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Maliu v Principal Electoral Officer [2008] VUSC 78; Election Petition Case 07 of 2008 (26 November 2008)

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

ELECTION PETITION CASE No.07 OF 2008

IN THE MATTER OF:

THE REPRESENTATION OF THE PEOPLE ACT [CAP.146]

BETWEEN:

CHRISTIAN MALIU
Petitioner

AND:

THE PRINCIPAL ELECTORAL OFFICER
First Respondent

AND:

THE ELECTORAL COMMISSION
Second Respondent

AND:

SELA MOLISA
Third Respondent

Mr Jerry Boe on behalf of Ronald Warsal for the Petitioner
Mr Justin Ngwele for the First & Second Respondents
Mr Jack Kilu for the Third Respondent

JUDGMENT

This is an election petition filed 1st October 2008. The Petitioner is of Big Bay, Santo. He was a candidate at the elections held on 2nd September 2008 for the Santo Constituency.

The Petitioner claims that he had obtained a majority of lawful votes than the Third Respondent Sela Molisa.

The Petitioner says that the unofficial tally of votes results in the Constituency of Santo Rural on 2nd September 2008 election showed that he received at least 558 votes, more than the Third Respondent who only scored 548, whereas the official results declared by the Second Defendant showed the Petitioner received only 529.

The Petitioner, therefore, applies for:

(1) An examination of votes in the constituency of Santo Rural for the 2nd September 2008 elections.

(2) A declaration that the election of the Third Respondent as a Member ofParliament is void.

(3) A declaration by the Second Defendant that the Petitioner was duly elected as a Member of Parliament.

On 7 October 2008, the Supreme Court orders for an examination of the counted votes and void votes and an examination of the counting of votes in respect to the constituency of Santo Rural before the determination of the Petition pursuant to Section 62 of the Representation of the People’s Act [CAP.146] ["the Act"].

Section 62 of the Act provides:

"Examination of votes cast

When on an election petition the election is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes the Supreme Court may direct an examination of the counted and void votes and of the counting of votes."

Following steps are put in place by the Court to guide the examination process:

(a) an Examination Committee is set up;

(b) the Committee is composed of:

(i) Counsel for the Petitioner or designate;

(ii) Counsel for the First and Second Respondents or his designate;

(iii) Counsel for the Third Respondent or designate;

(iv) the Principal Electoral Officer or his designate and the Principal Electoral Officer shall supervise the examinations process an the recounting of votes;

(c) No other persons are allowed to attend the examination and the recount of votes except those above-named in 2(b)(i), (ii), (iii) and (iv) and the Petitioner and the Respondent;

(d) The Third Respondent’s ballot papers are counted by the Petitioner and are then handed to the Third Respondent to be checked by him, and those of the Petitioner are similarly dealt with by the Third Respondent;

(e) If any are disputed the opinion of the Principal Electoral Officer is sometimes asked and given;

(f) If any paper remains disputed by either party, the Committee reserves it for the decision of the Supreme Court, setting out in its final decision;

(g) After the counted ballot papers have been, thus, disposed of, the rejected ballot papers are dealt with in like manner.

The Examination Committee is required to provide to the Supreme Court a report on the process of examination and examination of counted votes and void votes and examination of counting of votes and to notify the Supreme Court on the same.

The report of the Committee has been received by the Court on 24 November 2008.

The Election Petition No.07 of 2008 is listed for submissions by respective counsel on 26 November at 10.30AM o’clock. At 10.30AM Mr Frederick Gilu, counsel for the First and Second Respondents is present. Mr Jack Kilu for the Third Respondent is present. Counsel for the Petitioner is not present.

I instruct the Clerk of the Court, Mrs Veronique – to query from the office of the Petitioner’s counsel of his attendance. Mr Jerry Boe, then, attends the Court, thereafter.

Counsel for the First and Second Respondents submits, the First Respondents will rely on the findings of the Examination Committee contained in its report provided to the Supreme Court on 24 November 2008.

He submits that the Petitioner must fail and invite the Court to apply the test applied in the case of Worwor. He applies for 50,000VT costs.

Mr Jack Kilu submits on same grounds as counsel for the Third and Second Respondents. Mr Kilu applies for 150,000 VT for costs.

Mr Jerry Boe on behalf of the Petitioner, submits that since the Examination Report has been signed by all counsel including Senior Counsel Ronald Warsal for the Petitioner, he accepts and relies on the report.

Below are reproduced the findings of the Examination Committee for Santo Rural Constituency on the re-count of 2 September 2008 elections:

"Recount Findings:

The examination committee found that the valid votes cast for Sela Molisa ("3rd Respondent") varied by 1 vote plus compared with the number of votes that were officially declared as 548. The number of votes cast for Christian Maliu ("the Petitioner") varied by 2 votes plus compared with the number of votes that were officially declared as 529.

The examination committee examined all valid and void votes cast and made the following findings:

1. The examination committee finds that the total valid votes cast for the Petitioner is 531. This is 2 votes different from the declared result of the Petitioner.

2. The examination committee finds that the total valid votes cast for the Third Respondent is 549. This is 1 vote different from the declared result of the Third Respondent.

3. One of the Petitioner’s votes in the polling station of NAWELALA/TUPULELE that was officially declared by the Commission to be valid was found to be void as the ballot paper or the Petitioner was attached and cast in one envelope together with the ballot paper of another candidate, Mr Solomon Lorin.

4. The examination committee found 3 additional valid votes for the Petitioner in the polling station of PESENA. These additional 3 valid votes made up the total votes for the Petitioner to be 531.

5. The examination committee also found other void votes on some other polling stations as shown in the table above when recounting the valid votes. However apart from the findings made as described in paragraphs 1, 2 and 3, these other void votes do not affect the finding made in respect of the total valid votes cast for the Petitioner and the Third Respondent.

6. Accordingly the examination committee finds that the total number of valid votes cast for the Third Respondent is 549, while the total valid votes cast for the Petitioner is 531.

I peruse the report. I accept the examination committee findings that the total number of valid votes cast for the Third Respond is 549, while the total valid votes cast for the Petitioner is 531.

There is a margin number difference of 18 in favour of the Third Respondent. The test is that if the number of miscounted votes exceeds the plurality of the votes cast, the election cannot stand.

Applying the test in the present case, the Petition fails and I so rule. The following Orders are made.

ORDER

1. The remedies sought in the Election Petition filed 1 October 2008 in respect to Santo Rural Constituency for 2 September 2008 elections, are dismissed.

2. The First and Second Respondents to rectify the results in the Official Gazette to reflect the findings of the Examination Committee in respect to the Petitioner and the Third Respondent by 7 days from the date of this Order or reception of it.

3. The First and Second Respondents are entitled to their costs of Vatu 50,000.

4. The Third Respondent is entitled to his cost of VT150,000.

5. Deposit fees paid by the Petitioner of Vatu 20,000 shall be deducted toward part payment of the costs ordered against him.

DATED at Port-Vila this 26th day of November 2008

BY THE COURT

Vincent LUNABEK
Chief Justice