Jababa v Okuk [1983] PGLawRp 485; [1983] PNGLR 69 (18 March 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 69 - Billy Jababa v Iambakey Okuk 

[1983] PNGLR 69

SC246

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BILLY JABABA

V

IAMBAKEY OKUK

Waigani

Kidu CJ Kapi DCJ Andrew J

16 March 1983

18 March 1983

PARLIAMENT - Elections - Nomination of candidates - Validity of nomination - Determination - Compliance with time limits mandatory - Nomination for electorate other than that in which enrolled - Distinction between enrolment and nomination - “Has nominated” - Whether non-compliance a formal defect - Organic Law on National Elections, ss 59, 62[xii]¹, 82, 85[xiii]², 86 and 88.

Held

N1>(1)      Any question concerning the validity of a nomination for election, or whether a person has been duly nominated as a candidate for election, is to be determined under Pt XI of the Organic Law on National Elections.

N1>(2)      Section 62 of the Organic Law on National Elections, which appears in Pt VII and is entitled, “Enrolment”, and applies to a person who “has nominated”, is concerned, not with nominations for candidature, but with enrolment of duly nominated persons.

N1>(3)      A person “has nominated” for an electorate within s. 62 when he has been duly nominated according to law, (as contained in Pt XI, s. 85), and has complied with the requirements for nomination therein.

N1>(4)      Compliance with the time limits for nomination prescribed in Pt XI, is mandatory and failure to comply cannot be regarded as a formal defect under s. 88.

N1>(5)      Where a person who wishes to nominate is enrolled in another electorate he must nominate within the time prescribed by s. 85(2)(b)(ii).

Cases Cited

Greenway-Stanley v. Paterson [1977] 2 All E.R. 663.

Pritchard v. Mayor, Alderman and Citizens of the Borough of Bangol [1888] UKLawRpAC 15; (1888) 13 App. Cas. 241.

R v. Dublin Town Clerk (1909) 43 I.L.T. 169.

R v. Election Court, Ex parte Sheppard (1975) 1 W.L.R. 1319; 2 All E.R. 723.

R v. Lount [1928] 3 D.L.R. 61.

Appeal

This was an appeal from an order absolute for writ of mandamus directed to the Returning Officer for the electorate of Unggai-Bena directing him to accept a nomination for election, which the Returning Officer had previously rejected.

Counsel

J Everingham, for the appellant.

K. Kara, for the respondent.

Cur. adv. vult.

18 March 1983

KIDU CJ ANDREW J: This is an appeal from an order of the National Court whereby it was ordered that Mr Billy Jababa, the returning officer for the forthcoming by-election in the electorate of Unggai-Bena, enrol Mr Iambakey Okuk on the electoral roll for the electorate and that he accept his nomination for candidature.

The application before the National Court was by way of writ of mandamus and the orders sought, in full, were that the returning officer place the name of Mr Okuk on the roll for the Unggai-Bena electorate and notify the returning officer for the Kundiawa Open electorate to remove the name of Mr Okuk from the roll of the Kundiawa Open electorate, and then to allow the applicant’s nomination to be elected as a member of the Unggai-Bena electorate to be made to him before 12.00 noon on Friday 11 March 1983 and that the application for the writ of mandamus be made absolute in the first instance. The National Court made the orders in those terms.

It is not in dispute that Mr Okuk had sought to nominate on 10 March 1983, to the returning officer for Unggai-Bena and this was the day before the hour of nomination at noon on Friday 11 March 1983.

Mr Okuk’s nomination was rejected by the returning officer on the basis that s. 85 of the Organic Law on National Elections had not been complied with, namely that as he was a person who was not enrolled for the electorate of Unggai-Bena he had not nominated seven days immediately preceding the hour of nomination, as required.

There seems to be a popular misconception that Mr Okuk’s nomination was rejected on the basis that he was not qualified to stand for the electorate of Unggai-Bena. This is not so and that question was not before the returning officer, the National Court, nor this Court.

