THE RETURNING OFFICER, NADI TOWN COUNCIL ELECTIONS
SIXTH RESPONDENT
AND:
THE SUPERVISOR OF ELECTIONS
SEVENTH RESPONDENT
AND:
THE ATTORNEY-GL OF FIJI
EIGHTH RESPONDENT
S. Matawalu for the Petitioners
D.S. Naidu for the First Five Respondents except in HBC 511/96 for the First Four Respondents
S. Banuve for the Sixth and Eighth Respondents
I. Tuberi and J Apted for the Seventh Respondent
Dates of Hearing: 12th, 21st November, 2nd, 3rd, 4th, 5th, 6th, 9th, 10th December, 1996; 11th June, 1997
Dates of Submissions: 11th, 30th June, 29th July; 19th, 22nd August, 1997
Date of Judgment: 10th October, 1997
IN THE HOURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
p class=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> ACTION NO. HBC 510 OF 1996
IN THE MATTER
BETWEEN:
AMJAD ALI AND FOUR OTHERS
PETITIONERS
AND:
SHREE VENKANA CHETD FOUR OTHERS
FIRST FIVE RESPONDENTS
AND:
THE RETURNING OFFICER NADI TOWN COUNCIL ELECTION
SIXTH RESPONDENT
AND:
THE SUPERVISOR OF ELECTIONS
SEVENTH RESPONDENT
AND:
THORNEY-GENERAL OF FIJI
EIGHTH RESPONDENT
IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL ACTION NO. 511 OF 1996
BETWEEN:
ass=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> PRADHUMAN RANIGA AND FOUR OTHERS
PETITIONERS
AND:
FIRST FIVE RESPONDENTS
AND:
p class=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0"> THE RETURNING OFFICER NADI TOWN COUNCICTIONS
SIXTH RESPONDENT
AND:
THE SUPERVISOR OF ELECTIONS
SEVENTH RESPONDENT
AND:
THE ATTORNEY-GENERAL OF FIJI
EIGHTH RESPONDENT
JUDG/span>
INTRODUCTION:
In September 1996, General Elections were held fo Nadi Town Council as well as all other municipal councils cils in Fiji. Writs for
all the elections were issued by the Electoral Commission on September 11, 1996, and polling was held in all of Fiji's municipalities
on Saturday, September 28, 1996.
The results l municipalities except Nadi were not disputed by the unsuccessful candidates.
Ten candidates stood for election in each of Nadi'ards. Five candidates in each Ward were endorsed by the pole political party known
as the National Federation Party ("the National Federation Party"), while the remaining five were endorsed by another party
called the Nadi Ratepayers and Citizens Association ("the Ratepayers"). At the conclusion of the counting of the votes
after polling had ended, the Returning Officer for Nadi Town, who holds the Public Service position of "District Officer"
Nadi and is a Respondent to each of the petitions ("the Respondent - District Officer, Nadi"), declared the results of
the count for each Ward. His declarations were subsequently notified in the Extraordinary Fiji Republic Gazette of Friday, October
11, 1996 and I take judicial notice of the declarations.
In Namaka Ward he declared Prem Singh, Salesh Mudaliar Kumar, Abdul Gani, Saketa Leone and Kamenieli Nawaqavonovono to be elected
by majorities of 91, 75, 72, 71 and 61 respectively. The winning candidates in this Ward belonged to the National Federation Party.
In Martintrd he declared Shed Shree Venkana Chetty, Mohammed Jamal, Surendra Kumar, Josephine Williams and Bal Ram of the National
Federation Party to be elected by majorities of 111, 104, 98, 97 and 96 respectively.
In Nadi Ward he declaranesh Raniga, Dilip Khatri, Satish Patel, Vilikesa Driu and Shasta Nandan of the National Fnal Federation Party
to be elected by majorities of 107, 97, 39, 33 and 12 respectively.
It will thus be seen that the candidates of the National Federation Party made a sweep of all the Council scil seats in the municipality
of Nadi and conversely, the candidates of the Ratepayers Party failed to win a single seat.
The unsuccessful candidates in all three wards now petition this Court to have the results of the elections in Nadi declared void
and a new election held to fill the vacancies thereby created.
THE HEARING:
The hearing of the evidence, interlocutory matters and concluding oral argumtook ten days. The transcrinscript of evidence and oral
submissions runs to 923 pages.
I was told that this is the first time the Hight has been asked to consider most of the legal issues raiseraised by these Petitions
so that this Judgment sets out the background facts and law at some length. It then discusses the legal issues raised by, and the
law relevant to the three petitions which were issued on the 21st October, 1996, and then examines the factual matters raised by
the evidence adduced by all sides.
THE PETI:
The joint Petitioners in each case comprised unsuccessful cands from the Ratepayers Party. One unsuccessful candidate froe from each
of the Martintar and Nadi Wards, however, did not join in the petitions filed for these wards.
The Returning Officer for Nadi Town (District Officer, Nadi), the Supervisor of Elections and thorney-General (in a nominalminal capacity)
were also made respondents to each petition.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The petitions were heard together for the convce of the Court and the parties as well as because of theirtheir general commonality
between the contents of the 3 petitions. But for my unexpected illness which required me to be out of Fiji between late December
1996 and the middle of April 1997, it was not possible for me to resume the Hearing after the adjournment on the 10th December 1996,
until the 11th June 1997. This has resulted in the delivery of this Judgment much later than I would have wished because of the expedition
normally required in hearing and disposing of electoral petitions. Indeed prior to the adjournment in December all parties were under
the impression that the Court was obliged to give its decision on the petitions within two months after the date on which the petitions
were filed. This was due to Regulation 17 of the Electoral (Election Petitions), Regulations 1992, but it was later discovered that
this regulation had been repealed so that the Court was no longer under the pressure of having to give its decision not later than
the 21st December, 1996. Nevertheless, as a general principle, despite the repeal of this regulation I consider it desirable in normal
circumstances that Judgment on electoral petitions should be given as soon as possible after the Hearing and submissions conclude,
the reason being that it is desirable that the results of Municipal Council elections and, of course, Parliamentary elections should
be known as soon as possible for the purpose of enabling the business of local and parliamentary government to proceed as quickly
as possible.
All three petitions pray for the same relief-
"that this Honourable Court do determine the election ... be declareclared absolutely void and a new election be held to fill
the vacancies thereby created".
All of etitions are also made on identical grounds although, of course, the particulars specified fied in support differ from ward
to ward.
These grounds are:
(a) That the "election" of the first five named Respondents on 28th September, 1996 for the [Martintar/Namaka/Nadi] Ward
in the Nadi Town Council is absolutely void, such elections having been procured by an electoral college whose qualification have
been largely in contravention of the provisions of sections 11 and 12 of the Local Government Act and the Regulations thereunder
and the provisions of the Electoral Decree 1991 and Regulations.
(b) That in spite of your Petitioners' objections to the inclusion in the Electoral Roll Roll of persons not resident in the [Martintar/Namaka/Nadi]
Ward and the double appearances in the said roll of names of certain voters while the Authenticity of Company nominees and those
of estates were not confirmed, the election was allowed to proceed.
(c) That the nominations and elections were conducted under circumstances which lich left no doubt whatsoever that the Returning Officer
and the Town Clerk exhibited bias against your petitioners and had conducted themselves in a manner which overtly confirmed their
deference to the first five named Respondents at the expense of your Petitioners".
In summary, the petirs seek to avoid all of the elections held in Nadi last year, mainly on the basis of allegelleged irregularities
which took place during the period prior to the actual election when voters were being registered and the electoral rolls were being prepared and finalised.
Ground (a) seeks to avoid the elections principally on the basis that the voters whose names appeared on the electoral rolls were "largely" unqualified under sections 11 and 12 of the Local Government Act (Cap.125).
Ground omplains that the elections were allowed to proceed despite the petitioners' objectionstions to the inclusion of non-residents on the rolls, the double entry of certain voters' names and the authenticity of nominations of voters by companies and trustees.
The final ground (c) is that the Returning Officer,District Officer, Nadi as well as the Town Clerk of the Nadi Town Council, who
was assisting him with administrative responsibilities, both exhibited bias against the Petitioners and conversely, deference to the Respondents.
THE ISSUES
Legal Issues
The legal issues raised for the decision of the Court by the grounds and particulars of the petitions, the evidence adduced in support
of the petitions, and the oral argument of the Petitioners maybe summarised as follows -
• what are the High Court of Fiji's powers to declare a local govnt election void and on whan what basis might it do so?
• is the effect of section 11(3) of ocal Government Act that if a voter's name appears more thae than once on a roll, that person
is disqualified from being on the roll at all?
• is a nominaof a voter by r by a company under the Local Government Act.125) void because it is nois not under common seal and not
signed by 2 directors and/or the company secretary?
• what is the meaning of the term "trustees" under section 11(4)(b) of ) of the Act and in particular does it include trustees
of deceased persons' estates?
• are persons who qualify to vote as "l tenants" under section 11(4)(a) of the Act also requ required to be resident in
the municipality?
• is the Registration Officer obliged to give an objector a copy of any written repn reply given to the Registration Officer by a
voter objected to?
• is the Registration Officer obliged to give written notificatf his decision on an objectbjection to the objector within any specified
time?
• did any of the Respondents have to delay an election if there was insufficient time to invo investigate objections fully?
•n electoral roll used for an election contains the names of unqualified persons, is this anis an irregularity which can, in itself
and regardless of whether those persons voted and affected the result, vitiate the election and empower the Court to declare the
election
void?
• if not, must such irregularities have affected the reof the election before the the Court can exercise its power?
• if so, who has the burden ofing first, that the irregularities occurred and second that that the result of the election was or was
not affected?
• can son who is appointed nted both Registration Officer and Returning Officer for a constituency, be petitioned against in his
capacity as Returning Officer for alleged irregularities that occurred while performing his functions as Registration Officer?
• is hearsay evidence admissible?
• if so, how muchative value may be placed upon it?
• whether on the Hearing of a petition any additionaticulars maybe incorporatedrated in the petition?
THE LAW GOVERNING LOCAL GOVERNMENT ELECTIONS
The law governing local government eles is to be found in the Local Government Act (Cap.125) and and each of the disputed elections
was held under the Local Government Act. The principal Act contains only very basic provisions governing local government elections.
Subsections 9(1) to (3) and subsec10(1) make provision for the qualifications and term of elected councillors.
Sections 11 and 12 are the main provisions which app electors, elections and voting power, and ground (a) of eaof each of the Petitions
specifically alleges a contravention of these sections. Accordingly, these (as they existed at the time of the disputed elections)
are set out in full -
Qualifications of electors
"11.-(1) Every person of or over ge of twenty-one years who is a citizen of Fiji and and who is the occupier or owner of land within the municipality shall be entitled to be enrolled as an elector.
(2) In the case of a municty divided into wards, a person registered to be an electorector shall be entitled to be enrolled only in
respect of the ward in which he occupies or owns land.
(3) The name of an elector shall not appear mhan once on the electoral rral roll of any ward.
(4) A person shall be an occufor the purpose of this section if -
(a) he has, during the three months iately preceding the date of closing of the electoral roll roll in the year in which he applies
for registration been in joint or several occupation as a lawful tenant of land within the municipality of land included in the municipality by virtue of an extension of its boundaries; or
(b) he is nominated in writing as ector by a body corporatporate which is, or by trustees who are, in occupation as aforesaid or as owners of land within the municipality:
ass=MsoNormaNormal style="margin-left: 72.0pt; margin-top: 0; margin-bottom: 0"> Provided that the body corporate or trustees shall notnate more than three personersons for enrolment as electors as occupiers in
any ward; or
/p>
(c) he has resided in the municipality or in a place included in the mthe municipality by virtue of an extension of its boundaries for a continuous
period of twelve months at the time of enrolment.
Elections and voting power
12.-(1) Every person whose name appearthe electoral roll of a municipality shall be an elector inor in that municipality for the purposes
of this Act.
(2) No elector shall give -
(a) more than ote for any one candidate; or
(b) more votes in all than the total number uncillors to be elected ford for the electoral area.
(3) An election shall termined by the majority of valid votes cast at the poll.
(4) No persall be subject to incapacity to vote in a local government ment election by reason of his being or acting as the returning
officer thereat." (my emphasis)
The proper construction to be given to these sections is at issue in these proceedings and I will n to it later. I note here,here,
however, that section 11(4)(b) of the Local Government Act, together with various other sections of the Act which are not relevant
here, was amended on 10th March, 1997.
