Jimmy v Rarua [1998] VUCA 4; Civil Appeal Case 02 of 1999 (23 April 1998)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Appeal Case No. 2 of 1999

BETW>BETWEEN:

HON. WILLIE JIMMY
First Appellant

AND:

HON. HENRY TAGA TARI KAREA
Second Appellant

AND:

THE ELECTORAL COMMISSION
Third Appellant

AND:

SHEM RARUA
Respondent

Coram: Acting Chief Justice Vincent Lunabek,
Justice Bruce Robertson,
Justice John von Doussa,
Justice Daniel Fatiaki,
Justice Marum Reggett

Counsel: Garry Blake for the first and second appellant,
Bill Bani Tamwata for the third appellant,
Robert Sugden for the Respondent

Hearing date: 20^th April 1999

JUDGMENT

This case concerns a narrow but important point about the law in this Republic relating to electoral petitions.

The hearing began with the potential to be side tracked into a consideration of matters of a procedural nature. However it was eventually agreed that it should be assumed that the Court of Appeal had jurisdiction to hear this appeal and that matters arising from a hearing in the Supreme Court on the 3^rd of December 1998 as well as on the 1^st February 1998 were properly encompassed within the leave which was granted for the hearing of the appeal.

S.63(2) of the Representation of the People Act [CAP 146] provides:-

"There shall be no appeal from a decision of the Supreme Court under this part."

"This part" is Part XVI which deals with election petitions. S. 54 provides that any election petition shall be heard by the Supreme Court. The Court under s.60 may-

(a) declare the election to which the petition relates is void;

(b) declare a candidate other than the person whose election is questioned was duly elected; or

(c) dismiss the petition and declare that the person whose election is questioned was duly elected; and

further may make order as to the payment of costs.

Without having heard argument on the point it appears to us that at least upon a preliminary consideration that this involves the Court undertaking an adjudicative role.

Art. 50 of the Constitution of the Republic of Vanuatu provides:-

"50. Parliament shall provide for appeals from the original jurisdiction of the Supreme Court and may provide for appeals from such appellate jurisdiction as it may have to a Court of Appeal which shall be constituted by two or more judges of the Supreme Court sitting together."

It therefore is at least arguable that in as much as an election petition is an exercise of the original jurisdiction of the Supreme Court, Parliament is mandated to provide for an appeal.

Mr Sugden and his client accepted that this case was not the appropriate time to question the Constitutionality of the exclusionary provision.

The learned Judge in the Supreme Court in granting leave in the instant case took the view that because the appeal was about an interlocutory matter s.63(2) did not apply. We are not attracted to that argument. In our view if there is a prohibition on hearing cases of this sort it must apply not only to the final determination but also to any process in the hearing.

There was an ancillary issue as to whether an attack upon the constitutionality of a particular legislative provision can be dealt with initially in the Court of Appeal which does not have original jurisdiction. It is clear that any Act of Parliament is to be treated as valid and binding unless and until there is a proper constitutional challenge to it determined in proper form in a Court proceeding. No one should be of the view that because they consider a statutory provision is unconstitutional it can be ignored.

Mr Sugden however accepted that the issue on the merits in this case was of sufficient importance for him to concede that the question was properly before the Court on this Appeal. If there is a need for a full argument on the approach to the proper exercise of a constitutional challenge that can arise in other proceedings. For the purposes of this case the jurisdiction was mutually agreed to exist.

One other technicality intruded upon the hearing. The formal order for leave to appeal (having recited background matters and particularly the divergence of judicial opinion in the Supreme Court on the meaning of s.57 of the Representation of the People Act) in the order indicated that leave was given to appeal against the decision of the 1^st February 1999.

Mr Sugden is strictly correct when he says that was a decision about whether the Supreme Court Judge was functus officio. But it is clear beyond any doubt that counsel in the Court on the 1^st of February were concerned with the whole issue of the meaning and effect of s.57. To the extent that it was an issue Mr Sudgen agreed that the leave should be treated as covering all issues up to and including the hearing of 1^st February so that the important point could be determined by this Court.

