Vurobaravu v Moli [1998] VUSC 73; Civil Case 029 of 1998 (14 October 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 29 OF 1998

BETWEEN:

NIKENIKE VUROBARAVU
Plaintiff

AND:

JOSIAS MOLI
First Defendant

AND:

THE ELECTORAL COMMISSION OF VANUATU
Second Defendant

Coram: Acting Chief Justice Vincent Lunabek J

Counsel: Mark Hurley for the Petitioner
Mrs Susan Bothmann Barlow for the 1st Respondent
Mr Bill Bani for the 2nd Respondent.<

Place: Luganville, Sle, Santo, in the Republic of Vanuatu.

Date of Hearing: 12th and 13th October 1998.
Date of Judgment: 14th October 1998.

REASONS FOR JUDGMENT

Before me is an election petition. The Petitioner asks this Court to declare the National General Election held on 6th March 1998 in the Constituency of Malo/Aore void upon the several grounds herein after mentioned.

THE PARTIES

The Petitioner, Nikenike Vurobaravu, was a candidate in the National General Elections held on the 6th March 1998 for the Constituency of Malo/Aore. He is affiliated with the Vanuaaku Pati (V.P.) for the purposes of these Elections to Parliament.

The First Respondent, Josias Moli, is the successful candidate in the National General Elections of 6th March 1998 for the Constituency of Malo/Aore and he is affiliated with Union of Moderate Pati (U.M.P.) for the purposes of these elections to Parliament.

The Second Respondent is the Electoral Commission for the Republic of Vanuatu. The Constituency of Malo/Aore is a newly established Constituency. One Parliamentary seat is allocated to Malo/Aore Constituency pursuant to the Representation of the People Parliamentary Constituency and Seat Order No. 7 of 1998.

Seven (7) candidates including the Petitioner contested the National General Elections of 6th March 1998 for the Constituency of Malo/Aore for the one seat.

On 16th March 1998, the Second Respondent made a declaration to the effect that the First Respondent Josias Moli was duly elected as member of Parliament for the Constituency of Malo/Aore.

The voting in the National General Elections held on 6th March 1998 for the Constituency of Malo/Aore appeared to be as follows:

Candidates Affiliation Votes

JOSIAS Moli UMP 502

TAVUTI George NUP 220

NIKENIKE Vurobaravu VP 378

RIUNA Urinamoli MPP 229

TAMATA Tahe MBY 52

BEN TOM Sua VRP 121

MAKALI Baniuri IND 99

THE PETITION

In his Petition, the Petitioner prays for the following relief:

1. Pursuant to Section 60 (1) (a) of the Representation of the People Act [CAP. 146], the National General Elections to Parliament of the Republic of Vanuatu held on 06th March 1998 for the Constituency of Malo/Aore is hereby declared void.

2. Pursuant to Section 61 of the Representation of the People Act [CAP. 146], it is hereby declared that the National General Election of the First Respondent to the Constituency of Malo/Aore on 6th March 1998 is void due to the breaches by the First Respondent of the provisions of Section 45, 46 and 50 (1) of the Representation of the People Act [CAP. 146].

3. Pursuant to Section 61 (1) of the Representation of the People Act [CAP. 146], it is hereby declared that the National General Election for the Constituency of Malo/Aore on 6th March 1998 is void due to the breaches by the Second Respondent, its servants and or agents of Section 16, Section 34 and schedule 4 Part 7 and Section 37 and Schedule 5 and Section 52 Sub-paragraph (a) for the Representation of the People Act [CAP. 146].

4. Such further order or relief as this Court think just.

5. That the Respondents be ordered to pay the costs of this Election Petition.

THE GROUNDS OF THE PETITION

The Petitioner relied initially on the following seven (7) grounds:

FIRST GROUND - BREACH OF SECTION 34 AND SCHEDULE 4 OF THE ACT.

During the National General Election for the Constituency of Malo/Aore on 6th March 1998, there were examples of persons voting by proxy votes in breach of Section 34 of the Act and Schedule 4 of the Act.

As an example of the breach, two voters who were registered for the purposes of the National General Elections on 6th March 1998 at the Amapelao Polling Station, Malo, by the names of Jimmy Solomon and Fred Sewen were permitted by the returning officer of Amapelao Polling Station to cast proxy votes, in the case of Jimmy Solomon for William Lad and in the case of Fred Sewen for Jonah Mavel and Fred Sewens’s wife, in circumstances where the said voters did not possess the necessary proxy.

SECOND GROUND - BREACH OF PART (VII) OF THE ACT.

Section 12 of the Act provides for the issue of electoral cards in the form and containing the particulars set out in Part 4 of Schedule 1 of the Act.

The greatest majority of voters registered in the Malo/Aore Constituency have no citizen numbers entered in their electoral cards, in breach of the particulars which are required and as set out in Part 4 of Schedule 1 of the Act.

THIRD GROUND - BREACH OF SECTION 16 OF THE ACT.

In breach of Section 16 of the Act the electoral list for the Constituency of Malo/Aore was not made available for inspection by the public during the immediately preceding calendar year during a period of not less than 14 days which period ended on 15 June 1997.

One of the results of this breach of Section 16 of the Act is that persons whose names were removed after the 1995 election were not able to inspect the electoral list and make an application before the end of the inspection period for inclusion of his or her name in the list.

