evidence was adduced at all by the Petitioners to show either that the companies had nominated voters, which voters they had nominated, how they had done so and what, if anything, was invalid about the nominations.

The only evidence apart from PW7 Mr Khan was evidence given by PW8 Mr Amjad Ali at pp.30-31 where he admits that some of the challenged corporate nominations were witnessed by members of his own party. The only other evidence he gives on this matter is as to his belief as to the proper legal procedures to be followed in nominating voters.

Accordingly, I hold that their claims on this ground must also fail.

Trustees of Estates

The following estates were alleged to have invalidly participated in the election-

1. Estate of Shiu Narayan 6. Estate of Sucha Singh

2. Estate of Shakur Ali 7. Estate of Phul Kumari

3. Estate of Adiappa 8. Estate of Mahabir - when

4. Estate of Lala Ram 9. Estate of Chinnaiya Goundar

5. Estate of Sanmogam Goundar 10.Estate of Nemani T Raikuna

Evidence

Mr Khan first gave evidence in respect of (8) the estate of Mahabir. He alleged that he would that afternoon call one of the trustees to give evidence that he had no knowledge of any nomination by the trust and that he had voted. This evidence of Mr Khan is quite improperly and incorrectly summarised at p.9 of the Petitioners' written submissions.

In fact when the witness PW9 - Mahendra Prakash f/n Mahabir was called his evidence was in fact to the contrary to that suggested by the Petitioners' written submissions. At pp.66-68 of the transcript, Mahendra Prakasah gave evidence that he had nominated himself, and 2 other voters on behalf of himself as trustee and his sister, his fellow trustee from whom he held a power of attorney. He further swore that he had not voted because he was busy.

PW7 Mr Amjad Ali also mentioned in oral evidence the names of 6 of the listed estates (3 were not even mentioned) but apart from making a very general suggestion that solicitors' clerks had fraudulently nominated on behalf of those estates, he did not specifically state how their nominations were objectionable or invalid or who had allegedly acted fraudulently or the exact source of that belief. No nomination forms, trust documents or other evidence was called or produced.

Particularly, in view of the way his specific claim regarding the Mahabir estate was later contradicted by the Petitioners' own witness, PW8 Mr Amjad Ali, I hold that the Petitioners have failed to prove anything improper about the trustee nominations or that the nominees voted and might therefore have affected the result.

Summary

Accordingly, I am satisfied that the Petitioners have not proved any of the irregularities alleged in their Martintar petition.

NADI WARD

The majorities in this ward ranged from 107 vote to 12 votes.

Before proceeding to examine the grounds and particulars of the Nadi Ward Petition it is necessary to point out a mistake made by all parties and their counsel during the inspection of the rolls used for the poll during the interlocutory stages of the hearing.

When inspection of the rolls took place for this case only one copy that for A-M was inspected. Therefore the names of all those who voted in the other stream (i.e. whose names began with N-Z) were not marked on that roll and were therefore presumed not to have voted. The assumption that these voters did not vote was subsequently contradicted by oral evidence.

Multiple Registration

Particulars

At paragraph (a) of the Petition, the Petitioners listed the following 21 persons whose names allegedly appeared twice on the rolls -