The amendment to section 11(4)(b) was to delete the provisoubsection 4(b). There was much argument as to the meaning oing of the word
trustee it being contended by the petitioners that the word meant "trustees of a body corporate". In support of their contention
the petitioners even obtained an opinion from a well-known firm of Sydney solicitors to this effect. I had serious doubts about this
interpretation, preferring the interpretation for which the respondents argued, namely that the word trustees was meant to refer not to trustees of bodies corporate but to trustees of an estate, my view being that if the draftsman of the subsection
had meant it to have the meaning contended for by the petitioners he should have inserted the adverb "thereof" after the
word "trustees" and he did not do so. However, in my view the matter has now been put beyond doubt by the amendment to
section 11.
In the notes giving bjects and reasons for the Bill to amend the Act which were circulated to members of Parliaarliament in September,
1996, the following note is given: Clause 5 - Amends Section "11" of the Act by deleting the proviso to paragraph (4)(b).
The effect is that a body corporate or a trustee of an estate can nominate only 1 nominee in a ward. Under the existing proviso,
a body corporate or a trustee is entitled to nominate not less than 3 persons.
I was informed by Counsel for the Respondents that the interpren for which they contend had been the interpretation given iven to
subsection 4 ever since 1982, and that this was the interpretation applied during all municipal elections, at least since then.
Local Government (Election) Regulations (Cap.125)
ass=MsoNormal style="margin-top: 0; margin-bottom: 0">
Apart from the gl broad provisions of the Act, the bulk of the law governing the process of local governmenrnment elections is to
be found not in the principal Act, but in the subsidiary legislation which the Electoral Commission is empowered to make under section
13. At present these provisions are found in the Local Government (Elections) Regulations ("the Local Government Regulations").
At the outset, there is one very important thing to note about the Local Government Regulations. This is that they clearly distinguish
in a number of ways between the registration of voters and the compilation of electoral rolls on the one hand, and the actual conduct of an election on the other.
First, they officially vest responsibility for voter registration and in an officer called &led "the Registration Officer" who is to be appointed by the Electoral Commission under regulation 6. Responsibility for conducting the election itself is, on the other hand, vested in another officer called the Returning Officer, who is to be appointed under Rule 1 of the Second Schedule to the Regulations. There is admittedly, nothing to prevent the
Commission from appointing the same person to each office, and, indeed, in the instant case, the District Officer, Nadi was so appointed.
However, the Regulations clearly distinguish between these 2 offices and the responsibilities of each.
It is submitted by the Seventh Respondent that the fact that 2 different officers are provided for reflects an underlying fundamental
distinction between electoral roll preparation and the conduct of elections. This distinction also exists in other common law countries
as well.
It is therefore argued that the Returning Officer cannot, in that capacity, be held accountable on a petition for actions which he took in his capacity as the Registration Officer, except insofar as those actions are found to have adversely affected his conduct of the election, and then only if they
are found to have affected the result.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> In the precase, the distinction does not matter because, I presume for practical purposes in the Nadi Nadi Council elections, the
Returning Officer and the Registration Officer were one and the same person but where in any election two different persons hold
these offices it seems to me that Mr Apted is right, and I accept his submission.
The Registration Process
Because the Petitioners rely prinly on what they allege took place during the registration, enrolment and compilation procesrocess
in Nadi, it is necessary here to consider the rules governing these processes and to refer to certain evidence given by Rajeev Narayan
f/n Guru Charand who was the respondent Returning Officer, District Officer, Nadi on days 8 and 9 of the Hearing.
The Electoral Rolls
Under Regulation 6(2) registration officer must, in accordance with the procedure set out in the First Schedule,dule, prepare and
revise electoral rolls for the municipality ward or wards for which he has been appointed.
Under Rule 9 in the First Schedule, fresh electoral rolls are prepared every third year for the purposes of the trienniaennial general
election of Councils, and in the interim the rolls are to be revised at least once annually. As 1996 was a general election year,
the Registration Officer was required by the rule to compile fresh rolls. Here I take judicial notice of the fact that the then City
councillors had been elected on October 2 1993. Accordingly, under section 9(3) of the Act there was an obligation to hold an election
on or about October 2, 1996.
Under rule 1, theess of preparing a roll is commenced by a notice calling upon qualified persons to apply foly for registration during
a specified period.
As reflected in the oral evidence of various witnesses, the Respondent Returning Officer (District Officer, Nadi), in his capacity
as Registration Officer, issued such a notice on July 8, 1996 and this was published as Gazette Notice 1423 in the Fiji Republic
Gazette of the same day. The notice allowed applications to be made until August 17, 1996. Presumably because of a poor response
from qualified persons, on August 15, 1996, the District Officer issued another notice extending the registration period for a further
one week until August 24, 1996. This notice was published in an Extraordinary Fiji Republic Gazette on August 16, 1996.
Applications
Rule 2 in the First Schedule provides for the form and time during which applications for registration are to be made. The rule requires
that applications must be in a form approved by the Electoral Commission and be witnessed by, and contain a declaration made before,
a person appointed by the Registration Officer for that purpose. These persons are in reality Witnessing Officers but in oral evidence
given during the hearing and in various documents they have been referred to as "Registration Officers". Their role and
function should, however, not to be confused with that of the Registration Officer proper, who was the Respondent (District Officer,
Nadi).
Rule 3 makes it an offence to knowingly make any false statement or declaratn an application for registegistration.
Rule 5 is obviously designed to give effect to the prohibition against the double registratioa voter imposed by section tion 11(3)
of the Act supra. It provides that it is an offence for a person to apply for registration as a voter in any ward in which he or
she is already registered as a voter unless the earlier application has been withdrawn.
Rule 6 a Registration Officer the special discretionary power to make such further enquiries as h as he deems necessary for the purpose
of satisfying himself of an applicant's qualifications.
In my view this is a discretionary power which should only be used sparinglyexample when an applicationation form on its face, suggests
that an applicant might not be qualified and that further enquiries should be made. A former Supervisor of Elections, Mr Peter Howard,
gave evidence on the 4th day of the Hearing that all registration systems generally operate on a trust system as there is insufficient
time and resources to justify investigating each and every application.
As he put it:
"We usually take things at face value. It is only when objections arise that we have to do further enquiries. In most situations
we do not unless it is a clear error then we usually rely on the objections and then do further enquiries".
Registration from other sources
Applications are not the only means of becoming a registered voter. 6A (which was inserted by a by an amendment in 1982) also allows
the Registration Officer to place on the rolls the names of persons "who appear to him to be qualified pursuant to information
received from such sources as the Supervisor of Elections may from time to time approve". PW4, Jon Apted, the then Supervisor
of Elections gave opinion evidence that municipal ratebooks might be adopted under this provision, if response to voter registration had been slow.
It seems to me this is only common and I accept it as good law also.
Rule 4 requires that rolls contain an alphabetical listing of all electors. Under rule 7(1) thistration Officer is requirequired to
compile rolls 'as soon as possible' after the end of a registration period and to give notice that the rolls are available for inspection.
The purpose of this period is to invite objections which I refer to later.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Compilaof Rolls in 1996
0"> The Registration Officer published such a notice when the rolls were opened for objections in the Fiji Republic Gazette on August
30, 1996, only six days after the close of the registration period.
According to Mr Apted in his submission, simnotices were issued on the same day by Registration Officerficers for the other municipalities
(whose registration periods ended a week earlier than Nadi's) and as nothing hinges on this statement I accept it. It would thus
appear that the Respondent, District Officer, Nadi, was working to a national programme for all municipalities. This was because
the terms of all councils in all municipalities were due to expire under section 9(3) of the Act on the same date, namely October
2, 1996.
In short, the Respondent, ict Officer, Nadi had only 6 days in which to prepare his rolls. This is the background to d to the evidence
given by the Petitioners' witnesses, the Respondent District Officer, Nadi and the Acting Supervisor of Elections that the first
version of the rolls, the so called "provisional rolls", were rushed and not fully satisfactory, in so far as the names
and addresses of 50 voters on the Namaka roll had been jumbled through computer error and that the names of some applicants had been
entered twice, and had to be withdrawn and corrected.
In the meantime, a dispute had arisen over the manner in which companies as bodies corporatuld nominate their voters uers under section
11(4)(b) of the Act. The Respondent, Acting Supervisor of Elections had issued a ruling that company nominations forms required the
presence of the company seal. By arrangement with the said Acting Supervisor, the Petitioners' party officials were given access
to inspect all company nomination forms in order to ensure that those voters nominated on forms which did not have a company seal
were excluded from the roll. Members of the NFP party then filed a civil action in the High Court at Lautoka seeking
a similar privilege. This action was withdrawn after the Plaintiffs were allowed equal access to the application forms.
Objections
Under rule 7(2), following the publication of the Registration Officer's notice, a voter mayct to the inclusion of any any other
voter on the roll within 14 days. Evidence has been given in these proceedings that approximately 700 objections were received by
the Respondent (District Officer, Nadi) mostly on the final day.
Apart from a requirement of wg and delivery within the 14 day objection period, no minimum content for objections is pres prescribed
by the Regulations or Rules.
Paragraphs (3) to (6) of rule 7 set out the powers of the Registration Officer and the procedures which he must follow in dealing
with objections.
Under paragraph 3, upon receipt of an objection he has a wide discretion to make 'such inquiries as he considers advisable' and under paragraph 4 may dismiss an objection if he considers that it has no merit or is frivolous. It is to be noted that the Returning
Officer may do this without first notifying the voter objected to of the objection and giving him or her the opportunity to be heard, and may instead rely on
the inquiries he considered advisable.
Under paragraph (5)he dot dnot dismiss the objection i.e. if he believes that the objection may have merit, het, he must then send by personal dey or registered mail addressed to the voter against whom the objection has been lodged a no a notice requiring
him to or her to answer the objection within a specified time. If the person does not answer within the time allowed, the Registration
Officer must deal with the objection and "may either dismiss or sustain" it. If the Registration Officer sustains an objection, paragraph (6) requires him to notify only the voter concerned (i.e. the one against whom the objection is sustained). If the objection is dismissed, he is required to notify
both the objector and the voter concerned. There is no requirement that the Registration Officer must dismiss an objection if a voter does not respond. Nor is there any legal requirement that any answer given by a voter objected to
must be supplied to the objector. The only requirement for any notice to be given to an objector is if an objection is dismissed.
It seems to me from the three petitions, the oral evidence of the petitioned their written submissionssions (para 5 p.41) that they
have not clearly distinguished between the two different kinds of "answers" that are possible under the Rules. Thus in
my view it is incorrect to claim as the petitioners do that "the Local Government (Elections) Regulations require each objection
to be answered by the election officials. In my opinion they do not.
The evidence of Jayanti Morarji (5th day of Hearing, pp. 22 and 54) shows that the petitioners' complaint was that they had not received
copies of answers supplied by the persons to whom they had objected, which the petitioners call "objectees". In my Judgment
the answers required to be given to them by the Registration Officer advising how he had dealt with each objection were received
by the petitioners on the eve of the election and in any event should have been apparent from the contents of the final roll.
Thus in my judgment, the complaint by Mr Morarji that for the whole of the elections 700 objections were lodged and only 261 answers
to these were received, meaning that 439, not 539 as alleged by the Petitioner, objections were not answered cannot be sustained.
I must say, however, on this question that I consider it regrettable that such answers as the Registration Officer was obliged to
give were not received until the eve of the election. It seems to me that objectors should be notified of the result of their objections
much earlier than the eve of an election, and I suggest this is something which the Electoral Commission should look into before
the next elections in 1999.
Still on this question I consider that Mr. Morarji was under a misapprion when he said in evidencidence on the 5th day that all objections
made by him or his Ratepayers' Party could not legally have been dismissed without obtaining an answer in the form of a statutory
declaration from the voter objected to, and that he was entitled to a copy of the answers. There is no such legal requirement on
any voter who has received an objection.
Rule 8 however, requihe Registration Officer to settle all objections within fourteen days after the end of the the objection period
and then publish the names, addresses and occupations of all qualified electors. This list is commonly referred to as the final roll
and it is used for the purposes of the poll. In these cases, as I have said, the Respondent, District Officer, Nadi, was required
to deal with 700 objections between August 30 and September 14, 1996.
In the meantime before the end of the 14 day period, the Electoral Commn had, on September 11, 199, 1996 issued writs of election
for all municipalities including Nadi. Under regulation 5(2), the writ prescribed the nomination date and the date of the poll if
the election was contested. Regulation 5(1) of the Regulations vests the Commission, not any of the Respondents, with the power to
issue writs fixing these dates. These writs were published in an Extraordinary Fiji Republic Gazette No. 53 on September 13, 1996.
The writs required nominations of candidates to be received on September 20, 1996 and the poll to be held on September 28, 1996.