On 6^th March 1998 a General Election took place in the Republic of Vanuatu. On the 24^th March 1998 the Respondent filed an election petition in the Supreme Court. Having set out background facts relating to his own status he raised issues about the election of representatives in the Constituency of Port-Vila.

In as much as this is important for this hearing it noted:-

"8. The election of the third respondent should be declared invalid, and therefore null and void-

UPON THE GROUNDS:

A. That there has been substantial non-compliance with the relevant laws, rules, orders and regulations in the conduct of the elections.

B.

PARTICULARS

1. The first respondent and second respondent had acted in contravention of the law-

1. in purporting to permit persons who are not registered in one particular polling station to cast their vote; and
2. by failing to disregard the votes that did not tally with the electoral roll list.

1. That there had been substantial bribery, threatening undue influence, and such other misconduct brought about by the third respondent and fourth respondent and their respective servants, agents and political allies during the period immediately before the election and during the elections, the purpose of such misconduct, act or omission being to persuade those persons affected to vote in a certain way, and in particular for the third respondent and fourth respondent.

1. the third respondent and fourth respondent have acted in contravention of the law-

1. in that during days immediately before election, they paid substantial sums of money, the purpose of which was clearly to get such people to vote for the two respondents during the election.
2. The distributed gifts to various people in Port Vila, in particular the supporters of Union of Moderate Parties (UMP) immediately before and during elections.
> l>

AND THE PETITIONER RESERVE THE RIGHT TO INCLUDE FURTHER GROUNDS AND THE PETITIONER SEEKS:

1. A declaration that the election in the Port Vila constituency is invalid and therefore null and void.
2. A declaration that there be a fresh re-election in the Port-Vila constituency.
3. A declaration that the election of the third and fourth respondents is invalid, and therefore null and void.
4. A declaration that the third and fourth respondents be disqualified to contest in the re-election of Port-Vila constituency.
5. A declaration that the first respondent is incompetent.
6. Such further declaration and/or orders as the Court shall deem fit."

It appears that Mr Shem Rarua was not assisted by a lawyer at that stage although he indicated he intended to be represented at the hearing by counsel.

On 3^rd December an application which had been filed by the two present appellants (and two others who were then parties also) to strike out the petition for delay was heard.

On the same day the respondent (now represented by counsel) sought to amend his petition by filing amended grounds. It does not appear that the possibility of this being an issue was raised in advance and no supporting material was presented to the Court.

On 3 December 1998 Saksak J granted leave to the respondents to "amend their grounds appropriately and to file and serve on the remaining parties". It appears that there was no sustained argument on that day about the meaning and effect of s.57 of the Representation of the People Act.

The amended ground were duly filed and served on or after 21 December 1998. On 22 January 1999 the present appellants made an application to strike out some of the amended grounds and that at that stage s.57 was specifically raised as an issue in the case.

There was a hearing on 1st February 1999 when the appellants’ application to strike out was refused. As became apparent in the reasons for decision which were published on 5^th February the Judge principally took the view that he was functus officio in respect of any argument about whether the grounds should be amended on the basis that he had agreed to that in December and could not reconsider of the matter in February.

Leave to appeal and a stay pending appeal were granted on the 5^th February.

We note with concern that it is now more than 13 ½ months since this election petition was filed. It is far too much delayed. We are told that witnesses have on a number of occasions been inconvenienced by the failure of the lawyers to have this case ready in a timely way for determination.

S.57 of the Representation of People At [CAP146] provides:-

"57. (1) Subject to subsection (2) and election petition shall be presented within 21 days of the publication in the gazette of the results of the election to which the petition relates.

1. If a petition alleges a specific payment of money or other reward after an election by or on the account of a person whose election is disputed, the petition may be presented within 21 days of the alleged payment.
2. The time limit provided for in this section shall not be extended."

The short point for determination by this Court is whether outside the 21 day period mandated, s.57(3) precludes any substantial amendment to the grounds.

The amended grounds of the petition need to be considered and were as follows:-

"1. NON COMPLIANCE WITH ELECTION PROCEDURES BY THE FIRST RESPONDENT AND OTHERS:

There was, in the National Election on 6^th March, 1998 in the Constituency of Port Vila, such non compliance with the provisions of the Representation of the People Act [CAP 146] that the result of the Election was affected (s.61(1)(b) of CAP 146).

