Pato v Kopyala [2017] PGNC 400; N7279 (28 July 2017)

N7279

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) 19 of 2017

BETWEEN:
RIMBINK PATO
Plaintiff

AND:
MAKU KOPYALA,
Returning Officer, Wapenamanda
Open Electorate
First Defendant

AND:
ANTON IMAU,
Election Manager, Enga Province
Second Defendant

AND:
PATILIAS GAMATO,
Electoral Commissioner of Papua New Guinea
Third Defendant

Waigani: Hartshorn J
2017: 28^th July

Application to set aside orders made after an inter partes hearing

Cases Cited:

Peter Makeng and Ors v. Timbers (PNG) Ltd and Ors (2008) N3317
National Council of Young Men’s Christian Association of PNG Inc. v. Firms Service Limited (2010) N4569

Counsel:

Mr. D. Mel, for the Plaintiff
Ms. A. Kimbu, for the Defendants

ORAL DECISION DELIVERED ON
28^th July, 2017

1. HARTSHORN J: This is a decision on a contested application to set aside inter parte interim orders that were initially granted ex parte.

2. Application is made pursuant to s. 155(4) Constitution, and Order 12 Rule 1 and Order 12 Rule 40(1) (b) and (c) National Court Rules.

Background

3. The plaintiff, a candidate for the Wapenamanda Open Electorate in the 2017 National Elections successfully made urgent application for injunctive relief pursuant to Order 4 Rule 49(5)(i) and Order 14 Rule 9(a) National Court Rules before the commencement of proceedings.

4. The relief granted was, in essence, for two ballot boxes to be removed from scrutiny and if they had been included and their contents counted, for those votes to be deducted from the progressive tally. The plaintiff has commenced the proceeding by originating summons.

5. The injunctive relief was sought as the Electoral Commissioner, by letter dated 18^th July 2017, had directed that the two subject boxes be removed from scrutiny because of overwhelming evidence that the two boxes and ballot papers for two subject polling places had been hijacked, but notwithstanding this directive, the directive had not been complied with by the Returning Officer and Electoral Commission staff in the electorate.

6. The relief granted was extended on 26^th July 2017 after an inter partes hearing. It is this relief that the defendants now seek to set aside.

This application

7. The plaintiff takes issue with the defendants’ reliance upon s. 155(4) Constitution and Order 12 Rule 1 National Court Rules. It is submitted that this section and rule do not provide the specific jurisdiction as is required.

8. As to s. 155(4) Constitution, it is trite law that it can only be relied upon in the absence of other law. Peter Makeng and Ors v. Timbers (PNG) Ltd and Ors (2008) N3317, amongst others. In this instance, the specific law that provides for a setting aside order is Order 12 Rule 8(4) National Court Rules. It is specifically applicable. As there is such a law, s. 155(4) Constitution may not be relied on.

9. In regard to Order 12 Rule 1 National Court Rules as counsel for the defendants submitted, it is a general provision. Order 4 Rule 49(8) National Court Rules provides that all motions must contain a precise reference to this court’s jurisdiction to grant the orders being sought. Order 12 Rule 1 is not a precise reference. Order 12 Rule 8(4) is the precise reference. I mention also that Order 12 Rule 40 (1)(b) and (c) are not rules applicable to a setting aside application.

10. In these circumstances, as the defendants are not able to rely upon the provisions that they have and have not properly engaged the jurisdiction of the court to grant the orders sought, this application to set aside should be dismissed.

