|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA 72 OF 2006
BETWEEN:
OSCAR POMALEU, ANDREW TRAWEN &
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Appellants
AND:
WILLIAM SKATE JR
First Respondent
AND:
D.S.R. KAKARAYA
Second Respondent
Waigani: Kapi CJ, Injia DCJ. Salika J.
2006: 19, 21 July
Parliament – By-Election – Extension of the polling schedule – The power of the Electoral Commission – Whether the National Court has any power to interfere during the process of an election – Organic Law on National and Local-level Government election ss 115, 116, 117, 177, 206 considered.
Organic Law on National and Local-level Government Elections, whether there is a legal obligation imposed on Returning Officer to disclose the total number of ballot papers printed for the by-election under s 118 (1) (c).
Cases cited:
Legislations cited:
Constitution:
Organic Law on National and Local-level Government Elections.
National Court Rules
Counsel:
John Nonggor, for the Appellants
J. Poro, for the First Respondent
D. Kakaraya, in person
21 July, 2006
1. BY THE COURT: This is an appeal against a decision of the National Court (Los J) dated 13 July 2006.
2. This appeal has been given an expedited hearing for two reasons. The first is that the subject of this appeal involves the by-election in the National Capital District Regional Seat and the writ is returnable on 27 July 2006. Time is therefore of the essence in reaching a quick resolution of the appeal to the Supreme Court before this date.
3. The second reason is that if a result is not reached by the time the writ is returned, the present by-election could be deemed a failed election under s 97 (b) of the Organic Law on National and Local-level Government Elections (Organic Law). If this happens, a new writ may not be issued pursuant to s 106 (a) of the Constitution and the people of NCD would have to wait for the National Elections in 2007.
Background
4. The background to this appeal is not in dispute and may be summarized as follows. The by-election in the NCD Regional Seat was necessitated by the untimely death of Sir William Skate early this year.
5. The by-election commenced as scheduled on Saturday 8 July and concluded on Sunday 9 July 2006.
6. On the morning of 8 July 2006, William Skate (Jr) (First Respondent) a candidate in the by-election filed an originating summons and claimed:
"1. A Declaration that the first defendant’s decision not to declare and or disclose the tally and or number of ballot papers to be used in the 2006 by-election in the National Capital District regional seat is null and void and is of no effect in that it is contrary to Section 36 of the Constitution.
3 An in the nature of MANDAMUS directing that the first defendant disclose to the plaintiff and or the voters of NCD regional seat election the exact number of the ballot papers to be used in the election prior to the polling."
7. The main ground of complaint in the summons related to failure by the Returning Officer, Oscar Pomaleu to disclose to the First Respondent and other voters the exact number of ballot papers printed for the by-election.
8. The First Respondent also filed a notice of motion on the same day seeking interim orders in the same terms as set out in paragraphs 1 – 3 in the originating summons.
9. The copies of the originating summons and the motion were not served on the Returning Officer, Oscar Pomaleu and Andrew Trawen, Chief Electoral Commissioner and the Electoral Commission (Appellants).
10. The motion came on for hearing before Los J on the morning of 8 July 2006. His Honour made the following ex-parte orders:
"1. The defendants are each and severally restrained from conducting the election of the NCD Regional candidate in the 2006 NCD By-elections until such time as they disclose to the voters, scrutineers and candidates the actual number of ballot papers to be used in the NCD by-election.
2 The Court directs that the first defendant disclose to the plaintiff within 24 hours the exact number of the ballot papers to be used by the presiding officers in the 197 polling booths in the NCD regional seat by-election.
3 This order is returnable on the 10th July 2006 at 9.30am."
11. The order was obtained at about 8.30am and was served on the Returning Officer at approximately 5.00 pm on 8 July 2006. Upon receiving the order, the Returning Officer intended to comply with the terms of the order the next morning.