Sn 10(1) of the Act effectifectively requires that candidatet be on the roll before they can be nominated or elected. Aed. Accordingly,
I have no doubt that the Respondent, District Officer, Nas under immense pressure tore to have the rolls finalised and published
for the purposes of nominations just 6 days after the close of objections. This is also the background to the Petitioners' complaints
that they received his answers to their objections (under rule 7(6) on "the eve of the elections". An objective look at
the timetable will show that this was only 6 days after the very short period prescribed for investigating the 700 objections, and
during which time his first priority would have been finalising the roll for the purposes of nomination.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The oral evidence all shows that these rolls, amended after objections had dealt with, generally refe referred to as "final rolls",
were published on September 19, 1996.
It also emerged in the evideiven by the Petitioners' witnesses (e.g. PW14 Pradhuman Raniga, Day 7 p.29 et seq) and in t in the evidence
of the Respdondent, District Officer, Nadi, who was PW21 - Rajeev Narayan (on Day 9 at p.11 et seq) that after publication of the
final rolls, on the eve of the election the District Officer, Nadi discovered that the names of 7 persons still appeared twice. He
therefore took the wise precaution of crossing out the superfluous entry in and pasting special instructions on the copy of the final roll which was to be used by the Presiding Officer at the poll. This was to ensure that only one vote was cast in respect
of that person, and in doing so the District Officer was acting responsibly.
The Petitioners have submitted in their oral evidence and writtenissions that this action was required to be gazetted. In faIn fact,
there is no such requirement in the Local Government Act or the Regulations.
THE LAW GOVERNING ELECTION PETITIONS
General Law
Election petitions are the traditional method by which Parltary and local government elections are to be challenged. Ied. Indeed,
in Fiji Scott J, has held that the parliamentary election or a return can only be questioned by an election petition. (See Josefa Rusaqoli v Attorney-General & Anr, Civil Action HBC 0149/1994). At p.6 of the judgment he stated:
In other words in Fiji must the questioninelections exclusively be by petition, as is the position inon in England and Wales? I am
satisfied that it must. In my opinion the clear intention of the Decree was to provide an exclusive mechanism, to be laid down by
Regulation, through which election matters could be questioned. Were this not the case then the restrictions and requisites of the
Regulations could simply be circumvented.".
He was there referring to the restrictions on time and place for filing petitions which are imposed by the electoral petition regulations
to which I shall refer shortly.
Local Government Election Petitions - The Law
The Local Government Act f makes no provision for election petitions. Accordingly, the starting point for stating thng the Fiji law
applicable to local government election petitions is regulation 10 of the Local Government (Elections) Regulations which provides-
"Unless otherwise specifically provided in these Regulations, the provisions of the the law for the time being in force relating
to offences in connection with the conduct of the elections in the House of Representatives and in connection with election petitions
shall apply mutatis mutandis to elections to a council under the provisions of these Regulations."
There is nor specific provision in the Regulations applying to elections. It was not disputed before more me that this means that
the law relating to election petitions in respect of elections to the House of Representatives is to apply with necessary modifications to petitions in respect of Local Government elections.
In this exercise it is therefore, essential first to state the statutory ommon law governing Parliamrliamentary election petitions
and, from this, deduce whether, and if so how, it should be modified in its application to local government petitions.
Parliamentary Election Petitions - The Constitutional and Statutory Law
Secti(1) of the Constitution contains the broad grant to the High Court of this special jurisdicisdiction to hear parliamentary election
petitions. It provides -
"(1) The High Court shall have jurisdiction to hear and determine any question whether -
(a) any person has been validly elected as a member of the House presentatives;
(b) any member of the House has vacated his seat or is req, under the provisions of s of section 44 of this Constitution, to cease
to perform his functions as member of the House."
It may be noted here that subsection (3) also provides-
"(3) A determination by the High Court in proceedinder this section shall not not be subject to an appeal."
The Constitution makes no further provision in regard to election pons.
Special Jurisdiction
It is well settled that in hearing election petitions, the High Court is not exercising its ordinary original civil jurisdiction.
At common law, jurisdiction to hear Parliamentary petitions was originally vested in the legislature itself and it was only in the
nineteenth century that jurisdiction was transferred to the English Courts.
These special circumstances already been recognised in relation to Parliamentary elections by the High Court of Fiji iiji in The Fijian Association v Adi Litia Samanunu Cakobau & Ors CA 0250/1995. Fatiaki J at p.7 stated-
"This Constitutional tradits succinctly explained by Lord Upjohn in the course of deli delivering the judgment of the Privy Council
in Devan Nair v Yong Kuan Teik (1967) 2 A.C. 31 when he said at p.38:
Constitutionally decisions' estions of contested elections are vested in the assembly fbly for which the contested election has been
held, but in the course of the nineteenth century many countries, including this country and many of Her Majesty's possessions overseas,
adopted the view that, as the deliberations of the assembly itself were apt to be governed rather by political considerations than
the justice of the case, it was right and proper that such questions should be entrusted to the courts.
Almost a centuryier in 1876 and in similar vein, Lord Cairns in delivering ring the judgment of the Privy Council in Thebverge v Laundry (1876) 2 A.C. 102 said of two (2) Acts of the Quebec Parliament dealing with controverted elections at p.106 -
"These two Acts of Parliament ... are Acts peculiar in their character. They are nore not Acts constituting or providing for
the decision of mere ordinary civil rights. They are Acts creating an entirely new, and up to that time unknown, jurisdiction in
a particular Court of the colony, for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in
that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election
petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind
is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever
it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution
of the Legislative Assembly to be distinctly and speedily known."
[See Also: generally Eskine May's 'Parliamentary Practice' (21st edn) at p.80]
In the context of the presentication and paraphrasing the above dicta there is not the sthe slightest doubt in my mind that the 'peculiar' and previously 'unknown jurisdiction' of the High Court in electoral matters arises from and is to be found exclusively in section 46 of the Constitution and nowhere else."
ELECTORAL DECREE, 1991
The Electoral Decree, 1991 which provides the statutory framewor elections to the House of Representatives makes no substaubstantive
provision on election petitions. Section 3(e) of the Decree, however, empowers the Electoral Commission to-
"make regulations for the purpose of carrying out the pions of the Constitution anon and [the] Decree relating to elections and
in particular .... for .... (e) election petitions."
On 12 April 1992, in pursuance of that power, the Electoral Commission made the Electoral (Elections Petitions) Regulations, 1992
[Legal Notice No.39/92] ("the Petition Regulations").
ELECTORAL (ELECTIONS PETITIONS) REGULATIONS, 1992
ass=MsoNormal style="margin-top: 0; margin-bottom: 0"> < Formalirements for Petitions
The Petitions Regulations specify a number of formal requirements for a valid parliamentary petition.
and Place of Filing
Regulation 3 allows a petition to be presented by any voter and requires that it be filed in the Court's registry in Suva within 21
days after the Returning Officer has declared any candidate or candidates to be elected. I consider that no modifications are necessary
to apply these requirements to local government election petitions and I am satisfied that the petitioners did comply with them.
The Supervisor of Elections, properly in my view, also concedes that as the 21st day after thearation fell on Saturday Ocay October
19, 1996, it was proper under section 51(b) of the Interpretation Act (Cap.7) that the Petitioners be allowed to file on the next following Monday October 21, 1996.
Deposit
Regulation 6 also requires that -
"At the time of filing the petition, each petitioner shall deposit with the Registrar of the Court or the Deputy Registrar of the Court the sum of $100 as security for costs".
Regulation 8(1) further provides that -
"Subject to paragraph 7(2) and 7(3) and to parh (2) of this regulation [non [none of which relate to the deposit or otherwise
to regulation 6], no proceedings shall be had on a petition unless the requirements of regulation 6 are complied with".
Likewise I consider that these requirements need no mcation to apply to local government petitions.
It emerged during the hearing of the evidence that the Petitioners had not paid anosit at the time their peti petitions were filed.
It would have been open to counsel for the Respondents to take an objection at the early stages of the proceedings and to submit,
with the support of common law authorities, that the petitions were bad ab initio and that deposits could not be made after the 21 day period for filing had elapsed.
However, they did not do so but Regis and their clerks should be aware of this requirement and and in all future cases enforce regulation
6 when necessary.
Contents oitions
Under regulation 8(2), this Court is vested with power, at any time to relieve the Petitioner from the latter requirement, if satisfied
that the petition sufficiently identifies the matters on which the Petitioner relies and the granting of relief would not unreasonably
prejudice the interests of another party.
In the present case, the Petitioners in their affidavits and in theal evidence have attempted to add numerous particulars not not
stated in their petitions.
On the 6th day of the Hearing, the Petition CA HBC 510/96 attempted to add to his petition the names omes of certain people whom he
alleged did not satisfy the requirements for registration in that they did not reside at the relevant time in the Martintar Ward.
On objection by the Respondents, I ruled that because of regulation 5(b) of the Electoral (Elections Petitions) Regulations, 1992,
this could not be done. At p.28 of the transcript of the 5th December, 1996, I quoted regulation 5(b) and then said:
""With sufficient palarity"; those are the important words, in my opinion,nion, and it follows from that the petition
is, by law, expected to contain all the particulars on which the petitioners propose to rely. I interpret Regulation 5(b) thus, and
as these additional names have not been mentioned in the petition, I rule that no further evidence on them should be led."
On further reflection I con that this does not preclude an application to amend a petition provided it is made within thin a reasonable
time before the hearing. By "reasonable time" I consider that in normal circumstances this will be no later than fourteen
days before the date fixed for the hearing. This would give respondents to any petition sufficient time to investigate the additional
material sought to be included in the petition. The obvious reason for the requirement in section 5 is so that respondents will know
in sufficient time before the Hearing the case they have to meet.
The High Court's Powers to Grant Relief on an Election Petition
Regulation 10 of the Petitions Regulations sets out the powers of the High Court in relation to Parliamentary election petitions. Insofar as relief is concerned, the Court has power-
"(v) to declare that any person who was ret as elected was not duly elly elected;
(vi) to declare any candidate duly elected who was not returned as elected;
(vii) to declare any election to be absolutely void;
(viii) to dismiss or uphold the petition in whole or in part;
(ix) to award costs.
Paragraph 10(v) to (viii) must be read regulation 19 which provides -
"19. Effect shall be given to any decision and order of the Court as ws:
(a) if any person returned is declared not to have been duly elected,person shall cease to be a be a member;
(b) if any person not returned is declto have been duly elected, the person may take his or her sher seat accordingly;
Again, I see no reason to modify regulations 10 and 19 in order for them to apply to local government elections.
The Petitioners in this case are therefore praying for relief under paragraphs 10(vii) and 19(c). The Respondents, on the other hand,
pray that this Court exercises its powers under paragraph 10(viii) and (ix), that it is to say, to dismiss the petitions wholly and
order costs against the Petitioners.
Neither the Petitioners nor any of the Respondents are seeking the Court's exercisets powers under paragraph 1aph 10(1)(vi) i.e. a
declaration that a candidate who was not returned as elected was actually duly elected.
I take paragraph 10(1)(vi) to mean that even where a Petitioner prays only for a declaration that, an election was wholly void the
Court always has a discretion, if it thinks it fair and just on the evidence to exercise its powers under paragraph 10(1)(vi) and
instead declare someone who was not returned, as having been duly elected.
On What Basis May the High Court Grant Reliefan>
As with the comparable provisions in New Zealand and English legislation but unlike the Australian provision quoted in the Australian
case cited by the Petitioners Bourne v Murphy (unreported), the Petitions Regulations do not affirmatively prescribe any grounds either for finding an election or return "undue"
and declaring that a candidate who was returned as elected was not duly elected or to declare any election void.
Regulations 14 and 15 of the Petition Regulations, however, provide imply and in a negative way, thy, that an election may be declared
invalid for failure to comply with the legal requirements and may be declared void for corrupt or illegal practices committed by
or with the knowledge and consent of the person elected.
In my judgmense petitions stand or fall on these two regulations which I now set out in full:
>
Irregularities not tolidate election
14.-(1) No election shall be declared invalid by reason of any failure to comply with any provision of the Regulations if the Court
is satisfied that the failure did not affect the result of the election, and that the election was so conducted as to be in accordance with the requirements of the provisions of the Constitution and the Decree.
(2) For the avoidance of doubt and without limiting the generality of the foregoing no election shall be declared invalid by reason
of -
(a) any failure to c with the times prescribed for doing any act; or>
(b) any omission or irregularity in filling up any appropriate form prescribed by the Decree or by the Regulations; or
(c) any defect or invalidity in the appointment of any election officer or polling or counting agent or any failure by any such person
to sign or make any declaration; or
(d) the non-attendance of any candidate, or of any agent nominated by him at any act or thing required under the Regulations to be
done before him; or
(e) any absence of, or mistake or omission or breach of duty by, any election officer, whether before, during, or after the polling,
Voiding election for corrupt or illegal practices
15.-(1) If the Court finds that a person returned as elected or some othe other person, with the knowledge and consent of the person
returned as elected, has committed or has attempted to commit any bribery or undue influence, the election of the person returned
as elected shall be declared void.
