Lavulavu v Latu [2015] TOCA 13; AC11 of 2015 (16 September 2015)

IN THE COURT OF APPEAL
CIVIL JURISDICTION AC 11 of 2015
NUKU'ALOFA REGISTRY [CV 90/2014]

BETWEEN:

'ETUATE SUNGALU LAVULAVU
Appellant

AND:

1. VILIAMI UASIKE LATU
2. 'AISEA SILIVENUSI TO'A
Respondents

Coram : Moore J
Blanchard J
Hansen J
Tupou J

Counsel : Mr. O. Pouono for the Appellant
Mr. W. C. Edwards SC for the Respondents

Date of Hearing: 11 September 2015
Date of Judgment: 16 September 2015

JUDGMENT OF THE COURT

[1] This is an appeal against a ruling of the Lord Chief Justice on 20 April 2015 denying trial by jury to the appellant in an election petition.

[2] The general elections were held on 27 November 2014. The appellant, 'Etuate Sungalu Lavulavu, was elected as the people's representative for the Electoral District of Vava'u 16. On 15 December 2014 the respondents filed an election petition seeking a declaration that the election of the appellant is void upon the grounds of bribery and corrupt or illegal practices in connection with his election contrary to ss.21 and 24 of the Electoral Act 1989.

[3] The appellant filed a defence to the election petition on 23 January 2015 denying all the allegations of bribery and corrupt or illegal practices. He also requested that the trial of the election petition be held before a jury.

[4] After several chambers hearings for directions, the Lord Chief Justice on 27 March 2015 directed that counsel were to make submissions on whether the defendant (appellant) has the right to elect for trial by jury under Clause 99 of the Constitution (or any other statutory provision). After a hearing on 2 April 2015, the Chief Justice made his ruling on 20 April 2015 deciding, inter alia, that the petition will be heard by a Judge of the Supreme Court sitting without a jury. This appeal is against that ruling.

[5] The notice of appeal was filed on 1 May 2015. On 4 May 2015 the President of the Court of Appeal (Chief Justice) directed that there was no appeal as of right from the decision of 20 April 2015 and that the appellant was required to apply for leave under s.10(1)(b) of the Court of Appeal Act 1990.

[6] Application for leave was filed on 12 May 2015. The Chief Justice referred this to Tupou J who on 13 May 2015 directed that the application for leave be referred to the Court of Appeal under Section 10(1)(b). This was confirmed by Tupou J in his minute dated 19 May 2015 where he directed, inter alia, that:

- in the event of leave being granted, the parties are to prepare for the hearing of the substantive issue in the September session, and

- in preparation for such hearing, the parties are required to file a reply and any other document on or before 24 August 2015.

[7] In a reply filed on 10 September 2015 the respondents indicated that they have no objection to the leave application.

[8] The substantive question to be decided is whether a party to an election petition has the right to elect to be tried by a jury. It is an important question and this judgment could well influence the course of future election petitions. For this reason we grant leave to appeal.

[9] The respondents filed a reply and submissions on 10 September and extensive submissions were filed by Mr. Pouono for the appellant late in the afternoon before the hearing. We have considered both. At the hearing Mr. Pouono said that he would not go through the submissions in full but wished to raise three issues. We took these to be the central issues raised in the grounds for appeal and that was accepted by Mr. Edwards for the respondents. These are:-

(i) That sections 19 to 22 of the Electoral Act create election offences which provide punishment of a fine or imprisonment or both. They are criminal offences which entitles the accused to elect for trial by jury under Clause 99 of the Constitution. The election petition involves allegations of bribery and corrupt or illegal practices that by analogy entitles the appellant to elect for trial by jury under Clause 99.

(ii) That the election petition involves a decision on a question of fact. Clause 99 allows a party where a question of fact is raised in any civil action before the Supreme Court to claim the right to trial by jury; "and the law of trial by jury shall never be repealed". An election petition is a civil action entitling the appellant to elect to have a trial by jury.

(iii) Trial by jury of an election petition is not new and this was allowed in Paasi v Sanft Civil Case No. 5 of 1987 where the Supreme Court in the exercise of its inherent jurisdiction allowed the petition to be tried by a jury.

[10] An election petition is brought under s.26 of the Electoral Act by filing with the Supreme Court. The petition may arise from a complaint of an election offence that may be criminal in nature, like the present alleging bribery, but the petition seeks the voiding of the election and does not charge the appellant with any criminal offence. The standard of proof required of a petitioner is the civil rather than the criminal standard. Mr. Pouono conceded that the criminal offences under ss.19 to 22 of the Electoral Act were referred to by way of analogy and that he could not say that election petitions are criminal prosecutions attracting the election of jury trial under Clause 99 of the Constitution. We therefore reject the first ground of appeal.

[11] The second ground addressed by Mr. Pouono is really the crux of the appeal, involving an interpretation of provisions of the Constitution, the Supreme Court Act and Rules and the Electoral Act. Mr. Pouono submitted that Clause 99 of the Constitution allows the appellant to elect for trial by jury because it involves a question of fact in a civil action. Clause 99 states:

"whenever any issue of fact is raised in any civil action triable in the Supreme Court any party to such action may claim the right to be tried by jury; and the law of trial by jury shall never be repealed".

[12] Furthermore, Mr. Pouono said that Order 25 Rule 3 of the Supreme Court Rules prescribes that:-

"an action shall be tried by a Judge sitting with a jury if any party so requests".

He therefore submitted that the appellant could elect to be tried by a jury.

[13] Mention was also made by counsel of clauses 11 and 100 of the Constitution which refer to trial by jury. But these references do not assist the appellant's case as the former concerns claims for large amounts, and the latter claims for compensation, neither of which is claimable by an election petition.

[14] The nub of the appellant's argument was that clause 99 of the Constitution gives the right to trial by jury "whenever any issue of fact is raised in any civil action". Section 13 (1) of the Supreme Court Act provides that "civil actions shall be commenced by a writ of summons ..........". The Supreme Court Rules 2007, Order 25 Rule 3 also provide that an action shall be tried by a judge and jury, and the word "action" is defined in Order 3 Rule 2 to mean any civil proceeding commenced by a writ. The present petition was accompanied by a writ.

[15] Responding to this argument, in para [19] of his ruling, the Chief Justice stated:-
"Electoral petitions are sui generis being neither civil nor criminal in nature. .... In nature they are not concerned with enforcement of individual rights but with the maintenance of free and fair elections which are the cornerstone of democratic society."

We agree.

[16] Para [20] of the ruling emphasises the special nature of electoral petitions which is reflected in the procedures that apply to them:

(i) Civil actions are commenced in the Supreme Court by way of a writ. Election petitions are commenced by petition in a form to be prescribed, but not yet promulgated.

(ii) The strict time limits for the filing of an election petition do not apply to a civil action.

(iii) There is no mention of the right to elect trial by jury of an election petition in the Electoral Act or any other statute.

(iv) The powers given to the Court in relation to a petition are incongruous with the right to elect trial by jury.

[17] We are not aware why the appellant chose to file a writ with his petition as there is no such requirement in the Electoral Act. The filing of a writ does not create an action if in fact the petition is not a form of action. As it happened, we were shown a copy of an election petition from the same election in 2014 in the case of Tomifa Fainga'a Paea v Samiu Kuita Vaipulu CV 91/2014 where the election petition was filed without a writ, which was proper.

[18] Para [24] of the ruling of the Chief Justice described the remedies that are available to the Court upon hearing an election petition, including directing a recount or scrutiny of votes, declaring the election of a candidate to be void and unseating him from the Legislative Assembly, or striking off from the number of votes received by a candidate one vote for every person who voted and is proved to have been bribed or threatened. Plainly none of these remedies is of a kind that can be granted by a jury under the Constitution or any other legislative provision.

[19] We agree with the detailed and comprehensive analysis made by the Chief Justice of the provisions of the Constitution, the Supreme Court Act and Rules, and the Electoral Act as they apply to the right to elect a trial by jury in a civil action. His analysis demonstrates that a jury trial may well be inappropriate and unworkable in an election petition.

[20] In para [27] of his ruling the Chief Justice nevertheless assumed that the Supreme Court might possess an inherent power to order a jury trial but said that he would not do so in this case. We think it doubtful that the Court has such a power because it would appear to be contradictory of the statutory provisions. And, in any event, we agree that this case of some apparent complexity involving more than 60 witnesses, is much better heard by a judge alone without a jury.

[21] The final point made by Mr. Pouono is that it is not novel that an election petition should be tried by a jury in Tonga. This happened in 1987 in the case Paasi v Sanft CV 5/1987. But that was prior to the Electoral Act. Mr. Edwards was counsel for the petitioner in that case and evidently agreed to the trial by jury. He no longer accepts that position. That there was an order for a jury trial in Paasi under pre-Electoral Act processes does not mean that the position remains the same. In any case, it would appear that both parties in Paasi agreed to have the election petition decided by a jury and that the Judge in that case did not go into the question.

[22] The appeal is dismissed with costs to the respondents, to be taxed if not agreed.

Moore J

Blanchard J

Hansen J

Tupou J