[1980-1994] Van LR 84
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL JURISDICTION
Civil Case No. 1A of 1984
 
REPRESENTATION OF THE PEOPLE ACT NO. 13 OF 1982
PART 14
IN RE ELECTION PETITION:
THOMAS REUBEN SERU, NORMAN MELE, VALUI MOLINSINGI
Petition to declare void the election of SELA MOLISA
and JOEL ANTAS, in the SANTO-MALO-AORE Constituency.
Coram: Chief Justice Cooke
 
 JUDGMENT
[ELECTIONS - PARLIAMENT - allegation of electoral irregularities]
On the 2nd of November, 1983 a general election was held in Vanuatu. Mr Sela Molisa and Mr Joel Antas were declared by the Electoral Commission elected to Parliament with three others for the Santo-Malo-Aore constituency.
A notice to this effect appeared in the Government Gazette No. 39 of 14th November, 1983.
Under the Representation of the People Act No. 13 of 1982 (hereinafter referred to as "the Act") section 50(1) the validity of any election to Parliament may be questioned by a petition brought for that purpose.
Under section 51, an election petition may be presented by one or more of the following:
	(a) a person who is registered to vote at the election to which the petition relates; and
	(b) a person claiming himself to have been a candidate at such election.
By virtue of the said section 51 of the Act, Thomas Reuben Seru, Norman Mele and Valui Molinsingi (hereinafter called "the petitioners") of the Vanuatu Independent Alliance Party (VIAP) petition the Supreme Court on the grounds set out in the petition.
At the end of the petition, the petitioners ask the Supreme Court in exercise of its powers given by section 56(a) of the Act to declare the election of Mr Sela Molisa and Mr Joel Antas to which the petition relates void.
The evidence given in this matter was as follows:
	1. There was a shortage of envelopes resulting in the presiding officer stopping the poll until more were obtained. The Act provides for such measure.
	2. That some of the ballot papers were folded. I cannot find anything irregular in such.
	3. That some envelopes had a ballot paper inside. When this happened the presiding officer gave a warning to insert in the envelope the ballot paper of the voters choice. Both Job Delesa and T. Bakeo gave satisfactory explanation.
	4. That an election speech was made when the speaker mentioned guns were being brought into the country but no purpose mentioned. Other election speeches were mentioned when Vanuaaku Party were condemned. In my opinion and that of Tom Bakeo the electorate were not frightened.
	5. That a shortage of ballot papers occurred when those discarded had to be taken from the waste paper basket, and used. This seemed reasonable as each voter was given ballot papers of each candidate and discarded those he did not want into the waste paper basket.
	6. The finding of 200 VT in one envelope. This was explained to my satisfaction by the Electoral officer Mr Job Delesa.
	7. The finding of ballot papers belonging to Tanna in some envelopes. This again was explained to my satisfaction by the Electoral Officer.
	8. A row between two families about the land on which the polling booth was placed resulting in one family refusing to vote. From the evidence the family who did not vote chose not to enter the land to vote although allowed to do so. This was a Customary dispute and had no relevance to the election of the two Vanuaaku Party members. In my opinion the fault lay with the family who did not vote and no one else.
	9. That voting was made by a person who applied for proxy. Such had no material effect on the result of the election. It was an irregularity to be rectified for future elections.
	10. That a VIAP observer was refused admission. Again the observer did not have any letter or card or identity card as required by the Rules, to gain admission and correctly was refused admission.
	11. That one of the petitioners would distribute ammunition. The chief who gave the information was not called. Such evidence cannot be accepted being purely hearsay and could be false.
	12. That a statement was made in a Nakamal by a Pastor inquiring whether the people present had changed their minds as to whom they would vote for. Being an everyday occurrence prior to an election, I cannot find any substance in such as no suggestion was made that anyone was induced to alter the candidate of his choice.
	13. That an old man was alleged to have in his possession a ballot paper before the election. No ballot paper was produced by the old man to prove this. It is a question of belief. If anyone wishes me to believe such then the old man should have been called as a witness so that I can decide whether he spoke the truth. I rejected this evidence as no proof was produced.
	14. That a Presiding Officer allowed 13 ballot papers not of the voters choice but of the same party as the voters choice to be used because the ballot papers of the chosen candidate had run out, was disturbing, but the explanation by the Presiding officer that it was impossible to get more ballot papers of the candidate as the Polling booth was a day journey from Santo and that he thought those papers would be counted in favour of the correct candidate seemed reasonable but, of course, should not have been allowed. However, the 13 votes did not affect in any way the result of the election. In fact the Vanuaaku party collected no votes from the said polling area. The candidate involved lost to his nearest elected member by 144 votes so that the 13 votes made no difference. Yes, I consider this was a grave breach by the Presiding Officer, however as no corruption or bribery was suggested and being satisfied that it did not affect the election results, I place this in the category of an irregularity which should be avoided in any future election.
Finally it was stated that in the election campaign speech mention was made that 12 persons signed an agreement to start a rebellion in Santo. 12 leaders of the opposition were stated to be involved but no names were mentioned.
In evidence the person who made the speech stated that such was a rumour that such 12 persons signed an agreement and no more. He further stated that those listening were not frightened of such allegation nor did anyone appear before me to state they were afraid. Electioning candidates do from time to time make allegations in the hope of catching votes. Whether such allegations can ever be substantiated it is difficult to say. Sometimes a person does take legal proceeding requesting a withdrawal of a statement but this seldom happens.
I do not attach anything sinister to these remarks and certainly do not think the spreading of such a rumour affected the result of the election. Under section 57(1) of the Act the election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court that:
	(a) bribery, treating, undue influence, or other misconduct or circumstances whether similar to those hereinbefore mentioned enumerated or not, have so extensively prevailed that may be reasonably supposed to have affected the result of the election.
	(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election; and
	(c) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.
In my opinion:
	1. There has been no allegation of bribery, treating, undue influence or other misconduct pleaded before me which in any way affected the result of the election; and
	2. There has been no evidence of non-compliance with the provision of the Act affecting the result of the election; and
	3. There has been no irregularity in the counting of votes which has affected the result of the election.
It is therefore my opinion that the petition contains nothing of substance affecting the result of the election of Sela Molisa and Joel Antas. I accordingly dismiss the petition and declare that Sela Molisa and Joel Antas whose election is questioned were duly elected to the Parliament of the Republic.
Costs are awarded to the two candidates elected.
9 February 1984
FREDERICK G. COOKE
CHIEF JUSTICE