(2) The Court may not declare that any person returned as elected was not duly elected, or declare any election to be void:
(a) on the ground of any corrupt practice orgal practice committed by a by any person other than the person returned as elected and
without the knowledge and consent of the person; or
(b) on the ground of any corrupt practice or illegal practice other than bribery or undue influence,
unless the Court is satisfied that the result of the election was y to be affected, and that that it is just that the person should
be declared not to be duly elected or that the election should be declared void." (my emphasis)
In construing the comparabw Zealand provision to regulation 14, the Full Court of the (then) New Zealand Supreme Cour Court in Re Hunua Election Petition [1979] 1 NZLR 25 stated at p.260-
"It is to be noted that the section is expressed in the negativeprovides that the Court shat shall not set aside an election
by declaring it invalid if the Court is satisfied of the matters referred to in the latter part of the section. By implication, should
the Court not be so satisfied then it would appear that the Act contemplates that the Court may set aside an election as invalid
on either of the four grounds (a) to (d) set out in that section. Where does this authority come from? It appears to us that it comes
from the common law power vested in a Court as discussed in Woodward v Sarsons and that s.167 merely directs that that power shall
not be exercised in the cases stated if the Court is satisfied that the election was so conducted as to be substantially in compliance
with the law as to elections and the failure, omission, irregularity, want, defect, absence, mistake or breach did not affect the
result of the election."
The similaritween regulation 14 and section 167 of the New Zealand Electoral Act will immediately be seee seen by quoting that section which provides:
"No election shall be declared invalid by reason of-
(a) Any failure to comply with the times prescribed for doing any act; or
>
(c) Any want or defect in the appointment of any official or scrutineer; or
(d) Any absence of, or mistake or omission or breach of duty by, any official, whether before, during, or after the polling,
if the Court is satisfied that the electas so conducted as to be sube substantially in compliance with the law as to elections, and
that the failure, omission, irregularity, want, defect, absence, mistake, or breach did not affect the result of the election".
In the instant case, as conceded eir written submissions, the Petitioners do not allege corrupt or illegal practices (as defs defined
in the Petitions Regulations) to have occurred nor do they attack the candidacy qualification of those elected. Instead they allege
various irregularities in the exercise by electoral officers in the performance of their functions.
What "Necessary Modifications" must be ma Regulation 14?
It will be noted from the emphasised portion of the above-quoted regulation that the provision saves Parliamentary elections in which
there was some irregularity if "the election was conducted so as to be in accordance with the Constitution and the [Electoral]
Decree" (as well as the result was not affected).
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> As the Constitution and the Decree do not pres the method of conducting local government elections, this this provision must be construed
with necessary modifications in its application to local government elections.
On that footing, in my judgment in cases such as the instant, if the Court is satisfied thapite various irregularitiesities the result
was fair then that is the end of the matter. It must be appreciated that not every breach of a provision of the Local Government
Act should result in an election being invalidated. As was stated in Morgan v Simpson [1974], 3 All ER 722 at p.729 by Stephenson L J of the comparable English provision at p.327 in the Representation of the People Act 1949:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> "The negative form of the section emphasises that an election is a serious and expensive matter and is not lightly to be set
aside."
And then His Lordship continued a little further quoting from s 37 of1949 Act, at-
h '... it is negatively stated to limit occasions when an election must be declared invalid. In other words it is an enabling section
setting out the circumstances in which, despite irregularity, a new election need not be held.'
In many of the cases there are references to Woodward v Sarsons [1875] UKLawRpCP 68; 1875 LR 10 CP 733 where Lord Coleridge CJ stated the common law rules for elections as follows at p.743:
"... the true statement is that an election is to be ded void by the common law alaw applicable to parliamentary elections, if
it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws."
Interestingly it should be noted that in Woodward the Court was concerned with how the principles applying to Parliamentary elections
should apply to Local Government elections. Thus when regulation 14 of the Electoral Petitions Regulations refers to the Constitution,
where local government elections are concerned, I consider the term "substantial compliance" or its equivalent should be
taken to mean substantial compliance with the provisions of the Local Government Act or to section 12(3) of that Act which states
that an election shall be determined by the majority of valid votes cast at the poll.
In Morgan v Simpson at p.ord Denning M.R. thought the law governing disputed elections could be stated in three prop propositions:
(1) If lection was conducted so badly that it was not substantially in accordance with the law as w as to elections, the election
was vitiated, irrespective of whether or not the result was affected (Hackney, 2 O'M & H 77),
(2) If it was so conducted that it was substantially in accordance with election law, itw, it was not vitiated by a breach of the
rules or a mistake at the polls - provided it did not affect the result (Islington, (1901) 17 TLR 210.
(3) Even though the election was conducted substantially in accordance with election law, nevertheless if there was a breach of the
rules or a mistake at the polls, and it did affect the result, the election was vitiated (Gunn v Sharpe [1974] QB 808).
In their submissions the petitioners cited the remarks of Isaacs J in Bridge v Bowen [1916] HCA 38; [1916] 21 CLR 582 at pp.623-4, which was a case of an election under the Sydney Corporation Act of N.S.W. Section 56(1) of the Act provided that -
"(1) If it appears upon affidavit that any person declared to be elected . . . an alderman has been unduly elected the Supreme
Court, or any Judge thereof, may grant an order calling upon such person to show cause to the Court why he should not be ousted of
the said office."
Isaacs J said at pp.623-4, "I condense the result into the following relevant prtions:
(1) The election of an officer - in other words, his selection by the constituency - may be attacked only for a defect which affects
him.
(2) If the defect strikes at the entire election, eitheause there was no real elec election at all or because some official irregularity
has occurred, he is affected because his title is claimed through it, and he must meet the defect if he can.
(3) If there has been no realtion, his selection so-called is necessarily void.
(4) If there has been any official ularity in the conduct of the election, where the law requirequires absolute and strict adherence
or where the irregularity is so great as to depart substantially from a directory enactment, his selection so-called is void unless
he can show the result could not have been affected by it.
(5) Where the defect complained of does not strike at the eon as an entirety, but is c is confined to some breach of law in individual
instances, then he is not necessarily affected, and is not affected at all unless he or his majority is shown to be connected with
the defect.
(6) If the law does novide any means of so affecting him he is not affected, and, and, as his selection cannot be regarded as unduly
made, it must rest where it is."
The Petitioners submitted that only the fourth proposition of Isaacs J, applies to this case. I agree because once again we have a
court, in this instance the High Court of Australia, stating that notwithstanding any official irregularity in the conduct of an
election the results will not be declared void if the Respondent or the person elected can show that the results could not have been
affected by the irregularity.
What is meant by "official irregularity"? This term was considered > Beazley JA, in n Bourne v. Murphy unreported Judgment of the New South Wales Court of Appeal, November 1996, where at p.16 of his Judgment he said:
Meaning of "irregularity"
The Macquarie Dictionary defines "irregular" to mean "not conforming to rule, or accepted principle, method, course, etc." "Irregularity" has a corresponding meaning. The Oxford English Dictionary defines "irregularity" to mean "want of conformity to rules, deviation from or violation of a rule, law or principle". The meaning of the word "irregularity" was considered by the High Court in R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. Gibbs CJ stated at 368:
"The notion of an irregularn relation to an election, involves the idea of some departeparture from some rule, established practice
or generally accepted principle governing the conduct of the election."
Basing themselves on this proposition the petitioners then made certain submns on the burden of proof aoof and argued that this was
on the respondents to show that their election should be upheld. I do not agree. In my judgment the onus shifts to a successful candidate
only if the petitioner proves either that there has been some official irregularity in the conduct of the election where the law
requires absolute and strict adherence or where there has been a substantial departure from a directory enactment. If this Court
were to apply Bridge v Bowen and some of the other cases mentioned, for example of Bourne v. Murphy and others, then the petitioners must first prove the breach in the conduct of the election of a mandatory provision or a substantial
departure from a directory provision; in other words to first offer evidence of such (see Scarcella v Morgan [1962] VicRp 30; (1962) VR 201 at p.203); and for reasons which I shall give shortly, I am of the opinion they have not done so.
However, whilst I accept with respect the six propositions stated by Isaacs J, as I have said er the success or failure ofre of these
petitions depends on whether I am satisfied that notwithstanding irregularities in the very broadest sense of the term the result
was not affected thereby. I am satisfied that it was not.
Here it is useful to note the Judgmf Griffith, CJ in Bridge v Bowen at p.590 of 21 CLR who quoted with approval oval the statement of Bramwell B in the North Durham case 2 O'M & H 105:
"But where it is of such a general character that tsult may have been affectedected, in my judgment, it is no part of the duty
of a Judge to enter into a kind of scrutiny to see whether possibly, or probably even, or as a matter of conclusion upon the evidence,
if that intimidation had not existed, the result would have been different. What the Judge has to do in that case is to say that
the burden of proof is cast upon the constituency whose conduct is incriminated, and unless it can be shown that the gross amount
of intimidation could not possibly have affected the result of the election it ought to be declared void."
At p.592, Griffith, CJ also referred to Woodward sons, part of the judgment of which I have already quot quoted, and also quoted the concluding passage of Coleridge, CJ who said:
"But, if the tribunal should only be satisfied that certain mishaps had occurred, but should not be satisfied either that a majority
had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they
preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common
law of Parliament."
Immediately before Isaacs, J, listed his 6 ret propositions, he said at p.623:
"If, on the other hand, the onus is not impossible, then the persoeging the defect must on alon all accepted notions of law and
fair play be expected to prove it. The second objection to the argument of onus resting on the party attacked is this. If the law
places the onus on him now, it always did. But when the cases on personation are referred to, it is seen that the reverse is the
case. And that is the constant rule of law which does not alter merely because evidence is lacking."
I make two comments on these quotations:
First, on the statement by Bramwell B, on thean> North Durham case. The evidence satisfies me here only that certain mishaps occurred in these elections. I am not satisfied either that a majority
had been or that there was reasonable ground to believe that a majority might have been prevented from electing the candidate they
preferred. I therefore hold that the extent of such mishaps does not entitle this Court to declare the election void.
Secondly, on the remarks of Isaacs J, the evidence satisfies me here that the onus resting on the petitioners was not impossible so that, paraphrasing the words of Isaacs J, the petitioners must on all accepted norms of law and fair play be expected to prove it. For reasons which I shall give shortly,
I find that the petitioners have not proved their case to my satisfaction.
I turn now to some of the evidence given at the hearing beginning with Action 509/96, the Namaka Ward.
Ground A alle
"That the 'election' of the first five named Respondents on 28th September, 1996 for the Namaka Ward in the Nadi Town Council
is absolutely void such elections having been procured by an electoral college whose qualification have been largely in contravention of the provisions of sections 11 and 12 of the Local Government Act and the Regulations thereunder and the provisions
of the Electoral Decree 1991 and Regulations."
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> It appeared from the particulars given later in the Petition and from the affidavit and oral evidence of one of the Petitioners PW4
Mr Jayanti Morarji that the alleged lack of qualifications arose for the following reasons -
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> (a) names of voters allegedly appeared twice;
(b) non-residents of the municipality were registered as voters;
(c) the manner of nomination by certain companies of their electors was allegedly invalid because they were contrary to the provisions
of the Local Government Act and the Companies Act;
(d) various voters were allegedly invalidly nominated by trustees or others acting on behalf of the estates of deceased persons contrary
to the Trustees Act and the Local Government Act.
In this Ward the lowest polled successful candidate had a majority of 61 over the highest polled unsuccessful candidate. Particulars
were given of 12 persons whose names, it was alleged appeared twice on the roll for this Ward.
To make ghis allegation the petitioners were required to prove by direct evidence-
(1) That these were in fact doublestrations (i.e. each entry was for the same person);span>
(2) That if the entries were for tme person one or more voted more than once so that these vose votes affected or may have affected
the result.
It was argued by the peters that the mere fact that a person's name appeared more than once on an electoral roll dill disqualified
the person absolutely from being on the roll. They based their argument on section 11(3) of the Local Government Act which as I have
said earlier states:
'The name of an elector shall not appear more than once on the electoral roll of any ward."