FOURTH GROUND - BREACH OF SECTION 50 (1) OF THE ACT.

In breach of Section 50 (1) of the Act, the Polling clerk No. 2 Mrs Loleen Tamata for Amapelao Polling Station, Malo on 6th March 1998, observed Mr Frank Lele the political observer for the Union of Moderate Party (U.M.P.), for the Constituency of Malo/Aore for lengthy periods throughout the entirety of the said Polling Station opening hours on 6th March 1998 being within 100 meters of the said Polling Station and holding deliberations and/or discussions with voters.

FIFTH GROUND - BREACH OF SECTION 37 OF THE ACT AND SCHEDULE 5 OF THE ACT.

The returning officer at the Amapelao Polling Station Malo on 6th March 1998 was Mr Harry Tevy.

Mr Harry Tevy and 4 political observers at Amapelao Polling Station namely, Mr Frank Lele for UMP, Mr Wilfred for Melanesian Progressive Party (MPP), Japhet for National United Party (NUP) and the political observer for Movement Blong Yumi (MBY) (the political observers) [particulars to be supplied] to cast their votes in breach of section 37 of the Act.

As a demonstrative example of the breach of Section 37 of the Act and rule 10 of schedule 5 of the Act, the said returning officer and the political observers permitted 286 purported votes cast at Amapelao Polling Station when the second Respondents records shows that only 284 eligible voters are registered on the Amapelao Polling Station register.

SIXTH GROUND - BREACH OF SECTION 52(a) OF THE ACT.

In breach of section 52 (a) of the Act the registration officer for Malo/Aore Constituency Mr Molising Rivo entered his own name instead of inserting the registration area name onto the electoral cards of the following 6 voters and consequently the following 6 voters were wrongly prevented from voting, namely:

A. Urata Jacob

B. Nelly Jacob

C. Obed Sumbe

D. Eslin Rongo

E. Vokole Sumbe

F. Janet Sumbe

SEVENTH GROUND - BREACHES OF SECTIONS 45 AND 46 OF THE ACT.

The First Respondent breached Sections 45 and 46 of the Act by directly or indirectly making gifts or procurements to persons in order to induce such persons to procure, or endeavour to procure and/or for the purpose of corruptly influencing such persons to vote for the First Respondent.

PARTICULARS

A. A voter for the constituency of Malo/Aore, Mr. Moliuniuri Tamata observed the Vice President of the Sanma Provincial Council, Mr. Johe Boe Vilvil in support for the First Respondent on 15 February 1998 in the Amapelao area read out a list of persons said to be entitled to receive gifts from the Union of Moderate Party after the election.

B. On 28 March 1998 one of the persons whose name was read out by the said Mr Johe Boe Vilvil, Moli Uriuri Tamata did receive a roll of wire from Mr Johe Boe Vilvil purportedly for going for the First Respondent.

C. In further breach of Sections 45 and 46, Mr Tom Ben Sua did on 13 February 1998 observe the said Mr Johe Boe Vilvil and his subcommittee donating a cooking pot to one Riu Moli.

D. In further breach of Sections 45 and 46, a voter Mr Peter Talivo did on or before 6th March 1998 National General Election observe the First Respondent drawing a cheque in the sum of VT105,000 to a Kava Bar owned and operated by one Mr Albert Henry.

It is to be noted that grounds I, II, III, V and VI were made against the Second Respondent, the Electoral Commission and/or its officers and/or servants and/or agents.

The Fourth ground was made against a Mr Frank Lele, the political observer for the Union of Moderate Party (U.M.P.) for the Constituency of Malo/Aore.

The Seventh ground was levelled against the First Respondent, Josias Moli.

THE DEFENCE

THE FIRST RESPONDENT

The First Respondent files no Affidavit but witnesses were called in his defence.

THE SECOND RESPONDENT

The Second Respondent filed a sworn Affidavit of the Principal Electoral Officer, Mrs Jeanette Bolenga in support of their Defence. The following paragraphs of the said Affidavit denied the Petitioner’s allegations.

At Paragraph 4 of the said Affidavit it reads:

"4. As to the First Ground:

(a) To the best of my belief the name Jimmy Solomon does not appear on the electoral roll for Amapelao Polling Station for 1997.

(b) The name Fred Sewen does not appear on the electoral roll for Amapelao polling station for 1997.

(c) I am aware that a certain Fred Michael did apply for 2 proxy votes and did vote proxy for 2 registered voters. Annexed thereto and marked "A" are the true copies of the 2 proxy applications.

5. As to the Second Ground:-

(a) With regard to citizen numbers, I am not aware that I as a citizen of Vanuatu have a citizenship number and to the best of my knowledge, I believe there is no such system in Vanuatu whereby each citizen is prescribed a citizen number.

(b) As provided in the Affidavit of the Chairman of the Citizenship Commission filed herein.

6. As to the Third Ground:-

(a) The Electoral Officers have no right to delete, add or alter any registered voter’s particulars without the consent of each voter.

7. As to the Fifth Ground:-

(a) To the best of my belief our records show that the number of registered voters at Amapelao Polling Station on Malo is 397 and the turn out of votes was 284.

(b) I am informed by the Electoral Commission that on a recount of the votes by the said Commission from the Amapelao Polling Station, the number of votes cast was 284. Annexed hereto and marked "B" is a true copy of the official individual polling station record showing the Amapelao Station had received 284 votes."

