Andy v Electoral Commission [2016] VUSC 69; Election Petition 238 of 2016 (11 May 2016)

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

Election Petition Case No. 16/238 SC/ELTP

BETWEEN:	Job Andy Petitioner
AND:	The Electoral Commission First Respondent Fred William Tasso Second Respondent

Date of Hearing Before	11th May 2016 at 11.00am Vincent Lunabek – Chief Justice
In Attendance:	Mr Justin Ngwele for Petitioner

Mr Hardison Tabi for First Respondent

Mr Stephen Joel for Second Respondent

REASONS FOR STRIKING OUT PETITION

An Election Petition was filed in the Supreme Court with a sworn statement of the Petitioner in support of the Petition, setting out details of the evidence the petitioner relies on.

There were no other sworn statements that support the petition.

On 19^th February 2016, the Petitioner through Counsel informed the court that other sworn statements that support the petition were ready and will be filed within the statutory time limit of 21 days (s.57 of the Representation of the People Act [Cap 146].

In the present case, the other statements that support the petition were filed in March and April 2016. They were filed outside the statutory time limit imposed under s.57(1) (3) of the Act [Cap 146].

In my judgment, the petition filed by the Petitioner although it may have a foundation, it is incomplete and is not validly presented by the Petitioner within the mandatory prerequisitesunder section 57 (1) of the Act and the requirements of Rules 2-3(2) (b) and 2.5 (1) of the Election Petition Rules. The Petition as envisaged under section 57(1) of the Act [Cap 146] is the Petition presented (filed) inclusive of the sworn statements that support the petition as provided in the Election Petition Rules.

The Election Petition Rules are made consistently with the provisions of the Representation of the People Act [Cap 146] and in particular ss.57, 58 and 59. The Election Petition rules must be read and applied consistently with the provisions of the Act as those rules provide and require. Election Petitions are serious matters. They challenge the wishes of the majority of electors in an election petition. Those who instigate any challenge must comply with the mandatory pre-requisites under ss.57 (1) (2) and 58 (1) of the Act [Cap 146] and the Election Petition Rules [see Jimmy –v- Rarua [1998] VUCA 4; Leinavao Tasso –v- Ioan Simon Omawa and others, Election Petition No.1 of 2008; Election Petition case No. 16/397 SC/ELTP and others.

During the submissions and discussions between the Petitioner’s counsel and the Court on the provisions of the Act [Cap 146], the Election Petition Rules and their effects, Counsel for the Petitioner applies to withdraw the Petition.

The Court accepts the withdrawal of the Petition of the Petitioner filed 9 February 2016 and strikes it out. The Court awards costs against the Petitioner in favour of the First and Second Respondents.

The Court issued the following orders:

ORDERS

1. The Petition filed on 9 February is withdrawn by Counsel for the Petitioner.
   
2. The withdrawn Petition is struck out.
   
3. The First and Second Respondents are entitled to costs against the Petitioner assessed and agreed as follow:
   

-First Respondent: 15,000 Vatu

-Second Respondent: 50,000 Vatu

Total costs: 65,000 Vatu

4. Counsel for the Petitioner informs the Court that the Petitioner’s caution fees of Vatu 20,000 paid into Court shall be released and used toward the payments of the totalcosts of vatu 65,000 ordered against the Petitioner.
   
5. The Petitioner shall pay such costs of Vatu 65,000 to the First and Second Respondents as detailed in Order 3 above by 25 May 2016.
   

DATED at Port Vila this 11^thday of May, 2016.
BY THE COURT

...........................
Vincent Lunabek
Chief Justice