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Lakari v Sinai [2023] PGNC 367; N10535 (20 October 2023)

N10535


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 274 OF 2023


BETWEEN:
MARTIN LAKARI
First Plaintiff


AND
TONY KAPILY
Second Plaintiff


AND
SIMON SINAI in his capacity as Electoral Commission of Papua New Guinea
First Defendant


AND
ANTON YAMAU in his capacity as Election Manager for Enga Province
Second Defendant


AND
GEORGE PUIO in his capacity as the Returning Officer for Lagaip Open Seat, Enga Province
Third Defendant


AND
KATATO GEOROS, His clansmen, tribesmen, associate, servant, agents and agents
Fourth Defendant


AND
MAILAS LUPIN, his clansmen, tribesmen, servants, agents and associates
Fifth Defendant


AND
TONY PIUTATI, his clansmen, tribesmen, servants, agents and associates
Sixth Defendants

Mt Hagen: Toliken J
2023: 20th October


PARLIAMENT – supplementary Election – variation of polling places – Whether National Court has jurisdiction to vary polling places – Organic Law on National and Local-Level Government Elections, ss 43, 114, 115.
Practice and Procedure - application to dismiss for non-disclosure of a reasonable cause of action or abuse of process – National Court Rules, Order 12 Rule 40.


Cases Cited:
Avia Aihi v The State [1981] PNGLR 81
Augerea v Bank South Pacific Limited (2007) SC869
The Electoral Commission & Ors v Niningi (2003) SC710
Saloma v Waigavara & Ors (2014) N5658
Lero v Staggs & Ors (2006) N3050
Negints v Electoral Commissioner (1992) N1072


Counsel:
Mr. M Elpis, for the Plaintiff
Ms. Kiage, for the First, Second & Third Defendants
No appearance by Fourth, Fifth and Sixth Defendants


