Irregularity
There was certainly irregularity in the conduct of the election because
voting at both polling stations was allowed to
go on beyond 5pm, the time
authorised by regulation 19. There had not been proper authorisation for the
time to be extended.
Regulation 19 reads:
The hours of voting shall be fixed by the Returning
Officer generally or in respect of particular wards or polling stations
and
shall be not less than eight consecutive hours between seven o'clock
in the forenoon and five o'clock in the afternoon.
Mr. Nori, learned counse the petitioner, submitted tted that from the
evidence, the number of votes cast after 5pm, especially
at Vura was
unknown, the numbers given between 20 and 30, Mr. Nori said, were mere
estimates and according to one witness
John Babalu, PW4, the number of about
20 was what he saw well after 5 o'clock. Mr. Nori urged the court to
conclude that
the number of people who voted during about 1˝ hours was
greater than 30 and could have been more than 51, the majority figure,
“nobody knows the number of votes cast.” he said. Mr. Nori's usual eloquent
submission was, this time also admirably
philosophical, but that strongest
compelling logical deduction of facts in his submission was also his weakest
position
in the law of evidence and procedure. He represented the petitioner
and it was for the petitioner to prove the facts he alleged
and relied on,
to the required standard of balance of probability. Leaving the facts
uncertain cannot be taken to assist
the petitioner's case. If the uncertain
facts are material, they may assist the respondent instead. The evidence
adduced
proved that at most a total of 40 votes were cast at both polling
stations after 5pm. I prefer to say that the votes cast were
more than 20,
but less than 30, certainly nowhere near 51, the number by which the votes
cast for the respondent exceeded
the votes cast for the petitioner. It is my
finding of facts therefore, that the number of votes cast after 5pm could
not and did not affect the overall result of the election.
Can the Irregularity Inva Invalidate the Election?
I
have reached findings of facts that there was irregularity in the conduct of
election in Ward Eleven because voting
was allowed to continue beyond 5pm
without proper authorisation. I have also found as fact that the number of
votes cast
did not affect the result of the election, can these facts be
used to declare the election void under regulation 63(3)? The
answer lies in
the interpretation of regulation 65 read together with regulation 63(3). I
set out both regulations 63(3)
and 65 here:
<
65. N65. 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.
ass=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
and
63(3): At the csion of the hearing, the Court shall
determine whether the member whose return or eler election is complained
of, or
any other and what person, was duly returned or elected, or whether the
election was void and shall certify such
determination to the Minister; and,
upon such certificate being given, such determination shall be final and
shall not
be questioned in, nor shall any appeal lie therefrom to, any
court; and the election shall be confirmed, or a new election
shall be held,
as the case may require, in accordance with such certificate:
Provided that where the
Court finds that any candidate who has been declared to be elected was not
qualified or was disqualified
at the time of his election, the Court shall
determine the election to be void.
lass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The provi in regulation 65 are similar to the provisions in section tion 9
of the National Parliament Electoral Provisions Act, No. 5 of 1980, (NPEP)
Act which was considered in the case of John Maetia v Charles Dausabea
HC CC 266 of 1993, a case cited and relied upon by Mr. Nori. Section 9
reads:
No election shall balid by reason of non-compliance
with this Act if it appears that the election was coas conducted in accordance
with the principles of this Act and that the non-compliance did not affect
the result of the election.
The NPEP Act was, itself adopted from the law of England, section 37(1) of
the Representation of the People Act 1947.
The provision in the section had
its forerunner in the Ballot Act 1872 of England, S; 18. In all the
legislations I have
referred to, the message that has been maintained right
up to our regulation in point, regulation 65 of the Local Government
(Elections) Regulations, Legal Notice 76 of 1976, is that an election will
not be declared invalid because of non-compliance
with the legislation if
notwithstanding the non-compliance, the election was, after all, conducted
in accordance with
the principles laid down in the legislation about the
election, and if the non-compliance did not affect the result of the
election. Courts have interpreted the rule to mean that non-compliance does
not always invalidate the results of the
election, but once the result can
be shown to have been affected by non-compliance, the election is
invalidated. If the
non-compliance has not affected the result, the court
may still invalidate the result of an election if the non-compliance
was so
bad that it may be said that the election was not conducted substantially in
accordance with principles in the
legislation under which the election was
conducted.
