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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
IN THE MATTER OF
SCR (EP) NO 33 OF 2023
BETWEEN:
PATRICK BASA
Applicant
AND:
HARING QUOREKA
First Respondent
AND:
ELECTORAL COMMISSION
Second Respondent
AND
SCR (EP) NO 34 OF 2023
BETWEEN
ELECTORAL COMMISSION
Applicant
AND:
HARING QUOREKA
First Respondent
AND:
PATRICK BASA
Second Respondent
Waigani: Kangwia J, Narokobi J & Carey J
2024: 30th July & 24th September
ELECTION PETITIONS - Application for Review- Review decision which held s 175 (1A) as subject to s 168 Organic Law – Review decision which held Electoral Commission erred when it declared Applicant as duly elected under special circumstances pursuant to s 175 (1A) (b) OL - Review grant of relief not pleaded in the petition.
Cases Cited:
Papua New Guinean Cases
Amet v Yama (2020) SC1064
Ganzik v Iguan (2023) N10122
Powi v Kaku (2019) SC2290
Powi v Kaku (2019) SC1856
Mune v Poto [1997] PNGLR 356
Kobol v Powi (2018) SC2018
Eoe v Maipakai (2013) N5066
Special Reference by Ombudsman Commission [2019] SC1814
Special Reference by Francis Damen [2002] SC689
Michael Ayakamp v Guringing B [1981] PNGLR 532
Overseas Cases
C&J Clarke Ltd v Inland Revenue Commissions [1973] 2 All E.R 513
Counsel:
A. Baniyamai, J. Simbala & W. Pep, for the Applicants
J. Alu, for the Respondent
24th September 2024
1. KANGWIA J: Patrick Basa in SCR (EP) 33 of 2022 and the Electoral Commission in SCR (EP) 34 of 2022 (applicants) seek to set aside the decision by the Court of Disputed Returns which declared Patrick Basa as not duly elected with further orders that a by election be conducted for Kabwum Open Electorate (KOE). As the two applications are interrelated, they have been heard together with the agreement of the parties.
2. The facts not in serious contention are that the Patrick Basa and the First Respondent were among 14 candidates who contested the KOE during the 2022 National elections. Counting of first preference votes commenced on 15 July 2022 and by 16 July 2022 14 ballot boxed had been counted before suspending the counting.
3. On 17 July 2022, counting could not continue when disgruntled supporters of candidates stormed the District Office and destroyed all the 29 ballot boxes containing counted and uncounted ballot papers. At that time Patrick Basa was leading with 5,498 votes while the Respondent was on 1,046 votes.
4. Thereafter the EC declared Patrick Basa as duly elected under special circumstances pursuant to s 175 1A (b) of the Organic Law on Local and National Government Elections (OL). Aggrieved with the declaration by the EC the Respondent disputed the declaration in the Court of Disputed Elections. The Court of Disputed Returns upheld grounds 1 and 5 of the petition and made the following declarations:
These are the decisions the subject of the application for review.
5. In support of their respective applications the EC and Patrick Basa in unison challenge the two grounds of the petition from which the Court orders were made. The two grounds state:
6. In addition to the two grounds, the applicants also in unison argue that the trial judge erred when he granted a relief that was not pleaded when the pleaded relief sought to declare null and void the declaration by the EC which relief was not provided under s 212 of the OL
7. On their behalf Mr Simbala and ably supported by Mr. Baniyamai after abandoning grounds 5.1 and 5.14 to 5.26 of the review submit that the Trial Judge erred in fact and law:
-when he upheld ground 1 by holding that the exercise of power by the EC to declare under special circumstances under s 175 )1A) of the OL is subject to completion of scrutiny under s 168 (1).
-when he held that the Returning Officer (RO) and EC failed to complete and determine the result of the election through the scrutiny process prior to making the declaration contrary to s 168 (1) of the Organic Law.
-when he held that the EC improperly exercised his power under s 175 (1A) (b) of the Organic Law to declare the applicant as member elect under special circumstances without clarifying or particularising how the EC had erred in making such a declaration
-in not dismissing the petition for not pleading facts around the exercise of powers under s 175 (1A) of the Organic Law when the provision empowers the EC to declare results under special circumstances.
-when he failed to consider whether there was sufficient pleadings of facts or sufficient evidence relating to the exercise of powers to declare someone based on special circumstances under s 175 (1A) of the OL when the declaration was no ordinary declaration but a special one.
-when he failed to find or hold that the power to make a declaration under special circumstances pursuant to s 175 (1A) was an exclusive power and not subject to s 168 and other provisions of the OL.
- when he failed to find that the declaration under s 175 (1A) can be applied at any stage of the scrutiny process so long as the special circumstances are present and is not subject to be ascertained following the scrutiny process.
8. They rely on the cases of Amet v Yama (2020) SC1064; Ganzik v Iguan (2023) N10122; Powi v Kaku (2019) SC2290 and Powi v Kaku (2019) SC1856 as supporting their contentions.
9. In support of the additional ground, it is submitted that despite forceful arguments the learned trial Judge erred:
-when he failed to dismiss the petition for not pleading the proper relief pursuant to s 208 (b) and 212 (1) of the OL when the petition sought to declare the EC’s declaration of results on 8 August 2022 as being null and void which was a relief not available under s 212 (1) of the OL.
- when he relied on s 217 of the OL to order a by election when the ambit of power a Court has is restricted by s 212 (3) of the OL when the relief sought by the petitioner to void the declaration by the EC under s 175 (1A) would only result in a recount of votes and not a by election as ordered, a relief not pleaded.
10. They rely on the cases of Mune v Poto [1997] PNGLR 356; Kobol v Powi (2018) SC 2018; Powi v Kaku (2019) SC2290 and Eoe v Maipakai (2013) N506 as authority for the ambit of powers given the Court by s 212 of the OL in election petitions.
11. The Respondent argues the contrary under grounds 1 and 5 and submits that the trial judge did not err when it held that s 168 was not complied with and the declaration under special circumstances pursuant to s 175 (1A) (b) was made in error. The contrary argument on the additional ground is that the trial judge did not err when it granted the relief in the exercise of discretion pursuant to s 212 of the OL.
12. In support of the contentions to grounds 5.1 of the review Mr. Alu submits that the trial judge did not err when the prevailing circumstances pleaded in the petition did not necessarily require the petitioner to plead and set out material factors that would amount to special circumstances. The circumstances surrounding KOE election petition was not a special circumstance but a failed election and was correctly pleaded as such which the trial judge properly granted.
13. In support of the contentions in ground 5.2 of the review it is submitted that ground 1 of the election petition was straightforward. The scrutiny process under s 168 (1) of the OL was not completed to achieve a result when 15 boxes containing first preference votes and the remaining uncounted 14 boxes were all burnt or destroyed.
14. In support of the contentions in ground 5.3 of the review it is argued that the powers of the EC under s 175 (1A) of the OL
is not special and excusive. It is subject to other provisions of the OL such as s 217 (Real Justice to be observed). To say that
the EC has special and exclusive powers and is not subject to any other provision of the OL is dangerous as the EC would potentially
abuse and misuse the powers under s 175 (1A) and provide a powerful tool for the EC to hijack the democratic process of electing
a leader.
15. In support of the contentions in ground 5.4 of the review it is submitted that his Honour was correct when he viewed s. 175
(1A) as an enquiry or due diligence provision.
16. On the allegation that the decision of the trial judge was contrary to the cases of Powi v Kaku [2019) SC2290 and Special Reference by Ombudsman Commission [2019] SC1814 and Special Reference by Francis Damen [2002] SC689 it is submitted that the trial judge while acknowledging those cases stated that the Supreme Court was not asked to give an opinion on s 175 (1A) and this petition presented a rare opportunity for the Court to consider s 175 especially (1A). Therefore, this Supreme Court must now confirm the trial judge’s views on what situations or circumstances the EC must enquire on under s 175(1A) of the OL.
17. On the allegation that the trial judge failed to make specific findings on the evidence and undisputed facts as presented on whether the situation did constitute a special circumstance warranting the EC to make a declaration it is submitted that the trial judge did not fall into any identifiable error when he took the liberal approach. KOE was a special case where all the ballot papers were destroyed, no counting completed, no legitimate results available and the declaration was made.
18. From what is before this Court it is obvious that the grounds for review relate only to grounds 1 and 5 of the election petition which the trial judge stated as worth considering and from which he made determinations.
19. Ground 1 and 5 of the petition related to the application of s 165, 175 (1A) (b) of the OL. The additional ground raised by the applicants relates to the application of s 212 of the OL.
20. It invites proper interpretation of s 168, 175 (1A) and s 212 of the OL as to whether the correct interpretation is the one given by the trial judge or what is proposed in contention by the applicants.
21. It is therefore necessary to first reproduce the provisions, and they state as follows.
(1) Subject to this section and the Regulations, the result of an election shall be determined by scrutiny in the following manner:–
(a) the Returning Officer shall ascertain the total number of first preference votes given for each candidate;
(b) the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, is elected;
(c) if no candidate has received an absolute majority of votes, a second count shall be held;
(d) on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the order of the voter’s preference;
(e) where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter’s preference shall be repeated until one candidate has received an absolute majority of votes;
(f) the candidate who has received an absolute majority if the votes is elected;
(g) if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary;
(h) if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;
(i) if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary;
(j) if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.
(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.
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things–
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect to pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
(The parts in bold to become relevant later in the decision)
When the provisions are read and understood in their proper context, they are in my view consistent with how the trial judge explained in his decision as opposed to the explanations given by the applicants.
22. The foremost observation is that none of the sections referred to is subject to another. Second, all the sections are not single standalone provisions. They all have subsections under them where s 168 has 1, s 175 having 2 and s 212 having 4 subsections.
23. It is also apparent that s168 and s 175, start with the phrase “subject to this provision”. The phrase when read in its proper context becomes the lead or master sentence for the respective subsections. It is therefore instructive to first ascertain the meaning and purpose for starting the lead sentence with the phrase “subject to this provision”, for without a meaning or purpose, the phrase would not have been positioned as the starting phrase of the respective provisions.
24. In the case of Michael Ayakamp v Guringing B (1981) PNGLR 532 in an appeal against conviction and sentence for playing cards for money under the Summary Offences Act, Kapi J as he then was, was faced with two separate legislations where one provision in one legislation was “subject to” another legislation. The learned Judge adopted the meaning given to the words “subject to” in the overseas case of C&J Clarke Ltd v Inland Revenue Commissions [1973] 2 All E.R 513. In that case the Court said:
“In my judgement, the phrase “subject to “is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing. If there is a collision the phrase shows what is to prevail. The phrase provides no warranty of universal collision”.
25. While adopting the meaning given to “subject to” in C&C Clarke his honour Kapi J in the case before him held that, “the words “subject to” in s 49 are simple words which merely subject provisions of the subject part to the provisions of the master legislation. Where there is no clash, the phrase does nothing. If there is a clash the provisions of the master legislation prevail”.
26. The meaning given to the phrase “subject to” in the Michael Ayakamb case does not apply in the present case when viewed in the context of s 168 and s175 of the OL because the cited case referred to two separate legislations unlike s168 and s175 which are provisions in the one legislation.
27. However, the phrase “subject to” in the cited cases provide the best guide as to how s 186 and s 175 can be read to give it proper effect. To properly read and give effect to the two sections one must first appreciate that “subject to” is in the lead or master sentence of the two provisions. As can also be appreciated, the phrase does not appear in any of the subsections under them.
28. When the phrase “subject to” is positioned to be read and understood in the context of the master sentence of s 168 and 175, the phrase simply subjects all subsections under the two provisions to the requirement set out in the master sentence to be first complied before the subsections can become effective. The phrase merely guides and controls the subsections under them to give their proper effect.
29. By subjecting all subsections under them to the first requirement to be complied with, the phrase “subject to this provision” renders the subsections under the two sections incapable of operating as standalone subsections.
30. Where a conflict arises with any of the subsections the requirement in the master sentence prevails because of the subjecting
power it possesses.
Section 168
31. In respect of s 168 the master sentence states, “Subject to this provision and the Regulations the result of an election shall be determined by scrutiny in the following manner”: The master sentence in mandatory terms prescribes that the result of an election shall be determined by scrutiny. Thereafter the subsections under it prescribes also in mandatory terms, an exhaustive scrutiny process to determine the result.
32. The scrutiny process begins with the RO ascertaining the total number of first preference of votes for each candidate. After ascertaining the first preference votes, if the candidate who receives the highest number of votes reaches the absolute majority, that candidate is deemed elected, and a declaration can be made therefrom.
33. The second process of the scrutiny starts when no candidate has reached the absolute majority of votes. In the process of the second count the candidate who has received the fewest number of preference votes is excluded from the list of candidates. The exclusion process continues until a candidate reaches the absolute majority is declared. If the absolute majority is not reached by any candidate, the exclusion process continues until the final count. In the final count from the remaining two candidates the one who ether reaches the absolute majority or has received the highest number of votes without reaching the majority of votes is declared elected
34. By the mandatory nature of s 168 of the OL and in the absence of any other process that can be employed, s 168 remains the sole process to be employed for ascertaining a result in compliance with s147 of the OL which also in mandatory terms prescribes that a result shall be ascertained by scrutiny in the following manner.
The result of the polling shall be ascertained by scrutiny.
35. When a result is properly ascertained following the process prescribed by s 168 the ascertained result then becomes the basis
upon which the RO and or the EC can exercise the powers given them by s 175 to make a valid declaration. By the mandatory nature
of determining the result first, there can never be a valid declaration, not even under special circumstances without first giving
proper effect to the mandatory requirements of s168.
36. The RO and or the EC who are authorised by s 175 of the OL to make declarations cannot simply ignore, avoid or circumvent
the mandatory scrutiny process under s 168 for any other reasons like destruction to ballot papers to prop up a declaration. It
is only through the properly ascertained result under s 168 that confers power on the RO or EC to make declarations.
Section 175
37. In respect of s 175 the master sentence commences with, “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”
38. Under this provision the primary power to make a declaration is vested in the RO or the EC in the alternative. The reason is that it is the RO who does the counting and tallying of results and not the EC. The EC becomes relevant only after he has directed the RO not to make a declaration pursuant to s 175 (1A). The EC can then make a deliberate declaration in special circumstances.
39. On the competing arguments of counsel as to whether s 175 (1A) (b) is a standalone provision, I am of the considered view that ss (1A) (b) cannot function as a standalone provision to be exercised at will by the EC. There are two main reasons for arriving at that conclusion.
40. Firstly, all main sections of the OL are numbered in chronological order and given a title and s 175 is a part of that order with the title Return of Writs. ss (1A) (b) does not fall into the chronological order nor does it have a title on its own. It is positioned in the middle of two subsections under s 175. In my view the positioning of ss (1A) (b) in the middle of two subsection in s 175 effectively makes it to be read and given effect as a subsection of s 175 and not a standalone provision.
41. Secondly, the master sentence in s 175 does not make any of the subsections under it an exception. If the legislator had intended for ss (1A) (b) or any of the subsections under s 175 to be given effect as a standalone provision, then an exception clause like “except for” or “with the exception of” would have been inserted in the master sentence.
42. When the master sentence is void of an exception clause and or a separate title given to ss (1A) (b), by the mandatory nature of s 175, it is against the intent of the legislation to pluck out ss (1A) (b) and read it or give it effect as a standalone provision.
43. Without the result being first ascertained, the RO or the EC cannot make any declaration under any of the subsections under s175 because such declaration would conflict with the prerequisite requirement under the master sentence which subjects all subsections under it to the result being first ascertained.
44. In the present case there was no evidence that the scrutiny of votes as required by s 168 was properly conducted by the RO or the EC which is the mandatory prerequisite to the exercise of the discretion to declare the result under special circumstances pursuant to s 175 (A1) (b). The information provided to the EC was that Patrick Basa was the leading candidate while the other candidates were trailing behind when all ballot papers were destroyed.
45. While appreciating that there could never be a proper scrutiny of the votes for KOE after everything was destroyed the reason advanced by the EC that it relied on two joint situation reports to treat the destruction of the ballot papers as a special circumstance to make the declaration of the leading candidate cannot cure the failure by the EC to comply with the mandatory requirements of s 168. To declare a leading candidate in the primary count as duly elected is a clear violation of the mandatory prerequisite condition imposed by s 168 to first ascertain the result.
46. The only conclusion therefrom is that the trial judge did not err when he ruled that the RO and the EC failed to first satisfy the requirement under s 168 of the Organic Law before the EC exercised its discretion to declare the result under special circumstances pursuant to s 175 (1A) (b) of the OL. This ruling is also consistent with the grounds pleaded in the election petition and supported by evidence.
Special circumstances
47. The question that begs an answer is what is constituted of a special circumstance from which the EC can make a declaration under s 175 (1A) (b) of the OL?
48. The Court has not been properly led on the question of where s 175 (1A) (b) fits into the equation of an election other than the forceful arguments on the discretionary powers of the EC.
49. The answer to this nagging question in my view has been correctly answered by the learned trial judge in his decision the subject of the appeal and needs no reproduction.
Examples given in the decision accord well with what I opine as constituted of special circumstances. I have this to add to his honour’s views.
50. There is no interpretation of what is constituted of special circumstance under the OL. It is also undisputed that s 175 (1A) (b) which provides for special circumstances confers discretion on the EC to make a declaration in special circumstances. This proposition is supported by numerous case law cited in submissions of counsel. Despite that proposition, it is in my view a misconception to strenuously argue that it is a standalone provision to be applied at will by the EC to make a declaration in special circumstances.
51. When s 175 (1A) (b) is read in the context of an election, I have no hesitation to propose that the more compelling view is that this provision could operate effectively under the first past the post election system that existed prior to the introduction of the preferential election system of voting currently being applied.
52. In the first past the post system the scrutiny requirements of s 168 was not in force. In that system the EC could make a declaration only from the primary count. In the primary count, where a candidate reached the absolute majority in the first preference of votes the EC could exercise his discretion to declare that person without completing the counting. Where no candidate scored the absolute majority at the final count of the primary count then the EC could exercise his discretion to declare the leading candidate as the winner.
53. To understand the issue of special circumstances better in the context of the of the preferential election system it is prudent as earlier stated, to first understand that ss (1A) (b) being a subsection of s 175 is subject to the master sentence of s 175 like all other subsections under s 175 to avoid any conflict. When ss (1A) (b) is understood in the context referred to there can never be a declaration under special circumstances without the result being first ascertained.
54. It is also apparent from a reading of s 175 (1A) (b), that the declaration under that provision is in my view a deliberate decision. I say deliberate decision because the primary basis upon which the EC can make a declaration under special circumstances is narrowed down to information concerning scrutiny and other information provided by the RO or ARO. The provision confines the EC to scrutiny and other related information from venturing out to ascertain all and sundry as special circumstances.
55. When the provision narrows down the basis upon which the EC can make a declaration then the EC is entitled to make a declaration only after the RO is directed not to make a declaration. After the direction is given, it then becomes the business of the EC to decide whether to withdraw the direction given the RO or make the declaration in special circumstances in its deliberate decision.
56. This reading of the provision is consistent with the enquiry provisions expressed by the trial judge which in effect is reflective of disputes and objections raised at counting centres requiring determinations by the EC.
57. Be that as it may, the overriding factor facing the EC with the information provided by the RO or ARO is that the EC is constrained by the necessity to ensure, that the result of the election has been first ascertained through the threshold process prescribed by s 168 before he can exercise his discretion to make a declaration in special circumstances. That is simply because the master sentence of s175 in mandatory terms subjects all subsections under it which includes ss (1A) (b) to become effective only after the result of an election has been ascertained. Not before or in the middle of a counting.
58. Because of the constraint placed on the EC by the scrutiny requirement of s 168 it leaves the EC no option but to first ensure that the result has been properly ascertained before proceeding to consider the information provided by the RO or ARO to form the basis upon which a declaration can be made in special circumstances.
59. Where the EC decides from the information provided that the ascertained result is unlikely to be affected by the information provided the EC can make the declaration or withdraw the direction given to the RO in which case the RO is at liberty to make the declaration.
60. If on the other hand the EC considers from the information provided, that the result is likely to be affected, the EC can make what I termed the deliberate declaration under special circumstances.
61. To assert that the EC has unfettered discretion under s 175 (1A) (b) to treat destruction of ballot papers or other civil unrest as special circumstance to make a declaration is against the grain, intent and in breach of the mandatory requirements of s 168 to first ascertain the result.
62. It also makes common sense when the OL recognises the EC only as the facilitator of elections and not as voter who gives the mandate.
63. The underlying consideration in a preferential system of voting which the EC is privy is that there can never be a declaration without the result being first ascertained according to the guidelines prescribed under s 168.
64. Where no result is ascertained according to s 168 there can never be a valid declaration under what the EC deems are special circumstances pursuant to ss (1A) (b) even in the exercise of the unfettered discretion. Special circumstance rides on the back of the result being first ascertained.
65. The trial judge made no error in his ruling on the issue of special circumstance when he ruled that it was an inquiry provision.
Relief not pleaded
66. The additional ground relied on by the applicants pursuant to s 212 of the OL needs no further consideration as that provision speaks for itself.
67. The provision in mandatory terms gives the Court wide powers to grant the specific relief granted by the trial Judge even though it was not pleaded in the election petition. The relevant parts granting the powers are reproduced and in bold for completeness:
212. POWERS OF COURT.
(1) ...
(2) ...
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
68. The discretion of the Court “lies in the choice of selecting and making any of the orders in order to reach a just and efficient result”. (See Mune v Poto [1979] PNGLR 356).
69. Apart from the discretion conferred by this provision, s217 also confers discretion on the Court to be guided by the substantial merits and good conscience of each case without regard to legal forms and technicalities.
70. In the circumstances of the present case the only decision open to the EC after the RO provided the two situation reports was to advise the Head of State that he could not return a candidate pursuant to s 97 (1) of the OL as no candidate could be properly and validly returned as elected. The EC failed to do that, and the trial judge properly reminded him.
71. The applications for review in OS 33 & 34 of 2023 are refused and consequently dismissed in their entirety and the decisions of the trial judge shall stand affirmed also in their entirety. Costs for the Respondent shall be paid by the Applicants on a 50-50 basis to be agreed if not taxed.
72. NAROKOBI J: I have read the draft Judgement of my brother, Justice Kangwia, and unfortunately, I am in the unenviable and difficult position of disagreeing with him on the interpretation of s 175(1A)(b) of the Organic Law on National and Local Level Government Elections (OLNLLGE) and its operation in relation to s 168 of the OLNLLGE.
73. The background, including the relevant provisions of the law in contention and the arguments of Counsel has been impressively canvassed by my brother. I wish not to repeat this aspect of his judgement.
74. I will frame the issue in this way – whether s 175(1A)(b) of the OLNLLGE is subject to s 168 of the OLNLLGE before the Electoral Commissioner can lawfully be said to exercise his power under special circumstances?
75. In my respectful view, the role of the court is to ascertain and give effect to the intentions of Parliament. The underlying question in this issue is what did Parliament intend when it amended s 175 and introduced s 175(1A) in 2006?
76. In my respectful view, s 168 and s 175(1A) create two avenues for results of an election to be ascertained. A declaration in s 175(1) occurs after an ascertainment of a result following the process prescribed under s 168 of the OLNLLGE. Section 175(1A)(b) caters for situations where it is not possible to follow the process prescribed by s 168 and therefore the term “special circumstances,” is used. To say that the Electoral Commission’s power under 175(1A)(b) can only be exercised after complying with the scrutiny process in s 168, would with respect would render s 175(1A)(b) nugatory.
77. For a declaration to be made under s 175(1A)(b) there has to be “special circumstances,” in other words, there is no result obtained under s 168. This is clear when in s 175(1A) the Electoral Commissioner before he exercises his power under s 175(1A)(b) must direct the Returning Officer “not to declare a result...”.
78. It is unfortunate that Parliament in its wisdom, did not define what “special circumstances,” mean. Reading from s 175(1A), before the Electoral Commissioner can exercise its power under s 175(1A)(b), it must direct the Returning Officer not to “declare a result.” This would naturally mean that the process under s 168 has not been completed, as the Electoral Commission has directed the Returning Officer not to declare a result.
79. The point about the two separate process is highlighted by the fact that under s 175(1) the declaration of the result may be made by either the Returning Officer or the Electoral Commission. This is where s 175(1) is subject to s 168. In s 175(1A)(b), the declaration can only be made by the Electoral Commission, of course under “special circumstances.”
80. In my respectful view, the learned trial judge proceeded on a misapprehension of law when he held that s 175(1A)(b) was subject to s 168 of the OLNLLGE. In my view, the issue in the court below was to examine how the Electoral Commissioner exercised his power under s 175(1A) before he made his declaration under s 175(1A)(b) of the OLNLLGE. This view is fortified by the case of Powi v Kaku (2022) SC2290 where it was held:
The [Electoral Commissioner] has an unlimited discretion to determine if any “special circumstance” is presented for the purposes of any of the decisions he has to make under such provisions as s. 175 (1A) (b) of the Organic Law and given that discretion the Supreme Court has declined to circumscribe what does and what does not constitute such circumstance and left it open for a party to plead an appropriate case in the National Court: Special Reference by the Attorney-General [2002] PNGLR 696 and Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814.
81. Given that the learned trial judge misapprehended the law, I would uphold the Review and quash the decision of the National Court and order a retrial on the issue of whether the pleadings and the law supported the Electoral Commissioner’s exercise of power under s 175(1A)(b) of the OLNLLGE. I would order that each party will bear their own costs.
82. CAREY J: I agree entirely with the decision of the president and have nothing to add.
Formal Orders
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Harvey Nii Lawyers & Baniyamai Lawyers: Lawyers for the Applicants
Supasonixs & Alu Lawyers: Lawyers for the Respondent
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