Kambanei v Sinai [2021] PGNC 114; N8883 (22 June 2021)

N8883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 120 OF 2021

BETWEEN
DR THADDEUS KAMBANEI & 7 OTHERS as named in the Appendix hereto
Plaintiffs

AND
SIMON SINAI, Acting Electoral Commissioner
First Defendant

AND
TERENCE HETINU, Moresby North-West By-Election Manager
Second Defendant

AND
DESMOND TIMIYASO, Moresby North-West By-Election Returning Officer
Third Defendant

Waigani: Makail, J
2021: 21^st & 22^nd June

ELECTIONS – By-election – Counting of votes – Appointment of counting centres – More than one counting centres at different locations in the electorate – Threats and intimidation of candidates’ scrutineers to access counting centres –Denial of free and fair election – Harsh and oppressive – Constitution – Section 41 – Organic Law on National and Local-level Governments Elections – Sections 148, 215 & 218

PRACTICE & PROCEDURE – Application for interim injunction – Order sought to retrain counting of votes – Allegations of illegal acts and errors or omissions by electoral officials – Serious question to be tried – Balance of convenience – Damages an adequate remedy – Overall interests of justice – Other recourse available by election petition – Organic Law on National and Local-level Government Elections – Sections 206, 207, 215, 218

Cases Cited:

Hon. Powes Parkop & Ors v. Hon. Peter O’Neill & Ors (2012) N4741

Counsel:
Mr. A. Jerewai, for Plaintiffs
No appearance, for Defendants

RULING

22^ndJune, 2021

1. MAKAIL, J: The Plaintiffs are candidates for the Moresby North-West By-Election which seat fell vacant after the passing of the sitting member and a By-Election was conducted.

2. The Plaintiffs apply for an ex parte order that:

“all counting/scrutiny of votes currently being conducted by the Defendants in relation to the By-Election for the vacant Parliamentary Seat for the Moresby North-West Open Electorate and being the subject of the proceeding herein, be suspended and paused in abeyance until further orders of the Court, or final determination of this proceeding”.

3. Their counsel Mr Jerewai has outlined the criteria for grant of interim injunction, these being a serious question to be tried, balance of convenience and damages would not be an adequate remedy. There is one more criterion and that is the overall interests of justice.

4. According to the various affidavits filed by the Plaintiffs, there are four counting centres for the primary counts located at different locations in the electorate, namely Hanuabada, Murray Barracks, Institute of Public Administration (IPA) and Sir John Guise Stadium. The primary counts were held at these counting centres and were completed. Ballot-papers were transported to Sir John Guise Stadium for quality checks and elimination counts which are currently underway and a result is imminent. Access by Plaintiffs’ scrutineers to Hanuabada counting centre has been denied by use of physical threats and intimidation and assault.

Serious question to be tried

5. The thrust of the Plaintiffs’ submission and complaint which they say raises a serious question to be tried is that the decision of the Third Defendant to appoint four different counting venues for an Open Electorate is unprecedented and consequently, the Plaintiffs and their scrutineers were deprived of attending all four counting venues to observe the primary counts.

6. One of the counting centres is located in the heartland of one of the candidates who is currently leading the counting. This is at Hanuabada. A scrutineer by the name of Brian Walters of one of the candidates and Plaintiffs was threaten and his motor vehicle was damaged when he tried to gain access to the counting centre at Hanuabada.

7. I agree with Mr Jerewai that based on the evidence presented, it is arguable that the decision by the Third Defendant to appoint more than one counting centre for primary counts to be conducted is unprecedented and contrary to Section 148 of the Organic Law on National and Local-level Governments Elections (“Organic Law on Elections”).

8. Consequently, the candidates and Plaintiffs were deprived of access to one of the counting centre to observe the scrutiny of the primary counts and decision was also harsh and oppressive within the meaning of Section 41 of the Constitution.

