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In the Matter of a By-election in the District of Meneng [1980] NRSC 9; [1969-1982] NLR (A) 181 (21 August 1980)

[1969-1982] NLR (A) 181

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 6 of 1980

IN THE MATTER OF THE NAURU LOCAL GOVERNMENT COUNCIL ORDINANCE 1951-1967

AND

IN THE MATTER OF A BY-ELECTION IN THE DISTRICT OF MENENG

21st August, 1980.

Elections - Nauru Local Government Council - procedure for rejection of informal ballot-papers and counting - section 31 of the Nauru Local Government Council Ordinance 1951-1967.

Elections - Nauru Local Government Council - informal ballot-papers - application of section 28 of the Nauru Local Government Council Ordinance 1951-1967.

Election petition to the Supreme Court as the Court of Disputed Elections in respect of an election of a councillor in the District of Meneng. There were five candidates for the election. The procedure adopted by the Returning Officer was to put on one side, at the start of counting, all the ballot-papers which were not entirely regular and to proceed with counting the votes on the remaining ballot-papers without taking into account the votes on those set aside. The number of ballot-papers set aside was eight. At the conclusion of counting the votes on the other ballot-papers the Returning Officer found that two candidates had an equal number of votes. He then examined the eight ballot papers set aside and decided that four were informal and four not informal. He then added to his previous count the votes on the four ballot-papers which were not informal; that resulted in one of the two candidates who had had an equal number of votes having two more than the other. The petitioner challenged the Returning Officer's right to include in the count votes on ballot-papers previously set aside and also his decision that four of the ballot-papers were not informal. The procedure for the scrutiny of the ballot-papers at an election is prescribed by section 31 of the Nauru Local Government Council Ordinance 1951-1967; that section reads-

"31. Immediately after the close of the poll, the Presiding Officer at each polling place shall bring the ballot-box unopened to the Returning Officer, who shall, in the presence of the Presiding Officer -

(a) open the ballot-box;

(b) reject all informal ballot-papers and arrange the unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which the first preference is indicated for the same candidate; and

(c) count the first preference votes given for each candidate on all rejected ballot-papers."

The criteria for determining whether or not a ballot-paper is informal are stated in section 28(1) of the Ordinance; that subsection is set out in full in the judgment.

Held: (1) The procedure adopted by the Returning Officer was wrong. He should have decided, before counting of the votes was commenced, whether all or any of the eight ballot-papers set aside was informal. The procedure he had adopted had not in fact resulted in any error in the result of the poll, but if the distribution, of preferences had been different, it might have done so. Further, it put the Returning Officer in the invidious position of having to determine whether or not ballot-papers were informal, knowing the effect which this decision would have on the result of the poll.

(2) On the facts, three of the four ballot-papers rejected by the Returning Officer as informal were informal. Three of the four which he decided were not informal were not informal. The remaining two were probably both informal, but, as the votes on them, if counted, would merely have increased the number of votes for the candidate already having the larger number of votes, there was no need to decided that matter.

Petition dismissed.

R. Kun for the Petitioner, Mr. B. Eoe.
D.G. Lang for the Returning Officer.

Thompson, CJ.:

On 24th May, 1980, a by-election was held in Meneng District to elect a Councillor for that District under the Nauru Local Government Council Ordinance 1951-1967. Immediately after the close of the poll the Presiding Officer, Mr. Cannon, took the ballot-box to the Returning Officer, Mr. Cokanasiga. It was opened in the presence, and under the supervision, of the Returning Officer by an employee of the Council, Mr. Eddie Illaga, whom the Returning Officer had appointed to assist him in the conduct of the scrutiny of the ballot-papers; that scrutiny was required to be undertaken for the determination of the result of the poll. After counting the number of ballot-papers to make sure that it was the same as the number issued to voters, Mr. Illaga made five piles of ballot-papers, one for each candidate. Onto each pile he placed the ballot-papers showing as the first preference the candidate whose pile it was. In the course of doing that he placed on one side every ballot-paper which had not been marked strictly in accordance with the instructions on it. There were eight of them. He showed them to the Returning Officer but the Returning Officer did not, at that stage, declare them to be formal or informal. They were, however, excluded from the count.