12. On the morning of Sunday 9 July at 9 am, the Returning Officer went to the First Respondent’s residence to deliver the list of number of ballot papers issued for each polling station as ordered by the Court. However, the First Respondent was not present and he attempted to serve the list on a Ms Hane at the residence but she refused to accept the list.
13. Subsequently, the Returning Officer upon receiving legal advice, instructed Constable Orea Yaru who delivered the list by leaving it with the First Respondent’s uncle John Vala at his residence at about 12.00 noon on 9 July.
14. In anticipation of the fact that he would comply with the order on Sunday morning, the Returning Officer dispatched all polling teams to go and continue polling on Sunday 9 July by 8 am as scheduled. The polling took place and was concluded in the afternoon as scheduled.
15. When the matter returned before Los J on Monday 10 July 2006, the First Respondent filed an amended originating summons and claimed the following orders:
"1. A Declaration that the First Defendant’s decision not to declare and or disclose the tally and or number of ballot papers to be used in the 2006 by-election in the National Capital District Regional Seat is null and void and is of no effect in that it is contrary to Section 32, 50 and 51 of the Constitution.
4 An order in the nature of Mandamus directing that the First Defendant disclose to the Plaintiff and or the voters of NCD Regional Seat By-Election the exact number of ballot papers to be used in the By-Election prior to polling.
5 An Order that leave be granted to the Plaintiff to file a Statement in Support of this Originating Summons.
6 An Order that leave be granted to the Plaintiff to invoke Section 57 of the Constitution to enforce his constitutional rights under sections 39, 50 and 51 of the Constitution.
7 An Order that the Defendants each and severally, inform the Plaintiff and all other Candidates, their scrutineers and the voters of the number of ballot papers to be distributed to each and every polling places within the NCD Regional Seat Electorate prior to polling.
8 An Order that the Defendants ensure that all polling should be conducted and or conducted simultaneously at 9.00 am and end at 6.00 pm on all the days allocated for
9 Alternatively, if in the event that this application is refused, the Plaintiff claims an Order that the polling in the NCD Regional Seat By-election be extended for two more days to enable voters who have been caught by the effect of the orders of 8th July 2006 to exercise their right to vote."
16. By Monday 10 July, orders sought in the amended originating summons under paragraph 2 were already in place and the requested list of ballot papers sought under paragraph 4 and 7 had already being supplied to the First Respondent by Sunday 9 July.
17. The Court then directed the amended originating summons to be heard on 11 July 2006 at 9.30 am and made interim restraining orders against the Appellants from counting the ballot papers until further order of the Court.
18. The Court heard the amended originating summons on 11 July and the decision for further 2 days of polling was handed down on 13 July 2006. The Court subsequently directed the Appellants and the Respondents to agree on the polling stations. The Supreme Court stayed the National Court orders pending the determination of the appeal.
19. Three appeals have been lodged against the decision (SCA 71 of 2006, SCA 72 of 2006 and SCA 73 of 2006). It is not necessary for the present purposes to give the details of the other two appeals. Suffice it to point out that the three appeals raise the same grounds of appeal.
20. By agreement of the parties in the three appeals, only SCA 72 of 2006 was directed to proceed with Danny Kakaraya added as Second Respondent to this appeal. The parties in the other two appeals agreed to wait and will abide by the decision of the Court in this appeal.
21. The First Respondent’s case before the National Court was summarized in the written submissions by counsel:
"The main issues for the Court to consider are:
(1) (a) Whether or not the conduct by the Defendant in not disclosing the total number of ballot papers to be used in the National Capital District Regional Seat By-election to the public, the Candidates and their scrutineers amount to a breach of duty and or an infringement on the Constitutional Rights of the citizens including that of the Plaintiff.
(b) If so, what is the consequence of such breach of duty and or infringement of Constitutional Rights?
(2) Whether or not the information provided by the Defendants at 5.15pm on Sunday 9th July 2006, discharges the Defendants from the duty to provide this information prior to polling?
If it is not what is the consequence?