Name of Voter Page No Line No Serial No

1. Asenaca Saloba 4 167,168 1660,1214

2. Ben Jamuna 6 228,229 1952,1952

3. Chuni Lal 7 296,296 3034,3303

4. Eela Ben 9 377,378 4502,3338

5. Eneri Tale 9 400,401 6433,6914

6. Eseroma Tivulu 10 416,415 1234,1238

7. Evieli Nasau 10 427,428 6934,6901

8. Filimoni Lolovo 10 441,440 2073,2979

9. Hariwan M Pala 12 500,501 1963,1963

10. Hem Lata 12 501,513 3340,4503

11. Isaia Vuki 13 561,562 1233,1239

12. Merewai Wati 23 991,992 5578,3264

13 Naidu Suruj 25 112,113 1954,1954

14. Navin Bhai 27 1176,1179 4477,4520

15. Nitin Pala 27,28 1216,1216 1964,1964

16. Parul Patel 28 1245,1246 2033,4067

17. Raman Patel 28 1254,1255 1961,1961

18. Penaia Driu 29 1267,1268 6947,6657

19. Praveen Roy Lata 30 1328,1329 1030,5018

20. Vinod Chandra 45 1986,1988 1955,1955

21. Dilip Khatri 8 356,357 1962,1962

Evidence

The Petitioners' evidence in support of those particulars was provided by PW14 Pradhuman Raniga on Day 7 of the Hearing beginning at p.23 of the transcript for that day.

In dealing with Asenaca Saloba Mr Raniga did not state that he has personal knowledge of the person or person. In any case this was a case of a double registration identified by the Respondent District Officer, Nadi after the final roll had been published. In his affidavit and oral evidence (on Day 8) he gave evidence that her name was crossed off the copy of the final roll that was used for the purposes of the poll before it was supplied to the Presiding Officer at the polling place. Special additional steps were taken to ensure that she did not vote more than once.

On Chuni Lal, Mr Raniga claimed personal knowledge of one such person living in Lodhia Street. At p.25, however, he stated only that the Chuni Lal he knows lives at Lodhia Street. He gave no evidence that he has any knowledge that there is not another similarly named person in Lui Street. In any event, the Respondent District Officer, Nadi's assertion contained in paragraph 3 of his Affidavit in reply that only the Chuni Lal of Lui Street voted was not contradicted by him.

In the case of Eela Ben Mr Raniga states only that it "has been confirmed" that they are one and the same person. He does not specify the source of that knowledge.

Furthermore, he does not contradict the evidence given in paragraph 4 of the Respondent District Officer, Nadi's affidavit that only one of the 2 voted.

In regard to Enere Tale, the witness admitted that he had no personal knowledge and was relying instead on one Ponipate Lesavua's knowledge of one such person. Apart from the hearsay character of the evidence there was no evidence that there was any attempt to find out if there was another person by the same name.

It appears from the evidence on p.26 of Mr Raniga that 2 persons voted as Enere Tale without objection from them at the poll, presumably because there were 2 different people.

Similarly, in regard to Eseroma Tivulu, Evieli Nasau, Filimoni Lavotora, Isaia Vuki, Merewai Wati, Penaia Driu and Praveen Roy Lata the witness had no personal knowledge of anyone by that name and relied on an unnamed 'colleague' (see p.27). In any event according to the Respondent District Officer, Nadi's affidavit, only one person of each name voted. The Respondent District Officer, Nadi's claim that no vote was cast in respect of Penaia Driu nd Praveen Roy Lata whose name appeared in the unexamdined copy of the roll used for "N-Z" voters cannot be substantiated.

In the case of Hariwan Pala and Harjiwan Pala, of whom Mr Raniga claimed pesonal knowledge, the Respondent District Officer, Nadi had stated in his affidavit at paragraph 9 that this was a double registration identified between the publication of the final roll and the poll, and that the superfluous entry had been crossed off the copy of the roll before it was supplied to the Presiding Officer. At paragraph 10 of his Affidavit, the District Officer, Nadi gives evidence that only one person of that name voted.

The double appearance of Suruj Naidu was conceded by the District Officer, Nadi in paragraph 13 of his Affidavit where he deposed to the fact that special steps were taken to allow only one person to vote under that name including amending the copy of the roll supplied to the presiding officer.

On pages 30-31 Mr Raniga also claimed personal knowledge of persons by the name of Navin Bhai,Nitin Pala, Parul Patel, Raman Lal Patel and Vinod Chandra. However, I consider that his evidence is not probative because he did not state grounds for believing that there is only one such person. In any event, these individuals should have been called and they were not.

