Andrew Trawen, Electoral Commissioner of Papua New Guinea; Application under Section 155 (2) (b) of the Constitution and in the Matter of Part XVIII of the Organic Law On National and Local Level Government Elections; Andrew Trawen, Electoral Commissioner and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kamma and Michael Laimo (2008) SC915

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 21 April 2008
• Citation: (2008) SC915
• Docket Number: SCR No. 5 & 6 of 2008
• Year: 2008

Full Title: SCR No. 5 & 6 of 2008; Andrew Trawen, Electoral Commissioner of Papua New Guinea; Application under Section 155 (2) (b) of the Constitution and in the Matter of Part XVIII of the Organic Law On National and Local Level Government Elections; Andrew Trawen, Electoral Commissioner and John Itanu, Returning Officer for South Bougainville Open Electorate v Steven Pirika Kamma and Michael Laimo (2008) SC915

Supreme Court: Kapi CJ

Judgment Delivered: 21 April 2008

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NATIONAL ELECTIONS - Constitution, s155 (2) (b) on Election Cases – Leave is not required to review decision of the National Court.

NATIONAL ELECTIONS - The Supreme Court Election Petition Review Rules 2002 (as amended), sub division 1 r1 and 2 requires leave as a valid provision.

Counsel:

A. Kongri, for the the first and second applicants (SCR 5 of 2008)

J. Nanei, for applicant (SCR 6 of 2008)

R. Pato, for the respondents (SCR 5 & 6 of 2008

Cases cited:

Avia Aihi v The State [1981] PNGLR 81.

Application By Herman Leahy (Unreported Judgment of the Supreme Court dated 15 December 2006 (SCR 34 of 2005).

Legislations cited:

Constitution

Supreme Court Act

Supreme Court Rules

Supreme Court Election Petition Review Rules

Organic Law on National Government and Local Level Governments Elections

21 April, 2008

1. KAPI CJ: The election petition in this matter (EP 11 of 2007) was tried by Kandakasi J and he handed down his decision on 21 February 2008. He made the following orders:

“1 An order in the form of a declaration that declaration of Honourable Michael Laimo as the duly elected member of South Bougainville Open Electorate in the 2007 National Parliament Elections is null and void.

2. Subject to the immediately following order, the Electoral Commission shall conduct a recount of all the ballot papers in the election for the South Bougainville Open Electorate in the 2007 National Parliament Elections.

3. The ballot papers in Ballot Box number 0219 shall be excluded from the recount ordered under term 2 of these orders.

4. The recount shall take place within no later than the one 30 days from today at a suitable venue to be determined by the Electoral Commission in consultation with lawyers representing all the parties and with the approval of the Court; on a day or days as are agreed to by all the parties with approval of the Court; during such times also are agreed to by the parties through their lawyers and with the approval of the court and to be general superintendence of the Court.

5. The results of the recount shall be provided to the Court with all the appropriate official documentation within no later than 7 days of the completion, following which the Court shall then provide copies of all the documentation to the parties and the Court will then reconvene on a date to be announced at which time the court shall be at liberty to declare winner of the election unless there are real and serious issues on the results of the recount in which cases the Court shall receive such evidence as appear appropriate including an order for a by-election if need be.

6. Costs of the petition are awarded to the petitioner Mr Kamma, which costs shall be agreed within 14 days if not taxed

7. The petitioner’s deposit of K5,000.00 is ordered to be refunded to him forthwith.”

2. Andrew Trawen, the Electoral Commissioner filed an application for leave for review on 28 February 2008 in accordance with sub-division 1 rule (1) and (2) of the Supreme Court Election Petition Review Rules 2002 (as amended) (Rules). This is Supreme Court Review 5 of 2008.

3. Michael Laimo the third respondent in the election petition, filed another application for leave for review of the same decision in accordance with sub-division (1) and (2) of the Rules on 5 March 2008. This is Supreme Court Review 6 of 2008.

4. An application for leave for review may be made before a Judge under sub-division 1, r 9 of the Rules and these two applications came before me for determination.

5. Both applications for review raise the same preliminary point;...