The whole purpose of a nomination procedure in our electoral system is to prevent a plethora of candidates presenting themselves as candidates for election to office. The nomination paper has to be lodged within due time. It must be in the prescribed form and must name the candidate, his place of residence and occupation and set out the qualifications by virtue of which he is qualified for nomination. The person nominated must consent to act if elected and must declare that he is qualified under the laws of Papua New Guinea to be elected as a member. He must deposit the sum of K100. When those documents are lodged with the returning officer it is his duty to examine them and see that they are in the correct form and to decide whether the candidate has been validly nominated. The scrutiny of the nomination papers by the returning officer is to show whether they comply with the requirements of the Organic Law and with the forms and that the papers are in order and in accordance with his discretion under s. 88 of the Organic Law. It is no part of the returning officer’s function to apply his mind as to whether there are other grounds for disqualifying the candidate. In principle the law in this case shows that it is no part of the returning officer’s duty to concern himself with matters of qualification or disqualification for election. If there are failures on the part of a candidate to qualify, that is a matter for challenge by way of election petition: See Greenway-Stanley v. Paterson [1977] 2 All E.R. 663, R. v. Election Court, Ex parte Sheppard [1975] 1 W.L.R. 1319, and Pritchard v. Bangor Corporation [1888] UKLawRpAC 15; (1888) 13 App. Cas. 241.

Counsel for the respondent has raised preliminary matters going to the jurisdiction of this Court to entertain the appeal. First, he says that s. 220 of the Organic Law applies, namely that a decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way. But this section clearly relates only to disputed elections and returns by way of petition addressed to the National Court and not otherwise (Pt XVIII of the Organic Law and in particular s. 206) and has no application to an appeal of this nature. Secondly, he submits, as we understand the submission, that the validity of the nomination may be questioned only by way of electoral petition and that this appeal is premature. Again, however, an electoral petition disputes the validity of the election and return and attempts to invalidate the election and has no application to these proceedings.

Although not raised in the notice of appeal there has been some argument as to whether proceedings by way of writ of mandamus were ever appropriate in the first place. The question of nomination is dealt with in Pt XI of the Organic Law and there are no provisions for appealing against a rejection of a nomination. There are however provisions for appeal in relation to enrolment. Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The applicant must show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. It is pre-eminently a discretionary remedy (although often described as less discretionary than the other forms of prerogative order), and the court will decline to award it if another legal remedy is equally beneficial, convenient and effective. Where there are provisions for appeal it has been held that mandamus does not he for the purpose of determining whether a returning officer has wrongly and illegally rejected the nomination of a candidate for election. See R. v. Dublin Town Clerk (1909) 43 I.L.T. 169. This may be relevant insofar as the order of the National Court related to s. 62 of the Organic Law to which we shall shortly refer and where there are appeal procedures available, but in relation to nomination, as we have said, there are no appeal procedures set down. In the circumstances, mandamus may have been the correct remedy in relation to nomination especially as the matter was urgent and also by virtue of s. 155(4) of the Constitution. But for reasons to which we shall shortly refer we find it unnecessary to finally decide this question for in our judgment the appeal should be allowed in any event.

The ground of appeal is that the trial judge was wrong in law in that the order made was contrary to the provisions of ss 59 and 85 of the Organic Law.

In essence the trial judge found that s. 85 of the Organic Law was not the appropriate section to determine whether Mr Okuk had validly nominated but rather lie found that the appropriate section was s. 62 of the Organic Law which had no requirement to enrol (in respect of a person not enrolled for the electorate) before the commencement of the period of seven days immediately preceding the hour of nomination as did s. 85(2). Consequently he found that Mr Okuk had duly nominated and was entitled to be placed on the roll.

Section 85 appears in Pt XI — The Nominations

Section 62 appears in Pt VII — Enrolment

We set out both sections:

N2>“85.    To whom nominations made

(1)      Nominations of members may be made to the Returning Officer for the electorate for which the election is to be held, to an Assistant Returning Officer for that electorate, or to a person thereunto authorised by the Electoral Commission.

(2)      Nominations may be made at any time after the issue of the writ and:

(a)      in the case of a nomination made to the Returning Officer — before the hour of nomination; and

(b)      in the case of a nomination made:

N5>(i)       to an Assistant Returning Officer or other person referred to in Subsection (1); or

N5>(ii)      in respect of a person who is not enrolled for the electorate, before the commencement of seven days immediately preceding the hour of nomination.

