Herowa Agiwa v Rueben T Kaiulo, Electoral Commission of Papua New Guinea and Benias [Ben] Peri (2003) N2345

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 18 February 2003
• Court: National Court
• Citation: (2003) N2345
• Docket Number: In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of Disputed Return of The Koroba/Lake Kopiago Open Electorate
• Year: 2003
• Judgement Number: N2345

Full Title: In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of Disputed Return of The Koroba/Lake Kopiago Open Electorate; Herowa Agiwa v Rueben T Kaiulo, Electoral Commission of Papua New Guinea and Benias [Ben] Peri (2003) N2345

National Court: Kandakasi J

Judgment Delivered: 18 February 2003

1 ELECTIONS—Parliamentary elections—Failure of—proper mode to challenge a decision to fail an election—An election petition is not an appropriate remedy for a person aggrieved by such a decision—Appropriate remedy is judicial review—All the requirements for grant of leave for judicial review, including the need to provide a reasonable explanation for any delay in filing the application must be met before leave for judicial review can be granted—A failure to meet any of these requirements should result in a refusal of leave—Taking an inappropriate action is not a reasonable explanation for any delay—Failing to show a prima facie case of the Electoral Commission having no proper basis to arrive at its decision or that the decision could not have been reasonably arrived at by a fair minded person is fatal to an application for leave for judicial review—Leave for judicial review denied.

2 JUDICIAL REVIEW—Application for leave for judicial review—Decision by Electoral Commission to fail elections on the basis that there was no proper polling, return, scrutiny and counting of votes except for 2,985 votes out of a possible of 80,000.00—No real challenge on the reasons for the decision—Relief sought defies logic and common sense and would have the effect of breaching citizens' right to vote and stand for elective office—No arguable case demonstrated—Leave refused—Constitution s50—OOrganic Law on National and Local–level Government Elections, s19, s73, s75, s97, s113, s115, s118, s127, s130, s138, s147, s148, s150, s151, s175 and s206.

3 SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, SCR 4 of 2002; Special Reference Pursuant to Constitution S19; Reference by Francis Damem, Attorney–General for The Independent State of Papua New Guinea (2002) SC689, Application by Daniel Don Kapi (2002) N2259, The State v The Independent Tribunal; Ex parte Moses Sasakila [1976] PNGLR 491, Constitutional Reference No 1 of 1977 [1977] PNGLR 362, Canisius Karingu v Papua New Guinea Law Society (2001) SC674, Anna Wemay v Kepas Tumdual [1978] PNGLR 173, SCR No 6 of 1984; Re Provocation [1985] PNGLR 31, Air Niugini v Joel [1992] PNGLR 132, In re Moresby North East Election Petition; Patterson Lowa v Goasa Damena [1977] PNGLR 429, Leto Darius v The Commissioner of Police (2001) N2046 and Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145 referred to

___________________________

N2345

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 29 OF 2003

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURN OF THE KOROBA/LAKE KOPIAGO OPEN ELECTORATE

AND:

HEROWA AGIWA

Plaintiff/Applicant

AND:

RUEBEN T. KAIULO

First Defendant/Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Defendant/Respondent

AND:

BENIAS PERI

Third Defendant/Respondent

WAIGANI: KANDAKASI, J.

2003: 12th & 18th February

ELECTIONS – Parliamentary elections - Failure of - proper mode to challenge a decision to fail an election - An election petition is not an appropriate remedy for a person aggrieved by such a decision – Appropriate remedy is judicial review – All the requirements for grant of leave for judicial review, including the need to provide a reasonable explanation for any delay in filing the application must be met before leave for judicial review can be granted – A failure to meet any of these requirements should result in a refusal of leave - Taking an inappropriate action is not a reasonable explanation for any delay – Failing to show a prima facie case of the Electoral Commission having no proper basis to arrive at its decision or that the decision could not have been reasonably arrived at by a fair minded person is fatal to an application for leave for judicial review - Leave for judicial review denied.