Non-Residents

At paragraph (6) of the Petition, the Petitioners listed 10 voters who they alleged were on the rolls but were not qualified because they had not resided in the municipality for 12 months. These were -

Name of Voter Page No Line No Serial No

1. Sewak Abhilas Chandra 38 1684 6223

2. Sewak Asha Lata 38 1685 3653

3. Sewak Ashish Chandra 38 1686 3652

4. Sam Sewak 38 1701 1419

5. Mohammed Yunus 24 1039 3152

6. Hari Krishna Kewal 11 491 2040

7. Ravindra Nadan 33 1473 3171

8. Kamla Nadan 16 686 3172

9. Dilip Khatri 8 356 3172

10. Satish K Patel 37 1642 625

Evidence

During his evidence, at p.35-36 Mr Raniga withdrew or could provide no evidence of the allegations against-

. Mohammed Yunus

. Harry Krisha Kewal

. Ravindra Nandan

. Kamla Nandan

. Dilip Khatri

. Satish Patel

The only voters for which challenges therefore remain are-

. Sewak Abilash Chandra

. Sewak Asha Lata

. Sewak Ashish Chandra

. Sham Sewak

All of these persons are members of the same family. One of the family Mr Sewak Abilash Chandra was called as a witness PW5 and gave evidence on Day 5 of the Hearing. His evidence begins at p.88 of the transcript for that day. At pp.88 and 95 he contradicted the Petitioners' claim and gave evidence that Sewak Asha Lata and Sewak Ashish Chandra all resided in the Nadi Ward.

No evidence was given by either Mr Raniga or Mr Sewak Abilash Chandra as to the residence of Sham Sewak, so the allegations as to this voter must fail.

Summary

Thus all allegations regarding qualifications contained under this paragraph of the particulars have either been withdrawn, controverted by the Petitioners' own witness or not substantiated at all. I hold therefore that the Petitioners' claim on this ground must fail.

Companies Nominees

At paragraph (c) of the Petition, the Petitioners listed some 94 companies in respect of which they alleged voters were improperly nominated.

However, the evidence on this matter which was given by Mr Raniga on pp.36-40 of the transcript of Day 7 merely repeats the general allegation of the Petition and adds a further scandalous allegation that "most of the nominee's signatures were forged by the witnessing officers" (p.38). No specific oral or documentary evidence (particularly copies of the relevant nomination forms) was tendered to show which companies voters or witnessing officers were involved. This was in spite of Mr Raniga's admission that the Petitioners had access to the forms during the objection period (p.39) and also through their Counsel during inspection at the Registry Office (p.40). This lack of specific evidence on each company is all the more startling and prejudicial to the Petitioners in view of Mr Raniga's statement at the bottom of p.39 that he did not believe that all 94 companies had made invalid nominations and that "some may be correct". An oral evidential statement to the effect that "most of them" are defective without further evidence is insufficient ground for this Court to find in favour of the Petitioners even in respect of a single company. I note Mr Raniga's admission on p.37 that of 21 voters nominated by 7 particular companies, only 4 voted.

Also of note is Mr Raniga's admission during cross-examination on pp.60-64 that a number of the companies nominees were registered by the Petitioners themselves, and, that he was himself managing director and signed the nomination form of one such company, Mohan Lal Ltd.

Supersonic Builders Ltd

At paragraph (d) of the Petition, the Petitioners made a special allegation in respect of one 'Supersonic Builders Ltd' which had nominated 3 voters, but only 2 of whom had voted.

This oral statement is not sufficiently probative and I consider that the Petitioners should have produced a certified statement from the Registrar. At p.65 this was put to Mr Raniga and he replied "We could have got one and we can still get one". Inspite of being put on notice, the Petitioners failed to do so before the conclusion of the hearing the following week.

Trustees

At paragraph (e) of the particulars the Petitioners listed eight estates and claimed that the trustees thereof had invalidly nominated voters -

Evidence

The only oral evidence provided in support of these allegations was the affirmative answer "yes" to the leading question whether Mr Raniga "rested with your allegation in paragraph (e) [of the Petition] and you stick by it?" (at p.41).

