Dekena v Kuman [2017] PGNC 181; N6849 (21 August 2017)

N6849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO 30 OF 2017

BETWEEN

DAWA LUCAS DEKENA
Plaintiff

AND
HON. NICK KUMAN
First Defendant

AND
PATALIAS GAMATO
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Defendant

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail J
2017: 15^th & 21^st August

ELECTION RELATED – PRACTICE & PROCEDURE – Application for interim relief – Injunction sought to prevent candidate declared as member to attend sittings of National Parliament – Two candidates declared for one electorate – To different writs – Organic Law on National and Local-level Government Elections – Section 175 (1) (a) & (b)

ELECTION RELATED – PRACTICE & PROCEDURE – Application to dismiss proceeding – Grounds of – Abuse of process – Dispute in relation to declaration of candidate as successful candidate – Jurisdiction of National Court – Dispute in relation to election of member shall be by way of election petition – Proceeding abuse of process – Proceeding dismissed – Organic Law on National and Local-level Government Elections – Sections 175 (1) (a) & (b) & 206

Cases cited:

Ralph Premdas v. The State [1979] PNGLR 329

Counsel:

Mr. G. M. Egan with Mr. D. Yariyari, for Plaintiff
Mr. A. Kongri, for First Defendant
Ms. A. Kimbu with Mr. D. Dupre, for Second, Third and Fourth Defendants

RULING

21^st August, 2017

1. MAKAIL J: There can be only one winner in any given General election. It is the core or, if not, the pinnacle of any democratic election process. In Papua New Guinea this is clearly stated in Section 175 (1) (a) & (b) of the Organic Law on National and Local-level Government Elections (“Organic Law”).
   
2. Section 175 states:
   

“175. Return of writs.

(1) Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained—

(a) at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b) by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.

(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

(2) Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and return the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be.” (Emphasis added).

3. The election process itself, in the case of a General election begins when writs for the electorates are issued under Sections 104 and 105 of the Constitution, and Sections 73 and 75 of the Organic Law and ends when they are returned to the Head of State via the Electoral Commission who shall forward to the Speaker of the Parliament under Section 175 (1) (b) of the Organic Law.
   
4. It is the case in Papua New Guinea that there are 111 electorates. Naturally, in this year’s General election, there were 111 writs issued and expected to be returned. Amongst them is the writ for the Gumine Open electorate. But it was not so for this electorate. There were two candidates declared as winner, one the plaintiff and the other, the first defendant. Interestingly, the declarations were made at different times, at different locations by different Returning Officers and separate writs returned to the Electoral Commission at different times.
   
5. The two declarations and writs were more or less triggered by the second defendant’s refusal to recognise and accept the plaintiff as the candidate who scored the highest number of votes when the Returning Officer presented the writ to him in accordance with Section 175 (1) (a) & (b) (supra).
   
6. Instead, the second defendant has recognised the first defendant as the candidate who finished first. The situation got worse when a new writ was issued. By this writ the first defendant was said to be declared as duly elected. Apparently this writ was presented to the second defendant who passed it on to the Head of State. It was then forwarded to the Speaker of the Parliament and the first defendant was allowed to be sworn into office as member for the electorate concerned.
   
7. The swearing in of the first defendant and other declared candidates was held on 02^nd August 2017 although, it should be stated here that the plaintiff successfully obtained an ex parte interim order to restrain the first defendant from attending Parliament. However, that order was not served in time and is of no practical value at this point in time. The current situation is that, the plaintiff is out and the first defendant is in Parliament.
   
8. It is the plaintiff’s case that he was duly elected and should have been the candidate whose election should have been recognised because he scored the highest number of votes of 13,870 well passed the absolute majority mark of 13,861 while the first defendant scored under that mark with 13,849 votes. The writ in his favour should have been accepted by the second defendant.
   
9. But it was not before 412 votes were removed or deducted from the total number of votes received by the first defendant. It was alleged that the ballot-papers for these votes were tampered with, in that, each had two signatures of the Presiding Officer instead of one. And what the Returning Officer did was consistent with Section 153A of the Organic Law which conferred discretion on him to admit or reject a ballot-box/paper from scrutiny.
   
10. However, it was argued for the defendants that what the Returning Officer did was illegal because it was not allowed at the tallying and declaration stage. The time to do that was at the primary count, quality check or elimination stage and counting had not gone by these stages.
    
11. Nonetheless, it was argued for the plaintiff that on 26^th July 2017, the plaintiff was declared the successful candidate by Mr. Max Yomba, the duly appointed Returning Officer in the presence of counting officials and supporters at Dickson oval in Kundiawa town consistent with the requirements of Section 175 (1) (a) (supra) whereas the first defendant’s declaration should be rejected because he was declared by a person not duly appointed and authorised to do so.
    
12. Consistent with the clear dictates of the Constitution and the Organic Law it was pointed out that there can only be one writ and one winner and in this case, it was the writ in favour of the plaintiff that could and should be the only one that the second defendant was bound to accept and deliver to the Head of State. There was not even any evidence of a direction from the second defendant to Mr. Yomba not to make a declaration of the plaintiff pursuant to Section 175 (1A) of the Organic Law.
    
13. When the second defendant accepted the other writ, not only was it contrary to the expressed intention of the Constitution and the Organic Law but a denial of the plaintiff’s right to stand for public elective office under Section 50 of the Constitution.
    
14. It was submitted that according to the case of Ralph Premdas v. The State [1979] PNGLR 329 this Court should find that in favour of the plaintiff, that his Section 50 right was breached and enforce it by granting an order to restrain the first defendant from attending further sittings of the Parliament to do justice in the circumstances.
    
