In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of The Disputed Returns for The Wabag Open Electorate; Daniel Don Kapi v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 21 February 2003
• Court: National Court
• Citation: (2003) N2327
• Docket Number: EP No 57 of 2002 (NCD)
• Year: 2003
• Judgement Number: N2327

Full Title: EP No 57 of 2002 (NCD); In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of The Disputed Returns for The Wabag Open Electorate; Daniel Don Kapi v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327

National Court: Gavara–Nanu J

Judgment Delivered: 21 February 2003

1 NATIONAL PARLIAMENT—Elections—Organic Law on National and Local–level Government Elections ("the Organic Law"), s18 and s19—Powers of the Returning Officers being delegated powers are subject to the overriding and supervisory powers of the Electoral Commission.

2 NATIONAL PARLIAMENT—Elections—s18 and s19 are designed to give effect to s126(7) of the Constitution to safeguard the Constitutional independence of the Electoral Commission and to protect its powers from being abused.

3 NATIONAL PARLIAMENT—Elections—The power of the Returning Officer to make a declaration under s175 is a delegated power—s175 is to be read together with s147.

4 NATIONAL PARLIAMENT—Elections—Duty of the Electoral Commission to protect the ballot boxes and cast ballot papers.

5 NATIONAL PARLIAMENT—Elections—Declaration made on the writ which is not returned on its return date is void—The appointment of a Returning Officer under s19 takes effect upon notice of such appointment been given in the National Gazette by the Electoral Commission.

6 NATIONAL PARLIAMENT—Election—Power to make a declaration under s175 belongs to the Returning Officer—Such power and function cannot be performed by another officer or person without good reason—The meaning of 'public declaration' as used in s175.

7 Application by Daniel Don Kapi (2002) N2259, Peter Peipul Ipu v Pila Niningi and Electoral Commission (1998) SC580, Baki Reipa and Electoral Commission v Yuntivi Bao (1999) SC606, SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, Sam Sorenu v Tom Nayara [1985] PNGLR 444 and Peter Simbi v John Masueng and Richard Koronai (1999) N1965 referred to

___________________________

N2327

PAPUA NEW GUINEA

[In the National Court of Justice]

EP No. 57 of 2002 (NCD)

IN THE MATTER OF THE ORGANIC LAW ON

NATIONAL AND LOCAL-LEVEL GOVERNMENT

ELECTIONS AND IN THE MATTER OF THE

DISPUTED RETURNS FOR THE WABAG OPEN

ELECTORATE

Between:

DANIEL DON KAPI

-Petitioner-

And:

REUBEN KAIULO,

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

-First Respondent—

And

SAMUEL ABAL

-Second Respondent-

MT. HAGEN : GAVARA-NANU J.

2002: 3rd,4th,5th,6th,10th,11th & 12th December

2003 : 21st February

NATIONAL PARLIAMENT - Elections – Organic Law on National and Local – level Government Elections ( ‘ the Organic Law ‘ ), ss.18 & 19 – Powers of the Returning Officers being delegated powers are subject to the overriding and supervisory powers of the Electoral Commission.

NATIONAL PARLIAMENT – Elections – ss. 18 & 19 are designed to give effect to s.126 (7) of the Constitution to safeguard the Constitutional independence of the Electoral Commission and to protect its powers from being abused.

NATIONAL PARLIAMNENT – Elections – The power of the Returning Officer to make a declaration under s.175 is a delegated power – Section 175 is to be read together with s.147.

NATIONAL PARLIAMENT – Elections - Duty of the Electoral Commission to protect the ballot boxes and cast ballot papers.

NATIONAL PARLIAMENT – Elections – Declaration made on the writ which is not returned on its return date is void – The appointment of a Returning Officer under s.19 takes effect upon notice of such appointment been given in the National Gazette by the Electoral Commission.

NATIONAL PARLIAMENT - Election – Power to make a declaration under s. 175 belongs to the Returning Officer – Such power and function cannot be performed by another officer or person without good reason – The meaning of ‘public declaration’ as used in s.175.

Cases cited.

