Kalpokas v Electoral Commission [2004] VUSC 6; Civil Case 126 of 2004 (22 June 2004)

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

CIVIL CASE No. 126 of 2004

BETWEEN:

DONALD KALPOKAS, JOE NATUMAN,
SELA MOLISA, JACKLEEN R. TITECK
First Claimants

AND:

HARRY APIA, FRAZER SINE, & OTHERS
Second Claimants

AND:

ELECTORAL COMMISSION
Defendant

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Bill Bani for the claimants
Mr. Sampson Endehipa, Attorney General for the defendant

Date of hearing: 21 June 2004
Date of judgment: 22 June 2004

JUDGMENT

This is an application by the claimants seeking an Order of the Court that the defendant officially declares or registers the second claimants for the purposes of contesting the July 6 elections as Vanua’aku Parti candidates together with the first claimants.

Mr. Sela Molisa filed a sworn statement in support of the application.

The matter is heard as a matter of urgency yesterday 21 June 2004. This case was heard urgently as the defendant was about to make its final declaration as to each candidate and his or her affiliation in relation to the election. Time set under the Civil Procedure Rules is shortened. Direction is issued for the substantive claim to be filed at a latter stage.

Because of the extreme time pressure, the defendant is allowed to call upon the Principal Electoral Officer to provide oral evidence in the witness box in support of the defence and is cross-examined by the claimants’ counsel.

The main complaint is alleged against the defendant, Electoral Commission. It is alleged that the second claimants have initially lodged their applications for candidature to contest the elections of 6 July 2004 under the sponsorship of Vanua’aku Parti (VP). It is also alleged that the defendant has changed the second claimants’ political affiliation and intended to declare the second claimants under a different political affiliation, namely “VANUA K GROUP”. It is then said, if this is what is done, the defendant acted outside its powers under the Representation of the People Act [CAP.146].

The application is advanced on the following grounds:

1. (a) There has never been an Order of the Court preventing the second claimants from contesting the general elections under the name of Vanua’aku Parti.
   

(b) In the absence of such Order it is incumbent on the defendant to register or declare the candidates according to the rules of nomination of candidature within the candidates party.

2. The 14 candidates have had their names approved and endorsed by the Party Congress held at Selime on 11 June 2004.
   
3. Only the party Congress as the supreme body, has the authority to approved and endorse party candidates for general elections.
   
4. The 14 candidates have already had their posters printed in the name of Vanua’aku parti under the same design or colour as the first claimants and some of the posters have already been dispatched to the outer islands for campaign purposes.
   

On the facts before me, it is not in dispute that the second claimants filed their candidature to contest the elections under Vanua’aku Parti before the time required.

While this was done, the internal disputes between the leaders of Vanua’aku Parti came out and reach the Courts.

On 11 and 19 June 2004, Orders were made by this Court in CC 120 of 2004 for the first claimants in CC 126 of 2004 to contest the elections under the Vanua’aku Parti as members of that party as there is no application nor Order made to prohibit them from doing so.

However, the second claimants in the present case are not party to Civil Case No.120 of 2004. The Orders of 11 and 19 June 2004 do not cover the status of the second claimants (14 candidates) in CC 126 of 2004.

The evidence of Martin Tete, the Principal Electoral Officer show that on 19 June 2004, sometime in the morning, before the Court varied the Orders of 11 June 2004, Donald Kalpokas and Sela Molisa approached him. They gave him a colour and logo under which the first and second claimants will contest the elections of 6 July 2004 in the event that the Court prohibits or restrained them to contest the elections under the name of Vanua’aku Parti (VP). They told him that they will contest the elections under the name of Vanua K Group.

On Saturday 19 June 2004, the first claimants obtained a variation of Orders issued on 11 June 2004 to the effect that Donald Kalpokas, Sela Molisa, Joe Natuman and Jackleen R. Titeck contest the elections under the name of Vanua’aku Parti as members of that political party.

The evidence of Martin Tete shows also that on Sunday 20 June 2004 at about 11.00PM o’clock in the evening, he contacted Mr. Sela Molisa enquiring about the status of the second claimants.

The reason for so enquiring are first that the Electoral Commission held meetings to finalize the list of candidates and their affiliation. Second, the caretaker Prime Minister, Hon. Edward Natapei, as President of Vanua’aku Parti wrote a letter to the Electoral Commission with a list of Vanua’aku Parti candidates. That list contained the names of candidates to contest the elections under Vanua’aku Parti. That list contained the names of the above four (4) first claimants but does not include the names of the second claimants (14 candidates) in this present case. As the Electoral Commission is about to finalize the lists of candidates and their affiliation, it enquires about the status of the second claimants. Mr. Tete gave oral evidence to the effect that on Sunday 20 June 2004 at about 11.00PM Mr. Molisa told him that the first claimants will contest under VP as per the Order of 19 June 2004 and the 14 others (second claimants) will contest under the name Vanua K Group. Mr. Tete confirmed that this is how the Electoral Commission formed up the lists of the candidates with their respective affiliations for the purposes of the election of 6 July 2004. The evidence is that on 19 June 2004, after the Court varied the Orders of 11 June 2004 in CC 120 of 2004 to allow the first claimants in CC 126 of 2004 to contest the elections under the VP, Mr. Molisa confirmed on 20 June 2004 to Mr. Martin Tete that the second claimants will contest the elections under the name Vanua K Group.

That piece of evidence is not challenged. It must be accepted as the basis upon which the defendant formed the list of the second claimants (14 candidates) and intended to declare them under Vanua K Group. The evidence is clearly established that the second claimants (14 candidates) are declared under the name of Vanua K Group at the request of the claimants. The second claimants are not parties to CC 120 of 2004. The defendant has not changed the political affiliation of the second claimants for the purposes of the declaration of the list of candidates for the elections. There is no evidence to support the allegations of the claimants against the defendant that the Electoral Commission has changed the political affiliation of the second claimants.

It is then clear that the allegation against the defendant is not made out.

The judgment must be given in favour of the defendant.

ORDER

1. Orders sought in the application are refused.
   
2. Costs for the defendants to be agreed or taxed.
   
3. The defendant is directed to proceed with the declaration of the list of candidates for the purposes of the election of 6 July 2004 as soon as possible.
   

DATED at Port-Vila this 22^nd day of June 2004

BY THE COURT

Vincent LUNABEK
Chief Justice