Serel v Principal Electoral Officer [2008] VUSC 74; Election Petition Case 08 of 2008 (5 November 2008)

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

ELECTION PETITION CASE No.08 OF 2008

IN THE MATTER OF:

THE REPRESENTATION OF THE PEOPLE ACT [CAP.146]

BETWEEN:

JEAN PIERRE SEREL
Petitioner

AND:

THE PRINCIPAL ELECTORAL OFFICER,
Mr Martin Tete
First Respondent

AND:

THE ELECTORAL COMMISSION
Second Respondent

AND:

RORO SAMBO
Third Respondent

Mr Jean Pierre Serel on his own behalf
Mr Godden Avock for the First & Second Respondents
Mr Roro Sambo on his own behalf

JUDGMENT

This is an Election Petition filed on 1st October 2008 by the Petitioner pursuant to Section 62 of the Representation of the People’s Act [CAP.146]. Section 62 of the Act provides:

"Examination of votes cast

When on an election petition the election is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes the Supreme Court may direct an examination of the counted and void votes and of the counting of votes."

The Petitioner alleges that he had a majority of lawful votes than the Third Respondent, Roro Sambo, in the elections of 2 September 2008. The official results of the 2 September elections show that the Third Respondent obtained 803 valid votes and the Petitioner had 748.

On 7 October 2008, the Supreme Court ordered an examination of counted and void votes and of the counting of votes for the constituency of Efate Rural.

On 13 October 2008, the Supreme Court provided steps to guide the examination process. An examination Committee was appointed to proceed with the examination of counted and void votes and of the counting of votes and to provide a report at the end of the examination process.

A report on re-count for Efate Rural Constituency had been filed and received at the Supreme Court on 28 October 2008.

The report shows the declared votes cast for the Third Respondent, Roro Sambo, was 803 and on recount the total valid votes of the Third Respondent remain the same. The total valid votes for the Petitioner is 747. One vote less than the total votes given by the Electoral Commission which was 748.

In such an exercise, the test is that if the number of mis-counted votes exceeds the plurality of votes cast, the election cannot stand.

The Court accepts the findings of the Examination Committee contained in the report referred to above. Applying the test in this case, the Petition fails. The declarations and orders sought by the Petitioner in the Petition are denied. The Second Respondent, Electoral Commission shall issue a declaration published in the Official Gazette within 7 days as from the date of this Judgment to effectuate the alterations of the total number of votes obtained by the Petitioner. There is no order as to costs.

DATED at Port-Vila this 5th day of November 2008

BY THE COURT

Vincent LUNABEK
Chief Justice