Application by Daniel Don Kapi – N 2259

Peter Peipul Ipu -v- Pila Nininga & Electoral Commission – SC 580

Baki Reipa –v- Electoral Commission & Yuntivi Bao – SC 606

Melchior Kasap & Peter Yama ( SC Rev. No. 5 ) [1988-89] PNGLR 197

Sorenu –v- Nyara [1985] PNGLR 445

Peter Simbi –v- John Masueng and Richard Koronai – N1965

Counsel.

R.Pato for the petitioner

J.Nonggor & T. Sirae for the first respondent

D. Stevens for the second respondent

GAVARA-NANU J : The petitioner is disputing the election of the second respondent as the member for Wabag Open Electorate (hereinafter referred to as ‘Wabag Open’) which was declared in Port Moresby on 1st August, 2002.

Agreed Statement of facts

At the commencement of the trial, the lawyer for the petitioner filed the Agreed Statement of Facts by all three parties pursuant to the Election Petition Rule 12 (3) (e) (iii). In the Agreed Statement of Facts, the parties agreed that - Mr Morris Kwadogi was appointed as the Returning Officer for Wabag Open by the Electoral Commission by notice in the National Gazette No. G55 dated 03rd April, 2002. That appointment was made pursuant to s. 19 of the Organic Law on National and Local - level Government Elections (hereinafter referred to as ‘the Organic Law’). The writ for Wabag Open was addressed to Mr Kwadogi who upon the receipt of the writ on 10th April, 2002, endorsed it, in accordance with s. 82 of the Organic Law. The writ was issued by the Governor General on 04th April, 2002, and was fixed to be returned on or before 15th July, 2002, pursuant to s. 105 of the Constitution and s. 73 of the Organic Law. However, upon advise from the Electoral Commission, the Governor General extended the return date of the writ to 29th July, 2002, pursuant to s. 177 of the Organic Law.

Mr Kwadogi was replaced as the Returning Officer for Wabag Open on 25th July, 2002, by Mr Henry Kyakas. The revocation of Mr Kwadogi’s appointment as the Returning Officer for Wabag Open was gazetted in the National Gazette No. 139, on 28th August, 2002. In the same Gazette the appointment of Mr Henry Kyakas as the new Returning Officer for Wabag Open was gazetted. But prior to these changes, the counting of votes for Wabag Open under Mr Kwadogi, proceeded until after count 34, when Mr Kwadogi decided to declare the petitioner as the member elect for Wabag Open on 24th July, 2002, at about 5.45 pm at the Wabag Provincial Administration Centre (hereinafter referred to as ‘the Ipatas Center’).

On or about 26th July, 2002, the writ for Wabag Open which was signed by Mr Kwadogi and the petitioner as the member elect for Wabag Open was returned to the Electoral Commission by Mr Kwadogi. Despite the return of the writ, the Electoral Commission directed the counting to continue under the new Returning Officer, Mr Kyakas, until 29th July, 2002. However, no declaration was made by Mr Kyakas in Wabag. The second respondent was later declared and returned as the member for Wabag Open on 01st August, 2002, in Port Moresby either by the Electoral Commission or Mr Kyakas.

The Electoral Commission made an application to the National Court in Waigani, through O.S No. 420 of 2002, for the return date of the writ for Wabag Open to be extended beyond 29th July, 2002. However that application was refused by the National Court.

On or about 01st August, 2002, the second respondent signed the writ after being declared as the member for Wabag Open, and the writ was delivered to the Governor General on the same day.

A total of eight ballot boxes containing ballot papers for Wabag Open were destroyed by a bomb blast by unknown persons at the Wabag Police Station prior to the commencement of the counting of votes. The details of where the pollings were done in respect of each of the destroyed ballot boxes, and the number of ballot papers issued for those ballot boxes are as follows : -

Rest House Box No. Ballot Papers Issued

IRELYA NO. 1 O31 2725

KAMA NO. 1 015 795

YAKANANDA 007 1546

TABITANIS 003 1065

WEE NO. 2 042 829

LENDI NO. 2 034 1280

BIRIP NO. 2 O44 1125

KOROKET 071 224

TOTAL 9,589

From these particulars, it can be noted that, the total number of ballot papers issued for the destroyed eight ballot boxes was 9,589.

The foregoing are the agreed facts by all parties and the lawyers for the respective parties have endorsed them. Therefore, there is no dispute by the...