THE GROUNDS WITHDRAWN

On 12 October 1998, at the beginning of the hearing of the Petition, Counsel for the Petitioner formally applies to withdraw grounds 1, 2, 3 and 5 of the Petition. These four (4) grounds were then withdrawn.

THE REMAINING GROUNDS: 4, 6 AND 7

The Petition then proceeds upon three remaining grounds which are respectively: grounds 4, 6 and 7.

It is to be observed that ground 7 of the Petition is particularised in four paragraphs: A, B, C, and D. At the end of the Petitioner’s case on 13th October 1998, the Petitioner does not pursue with Particulars C and D of the Seventh ground. Particulars C and D are both dismissed forthwith for lack of evidence in support thereof.

LOCUS STANDI OF THE PETITIONER

The Petitioner was a candidate for the Constituency of Malo/Aore at the National General Elections held on the 6th March, 1998. Section 55 (b) of the Representation of the People Act [CAP. 146] gives him the right to question the validity of those elections.

ELECTIONS OFFENCES

Part XV of the Representation of the People’s Act [CAP. 146] deals with Election Offences.

The relevant provisions in relation to this case are as follows:-

Section 45 (1) (a) (iii) provides:-

"S.45 (1) A person commits the offence of Bribery -

(a) If he directly or indirectly by himself or by other person -

(iii) makes any such gift or procurement to or for any person in order to induce that person to procure, or endeavour to procure, the election of any candidate or the vote of any voter;

or if upon or in consequence of any such gift or procurement he procures or engages, promises or endeavours to procure the election of any candidate or the vote of any voter;"

By virtue of Section 48, a person who is guilty of bribery is guilty of a corrupt practice.

Section 48 says:-

"(1) The offences of personation, bribery, treating and undue influence are corrupt practices for the purposes of this Act.

(2) A person convicted of a corrupt practice shall be liable on conviction to a fine not exceeding VT100,000 or to imprisonment for a term not exceeding 5 years or to both such fine and imprisonment."

Section 50 (1) says:-

"S. 50 (1) During the hours of polling no person shall within 100 meters of any polling station -

(a) seek to influence any person to vote for any candidate;

(b) seek to ascertain for which candidate any voter intends to vote; or

(c) hold any deliberations or discussions.

(2) ....

(3) Any person who contravenes any of the provisions of this Section commits an offence and shall be liable on conviction to a fine not exceeding VT20,000."

By Section 52 (a):

"S. 52 Any election officer having any duty to perform under this Act, who -

(a) makes in any record, return or other documents which he is required to keep or make under this Act, any entry which he knows or has reasonable cause to believe to be false, or does not believe to be true;

...

commits an offence and shall be liable on conviction to a fine not exceeding VT60,000 or to imprisonment for a term not exceeding 3 years or to both such fine and imprisonment."

Section 60 (1) (a) reads:-

"S. 60 (1) On hearing a petition the Supreme Court may-

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

..."

Section 61 (1) (a) and (b) reads:-

"S. 61 (1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that -

(a) bribery, treating, undue influence or other misconduct or circumstances whether similar to those hereinbefore enumerated or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election;

Section 61 (3) reads:

"(a) Where upon a hearing of an election petition the Supreme Court finds that any agent of a candidate has been guilty of a corrupt practice and the Supreme Court further finds that the candidate has proved to the Supreme Court that -

(i) no corrupt practice was committed by the candidate himself or with his knowledge or consent or approval;

(ii) the candidate took all reasonable means for preventing the commission or corrupt practices at such election;

(iii) in all other respects the election was free from any corrupt practice on the part of the candidate; and

(iv) such corrupt practices did not affect the result of the elections,

then, if the Supreme Court so decided, the election of such candidate shall not by reason of any such practice be void;

(b) Where upon the trial of an election petition the Supreme Court finds that there has been failure to comply with any provision of this Act but the Court further finds, that it is satisfied that the election was conducted in accordance with the principles laid down in this Act and that such failure did not affect the result of the election, the election of the successful candidate shall not by reason of such failure, be void."

THE BURDEN AND STANDARD OF PROOF

The onus is on the Petitioner to prove his case according to Civil Standard of proof, that is, on the balance of probabilities. See Election Petition No. 30 of 1998, Peter Salemalo -v- Paul Ren Tari and the Electoral Commission, Judgment dated 28th August 1998 (Unreported).

THE HEARING OF THE PETITION ON THE REMAINING GROUNDS

I now propose to deal with the three grounds in turn in the following manner. I will firstly deal with ground 6 and I will then deal with grounds 4 and 7.

GROUND SIX - BREACH OF SECTION 52 (a) OF THE ACT.

Under Ground 6, the Petitioner alleges that:-

In breach of Section 52 (a) of the Act the registration officer for Malo/Aore Constituency Mr Molising Rivo entered his own name instead of inserting the registration area name onto the electoral cards of the following 6 voters and consequently the following 6 voters were wrongly prevented from voting, namely:

A. Urata Jacob

B. Nelly Jacob

C. Obed Sumbe

D. Eslin Rongo

E. Vokole Sumbe

F. Janet Sumbe

EVIDENCE UNDER GROUND 6

The Petitioner filed six (6) sworn Affidavits of the Six persons named in paragraphs A to F under Ground 6 in support thereof.

