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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCIVIL JURISDICTION
CIVIL CASE No. 73 OF 1997
IER">IN THE MATTER OF:
THE CONSTITUTION OF THE REPUBLIC OF VANUATU
("The Constitution")AND IN THE MATTER OF:
THE NATIONAL COUNCIL OF CHIEFS ORGANISATION ACT
[CAP. 183]
("The Act")AND IN THE MATTER OF:
THE NATIONAL COUNCIL OF CHIEFS (ELECTION PROCEDURE) (RULES) ORDER No. 8 OF 1989
("The Order")BETWEEN:
CHIEF RAMEL JUSTIN
care of Ambrym, Vanuatu.
PetitionerAND:
THE ELECTORAL COMMISSION
care of Port Vila, Efate, Vanuatu.
First RespondentAND:
THE PRINCIPAL ELECTORAL OFFICER
care of Port Vila, Efate, Vanuatu.
Second Respondent
Coram: ek J., J., Acting Chief Justice
Counsel: Mr. Kalkot Matas Kelekele for the Petitioner.
Mr. George Boar forRespondents.JUDGMENT
This is an Electilection Petition dated 20th June 1997 and filed on 23rd June 1997. The Petition is issued under the National Council of Chiefs (Organisation) Act [CAP. 183] and Order No. 8 of 1989 ("the Order") made there under.
In his Petition, the Petitioner is seeking for the following Declarations and Orders:
A. A Declaration that the elections held by or with the Section of the electoral college for the Ambrym region on 14th May 1997 is invalid, null, void and of no effect.
B. A Declaration that the elections of Chief Reuben Maguekorkor and Chief Samuel Tapang are invalid, null, void and of no effect.
C. An Order that fresh and new elections be held in accordance with the law.
D. Costs and incidental to this Petition.
E. Such further or other orders or declaration as the Court shall deem fit.
The Petitioner, Chief Ramel Justin of Ambrym Island, in the Republic of Vanuatu is seeking declarations and orders against the Electoral Commission of the Republic of Vanuatu and the Principal Electoral Officer of Vanuatu, as respectively the First and Second Respondents.
The grounds of the Petition are as set out in the Petition.
There is no dispute as to the facts in this case. The election of Chiefs took place on 25th April 1997. The Electoral Commission published the results of the Elections on 20th May 1997. The Petition was filed on 23rd June 1997.
Preliminary issue.
Should an extension of time be granted to the Petitioner, after that the Petition had been filed out of time?
The Relevant Law.
Section 4 of the National Council of Chiefs (Organisation) Act [CAP. 183] provides for the Electoral Commission to make Rules of procedure for election to the Council after consulting the relevant responsible Minister.
It is on that basis that the Electoral Commission issued Order No. 8 of 1989 of 19th January 1989 providing for the Electoral Disputes.
Rule 17 of the National Council of Chiefs (Election Procedure) (Rules) Order No. 8 of 1989 provides for the Electoral Disputes in the following way:
"R . 17 (1) Every elector shall have the right to challenge the regularity of the poll in the section in which he is a member by Petitions to the Supreme Court within a period of twenty-one clear days from the date of publication in the gazette of the results of the poll.
(2) Petitions made under sub rule (1) shall specify each of the grounds giving rise to the petition and shall clearly express as its object either –
(a) that the election of a candidate declared elected be declared void; or
(b) that the election of candidate declared elected be declared void and that another candidate be declared elected in his place.
(3) The Supreme Court may make rules of procedure to be observed in relation to election petitions under this rule.
(4) …"
Mr. George Boar, on behalf of the Respondents applies before this Court to strike out the Petition on the basis that it was filed out of time as provided under Rule 17 (1) of the Order No. 8 of 1989.
Mr. Kalkot Matas Kelekele, on behalf of the Petitioner conceded that the Petition which was filed on 23rd June 1997, is out of time and did not dispute that fact. However, he applies to file or refile the Petition out of time. He relies on Rule 17 (3) of the Order No. 8 of 1997. He further requests that the matter be further adjourned for him to be further and fully instructed.
Upon a plain reading of the words of Rule 17 (1) of Order No. 8 of 1997, I am satisfied that when there is an election petition the elector shall have the right to challenge the regularity of the poll within a period of twenty-one clear days from the date of publication in the gazette of the results of the poll.
"Shall" is used in Rule 17 (1) and makes the position mandatory.
Further, although the Supreme Court may make rules of procedure to be observed in relation to election petition under Rule 17 (3), it must be understood that the Election Petition Rules made thereunder, can never modify or alter the provisions of the statutory condition contained therein.
However, it is worth noting that by way of comparison and analogy, there is no provision or subrule under the National Council of Chiefs (Election Procedure) (Rules) Order No. 8 of 1989 like Section 57 (3) of the Representation of the People’s Act [CAP. 146] which categorically states that the limit of 21 days shall not be extended. It is therefore open to the Court to feel inclined to grant some latitude to the Petitioner. In my Judgment, this is only possible on exceptional circumstances and upon grounds put forward by the Petitioner to the satisfaction of the Court.
In this case, the Petitioner, by Counsel applies for the Court to allow him to file or re-file the Petition out of time without putting before the Court any material information explaining or justifying the reasons why the Petition was filed out of time.
On the basis of the above information no extension of time should be allowed in this case.
Decision
1. The Petition is struck out for filing out of time.
2. There is no order as to costs. Both parties will bear their own costs.
Dated at Port Vila, this 3rd day of August 1999.
BY THE COURT
Vincent LUNABEK
Acting Chief Justice.
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