Naqasima v Gavidi [1978] FJSC 109; Action 33 of 1977 (13 July 1978)

IN THE SUPREME COURT OF FIJI
MISCELLANEOUS PROCEEDINGS

Action No. 33 of 1977

IN THE MATTER of the Electoral Act 1971
and the Electoral Regulations, 1977

AND IN THE MATTER of a Parliamentary Election for the Fijian
Communal Constituency of Nadroga/Navosa held between the 17th day
of September, 1977 and the 24th day of September 1977.

BETWEEN

PENIAME DAVULE NAQASIMA
of Tamavua, Suva
Petitioner

AND

RATU OSEA GAVIDI
of Martintar, Queens Road, Nadi
1st Respondent

AND

THE SUPERVISOR OF ELECTIONS
2nd Respondent

AND

THE RETURNING OFFICER
of the Commissioner Western's Office, Lautoka
3rd Respondent

JUDGMENT

In this petition the petitioner claims to have the right to be declared duly elected at the general election held in September 1977 to represent the Fijian Communal Constituency of Nadroga/Navosa on the ground that the majority of good and legal votes was in his favour.

At the conclusion of the hearing of evidence last week I indicated in a ruling that there was sufficient doubt about the manner in which the count of ballot papers was conducted as to justify the view that errors may have been made. Consequently I ordered a recount of votes cast in the election in order to resolve the matter one way or another.

The recount did not get off the ground as originally scheduled. The six bags which were brought to the Court from Lautoka and were opened in the presence of myself and counsel for either side did not contain the expected bundles of ballot papers concerned. It appeared that the ballot papers and other election paraphernalia in respect of the forty constituencies in the Western Division were after the results of the election were declared stored in several hessian bags. The bags were securely tied and sealed and retained under police custody at Lautoka. Unfortunately the markings on the bags were inadequate and gave little clue as to the actual contents of each bag. Thus in order to locate the bag containing the required ballot papers the bags have had to be opened and their contents checked and under the circumstances this could only have been done in the presence of a judge. I accept that Mr. Raniga, the returning officer, acted in good faith in thinking that one of the bags produced in Court yesterday would contain the required ballot papers. In any event the scheduled recount has had to be delayed for a day to allow the ballot papers to be located and produced in Court.

The recount has now been completed. The exercise took just over two and a half hours. After allowing for certain adjustments arising from the reversal of the decision of the returning officer on the disputed ballot papers the results arrived at by the Court at the recount were as follows:

Ratu Osea Gavidi Paniame Davule Naqasima Informal

- 3798 - 3710 - 128

It is quite clear from the above results that contrary to the petitioner's claim the majority of good and legal votes was in fact received by Ratu Osea.

It follows that in my judgment and I so determine that Ratu Osea Gavidi whose election return was the subject of complaint by the petitioner was properly and rightfully declared duly elected as a member of the House of Representatives for the Fijian Communal Constituency of Nadroga/Navosa.

The petition will therefore be dismissed with costs.

Sgd. T. U. Tuivaga
JUDGE

Suva,
13th July, 1978