(3)      Where a nomination is made to an Assistant Returning Officer or other person referred to in Subsection (1), he shall immediately notify the Returning Officer by telegram, in the prescribed form, of the details of the nomination and deposit and forward the nomination to the Returning Officer.”

N2>“62.    Special provisions for certain nominations

Notwithstanding anything in this Law, where a person who is entitled to do so has nominated for an electorate other than the electorate for which he is enrolled:

(a)      the Returning Officer for the electorate for which he nominates shall place his name on the Roll for that electorate and notify the Returning Officer for the electorate for which he is enrolled who shall remove his name from the Roll for that electorate; and

(b)      if the nomination is withdrawn the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall (unless he has in the meantime nominated for some other electorate) restore his name to the Roll for that other electorate; and

(c)      if he fails to be elected, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate; and

(d)      if he is elected and later ceases to be the member for the electorate, the Returning Officer for the electorate for which he was the member shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate unless he has ceased to be eligible for enrolment in that electorate and has been enrolled in another electorate.”

It is immediately apparent to us that any question concerning the validity of a nomination or whether a person has been duly nominated is determined by reference to Pt XI of the Organic Law — The Nominations.

Section 85(2) is in clear terms. In the case of a nomination made to the Returning Officer — it may be made up to the hour of nomination and it is clear to us by reading the whole section that this means a person who is enrolled in the electorate. Where the nomination is made to an Assistant Returning Officer or other person authorized by the Electoral Commission or in respect of a person who is not enrolled for the electorate (as in Mr Okuk’s case), then in both situations the nomination must be made before the commencement of the period of seven days immediately preceding the hour of nomination.

Section 62 of the Organic Law appears in Pt VII — Enrolment; and is concerned not with nomination but with enrolment of duly nominated persons. It may be seen by s. 59 (also in Pt VII) that claims for persons to be enrolled or for transfer of enrolment cannot be registered after 4.00 p.m. on the day of the issue of the writ for an election until after the end of the polling period. The opening words of s. 62 “Notwithstanding anything in this Law” indicate that an exception to s. 59 is made in the case of a person who is entitled to nominate and has nominated for an electorate other than the electorate for which he is enrolled. This person is then entitled to have his name placed on the roll after the issue of the writ. All that s. 62 does is to instruct the returning officer to do various things to facilitate his name being placed on the roll. The section applies to a person who “has nominated” for an electorate other than the electorate for which he has enrolled. In this case Mr Okuk is not a person who “has nominated”. One nominates under Pt XI — Nomination — s. 85 and one must be duly nominated according to law (as contained in s. 85) before one “has nominated”. In addition a prospective candidate must comply with the requisites of s. 86 by consenting to act if elected and declaring that he is qualified to be elected as a member and he must pay his K100 deposit before he “has nominated”.

In our judgment the trial judge fell into error in assuming that “has nominated” simply meant the process of attempting to lodge his nomination. In Mr Okuk’s case he had not nominated because his nomination was rejected, correctly in our view, for non-compliance with the time limit contained in s. 85(2).

We reiterate that s. 62 is an enrolling section for a duly nominated person for an electorate other than the electorate for which he is enrolled. It is not a section permitting or dealing with the nomination of a person enrolled in another electorate. To treat it that way is to place the cart before the horse and to ignore the fact that it is included in Pt VII — Enrolment.

Mr Okuk’s case falls squarely within s. 85(2). He was not enrolled for Unggai-Bena but was enrolled for Kundiawa Open electorate and he was required to make his nomination immediately before the commencement of the period of seven days immediately preceding the hour of nomination. This he did not do, so that it follows that his nomination was validly rejected.

Counsel for Mr Okuk relied upon two further submissions. They were firstly that the requisites for nomination as contained in s. 86 of the Organic Law are exclusive and that the nomination could only be invalidated for failure to comply with that section. This would however make nonsense of s. 85(2) and mean that a nomination could be accepted at any time irrespective of the time limits contained in the act. The returning officer clearly has a duty to see that the nomination paper is lodged in due time, see Greenway-Stanley v. Paterson (supra). It was next submitted that the time limit did not apply because of s. 88 of the Organic Law. That section is as follows:

N2>“88.    Formal defects

No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nomination, or the telegraphic advice of it as the case may be, is satisfied that the provisions of this law have been substantially complied with.”

