Ijape v Electoral Commission of Papua New Guinea [2002] PGNC 3; N2437 (30 July 2002)

N2437

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP 799 of 2002

BETWEEN

MATHIAS IJAPE
Plaintiff

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

and

OS 414 of 2002

BETWEEN

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Plaintiff

AND

MATHIAS IJAPE
First Defendant

AND

BIRE KIMISOPA
Second Defendant

and

OS 413 of 2002

BETWEEN

MATHIAS IJAPE
Plaintiff

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Sevua, J
29th & 30th July 2002

PARLIAMENT – Elections – Disputed Ballot Boxes – Determination by Returning Officer that ballot boxes formal – Subsequent determination by Electoral Commissioner that ballot boxes informal following declaration to that effect by National Court.

ELECTIONS – Disputed Ballot Boxes – Whether the National Court in an Originating Summons or Miscellaneous Proceedings action has power to deal with issues on validity of election.

CONSTITUTIONAL LAW – Section 57 enforcement – Inherent power of Court s.155(4) Constitution – Whether issue of enforcement of right and the exercise of inherent power can arise when the Organic Law on National and Local Level Government Election deals with elections.

Counsel:
C. Narokobi for Ijape
C. Nidue for Electoral Commission
A. Manase for Kimisopa

30th July 2002

SEVUA, J: These proceedings are separate but relate to the Goroka Open Electorate. The initial proceedings, MP 799 of 2002 was initiated in Goroka then later dealt with at Waigani. That matter has a short but chequered history, which has caused a lot of confusions and, perhaps, to a greater extent, unfairness to the original plaintiff, Mr Ijape. But I will refrain from making remarks in respect of the two decisions by the two different National Court Judges.

When that matter came before me yesterday afternoon by way of OS 413 of 2002, the plaintiff was seeking orders by way of declarations that the Electoral Commission’s decision to delay declaring a return for the Goroka Open Electorate is wrong; the Commission’s refusal to declare a return for the Goroka Open Electorate is wrong, and that the Commission must make a declaration for the Goroka Open Electorate.

The Court refused to entertain this application because the issues that the applicant was raising were matters that come under the discretionary power of the Electoral Commissioner therefore the Court declined to make the declarations sought.

The Electoral Commission also brought an application, OS 414 of 2002, which raised a legal issue that it wanted the Court to resolve. Again the application relates to the same electorate, and at the heart of these three separate legal proceedings, are two disputed ballot boxes identified as No 1404 and No 1405.

It would appear that during counting, these two ballot boxes were disputed. The Returning Officer had ruled that they were formal and were consequently counted. However, the matter went to Court in Goroka where Batari, J made some orders and a ruling on those two ballot boxes. The Electoral Commissioner subsequently declared the same ballot boxes informal. In the meantime, the proceedings were moved to Waigani because Batari, J refused to deal with the matter any further.

The same proceeding came before me on Friday afternoon, 25th July 2002. At that time I was dealing with other so called "urgent" applications relating to other electorates therefore insisted that the matter be dealt with by another Judge as I had already reserved on two earlier applications, and had not had the time to adjourn to consider them. Despite objection by Mr Narokobi on Bire Kimisopa’s application to be joined as a party, I granted the application and ordered that Kimisopa be joined because he was a candidate for the same electorate thus had an interest in the proceedings. The balance of Kimisopa’s motion was adjourned for hearing before Davani, J on Saturday, 26th July 2002, who ruled that the entire proceedings before Batari, J was irregular and subsequently dismissed the proceedings. Consequently, the orders of Batari, J on 24th July 2002 were dissolved. So it seems that the parties were back to square one. I understand that, that decision is now the subject of an appeal to the Supreme Court.

The Electoral Commission’s application in OS 414 of 2002 was essentially one of determining whether cast ballot papers in ballot boxes 1404 and 1405 with torn off serial numbers are formal. It is to be noted that again, the issue centred on the two disputed ballot boxes. In my view, it was evident that, depending on which way the Electoral Commission went, either Mr. Ijape would be returned as the winning candidate or Mr Kimisopa would. Many things were said and the Court without making any findings of fact or ruling in all three proceedings, simply refused to determine the issues raised.