Under the supervision of the Returning Officer Mr. Illaga counted the ballot-papers in each pile, then took the pile with the fewest ballot-papers and distributed them among the remaining four candidates in accordance with the second preferences shown on them. He repeated the process twice more, until there were piles of ballot-papers for only two candidates, Mr. James Ategan Bop and Mr. Bobby Eoe. Then he counted the ballot-papers in each pile. There were 107 in each.

At that stage Mr. Illaga examined further the eight ballot-papers put on one side. He suggested to the Returning Officer that four of them were in fact formal and four informal. The Returning Officer formed the same view but decided to ask for legal advice as to the requirements of the Ordinance before declaring any of those ballot-papers formal or informal. So he phoned the Secretary for Justice, Mr. Lang, who came and examined the eight ballot-papers and advised the Returning Officer that the view he had taken was correct, namely that four of the eight were formal and four informal. The Returning Officer then declared the latter four informal and distributed the four which he had decided were formal in accordance with the preferences shown on them. Three showed a first preference for Mr. Bop; one showed a first preference for Mr. Eoe. With those additional votes Mr. Bop had a total of 110 and Mr. Eoe a total of 108. The Returning Officer then declared that Mr. Bop had been elected.

Mr. Eoe has now petitioned this Court, as the Court of Disputed Elections under the provisions of Division 2A of Part II of the Ordinance, seeking a declaration that the result of the count of the votes was a tie and that the candidate winning the election should be decided in accordance with section 32(1) (h) of the Ordinance, that is to say by the Returning Officer drawing a lot to decide which of the two of them, Mr. Eoe and Mr. Bop, should be excluded.

There is no doubt that the procedure followed by the Returning Officer was wrong. Section 31 of the Ordinance sets out the procedure; its provisions are mandatory. The Returning Officer must comply with them and not adopt a different procedure. The Returning Officer is required to reject all informal ballot-papers before the counting starts. There are two good reasons for that. First, the inclusion of informal ballot-papers or the conditional exclusion of formal ballot-papers (as was practised in this case) could result in the elimination of the wrong candidate in the first or any subsequent round of counting, which in turn would lead to the distribution of the wrong ballot-papers among the candidates in the next round. Let us suppose, for instance, that there are three candidates and 208 electors, and eight ballot-papers are conditionally rejected during the first round of counting. At the end of that count candidate A has 80 votes, candidate B 61 votes and candidate C 59 votes. Candidate C is excluded and 40 of his ballot-papers show a second preference for B and only 19 for A. A then has a total of 99 and B a total of 101. The eight conditionally rejected ballot-papers are then considered; it is found that four are valid. All four show a first preference for C and a second preference for B. These ballot-papers are distributed between A and B bringing their respective totals to 99 and 105. B is the winner. But if the four formal ballot-papers conditionally rejected, had been included in the first count, as they should have been under the provisions of section 31 of the Ordinance, the result of the first count would have been 80 votes for A, 61 for B and 63 for C. B would have been eliminated and his ballot-papers, not C's, distributed between A and C, not A and B. If of the second preferences shown on B's ballot-papers 31 were for A and 30 for C, A would be the winner of the election by 111 votes to 93. So the procedure adopted by the Returning Officer in the present case could lead to a totally incorrect result. Because none of the four formal votes excluded from early rounds of counting in this present case showed a first preference for any candidate other than Mr. Bop and Mr. Eoe, the procedure has not, in fact, affected the result.

The second good reason why the procedure set out in section 31 should be followed is that it prevents the Returning Officer finding himself in the invidious situation in which Mr. Cokanasiga found himself in this case, of having to decide on questions of formality of individual ballot-papers knowing precisely the result his decision will have on the result of the election. Such a situation is not only invidious for the Returning Officer; it also invites allegations of partiality and impropriety. So, whatever the inconvenience of giving strict effect to the provisions of section 31 - and, in spite of what Mr. Cokanasiga and Mr. Lang have said on the matter, nothing more than inconvenience can result from giving strict effect to it - it is absolutely essential that they be strictly complied with.