A failure to comply with a time limit set out in the provisions for nomination in the Organic Law could hardly be cured by s. 88 because it could never be said that the Organic Law had been substantially complied with. The rejection of nomination papers may properly be made by the returning officer after the time limited for the nomination of candidates; R v. Lount [1928] 3 D.L.R. 61. The decided cases clearly show that the type of defects referred to by s. 88 will not necessarily be rejected for such reasons, inter alia, as misnomer or inaccurate description of any person or place named in a nomination paper which affects the full operation of the nomination paper where the description of the person or place is such as to be commonly understood. Thus it has been held that a mere mis-spelling of a surname, not calculated to mislead electors, does not give good ground for objection: See Halsbury’s Laws of England, (4th ed., 1973), Vol. 15 at par. 562. It is clear that it is these kinds of formal defects to which s. 88 is referring.

It is for all of these reasons that we allow the appeal.

We quash the order for the issue of the writ of mandamus.

The result will be therefore that the ruling of the returning officer in rejecting the nomination for non-compliance with s. 85(2) of the Organic Law, still applies.

KAPI DCJ: The election result of the Unggai-Bena electorate in the recent national elections was declared invalid by the National Court.

In accordance with the Organic Law on National Elections, a new writ was issued for fresh elections for the electorate. The writ was issued on 21 February 1983. The date fixed for the closure of nominations is 11 March 1983.

On 10 March 1983, Mr Okuk made his nomination in accordance with the prescribed form to the returning officer for the electorate. After considering the nomination, the returning officer rejected it and informed Mr Okuk accordingly. The reason given for the rejection was that Mr Okuk had not nominated in accordance with s. 85(2)(b)(ii) of the Organic Law.

Section 85(2)(b)(ii) is in the following terms:

N2>“85(1) ...

N2>(2)      Nominations may be made at any time after the issue of the writ and —... (b) in the case of a nomination made:

(i)       ..., or

(ii)      in respect of a person who is not enrolled for the electorate,

before the commencement of the period of seven days immediately preceding the hour of nomination.”

It is not disputed that Mr Okuk at the time of nomination was not on the roll of the Unggai-Bena electorate but was on the roll of Kundiawa Open electorate. The returning officer considered that Mr Okuk came within the provision of s. 85(2)(b)(ii) and was out of time for nomination.

Mr Okuk then applied for a writ of mandamus to be issued against the returning officer, directing him to enrol Mr Okuk on the roll and then accept his nomination. The basis of this application was that the returning officer had misinterpreted s. 85(2)(b)(ii) of the Organic Law.

The application was made two hours before the hour of nomination and it was heard ex parte. The trial judge did not have the benefit of arguments on the opposing side and had very little time in which to consider the issues.

The trial judge ruled that the returning officer fell into error in his interpretation of s. 85(2)(b)(ii) of the Organic Law in that it did not apply where a person is enrolled in another electorate.

The trial judge went further and ruled that s. 62 is the relevant provision and ordered pursuant to this provision that the returning officer should enrol Mr Okuk. He further ordered that having been enrolled as a result of the order, it would follow that he would be entitled to make his nomination to the returning officer. I presume that his Honour came to this conclusion on the basis that Mr Okuk having been enrolled could nominate at any time after the issue of the writ and before the hour of nomination under s. 85(2)(a) of the Organic Law.

The returning officer complied with the order and enrolled Mr Okuk and accepted his nomination before the hour of nomination. The returning officer has appealed against the order of the trial judge on the basis that his interpretation of s. 85(2)(b)(ii) is wrong.

Counsel for the respondent raised four preliminary objections why this Court should not hear the appeal. These objections raise basically the question of the jurisdiction of the National Court in reviewing the decision of the returning officer by way of writ of mandamus. Counsel for the appellant does not question this power on the appeal. If this was raised in the grounds of appeal, important questions as to whether the National Court has jurisdiction to review the decision of the returning officer would be argued. This is an important issue in view of the fact that the Organic Law provides a machinery for challenging the result of an election on the basis that a candidate who wins is not qualified under s. 82 of the Organic Law (see Div. 1 of Pt XVIII), reference by the National Parliament to the National Court on a question of qualification (see Div. 2 of Pt XVIII) and reference under s. 19 of the Constitution on interpretation of an Organic Law. But this issue can be argued in an appropriate case and I have proceeded on the basis that National Court has jurisdiction to review the decision of the returning officer and this Court has inherent power to review the decision of the National Court. See s. 155 of the Constitution.