The essence of the six Affidavits is that each of the six deponents were wrongly prevented from voting on 6th March 1998 because an error was spotted on their electoral card. That error was the entering by Mr Molising Riu of his own name instead of inserting the registration area name onto their electoral cards. The six named persons are from Nanuku village, Malo Island.

The Second Respondent by Counsel admitted the sixth Ground in so far as the name of the Registration Officer, Molising Riu, is entered into the electoral card of the six persons named instead of inserting the registration area name.

The Second Respondent further call a witness, David Mara, the polling clerk 2 of the polling station of Nanuku in order to streamline the actual issues.

The essence of Mara’s evidence is that, he is from Nanuku village, Malo. That was the third time that he served as polling clerk in a National General Election. He knows the six (6) named persons. The vote took place in a class room. Voters proceed to vote one by one. Before a voter casts his vote, he checks the electoral card, the name, the individual number, the sheet number with the Electoral Roll. Then he crosses the name on the Electoral Roll, gives photos and envelop to the voter to cast his vote.

He says he makes the final check up on the electoral card of the voter on the Electoral Roll if he did not cross the name, the person cannot vote.

He saw the six named persons. He checked their respective electoral cards. The Electoral Roll was shown to him. The name of Jacob Urata was not crossed out. He said Jacob cannot vote because her sheet number is not correct. Her name and individual numbers are correct but her sheet number is wrong. It is not possible for her to vote. As to the other named persons, Nelly Jacob, Obed Sumbe, Eslin Rongo, Vokole Sumbe and Janet Sumbe, their respective cards have the same sickness, the same problem. Their respective sheet number is not correct. They cannot vote. He did not cross out their names.

After the voting, Clerks 1 and 2 signed the record (See Exh. 2 R 2).

Under cross-examination, he says he knows the Registration Officer, Molising Riu. He confirmed he checked the sheet number and the individual number. They were not correct.

He was questioned about twelve (12) persons mentioned in the report (Exh. 2 R 2) who did not cast their votes.

He said, the six persons named have wrong sheets number. Among the twelve persons mentioned in the report, some of them have no name on the Electoral Roll. Others come to vote with their old cards.

Under Ground 6 of the Petition, it is established that the registration officer, Molising Riu, wrongly inserted his name instead of inserting the registration area name onto the electoral cards of the named six (6) persons.

The sheet number contained in the respective electoral cards of the six (6) named persons were not correct. The electoral cards of the six (6) persons were registered on the month of March, April 1997.

The Registration Officer, Molising Riu, did not sign the respective six (6) electoral cards.

David Mara’s evidence is that he did not cross out the names of the six (6) persons on the Electoral Roll because their sheet numbers are not correct. But he said it is not because Molising Riu has wrongly entered his own name instead of inserting the registration area name on the electoral cards of the six (6) persons.

The finding of the Court is that there are irregularities committed during the registration processes of the six (6) named voters in their electoral cards.

The allegation made by the Petitioner under Ground 6 of the Petition is levelled against the Second Respondent, the Electoral Commission, its officers and/or agents, on the basis of Section 52 (a) of the Act. It is useful to set out the entire provision of Section 52 under the Act.

Section 52 reads:-

"S. 52 Any election officer having any duty to perform under this Act, who -

(a) makes in any record, return or other document which he is required to keep or make under this Act, any entry which he knows or has reasonable cause to believe to be false, or does not believe to be true;

...

commits an offence and shall be liable on conviction to a fine not exceeding VT60,000 or to imprisonment for a term not exceeding 3 years or to both such fine and imprisonment." (emphasis added)

By reading Section 52 of the Act, it is legitimate to ask this question:

Is Section 52 (a) of the Act applied to the irregularities committed by the Registration Officers before the elections or is the provision of that Section applied to offences committed by Election Officers during the elections?

I am of the view that Section 52 (a) cannot be read to apply to irregularities committed by the Registration Officers.

Clearly Section 52 is intended by Parliament to apply to offences committed by Election Officers during the Elections.

A Registration Officer is not an Election Officer (Emphasis added).

This can be understood by reading the whole Section 52 together and not to read Section 52 (a) alone and in isolation from other subsections of that Section 52 of the Act.

Further, I am of the view that the framing of the Representation of the People Act [CAP. 146] reflects that view. The general framing of the Act shows that there are two (2) different stages under the Act:

(1) The registration processes of the voters involving the Registration Officers; and

(2) The elections to Parliament involving the Election Officers.

As it transpires from the Title of the Act itself, the purpose and/or object of the Act is to provide for registration of voters and Elections to Parliament. (Emphasis added).

It is important to note that Parts I to Part IV deal with general aspects of the Act. Part I deals with the Interpretation. Part II deals with the Organisation and administration of the elections and the responsibilities of the Principle Electoral Officer.

Part III and Part IV are about the division of Vanuatu into polling districts and Overseas Polling Stations.

The relevant parts for the Registration purposes start from Part V and VI (Electoral lists and Registration of Overseas voters) including Part VII (Issue of Electoral Cards). Part VIII to Part X deal with changes to and completion of Electoral lists and establishment of Electoral Rolls.

These parts of the Act set out the involvement of the Electoral Officers including the Registration Officers.

