Carlot v Sambo [2004] VUSC 23; Civil Case 143 of 2004 (30 September 2004)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

CIVIL CASE No. 143 of 2004

BETWEEN:

ALFRED ROLLAND CARLOT
Petitioner

AND:

RORO SAMBO
First Respondent

AND:

ELECTORAL COMMISSION
Second Respondent

Mr. Nigel Morrison for the Petitioner
Mr. John Malcolm for the first Respondent
Ms Florence Williams for the second Respondent

JUDGMENT

This is an Election Petition. The Petitioner, Alfred Rolland Carlot, is an unsuccessful candidate of the general elections of 6 July 2004 in the constituency of Efate. The Petitioner claims that he had obtained more votes than the First Respondent.

On 15 July 2004, the Second Respondent, Electoral Commission, declared among other matters, that the Fourth successful candidate for the constituency of Efate is Roro Sambo who was declared to have received 756 votes. The Petitioner is declared to receive 744 votes of the 9705 cast in the electorate of that constituency.

On 18 August 2004, upon hearing Mr. Nigel on behalf of the Petitioner, and upon perusing the statements of the Petitioner filed in support of the Petition, the Supreme Court finds that the Petition has a foundation. There is a margin difference of 12 votes between the Petitioner and the First Respondent who is the fourth successful declared candidate.

The margin was less than 1% between the declared results of the Petitioner and the First Respondent, requiring an Examination of the counted and void votes and the counting of votes in accordance with Section 62 of the Representation of the People Act [CAP. 146].

The Examination hearing was conducted by a panel appointed by the Supreme Court in consultation with the parties.

The panel is required to provide to the Supreme Court its report of the examination hearing in pursuance to the Orders of this Court dated 1^st September 2004.

The panel has provided its report of the Examination of the counted and void votes of the Petitioner and the First Respondent of the Efate Rural Constituency.

The report of the panel shows that-

Roro Sambo, the First Respondent, obtained 755 valid votes and 3 void votes.

Alfred Rolland Carlot, the Petitioner, obtained 743 valid votes and 2 void votes.

There was no re-counting of the counted and void votes of the polling station of Blacksands, Efate, because they were missing before they reached the Office of the Electoral Commission.

However, the Electoral Commission, the Second Respondent relies on the Tally Sheet records made by the Presiding Officer at the polling station of Blacksands during the election of 6 July 2004. The Tally Sheet records of the Blacksands polling station show that the First Respondent obtained 56 valid votes and Nil (0) void votes and the Petitioner obtained 5 valid votes and Nil (0) void votes.

Mr. Nigel submits on behalf of the Petitioner that the Examination of the counted and void votes of all polling stations of the Efate Rural Constituency, with the exception of the polling station of Blacksands, shows that the Petitioner has more valid votes than the First Respondent.

The Petitioner by Counsel challenges the reliability of the Tally Sheet records of Blacksands polling station which was relied upon by the Second Respondent during the elections of 6 July 2004.

Mr. Nigel applies orally to file an unsworn statement of the Presiding Officer of the polling station of Blacksands of 6 July 2004. Mr. Nigel informs the Court that the Presiding Officer of the Blacksands polling station of 6 July 2004, Mr. Kalfau Kalsakau, has made an unsworn statement and he will say the following:

• There were lots of people at the polling station of Blacksands on 6 July 2004.
  
• There were lots of noise during the counting of votes to the extent that it is difficult to hear properly the names of the candidates who obtained a vote.
  
• There were more than one tally sheet of Blacksands polling station for 6 July 2004 elections.
  
• The tally sheet relied upon by the Second Respondent, Electoral Commission, is not unreliable.
  

Mr. John Malcolm submits on behalf of the First Respondent as follows:-

From the beginning, all parties know that the counted and void votes of the Blacksands were missing.

There was no complaint made about any impropriety in the Petition (as amended). There is no evidence of the existence of different Tally Sheet records and the First Respondent was not told about that. The First Respondent submits and asks for the Petition to be dismissed.

The Court is informed by Counsel during the submissions that the Tally Sheet records of Blacksands polling station of 6 July 2004, were the ones provided by the Presiding Electoral Officer, Mr. Kalfau Kalsakau, in his Official Report of Blacksands polling station for the elections of 6 July 2004, to the Second Respondent, in accordance with Schedule 5 of the Act [CAP. 146].

During the general elections of 6 July 2004, Blacksands polling station like every polling stations of Efate Constituency and other Constituencies, was presided over by a returning officer in accordance with Section 30 of the Act [CAP.146].

The powers, duties and responsibilities of a returning officer are set out under schedule 5 of the Act [CAP. 146]. The relevant sections of Schedule 5 are: ss. 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19. They provide as follows:

“OPENING OF POLLING STATION

6. The returning officer shall open the polling station over which he presides on polling day and at the time provided for in the notice referred to in section 29(4).
   