1. By the Electoral Commission in the conduct of polling:-

1. Lack of Ballot Papers

At least some polling stations there were no or insufficient ballot papers or a failure to give them to voters in relation to some candidates so that some voters were unable to vote for the candidates of their choice.

Polling stations and candidates affected were:-

Vila North Captain Claes (no ballot papers)

Ecole Colardeau Shem Rarua (insufficient ballot papers)

Ecole Colardeau Captain Claes (none or insufficient)

Namburu Sam Mahit (ballot papers for him were white and should have been pink)

Namburu Unknown as to who was affected but in room 2 there were only 2 clerks giving voters their ballot papers until 1.30pm so, before then, voters were not getting all ballot papers.

2. Failure to ensure that only voters who were on the electoral Roll voted:

1. by order of presiding officer Iatika, at Namburu polling station, a considerable number of names were written into the electoral roll to correspond to cards produced by more than 50 would be voters.
2. A number of people voted although the names on the cards they produced were not on the roll and were not added to it - more than 15 at Namburu and 592 throughout the constituency of Port-Vila.
3. A number of people voted before their cards were checked and it was later found that the cards they had produced were not theirs or were false.
4. A number of people having cards that were false or not theirs were allowed to vote even though the electoral official knew this.
5. For some names on the electoral roll, 2 or more votes were recorded.
6. Some people were allowed to vote even though their names were not the same as the names crossed off the roll or the names they gave did not match the card.

B. By the Electoral Commission in the improper issuing of electoral cards and proxies:

1. Cards were issued to persons other than the voter, sometimes many cards in many different names being given to one applicant.
2. In many cases when cards or proxies were issued no precautions were taken to ensure that the person whose name was on the card or proxy wanted the card or proxy, that the person did not already have a card or proxy or even that the person actually existed with the result that some cards issued in the names of fictitious people and some cards and proxies duplicated cards or proxies already in existence.

C. By the Electoral Commission in the improper counting of votes

1. The tally included votes of people who were not on or not validly on the electoral poll.
2. The tally included votes from people who had voted with false cards or who had used cards that were not theirs or invalid proxies.
3. The tally included votes of people who had voted more than 3 times using a card and proxies.

The tally included, in some cases, more than 1 vote per name on the Electoral Roll.

D. By people other than the Electoral Commission

1. Personation:

The occurrence of people voting or trying to vote using cards that were not theirs or proxies that had not been given to them was widespread.

2. Conspiracy to commit Personation:

The fourth and fifth respondents or their supporters each had obtained a number of either false, duplicated or stolen electoral cards and were transporting their supporters from polling booth to polling booth to enable their supporters to vote at each polling booth using a different card at each booth. Their supporters were also handing out false, duplicated or stolen electoral cards to other people asking the recipients to use the cards to vote for one or other of the fourth and fifth respondents.

3. Offences by Electoral Office Officials:

Tom Alick – presiding officer at Agriculture Polling Station

1. In February, 1998 received VT20,000 from Ken Hosea and gave Ken Hosea 270 electoral cards to take away, fill out and return to him for registration.
2. Voted 4 times in the election.
3. Forced Lense Fred to be a clerk at the Polling Station.
4. On a day shortly before the election went into the Electoral Office during lunch hour with some UMP organizers who had a large number of Electoral Cards and assisted them by allowing them to have access to the Electoral Roll against which they checked the Electoral Cards.

Iatika as presiding officer at Anamburu

1. Ordered the names on electoral cards to be written into the roll so that the people bearing the cards could vote.
2. Assisted a man who had already voted and said he had lost his card to obtain another card and vote again.
3. Allowed people with cards that he knew were not theirs, to vote
4. Spoke to intending voters in a special language inside the polling booth.

