Nema v Paraka [1995] PGNC 4; N1290 (17 January 1995)

Unreported National Court Decisions

N1290

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 12 OF 1995 (H)
PATRICK NEMA - APPLICANT
V
THOMAS PARAKA - FIRST RESPONDENT
RUBEN KAIULO, ELECTORAL COMMISSIONER OF PNG - SECOND RESPONDENT
JACK KARALI, RETURNING OFFICER - THIRD RESPONDENT

Mount Hagen

Akuram AJ
17 January 1995

PROVINCIAL GOVERNMENT - elections - executive and administrative problems arising during election - Electoral Commissioner's discretion - National Court not to interfere and overule discretion and powers of Commissioner.

Cases Cited

Thomas Negints v The Electoral

Commissioner (1992) (Unreported judgement) N1072

Malapu & Wasum v Electoral Commissioner (1987) PNGLR s. 28

SCR No 4 of 1980 The petition of MT Somare (1981) PNGLR 265

Counsel

M Tamutai for Plaintiff

P Dowa for First Respondent

No Appearance for Second and Third Respondents

17 January 1995

AKURAM AJ: This is an cation by w by way of Motion filed on 16th January 1995 in response to another Motion filed on the 12th January 1995 whereby I granted orders that:

1. &##160; T60; The Defesdantviproande and supply to Kindeng Block No 1 and No 2 sufficient ballot papers and boxes to conduct its polling.

2. ;&#16hendantresttrestrainedained from counting of votes taken in t in the Anhe Anglimpglimp Constituency until the polling at Kindeng No 1 and No 2 are complete>

resenlication seeks following orders:

1.&#>1. &160; ;ټ That that the applicanjoin joined as a party to this proceedings;

2. ټ&##160; T60; That orat orders made on the 12th January 1995 be set aside;

ـ҈ < That injunction orders of 12th J2th January 1995 be dissolved;

4. ټ&#T60; coat countingnting of all votes for Anglimp Constituency be made fortwith.

I am now satisfied on the affidavit evidence of Mathew Tamutai with ure on Kilthe Returning Officer - and that of thef the appl applicanticant, Patrick Nema, that:

1. The orders made on the 12th of January 1995 were absolute as there were no return dates mentioned in the orders for parties to cock anue anstantattersed;

2. 1h0; ThereTwase was o seno seno servicervice effe effected on the Respondents in the original application so that they could appear and respond or reply to the application;

3. The voting agnin it thaa, rea, Anglimp Constituency, is not warranted as the issue is going into the real question of the Election Dispute itself and need muce evi then is b the now s then, fen, for thor the Coue Court tort to have have made made such an order.

The above findings are based on the fact that had the Court been fully informed of the facts of the case, such orders would not have been made. Both in the original appiocation and in the present one, I have not been referred to a provision in the Organic Law on Elections that allow the Nationalt to stop an election or to make orders for carrying out of elections. However, therethere is aaule authority given to the Electoral Commissioner to exercise his discretion where he finds that there were problems being faced during the voting and that he ither stop the election or stop the counting. This wais was poiout by Hiby His Honour Woods J in Thomas Negints v The Electoral Commissioner, (1992) (unreported judgement) N1072, that:

“The Organic Law itself makes no reference to the Nationart stepping in and making oing orders for the carrying out of the election however it does provide the Electoral Commissioner with fairly wide powers and discretions to act in s. 147 to adjourn the polling for any cause or in s. 178 to extend the time for polling where he considers it necessary.”

So the Electoral Commissioner has very wide powers and discretion to exercise in relation to Elections. onour in the above case cose continued and said:

“The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is aa of Executive Gove Government and Administration. The Nationalt of course hase has wide powers to make such orders as are deemed necessary see s. 155 (4) of the Constitution but that dot meat it should exercexercise such powers too freely. The Electoralissioner is t is the ethe expert in the running of elections, he is the person with the responsibility to ensure elections are run properly, a Court should be very careful before it steps in trrule the discretions and pand powers of the Commissioner. He mealise that if somethimething goes wrong during an election afterwards and they may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards.&#8/p>

His Honour referred rred to the case of Malapu & Wasum v Electoral Commissioner (1987) PNGLR 128 and said that:

“In the Malapu case referred to above on the facts it appeared that the damage may have already been so great, namely the numbers of votes destroyed but nevertheless the Judge in the case refused the application and said that the onus of proving that there had not been a free election had not been discharged because certain information had not been presented. But by saying all the info information so needed would be available after the counting of votes suggested therefore that is not till after thnting that you can present all the evidence required. And of coat that stage youe youe you are in the area of the Petition under s. 206.”

I would adopt those views in the present case as I am satisfied that the Constitutional right to vote an right to be elected to pubo public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Laws and by these proceedings to challenge an election in Section 206. Having said th now return turn to the four orders sought in this application.

As to the first order sought, that the applicant, Patrick Nema, be joined as a party to troceedings, I am satisfied that he is an interested party irty in this proceeding and in the previous proceedings and the orders that were granted. He therefor Locus Standi tndi to be included and joined as a party. I refethe decision in SCR SCR No 4 of 1980; The petition of MT Somare (1981) PNGLR 265, where the Supreme Court had formulated a Locus Standi Rule under Schedule 2.3 an applicant must have sufficient interest in that to whic which the application relies and that the test of 'sufficient interest' is an objective one based on the facts of each case.

I therefore grant and order that the applicant be joined as a party to the proceedings for the purpose of this application.

In relation to the rest of the orders sought, and for the reasons I have given above on the Commissioner's discretion and powers in handling this type of Election related problems, I set aside the orders I made on the 12th January 1995. Further that, be there wase was no return date on previous orders granted on 12th January 1995, I order that those orders be revoked.

Finally, that the Electoral Commissioner should now go ahead and cthe votes taken on electionction held on 9th January 1995 and there-after fortwith.

Lawyer for Applicant: M Tamutai Lawyp>

Lawyerawyer for 1st Respondent: P Dowa Lawyers

Lawoer for 2nd Respondent: No appee

Lawyer forr for 3rd Respondent: No appearance