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Warry v Principal Electoral Officer [2004] VUSC 39; Civil Case 148 of 2004 (17 September 2004)

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

CIVIL CASE No. 148 of 2004

BETWEEN:

LUKE FAGO WARRY
Petitioner

AND:

THE PRINCIPAL ELECTORAL OFFICER
First Respondent

AND:

THE ELECTORAL COMMISSION
Second Respondent

AND:

NOEL TAMATA
Third Respondent

Coram: Lunabek Vincent CJ

Counsel: Mr. Ronald Warsal for the Petitioner
Ms Florence Williams for the First and Second Respondents
Mr. Noel Tamata, Third Respondent in person

JUDGMENT

This is an Election Petition. The Petitioner, Luke Fago Warry, is an unsuccessful candidate from the Island of Pentecost.

The Petitioner claims that he had obtained 526 votes which is more than the total of votes obtained by the Third Respondent, Noel Tamata, in the elections of 6 July 2004. There are four (4) declared elected Members of Parliament for the Constituency of Pentecost. On 15 July 2004, the Second Respondent (Electoral Commission) declared, among other matters, that the Third Respondent, Noel Tamata, is the fourth elected candidate for the Constituency of Pentecost with a total of 522 valid votes. The Petitioner, Luke Fago Warry obtained 520 valid votes.

On the basis of the Petition as alleged, the margin difference between the total number of votes obtained by the Petitioner and the Third Respondent is 2 votes warranting for an Examination of counted and void votes and the counting of votes in accordance with Section 62 of the Representation of the People Act [CAP. 46].

Guideline directions were issued by the Court on 30 August 2004. A panel has been appointed and was composed of three (3) members to examine the counted and void votes of the Petitioner and the Third Respondent and (only if necessary) the counting of votes. The Panel is required to provide a report to the Supreme Court 3 days after the examination hearing.

The panel provides its report of the examination hearing on 13 September 2004 to the Supreme Court.

The result of the examination shows the following:-

The court accepts and endorses the result of the examination hearing by the Panel as set out in its report of 13 September 2004. The result of the examination shows that the Third Respondent, Noel Tamata, obtained a total of 522 valid votes and the Petitioner, Luke Fago Warry, obtained 519 valid votes. The Third Respondent, Noel Tamata, has obtained more lawful votes than the Petitioner Luke Fago Warry. The Third Respondent, Noel Tamata, has had a majority of lawful votes compared to the total number of valid votes obtained by the Petitioner, Luke Fago Warry, in the elections of 6 July 2004.

The election Petition of the Petitioner cannot succeed. It is hereby dismissed. Noel Tamata whose election is questioned was duly elected on 6 July 2004.

The First, Second and Third Respondents are entitled to costs which are to be agreed if not taxed.

The assessment and determination of the costs are set for conference hearing on Thursday 30 September 2004 at 9.00AM o’clock in the morning.

Dated at Port Vila this 17^th day of September 2004

BY THE COURT

Vincent LUNABEK
Chief Justice