Section 14 (1) of the Act sets out the procedure by which a person may petition the Principal Electoral Officer if he/she considers that his/her name has been wrongly omitted from an Electoral list with evidence in support. And under Section 14 (2), if the Principal Electoral Officer after receiving a petition under Subsection (1) considers it reasonable that the petitioner’s name should be included he/she shall register his/her name in the electoral list and issue him/her with an electoral card. Section 14 (4) provides for a petitioner under Subsection (1) to appeal to the Electoral Commission if the Principal Electoral Officer does not register his name in the electoral list.

Section 14 (7) provides that the Electoral Commission may either dismiss an appeal under Subsection (4) or order the registration of the appellant’s name in the electoral list. The decision of the Electoral Commission shall not be questioned in any Court.

Section 14 says:

"S. 14. (1) Any person may petition the Principal Electoral Officer if he considers that his name has been wrongly omitted from an Electoral List and may submit such evidence and declarations to the Principal Electoral Officer as he considers appropriate.

(2) If the Principal Electoral Officer after receiving a petition under subsection (1) considers it reasonable that the petitioner’s name should be included he shall register his name in the electoral list and issue him with an electoral card.

(3) The Principal Electoral Officer shall notify a petitioner without delay if he does not register his name in the electoral list.

(4) A petitioner under subsection (1) may appeal to the Electoral Commission if the Principal Electoral Officer does not register his name in the electoral list.

(5) Such appeal shall be made within 48 hours of notification to the petitioner of the Principal Electoral Officer’s decision by lodging it with a registration officer.

(6) The officer who receives an appeal under subsection (5) shall forward it without delay to the Electoral Commission.

(7) The Electoral Commission may either dismiss an appeal under subsection (4) or order the registration of the appellant’s name in the electoral list. Its decision shall not be questioned in any court."

Section 16 of the Act provides for the making of Electoral List available for inspection and applications for changes thereto.

Section 16 then provides:

"S. 16. (1) The electoral list shall be made available for inspection by the public each calendar year during a period of not less than 14 days which shall end on or before the 15th day of June.

(2) The electoral list shall be made available for inspection by -

(a) each registration officer having a copy available on request; and

(b) copies being lodged at such places or with such other persons both in Vanuatu and outside as the Electoral Commission shall direct or cause to be lodged.

(3) Any person who is eligible for registration in the electoral list but whose name has not been included in the list may make an application before the end of the inspection period for the inclusion of his name in the list.

(4) Before the end of the inspection period any person may make application to the Principal Electoral Officer for -

(a) the inclusion or deletion of any names from the electoral list;

(b) the correction of any matter in an electoral list;

(c) the addition or deletion of any matter in a list; or

(d) the correction of any matter or the addition or removal of any matter in any electoral card."

Sections 14 and 16 are administrative procedural avenues available to the registered voters/intended voters to cure any irregularities committed by the Registration Officers during the registration processes of the intended voters in respect to the names or the correction of any matter in the electoral list or the correction of any matter or the addition or removal of any matter or the addition or removal of any matter in their electoral cards before they can exercise their right to vote in the elections to Parliament.

There is no evidence before the Court on the part of the Petitioner to show that the Second Respondent fail to comply with these provisions. In effect, relevant grounds to that effect were withdrawn by the Court at the request of the Petitioner’s Counsel.

The Petitioner’s Counsel submitted that there is no obligation placed on an intended voter to avail himself/herself as provided under Sections 14 and 16 of the Act.

It should be noted that even if Counsel for the Petitioner is correct when he says that it is not a mandatory requirement for any person to petition the Principal Electoral Officer under Section 14 and/or to inspect the electoral list and apply for changes thereto under Section 16 of the Act, it is my view that administrative wisdom and fairness require that these administrative procedural avenues will be followed for the sake of simplicity.

The procedural administrative steps provided under Section 14 from the first instance to the stage of appeal are there for a purpose. It is the intention of Parliament to provide for simplicity and to avoid confusion between irregularities committed by the Registration Officers during the registration processes of voters and irregularities or offences committed by Election Officers during the elections.

The registration processes of the voters is a purely of administrative nature and such irregularities will be cured/remedied by way of administrative procedural avenues available under Sections 14 and 16 alike.

It is to be noted that under Section 14 (7) of the Act, the decision of the Electoral Commission on appeal cannot be questioned in any court.

It transpires that what the petitioner by counsel is attempted to do is to by-pass that provision by a kind of review.

In my view, it will be a matter of common sense to say that the administrative procedural avenues provided under Section 14 of the Act should be explored in its entirety in order to give any meaning at all to the intention of Parliament thereto.

Section 52 (a) cannot operate here. Ground 6 of the Petition is therefore dismissed.

GROUND FOUR - BREACH OF SECTION 50 (1) OF THE ACT.

The Petitioner alleges that:-

In breach of Section 50 (1) of the Act, the Polling Clerk No. 2 Mrs Loleen Tamata for Amapelao Polling Station, Malo on 6th March 1998, observed Mr Frank Lele the political observer for the Union of Moderate Party (UMP), for the Constituency of Malo/Aore for lengthy periods throughout the entirety of the said Polling Station opening hours on 6th March 1998 being within 100 meters of the said Polling Station and holding deliberation and/or discussions with voters.

EVIDENCE OF THE PETITIONER UNDER GROUND 4.