Furthermore, in cross-examination on pp.67-68 he equivocated about what trustees entitlements were.

In any event no evidence was produced to substantiate a single individual case.

Summary

For these reasons all the Petitioners' allegations in respect of trustees must fail.

Vilikesa Driu

Paragraph (h) made a particular allegation regarding the qualification of Vilikesa Driu who is a sitting councillor and the Fourth Respondent to the Petition. This allegation was that although Mr Driu had claimed to be a "tenant" he did not reside in Nadi Town nor was an 'owner' by virtue of membership of a land-owning which owned land in Nadi Town.

In his affidavit in reply and in his oral evidence on Day 9 pp.65-70, Vilikesa Driu said he was a joint tenant with his wife of a commercial premises within the ward in Narewa, Nadi on CT 12118, which was a Native Lease.

At pp.46-47 of the transcript Pradhuman Ranbiga tendered a letter from the NLTB that according to their records Vilikesa Driu had no interest in the relevant lease. (This was marked as exhibit P-5). However, the following day Mr Driu during his evidence at p.69 tendered a copy of a Tenancy Agreement between himself and one Ram Prasad to show evidence of the tenancy. It was marked R.3.

In deciding the question whether Mr Driu was qualified to be a voter and therefore was validly elected, I consider that the court should look only at the tenancy relationship between Mr Driu and his landlord. The Agreement satisfies me he was a tenant and thus entitled to vote. I therefore reject the Petitioners' evidence on this.

"Tampering with Boxes"

A short final word must be said about the Petitioners' claims that ballot boxes were "tampered" with. Three witnesses (PW12 C D Singh, PW15 Dewa Nadan and PW20 Satendra Kumar Sharma) were called on this issue.

Apart from the inconclusive nature of their evidence, in my view this whole issue was totally irrelevant to the proceedings, and was a red herring.

As stated earlier, the Petitioners' evidence was that the petitions were all about registration forms which are kept by the Registration Officer for the purposes of roll revision. They were about polling and the ballot boxes or ballot papers or other voting documents which were required to be sealed up after the count under rule 40 of the Second Schedule. Accordingly this evidence was irrelevant.

Conclusion

On the basis of the foregoing, I consider that the Petitioners have not proved any of the allegations in their submission.

In respect of the Namaka petition, the only arguable case was that of Mr Chand.

In the case of the Martintar Ward no arguable cases were presented.

Finally, in the case of the Nadi Ward the only arguable cases are the 2 votes cast by 2 nominees of Supersonic Builders and Vilikesa Driu.

In all cases, the arguable irregularities are well within the majorities of the winning candidates, so no question of the result being affected arises.

Of all the three petitioners and indeed all the other witnesses who gave evidence I consider that the petitioner Pradhuman Raniga was the most unsatisfactory. Most of his evidence was based on hearsay or assumption and I formed the conclusion that Mr Raniga was prepared to say anything if he thought it might help his case. In this regard, I mention his scandalous allegation of forgery of signatures by witnessing officers. He must have known he could not prove this allegation and yet persisted in it.

When giving my ruling on the 2nd December 1996, that the petitioners should be allowed to proceed and call evidence in support of their allegations I stated that I held reservations about certain aspects of the Petitions. Unfortunately for the petitioners the further the evidence went the more confirmed I became in my reservations and I have been unable to find anything in the valiant efforts both oral and written by their Counsel to remove those reservations. I therefore find that all the petitions must be dismissed with costs to the respondents to be awarded under the Regulations.