(3) Whether or not the issues raised in this proceeding can be properly brought after the Election process by way of an election Petition?"
22. Counsel for the First Respondent argued that the failure by the Returning Officer not to disclose the number of ballot papers was (a) not justifiable in a democratic society (b) is tantamount to the election not being genuine and free as required by s 50 of the Constitution (c) infringes a citizen’s right to freedom of information under s 51 of the Constitution and (d) a direct breach of s 118 of the Organic Law.
23. On the other hand, counsel for the Appellants in his outline of submissions in the National Court dated 11 July 2006, argued that the National Court had no power to (a) stop an election in mid-stream (b) to order that polling commences at a particular time and place (c) to extend the polling period and (d) to declare an election void midstream.
24. Alternatively, he submitted that the proceedings before the court were an abuse of the process of court. He submitted that this proceeding was neither an application to enforce a constitutional right under s 57 of the Constitution nor an application for judicial review under o 16 of the National Court Rules.
25. So far as the original complaint raised initially in the originating summons is concerned, the trial judge accepted the list of number of ballot papers served on the First Respondent on 9 July when he stated:
"There were 189 polling teams for 189 polling stations. A total of 127,600 ballot papers were printed for the total number of eligible voters registered on the roll. The point to note here is that 127,600 ballot papers were printed FOR THE TOTAL NUMBER OF ELIGIBLE VOTERS REGISTERED ON THE ROLL."
26. It appears from the trial judge’s judgment that the submissions by counsel for the Appellants were in the forefront of his mind in determining the amended originating summons when he stated:
"Different counsel made various submissions. This included Dr Nonggor. The theme of his submission is that neither the court nor anybody is empowered to ‘interfere’ with running of the election. In doing so various principles and cases referred to. The first one being the Electoral Commission & Others v Pila Ningi (2003) SC 710. That is there is no power in the National Court to issue an injunction to stop an election mid-stream or order that polling commence in a particular way or particular time; order that polling be extended for any period, declare an election void midstream. Two other cases were also cited on this point. They were Special Reference pursuant to Section 19 of the Constitution – Francis Damem SC 689 (2002), Thomas Negints v The Electoral Commission.
My immediate thought or reaction was that where would an aggrieved person go if the Commission is given upper hand. That is because mistake can be made because the conduct of an election is made by human being and despite rigid protective law, a determined person can deliberately side track. That is voting time area may be changed. One can go on and on."
27. His Honour then concluded:
"I am extremely conscious that the Court should not interfere with an election process and Dr Nonngor was openly challenging in his submission on this. I understand the reasons for his strong advocacy. But the evidence supporting the submission on behalf of the Plaintiff is also strong. Moreover the fact or evidence that there appeared to be a panic button pressed to get polling going even on Sunday contrary to section 130 (1) (b) of the Organic Law. Therefore I am further assisted with this evidence that not all legible voters had voted. I would therefore make an order limiting it to a maximum of two days extension of polling in the National Capital District Regional Seat By-election."
28. The Appellants have appealed against the decision on the following grounds:
"3. Grounds:-
(a) The trial judge erred in law in ordering that polling in the Natrional Capital District by-election be extended for two further days when the authority to decide polling schedule is vested only in the Electoral Commission.
(b) The trial judge erred in law in failing to hold that the National Court cannot interfere in the exercise of discretionary powers of the Electoral Commission and that he was bound by the Supreme Court’s decision in Electoral Commission & Others v Pila Ningi (2003) SC 710 and Special Reference Pursuant to Section 19 of the Constitution Reference by Francis Damem, Attorney-General of Papua New Guinea (2002) SC 689.
(c) The trial judge erred in law in failing to hold that the matters raised in the actions were appropriate to be raised in proceedings commenced under s 206 of the Organic Law on National and Local-level Government Elections by way of petition and not otherwise.
(d) The trial judge erred in law and fact in ordering polling to be conducted for two (2) further days when there was no finding of fact or law made to support this order.
