Bire Kimisopa v Henry Tutuwo Ame

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 28 May 2018
• Citation: (2018) N7289
• Court: National Court
• Year: 2018
• Judgement Number: N7289

Full : EP No 2 of 2017; In the matter of the Organic Law on National and Local Level Government Elections and in the matter of an election dispute for the Goroka Open Electorate; Bire Kimisopa v Henry Tutuwo Ame and the Electoral Commission of Papua New Guinea (2018) N7289

National Court: Gavara-Nanu J

Judgment Delivered: 28 May 2018

N7289

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 02 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND

IN THE MATTER OF AN ELECTION DISPUTE FOR THE GOROKA OPEN ELECTORATE

BETWEEN

BIRE KIMISOPA

Petitioner

AND

HENRY TUTUWO AME

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Goroka: Gavara-Nanu J

2018: 12 - 15 & 22 March & 25, 26 & 28 May

ELECTION PETITION – Disputed Return – Organic Law on National and Local Level Government Elections; ss. 18, 19, 20, 21 & 149 – Returning Officer – Assistant Returning Officers - Duties and responsibilities – Electoral Commission - Delegated powers and functions.

ELECTION PETITION – Organic Law on National and Local Level Government Elections -–Ballot boxes – Ballot papers to be deposited in designated ballot boxes – Ballot papers deposited in non-designated ballot boxes – Ballot papers invalid and informal.

ELECTION PETITION – Organic Law on National and Local Level Government Elections; ss. 147, 149, 150, 151, 154, 168 & 218 - Errors and omissions - Scrutiny process – Limited Preferential Voting System – Need to establish absolute majority mandatory - Scrutineers –Duties – Counting officials – Duties – Counting centre – Only authorised officials allowed into the counting centre – Security personnel being allowed into the counting room.

ELECTION PETITION – Organic Law on National and Local Level Government Elections; ss. 217 and 218 – Errors and omissions – Returning Officer constantly absent from Counting centre during counting – Returning Officer attending to matters unrelated to scrutiny of votes – Regular long periods of absence from the Counting centre – Assistant Returning Officers performing duties of the Returning Officer.

ELECTION PETITION – Electoral Commission – Limited Preferential Voting System – Awareness - Training workshops for scrutineers and counting officials.

Cases cited:

Alfred Manase v. Don Pomb Polye (2008) N3534

Avia Aihi v. The State (No.1) [1981] PNGLR 81

Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633

Ephraim Apelis v. Sir Julius Chan (1998) SC573

Francis Koimanrea v. Alois Sumunda (2003) N2421

Innovest Ltd v. Hon. Patrick Puraitch and The State (2014) N5949

Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596

Motor Vehicle Insurance (PNG) Ltd Trust v. James Pupune [1993] PNGLR 370

Paua v. Ngale [1992] PNGLR 563

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Steven Pirika Kamma v. John Itanu (No.2) (2008) N3261

The Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd (2009) SC979

Thomas Tumun Sumono v. Father Louis Ambane (1998) N1718

Counsel:

J.Kolo, for the Petitioner

T.Sirae, for the First Respondent

J.Ole, for the Second Respondent

28th May, 2018

1. GAVARA-NANU J: The Petitioner was the first runner-up to the First Respondent in the 2017 National General Elections for the Goroka Open electorate with 22, 232 votes. The First Respondent won the election with 24,192 votes. The declaration was made on 25 July, 2017. The election was conducted under the Limited Preferential Voting (“LPV”) system.

2. The petition is brought pursuant to s. 206 of the Organic Law on National and Local-level Government Elections (“OLNLGE”), to dispute the validity of the First Respondent’s election as Member for Goroka Open electorate.

3. The grounds of the petition are errors, omissions and illegal practices by the electoral officials viz; the Returning Officer (“RO”), the three Assistant Returning Officers (“AROs”) and the counting officials. The alleged errors and or omissions occurred before and during counting of votes. The alleged errors and omissions include neglect of duties and responsibilities. Any errors and or omissions committed by the electoral officials from start of polling to the return of a writ are subject to review by the Courts of Disputed Returns: Ephraim Apelis v. Sir Julius Chan (1998) SC573.

4. The Petitioner claims the alleged errors and omissions affected or had the likely effect of affecting the result of the election: Paua v. Ngale [1992] PNGLR 563; Alfred Manase v. Don Pomb Polye (2008) N3534 and Francis Koimanrea v. Alois Sumunda (2003) N2421.

5. The determination of issues before the Court requires proper construction and application of the relevant provisions of the OLNLGE.

6. Section 3, is the interpretation provision, it defines - “the Returning Officer”, as the Returning Officer of the electorate for which he is appointed.

7. Sections 18, 19, 20, 21 and 168 are pertinent to the determination of the issues.

8. Section 18 provides that the Electoral Commission may delegate all or any of its powers and functions, it also stipulates how the delegated powers and functions may be exercised. The section is in these terms:

18. Delegation.

(1) The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2) Every delegation under Subsection (1) is revocable, in writing, at will.

(3) No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission.

9. Section 19 sets out the procedure for appointing ROs and states their duties and responsibilities. The section is in these terms:

19. Returning Officers.

(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.

(2) A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.

(3) A Returning Officer may, following consultations with the Electoral Commission, seek the assistance of such persons, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or in accordance with this Law remain the functions and powers of the Electoral Commission.

(4) Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under Subsection (3).

(5) The Electoral Commission may, on the nomination of a Returning Officer, appoint authorized enrolment agents in a Ward under the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.

(6) Regulations may make further provisions for the duties and responsibilities of authorized enrolment agents appointed under Subsection (5).

(7) A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.

10. Section 20 sets out the procedure for appointing AROs and states their powers and functions. The section is in these terms:

20. Assistant Returning Officer.

(1) Subject to this section, the Electoral Commission may, by notice published in the National Gazette, appoint a person to be an Assistant Returning Officer for a portion of an electorate.

(2) A person appointed to be an Assistant Returning Officer for a portion of an electorate may, subject to this Law and to the Regulations and to the control of the Returning Officer, perform the functions and exercise the powers of the returning Officer, in, or in relation to, that portion of the electorate.

(3) An Assistant Returning Officer shall not be appointed for a portion of an electorate for which less than 100 electors are enrolled.

(4) Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may...