Mrs Loleen Tari filed two (2) Affidavits respectively on 3rd June 1998 and 9th October 1998 in support of this ground. She also gave evidence in Court. The summary of her oral evidence is as follows.

She gave evidence she was a clerk on the polling day. That is her first time. She was present through out the polling process. She knew Frank Lele who is a UMP political observer during the polling. She saw and heard Frank Lele talking to people. Frank Lele laughs and makes noises. He talked to friends. She did not recognise anybody else. The polling process took place in the village of Frank Lele. She is not from that village. Frank Lele talked with people in his own mother tongue language and made noises by clinking their fingers before and after people cast their votes. She saw Frank Lele wrote on the hand of many people. She recalls Frank Lele wrote 666 in the hands of 10 persons.

She said other political observers were also present at the polling day. She was very busy and she was concerned about Mr Frank Lele’s behaviour. She said she asked the Presiding Officer to do something about it and he did not take notice.

THE FIRST RESPONDENT EVIDENCE UNDER GROUND 4

The First Respondent called Mr Harry Tevy to give evidence. The summary of his evidence is that:

He was the Presiding Officer during the polling day. That is not the first time he served as a Presiding Officer. He knew Mrs Tari had not had served as a polling clerk before. He too was present in the whole polling station for the relevant period. He was familiar with Frank Lele. He knew other political observers were present on that day.

He outlined the lay out in which the polling took place. He sat at a desk at which clerks 1 and 2 sat. He indicated 284 people proceeded to vote. They were very busy. He said on one occasion Mr Frank Lele was laughing and he asked him to stop.

He denied Mrs Tari Loleen made any comment/complaint to him about the behaviour of Mr Frank Lele. He said he (Harry Tevy) is affiliated with UMP. He explained that he asked Mr Frank Lele to mark the finger nails of the voters after they vote. He said before he asked Mr Frank Lele to do the job, he discussed with the two clerks and all three (3) agreed together. He said Mr Frank Lele sat near where the voters were leaving the room. Each and every voters submitted themselves to Frank Lele for the purposes of marking their finger nails. He denies Frank Lele talking in his own language to people.

I have heard the evidence and observed the two witnesses when they gave their evidence. It is not disputed Frank Lele was present on the day of polling in his capacity as political observers for UMP. He was present at all relevant times within 100 meters of that polling station. It is not disputed Frank Lele was laughing.

I find that credit should be given to Mrs Loleen Tari. She has specific recollections. She is more detailed in her evidence. She is an independent witness. Mr Tevy cannot recall. There is reasonable inference to be drawn from the fact that Frank Lele did talk to people in his own language. The polling took place in his village. People of the village knew him as a member of UMP. Mr Harry Tevy, the Presiding Officer on his own evidence, said he is a member of UMP. He is not an independent witness. There is good reason for the Court to reject his version of the story told by him before the Court.

The finding of the Court is that Frank Lele talked to voters in his own language, laughed, slapping their backs, clicking their fingers and wrote 666 in the hands of some voters.

Is that behaviour falling under Section 50 (1) of the Act?

Section 50 says:

"S. 50 (1) During the hours of polling no person shall within 100 meters of any polling station -

(a) ....

(b) ....

(c) hold any deliberations or discussions

..."

During the course of submissions, Counsel for the Respondent referred the Court to English Dictionaries to ascertain the meaning of the terms "Deliberations" which is defined there as "careful considerations, formal discussions as of a committee". The word "discuss" is defined in the same dictionary as to "have a conversation about or to consider by talking over or to treat a subject in a speech or writing". The expression "discussions" is defined as "consideration of a matter in a speech or writing".

It is then submitted that the two (2) concepts "deliberations" and "discussions" together suggest a degree of weight, intention and a degree of order in the behaviour of Frank Lele for it to constitute either a discussion or a deliberation. It is then submitted that Mrs Tari’s evidence does not show that Frank Lele engaged in such activities at all.

By reply, Counsel for the Petitioner referred the Court to the Second Edition of Oxford Dictionaries on the definitions of the expressions "Discuss" or "discussions" which mean:

"1) exercise by argument

2) debate

3) hold conversations about."

Further from the same source, Counsel for the Petitioner referred the Court to the definition of the word "Conversation" as "an informal exchange of ideas by spoken words".

It is then put for the Petitioner that the purpose for referring to the material is that weight has to be attached to the word "discussions" as "holding conversation about". From the actual evidence itself, Mrs Tari’s evidence is that Frank Lele was talking by using language. Mr Tevy has no recollection of that. Mr Frank Lele’s behaviour was so noisy that it disturbed her. As a result she complained to Harry Tevy, the Presiding Officer, on two occasions and she said he did not take notice of that.

In my view, the correct definition to be applied in this case is that of "discuss" which is defined in the two dictionaries as to "have/hold conversation about ... or to consider a matter in a speech or writing".

It is to be understood that the word "discussions" must be given some weight and the word "conversation" means "an informal exchange of ideas by spoken words".

Applied to this case, there is evidence in support.

Frank Lele conversed with voters in his own language which is an informal exchange of ideas by spoken words accompanied by laughing and gestures such as slapping backs, clicking fingers and then writing specific numbers such as 666. The critical point is that Frank Lele did behave in such a way during the election polls and this can be reasonably inferred as an informal exchange of ideas during the hours of polling about the votes and/or elections.