Again I do not accept this argument. The evidence of Mr Peter Howard r Jon Apted was to the effe effect that a voter's name can appear
on a roll more than once either because of clerical error, or because of an honest mistake by a voter or because of a deliberate
dishonest intention to vote more than once. In the latter case, rule 5 of the First Schedule of the Local Government Act makes such
conduct an offence. The onus is on the petitioners to satisfy the Court that in each case there was more than one entry for the same
person and that the person voted more than once and that this affected the result.
The evidence relevant to this ground was given by Jayanti Morarji and Abdul Gani. It is clear fis evidence that Mr Morarji was relying on hearsay evidence from other sources in that he c he claimed that the entries
related to the same person through advice from such other persons.
I reject this evidence because it is hearsay and because I am satisfied than the petitioners saw two etwo entries on the roll of persons
with similar names they assumed that this was a mistake and that there was only one such person. They gave no evidence of any search
for any other person.
The proper course for the petitioners would heen to call the persons whose names appeared twice to give give evidence but they did
not do so. At one stage when this evidence was being given, Counsel for the 6th and 8th respondents warned that the respondents expected
the petitioners to call such evidence if they wished to be believed by the Court. In my view, they should also have produced copies
of the application for registration forms to compare signatures to which they had been given access during the interlocutory stages
of these proceedings. Again they failed to do so.
An example of the failure of the petitioners to substantiate this allegation was the case of Permal Pillay who, Jayanti Morarji said
in his evidence-in-chief on 4th December 1996, had been identified to him by one Suresh Pratap as a person whose name appeared twice.
However, when Abdul Gani gave evidence on the 8th day in cross-examination he said that there are two Permal Pillays and that he
knew them both.
The evidence of the petitioners on double registration satisfies me that in most cases s based on assumption and Iand I accept the
evidence of Rajeev Narayan, Nadi District Officer, on this question. Indeed I should say here that I found Mr Narayan a very convincing
witness and I accept the evidence he gave on double registrations without any hesitation.
Non-Residents of Municipality Allegedly Registered as Voters
In paragraph (b) of the Particulars of the Petition, the Poners particularise 11 voters whose names appeared on the rthe roll with
the qualification "tenant" and challenge their inclusion on the basis that they are not "residents".
On the 6th day of the hearing, I allowed the Petitioners to add six to the particulars of the the voters who were alleged to have
been disqualified because they resided out of Namaka subject to them paying the costs of the day.
It is clear to me from the Petitions and the evidence given on behalf of the petitioners that they misunderstood section 11(4) of
the Local Government Act in that they appear to believe that a tenant must also be a resident. This is simply not so. Paragraphs
(a) and (c) of subsection 4 provide that lawful tenancy for three months or residence for twelve months are alternative qualifications.
To succeed on this ground, the petitioners were obliged to lead probative evidence that-n>
• these voters were not tenants or residents or owners (depending on their claimclaimed qualification) at all in the ward;
• that if not so qualified they voted; and
• their votes affected the result.
Except fe cases of Sailesh Chand and Renuka Chand and Dulari Janak, Kumari Suruj and Wati Kala, the, the petitioner Morarji could
not prove by direct evidence that these persons resided outside the Ward. In the case of one person Chinna Kodia, the witness admitted
that he relied on the report of a committee who went looking for evidence on this ground. Apart from Mr Sailesh Chand whom he said
he knew personally, he could not prove either that the qualifications of these people depended on residence and that they were not
qualified and therefore were on the roll illegally.
I accept that Mr Sailesh Chand lives in the CAAF compound which is outside ard but have doubts about Mout Mrs Renuka Chand's place
of residence. Mr Chand gave evidence that because of his work, his wife and their infant child spent most of their time at her parents'
residence which was within the Ward. However, because the petitioners failed to call Mrs Renuka Chand and did not lead any evidence
that she was not qualified on the basis of her spending most of the time in her parents residence, I hold that they have not satisfied
me as to her living outside the Ward.
The Petitioners callestable Apete to give hearsay evidence as to one Nirmala Singh's alleged statement that she she had not filled
an application for registration but had voted. When I remarked to Counsel for the Petitioners that even if the statement were produced
it would have no weight unless the maker of the statement was cross-examined, Counsel agreed and then undertook to have the statement
produced the following day. It was not.
Accordingly, I disregard this evidence. Similar observations apply to the evidence of Constable Biavou who gave evidence that that
one Vijay Latchmi Datt had applied for registration but had been included on the rolls and voted. I likewise reject this evidence
as pure hearsay.
p class=MsoNormaNormal style="margin-top: 0; margin-bottom: 0"> Navindra Dutt
The credibility of the District Officer, Nadi, was attackedhe petitioner Morarji on the ground that in response to hiso his objection
to Mr Dutt, Mr Morarji received an answer that appeared to both sustain and dismiss the objection and that Mr Dutt's name appeared
on the final roll. This was later clarified by the evidence of Rajeev Narayan at pp.87-8 on Day 8 of the hearing where he explained
that he had dismissed the objection but erroneously used the form for sustaining the objection. He said at p.88, that the error was
a human one in view of the large number of objections.
The effect of all this evidence is that the petitioners have proved that only one or at most two of the named voters was unqualified.
There is a possibility that Renuka Chand was not qualified but on balance I am prepared to hold she was.
The essence of ttitioners' challenge was that a company nomination is required to be mde under the common smon seal of the company,
and that affixing of the seal for each specified company had to be witnessed by at least 2 officers (either a Director or Secretary)
of the Company.
There is nothing in the Companies Act or the Local Government Act which requires a company or body corporate to nominate under seal for the purposes of section 11.
The previous tendency of the law to require the use of seals as proof of a company's act has loen abandoned.
Section 36 of the Companies Act (Cap 247) permits written and oral contracts to be entered into on behalf of a company by "any person acting under its authority
express or implied".
Moreover section 40 provides-
"A ent or proceeding requiring authentication by a company may be signed by a director, secretecretary or other authorised officer of the company and need not be under its common seal."
"Authenticate" and "authentication" are defin the Shorter Oxford Dictionary as follows -
Authenticate - Tan">To invest with authority; to give legal validity to; establish the validity of, to establish the title to credibility of a statement,
or of a reputed fact, to establish the genuineness of.
Authenticationman"> - Stem of authenticate, the action of authenticating; the condition of being authenticated.
Because of this, the Supervisor of Elections submits that the whole o petitioners' challenges ones on this ground are without legal
foundation. I tend to agree but in the light of the fact that when these elections were held, section 11(4)(b) of the Local Government
Act had not been amended, I can understand the concern of the former Acting Supervisor of Elections, Mr Rabuka, in disallowing nominations
by companies made only by a rubber stamp. Until the amendment a body corporate could nominate three persons for enrolment as electors
as occupiers in any ward which was a negation of the ordinary principle of one vote one value.
The effect of the amendment is to give effect to that principle so that hereaftemy judgment companies may mmay make their nomination
of an elector merely by affixing a rubber stamp if this is more convenient.
I have already dealt with this subject and only add that seven estates in the Namaka Ward were challenged by the petitioners but they
did not lead any direct evidence regarding the challenged estates except at pp.27-8 of the transcript of Day 5. There Mr Morarji
stated that the petitioners had doubted the existence of the estates within the Ward, and had lodged objections. These were disallowed
by the Returning Officer. The petitioners objected. The trustees were required to make a statutory declaration as to the existence
of the estates. When I asked Mr Morarji in what legislation such a requirement could be found, he replied that it was in the rules
and regulations governing elections.
I am satisfied there is no such legal requirement so that I dismie petitioners' challenge on this ground.
p class=MsoN=MsoNormal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> Ground B
"That in spite of your Petitioners' objections to the inclusion in the Elec Electoral Roll of persons not resident in the Namaka
Ward and the double appearances in the said roll of names of certain voters while the authenticity of Company nominees and those
of Estates were not confirmed, the election was allowed to proceed."
The essence of the complaint on this g was that the Respondents allowed the "election to proo proceed" despite not having
dealt with the Petitioners' objections to their satisfaction. It is submitted that their claim as to the election being allowed to
proceed is misconceived in that it was not within the power of the Respondent District Officer, Nadi nor any other Respondent to
halt the election. The writs of election which were issued by the Electoral Commission commanded the Respondent District Officer,
Nadi, to hold the nomination and polling on specified dates. Apart from the District Officer's legal inability personally to change
these dates, there was also the fact that the 3 year term of sitting councillors was due to expire on October 2.
The Petitioners in their oral evidence complained that the irregularities alleged to be committemitted by the Registration Officer
included his failure to deal properly with objections. They alleged that he was required to, and failed to deliver objection notices
to the persons against whom they objected. It is submitted by the Respondents that paragraphs (3) and (5) of rule 7 make clear that
he was entitled to make his own enquiries prior to notifying the voters objected to and to dismiss the objections if he found there
was no merit or that they were without merit or objectionable, before sending an objection notice. The evidence given by the Respondent, District Officer, Nadi was that he caused council records to be
checked and relied on records of ownership and other licences as evidence of claimed qualifications. It is submitted that he was
empowered to do this, and acted properly in the circumstances. I agree.
The Petitioners also alleged that the Respondent did not obtain statutory declarations, and fill out and send various notices which
were used for the 1993 roll compilation. I consider that these were a matter of internal practice only and are not required by the
Regulations.
I have previously expressed the view that paragraph (5) gives the Returning Officer a discretion to dismiss an objection, even if
the voter objected to does not answer an objection notice. In my view what is required of a registration officer acting under rule
7, is that he must reach his decision by considering the facts alleged in the objection and those which appear to him from a voter's
application form and other information available to him. If he has any doubt then I consider he should give the benefit of that doubt
to the voter objected to. This is because of the basic principle of all electoral legislation that all qualified persons should be
entitled to elect the candidates of their choice.
Here again it seems to me Mr Morarji and his colleaguve laboured under the mistaken belief that the Registrationation Officer was
obliged to send notices to all voters objected to, and that in the absence of any answer from those objected to, the Registration
Officer was obliged to sustain the objections.
As I havd, the onus is on the petitioners to prove to the Court in each case where the Registrationation Officer was wrong to dismiss
an objection and how this affected the result. They have failed to so satisfy me.
Ground C
ass=MsoNormal style="margin-left: 36.0pt; margin-top: 0; ma0; margin-bottom: 0">
"That the nominations and elections were conducted under circumstances which left no doubt whatsoever that the Returning Officer
and the Town Clerk exhibited bias against your Petitioners and had conducted themselves in a manner which overtly confirmed their
deference to the first five named Respondents at the expense of your Petitioners."
Ground C essentially alleges bias by the Registration Officer and the Town Clerk who was assisting him. The Petitioners have adduced
no evidence of bias. Evidence was given by PW4 Mr Jayanti Morarji, PW7 Mr Amjad Ali and PW14 Mr Pradhuman Raniga of their suspicion of the Town Clerk and his staff and they made various allegations that they had been treated differently in respect of access to
registration forms. However, apart from stating their suspicion they provided no original evidence to bear out their suspicion of
bias i.e. real evidence to show that the NFP candidates were given greater assistance or access to the forms than they had.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> I believe at times emotions ran high during these elections. In cross-examination the petitioners mentioned their frequent visits
to the Town Council chambers and their acrimonious and demanding interchanges with the Council staff. I am satisfied that the Council
staff and the Returning Officer were, through force of circumstances, working under great pressure so that they would only be human
if at times they were not always cool, calm and collected. Likewise, I can understand the frustrations of the petitioners who regarded
these elections as being of the utmost importance.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Acrimony and heated words are one thing but iniew they do not prove bias and I am not satisfied that the the respondents showed any
bias towards the petitioners. I therefore, dismiss this ground.
Martintar Ward: 510/96
The majorities in this ward ranged from 111 votes to 96 votes. The grounds, partrs and evidence led in resp respect of the Martintar
Ward petition will now be examined -
"Your Petitionemplain that the Returning Officer for the said election hadn had made undue returns or undue elections of the
first five named respondents to be members of the Martintar Ward in the Nadi Town Council upon the following grounds -
(a) That the "election" of the first five named Respondepondents on 28th September, 1996 for the Martintar Ward in the Nadi Town Council is absolutely void
such elections having been procured by an electoral college whose qualification have been largely in contravention of the provisions
of sections 11 and 12 of the Local Government Act and the Regulations thereunder and the provisions of the Electoral Decree 1991
and Regulations.
(b) That inspite of your Petitioners' objections to the inclusion in the Electoral Roll Roll of persons not resident in the Martintar
Ward and the double appearances in the said roll of names of certain voters while the authenticity of company nominees and those
of estates were not confirmed, the election was allowed to proceed.
hat the nominations and elections were conducted under circumstances which left no doubt whbt whatsoever that the Returning Officer
and the Town Clerk exhibited bias against your Petitioners and had conducted themselves in a manner which overtly confirmed their
deference to the first five named Respondents at the expense of your Petitioners.