15. Further to that, the declaration of the first defendant at the head office of the third defendant in Port Moresby by a Mr. Freddy Yaun on 29^th July 2017 is highly questionable and raises serious issues in relation to the legality of Mr. Yaun’s appointment and subsequent declaration of the first defendant as successful candidate for Gumine Open electorate. The actions of the first and second defendants were in breach of Section 175 (1) (a) (supra).
    
16. Specifically in relation to Mr. Yaun, he could not have received the writ when it was issued on 26^th April this year because he was not the Returning Officer at that time. For this reason, he was by law incapable of performing the function of a Returning Officer when he declared and returned the other writ to the second defendant on 29^th July.
    
17. It was argued that the factual circumstances of this case established that there are serious issues raised in relation to the appointment of Mr. Yaun as the Returning Officer and subsequent declaration of the first defendant as the successful candidate.
    
18. It is for these reasons that in this proceeding, the plaintiff sought to enforce his constitutional right under Section 50. Relief wise, it is being sought that the declaration of the plaintiff is lawful and the declaration of the first defendant is unlawful and void. It is also at this time that an application for interim relief, namely interim injunction is being made to restrain the first defendant from attending further sittings of the Parliament until the determination of the substantive proceeding.
    
19. The defence argued that it is quite clear that the dispute is in relation to declaration of a successful candidate. It is about which one of the two is the duly elected member. The first defendant’s declaration and election should be upheld because he has been sworn into office.
    
20. If the plaintiff is aggrieved by his declaration, he should file an election petition. The issues brought up in this case can be easily brought up and determined in an election petition under Section 206 of the Organic Law.
    
21. In my view, the constitutional framework of the electoral system is not in doubt. Section 126 (1) of the Constitution states that:
    

“(1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.”

22. The Organic Law to which Section 126 refers is the Organic Law on National and local-level Government Elections. It governs the conduct of elections and any disputes arising from it. Part XVIII provides for ‘disputed elections and returns’. Immediately falling under this Part is Section 206. It provides for the method of disputing elections or returns. It is in the following terms:
    

“206. Method of disputing returns.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.”

23. In my view, as a general rule any dispute in relation to or arising out of an election or return must be brought to Court by way of an election petition under Section 206 of the Organic Law. It is only a general rule because there may be exceptions like in the case where an appeal may lie to the District Court from an enrolment or transfer of enrolment dispute under Section 72 of the Organic Law.
    
24. In this case, there is no doubt that questions are being raised in relation to the declaration of the first defendant and the person appointed as Returning Officer, and who made the declaration and furthermore, the validity of the writ of the first defendant. The plaintiff has a legitimate entitlement or expectation to be accepted because there is no evidence that the second defendant has directed Mr. Yomba not to make a declaration in his favour pursuant to Section 175 (1A) (supra).
    
25. Quite rightly, the plaintiff is entitled to question the actions of the defendants where he has been the first to be declared because he scored the highest number of votes, and by the Returning Officer who was appointed when the writ was issued on 20^th April 2017 and there was no direction from the second defendant not to do so.
    
26. Conversely, it cannot be the case that Mr. Yaun was the duly appointed Returning Officer and was authorised to make the declaration of the first defendant when he was not appointed at the time the writ was issued on 20^th April.
    
27. The actions of the defendants appeared to deny the plaintiff his right to stand for public elective office. But there is the other side to the argument. He has been given the opportunity and has freely exercised it by nominating and contesting in the General election. Unfortunately, the first defendant was accepted by the second defendant as the duly declared candidate and member for Gumine Open electorate.
    
28. The decision by the second defendant appears to be based on the removal or deduction of 412 votes from the first defendant’s total votes. As the plaintiff has questioned the actions of the defendants, so are the defendants.
    
29. They are entitled to question the legality of the plaintiff’s declaration in circumstances where 412 votes in favour of the first defendant were removed or deducted from his total votes beyond the elimination stage and at a time a declaration was about to be made. And it may be that the Returning Officer Mr. Yomba who made that decision to remove or deduct these votes was entitled to do so pursuant to Section 153A of the Organic Law.
    
30. But the bottom line is that the second defendant has accepted the writ for the first defendant, and has forwarded it to the Head of State and it has been presented to the Speaker. Based on this writ, the first defendant has since been sworn into office. Whether there have been flaws, errors or breaches committed by the defendants in the process leading up to and including the presentation of the writ in favour of the first defendant to the Speaker of the Parliament under Section 175 (1) (b) remains to be determined.
    
31. For now it must be accepted that the electoral process as set out in Section 175 (1) (b) (supra) has been completed. And for that it is quite clear to me that the dispute is in fact a challenge to the election of the first defendant as member of the electorate concerned.
    
32. This must be done by way of an election petition under Section 206 of the Organic Law. In my view, this is the correct mode of proceeding to invoke the jurisdiction of the National Court to inquire into an election or return of a member.
    
33. The constitutional framework provides this safeguard for aggrieved candidates and as far as the enforcement of the plaintiff’s Section 50 right is concerned, it is not at all ignored or trivialised but in-tact, preserved and can be enforced by way of an election petition.
    
34. The defence submission must be upheld. The proceeding is an abuse of process and must be dismissed. The application for interim relief must follow suit. Costs shall be in the cause.
    

Ruling and orders accordingly.
________________________________________________________________
DMY Lawyers: Lawyers for Plaintiff
Kongri Lawyers: Lawyers for First Defendant
Kimbu & Associates Lawyers: Lawyers for Second, Third and Fourth Defendants