1. Some electoral officials unknown: Allowed people who had electoral cards, the names on which were not on the Electoral Roll for the station, to vote

1. Willie Roy – An organizer for Willie Jimmy came into the polling booths to try and influence officials and voters.
2. Ambrosio Melitas came into the polling booths to try and influence voters.
3. The fourth respondent gave electrical appliances and other items to his supporters to influence them to vote for him

2. BRIBERY BY FOURTH RESPONDENT

That the fourth respondent committed bribery contrary to section 45(i)(a)(iii) of CAP 146 in that, on the 9^th February 1998 he did, through his agent Eddie Silas deliver to the People of Mataso, at the nakamal of Chief Timataso, two cartons of electrical appliances and other items with intent to induce the people of Mataso to vote for him.

3. CONSPIRACY TO COMMIT PERSONATION BY FOURTH AND FIFTH RESPONDENTS:

That the fourth and fifth respondents committed the offence of conspiracy to commit personation contrary to section 44 CAP 44 146 and section 29 of the Criminal Procedure Code, CAP 135.

PARTICULARS

See under 1D(ii) above.

ORDERS SOUGHT

1. That there be a declaration that the National Election of 6^th March, 1998 for the constituency of Port-Vila is null and void.
2. That there be, within 2 months, a fresh election in the Constituency of Port-Vila at which the seats in Parliament allocated to that constituency are to be recontested.
3. A declaration that the elections of the third and fourth respondents are null and void.
4. Such further or other Orders as the Court deems meet.
5. The respondents pay the petitioners costs of and incidental to this petition."

Mr Blake and Mr Bani argued that the amended petition involved the introduction of new grounds outside the 21 day period mandated and were precluded by the Act. Mr Sugden argued that this was merely a better definition of what had been alleged. He submitted because the general words of the statutory provision had been used in March there was no obstacle to particularizing issues prior to hearing.

We were provided by all counsel with a comprehensive and exhaustive analysis of a number of decisions. Many were cases decided last century in a number of jurisdictions. These were presented to assist us to define how s.57 should be interpreted.

The starting point in any statutory interpretation is clearly the words of the section itself. Upon a plain reading of the words we are satisfied that the Parliament in this jurisdiction has determined that when there is an election petition there is to be enumerated within the 21 day period (from which there can be no extension) a clear statement of the matters complained of.

The learned Judge in his reasons for judgment dated 5^th February 1999 expressed the view that the word ‘shall’ in s.57(3) was not mandatory and could mean ‘may’ according to the circumstances. We do not agree. We are of the view that there is a defined and absolute period. The word is "shall" and makes the position mandatory.

Similar issues were considered by the Acting Chief Justice only a few days before the final determination of this case in Naukaut and Naunum & Others – Election Petition No.31 of 1998. The Acting Chief Justice held:-

"By perusing the language of sections 57(1)(2) (3) and 58(1) of the Act, I am of the view that both contain mandatory provisions. "Shall" is used in both provisions. Therefore, if the Court will allow the Petitioner to do so, it will amount to a de facto amendment of a petition after the time prescribed by the Act which is 21 days by the introduction of two (2) fresh substantive charges against the respondent.

Under the Representation of the People Act [CAP 146] the Supreme Court has no jurisdiction to allow an amendment of a petition after the time prescribed by statute by the introduction of a fresh substantive charge; nor to convert an offence charged under one statutory related provision, although the facts might support the latter offence. (See Cork case 1911), 6 O’M & H. 318 at p. 318 at p.337) as a persuasive authority on that point.

There is no jurisdiction to allow an amendment introducing a fresh charge, whether the charge sought to be added is one only of a fresh nature, or whether it is one of fresh instance but not covered by the allegations in the Petition as standing."

In 1982 the then Chief Justice Cooke in Willie Jimmy - Civil Case 126-92 Vol. 1 VLR 1980-88, p.42 approached the interpretation in exactly the same way at p.43:

"I considered the argument of both counsel and ruled that under the Act only twenty one days from the publication in the gazette of the results of the election is allowed to a petitioner lodge his petition. The petition means whatever the grounds for objecting to the result of an election must be filed within the twenty one days. If additional grounds were lodged within the twenty one day period, they would be accepted by the Court. Section 53(3) categorically states that the limit shall not be extended.

If this subsection had not been included in the section of the Act the Court may well feel inclined to grant some latitude to the petitioner but in view of its inclusion, I hold that Parliament considered twenty one days adequate to file all the grounds of the petition. I ruled therefore that the additional grounds of the petition being out of time cannot be argued by the petitioner."

