The Electoral Commission, Kala Rawali—Imbongu Open Electorate Returning Officer, Abraham Wari—Provincial Election Manager and Timothy Tala v Pila Niningi (2003) SC710

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Salika J, Gavara–Nanu J
• Judgment Date: 20 June 2003
• Citation: (2003) SC710
• Docket Number: SCA 45 of 2003
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC710

Full Title: SCA 45 of 2003; The Electoral Commission, Kala Rawali—Imbongu Open Electorate Returning Officer, Abraham Wari—Provincial Election Manager and Timothy Tala v Pila Niningi (2003) SC710

Supreme Court: Kapi DCJ, Salika J, Gavara–Nanu J

Judgment Delivered: 20 June 2003

SC710

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA 45 of 2003

BETWEEN:

THE ELECTORAL COMMISSION

First Appellant

AND:

KALA RAWALI – Imbongu Open Electorate Returning Officer

Second Appellant

AND:

ABRAHAM WARI - Provincial Election Manager

Third Appellant

AND:

TIMOTHY TALA

Fourth Appellant

AND:

PILA NININGI

Respondent

Waigani: Kapi DCJ., Salika J., Gavara-Nanu J.

11th & 20th June 2003

Parliament – Supplementary Elections – Extension of the polling schedule – The power of the Electoral Commission – Whether the National Court has any power to intervene during process of an election – Organic Law on National and Local Level Government Elections, ss 115, 117, 177, 206 considered.

Constitution - Whether s 155(4) of the Constitution is applicable to extend polling schedules considered.

Cases cited:

Application by Imoning [1992] PNGLR 119

Negints v. The Electoral Commission (supra)

Avia Aihi v. The State [1981] PNGLR 81

Thomas Negints v. The Electoral Commission (Unreported Judgement of the National Court dated 24th June 1992, N1072).

Reference by Attorney-General for the Independent State of Papua New Guinea (Unreported and unnumbered Judgement of the Supreme Court dated 26th July 2002)

Malapu v. The Electoral Commission [1987] PNGLR 128

Legislation cited:

Constitution

Supreme Court Act

Organic Law on National and Local Level Government Elections

J. Nonggor for the First, Second & Third Appellants

J Kwimb for the Fourth Appellant

Respondent in Person

20th June 2003

By The Court: This is an appeal against a decision of the National Court (Los J) dated 15th May 2003 sitting in Mt Hagen in which the Court directed the extension of polling for one day in Nangop 1 Village, Nangop 2 Village, Nangop 3 Village, Piambil 1 Village, Piambil 2 Village, and Tukupungi Village in the Supplementary Elections for the Imbongu Open Electorate.

The background to this appeal may be summarized as follows. After the General Elections in July 2002, the Head of State upon advice of the Electoral Commission declared the elections in six Southern Highlands Electorates including the Imbongu Open Electorate have failed under s 97 of the Constitution.

As a consequence, new writs were issued for Supplementary Elections for the six Electorates on 4th April 2003 with nominations to commence on 11th April 2003 and polling to commence on 3rd May 2003. The return of the writs was scheduled for 27th May 2003.

Pila Niningi (Respondent) nominated as a candidate for the Imbongu Open Electorate. The polling for the Electorate was originally scheduled for 7th May 2003. Due to weather conditions, the polling was rescheduled to 8th May 2003 and the polling took place on that date.

The scrutiny for Imbongu Open Electorate commenced on 10th May 2003.

On 11th May 2003, the Respondent filed an originating summons (OS 233 of 2003) in the National Court in Mt Hagen seeking orders for polling to continue for one day in the six polling places referred to above. The Respondent obtained an interim order on the same day stopping the scrutiny of votes for the Electorate pending the determination of issues raised in the originating summons.

The originating summons was heard on 15th May and the National Court ordered that polling should continue for one day in the six polling places referred to above. It was directed that this voting should take place within seven days of the order.