In particular, the Court was of the view that as the two ballot boxes were crucial to the determination of who is successful in the Goroka Open Electorate, the Court highlighted the fact that the Commission had already made two determinations on the same disputed ballot boxes. First, the ballot boxes were held to be formal so the ballot papers in them were counted. Then, following the ruling by Batari, J; the Electoral Commissioner advised the Returning Officer that he (Electoral Commissioner) had declared the two ballot boxes informal after considering the Court ruling. As far as I recall, I said then that, that was where that issue was at, and so the Electoral Commission should make a determination on the status of the Goroka Open Electorate on the basis of the two different decisions in respect of the two disputed ballot boxes.

More so, the Court was of the view that the two ballot boxes were crucial to the issue of who is to be returned or declared as the winning candidate for Goroka Open Electorate. For that reason, the Court considered that the two ballot boxes would affect the result and therefore they would be an issue that will most likely arise in an election petition. Because the Court was of that view, it declined to determine the application by the Electoral Commission.

Yesterday evening, Mr Narokobi appeared again and informed the Court that the Electoral Commission had made a declaration and returned a candidate who was running in fourth place as the duly elected candidate for the Goroka Open Electorate, but that the writ had not yet been returned. The Court adjourned at 6.00 pm to allow Mr Nidue to consult his principal, Dr Nonggorr so as to confirm the Commission’s position. The matter was adjourned to 8.00 pm last night when Mr Narokobi continued to address the Court after Dr Nonggorr had confirmed that Bire Kimisopa had been declared at 4 .00 pm yesterday.

The nature of Mr Narokobi’s submissions was not clear. However, he raised both Sections 155 (4) and 57 of the Constitution and asked the Court to exercise its inherent power under s. 155 (4).

With the greatest respect to counsel, I consider that his submissions were misconceived. Certainly, the Court acknowledges the rights under s.57 and the inherent power in s. 155 (4). However, in my view, to come to Court in the manner he did and ask for the exercise of the Court’s inherent power in a matter which can properly be the subject of proceedings by way of an election petition under s. 206 of the Organic Law is a conjectural misconception. While I appreciate the apparent unfairness he attributes to his client, and the anxiety that may be associated with the Electoral Commission’s decision, I can see no other cause of action than challenging the result of the return for the Goroka Open Electorate by way of an election petition.

Any challenge to the validity of an election or return is, by law, required to be instituted by way of an election petition to the Court of Disputed Returns in accordance with Sections 4 and 206 of the Organic Law. In my view, Mr Ijape’s rights are still intact despite the declaration by the Electoral Commission, and he still maintains the right to pursue this matter in the appropriate manner and in the appropriate forum. The Court of Disputed Returns is the appropriate forum where matters pertaining to the validity of an election can be brought and be determined. While I acknowledge the constitutional provisions referred to by Mr Narokobi, I am of the opinion that the National Court ought not to exercise its inherent power under s. 155 (4) in proceedings in respect of national elections which are governed by the Organic Law on National and Local – Level Government Elections. That Organic Law is a special law dealing with a special jurisdiction, vis a viz, validity of elections, and I consider therefore that s. 155 (4) should not apply.

Accordingly, the application by Mr Ijape is refused.

In respect of costs, I make the following orders. In MP 799 of 2002, the plaintiff, Mathias Ijape shall pay the Electoral Commission’s costs. In OS 413 of 2002, each party shall pay his own costs, and in OS 414 of 2002, the Electoral Commission shall pay both defendants’ costs. I make no order as to costs in favour of the State as it was not represented in any of these proceedings.
____________________________________________________________________
Lawyer for Mathias Ijape : Narokobi Lawyers
Lawyer for Electoral Commission : Nonggorr & Associates.
Lawyer for Bire Kimisopa : Pato Lawyers