In this case, there is reasonable inference to be drawn from Mr Frank Lele’s behaviour which was inappropriate as a political observer during the hours of polling.

There is reasonable inference that such a behaviour from a political observer amounts in fact to holding discussions with voters as political observer for UMP. As it is not disputed, the First Respondent is a candidate of UMP, it can be inferred that the conduct of Mr Frank Lele, UMP Political observer at the polling was calculated to induce voters to vote for UMP. The evidence is that Frank Lele is from UMP, the voters know him. He conversed with voters in his own language. That conversation is supported by laughing and gestures such as slapping backs, clicking fingers and writing specified numbers such as 666 on the hands of some voters. This amounts to conversing by an informal exchange of ideas during the hours of polling and inside the polling station which can be inferred to have a specific meaning sent to the voters in his (Mr Frank Lele’s) village by codified messages. It is immaterial whether Frank Lele did that to voters after each had voted. The important point to bear in mind is that he did so during the hours of polling and the polling had not yet closed.

Under Ground 4, it must be understood that Frank Lele is solely responsible for his conduct. There is no evidence that the First Respondent was involved with Mr Frank Lele. The First Respondent cannot be liable for Mr Frank Lele’s behaviour.

The election of the First Respondent should not be declared void because of the misbehaviour of his agent.

One of the relevant sections is Section 37 and Schedule 5 of the Act.

Section 37 reads:-

"S. 37 The method of voting, procedures to be observed during polls, and the manner of counting votes and declaring the election of candidates shall be in accordance with provisions of Schedule 5."

Rule 11 Schedule 5 says:-

"After each voter has voted a polling clerk shall -

(a) in those polling districts where it is required, place an indelible mark on the thumb nail of the voter which shall so far as possible be indelible for the period of the poll;"

The evidence of the Presiding Officer, Harry Tevy, shows that in the polling station of Amapelao, on the island of Malo, placing an indelible mark on the thumb nail of the voter is required.

By perusing the language of Section 37, Schedule 5, Rule 11 of the Act, it is clear that:

"... the procedures to be observed during polls ... shall be in accordance with provisions of Schedule 5";

and further, it is indeed clear that in the polling districts where it is required, as it is the case in that particular polling station (of Amapelao), the law is that "after each voter has voted, a polling clerk shall ... place an indelible mark on the thumb nail of the voter ...". (emphasis added).

The provisions of Section 37 and Schedule 5 Rule 11 are mandatory provisions. "Shall" is used in both provisions. Rule 11 of Schedule 5 of the Act, imposes a positive duty on a polling clerk where it is required, as it is the case in Amapelao polling station, to place a mark on the thumb nail of the voter after he/she cast his/her vote.

In this case, the evidence of Harry Tevy is that, during the poll, they (election officers) were very busy so he said he consulted the two polling clerks and all three agreed that Frank Lele, the UMP political observer at the time of the elections in Amapelao polling station, can assist them by placing indelible mark on the thumb nail of the voters after each voter has voted.

This is not what the election laws say (S. 37 Sch. 5 R. 11 of the Act). It is a mandatory requirement by law for a polling clerk to place an indelible mark on the thumb nail after each voter has voted. Mistakes are part of human nature. I sympathise with the Election Officers in that polling station (of Amapelao) who were very busy at the time of the polls.

However, it is extraordinary to appoint a political observer during the polls to carry out the duty of an election officer which is mandatorily imposed upon a polling clerk (an election officer) during the hours of polling. A political observer is an agent and has an interest in the outcome of the elections on behalf of his political party or the candidate of his political party. His presence is to ensure that the elections are conducted fairly by election officers who have no interest in the elections.

Failure by Election Officers to comply with mandatory provisions of the election laws which impose a positive duty on an election officer, for example, a polling clerk to do a certain act, may render the election void even if the failure or irregularities do not affect directly the result of the elections. It is important to understand that the critical point is that such failure can affect the fair conduct of the elections and if that is the case then, the elections can be declared void.

I do not accept the explanation provided by Mr Harry Tevy, the Presiding Officer of the polling on that day. It is the duty of the Election Officers to ensure that the election laws are substantially complied with. This is a substantive failure by the election officers to appoint a political observer to do a job which is mandatorily imposed on a polling clerk who is a neutral person having no interest in the elections. That failure contributes substantially to the misbehaviour of Mr Frank Lele complained of under Ground 4 and as a result constitute a substantive failure which affects the fair conduct of the elections of 6th March 1998 on the Constituency of Malo/Aore. Under this ground, I am satisfied that the election was not conducted in accordance with the principles laid down in the Representation of the People Act [CAP. 146].

Ground 4 of the Petition is proved.

GROUND SEVEN - BREACHES OF SECTIONS 45 AND 46 OF THE ACT

The Petitioner alleges that the First Respondent breached Sections 45 and 46 of the Act by directly or indirectly making gifts or procurements to persons in order to induce such persons to procure, or endeavour to procure and/or for the purpose of corruptly influencing such persons to vote for the First Respondent.

Particulars

A. A voter for the Constituency of Malo/Aore, Mr Moliuniuri Tamata observed the Vice President of the Sanma Provincial Council, Mr Johe Boe Vilvil in support for the First Respondent on 15 February 1998 in the Amapelao area read out a list of the names of persons said to be entitled to receive gifts from the Union of Moderate Party after the election.