SECTION 85(2)(B)(II)

The trial judge in his brief reasons for judgment stated that s. 85(2)(b)(ii) has no application to a case where a person who wishes to nominate is enrolled in another electorate. In other words, it applies only where the person who wishes to nominate is not enrolled at all in any electorate.

With respect, his Honour fell into error in holding this view. The significant words in the provision are emphasized below “(ii) in respect of a person who is not enrolled for the electorate,”...(my emphasis). I would agree with his Honour if the provision read “in respect of a person who is not enrolled for an electorate”. The provision is to be interpreted in the light of a person who is nominating for a particular electorate. Therefore, the words “the electorate” are significant. They relate to the electorate for which the person nominates. That is as far as the provision goes. It does not deal with whether or not those persons are enrolled in any other electorate. Therefore, the provision is wide enough to encompass persons who are enrolled and those who are not enrolled in other electorates. I find the returning officer was correct in his interpretation of s. 85(2)(b)(ii). The provision applies to Mr Okuk.

SECTION 62

The trial judge held that s. 85(2)(b)(ii) applies to persons who are not enrolled at all in any electorate (which I have found to be wrong) and s. 62 applies to persons who are enrolled in an electorate other than the one for which he nominates.

In my opinion, this is an erroneous reading of the two provisions. They cannot be treated as dealing with the same subject. Section 85(2)(b)(ii) deals with one of the requirements for nomination. As I have held, it encompasses those who are enrolled or not enrolled in other electorates. Section 62 deals with a person who has nominated for an electorate and whose name does not appear on the roll for that electorate. Where a person who is entitled to nominate and has nominated, these two considerations would entitle him to be enrolled for that electorate. The returning officer shall place his name on the roll and do other things as set out in s. 62(a) of the Organic Law. Sections 62 and 85(2)(b)(ii) deal with entirely different matters.

The question arises, how is s. 62 to be interpreted in relation to s. 85(2)(b)(ii) because it makes reference to nomination?

Section 62 is in the following words:

“Notwithstanding anything in this Law, where a person who is entitled to do so has nominated for an electorate other than the electorate for which he is enrolled:

(a)      The Returning Officer for the electorate for which he nominates shall place his name on the Roll for that electorate and notify the Returning Officer for the electorate for which he is enrolled who shall remove his name from the Roll for that electorate; and

(b)      if the nomination is withdrawn, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall (unless he has in the meantime nominated for some other electorate) restore his name to the Roll for that other electorate; and

(c)      if he fails to be elected, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate; and

(d)      if he is elected and later ceases to be the member for the electorate, the Returning Officer for the electorate for which he was the member shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate unless he has ceased to be eligible for enrolment in that electorate and has been enrolled in another electorate.”

The entitlement to be enrolled under s. 62 depends on the words “... where a person who is entitled to do so has nominated for an electorate other than the electorate for which he is enrolled.” (My emphasis)

There are two things:

N2>(a)      entitlement to nominate

N2>(b)      has nominated.

In the instant case, counsel for the appellant does not dispute Mr Okuk’s five years residence in Unggai-Bena electorate.

Counsel for the appellant, however, criticizes the trial judge in that he appeared to have ignored the words “has nominated”. Counsel submits that a person who nominates must nominate in accordance with the law. The law relating to nomination is to be found in Pt XI of the Organic Law. As far as the facts of this case are concerned, Mr Okuk is not enrolled in Unggai-Bena electorate. He is governed by s. 85(2)(b)(ii). As far as time to nominate is concerned, he must nominate seven days before the hour of nomination. Mr Okuk is clearly out of time. He cannot now nominate. It cannot be said that he can nominate within the meaning of the words “has nominated”. It follows he cannot be enrolled under s. 62. Section 62 is to be read together with s. 85 as far as requirements of nomination are concerned. The end result is that he cannot be qualified to be elected as a member without being duly nominated in accordance with the law. See s. 82 of the Organic Law.