The Respondents submitted that I should award costs on an indemnity basis on the ground that the petitioners have wasted the Court's time. I have been tempted to agree with this submission at least partly and order that the petitioners pay at least the costs of the respondents on an indemnity basis for the last 5 days of the hearing on the ground that conceivably by then they would have realised that their cases were losing credibility but they still persisted with their petitions. However, on further reflection and particularly in view of the fact that these have been the only petitions so far in Fiji on the result of a Local Government election, hopefully some lessons will be learnt from this litigation. The order for costs is therefore, on the ordinary party and party basis.

I had hoped that this Judgment would be much shorter than it has turned out to be but, given the large amount of evidence and the detailed submissions on the law I have received, for all of which I congratulate counsel, this has not proved possible.

At the beginning of this Judgment I listed the legal issues which I consider these petitions raise. I list them again here with answers to each question appended. These are-

1) What are the High Court of Fiji's powers to declare a local government election void and on what basis might it do so?

Answer: Where there are corrupt or illegal practices proved and for the reasons set out by Isaacs J in Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 at pp.623-624.

2) Is the effect of section 11(3) of the Local Government Act that if a voter's name appears more than once on a roll, that person is disqualified from being on the roll at all?

Answer: No.

3) Is nomination of a voter by a company under the Local Government Act void because it is not under common seal and not signed by two dirctors and/or a company secretary?

Answer: No.

4) What is the meaning of the term "trustees" under section 11(4)(b) of the Act and in particular does it include trustees of deceased person's estates?

Answer: The term "trustees" means persons who hold property for others and includes trustees of an estate.

5) Are persons who are qualified to vote as lawful tenants under section 11(4)(a) of the Act also required to be resident in the municipality?

Answer: No.

6) Is the Registration Officer obliged to give an objector a copy of any written reply given to any Registration Officer by a voter objected to?

Answer: No.

7) Is the Registration Officer obliged to give written notification of his decision on an objection to the objector within a specified time?

Answer: No, but it is desirable to give such notification within at least three days of the poll.

8) Did any of the respondents have power to delay an election if there was insufficient time to investigate objections fully?

Answer: No.

9) If an electoral roll used for an election contains the names of unqualified persons, is this an irregularity which can in itself and regardless of whether that person voted and affected the result, vitiate the election and empower the Court to declare the election void?

Answer: No.

10) If not, must such irregularities have affected the result of the election before the Court can exercise its power?

Answer: Yes.

11) If so, who has the burden of proving first, that the irregularities occurred and second that the result of the election was or was not affected?

Answer: The petitioners.

12) Can a person who is appointed both Registration Officer and Returning Officer for a constituency, be petitioned against in his capacity as returning officer for alleged irregularities that occurred while performing his functions as Registration Officer?

Answer: No.

13) Is hearsay evidence admissible?

Answer: No.

14) On the hearing of a petition may additional particulars be incorporated in the petition?

Answer: No.

In this regard I would add that the Court should exercise its power to amend petitions very sparingly.

I therefore find that all petitions should be dismissed with costs to the Respondents to be awarded under the Regulations.

JOHN E BYRNE

JUDGE

Legislation and authorities referred to in judgment:

Companies Act Cap. 247.

Electoral (Election Petitions) Regulations, 1992.

Local Government Act Cap. 125.

Local Government Act Regulations.

Local Government (Amendment) Act, 1997.

Bridge v. Bowen [1916] HCA 38; (1916) 21 C.L.R. 582.

Christine Bourne v. Alice Murphy & Ors. - unreported judgment of New South Wales Court of Appeal dated 4/11/96.

Re Hunua Election Petition [1979] NZHC 17; (1979) 1 NZLR 251.

Morgan v. Simpson and Another (1974) 3 ALL E.R. 722.

Woodward v. Sarsons and Another [1875] UKLawRpCP 68; L.R. 10 C.P. 733.

Scarcella v. Morgan [1962] VicRp 30; (1962) V.R. 201.

The following additional cases were cited in argument:

Re East Clare 4 O'M & H 162.

Islington West Division Case (1901) 17 T.L.R. 210.

Warburton v. Loveland (1831) 2 D & C1 480, 489.

Hbc0509j.96s