Peter Peipul Ipu v Pila Niningi and Electoral Commission (1998) SC580

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Hinchliffe J, Sheehan J
• Judgment Date: 28 October 1998
• Court: Supreme Court
• Citation: (1998) SC580
• Docket Number: SCR No 89 of 1998 and SCR No 100 of 1998
• Year: 1998
• Judgement Number: SC580

Supreme Court: Kapi DCJ, Hinchliffe J, Sheehan J

Judgment Delivered: 28 October 1998

SC580

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR N0. 89 OF 1998

SCR NO. 100 OF 1998

BETWEEN:

PETER PEIPUL IPU

Applicant

AND:

PILA NININGI

First Respondent

AND:

ELECTORAL COMMISSION

Second Respondent

Waigani: Kapi DCJ., Hinchliffe J., Sheehan J.

29th September, 28th October 1998

Parliament — National Elections — Review pursuant to s 155 (2) (b) of the Constitution.

National Elections — Organic Law on the National Elections and the Local Level Government Election — Absence of outer seal and evidence of tampering of ballot boxes.

Principles of National Justice — Reconsideration of an earlier ruling without giving opportunity to the parties to call evidence or make submissions.

Mr C. Yalo for the Applicant

Mr J. Kil for the First Respondent

Mr J. Nonggor for the Second Respondent

28th October 1998

BY THE COURT: Mr Peter Peipul Ipu (hereinafter referred to as the Applicant) was declared the elected member for the Imbongu Open Electorate in the 1997 General Elections. The result of the election was challenged by Mr Pila Niningi (hereinafter referred to as the First Respondent) in an election petition (EP No. 20 of 1997). The petition was tried by Salika J. and on 29th June 1998 he declared:

1. that the applicant was not duly elected;

2. that the ballot boxes from Piambil No. 1 and 2, Malga, Tona and Buiyebi be counted;

3. that the votes received by each candidate be added to their respective progress tally from the last count;

4. that the candidate with the highest votes after all boxes have been counted is to be declared duly elected.

The applicant filed a judicial review (SCR No. 89 of 1998) against this decision pursuant to s 155 (2) (b) of the Constitution on the 30th July 1998.

Before we heard the review, the counting as directed by the trial judge was conducted and on 14th August 1998, the result of the count was added to the tally of votes for each candidate. The end result was that the first respondent emerged as the winner with 6117 votes from the applicant with 5153 votes. The first respondent was declared the winner and he has since being sworn in as the new member for the Imbongu Open Electorate.

The Electoral Commission (hereinafter referred to as the Second Respondent) filed a judicial review (SCR No. 100 of 1998) against the same decision on the 26th August 1998.

The applicant filed a Supplementary Review on 2nd September 1998. This was in effect an amendment of the original judicial review. Leave to amend was sought at the hearing and we granted leave.

Both reviews raise common grounds of review and by agreement of the parties, they were heard together.

Before we deal with the merits of the reviews, we wish to deal with two preliminary matters raised by counsel for the first respondent. The first relate to a notice of motion filed by lawyers for the first respondent for orders that the applicant should pay security for costs in the amount of K50,000.00 and that the hearing of the review should be deferred until such amount is paid into Court. We indicated to counsel for the first respondent that he ought to have brought this motion earlier and not at the hearing of the reviews. We indicated that the parties are ready to argue the reviews and the question of costs will be determined at the same time. Counsel for the first respondent did not press for the orders sought in the notice of motion.

The second point raised by counsel for the first respondent relate to the competency of the reviews. There was no suggesting that the applicants have no standing to bring the reviews. In essence the objection to competency is based on two grounds

(1) That the applications for review are without merit. In support of this ground counsel submits that the grounds of applications for review are vague, uncertain and made in bad faith.

(2) That the grounds of the applications do not disclose any serious issues to be reviewed by the Supreme Court.

We indicated to counsel for the first respondent that these are grounds relevant to the merits of the reviews rather than proper grounds for objection to competency. We invited counsel to include these submissions as part of the merits of the reviews. We then proceeded to hear the parties on the full merits of the reviews.

We should set out the relevant facts which give rise to the grounds of review for consideration. At the initial counting of the votes after the General Elections, dispute arose as to the counting of five ballot boxes, 0003 (Piambil No. 1), 0004 (Malga), 0027 (Tona), 0028 (Piambil No. 2) and 0036 (Buiyebi). These boxes were excluded from counting.

At the trial before the National Court, the first respondent sought to count these ballot boxes. After the first witness had given evidence on the 10th June 1998, the trial judge asked to inspect the five ballot boxes. Upon inspection, the trial judge found that box numbers 0028 and box 0003 had outer seals with their respective serial numbers intact. The box numbers 0027, 0004 and 0036 had no outer seals. Upon application made by counsel for the applicant and after hearing submissions from all parties, the trial judge declared that the three boxes without outer seals had been tampered with and therefore they should not be counted.

After this ruling, the trial proceeded in respect of the other two...