On 16th May 2003, Peter Peipul, another candidate contesting the Imbongu Open Electorate, filed an appeal to the Supreme Court against the decision of the National Court (SCA 41 of 2003). It is not necessary to set out the details of this appeal for the present purposes. On the same day, Peter Peipul obtained an order before a single judge of the Supreme Court (Kandakasi J) staying the order for further polling made by the National Court in Mt Hagen pending the determination of the appeal.

Consequently, the scrutiny of votes which was previously stayed resumed and it was concluded on 17th May 2003. However, the Returning Officer did not make a declaration at the end of the scrutiny upon advice of the Acting Electoral Commissioner pending the determination of the appeal.

On 21st May 2003, Peter Peipul filed a Notice of Discontinuance in his appeal.

Consequently, on the same day (21st May) at about 11.30 am, the Returning Officer declared Timothy Tala as duly elected in Mendi. However, the writ has not been returned to the Head of State.

Following the withdrawal of the appeal by Peter Peipul, the Electoral Commission filed this appeal on 23rd May 2003. The appeal was filed well within time. It is this appeal which has come before us for determination.

Timothy Tala was joined as Fourth Appellant to this appeal by consent of the parties and his counsel was directed to file a notice of appeal on the same grounds as the grounds relied upon by the other three Appellants by 1.30 pm on 12th June 2003. He has done so as directed and the grounds of appeal are couched in exactly the same terms as the appeal by the other three Appellants.

Objection to Competency

The Respondent who appears in person filed Notice of Objection to Competency on 2nd June 2003. We can deal with this issue very briefly. The objection is against the First, Second and Third Appellants on the basis that the Electoral Commission complied with the National Court Order in that it organized security forces to come into the six polling places for the extra day of polling as directed by the National Court. He argues that by doing this, it has waived the right to appeal and therefore it does not have any standing to appeal under the Supreme Court Act.

We consider that there is no merit in this submission. The Electoral Commission has a right to appeal and has exercised this right. We do not accept the proposition that the Electoral Commission has waived its right to appeal in the circumstances. The Electoral Commission is charged with the responsibility of running the Supplementary Elections under the Organic Law on National and Loca-Level Government Elections (Organic Law) and has sufficient interest to appeal.

The Fourth Appellant has been declared by the Returning Officer as duly elected member but yet to be returned to the Head of State, and is a person who has sufficient interest to appeal the decision of the National Court.

We would dismiss the Notice of Objection to Competency of the Appeal.

Appeal

It is convenient to set out the grounds of appeal:

.

“(a) the proceedings brought by the Respondent in

OS 233 of 2003 was in breach of Section 206 of the Organic Law on National and Local Level Government Elections “the Organic Law” and an abuse of process. Section 206 of the Organic Law provides that the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise; and

(b) the Learned Trial Judge erred in law in finding

that Section 117 of the Organic Law was irrelevant when that Section provides that an election shall not be challenged on ground of a failure to observe a polling schedule or comply with the provisions of Section 114 (regarding notice of polling schedules) or of a variation or departure from a polling schedules.”

(c) the Learned Trial Judge erred in law and acted without jurisdiction in finding that he polling schedule and variations to it were inadequate, insufficient and ordering further polling when Section 115 of the Organic Law imposes the duty, authority and discretion for the conduct of polling and the preparation and variation of polling schedule solely upon the Appellants;

(d) the Learned Trial Judge failed to find that the provisions for extensions of time for polling and or variations in polling schedules are accorded to the Head of State acting with and in accordance with the advice of the Appellants pursuant to Section 177 of the Organic Law and that accordingly the National Court had no jurisdiction to make the orders made; and

(d) the Learned Trial Judge erred in law in failing to find that there was insufficient evidence of fact upon which to make such orders.

In the National Court, the Respondent sought to extend the polling by one day to give registered and eligible voters opportunity to vote in the six polling places referred to earlier. The grounds of appeal raise important questions of law.

Questions of Law

Both counsel for the Appellants submit that the Trial Judge exceeded its jurisdiction by interfering with the election process contrary to the...