JUDGMENT


20th October 2023


  1. TOLIKEN J: This is an application by the First, Second and Third Defendants (Defendants thereafter for the purpose of this motion) to dismiss the Plaintiffs’ Originating Summons for disclosing no reasonable cause of action for being frivolous, vexatious and for abuse of process pursuant to Order 12 Rule 40 (1)(a)(b)(c) of the National Court Rules (the Rules).
  2. The Plaintiffs had filed proceedings on 11th October 2023 seeking the following –
  3. On 13 October 2013, I granted interim orders to, among other things, restrain the First, Second and Third Defendants from moving and transporting election materials to the polling places in question. The orders also restrained them from transporting or moving such material to any other place except to Wabag Town. I further ordered that the proceedings be served on all defendants and made the orders returnable on 17th October 2023.
  4. On 17th October I heard the Notice of Motion filed on 16 October 2023 to dismiss the proceedings for not disclosing a reasonable cause of action, frivolity, vexatiousness, and abuse of process pursuant to Order 12 Rule 40 (1)(a)(b)(c) of the Rules. This was even though the rest of the Defendants were not served. I was of the view that the matter needed to be resolved quickly as polling for the Supplementary Elections for Lagaip Open was to commence on 21st October 2023. Mr. Elpis of counsel for the Plaintiffs slipped in an affidavit in the last minute during the hearing. Ms. Kiage did not have any serious objections but asked that she be given time to seek further instructions from her clients. The matter was then adjourned to 18th October 2023 for completion of arguments on the motion to dismiss.
  5. The grounds for dismissal of a proceeding or suit under Order 12 Rule 40 are stated in the alternative and therefore they must be sufficiently pleaded in the Notice of Motion as distinct grounds. They cannot be lumped together. (Lero v Staggs & Ors (2006) N3050; Augerea v Bank South Pacific Limited (2007) SC869) This is so because the consideration for each ground is different. For instance, the considerations for a challenge that the proceedings do not disclose a reasonable cause of action are not the same as those for frivolity or vexatiousness. Where a party alleges that a proceeding does not disclose a reasonable cause of action, he must show that the plaintiff has not pleaded all the necessary legal elements of his cause of action and the basic supporting facts (but not the evidence).
  6. The grounds relied upon here are lumped together but the Defendants appear to have premised their motion on non-disclosure of a reasonable cause of action and abuse of process. I will let the slip here pass as it is not fatal to the motion on the basis that it is indeed these grounds that the Defendants will argue as we shall see, and the Court and the Plaintiffs are not left to second guess neither are the Plaintiffs prejudiced in any way.
  7. The Defendants contended that the Plaintiffs have not shown that they have a reasonable cause of action. They particularly take issue with and argued that the Plaintiffs, who are essentially seeking a variation or change of the polling places named in the Originating summons and that these be moved to Wabag Town, rely on the wrong provision of the Organic Law on Provincial and Local Level Government Elections (the Organic Law) - Section 115 (2)(3) which deals with variations to a Polling Schedule and not polling places which is regulated by Section 43 of the Organic Law.
  8. They further argue that Organic Law in general does not give the National Court any powers over the conduct of elections by the Electoral Commission. The National Court’s only role in National Elections is over election petitions, a power specifically provided by PART XIII (DISPUTED ELECTIONS, RETURNS ETC.) Other than that, the Court has no power to intervene let alone give directions to the Electoral Commissioner on how to run the elections because the Commissioner is not subject to direction or control by any person or authority pursuant to Section 126 (6) of the Constitution.
  9. To support their arguments, the Defendants rely on pronouncements by the Supreme Court in The Electoral Commission & Ors v Niningi (2003) SC710 which approved what the National Court held in Negints v Electoral Commissioner (1992) N1072 on the National Courts powers or lack thereof to direct the Electoral Commission in the exercise of its exclusive powers. I will presently return to these.
  10. Similarly, the Plaintiffs’ reliance on Section 155(4) of the Constitution is also misconceived on the basis that the Plaintiffs’ primary rights to contest or vote in the Supplementary Elections are sufficiently provided for under the Organic Law. The proceedings ought therefore to be dismissed for not disclosing a reasonable cause of action and for abuse of process.
  11. Mr. Elpis submitted on behalf of the Plaintiffs that they are not seeking the abolishment of the polling places in question. Rather they have correctly invoked the Court’s jurisdiction. Section 115(2)(3) of the Organic Law, counsel submitted, allows for variation of polling schedules and places. A variation is necessary because the areas in which the polling places in question are located have been completely deserted after tribal conflict between the Plaintiffs’ tribesmen and their enemies during the failed election last year. Hence, to deny the relief sought by the Plaintiffs, is to deny their right to stand for public elective office and to vote for a representative to the National Parliament – rights that are guaranteed by Section 50 of the Constitution.
  12. Mr. Elpis argued that the Defendant’s Motion is misconceived and should be dismissed because the Plaintiffs are not seeking to abolish these polling places as provided for under Section 43 of the Organic Law but simply to vary them as allowed under Section 115(2)(3) of the Organic Law.
  13. Counsel finds support in the case of Saloma v Waigavara & Ors (2014) N5658 where his Honour Batari J held in the context of an election petition, among others, that the variation of a polling place within an electorate was not the same as abolishing the polling place.

There is, counsel submitted, an unforeseen contingency of emergency, which, justifies the Court’s intervention by directing a variation of the polling places. He also submitted that provisions in question not only covers variations to a polling schedule but to polling places as well.


  1. It should follow therefore that since the power to vary a polling place is clearly provided for under the Organic Law, there is a reasonable cause of action, and the proceedings are not an abuse of process.
  2. So, do the Plaintiffs have a reasonable cause of action, or are the substantive proceedings not an abuse of the Court’s process?
  3. For the Plaintiffs’ substantive proceeding to go forward they must not only be show that they have a reasonable cause of action but also that it is one that the Court has jurisdiction over. The proceedings will be dismissed if these requirements are not shown. And where, the Plaintiffs entreats the Court to exercise a power that it does not have, the proceeding will be similarly dismissed for abuse of process.
  4. The Plaintiffs submitted that the relief they seek is founded on Section 115(2)(3) of the Organic Law. Is that really so? Section 115 (2)(3) of the Organic Law is part of PART XIII – THE POLLING, Division 1 which deals with Polling Schedule. The provisos relevantly state –

115. ADHERENCE TO POLLING SCHEDULE

(1) ...