9. On the other hand, it may be argued that Section 148 is wide enough to confer power on the Third Defendant as the Returning Officer of the Open Electorate to appoint more than one counting centres for the primary counts. This is so by the use of the expression “places” in Section 148(1) which reads, “The scrutiny shall be conducted at such places, to be known as "counting centres", as are appointed by the Returning Officer for the purpose”. (Emphasis added).

10. I am satisfied that the Plaintiffs have established that there are serious issues to be tried.

Balance of convenience

11. The Plaintiffs’ success in establishing a serious question in relation to the propriety of the counting process does not necessarily mean that an interim injunction will be granted. The other significant criterion is whether they should benefit from an interim injunction without causing harm or prejudice to the interests of others.

12. There is on the other side of the spectrum the interest of the voters and people of the electorate. It must be weighed against the interests of the Plaintiffs. Would a halt to the counting, in particular where it is at the quality checks and elimination stage and where a declaration of the results and successful candidate is expected anytime from now benefit the voters and people of the electorate? I do not think so. Public interest would dictate that the counting process should be completed and the Third Defendant be allowed to declare the results.

13. In Hon. Powes Parkop & Ors v. Hon. Peter O’Neill & Ors (2012) N4741, the Court refused an application for interim injunction to stop the National Parliament to convene its first meeting and elect the Speaker and the Prime Minister because it was in the public interest for a new Government to be formed after the 2012 General-election.
14. It is a useful reminder that there are costs and logistics involved in the By-Election process and the Plaintiffs as Applicants seeking to stop the process from being completed bear the onus of proving that there will not be any prejudice to the Defendants in terms of additional costs and logistics if there is a delay to the completion of counting. They have not shown if there will not be additional costs and logistics that will be incurred by the Defendants in this respect.

Damages as an adequate remedy.

15. Mr Jerewai did not address this criterion in his submission. In any case, it is not necessary to address it.

Overall interests of justice

16. What is of relevance is the overall interests of justice. I consider that one of the factors to consider when deciding whether or not an interim injunction should be granted is whether the Plaintiffs have other recourse to have their grievance addressed.

17. In this case, the thrust of their complaint is in relation to how the counting of votes was conducted, in particular where the primary counts were being conducted, that is at four different locations. Consequently, they have been denied access and right to the scrutiny process, at least to one of them, being Hanuabada counting centre.

18. However, it is also a useful reminder that the counting process is one part of the entire By-Election process, the process itself includes and very briefly, issue of writ, nomination of candidates, campaign, polling, counting, declaration of results and successful candidate and return of writ.

19. Where there are allegations of illegal activities such as assaults, threats and intimidation of scrutineers of candidates at counting so as to deny them access to scrutiny of primary votes, irregularities and errors or omissions by supporters of candidates and electoral officials, they would fall within Section 215 (Voiding election for illegal practices) and Section 218 (Immaterial errors not to vitiate election) of the Organic Law on Elections.

20. And there is a process to follow to bring the allegations to the notice of the Court for determination. This process is clearly set out in the Organic Law on Elections. The method to adopt is by way of an election petition instituted in the National Court under Section 206 (Method of disputing returns) and Section 207 (Jurisdiction of National Court exercisable by single judge) of the Organic Law on Elections.

21. In his submissions, Mr. Jerewai appeared to acknowledge that an election petition is open to the Plaintiffs to invoke to ventilate their grievance but seemed concern that it will not be a quick answer to the immediate concerns of the Plaintiffs as counting is progressing to a conclusion and a declaration of a successful candidate is imminent.

22. The short answer to this concern is, if it was intended that an election process be interrupted midstream, Parliament would have stated so in the Organic Law on Elections. On the contrary, the Plaintiffs are not being deprived of their right to challenge the outcome of the By-Election. It is intact and the allegations they raise are matters that are appropriate for an election petition.

Conclusion

23 The Plaintiffs have not established that this is an appropriate case for the counting in the By-Election for the Moresby North-West Open Electorate should be halted.

24. The application for an ex parte interim injunction is dismissed. No order as to costs.

Ruling and orders accordingly.
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Jerewai Lawyers: Lawyers for Plaintiffs