RESOLUTION OF DIFFICULTIES AND STATEMENT OF OBJECTIONS AND DECISIONS

7. (1) A returning officer shall endeavour to amicably resolve all difficulties that may arise during the poll giving reasons for his decisions.

(2) A written statement of all authorized representatives’ objections and decisions thereon together with any relevant document initialed by the returning officer and a polling clerk shall be included in the report made by the returning officer under rule 19(2).

REGULATION OF ADMISSION TO POLLING STATION

8. (1) The returning officer shall regulate the number of voters to be admitted to a polling station at the same time and shall exclude all other persons except-

(a) the polling clerks;

(b) officials of the Electoral Office;

(c) registration officers and not assistant registration officers;

(d) candidates and their authorized representatives nominated in accordance with rule 3;

(e) police officers on duty;

(f) companions of disabled voters;

(g) press representatives and other persons authorized by the Principal Electoral Officer.

(2) All persons authorized to be in a polling station shall wear an identification badge or carry an identification card.

KEEPING OF ORDER IN POLLING STATION

9. (1) It shall be the duty of the returning officer to keep order at his polling station.

(2) If a person misconduct himself at a polling station or fails to obey the lawful orders of the returning officer he may by order of the returning officer be removed.

(3) A person removed in accordance with subrule (2) shall not without the permission of the returning officer re-enter the polling station.

(4) The poser conferred by this rule shall not be exercised so as to prevent a voter who is otherwise entitled to vote at a polling station from having the opportunity of voting at that polling station.

VOTING

10.(1) Every voter desiring to vote shall present himself at his allotted polling station. The returning officer or polling clerk shall satisfy himself that-

(a) the voter is registered on the roll at the station;

(b) the voter has not already voted; and

(c) place his signature or initials opposite the name of the voter in the margin of one of the electoral rolls; and

(d) deliver to the voter one ballot paper for each candidate and one envelope.

(2) Immediately on receipt of the ballot papers and envelope a voter shall-

(a) enter a polling booth;

(b) record his vote by placing the ballot paper bearing the name and symbol of his chosen candidate in the envelope;

(c) leave other ballot papers in the booth;

(d) present himself to the presiding officer or polling clerk who without touching it shall verify that the voter tenders one envelope;

(e) place the envelope in the ballot box; and

(f) leave the polling station without undue delay after the completion of the formalities referred to in rule 11.

REPLACEMENT OF SPOILT BALLOT PAPERS

12. A voter who satisfies the returning officer that he has inadvertently spoilt a ballot paper may on surrendering it obtain another.
    

REPORT ON PERSONS SUSPECTED OF PERSONATION

13. If before a voter leaves a polling station a candidate or his authorized representative or a polling clerk informs the returning officer he has reasonably cause to believe that the voter has committed the offence of personation and agrees to substantiate the accusation in a court the returning officer shall report the matter to the Electoral Commission.
    

ASSISTANCE TO DISABLED VOTERS

14. (1) Any person suffering from a physical disability may be granted permission by a returning officer to be accompanied into a polling station by a person of his choice to assist him in voting.

(2) The granting of permission under this rule shall be recorded in the report made by the returning officer under rule 19(2).

MEMBERS OF THE PUBLIC TO BE ADMITTED TO OBSERVE COUNT

15. A returning officer shall allow as many members of the public to observe a count as can do so without hindering counting.
    

COUNTING OF VOTES

16.(1) Immediately a poll is closed the returning officer shall administer the counting of the votes which shall be done by-

(a) opening the ballot box or boxes;

(b) the returning officer removing all envelopes from each box;

(c) the returning officer taking the ballot papers from the envelopes;

(d) the returning officer reading out the name on each ballot paper;

(e) the polling clerks recording the number of votes cast for each candidate on 2 tally sheets provided for that purpose.

(2) If the number of envelopes is found to be more or less than the marginal signatures or initials made in the roll in accordance with rule 11(c) the discrepancy shall be stated in the report provided for in rule 19(2).

RECOUNTS

18. On the close of counting or on a recount a candidate or his authorized representative may request the returning officer to conduct a recount and further recounts but the returning officer may refuse to do so if in his opinion the request is unreasonable.
    

DECLARATION OF VOTES AND REPORT ON VOTING

19. (1) When a returning officer is satisfied that the count or recounts are complete he shall declare counting of votes completed and formally announce the votes cast for each candidate.

(2) Immediately after declaring the counting of votes completed the returning officer shall complete the official report on polling which shall state-

(a) the number of registered voters;

(b) the number of voters who voted;

(c) the number of void ballot papers;

(d) the number of valid votes cast for each candidate;

(e) such other matters as these rules provide shall be included; and

(f) such other matters as the Principal Electoral Officer shall direct may be included.