The case of John Maetia v Charles Dausabeais an instance where the
he
Court applied the second part of the law, concluding that the election
was
not conducted in accordance with the principles of the legislation, the
National Parliament Electoral Provisions Act, but it must be noted that the
court also decided that non-compliance, “ also…must have clearly affected
results”. So
both parts of the law were applied in deciding the case. I do
not accept Mr. Nori's apparent suggestion that His Lordship,
Sir John Muria
CJ, presiding in the case, decided the case only on the ground that voting
went on beyond closing time,
and so that fact alone was taken by Sir John
Muria CJ as determinant in concluding that the election was not conducted in
accordance with the principles of the Act. In the case, the Chief Justice
found that up to 4 breaches of the law occurred:
1. That Ilia Polling
station remained opened beyond 5pm until about 7pm 2. That a relatively
large number of voters voted
outside closing time and that affected the
result of the election. 3. That the respondent arranged for husband and wife
who were not citizens to register and vote, and they voted. 4. That the
respondent arranged for husband and wife who were
not in Solomon Islands, to
register and vote, and someone else or some other people voted in their
names. Anyone would
agree that those facts showed that the election, the
subject of Maetia’s case, did not take place substantially in
accordance with the principles of the election laws in the NPEP Act. I am
unable
to accept that Maetia's case is a perfect authority for
deciding the instant case.
The case of Evo v Super and Returning Officer [1985/86] SILR 1,
>
cited by learned counsel Mr. R. Teutao, for the respondent, is another
example of a case in which the court applied the rule
as to whether election
had been conducted substantially in accordance with the principles of
election legislation. The
conclusion of the court was the opposite of the
conclusion reached in Maetia's case. That in itself cannot be
surprising because different facts may produce different conclusions. The
court decided
that although there had been breach of the provisions, in S.9
of the National Parliament Electoral Provisions Act, the election had been
conducted substantially in accordance with the principles of the laws of
election in the Act.
The case was argued on the principles of the Common Law
of England which is largely reflected in the NPEP Act. In his learned
and
well researched judgment, His Lordship Sir John White ACJ, stated, and
applied the Common Law and the principals
in the NPEP Act as interpreted and
applied in earlier judgments. His Lordship’s application of the correct law
to the
facts of the case, Evo’s, is what I have reservations about.
He concluded that allowing unto 154 voters who belonged to another
constituency to
vote in the constituency in issue, was not such serious and
substantial breach so as to render the election one in which there
was no
substantial compliance with the principles of the Act. In short, his
conclusion suggests to me that ordinary people
would not regard wrongfully
allowing up to 154 voters of one constituency voting in another, in an
election based on
constituency units, as rendering the election unjust and
unfair. Total votes cast was 2000 and the respondent won by majority
of 195
votes. If the question were to be put to members of the public as to whether
the error was serious enough to render
the election unjust or unfair, I
think many would hesitate to say the election was not rendered unjust or
unfair, rather
many would many would say the election was just or fair. I
think His Lordship was much influenced by his finding of fact that
the error
did not affect the result. The law about substantial breach of the
principles of election laws does not depend
on whether or not the result of
the election was affected. If an error, however trivial, affects the result,
it is enough
to have the election invalidated, but it is also the law that
if the error is so substantial, as to make it appear that the
principles of
the election law was breached, the court ought to invalidate the election,
even if the result of the election
was not affected.
