The Honourable Ephraim Apelis v Sir Julius Chan (1998) SC573

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Akuram J
• Judgment Date: 09 October 1998
• Citation: (1998) SC573
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC573

Supreme Court: Kapi DCJ, Sheehan J, Akuram J

Judgment Delivered: 9 October 1998

PAPUA NEW GUINEA SC573

[IN THE SUPREME COURT OF JUSTICE ]

SC REVIEW NO. 54 OF 1998

THE HON. EPHRAIM APELIS

V

SIR JULIUS CHAN

Coram: Kapi DCJ., Sheehan J., Akuram J.

Waigani : 29th July, 9th October 1998

Judicial Review under s 155 (2) (b) of the Constitution — Review of decision of the National Court.

National Parliament — General Elections — Breach of s 61 of the Organic Law on National and Local Level Government Elections which denies the right to vote or right to be elected under s 50 of the Constitution is a valid ground for invalidating an election.

National Parliament — Election Petition — Pleading material or essential facts under s 208 (a) of the Organic Law on National and Local Level Government Elections.

C. Narokobi for the applicant

J. Nonggor for the Electoral Commission

N.M. Cooke QC and M.M. Varitimos for the Petitioner

9th October 1998

By The Court: This is an application to review a decision of Andrew J. brought pursuant to s 155 (2) (b) of the Constitution. The decision which is sought to be reviewed arose out of applications made by the Hon. Ephraim Apelis (hereinafter referred to as the Applicant) and the Electoral Commission to strike out the petition filed by Sir Julius Chan in EP No. 54 of 1997.

In order to appreciate the grounds of review, it is necessary to briefly set out the grounds relied upon in the petition to invalidate the election.

There are several grounds which are broken into different parts. The first ground relied upon alleges that officers of Electoral Commission failed to enroll eligible voters in breach of s 61 of the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law), thereby denying them their constitutional right to vote pursuant to s 50 of the Constitution (ground 5).

The second ground of petition alleges unlawful or irregular practices at the polling on the part of the applicant's servants and agents in that they instructed the petitioners scrutineers to stay 10 to 12 meters away from the polling booths (ground 6).

The third ground of petition alleges that the ballet boxes were left in the hands of polling and presiding officers without any adequate security provided (ground 7).

The fourth ground of petition alleges that irregular and unlawful acts in the counting of the votes were committed by Electoral Commission officials, namely, that the votes were counted so quickly like deck of cards and they must have discounted many of petitioner's votes (ground 8).

The fifth ground of petition alleges that officers of the Electoral Commission allowed under age people to vote (ground 9).

The sixth ground of petition alleges undue influence of voters by applicant's supporters, agents or servants (ground 10).

The applications by the applicant and the Electoral Commission sought to strike out the petition on a number of grounds.

Ground 5

In relation to ground 5 of the petition, the applicant and the Electoral Commission raise two arguments. The first is a question of law, namely, that the failure to enroll eligible voters and thereby denying the right to vote at the elections, is not a ground which comes within s 218 or any other provision of the Organic Law. They submit that the irregularity in so far as it relates to rejection of people from voting at the polling, is applicable only to "electors" under s 218 (2) of the Organic Law. Counsel submit that persons who were not allowed to vote are not "electors" and therefore the petitioner cannot rely on s 218 of the Organic Law.

In summary, they submit that ground 5 in the circumstances of the present case is not a valid ground for invalidating the election under the Organic Law. They submit that the remedy for not getting enrolled on the Common Roll is provided for under Part IX of the Organic Law by means of appeal to the District Court.

The second argument is that ground 5 does not plead material facts in many aspects contrary to s 208 (a) of the Organic Law and therefore should be struck out.

In reply, counsel for the respondent submits that appeal to the District Court is not applicable in the present case because the alleged voters were not notified of the rejection to enroll under s 59 of the Organic Law and they had no opportunity to appeal to the District Court before the election. He submits that the ground as pleaded raises a valid ground for invalidating an election under the Organic Law. In respect of pleading counsel submits that the ground pleads all the material facts for the purposes of raising ground 5.

As far as we can determine from the reasons for decision, the trial judge did not address the first issue directly. He addressed the issue by way of adopting two cases, In Re Moresby Northwest Parliamentary Election, Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338 and Cole v Lacey (1965) 112 CLR 45 which deal with application of s 218 of the Organic Law. With respect, these two decisions deal with proper grounds where s 218 is applicable. They do not deal with the point raised in the present case. Both cases deal with either rejection or counting of informal votes. These are votes rejected by election officials on grounds other than the right or an entitlement of a person to vote at an election. Any error by an officer with regard to counting of such informal votes come within the ambit of s 218. Cole v Lacey (supra) deals with pleading of ground relating to informal votes and Gavera Rea v Mahuru Rarua Rarua (supra) deals with the counting of informal votes at the counting of votes.

In the present case, the persons whose right to vote have been denied as pleaded in ground 5 are persons who were not on the roll at the time of the election and therefore they were not entitled to cast their votes according

to s 131 (1) of the Organic Law. There is no suggestion that these votes were wrongly rejected by officials at the polling.

Section 218 (2) is applicable to persons who come within the meaning of "elector". This word is defined under the Organic Law to mean "a person whose name appears on a Roll as an elector". We find that s 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of the poll or the return of the writ. The conduct complained of in the present case does not come within that process and therefore does not come within the ambit of s 218 of the Organic Law. In this regard, we find that the trial judge fell into error when he applied the principles enunciated in Cole v Lacey (supra) and Gavera Rea v Mahuru Rarua Rarua (supra) to the present case.

The question then arises; whether, the conduct complained of in the present case can be a ground for invalidating an election under any other provision of the Organic Law?

Under s 215 (3) (b) of the Organic Law, the National Court is empowered to declare a person returned was not elected or declare an election void on the ground of an illegal practice other than bribery or undue influence. That provision is as follows:

"The National Court shall not declare a person returned as elected was not duly elected, or declare an election void-

(a)….

(b) on the ground of an illegal practice other than bribery or undue

influence or attempted bribery or undue influence, unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be elected or that the election should be declared void."

It is clear from this provision that an election may be invalidated on the ground of an illegal practice other than bribery or undue influence provided the Court is satisfied that the result of the election was likely to be affected...