Vatambe v Principal Electoral Officer [2002] VUSC 67; SC 108-02 (12 September 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)
Election Petition Case No.108 of 2002

IN THE MATTER OF: THE REPRESENTATION OF
THE PEOPLE ACT [CAP.146]

BETWEEN:

REME VATAMBE

Petitioner
AND:

THE PRINCIPAL ELECTORAL OFFICER

First Respondent
AND:

THE ELECTORAL COMMISSION

Second Respondent
AND:

HONOURABLE DENIS PHILIP

Third Respondent
AND:

HONOURABLE JEAN ALLAIN MAHE

Fourth Respondent

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Counsel: No Appearance for the Petitioner
Mr Daniel Yawha for the First and Second Respondents
Mr Willie Daniel for the Third and Fourth Respondents

Date: 12th September, 2002 at 8.30 a.m.

JUDGMENT

By Notice dated 9^th August, 2002 the Parties hereto were notified that the hearing of this petition was returnable on 12^th September, 2002 at 0830 hours.

When this Court opened and the case called at exactly 8.30 a.m today, counsel for the Petitioner does not appear. The Solicitor on record is Mr Kalkot Mataskelekele. Mr Yawha for the First and Second Respondents appears some 10 minutes or so after the Court had opened.

Mr Daniel referred me to the Orders of the Court of 26^th July 2002 and indicated that the Third and Fourth Respondents had complied with paragraph 1 by filing their Defences on 7^th August, 2002. He submitted that the Petitioner had not complied with paragraph 2 within 21 days by filing his affidavits. It appears from the File that the Petitioner had filed some 13 affidavits on 16^th August, 2002 but that he had failed to serve those affidavits on the Third and Fourth Respondents. Mr Daniel indicated to me that he like Mr Yawha only received copies of the Petitioner’s affidavits yesterday being 11^th September, 2002. Further Mr Daniel submitted that as the Petitioner’s counsel was not available in Court and that he had not informed of his position as regards the hearing, that he had come prepared for the hearing with witnesses and had incurred costs. He then submitted that the Court should strike out the Petition with costs. However if the Court was mindful to allow an adjournment, it should be with costs in favour of his clients.

Mr Yawha for the First and Second Respondents sought the same Order as Mr Daniel, to have the Petition struck off with costs. His reasons were firstly, for want of prosecution and secondly, that the Petitioner had not provided sufficient particulars to show that he had a majority of votes to entitle him to a recount of votes as ordered in paragraph 5 of the Orders of 26^th July 2002 in accordance with section 62 of the Representation of the Peoples Act [CAP.146]. (the Act) Mr Yawha further indicated to the Court that he had not seen the affidavits of the Petitioner until yesterday 11^th September 2002 when he obtained copies from the Registry.

Mr Vatambe, the Petitioner appears personally. I gave him an opportunity to be heard. He told me that he had filed affidavits in August and that he had served a copy on the Honourable Denis Philip, the Third Respondent. He expressed his wish for the Court to proceed with the hearing. Concerning his Counsel, he said he had made contacts yesterday with Mr Mataskelekele who told him he would be in Santo today for the hearing. No affidavits of service were filed by Mr Vatambe or any other person serving those affidavits. Mr Vatambe’s statement concerning service on Mr Philip cannot therefore be accepted as the truth as it was not made under oath.

Our instructions concerning Election Dispute Cases are clear. They must be treated with urgency and given priority. We have had to vacate matters which we had listed two or three months ago for today and tomorrow jut to hear this case. The Registry had not received any correspondence from Mr Mataskelekele explaining why he cannot be present today to present his client’s Petition. The Notices of Hearing of this matter were issued on 9^th August, 2002. That is just over a month ago. If there were any need for adjournments today, necessary arrangement and indications should have been made at least a week ago. Indications from both Mr Yawha and Mr Daniel is that they had some contacts with Mr Mataskelekele only yesterday. That is insufficient in my view. Always as a matter of courtesy, counsels should contact the Registry in good time to inform their position whether or not they would be present in any hearing or if not, why not. In this case, nothing has been received from Mr Mataskelekele by the Registry.

I have been referred to the Further Particulars to the petition of the Petitioner dated 18^th July, 2002 and in particular Allegations 1, 2 and 6. Mr Yawha submitted that no particulars have been provided in respect of these allegations. That being so the Petitioners therefore cannot show to the Court that he has a majority of votes to entitle him to a recount of votes pursuant to section 62 of the Act. I have read section 62 and I accept Mr Yawha’s submissions in that regard.

With respect to Mr Vatambe and his counsel, and I say this with sympathy for Mr Vatambe that to delay the hearing of this Petition by adjourning it to another date would defeat the principles of dealing urgently and speedily with cases of this nature. There is absolutely no reason or excuse why the Petitioner’s counsel cannot be present today. Furthermore, on the information available before me so far, the Petitioner has not shown that he commands the majority to votes to entitle him to a recount of votes under section 62 of the Act.

Accordingly this Petition must be dismissed and I Order so. Further, I Order that the Petitioner pays all the Respondents’ costs of and incidental to this Action to be taxed if not agreed.

DATED at Luganville this 12th day of September, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge