The two judges in the election petition case, Justice Anjala Wati and Justice Kamal Kumar have given the counsel for SODELPA Leader Sitiveni Rabuka and National Federation Party Leader Professor Biman Prasad, 24 hours to serve the petition to 27 respondents in the case.
Justice Wati and Justice Kumar say that Rabuka and Prasad have not proven why Attorney General Aiyaz Sayed-Khaiyum should be burdened to serve all respondents and has refused the substitutive application sought by lawyer Filimoni Vosarogo.
Suva lawyer, Filimoni Vosarogo
The two judges say that the allegations are personal in nature against the respondents and the respondents have to defend the cases.
The two judges say that if any respondent is not served in 24 hours, they will be struck out of the case.
The election petition has 29 respondents.
These include all the elected FijiFirst parliamentarians Faiyaz Koya and the Supervisor of Elections Mohammed Saneem.
The petition deals with issues arising out of the conduct, count and tallying of results in the 2018 General Election.
Rabuka and Prasad have said that the matters raised in the petition include claims of unlawful conduct by election candidates under the Electoral Act and alleged breaches by the Supervisor of Elections of his duties under the Electoral Act.
Filimoni Vosarogo, Jon Apted and Semi Valenitabua are representing Rabuka and Prasad.
Solicitor General Sharvada Sharma is representing the Supervisor of Elections while Devanesh Sharma was in court on the instructions of the FijiFirst General Secretary Aiyaz Sayed-Khaiyum.
Vosarogo told the court yesterday afternoon that he served the Supervisor of Elections with the election petition on Monday.
He says they attempted to serve the second respondent, Aiyaz Sayed-Khaiyum at the FijiFirst Office at Brown Street which has been locked and they have not been able to serve the papers.
Vosarogo says 27 respondents in the case as of yesterday are outstanding.
He says the 27 may not be in the capital city or in the country.
The counsel for Rabuka and Prasad made an application for substitutive service.
Vosarogo said it would be impractical to serve all the respondents personally and for the court to order that Aiyaz Sayed-Khaiyum receive the petition on behalf of all the respondents.
He says one would suspect that when nomination papers would have been filed for the general elections, it would have been filed by the FijiFirst General Secretary.
Vosarogo says it would not be unfair for them to accept service for all 27 respondents because they have to make sure the provisions of the constitution are met.
He says Aiyaz Sayed-Khaiyum is still the General Secretary of the FijiFirst and has presided over all 27 respondents’ applications for the general elections.
Vosarogo says that 26 of them are successful candidates after the elections while one is not a member of parliament.
He says they want to ensure that much time is spent on the substance and evidence in the case rather than servicing these respondents.
Justice Kamal Kumar then asked Vosarogo about other affidavits that have not been filed.
Vosarogo said that all affidavits are ready and can be filed this afternoon.
Devanesh Sharma
Devanesh Sharma then said that the application for substitutive service is opposed.
He said the court must make a decision in 21 days.
Sharma said the petitioners have waited 21 days to file the case and did not file as quickly as possible.
He also says that the petition must be served as a writ of summons is issued and it must be personal service to each respondent.
The lawyer for the FijiFirst General Secretary says in this case, Rabuka and Prasad made the voluntary choice of joining the 28 members of the party in the petition.
Devanesh Sharma said that these respondents will decide themselves how they will defend and the court cannot make this choice at this juncture.
Sharma further said that there is no evidence in court that they can say you cannot serve the 28 people individually and there has been no effort.
He says the petitioners have shown no evidence to say that it is impractical to serve all of them, adding that these people are members of parliament and their addresses are known.
Sharma says unless there is proper service to all respondents, the matter can’t progress.
He says if the respondents have not been served, how can the court make a decision in their absence. Sharma further says that if one looks at the petition, it is an incomplete document.
Devanesh Sharma also pointed out that Faiyaz Koya is being alleged of corrupt practice and others are alleged of illegal practice.
He says Koya is not in parliament and why is he being mentioned in this petition.
Solicitor General, Sharvada Sharma mentioned sections in the constitution and the Electoral Act, and said that a petition must be served.
Solicitor General, Sharvada Sharma
Sharvada Sharma said that they have been informed that there have not been service of the papers to 28 respondents in the case.
He said that the only one served was the Supervisor of Elections at 5.47pm on Monday.
The Solicitor General said the petition is defective and does not comply with the law.
He said that there has not been any service in the 21 days.
Sharvada Sharma said that it is not for him to speak on behalf of other respondents but it is for them to speak for themselves.
Sharma said that the petition is misleading.
The Solicitor General also said that there is not a single affidavit filed in support of the petition.
He said that the petition needs to be struck out as it is defective.
He also told the court that the Supervisor of Elections has answers for all the allegations and if he comes to court then he will give evidence.
The Solicitor General also highlighted that there are 11 issues raised in the petition and 6 or 7 of them deal with other respondents and not the Supervisor of Elections.
Sharvada Sharma said that there is no service, there is no proceeding.
Justice Wati then asked Vosarogo if he is wanting the court to give the decision in 21 days and is saying that the court’s time starts now and then he is saying that he could not file other affidavits.
She said that the service is an integral part of the process.
Vosarogo said the service rule also allows substitutive service.
Justice Wati said it does but only when personal service fails.
She said that they need factual issues to be put before the court that these respondents are really not in the country.
Vosarogo said they find themselves in a case which is an unusual type.
He said if you look at the residences, the respondents come from Ba, Labasa, Suva, Nakasi and other areas.
He said that they have a spread out of respondents to service.
Sharvada Sharma then said that they object to errors being corrected.
He said that the judges will only have a few days to decide on a very important matter if the matter is to proceed like this.
The case is adjourned to 11am tomorrow.
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