11. If however, I consider the merits of the application, the law concerning whether to discharge or vary on interlocutory order was considered by Gabi J, in National Council of Young Men’s Christian Association of PNG Inc. v. Firms Service Limited (2010) N4569. In that case his Honour said that there are six considerations to be taken into account in deciding whether to discharge or vary an interim injunctive order. The six considerations are:

“First, has there been any change in circumstances since the previous orders were made, which render their continuation unnecessary or inappropriate? Second, what has been the relative conduct of the parties since the earlier orders were made? Third, are there previously undisclosed relevant facts, which have been discovered since the interim orders were made? Fourth, has it subsequently been discovered that the order was granted on an erroneous legal basis? Fifth, where (sic) the grounds relied on to support the setting aside or variation of the interim order argued before the Court when it granted the earlier order? Or did the party wanting to discharge or vary the earlier order have the opportunity to raise those grounds? Finally, was the court misled when it issued the ... order? If yes, was that attributable to the conduct of the party which sought the ... order?”

12. As to first consideration - whether there has been a change of circumstances? The defendants submit that there has been a change of circumstances. The Electoral Commissioner has now given a letter of direction of 26^th July 2017 which retracts his direction of 18^th July 2017.

13. The plaintiff also submits that there is a change in circumstances. These are that the exclusions of the subject ballot boxes has occurred, a winner of the Wapenamanda Open Electorate election has emerged and it would be almost impossible to reverse what has happened.

14. In regard to the second consideration - the conduct of the parties: the conduct of the plaintiff has not changed but the Electoral Commissioner has purportedly changed his position.

15. As to the third consideration - previously undisclosed facts: I am not satisfied that there are any, apart from the Electoral Commissioner’s letter of 27^th July 2017.

16. As the fourth consideration - whether the court made the orders sought to be set aside on the wrong basis: no submissions were made to this effect.

17. As to the fifth consideration: the grounds relied on now by the defendants were relied on before when the extension of interim orders was argued.

18. In regard to the sixth consideration - whether the court was misled: there is no evidence to this effect.

Consideration

19. As to the purported change of circumstance of the Electoral Commissioner – his letter of 26^th July - it retracts his direction of 18^th July. The Electoral Commissioner does not give any particulars as to why he has withdrawn his 18^th July direction. He merely states that he accepts the decisions of the Returning Officer and Election Manager.

20. In circumstances where the Electoral Commissioner has:

a) Previously directed the exclusion of two ballot boxes because of “overwhelming evidence” that ballot boxes and ballot papers had been hijacked and that no polling at the subject places took place;

b) Not rebutted the evidence of the plaintiff that the Electoral Commissioner advised the plaintiff that he would appreciate any court order that would enforce the lawful exercise of his authority to give his direction of 18^th July 2017;

c) Not rebutted evidence that the Returning Officer and Election Manger were both aware of the Electoral Commissioner’s direction of 18^th July before they decided to disobey his order;

21. The court is entitled to enquire why the Electoral Commissioner has fundamentally changed his direction and enquire as to what has happened to the “overwhelming evidence”. In the absence of particulars or a detailed explanation from the Electoral Commissioner on these matters, the Electoral Commissioner is open to the claim that the only reason he has withdrawn his direction was to assist in having the court set aside the subject orders and not that the reasons that existed for the 18^th July direction had changed, or that the “overwhelming evidence” had disappeared.
    
22. In such circumstances I am not satisfied that this court should set aside its orders, especially when the election process is almost, if not concluded.
    
23. I reiterate that a major reason for the orders that were granted to be continued was to protect the election process and its integrity. That process is not protected and its integrity is not enhanced by setting aside orders properly made, merely because of a directive that has the effect of a complete change, without particular reasons being given, from a direction which was made lawfully because of “overwhelming evidence”. What has happened to the “overwhelming evidence”? The plaintiff is entitled to have the interim relief based on the 18^th July direction that was issued primarily because of the overwhelming evidence, continued. This application to set aside is refused for the above reasons.
    

Orders

24. The formal Orders of the Court are:
    

a) The application of the defendants filed 27^th July 2017 is refused;

b) The matter is adjourned to 1.30pm 4^th August 2017 for a directions hearing;

c) Time is abridged.

Mel & Henry Lawyers: Lawyers for the Plaintiff
Kimbu & Associates: Lawyers for the Defendants