(e) The trial judge erred in law and fact in holding that not all eligible voters voted in the National Capital District by-election when there was no evidence to support the finding that all eligible voters did not vote and further that only electors on a roll are entitled to vote and not all eligible voters.
(f) The trial judge erred in law and fact in ordering polling to be conducted for two (2) further days when:-
i. there was no evidence; or
ii. there was no finding of fact made; or
iii. it was against the weight of evidence
that voters had not voted due to time limitations.
(g) The trial judge erred in law and fact in ordering polling to be conducted for two (2) further days when there was no finding of fact or law made that there was a breach of any law to support such order.
(h) The trial judge erred in law in holding that polling on Sunday was contrary to Section 130 (1) (b) of the Organic Law on National and Local-level Government Elections when this was not pleaded as a ground in the pleadings.
(i) The trial judge erred in law in failing to hold that the proceedings were an abuse of process in that the pleadings did not show:-
(i) if they were to enforce a constitutional right or
(ii) they were judicial review proceedings under Order 16 of the National Court Rules."
29. The nine grounds of appeal have been summarized by counsel for the Appellants as raising 5 distinct but overlapping issues relating to:
Abuse of Process
30. It is convenient to deal first with the abuse of process issue raised under ground 3 (i). It is clear from the originating summons and the amended originating summons that the First Respondent was seeking an order in the nature of Mandamus.
31. The law is now well established in this jurisdiction that o 16 of the National Court Rules provide for an exclusive procedure for obtaining a prerogative writ and failure to obtain leave is an abuse of the process of the Court. In support of this proposition we refer to The Attorney-General Michael Gene, The Independent State of Papua New Guinea and Internal Revenue Commissioner, Mr David Sode v Dr Pirouz Hamidian-Rad (Unreported Judgment of the Supreme Court dated 27th August 1999, SC 630). The Court held:
"O 16 r 1 is expressed in mandatory terms: ‘An application for an order in the nature of...certiorari,,,shall be by way of judicial review in accordance with the provisions of the order’ (emphasis added). The implication is that this is the exclusive procedure. considered by the Supreme Court in Chan v Ombudsman Commission (Unreported Judgment of the Supreme Court SC 557 dated 5th June 1998). The Court held there that O 16 r 3 provides an exclusive procedure and therefore O 12 r 8 (3) is not applicable.
Injia J in Aiten Maniho v Luther Wenge & Chief Magistrate (Unreported Judgment of the National Court N1870 dated 2 July 1999 and Francis Kawage v Solicitor-General & The State (Unreported Judgment of the National Court N1875 dated 2nd July 1999) has reached the same conclusion that the procedure for a prerogative writ is exclusively set out under O 16 r 3 of the Rules."
32. In the present case, the Respondents sought an order in the nature of Mandamus, but they did not apply for leave under o 16 of the National Court Rules. Paragraph 3 of originating summons and paragraph 4 in the amended originating summons sought an order in the nature of mandamus. 34. Paragraph 4 in the originating summons and paragraph 5 in the amended originating summons applied for leave to be granted for the First Respondent to file a Statement of Claim and Statement in Support respectively. This could indicate an intention to apply for leave for judicial review under o 16 r 3 of the National Court Rules. However, this was not pursued and when the matter returned on 10 July, the Respondents sought substantive orders in the amended originating summons without leave of the Court. This is clearly an abuse of the process of the Court.
35. We could determine the result of the appeal on this ground alone. However, we will consider other important issues of law raised in this appeal.
Exercise of Discretion of the Electoral Commission
36. This issue is raised by grounds 3 (a) and (b). The National Court first intervened by restraining the Appellants from conducting the polling and secondly extended the polling by two (2) days. The question is, whether the National Court has any jurisdiction to exercise these powers?
37. The original order sought to restrain the polling was based solely on the fact that the Returning Officer refused to provide the list of exact number of ballot papers printed for the by-election. The question then arises, whether or not the conduct by the Returning Officer in not disclosing the total number of ballot papers to be used in the by-election was a breach of a legal obligation imposed by law?
