Review Pursuant to Constitution s155(2)(b); In the Matter of the Results of the 1997 National Elections for the Chimbu Regional Electorate; Father Louis Ambane and The Electoral Commission of Papua New Guinea v Thomas Tumun Sumuno (1998) SC565

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J
• Judgment Date: 03 September 1998
• Citation: (1998) SC565
• Docket Number: SCR No 61 of 1998
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC565

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 3 September 1998

PAPUA NEW GUINEA SC 565

[In the Supreme Court of Justice]

SCR NO 61 of 1998

Review Pursuant to Constitution s 155(2)(b)

In The Matter of the Results of the 1997 National Elections for the Chimbu Regional Electorate

Between:

Fr Louis Ambane

First Applicant

And:

The Electoral Commission of Papua New Guinea

Second Applicant

And:

Thomas Tumun Sumuno

Respondent

Waigani: Amet CJ

Kapi DCJ

Los J

1998 : 30 July & 3 September

National Elections — Validity Votes in unofficial ballot boxes not counted — Error or Omission in not supplying official ballot boxes, ss.118 and 122 of the Organic Law on National Elections — Whether error or omission affected the result of the election s.218(1) of the Organic Law.

FACTS

In the National Government Elections for the Chimbu Regional Electorate, insufficient ballot boxes were provided by the Electoral Commission to contain the votes cast, the presiding officers authorised the use of unofficial patrol boxes. At the counting these votes were not counted. This amounted to an error or omission on the part of the electoral officials, pursuant to s. 218(1) of the Organic Law on National and Local-Level Government Elections.

ISSUE

Whether the error or omission affected the result of the election within the meaning of s.218(1) of the Organic Law.

Held: (1) The test under s. 218(1) is whether the error or omission did affect the result of the election, and not may have or in all probability would have affected the result.

In re Moresby Northwest Parliamentary Election [1997] PNG LR 338 and Cole v. Lacey [1965] CLR 45, not followed.

(2) Where the means or the opportunity exists to count the votes affected in order to determine if in fact the result of the election was affected, then the Court should count the votes.

(3) The votes being available, they should be counted and tally furnished to this Court to make the determination.

(4) Declaration of the trial court quashed.

(5) Elected member restored to seat until this Court makes final pronouncement.

G Sheppard, for the First Applicant.

Dr J Nongorr, for the Second Applicant.

P Pagne, for the Respondent.

3 September 1998

BY THE COURT: This is an application made pursuant to s.155 (2)(b) of the Constitution seeking a review of the decision of the National Court in the trial of the election petition challenging the election of the Applicant in the 1997 National Elections for the Chimbu Regional Electorate.

The National Court had, in upholding the petition, made the following declarations:

1. That the applicant who was returned as elected was not duly elected;

2. That the election for the Chimbu Provincial Electorate was absolutely void, and

3. That as a result a new election shall be held.

The basis upon which the trial judge had upheld the petition was that, at four different polling places there were insufficient ballot boxes supplied to contain all the votes which had been cast and because the Presiding Officers had been unable to obtain any further ballot boxes they authorised the use of patrol boxes as ballot boxes. These were correctly numbered, tagged and sealed. At the counting the Provincial Returning Officer refused to count these votes on the ground that they were contained in unofficial boxes and not in the required electoral boxes.

The trial judge held that the Returning Officer was correct in not allowing the votes contained in the unofficial patrol boxes to be counted.

The trial judge however made the following findings:

a. that the Returning Officer was in error in failing to provide sufficient ballot boxes as was required of him by s.118 and s.122 of the Organic Law;

a. this was an irregularity which caused approximately 1,300 votes to be discounted, and

a. this amounted to an error or omission within the meaning of s.218 (1) of the Organic Law, which in all probability may have affected the result of the election.

Ground of the Application for Review.

The ground of the application for...