The words “notwithstanding anything in this law...” which appear at the beginning of s. 62 do not affect the interpretation I have given. They relate to matters of enrolment and not nomination. Those words have to be interpreted within the context of Pt VI which deals with enrolment. In my opinion the words referred to above, make special exception to the time limitation for enrolment and transfer imposed by s. 59 of the Organic Law.

Counsel for the respondent further relied on ss 86 and 87 of the Organic Law. He submitted that the combined effect of these two provisions are that the requirement of time limitation under s. 85(2)(b)(ii) is not a requisite for valid nomination under s. 86 and that it should be regarded as a formal defect under s. 88 of the Organic Law.

It is true that s. 86 lists requisites for valid nomination and it could be argued that the requirement to nominate seven days before the hour of nomination is not one of those requirements. However, that does not mean that other requirements in the Organic Law should be disregarded. Seven days before the hour of nomination in s. 85(2)(b)(ii) is a clear requirement as to a time limit for nomination. This must be complied with. A person who nominates outside the time limit cannot be said to have been duly nominated. If he has not been duly nominated, he is not qualified to be elected: (s. 82 of the Organic Law.)

I am not impressed with the argument that the use of the word “may” in s. 85(1) and (2) means that there is room to nominate outside the time limit. In my opinion, the word “may” there simply relates to the discretion of persons who wish to nominate. That is to say, a person has a discretion to nominate or not. However, once having exercised the right to nominate, those persons must comply with the time limitation under s. 85(2)(a) and (b). Section 85(2) simply deals with time limitations for three categories of nomination:

N2>(a)      nomination made to the Returning Officer s. 85(2)(a)

N2>(b)      nomination made to Assistant Returning Officer or other authorised officer s. 85(2)(b)(i)

N2>(c)      nomination made by those who are not on the roll s. 85(2)(b)(ii).

The first two categories are characterized by the persons to whom the nomination is made. The last category is characterized by the non-enrolment of persons on the roll of the electorate for which a person nominates. When the whole section is read together, I come to the following construction. The persons to whom the first two categories refer apply to persons who are on the roll of the electorate for which they nominate. If they are not on the roll, the third category applies.

The persons who come under the third category, may make nomination to the returning officer, assistant returning officer or other authorized officer. They are the only persons to whom a nomination may be made: (s. 85(1) of the Organic Law).

SECTION 88

I reject the submission that non-compliance with the time limitation under s. 85(2)(b)(ii) is a formal defect. If this argument is correct, the non-compliance with the time limitation under s. 85(2)(a) would be a formal defect. This argument clearly cannot be a valid one. The requirement under s. 85(2)(b)(ii) is not a formal defect within the meaning of s. 88. I agree with the interpretation of what is a formal defect within the meaning of s. 88 as set out in the majority judgment in this case.

Counsel for the respondent further argued that the returning officer has no discretion given by the Organic Law to reject any nomination even if the nomination does not comply with the requirements for nomination. He submitted that any dispute about nomination can only be disputed before the National Court upon a petition disputing the validity of an election or a return under Pt XVIII of the Organic Law.

I consider that the answer to this submission is to be found in s. 88 of the Organic Law. It can be implied from this section that a returning officer may reject a nomination if a person does not comply substantially with the provisions of the Organic Law. Such an interpretation must have been intended by the legislature because I do not think that the legislature intended to allow persons who do not comply with the requirements of nomination to go on to take part in the election and waste the peoples’ right to vote when in the end the National Court would declare them unqualified to be elected for non-compliance with the nomination provisions. If such persons win, the National Court would declare them not qualified to be elected under s. 82 of the Organic Law. Acceptance of such a submission would lead to chaos and waste of money and time.

I would reject this submission and find that the returning officer has a discretion to reject any nomination in accordance with the law.

The end result of my decision is that the trial judge fell into error in his interpretation and application of s. 62 and s. 85(2)(b)(ii) of the Organic Law, I would quash the order for issue of a writ of mandamus and other ancillary orders directed to the returning officer and restore the decision of the returning officer.

Appeal allowed.

Order of the National Court issuing a writ of mandamus directed to the Returning Officer for the electorate of Unggai-Bena be quashed.

No order as to costs.

Lawyer for the appellant: The State Solicitor.

Lawyer for the respondent: K. Kara.

[xii]Infra p. 72.

[xiii]Infra pp. 71-72.