38. The trial judge did not expressly deal with this issue in his judgment. He appears to have assumed that there was a legal obligation to disclose total number of ballot papers. Had he directed his mind to the issue, he might have come to the right conclusion.
39. Counsel for the Appellants submitted that there is no requirement under the law which imposes a duty on the Returning Officer to disclose the total number of ballot papers before polling is conducted.
40. Counsel for the First Respondent on the other hand submitted that under s 118 (1) (c) of the Organic Law, the Returning Officer has a legal obligation to disclose this information before polling is conducted. This section provides:
"118- Returning Officer to make arrangements.
(1) If, on the day of nomination, the proceedings stand adjourned to the commencement of the polling, the Returning Officer shall immediately make all necessary arrangements for taking the poll, and in particular shall –
- (a) appoint a presiding officer to preside at each polling place and all necessary assistant presiding officers, poll clerks, and door-keepers; and
- (b) provide and furnish proper polling ballot-boxes; and
- (c) provide ballot-papers and all necessary certified lists of voters."
41. We accept that under s 118 (1) (c), the Returning Officer is obliged to provide ballot papers in sufficient numbers to enable all registered voters to cast their vote. We do not accept the interpretation that this provision provides that the Returning Officer is obliged to disclose to candidates, voters or scrutineers the number of ballot papers before polling is conducted. These are two separate and distinct issues.
42. There is no suggestion in this case that there were no ballot papers or insufficient ballot papers were provided resulting in registered voters not been able to cast their votes. The evidence indicates from the list provided by the Returning Officer on Sunday that there were 127,600 eligible voters registered on the roll and the same number of ballot papers were provided.
43. We find that there was no legal basis on which the trial judge could have restrained the polling from proceeding. The trial judge ought to have dismissed the application at this point. We would allow the appeal on this ground.
44. The second issue which arises for consideration under this head is the jurisdiction of the National Court in extending the polling by two days.
45. The relevant provisions under the Organic Law are found under Part XIII, Division 1 and in particular s 113 to s 117 (inclusive) and s 177. These provisions were fully considered in The Electoral Commission, Kala Rawali, Abraham Wari and Timothy Tala v Pila Ningi (Unreported Judgment of the Supreme Court dated 20th June 2003 SC 710). That was a case in which the National Court restrained the scrutiny of votes and extended the polling to continue for one day in six polling places. At page 9 the Court concluded:
"It is clear from s 115 of the Organic Law that a Returning Officer subject to any direction by the Electoral Commission, has power to vary a polling schedule. In the present case, the Returning Officer has already exercised this discretion by rescheduling the polling to 8th May. The originating summons has not questioned this. If there was any further problem on the 8th May, the Returning Officer has power and could have further extended the polling schedule.
In addition, the Head of State on advice of the Electoral Commission under s 177 of the Organic Law may extend the polling period or for the return of the writ.
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"
46. The Court then quoted passages from the judgment of Woods J.
47. At page 11 the Court further held:
"This conclusion is consistent with the recent decision of the Supreme Court in Special Reference Purdsuant 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 and 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.
The Constitution and the Organic Law set out how and when elections shall be held, given time periods and the limits for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writs of election. These start with the prescription that National Election shall be held within 3 months of the anniversary of the 5th year of the current Parliament and return.
But the Constitution and the Organic Law also provide for the possibility of the failure of elections to be completed in time or at all. Consequently, power is given to the Head of State acting on advice of Electoral Commission to either allow further time for election or returns to be completed or to issue a writ for supplementary election to be concluded as soon as is practicable after it is determined that an election has failed.
The power to determine that an election has failed, and the exercise of the discretion to make such a determination lies solely with the Electoral Commission.’"
48. This authority was cited in the National Court and heavily relied upon by counsel for the Appellants. In fact the trial judge understood and acknowledged the strength of this submission in his judgment:
"Different counsel made various submissions. This included Dr Nonggor. The theme of his submission is that neither the court nor anybody is empowered to ‘interfere’ with running of the election. In doing so various principles and cases referred to. The first one being the Electoral Commission & Others v Pila Ningi (2003) SC 710. That is there is no power in the National Court to issue an injunction to stop an election mid-stream or order that polling commence in a particular way or particular time; order that polling be extended for any period, declare an election void midstream. Two other cases were also cited on this point. They were Special Reference pursuant to Section 19 of the Constitution – Francis Damem SC 689 (2002), Thomas Neggints v The Electoral Commission.
My immediate thought or reaction was that where would an aggrieved person go if the Commission is given upper hand. That is because mistake can be made because the conduct of an election is made by human being and despite rigid protective law, a determined person can deliberately side track. That is voting time area may be changed. One can go on and on. I am extremely conscious that the Court should not interfere with an election process and Dr Nongorr was openly challenging in his submission on this. I understand the reasons for his strong advocacy."
49. However, he concluded:
"But the evidence supporting the submission on behalf of the Plaintiff is also strong. Moreover the fact or evidence that there appeared to be a panic button pressed to get polling going even on Sunday contrary to section 130 (1) (b) of the Organic Law. Therefore I am further assisted with this evidence that not all legible voters had voted. I would therefore make an order limiting it to a maximum of two days extension of polling in the National Capital District Regional Seat By-election."
50. In reaching this conclusion, he fell into error for two reasons. First, he was bound to follow the decision of the Supreme Court in accordance with Schedule 2.9 (1) of the Constitution which provides:
"Sch 2.9 Subordination of courts.
(1) All decisions of law by the Supreme Court are binding on all other courts but not on itself"
51. Secondly, he did not provide a reason for departing from following the decision. The fact that there was strong evidence is no answer to the Constitutional direction that he was bound to follow the law as declared by the Supreme Court.
52. The facts in the present case are entirely identical in that in both cases, the National Court restrained the counting of votes and extended the polling beyond the polling schedule fixed by the Returning Officer. The principles enunciated by the Supreme Court in the Pila Ningi’s case are applicable to the present case.
53. Moreover, the discretion to extend a polling schedule is vested in the Electoral Commission under Part XIII Division 1 of the Organic Law. We have already dealt with this issue. We would allow the appeal on this ground.
The Power of the National Court to Intervene
54. This issue is raised by ground 3 (c). This ground involves the application of s 206 of the Organic Law. It is not necessary to set out this provision. It is the subject of numerous decisions of this Court.
55. Where validity of an election is questioned, the provision is clear that this may be disputed by petition addressed to the National Court and not otherwise. In The Electoral Commission, Kala Rawali, Abraham Wari and Timothy Tala v Pila Ningi (supra) the Court addressed this issue. After discussing Thomas Negints v The Electoral Commission (supra) and the Section 19 Reference by the Attorney-General (supra) the Court at page 12 stated:
"We consider that these two cases accurately set out the proper approach in law in respect of the jurisdiction of the National Court in election matters. In respect of polling schedules, the relevant provisions we have set out earlier gives the discretion to extend polling schedules to the Electoral Commission. These provisions do not give any jurisdiction to the National Court.
Section 4 and 206 of the Organic Law are relevant in considering the jurisdiction of the National Court"
56. The Court then set out these two provisions and at page 13 continued:
"Clearly, where a question of the validity of an election arises, the Organic Law gives the National Court power to determine this. Such a matter can come before the National Court by petition and not otherwise.
Section 215 of the Organic Law sets out the grounds which an election may be invalidated. It is not necessary for the present purposes to exhaustively list all the grounds. Under this provision, tampering of ballot boxes is an illegal practice and an election may be invalidated on this ground.