(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case the provisions of Section 114 shall, as far as practicable, be observed in relation to the variation.

(3) Subject to any directions given by the Returning Officer, a presiding officer, may where in his opinion it is necessary or desirable in order to meet an unforeseen contingency of emergency and it is impracticable for the Returning Officer the Polling Schedule under Subsection (2), depart from the polling schedule in relation to a polling place, and shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.


  1. Section 115, as does Division 1 of Part XIII, clearly deals with polling schedules. What is a polling schedule? It is a schedule prepared by the Returning Officer, subject to any direction from the Electoral Commission, “showing the anticipated dates and times, within the polling period for the electorate, during which the polling booths will be open at the polling places in the electorate, in such a manner as he considers that will give all electors in the electorate a reasonable and sufficient opportunity to vote at the election.” (Section 114 (1) of the Organic Law).
  2. Mr. Elpis’ submission that the provision also allows for the variation of a polling place or places is clearly misconceived. Counsel reads too much into the provision which unambiguously deals with a variation by a Returning Officer of a polling schedule only and not polling places.
  3. PART IV (POLLING PLACES) of the Organic Law provides for polling places. Section 43 provides –

43. POLLING PLACES.


(1) The Electoral Commission may, by notice published in the National Gazette or in “a newspaper circulating in the electorate –
(2) No polling place shall be abolished after the issue of the writ and before the time appointed for its return.
  1. Section 43 provides for the appointment and abolishment of polling places by the Commission. It does not provide for variation of polling places. According to Subsection (2), no polling places shall be abolished after the issue of writs and before the return of writs. The provision therefore contemplates that the Commission may change by abolishing polling places and appointing new places subject to the caveat provided therein.
  2. Nowhere in this provision or PART is power given to the National Court to intervene and direct the Commission to abolish lesser still vary a polling place. Those powers are in the exclusive domain of the Electoral Commission. The management and conduct of elections lie exclusively in the Electorate Commission. The Supreme Court in Electoral Commission & Ors v Niningi (supra) pointedly brought this out. That matter also arose out of a Supplementary Election but involved extension of the polling schedule by the National Court. The issue before the Court on appeal was whether the National Court has any power to intervene during the process of an election, and whether Section 155 (4) of the Constitution is applicable to extend polling schedules.
  3. In respect of whether the National Court has power to intervene and extend the polling schedule the Supreme Court held that the relevant provisions of the Organic Law do not give the National Court jurisdiction. It said –

Where power is expressly given to the Electoral Commission and its officials, the courts should not interfere in the election process. This point was considered by Woods J in Thomas Negints v The Electoral Commission (Unreported Judgment of the National Court dated 24th June 1992, N1072). In an originating summons, a candidate sought fresh polling in certain villages. The application to the Court was based on the alleged destruction of ballot boxes before they could be counted. The Court held at page 2:

"The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commission with fairly wide powers and discretion 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.

The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make orders as are deemed necessary see s 155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner. He must realize that if something goes wrong during an election there may be grounds for the voiding of the election afterwards and that may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards...."


At page 3 Woods J concluded:


"I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Law and by the procedure to challenge an election in s 206."


This conclusion is consistent with the recent decision of the Supreme Court in Special Reference Pursuant to Section 19; Reference by Attorney-General for the Independent State of Papua New Guinea (Unreported and Unnumbered Judgment of the Supreme Court dated 26th July 2002) in which the Court (Amet CJ, Kapi DCJ, Sheehan J, Sakora J, Sevua J) considered the powers of the Electoral Commission under s 97 of the Organic Law. Several questions were referred for consideration by the Court including the questions relating to the extent of the power and the circumstances under which the Head of State on advice may exercise the discretion under s 97. At page 8 the Court held:


"The authority to organize and conduct elections is given to the Electoral Commission. The National Court is given jurisdiction to enquire into and determine the validity of such elections.