Name of Voterman"> &&bsp;;&bspp;&bssp;&bbsp;&bsp; &nbssp; Page No  p;&nssp; L>p;&nbbsp;&bsp;& pnbspp;
1. Anita Prabhu & p; &nsp; &nsp; ; bsp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& 3 nbsp; p;&nssp; p; &nbp; &nbp;&nbssp;&n94,95;&nbnbsp
&nbbsp;& pp&nbssp&nb546 4546, 4546 <0"> 3. Dhirenaginap;&nbbsp;&nbp; &nsp; &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; 7 &nbssp   p;&nssp; p; &nbp; &nbp;
;&nbpp; 273,274p   ;&nspp;&nss24,33pan> 4. ">4. IreneIrene Nisha &nbssp; &nbssp; 10p; 10 &bsp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& p; 42 &nbssp;&nnbsp;;&sp;;&nbssp;
5972,5872
6. Mohammohammed Yued Yusuf &suf nbsp;  &nbs;&nnbp; &nbs; &&nsp;;&nspp;&nssp; 19 &nbs ;&nspp;&nssp; p; &nbp;
&nbp; ; 83p,nbsp;;&nbnsp; &nsp; ;&nbssp; 162 7. Padmini Vikash &nnbsp;; &nbs; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; &nb3p; 2sp&nbbsp; &nbs; &nnsp;&&nsp;;&nspp;&nssp;&nsp;
 ,9921 &nnbsp; &nbp; &nbp; 3768,19pp 8. P>8. Prabharabha Ben Ben   &nbs; &nbp; &nbss;&nbbsp;&nbp; &nbp; p; 23 &nbss; &nbs; p;&nssp; p; &nbp;
&nbp; ,1039 &nbsbp;&n& sp;& 3323,3323
9. Rahmat Ali &nnsp;&&nsp;;&nspp;&nssp;&nsp; 25 &&nbs;; &nnsp;& &nbp; &nbp; &&;&sppsp; 1083 ;&nbssp;&nbp; 2357,5966 10. Rahul Prak Prakash Singh &nbbsp; &nsp;&nsp;&nbs; &nbs &nbss;&nbbs; &nbs; &nbssp; &nbssp; &nbp; 108; 1085,1086 &nbss;&nbbs;
1738,1738
lang=EN-GB style="font-family: Times Nmes New Roew Roman">man">11. Raj Deo &bsp; nbsp;  &&nbs;;&nbssp;&nsp; &nsp; ;&nbpp;
&nnsp;&&nsp; &nbp; &nbbp;&nnbp;& 25 &nbs; &nnsp;&&&sp;pp;bsbbspn  1n92,&;&sppsp;bbbsp;n3737,3737,4587
12asi Lupe &nsp; &bsp; nbsp; &nbss;&nbbsp; &nsp; &&nsp;;&nspp;&nssp; 26   &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp;
1129,1nb0 &nbp; ; 7208 13. Rokoderea erea KelerKelerayaniayani &nbs p; 2s & &nbbp; &nbs; &nbs; p; &nnsp;&&nsp; 11p; 1180,1181 &nbss;&nbbs;
,3550n> man">14. S14. Satya Verma & p;;&sbssp;bssp;&nnbspnnbsp;&nsp; &bspp;nbsp; &nbs; &&nbp;;&nbpp; 29 &nbs; ;&nspp;&nssp;& p;&nbbspnbbsp;&
1292 1293   &nbs;&nbs; 523
16n">16. Sus. Sushila hila Wati Wati Khan 33 & &nsp; &nbssp; &nbssp; 1439,1449,1440   p;&nb7p; 3701,3701 &nbs>
Evidence
The Petitioners' evidence on this ground was provided principally Amjad Ali PW7 whose evidence appears in the transcript of t of
Day 6 of the Hearing beginning at p.8
As admitted during cross-examinaon p.43 of the transcript, much of his evidence on this issue is like that of Mr Morarji's ji's objectionable
and of no weight on the grounds of hearsay and also on the grounds that the Petitioners' appear to have assumed that having identified
one person of the relevant name that both entries must necessarily be referred to that person. As stated earlier in relation to the
Namaka Petition, nowhere do they give evidence that they even attempted to locate another person of the same name but could not find
anyone. Neither did they even produce any applications for registration to compare signatures even though they had access to the
forms during the objection period as well as during the interlocutory stages of the petition hearing.
At pages 11 to 17 of the transcrir Day 6, Mr Ali gives the following evidence of the source of his knowledge-
p.12 - Anita Prabhu - admissionyping error by Registration Officer
p.13 - Chagin Bhai - information of Navin Morarji
Chirendra Raniga - information of Navin Morarji
p.14 - Irene Nisha - personally met one Irene Nisha when investigating
p.14 - Mansukhlal Pala - identified by Navin Morarji
- Mohammed Yusuf - personal knowledge of one Mohammed Yusuf "therefore it is the same person"
p.15 - Pradumini Vikash - personal knowledge of one such person
- Rahamat Ali - personal knowledge of one such person
Rahul Prakash Singh - personal knowledge of one such person
Ramasi Lupe - information of Ponipate Lesavua
Rokoderea Kelerayani- " " "
Satya Verma - informtion of Ram Rajed
Suresh Chandra - personal knowledge
Sushila Wati Kiran - information of Sushila Ramesh
Even if the Poners' had produced admissible and probative evidence that these were double entries for onor one and the same person,
it is clear from the witness's cross-examination testimony that the double appearance of the names could not have affected the result.
At p.42 of Day 6 transcript he admits that of the 16 named, only 12 voted and then only once.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> I therefore dismiss their challenges on thound.
Non-Residents
Particulars
The Petitioners at paragraph (b) on page 6 of the Petition of theiition listed the following 6 voters and alleged that they rhey resided
outside the municipality but voted in the election -
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> Name of Voter &nnsp;&&nsp;; &spsp;&bbsp;&bsp; &nbssp; No     &nnbsp;;&nbssu>Ln>/p> ya Nasp; &nsp; &bsp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nnbsp; &nbp; &nbp; &nbs ; 29p; &nnbs; &nbp; &nbbp;&nnbp;&
&nbbsp; &nbp; &nbp; 1290ass=Mmal s"margimargin-left: 36.0pt; margin-top: 0gin-b: 0">n lang=EN-GB style="font-y: Times New Roman">2 Shah Nawa Nawaz Khaz Khan&nbsn
&nbp; &nsp; &bspp &nnbs;& &nbp; &nbp; &nnbp;& 30 &nbssp;    ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nn1p;&
ass=MsoN=MsoNormal style="margin-le6.0ptgin-t; margin-bottom: 0"> 3an">3 Sham Shamima Kima Khan&nhan &bsp; &&nsp;;&nspp;&nssp; &nbp; p; 3s &nnbsp; &nbp; &nbp; &n&&sp;pp;&nbbsp;& 4
4 Ronil Kishore &nnbsp; &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; 27 nbsp; nbsp;& p;&nbbsp;&&;&nbb;&nbbsp;& p;&bsp;
nb18; 1184 1184span>
5 Roshan Ali &bsp; &nbbs;&nbs;   ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; 27& &nbssp&nbbsp &nbp;
&nbbbsp;& p; 1187 6 Mohammed Mukhtar 19 &nnbsp;; &nbs; &nbssp; &nbp; &nbs; 846,847spanass=MsoN=MsoNormal style="margi: 0; n-bot0"> span>
<
I consider that this evidence suffers the same defects as that provided by Mr Morarji for the Namaka Petition. It also suffers from
the evident defect referred to in relation to the 'double entry' challenges that they have assumed that there can only be one person
of a particular name.
It would appear the Petitiotitioners (and PW7 in particular) have assumed wr either that all categoriesories of qualified registrants
must reside in the town, when in fact only those who apply to register a residents must be residentident in the relevant ward. Alternatively, they have assumed that a person claiming to register on the
basis of a tenancy or ownership of land needs to reside there as well, which he need not, when he or she could be the owner of a
vacant lot or hold a commercial tenancy. It is to be noted that PW7 Mr Ali gave no evidence as to whether the challenged voters claimed
to be qualified on the basis of residence or some other ground such as nomination or tenancy. I consider that his evidence on this
matter therefore has no probative value at all.
I therefore hold that the Petitioners have provided no probative evidencsubstantiate these challengllenges which accordingly must
fail.
Company Nominees
<0"> At paragraph (c) of the following Petition, ttitioners purport to list 21 companies which they claim werm were contrary to the Local
Government Act and Companies Act-
1. Sheiks Rent A Car Ltd
2. Gosai Trrt and Contractoractors - Nota Ltd
3. HamResta (Fiji) Ltd
4. South Pacific Holiday Ltd
5. Combinis Ltd
<
&nb Lomolomo Beach Resorts Ltd
7. Raniga Jews Ltd
8. s Investment Ltd 9. Raniga Jewellers Ltd
10. Boulevars Investment Ltd
11. Wai Vanua Co Ltd
12. Travellers Beach Resort Ltd
13. No.1 Auto Hans Ltd
14. Ksaan & Naiveli Investment Ltd
15. Aotea Agencies Ltd
16. Kennedy Hotels Ltd
17. Roxy Motor Pars Ltd
18. Palas Auto Services Ltd
19. Holly Hock Ltd
20. Ginko Ltd
21. MP Pala Investment Ltd
It will be noted that Raniga Jewellers Ltd is listed twice at No.7 and No.9. The total number of challenged corporate nominators should
have been 20.
Evidence
n lang=EN-GB style="font-fant-family: Times New Roman">
The initial evidence on this ground was given by PW6 Mr Mohammed Aleem KhanDay 6 beginning on p.1 of t of the transcript).
Mr Khan gave evidence that 5 companies of which he was a director had nominated votersthese only 3 are listed in d in the Martintar
Petition. These are -
- 6 Lomolomo Beach Resort
- 8 Aleems Investments
- 16 Kennedy Hotels Ltd
Therefore in my view, Mr Khan was duly authorised to make the nomination these were valid.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> As to the remaining 17 companies, no oral evidence was adduced at all by the Petitioners to show either that the companies had nominated
voters, which voters they had nominated, how they had done so and what, if anything, was invalid about the nominations.
The only evidence apart from PW7 Mr Khan was evidence given by PW8 Mr Amjad Ali at pp.30-31 where he admits that some of the challenged
corporate nominations were witnessed by members of his own party. The only other evidence he gives on this matter is as to his belief
as to the proper legal procedures to be followed in nominating voters.
Accordingly, I hold that their claimthis ground must also fail.
Trustees of Estates
The following estates were alleged to have invalidly participated in thetion-
1. Estate of Shiu Narayan 6. Estate of Sucha Singh
2. Estate of Shakur Ali 7. Estate of Phul Kumari
3. Estate of Adiappa 8. Estate of Mahabir - when
4. Estate of Lala Ram 9. Estate of Chinnaiya Goundar
5. Estate of Sanmogam Goundar 10.Estate of Nemani T Raikuna
Evidence
Mr Khan first gavdence in respect of (8) the estate of Mahabir. He alleged that he would that afternoon call call one of the trustees
to give evidence that he had no knowledge of any nomination by the trust and that he had voted. This evidence of Mr Khan is quite
improperly and incorrectly summarised at p.9 of the Petitioners' written submissions.
In fact when the witness PW9 - Mahendra Prakash f/n Mahabs called his evidence was in fact to the contrarntrary to that suggested by the Petitioners' written submissions. At pp.66-68 of the transcript, Mahendra Prakasah gave evidence that he had nominated himself, and 2 other voters on behalf of himself as trustee and his sister, his fellow trustee from whom he held a
power of attorney. He further swore that he had not voted because he was busy.
PW7 Mr Amjad Ali also mentioned in oral evidence the names of 6 of the listed estates (3 not even mentioned) but apat apart from making a very general suggestion
that solicitors' clerks had fraudulently nominated on behalf of those estates, he did not specifically state how their nominations were objectionable or invalid or who had allegedly acted fraudulently or the exact source
of that belief. No nomination forms, trust documents or other evidence was called or produced.
Particularly, in view of the way his specific claim regarding the Mahabir estate was later contradicted by the Petitioners' own witness,
PW8 Mr Amjad Ali, I hold that the Petitioners have failed to prove anything improper about the trustee nominations or that the nominees
voted and might therefore have affected the result.
Summary
Accordingly, I am satisfied that the Petiti have not proved any of the irregularities alleged in theirtheir Martintar petition.
NADI WARD
The majorities in this ward ranged fro vote to 12 votes.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Before proceeding to examine the grounds and particulars of the Nadi Ward Petition it is necessary to point out a mistake made by
all parties and their counsel during the inspection of the rolls used for the poll during the interlocutory stages of the hearing.