Having said that, I have now to consider whether the four ballot-papers which the Returning Officer eventually decided to be formal were in fact formal and whether the four which he rejected were in fact informal. Section 28(1) sets out the circumstances in which a ballot-paper is informal. It reads -

"28. (1) A ballot-paper shall be informal if -

(a) it is not authenticated by the initials of the proper officer in accordance with section twenty-five of this Ordinance;

(b) it has no vote indicated on it or it does not indicate the elector's first preference for one candidate and his contingent votes for all the remaining candidates:

Provided that -

(i) when the elector has indicated his first preference for one candidate and his contingent votes for all the remaining candidates except one and the square opposite the name of that candidate has been left blank, it shall be deemed that the elector's preference for that candidate shall be his last and that accordingly he has indicated the order of his preference for all the candidates; and

(ii) when there are two candidates only and the elector has indicated his vote by placing the figure "1" in the square opposite the name of one candidate and has left the other square blank, the elector shall be deemed to have indicated the order of his preference for all the candidates; or

(c) it has upon it any mark or writing (not authorised by this Ordinance to be put upon it) by which, in the opinion of the Returning Officer, the elector can be identified:

Provided that a ballot-paper shall not be informal by reason of any mark or writing having been placed upon it by the Returning Officer, notwithstanding that the placing of the mark or writing upon the ballot-paper is a contravention of this Ordinance."

Section 28(2) provides that a ballot paper is not informal for any reason other than those stated in section 28(1); it has to be "given effect according to the elector's intention so far as that intention is clear".

Of the four ballot-papers rejected as informal, all but Exhibit 2A are clearly informal. One number is duplicated on two of them, making the order of preference uncertain. The third has only two numbers on it; three of the five boxes are left blank. Of the four ballot-papers eventually accepted by the Returning Officer as formal, three are similar to one another. Each has five different numbers entered in the boxes opposite the names of the candidates. The series of numbers in each case is broken by the omission of one number or, in one instance, two numbers; so the elector has not complied with the instructions on the ballot paper. But the numbers nonetheless form a series and the intention of the elector is clear. The elector has indicated his first preference for one candidate and his contingent votes for all the remaining candidates. The Returning Officer was correct in accepting them as valid. It is debatable whether Exhibits 1D and 2A are formal or informal; I am inclined to think that both are informal. But, as Exhibits 1A, 1B and 1C are formal and as the first preference shown on two of them is for Mr. Bop and that shown on one is for Mr. Eoe, they break the tie and give Mr. Bop at least one more vote than Mr. Eoe. As Exhibits 1D and 2A both show the first preference as Mr. Bop, their inclusion would not affect the result. So there is no need for me to decide whether they are formal or informal.

Section 34K of the Ordinance requires this Court to be guided by the substantial merits and good conscience of each case. So far as good conscience is concerned, neither Mr. Bop nor Mr. Eoe is in any way to blame for the Returning Officer's erroneous procedure. So far as the substantial merits of the case are concerned, the propriety of the poll is not in doubt, nor the result which would have been reached if section 31 of the Ordinance had been complied with. The wishes of the electors, as expressed by their votes, are clearly established; that is to say, when contingent votes are taken into account, a very, very small majority of the electors preferred Mr. Bop to Mr. Eoe. But that majority is sufficient to decide the election. The substantial merits of the case, therefore, require this Court to dismiss the petition.

Before concluding this judgment I feel that I must call attention to one other irregularity which has come to light in the course of this case, in order that it may be avoided in future or, if necessary, amendments made to the Ordinance so that it ceases to be an irregularity. Sections 30 and 31 of the Ordinance require the result of the polling to be ascertained by scrutiny. The scrutiny is to be carried out by the Returning Officer; he may be assisted by any Presiding Officers he appoints to assist him with it. He is not entitled to appoint anyone else to assist him. Mr. Illaga was not a Presiding Officer; nor was Mr. Lang. They should not have been asked to assist in the scrutiny. The irregularity in this instance did not prejudice the scrutiny or its result; quite properly no reliance was placed on it by the petitioner. But circumstances can be imagined in which the inclusion of unauthorised persons in the scrutiny might even invalidate the election.

The petition is dismissed.