JUDICIAL REVIEW - Application for leave for judicial review – Decision by Electoral Commission to fail elections on the basis that there was no proper polling, return, scrutiny and counting of votes except for 2,985 votes out of a possible of 80,000.00 – No real challenge on the reasons for the decision – Relief sought defies logic and common sense and would have the effect of breaching citizens’ right to vote and stand for elective office – No arguable case demonstrated – Leave refused – Ss. 50 of the Constitution – Ss. 19, 73, 75, 97, 113, 115, 118, 127, 130, 138, 147, 148, 150, 151, 175 & 206 of the Organic Law on National and Local-level Government Elections.

Cases Cited:

SCR 5 of 1988; Application of Melchior Kasap and SCR No. 6 of 1988; Application of Peter Yama [1988-89] PNGLR 197.

Reliance is place on the recent judgement of the Supreme Court in SCR 4 of 2002: Reference by Francis Damem, Attorney General for the Independent State of Papua New Guinea (Unreported and not yet numbered delivered 26.07.02).

MP 389 of 2002; Enforcement Pursuant to s. 50: Application by Daniel Kapi (unreported judgement delivered 03/08/02) N2259.

The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

Canisius Karingu v. Papua New Guinea Law Society (unreported judgement delivered on 9/11/10) SC674.

Wemas -v- Kepas Tumdual [1978] PNGLR 17.

SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31.

Air Niugini v. Joel [1992] PNGLR 132.

Re Moresby North East Election Petition [1977] PNGLR 429.

Leto Darius v The Commissioner of Police (unreported judgement delivered 19/01/01) N2046.

Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145.

Counsel:

Mr. T. M. Rei for the Plaintiff/Applicant.

Dr. J. Nongorr for the First and Second Defendants/Respondents.

Mr. G. T. Yapao for the Third Defendant/Respondent.

14th February 2003

KANDAKASI, J: Mr. Herowa Agiwa is applying for leave of this Court for a judicial review of a decision by the Electoral Commission through Mr. Kaiulo to fail the elections for the Koroba/Lake Kopiago Eletorate in the recent 2002 National General Elections. Subject to leave being granted, he is asking for a declaration that he was the duly elected member for the electorate in question and for orders to give effect to that relief. The Electoral Commission and Mr. Ben Peri are opposing the application.

It is argued for Mr. Agiwa in effect that, the decision to fail his election was ultra vires s.97 and s.175 of the Organic Law on National and Local-level Government Elections (the Organic Law). The basis for this argument falls into two parts. Firstly, the argument is, once a returning officer makes a declaration of a winner of an election under s. 175 of the Organic Law, there is no power in the Electoral Commission to withhold a forwarding of the relevant writ to Parliament or alter the writ. SCR 5 of 1988; Application of Melchior Kasap and SCR No. 6 of 1988; Application of Peter Yama [1988-89] PNGLR 197, is cited in support of this argument. Secondly, the Electoral Commission can fail an election only in terms of subsection (2) of s. 97 of the Organic Law, where no candidate is nominated and not otherwise. In this case, the argument is that, there were nominations, there was a proper polling, counting of votes took place and that Mr. Agiwa was declared winner on 2,985 votes that were counted. The rest of the electors in the electorate were given the opportunity to exercise their rights under s. 50 of the Constitution but they refused or failed to exercise their rights, without providing any evidence demonstrating how the voters refused or failed to exercise their rights.

The opposing argument is that, the Electoral Commission has a wider power to fail an election in appropriate cases and that the circumstances in which that can be done cannot be circumscribed. Reliance is placed on the recent judgement of the Supreme Court in SCR 4 of 2002: Reference by Francis Damem, Attorney General for the Independent State of Papua New Guinea (Unreported and not yet numbered delivered 26.07.02) (the Damen reference) in support of this argument. In furtherance of this argument, the...