B. On 28th March 1998 one of the persons whose name was read out by the said Mr Johe Boe Vilvil, Moliuniuri Tamata did receive a roll of wire from Mr Johe Boe Vilvil purportedly for going for the First Respondent.

EVIDENCE UNDER GROUND 7

Under this ground, the evidence is given by Moliuniuri Tamata for the Petitioner. The defence call two witnesses, Luciano Mahe and Johe Boe Vilvil.

I propose to give a summary of all evidence and highlight the inconsistencies or conflicting evidence which is just on one (1) point of date as we will see later on.

The summary of all the evidence is as follows.

Johe Boe Vilvil is the Vice-President of Sanma Province. It is part of his responsibility to distribute his allocation to his people, community on the Island of Malo. He is affiliated with UMP as he said in his evidence.

Tamata married with Vilvil’s sister. They were related family. Vilvil as Vice-President received requests through area council in his village, community. Sometime at the beginning of last year, 1997, Tamata or his wife made a request to Vilvil for a chicken wire to be purchased for him/her with his allocations. Other people of the village made also their requests to the Vice-President Vilvil.

Certain items/goods including the chicken wire requested by Tamata and/or wife were purchased at Wong Sze Sing Store on a Friday 13th February 1998. (Exh. 1 R 2).

Prior to that date of purchase, there was a meeting held by the West Malo Area Council. The meeting was about Provincial allocations of West Malo Area. (Exh. 1 R 3).

There is no great deal of dispute about that. The only conflicting evidence between witnesses Vilvil and Tamata can be put this way.

Vilvil gave evidence that he read out the list of names of people who requested items from his allocations as Vice-President of Sanma Province on Sunday 15th March 1998. That was after the Election of 6th March 1998 but not before the election. He further said he was present when the chicken wire was purchased on 13th February 1998. He left the item there and hold the meeting shortly after the purchase of the wire.

Tamata says Vilvil hold meeting in the Nakamal on Sunday 15th February 1998 when he read out the names of the people who had made their request to him (Vilvil). He said his name was read out by Vilvil on 15th February 1998. He said he thought it was wrong because it was during the elections period.

There is a relationship between the First Respondent and witness Vilvil. Both were affiliated to the same political party UMP. There is no problem about this. The critical point is the different timing between the request for allocation and the actual items received.

The request for chicken wire was made sometimes early last year 1997. Tamata gave evidence to this effect. This was confirmed by Luciano Mahe and Vilvil in their evidence. Vilvil said he first purchased the item on 13th February and collected thereafter before he announced on 15th March 1998.

There is more probability that the list of names is read out shortly after the purchase of the item on 13th February 1998 as Vilvil himself said in his evidence.

It can be inferred that the announcement of the names of the requested persons is made shortly after payment. Exh. 1 R 2 shows payment was made on 13th February 1998. Shortly after must be 15th February 1998 not March 15th as testified by witness Vilvil. His evidence must be rejected. The basis of the inference is that:

The request was made early last year 1997. It can be presumed that the Council of Sanma Province approved the request. No evidence about the date. But there is a meeting on 2nd February 1998 for West Malo area for distribution of allocations and this meeting cannot be held if there was not prior approval of distribution of allocations by Sanma Provincial Council.

On 13th February 1998, the items were purchased by Vilvil and Sanma Province Treasurer, Luciano Mahe including chicken wire for Tamata and wife.

I find that there is a reasonable inference to be drawn from the fact that the announcement of the names of the persons who had made requests, was made shortly after the payment on 13th February 1998. And shortly after must be 15th February and not 15th March as testified by Vilvil.

This was further supported by evidence of Tamata who said he thought the announcement of allocation is made on wrong time because it was on the election period.

There is no reason why Vilvil could not have waited until after the election to make the allocation announcement. There is reasonable inference that Vilvil had not waited until after the election because the procurement of chicken wire was to endeavour to procure the votes towards the UMP candidate, namely the First Respondent.

Ground 7 of the Petition is made out as alleged under Section 45 (1) (a) (iii).

On the basis of these findings, the Court makes the following declarations and orders:-

DECLARATIONS AND ORDERS

1. Pursuant to Section 60 (1) (a) of the Representation of the People Act [CAP. 146] the National General Elections to Parliament of the Republic of Vanuatu held on 6th March 1998 for the Constituency of Malo/Aore is hereby declared void.

2. Pursuant to Section 61 of the Representation of the People Act [CAP. 146], it is hereby declared that the National General Election of the First Respondent to the Constituency of Malo/Aore on 6th March 1998 is void due to the breaches by the First Respondent and/or his agents of the provisions of Section 45 and Section 50 (1) of the Representation of the People Act [CAP. 146].

3. Pursuant to Section 61 (1) of the Representation of the People Act [CAP. 146] it is hereby declared that the National General Election for the Constituency of Malo/Aore on 6th March 1998 is void due to the breaches by the Second Respondent, its servants and/or agents of Section 37 and Schedule 5 of the Representation of the People Act [CAP. 146].

4. That the Respondents be ordered to pay the costs of this Election Petition.

5. That costs be taxed failing agreement.

Vincent LUNABEK J
Acting Chief Justice.