When inspection of the rolls took place for this case only one copy that for A-M was inspected. Therefore the names of all those who voted in the other stream (i.e. whose names began with N-Z) were
not marked on that roll and were therefore presumed not to have voted. The assumption that these voters did not vote was subsequently
contradicted by oral evidence.
Multiple Registration
Particulars
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> At paragraph (a) of the Petition, the Petitioners listed the following 21 ns whose names allegedly aply appeared twice on the rolls
-
Name of Voterspan lang=EN-GB style="font-family: Times New Roman">   &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; Pag/uNo &nbs p; &nnsp;& Li ;&nb ;&nbssp; &&;&nbu> Serial No
1. Asenaca Saloba &nnsp;&&nsp;;&nspp;&nssp;&nsp; 4 &nnbsp& &nnbsp;& p;&spp;&nbbsp;bbsp;& p;&nbbsp; 68&nbbsp;& p&nbss;
&nbp; &nsp; &bsp; nbspp 166; 1610,1210,1214
&3. Chal &nnbsp; &bsp; nbsp; &nnbp;& &bsp; &nbbsp;&nbs; &nbp; p; &&nsp;; &nbp; &nbp; p;&bssp; ;nbspp; &nbp; &nbp; ;&nbpp;
&nnsp;&&nsp; &nbp; &nb9p; 2ppnbsbbsp; &nbp; &nnbsp;,3303nassclsoNoMsoNormal style="margin-top: 0; margin-bottom: 0"> 4. Eela Ben &nnbsp;&nnbsp;;&nbssp;  &nbp; &nbbs; &nbs; &nbs; p; &nnsp;&&nsp; &nbp; &nbbp;&np;p;sbsp;;&nbssp;&nsp;&nnbsp;;
&nsp; p;&nbs; &nbp; &nbs;&&bsp; nbspp  377, 377,378 ;&bspp;&bssp; &nsp; p;&nb502,3span> 5. Eneri Tale ;&nbsbssp;&nnbspnnbsp;&nsp;&nsp; &bsp; &nbbsp;&nbs; &nbp; p; &&nsp;; &nbp; &nbp; 9 sp;bbnbspp;&nbbsp;&&nb;& p;
&bsp; &nbs;     ; 40p, 400,401&n401 &nsp; &nbbsp; 64pp>man">  6. E;6. Eseroma Tiva Tivuluivulu &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;& &nbp; 10p; 10 p;nbssp;&nnsp; &nsp;
&nbbsp; p;&n 15&nbs5 &nbs; & p;&nbbbsp;nnbsp;  1234,1238
<
ieli &nbssp; &nbp; &nbs; &nbbp;&nbs;&nnbsp; &nbp; &&nsp;;&nspp;&nssp;& 10&nnb0&nnbsp; p; &nnsp;&&nsp; &nbp; &nbs;&nbbp;
p; 427,428&,428 &bsp; p;&nbbp;&nbbsp;& pnbspp; 6934,6901
&nbs> 8. p;8. Filimoni Lolovo;&nbp; &&nsp;;&nspp;&nssp; &nbp; 10&nnbsp& &nnbsp;& p;&spp;&nbbsp;bbsp;& p;&nbbsp;
441,440 &nbbsp;nnbs; &nbp;&nbs; &nsp; &bsp;  &nbssp 207; 2073,2979
9. Hari Hariwan M Pala  p;&nsp; &bbs; nbsp;  nbsp; ; &nbbsp; &nsp;&nbssp; 1sp; 12 p;&nbbsp;&nsp; &nsp; p;
&nnsp;&&bsp;&bsp; &nbs; &nbssp; 500,50p;nbsp; nbsp; &nnbsp;;&nbsssp;nbbsp; 1963 1963,1963
10. Hem Lata &nbssp;&nnbsp; p;nbsp;&bsp;  &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;&&nbs &nbs &nbssp;&nbp; &nbbsp;&
&nsp; &nsp; &nnbp;& nbsp;    501,513 &nbbsp;nnbsp;pp;bspp;&nbbspnbbsp; 3340,4503
11. Isaia Vuki ; &nbbsp; &nsp; &nbp; &nbssp; sp&nbbsp nbsp; &nbbp;&nnbsp; &nbbsp; &&np;& p;&spp;&nb61,56p;&nbbsp;&
&bsp; p; 1233,1239
<
&n2. Merewai   &nbs; &nbp; &nbss;&nbbsp;&nbp; &nbp; p; &n2sp; sp nbsp; &nbbsp; &nbbsp; &nbp; &nbp; 99&,992;
& &nbnp;;&nbs78,3278,32pan>
&nb Naidu Suruj&nbsj &nbp; &nsp; nnbsp &nbs;&nbs; nbsp;&nbp; &nsp;; &nbbsp;&nbp; &nbp; p; &&nsp;; &nbp; &nbp; 25 &nbssp;nbbsp;
&nsp; &&nsp;;&nspp;&nsssp;&nnbsp;nbsp;; 112,113 &nbssbsp;;;    1954 1954,1954<195an>
<
15. Nitin Pala &nbp;&nbp; &nsp; &bsp;&nbssp; &&nbp; &nbp; &nb7p; 2nb28&&nbp;; &nsp; ;&nspp;&nssp;  6,1216   
&nbbsp; <64>assp>ass=MsoNormal stal style="margp: 0;in-bo 0"> &nn"> 1bsp;16. Pa6. Parul Prul Patel&atel nbsp;  &nbs;&nnbsp& &nbp; ; 2spnbsp& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp;
12p; 1245,1245,1246 & p;&n 2033,4067
a
ass=Mmal style="margin-top: 0; margin-bottom: 0"> &nn"> 1bsp;17. Ra7. Raman Pman Patel&atel nbsp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& 2p; &nbs; &nbs; &nbssp;&;;bspsp;&nbbsp;&&nb;& p;
1254,1255 &nbbsp; &nbssp; 1961
;18. a Driu   &nnbp;& nbsp;&nbbsp;&nbs; &nbs; p; &nnsp;&&nsp; &nbp; &nb9p; 2p;nbssp; &nbp; p;&nssp; p;
12p; 1267,1267,1268 &nbssp;&;; 6947,6657span>
man">  19. ;19. PravePraveen Roy LRoy Laty Lata & p;&nssp;&nsp; &nsp; ;&nbpp; 30 p   ;&nspp;&nssp; p;
&nbp;&nbbsp;&&sp;& 8,1329&nbssp;&nnbsp;; 1030,5030,5018
<
inod ra&nbbsp;&nbp; &nsp; p; &nbs;&nnbp; &nbs; &nbbp;&nnbsp; 45 &nbssp; &nsp; &&nbp;;&nbpp; &nnsp; &nbp; &nbs;&nb98;
1988 &nbp; 1955,195an> 21. Dilip Khabsp;&nsp;  &bsp; nbsp; &nbs;;&nbp;&nbp;   &nbbsp; ;&nspp;&nsp; &nbp; p; ;&nspp;&nssp; 8sp; 8 &
&nbp;&nnbs;&&nbs; &nbs; &nbbp;&nnbsp;& p;&nb56,nb56,357 &&;&nbbbsp&nnbsp 1962 1962: 0"> &n/span Evidence
The Petitioners' evidence in support of those particulars was provided by PW14 Pradhuman Raniga on Day 7 of the Hearing beginning
at p.23 of the transcript for that day.
In dealing with Asenaca Saloba Mr Raniga did not state that he has personal knowlof the person or person. Inn. In any case this was a case of a double registration
identified by the Respondent District Officer, Nadi after the final roll had been published. In his affidavit and oral evidence (on
Day 8) he gave evidence that her name was crossed off the copy of the final roll that was used for the purposes of the poll before
it was supplied to the Presiding Officer at the polling place. Special additional steps were taken to ensure that she did not vote
more than once.
On Chuni Lal, Mr R claimed personal knowledge of one such person living in Lodhia Street. At p.25, however, her, he stated only that the Chuni
Lal he knows lives at Lodhia Street. He gave no evidence that he has any knowledge that there is not another similarly named person
in Lui Street. In any event, the Respondent District Officer, Nadi's assertion contained in paragraph 3 of his Affidavit in reply
that only the Chuni Lal of Lui Street voted was not contradicted by him.
In the case of Eela Ben Mr Raniga states onat it "has been confirmed" that they are one and and the same person. He does not specify the source
of that knowledge.
Furthermore, he does not contradict the evidence given in paragraph 4 of the Respondent District Officer, Nadi's affidavit that only
one of the 2 voted.
In regard to Enere Tale, the witness admitted that he had no personal knowledge and was relying instead on one Ponipate Lesavua's
knowledge of one such person. Apart from the hearsay character of the evidence there was no evidence that there was any attempt to find out if there
was another person by the same name.
It appears from the evidence on p.26 of Mr Raniga t persons voted as Enere Tale without objection from them atem at the poll, presumably
because there were 2 different people.
Similarlyregard to Eseroma Tivulu, Evieli Nasau, Filimoni Lavotora, Isaia Vuki, Merewai Wati, Pen, Penaia Driu and Praveen Roy Lata the witness had no personal knowledge of anyone by that name and relied on an unnamed 'colleague' (see p.27). In any event according
to the Respondent District Officer, Nadi's affidavit, only one person of each name voted. The Respondent District Officer, Nadi's
claim that no vote was cast in respect of Penaia Driu nd Praveen Roy Lata whose name appeared in the unexamdined copy of the roll used for "N-Z" voters cannot be substantiated.
In the case of Hariwan Pala and Harjiwan, of whom Mr Raniga claimed pesonal knowledge, the Resp Respondent District Officer, Nadi had stated in his affidavit at paragraph
9 that this was a double registration identified between the publication of the final roll and the poll, and that the superfluous
entry had been crossed off the copy of the roll before it was supplied to the Presiding Officer. At paragraph 10 of his Affidavit,
the District Officer, Nadi gives evidence that only one person of that name voted.
The double appearance of Suruj Naiduwas conceded by the District Officer, Nadi in paragraph 13 h 13 of his Affidavit where he deposed to the fact that special
steps were taken to allow only one person to vote under that name including amending the copy of the roll supplied to the presiding
officer.
On pages 30-31 Mr Raniga also claimed personal knowledge of persons by the name of Navin Bhai,Nitin Pala, Parul Patel, Raman Lal Patel and Vinod Chandra. However, I consider that his evidence is not probative because he did not state grounds for believing that there is only one such
person. In any event, these individuals should have been called and they were not.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Non-Resi
At paragraph (6) of the Petition, the Petitioners listed 10 voters who they alleged were on the rolls but were not qualified because
they had not resided in the municipality for 12 months. These were -
Name of Voter &bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;& Page No   &nnbsp; p;&nsp; Lineu> &nnbsp;;;&nsp; &nnbsp;; al No>
<
1. Sewa Sewak Abhilas Chandra &bsp; ; 38p &nbbs;&nnbsp;&nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &n16p; &nb4 ; &nnbsp; &nbp;
&nbp; &nbss;&nbbsp;&nnbsp;; 622an622an>
2. S>2. Sewak Asha Lata &nnsp;&&nsp;;&nspp;&nssp; 3sp; 38 & &nnsp;&&nbp;;&nbp; p;&npp;&nbbsp;& p; 16bsp;& p;&nbbsp;& p
&nbp; &nsp;  &bsp; nbspp&nbs5; 365; 3653
n lanGB stfont-y: Times New Roman"oman">3. Sewak Ashish Chandra nbsp; &nnbp;&nbp;   38 & &nbss;&nbbs; &nbp; &nbbsp;
&nbbsp; 16p; 1686 &nb6 &nbbsp;&;;bspsspnbssp;  p; 36pclass=MsoNormal rmal style="m-left0pt; n-top: 0; m 0; marginargin-bott-bottom:
0om: 0"> 4. Sam Sewak ;&nbssp;&nnbsp;&nsp; &bsp;&bsp; &nbss;&nb8 &nbbs; &nbs; &nbssp; &nbsbsp;; &bsp; &bsp; 1701 &nnbp;& &nbssp;&nsp;
&nbp; &nsp;&&bsp; &nbss; 1419
5.n">5. Mohammed Yunus & &nbp; &nsp;&nbs; &bsp; nbssp;&nnbs; &nbp; 24p&nbssp; p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; 10p;
1039 &nbbp;&nnnp;&;;&nbssp;  &nbss152
0"> 6. Hari Krishwal 1p;&nbbsp;&nbp; &nsp; &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; &&nsp;; 4sp; 491   &nbssp; &&nsp;;&nsp; &nbp;
&nnbp;&&nbp;; 2span>
7. Ravindra Nadan &nss; &bbsp nnbsp nbsp;&nbs; nbsp; p;&nbbp; &nsp; 33 ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& &nnbsp;
1473&nbs3 &nbs; &nbsssp;&nnbspsp   & p; 31pan> 8. Kamla Nadan p;&nbbsp;& &bsp; nbsp;  &nbbs;&nnbsp;;&nsp; &nsp; &nnbp;& 16 p; nbsp; nbsp; ;&nbpp; &nnsp;&&nsp;
&nbp; &nbbp;&nnbp;& 686 &nbs; &nnsp;&&&sp;pp;bsbbspn  3172 9. Dilip Khatri ;&nbssp;&nnbsp; &bsp; nbssp&nbbsp 8&n; 8 & &nnsp;&&nbp;;&nbp; &nbp; &nnbsp;;p;bssbsp;nbsp;  &nbssp;
&nbs; &nbp;;&nsp;&nsp; &bsp;&bsp; nbspp; &nnbsp;&nbp; 3172
ass=Msss=MsoNormal style="margin-lef.0pt;in-to margin-bottom: 0"> langB styont-family: Times New Roew Roman">man">10. S10. Satish
K Patel nbssp &nbs; ; &nbbp; &nbp; &nbs; p; &nnsp;&&nsp; 37 nbsp; ;nbspp; &nnsp;&&nsp; &nbp; &nbbp;&n&&sp;pp; 1642
&nbs; &nn&sp;;p;bsssp; &nsp; 625; 625
Evidence
Duringevidence, at p.35-36 Mr Raniga withdrew or could provide no evidence of the allegations agas against-
. Mohammed
: 0"> . Harry Krisha Kewal
. Ravindra Nandan
. Kamla Nandan
. Dilip Khatri
. Satish Patel
The only voters for which challenges therefore remain are-
. Sewak Abilaandra
. Sewak Asha Lata
. Sewak Ashish Chandra
. Sham Sewak
All of these persoe members of the same family. One of the family Mr Sewak Abilash Chandra was called as a wi a witness PW5 and gave
evidence on Day 5 of the Hearing. His evidence begins at p.88 of the transcript for that day. At pp.88 and 95 he contradicted the
Petitioners' claim and gave evidence that Sewak Asha Lata and Sewak Ashish Chandra all resided in the Nadi Ward.