(3) The report shall be made in duplicate in French, English or Bislama.

(4) It shall be signed by the returning officer and the polling clerks. It shall be countersigned by such of the candidates as may be present at the count.

(5) After it has been signed the report shall be placed in a sealed envelope.

(6) The returning officer shall also seal in separate packets the counted and void ballot papers and endorse on each packet –

(a) a description of its contents;

(b) the date of polling; and

(c) the name and number of the polling station.

(7) The packets referred to in subrule (6) shall immediately they have been sealed and endorsed be signed on the outside by the persons referred to in subrule (4)

(8) The report and the sealed packets referred to in subrule (6) shall be delivered to the registration officer responsible for the constituency in which the poll was taken by the returning officer or by a person instructed by him.

Before the Court makes the substantive declaration, the Court enquires as to whether Mr. Kalfau Kalsakau is present in Court. The Court is informed that Kalsakau Kalfau, a teacher at Emau Island is not present. He is not available as he has already returned to his school at Emau Island.

The reason for so enquiring about the whereabouts of Mr. Kalsakau Kalfau is to inform him of his rights to obtain proper and independant legal advice from an independent lawyer other than the Petitioner’s.

I remind counsel and the parties about the provisions of Section 52 of the Representation of the People Act [CAP 146]. It deals with the offences by Elections Officers.

Section 52 of the Act provides:

OFFENCES BY ELECTION OFFICERS

“52. Any election officer having 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; or

(b) permits any person whom he knows or has reasonable cause to believe not to be a person who is blind or incapacitated from voting by other physical cause to vote in a manner provided for such persons; or

(c) refuses to permit any person whom he knows or has reasonable cause to believe to be a person who is blind or incapacitated from voting by other physical cause to vote in a manner provided for such persons; or

(d) wilfully prevents any person from voting at a polling station at which he knows or has reasonable cause to believe such person is bound to vote; or

(e) wilfully reject or refuses to count any ballot paper which he knows or has reasonable cause to believe is validly cast for any candidate; or

(f) wilfully counts any ballot paper as being cast for any candidate which he knows or has reasonable cause to believe was not validly cast for such candidate; or

(g) without reasonable cause acts or omits to act, in breach of his official duty, commits an offence and shall be liable on conviction to a fine not exceeding Vt60,000 or imprisonment for a term not exceeding 3 years or to both such fine and imprisonment.”[emphasis added]

Upon Considering the submissions and oral application of the Petitioner to have Mr. Kalfau Kalsakau filed a sworn statement to say among other matters, that the Tally Sheet records he made on 6 July 2004, to the registration officer for the second respondent, Electoral Commission, to rely upon, are unreliable, constitute a real danger or risk for him to do so. There is a danger of a self-incrimination and criminal prosecution in accordance with the relevant Sections of CAP. 146.

I consider to further adjourn the application. I assess it is not necessary to do so as counsel for the Petitioner does not press and apply for any adjournment. Further if the Petitioner is serious with his application, he should have the intended deponent of the statement available for cross-examination. The Petitioner does not indicate whether he intended to file statement from other persons other than the presiding officer of the black sands polling station of 6 July 2004. I decide to deal with the substance of the Petition.

This is a Petition seeking for an examination of counted and void votes of the Petitioner and the First Respondent on the allegations that the Petition has obtained a majority of lawful votes.

Although, the counted and void votes of the Petitioner and First Respondent cannot be counted because they are missing, the only evidence before the Court is the Tally Sheet records as part of the Official Report provided by the Presiding Electoral Officer of the polling station of Blacksands, Mr. Kalfau Kalsakau. That report was provided to the Registration officer responsible for Efate constituency who in turn submit them to the Electoral Commission in accordance with sections 20 and 21 of the Representation of the People Act [Cap 146].

The Electoral Commission is entitled to rely on them in a Petition seeking for Examination of counted and void votes and in particular in the circumstances where the votes were missing as in the present case and the margin difference of votes is very small, less than 1 %

The oral application of the Petitioner is refused.

The Court accepts and endorses the results of the Examination as set out in the report of the panel dated 23 September 2004.

The Election Petition of the Petitioner cannot succeed. It is hereby dismissed.

Roro Sambo whose election is questioned was duly elected on 6 July 2004.

The costs are for the First and Second Respondents. The costs are to be taxed failing agreement.

The assessment and determination of the costs are set for conference hearing on Monday 11 October 2004 at 11.00AM o’clock.

Dated at Port-Vila this 30^th day of September 2004

BY THE COURT

Vincent LUNABEK
Chief Justice