Teananga v Chairman of Electoral Commission [2003] KIHC 22; Civil Case 58 of 2002 (27 January 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT RETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 58 OF 2002

BETWEEN:

ETERA TEANGANA
PLAINTIFF

AND:

CHAIRMAN IN RESPECT OF
ELECTORAL COMMISSION
DEFENDANT

FOR THE PLAINTIFF: MR AOMORO AMTEN
FOR THE DEFENDANT: MS POLE TEBAO, A/DIRECTOR OF PUBLIC PROSECUTIONS

DATE OF HEARING: 23 JANUARY 2003

JUDGMENT

Etera Teangana was one of the candidates for the Teinainano Urban District at the General Election held on 29 November 2002. He was not successful and has petitioned, making several complaints about the conduct of the election. He prays that the Court find the election in the Teinainano Urban District void.

The complaints:-

(i) The Electoral Officer failed to make any or proper arrangements for ensuring that the ballot boxes were opened and were counted in the presence of the counting agents and/or election agents entitled to be present thereat.

(ii) The ballot boxes were opened and the Electoral Officer proceeded to count the votes in the absence of counting agents and/or election agents entitled to be present thereat.

(iii) The votes cast at the said election were not correctly counted in that:

(a) the lay out of the election papers meant that candidates' names were very close to each other and the box for the X was far away from the names;

(b) the Petitioner's name was underneath that of Dr Harry Tong and the Petitioner states that mistakes may have been made in the counting of votes attributed to himself and Dr Harry Tong.

The Petitioner gave evidence, as did two other gentlemen, Tentau Taamarawa and Teitirua Kiali, who had acted as his agents.

At the close of the Petitioner's case I told Mr Amten I could not grant the relief his client sought or any relief and that I would publish reasons later.

Part V of the Regulations under the Elections Ordinance is headed, "The Count". Regulation 17:-

17. The Electoral Officer shall make arrangements for counting the votes in the presence of the candidates, or agents appointed in writing by them (being not more than 1 in respect of each candidate), as soon as practicable after termination of the voting and shall, so far as is practicable, proceed continuously with the counting, allowing only reasonable time for refreshment, until it is complete.
    

The only other Regulation of relevance to this Petition is in Part VII "Miscellaneous":-

31. No election shall be invalid by reason of non-compliance with these regulations (or any regulations amending or replacing these regulations), if it appears that the election was conducted in accordance with the principles laid down in any such regulations, or that such non-compliance did not affect the result of the election.
    

The Petitioner gave evidence, followed by h is agents.

The counting of the votes for the District took many hours as the ballot boxes were all brought to a central point, on this occasion the Ministry of Home Affairs. Despite the direction in Regulation 17, candidates were allowed to have one agent for the first half of the count and an alternative for the second half. The change-over during a break in the counting, was in the early hours of the morning of 30 November.

The Petitioner complained in sub paragraphs 3(i) and (ij) of the absence from the count of his agent, yet the evidence of the two gentlemen who acted for him shewed that one and then the other of them was present during the whole time of the count. So that complaint was not supported.

Sub paragraph 3(iii) has a complaint going to the layout of the ballot paper. The alternative agent, Teitirua Kiali, repeated the complaints set out in the sub paragraph.

A blank ballot paper was tendered. There were 19 candidates, listed in alphabetical order. The paper has two columns: the left hand column containing names with the heading "Aran Te Tia Kan Tia Tei" which I was told, translates as "Names of the Candidates". The right hand column is headed, "Kaota Nanom n te kanikina aei" which translates as, "Mark your preference with an X". Between the names of the candidates are horizontal lines across the width of the two columns.

It is difficult to see how the layout of the ballot paper could be improved. Perhaps the ballot paper could be a little smaller with the right hand column moved a centimetre or so to the left but that change may not be practicable.

I was surprised that the ballot paper does not have a direction as to how many candidates the elector should vote for, how many Xs he or she should mark. I was told the elector is directed before hand. I suggest that the direction should appear as well on the ballot paper itself.

I was also surprised to find that the counting was conducted at the same time in two adjoining rooms. This, I suggest was a mistake. Under Regulation 17 each candidate may be present at the count or have one agent present. No one can be in two rooms at once! The candidate or agent could not watch the whole count, only half. I suggest that all the counting should - as Regulation 17 must contemplate - take place in one room.

Neither of the points I have mentioned would justify interference with the election. The election was conducted in accordance with the principles laid down in the Regulations. I hope that what I have suggested may be helpful for the future.

I had a discussion with counsel. Ms Tebao, appearing for the respondent, decided not to call evidence. She told me that members of the Commission had been in court and heard what was said.

The petition is dismissed.

Dated the 27 day of January 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE