Baki Reipa and Electoral Commission v Yuntivi Bao

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Salika J, Los J
• Judgment Date: 05 May 1999
• Citation: [1999] PNGLR 232
• Court: Supreme Court
• Year: 1999
• Judgement Number: SC606

Supreme Court: Woods J, Salika J, Los J

Judgment Delivered: 5 May 1999

SC 606

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 98 & 99 OF 1998

BETWEEN

BAKI REIPA

First Applicant

AND

ELECTORAL COMMISSION

Second Applicant

AND

YUNTIVI BAO

Respondent

Waigani: Woods, J

Los, J

Salika, J

1999: 25 February

5 May

Parliament National elections destruction of ballot box security of ballot boxes voters thereby disenfranchised right to vote omissions by electoral officials responsibility of Electoral Commission.

A Manase, for 1st Applicant

J Nonggor, for 2nd Applicant

H Nii, for Respondent

WOODS J. & SALIKA J. The applicants have each filed an application seeking Review of the decision of the National Court following the hearing of Election Petition 32 of 1997 whereby the Judge granted the Petition and held that the Applicant herein Baki Reipa was not duly elected and declared the election for the Kainantu Open Electorate void.

In brief the grounds for the Reviews challenge the finding of the Judge that it was the legal or constitutional duty of the Electoral Commission to ensure the security of ballot boxes such that the failure to so observe would amount to an error or omission by officers of the Electoral Commission within the meaning of Section 218 of the Organic Law. And also the finding of the trial judge on the legal and factual responsibilities imposed upon the Electoral Commission by the Organic Law to provide and ensure safe custody and care of Ballot Boxes.

The Organic Law on National and Local-Level Government Elections clearly states in section 220 that a decision of the National Court in the hearing of an election Petition is final and conclusive and without appeal and shall not be questioned in any way. This is why this matter has come before this court as a Review under the Constitution Section 155 (2)(b). The principles governing Section 155 Reviews have been clearly stated in a number of cases; "In a case where a person or a party to proceedings has no right to appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under section 155(2)(b) of the Constitution is available without the need to meet other established criteria." However there must be a gross error clearly apparent on the face of the evidence before the Court should grant review. Or there should be cogent and convincing reasons or exceptional circumstances shown warranting the review. So it not a matter of establishing a simple error in the judge's findings.

So where is the important point of law to be determined or where is the gross error of law apparent on the face of the record.

The Petition sought and did obtain the invalidation of the election on the grounds that following the polling at a polling place and when the relevant ballot box was in the custody of the Electoral officials, certain persons forcefully obtained the Box and unlawfully destroyed the box and thereby the votes such that a total of 466 ballot papers for the electorate were not counted and this deprived 466 eligible voters from having their choice of candidate included in the final poll for the electorate. And because the winning margin was less than this number of votes therefore the result of the election was affected.

In upholding the petition the Judge found that the failure of the Electoral Officials to properly provide security for the ballot papers such that the Box was destroyed by criminal elements and the papers thereby lost was an error or omission by officials.

The applicants before us are submitting that the trial judge has made a gross error in finding that the responsibilities and duties of the Electoral Commission went so far as to ensure complete security for ballot boxes. It appears to be suggested from the submissions that the duties of the Electoral Commission are purely administrative duties.

The Constitution provides in section 126 that Elections to the Parliament shall be conducted in accordance with an Organic Law by the Electoral Commission. And further the provision states that the Organic Law shall make provision for and in respect of the appointment, constitution and procedures of the Electoral Commission and for safeguarding its independence, and the electoral system, and safeguarding the integrity of elections. It is submitted therefore that the Organic Law comprehensively sets out the duties and responsibilities of the Commission and its officers and nowhere in the Organic Law is it stated that the Commission and its officers are responsible for the security of matters like...