  1. In respect of the applicability of Section 155(4) of the Constitution, the Supreme Court there reiterated with approval Wood J’s pronouncement that while the National Court does have wide powers to make orders as it deems necessary under Section 155 (4) of the Constitution, the Electoral Commissioner has wide powers to deal with problems associated with the conduct of elections, and further that the Constitutional right to vote and stand for public elective office is adequately protected by the discretion vested in the Electoral Commissioner in the Organic Law and by the procedure to challenge an election. And to that end the Court said –

We adopt this reasoning process so far as the Constitutional right under s 50 and the discretion given to the Electoral Commission to deal with polling schedules are concerned. The s 50 rights are adequately protected by the discretion given to the Electoral Commission. The Respondent could have applied to the Electoral Commission to extend the polling schedule under s 115 or to the Head of State on advice under s 177 of the Organic Law.

If s 155 (4) has any application, it may be applicable to a review of the exercise of discretion by the Electoral Commission under the Organic Law. This is not such an application. We do not suggest that this may be done in a case where the Electoral Commission has exercised discretion in respect of polling schedules. The point we make is that this provision does not give the National Court power to extend polling schedules. This is a general power to do justice within the context of inherent powers of the National and the Supreme Courts in making orders in the nature of prerogative writs.

  1. There can therefore be no doubt that the National Court cannot intervene in the conduct of an election by the Electoral Commission, be it on the question of varying a polling schedule or the appointment or abolishment of polling places. In other words, the National Court has no supervisory role over the management, organisation and conduct of elections. The only role the National Court has is when it sits as a Court of Disputed Returns.
  2. Section 155 (4) of the Constitution cannot also be used to clothe the National Court with jurisdiction even if, as the Plaintiffs argue here, it is do justice. “Justice” in this provision means “justice according to law.” (Per Kapi J (as he then was) in Avia Aihi v The State [1981] PNGLR 81).
  3. The case of Saloma v Waigavara (supra) where his Honour Batari J held that the term “variation” is not the same as “abolition” of a polling place cannot assist the Plaintiffs because what his Honour said there was in the context of an election petition. Here I am being asked to intervene in the conduct of the Supplementary Elections for Lagaip Open, which, as we have seen, I cannot do.
  4. Issues such as those that are the subject of these proceedings, important as they are, must be brought directly to the attention of the Electoral Commissioner who has the overall superintendence over elections.
  5. The elections for the Lagaip Open Electorate failed in the 2022 elections. From the supporting affidavits by the plaintiffs, it can clearly be seen that they had some real issues in the electorate. There was fighting and whole communities including those of the Plaintiffs were displaced and have not returned but are dispersed around the Highlands provinces.
  6. But from the time the elections were declared failed up until the issue of Writs for the Supplementary Elections, there had been ample time for the Plaintiffs to consult the Electoral Commissioner to either abolish the polling places the subject of these proceeding and/or appoint new polling places to enable these people to take part in choosing their representative in the National Parliament. The Plaintiffs did not do that but instead belatedly ran to the Court for orders to change polling places which as we have seen it has no power to do.
  7. Finally, if there are current and existing security issues which might prevent the Plaintiffs and others from freely exercising their Constitutional rights to vote, these must have been brought to the Electoral Commissioner’s attention so he can take corrective measures, together with other executive branch institutions such as the police. While it cannot be denied that the 2022 election for this electorate failed because of uncontrolled violence, destruction of properties and hijacking of ballot boxes, the Plaintiffs have failed to show by appropriate evidence, such as a report from the Enga Provincial Police hierarchy, for instance, that there is a likelihood of a repeat of such in this Supplementary Election. I do not believe that these are insurmountable obstacles which the Commission and police cannot control.
  8. For all the above reasons, these proceedings are therefore dismissed for disclosing no reasonable cause of action and for abuse of process.
  9. The parties are to meet their own costs.

________________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiffs
Jema Lawyers: Lawyers for the First, Second & Third Defendants

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