<
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It is hl to look at some examples outside Solomon Islands. An impo important
case in England is Morgan and Others v Simpson and another [1974] 3
All ER 722. It was applied by Sir White ACJ in Eve’s
case. In Morgan’s case, a total of 32,691 votes were cast in a local
election in London, England. 82 ballot papers were properly rejected because
they were not duly stamped as required. Election officials occasioned the
error. If the 82 ballot papers had been duly
stamped and therefore not
rejected, the petitioner would have won. On case stated the Court of Appeal
decided that the
election, despite the error of omitting to stamp 82 ballot
papers, was conducted substantially in accordance with the law as
to local
election, but as the error affected the result, the court declared the
election invalid. In describing election
which is not conducted,
"substantially", in accordance with the legislation, Lord Denning said:
ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"If tection was conducted so bado badly that it was not substantially in
accordance with the law of elections, the
election is vitiated ......"
Lord Stephenson said:
"For an election to be conducted substantially in
accordance with that law there must be a real election by ballot and
no such
substantial departure from the procedure laid down by Parliament as to make
the ordinary man condemn the election
as a sham or a travesty of an election
by ballot."
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Lord Lowton said:
ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
"This
question is of importance in this appeal because in my judgment, the
election ......’ was conducted as to be substantially
in accordance with the
law as to elections.’ The proven errors were nothing more than what is
always likely to happen
in the conduct of any human activity."
class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Of the three dicta of the law lords that of Lord Stephenson requ requires
that only in hopeless and rare cases will election be invalidated. The
requirements in the dicta of Lord Denning and Lord Lawton are not so
high for election to be invalidated.
The nt case to the case before this court is Medhurst v LoughLough and
Gasquet (1901) 17 TL 211, a case in England. A presiding officer
gave out 14 ballot papers after 8 pm, the closing time. The respondent won
by majority
of 19 votes. It was decided that the irregularity did not affect
the result so the election was not invalidated. It is implicit
that the
error was considered not so bad so as to render the election not having been
conducted substantially in accordance
with the laws of election. On the
other hand, a case in which the court held that election had not been
conducted substantially
in accordance with the laws in the election
legislation is, Hackney case, Gill v Read and Holmes (1874) 20
M&H 77, again in England. In the case, 2 out of the 19 polling stations
remained closed all day, 3 others were only
opened for part of the day. Up
to 5000 people out of 41,000 did not vote. Go J said that the, "election was
not
conducted in accordance with the principles laid down in the body of the
Act" His observation about triviality not being
enough to nullify election
is a useful guide, I quote it here; he said:
ass="Mso="MsoBodyTextIndent" align="left" style="text-align: left; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
‘... an election is not to be upset for an informality or
for a triviality, it is not to be upset because the clerk of one of
the
polling stations was five minutes too late, or because some of the polling
papers were not delivered in a proper
manner, or were not marked in a proper
way. The objection must be something substantial…’
Petition Dismissean>
In this case, Alfrence Fatai v David Maesua>voting went on for about
out
1˝ hours after closing time, 5pm. Those who were allowed to vote
were only
those who had arrived earlier than 5pm. The votes they cast totalled at most
40. The respondent won by majority
of 51 votes. I have accepted and decided
that it was an error to have allowed voting after 5pm. In my view, the
circumstances
of the error and the error were not so bad as to render the
election to be regarded as not having been conducted substantially
in
accordance with the Local Government (Elections) Regulations and so to cause
the court to invalidate the election.
Certainly the election was not a sham,
was it? As the error of the maximum of 40 votes did not affect the result,
there
is no alternative reason to invalidate the election for Honiara Town
Council, held on 12.5.1997 in Ward Eleven. It follows
that my determination
is that the respondent, David Maesua, who was the successful candidate in
that election, was duly
elected and returned. I shall accordingly certify
the court’s determination to the Minister in terms of regulation 63(3).
As there was error, though not substantial, inwing some people to vote
te
after 5pm, the closing time, I shall not order
costs against the petitioner.
Parties are to bear their own costs.
Delivered this 17th
day of April 1998
At the High Court
Honiara
Sam Lungole-Awich
JUDGE
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