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

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 28 October 1998
• Citation: (1998) SC580
• Docket Number: SCR No 89 of 1998 and SCR No 100 of 1998
• Year: 1998

Full Title: SCR No 89 of 1998 and SCR No 100 of 1998; Peter Peipul Ipu v Pila Niningi and Electoral Commission (1998) SC580

Supreme Court: Kapi DCJ, Hinchliffe J, Sheehan J

Judgment Delivered: 28 October 1998

1 Parliament—National Elections—Review pursuant to s155(2)(b) of the Constitution.

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

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

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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 29 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 s155(2)(b) of the Constitution on 30 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 26 August 1998.

The applicant filed a Supplementary Review on 2 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...