We respectfully adopt and apply the reasoning of these previous cases in Vanuatu to this situation. Courts will normally follow earlier decisions unless there is good and sufficient reason to depart from their approach. In our view they contain an irresistible interpretation which we also adopt.

In the instant case the learned trial Judge appears to have placed particular reliance upon the provision of Regulation 25 of the Election Petition Rules 1998 which provides:-

"25. Postponement of trial and amendment of petition

A Judge may from time to time, by order made upon the application of a party to the petition, postpone the beginning of the trial to such a day as he may name and may at any time before or during the trial, upon the application of the petitioner, allow the petition to be amended upon such terms and conditions as may be just. Such applications shall be made by motion on notice to the other party to the petition."

The Election Petition Rules are made pursuant to the powers under section 59(1) of the Representation of the People Act. They can never modify or alter the provisions of the Act. We reject the conclusion that they effect a modification of a statutory condition contained in s.57. Section 8 of the Interpretation Act does not allow that approach. The Interpretation Act cannot be used to amend the clear meanings of unambiguous words of a statutory provision.

In what is described as an oral interlocutory judgment of the 3^rd December the learned Judge said:

"Circumstances of this case demands that requirements under the rules be waived. Having heard arguments and submissions for and against those applications I decide that those applications will be dismissed. I find that had it not been for the document containing the amended grounds now before the Court, I would not hesitate to dismiss the Petition today. But the document, although unfiled contains serious allegations against the first, fourth and fifth respondents that for the Court to ignore the document would be highly improper. The Court must accept that on the face of it the document contains serious allegations which calls for a full hearing into the evidence before a decision can be made.

In the circumstances the Court hereby grants leave to the Petitioners to amend their grounds appropriately and to file and serve on the remaining parties."

We can find no basis to support that approach. It was not open to any Judge to adopt the approach that the Court, on the basis of what it considers is justice, can decide that the statutory framework which Parliament has dictated should not apply.

It is interesting to note that a similar approach was argued for in a nearby state in a decision of the Supreme Court of Justice in Papua New Guinea in the case of Biri v. Ninkama and Others [1982] P.N.G.L.R 342. The Court in that case had to consider also the provision in the Organic Law on National Elections which provides under section 217 that real justice be observed by the National Courts who are to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicality or whether the evidence is in accordance with the law of evidence or not.

Nonetheless the Court followed the approach in Papol v. Temo [1981] P.N.G.L.R. 178 and found that an election petition must strictly comply with each and every requirement of the provisions of the because they were in a mandatory form. The petition could not proceed unless the law was complied with.

The Court cannot permit its own individual views of justice to intrude on the duty of any Court to do justice according to law.

Finally it was contended that almost all of what was included in what the Court permitted the petitioner to amend was only to qualify what was included in the first petition

It may well be that a degree of particularizing or better defining specific allegations already made within the 21 day period is not objectionable.

That is not what occurred in this case. There was introduced in the amended grounds of petition matters which had not previously been raised against the appellants and which has the effect of subverting the provisions of s.57(3). The clear reading of the words preclude that possibility.

Eight months after the election a petitioner is prohibited from instituting an election petition in respect of new matters. In our view a petitioner is equally prohibited from amending an existing petition to introduce allegations and assertions which have not previously been made.

Accordingly we are satisfied that on a plain reading of the words of the section it was not open to the Judge to permit the amendment which were introduced in December 1998 as they were in contravention of the mandatory provisions of s.57(3) of the Act.

The appeal is accordingly allowed.

The amended grounds are struck out. The petition should proceed to hearing on the petition as formulated and presented within the 21 day period.

We note that the Judge was of the view that but for the amendment to the proceedings it would have been struck out. That is to be a matter for the trial Judge and is not advanced as an argument in this Court.

The appellants are entitled to the costs on this proceeding in the normal way. If they cannot be agreed they will have to be taxed.

DATED AT PORT-VILA, this 23rd DAY of APRIL 1998

Bruce ROBERTSON J.	John von DOUSSA J.
Daniel FATIAKI J	Vincent LUNABEK J
REGGETum J MBE