Where this is alleged, the appropriate way to invalidate such an election is by way of petition under s 206 of the Organic Law. That is what happened in Thomas Negints v The Electoral Commission (supra). In that case, Woods J made reference to an earlier case Malipu v The Electoral Commission [1987] PNGLR 128 (Kapi DCJ). That case also involved destruction of ballot boses before the counting of votes. Woods J in making reference to this case held:
‘In the Malipu Case referred to above on the facts it appeared that the damage may have already been so great, namely the numbers of votes destroyed but nevertheless the Judge in the case refused the application and said that the onus of providing that there had not been a free election had not been presented. But by saying that all the information so needed would be available after the counting of votes suggested therefore that that it is not till after the counting that you can present all the evidence required. and of course at that stage you are in the area of the Petition under s 206.’
As we have indicated before, this is the correct conclusion of law where legitimate grounds for invalidating an election are raised during the election process."
57. These passages were again cited to the trial judge and he did not follow the decision of the Supreme Court. As we have pointed out before, in not following the decision he fell into error contrary to schedule 2.9 (1) of the Constitution.
Counsel for the First Respondent sought to distinguish the present case by suggestion that here the First Respondent was not seeking to invalidate the election but simply seeking to have the Returning Officer disclose the number of ballot papers.
58. We cannot accept this submission in the face of Paragraphs 1 and 3 of the amended originating summons which claims:
"1. A Declaration that the First Defendant’s decision not to declare and or disclose the tally and or number of ballot papers to be used in the 2006 by-election in the National Capital District Regional seat is null and void and is of no effect in that it is contrary to section 39, 50 and 51 of the Constitution."
"3 A Declaration that the polling conducted on on the 8th and 9th July 2006 is null and void and of no effect in that it was not genuine and free election."
59. We would allow the appeal on this ground.
Lack of Factual Basis for Ordering Further Polling.
60. This issue is raised by grounds 3 (d) (e) (f) (g). The trial judge in his judgment devoted two sentences on findings of fact to support his conclusion for further polling days. He stated:
"But the evidence supporting the submission on behalf of the Plaintiff is also strong."
61. He further concluded after referring to s 130 (1) (b) of the Organic Law:
"Therefore I am further assisted with the evidence that not all legible voters had voted."
62. With respect, the trial judge does not refer to any evidence on which he made the assertions of fact. We agree with the submission of counsel for the Appellants that none of the affidavits filed on behalf of the Respondents provide any evidence that indicates that eligible voters registered on the roll did not vote or any other finding of fact which would form the basis for ordering further polling days.
63. The affidavit of Danny Kakaraya states that Polling Team 18 did not conduct polling at Horse Camp on 8th July. The affidavit does not indicate the reason for not conducting polling.
64. The affidavit further states that Polling Team 19 did not conduct polling at Air Niugini Village at 6 mile on 9 July. The affidavit does not explain the reason for not conducting polling.
65. If the failure to conduct polling is attributed to polling officials, this may be a ground for disputing the result of an election by petition under s 206 of the Organic Law after the election result is known. We would allow the appeal on these grounds.
Lack of Legal Basis For Ordering Further Polling
66. The main ground under this heading relates to the application of a 130 (1) (b) of the Organic Law. The issue of polling on a Sunday under this provision may give rise to issues of law or adequacy of the hours available for voting bearing in mind the hours of Sunday worship. Such issues could have been raised under s 116 of the Organic Law and as we have already concluded, these are matters for the Electoral Commission and not for the National Court. We do not consider that this provision arises for consideration before us.
67. In the result we allow the appeal, quash the decision of the National Court dated 13 July 2006. We further order that the Appellants proceed to scrutinized the votes in accordance with the Organic Law.
68. We further order that the First Respondent pays the Appellant’s costs of proceedings before the National Court and both Respondents pays the costs of the appeal in equal proportions.
69. The formal orders of the Court are:
__________________________________________
Nongorr & Associates: Lawyers for the Appellants
Poro Lawyers: Lawyers for the First Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2006/24.html