No evidence was given by either niga or Mr Sewak Abilash Chandra as to the residence of Sham Sewak, so the allegatiogations as to this voter must fail.
Sy
Thus all allegations regarding qualifications contained under this paragraph of the particulars have either been withdrawn, controverted
by the Petitioners' own witness or not substantiated at all. I hold therefore that the Petitioners' claim on this ground must fail.
ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> Companies Nominees
At paragraph (c) of the Petition, the Petitioners listed some 94 companies in respe which they alleged voters ters were improperly
nominated.
However, the evidence on this matter which was given by Mr Raniga on pp.36- the transcript of Day 7 me 7 merely repeats the general
allegation of the Petition and adds a further scandalous allegation that "most of the nominee's signatures were forged by the
witnessing officers" (p.38). No specific oral or documentary evidence (particularly copies of the relevant nomination forms)
was tendered to show which companies voters or witnessing officers were involved. This was in spite of Mr Raniga's admission that
the Petitioners had access to the forms during the objection period (p.39) and also through their Counsel during inspection at the
Registry Office (p.40). This lack of specific evidence on each company is all the more startling and prejudicial to the Petitioners
in view of Mr Raniga's statement at the bottom of p.39 that he did not believe that all 94 companies had made invalid nominations
and that "some may be correct". An oral evidential statement to the effect that "most of them" are defective
without further evidence is insufficient ground for this Court to find in favour of the Petitioners even in respect of a single company.
I note Mr Raniga's admission on p.37 that of 21 voters nominated by 7 particular companies, only 4 voted.
Also of note is Mr Raniga's admission during cross-examination on pp.60-6t a number of the companiesanies nominees were registered
by the Petitioners themselves, and, that he was himself managing director and signed the nomination form of one such company, Mohan
Lal Ltd.
Supersonic Builders Ltd
At paragraph (d) of the Petitioe Petitioners made a special allegation in respect of one 'Supersonic Builders Ltd' which hich had
nominated 3 voters, but only 2 of whom had voted.
This oral statement is not sufficiently probative and I consider that the Petitioners should have produced a certified statement from
the Registrar. At p.65 this was put to Mr Raniga and he replied "We could have got one and we can still get one". Inspite
of being put on notice, the Petitioners failed to do so before the conclusion of the hearing the following week.
ass=MsoN=MsoNormal style="margin-top: 0; margin-bottom: 0"> Trustees
At paragraph (e) of the particulars the Petitioners listed eight estates and claimed that thetees thereof had invalidly idly nominated
voters -
Evidence
The only oral evidence provided in support of these allegations wa affirmative answer "yes" to the leading questionstion
whether Mr Raniga "rested with your allegation in paragraph (e) [of the Petition] and you stick by it?" (at p.41).
Furthermore, in cross-examination on pp.67-68 he equivocated about what ees entitlements were.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> In any event no evidence was produced to substantiate a single individual case.
Summary
ass=MsoNormal style="margin-top: 0; margin-bottom: 0">
For these reason the Petitioners' allegations in respect of trustees must fail.
Vilikesa Driu
Paragraph (h) made a particular allegation ding the qualification of Vilikesa Driu who is a sita sitting councillor and the Fourth Respondent to the Petition. This allegation was that although Mr Driu had claimed
to be a "tenant" he did not reside in Nadi Town nor was an 'owner' by virtue of membership of a land-owning which owned
land in Nadi Town.
In his affidavit in reply and in his oral evidence on Day 9 pp.6 Vilikesa Driu said he was a joint tenant with his wife of e of a
commercial premises within the ward in Narewa, Nadi on CT 12118, which was a Native Lease.
At pp.46-47 of the transcript Pradhuman Ranbiga tendered a letter from the NLTB that according to their records Vilikesa Driu had
no interest in the relevant lease. (This was marked as exhibit P-5). However, the following day Mr Driu during his evidence at p.69
tendered a copy of a Tenancy Agreement between himself and one Ram Prasad to show evidence of the tenancy. It was marked R.3.
In deciding the question whether Mr Driu was qualified to be a voter and therefore was validly elected, I consider that the court
should look only at the tenancy relationship between Mr Driu and his landlord. The Agreement satisfies me he was a tenant and thus
entitled to vote. I therefore reject the Petitioners' evidence on this.
"Tampering with Boxes&quopan>
A short final word must be said about the Petitioners' claims that ballot boxes were "tampered" with. Three witnesses (PW12
C D Singh, PW15 Dewa Nadan and PW20 Satendra Kumar Sharma) were called on this issue.
Apart from the inconclusive nature ofr evidence, in my view this whole issue was totally irrelevrelevant to the proceedings, and was
a red herring.
As stated earlier, the ioners' evidence was that the petitions were all about registration forms which are kept bypt by the Registration
Officer for the purposes of roll revision. They were about polling and the ballot boxes or ballot papers or other voting documents
which were required to be sealed up after the count under rule 40 of the Second Schedule. Accordingly this evidence was irrelevant.
Conclusspan>
On the basis of the foregoing, I consider that the Petitioners have not proved any of the allegations in their submission.
In re of the Namaka petition, the only arguable case was that of Mr Chand.
In the case of the Martintar Ward no arguable cases were pred.
Finally, in the case of the Nadi Ward the only arguable cases are the 2 votes cast by 2 nominees of Supersonic Builders and Vilikesa
Driu.
In all cases, the arguable irregularities are well within the majorities of the winning candidates, so no question of the result being
affected arises.
Of all the three petitioners and indeed all the other witnesses who gave evidence I consider that the petitioner Pradhuman Raniga
was the most unsatisfactory. Most of his evidence was based on hearsay or assumption and I formed the conclusion that Mr Raniga was
prepared to say anything if he thought it might help his case. In this regard, I mention his scandalous allegation of forgery of
signatures by witnessing officers. He must have known he could not prove this allegation and yet persisted in it.
When giving my ruln the 2nde 2nd December 1996, that the petitioners should be allowed to proceed and call evidence in support of
their allegations I stated that I held reservations about certain aspects of the Petitions. Unfortunately for the petitioners the
further the evidence went the more confirmed I became in my reservations and I have been unable to find anything in the valiant efforts
both oral and written by their Counsel to remove those reservations. I therefore find that all the petitions must be dismissed with
costs to the respondents to be awarded under the Regulations.
p class=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The Respondents submitted that I should awosts on an indemnity basis on the ground that the petitionetioners have wasted the Court's
time. I have been tempted to agree with this submission at least partly and order that the petitioners pay at least the costs of
the respondents on an indemnity basis for the last 5 days of the hearing on the ground that conceivably by then they would have realised
that their cases were losing credibility but they still persisted with their petitions. However, on further reflection and particularly
in view of the fact that these have been the only petitions so far in Fiji on the result of a Local Government election, hopefully
some lessons will be learnt from this litigation. The order for costs is therefore, on the ordinary party and party basis.
I had hoped that this Judgwould be much shorter than it has turned out to be but, given the large amount of evidence ence and the
detailed submissions on the law I have received, for all of which I congratulate counsel, this has not proved possible.
At the beginning of this Judgment I lithe legal issues which I consider these petitions raise. I e. I list them again here with answers
to each question appended. These are-
1) What are the High Court of Fiji's powers to declare a local government election void and on what basis might it do so?
Answer: Where there are corrupt or illegal practices proved and for the reaset out by Isaacs J in B Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 at pp.623-624.
2) Is thect of section 11(3) of the Local Government Act that if a voter's name appears more than onan once on a roll, that person
is disqualified from being on the roll at all?
Answer: No.
3) mination of a voter by a company under the Local Government Act void because it is not unde under common seal and not signed by
two dirctors and/or a company secretary?
Answer: No.
4) is the meaning of the term "trustees" under section 11(4)(b) of the Act and in pain particular does it include trustees
of deceased person's estates?
Answer: The term "trustees" means persons who holderty for others and includecludes trustees of an estate.
5) Are persons who are qualified to vote as lawful tenander section 11(4)(a) of thef the Act also required to be resident in the municipality?
Answe.
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> 6) Is the Registration Officer obliged to give an objector a copy of any written reply given to any Registration Officer by a voter
objected to?
Answer: No.
7) Is the Registration Officer obliged to give written notification of his decisdecision on an objection to the objector within a
specified time?
Answer: No, but it is desirable to give such notification withileast three days of the pole poll.
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 0; margin-bottom: 0"> 8) Did any of the respondents have power to delay an elecif there was insufficient tent time to investigate objections fully?
Answer: No.
Answer: No.
: 0"> 10) If not, must such ularities have affected the result of the election before tore the Court can exercise its power?
11) If so, who has the burden of proving first, that the irregularities ocd and second that the resulresult of the election was or
was not affected?
Answer: The petits.
12) Can a person who is appointed both Registration Officer and Returning Officer for a constituency, be petitioned against in his
capacity as returning officer for alleged irregularities that occurred while performing his functions as Registration Officer?
Answer: No.
13) Is hearsay evidadmissible?
Answer: No.
14) On the hearing of a pet may additional particulars be incorporated in the petitionition?
Answer: No.
In this regard I woud that the Court should exercise its power to amend petitions very sparingly.
I therefore find that all petitions should be dismiwith costs to the Respondents to be awarded under the RegulRegulations.
JOHN E BYRNE JUDGE
/p>
Legislation and authorities referred to in judgment:
ass=MsoNormal style="marginargin-top: 0; margin-bottom: 0">
Companies Act Ca7.
Electoral (Election Petitions) Regulations, 1992.
Local Government Act Cap. 125.
Local Government Act Regulations.
Local Government (Amendment) Act, 1997.
Bridge v. Bowen [1916] HCA 38; (1916) 21 C.L.R. 582.
Christine Bourne v. Alice Murphy & Ors. - unreported judgment of New South Wales Court of Appeal dated 4/11/96.
Re Hunua Election Petition [1979] NZHC 17; (1979) 1 NZLR 251.
Morgan v. Simpson and Another (1974) 3 ALL E.R. 722.
Woodward v. Sarsons and Another [1875] UKLawRpCP 68; L.R. 10 C.P. 733.
Scarcella v. Morgan [1962] VicRp 30; (1962) V.R. 201.
The following additional casre cited in argument:
Re East Clare 4 O'M & H 162.
Islington West Division Case (1901) 17 T.L.R. 210.
Warburton v. Loveland (1831) 2 D & C1 480, 489.
Hbc0509j.96s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1997/147.html
