In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of The Disputed Returns for The Wabag Open Electorate; Daniel Don Kapi v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 21 February 2003
• Citation: (2003) N2327
• Docket Number: EP No 57 of 2002 (NCD)
• Year: 2003

Full Title: EP No 57 of 2002 (NCD); In The Matter of The Organic Law on National and Local–level Government Elections and In The Matter of The Disputed Returns for The Wabag Open Electorate; Daniel Don Kapi v Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327

National Court: Gavara–Nanu J

Judgment Delivered: 21 February 2003

1 NATIONAL PARLIAMENT—Elections—Organic Law on National and Local–level Government Elections ("the Organic Law"), s18 and s19—Powers of the Returning Officers being delegated powers are subject to the overriding and supervisory powers of the Electoral Commission.

2 NATIONAL PARLIAMENT—Elections—s18 and s19 are designed to give effect to s126(7) of the Constitution to safeguard the Constitutional independence of the Electoral Commission and to protect its powers from being abused.

3 NATIONAL PARLIAMENT—Elections—The power of the Returning Officer to make a declaration under s175 is a delegated power—s175 is to be read together with s147.

4 NATIONAL PARLIAMENT—Elections—Duty of the Electoral Commission to protect the ballot boxes and cast ballot papers.

5 NATIONAL PARLIAMENT—Elections—Declaration made on the writ which is not returned on its return date is void—The appointment of a Returning Officer under s19 takes effect upon notice of such appointment been given in the National Gazette by the Electoral Commission.

6 NATIONAL PARLIAMENT—Election—Power to make a declaration under s175 belongs to the Returning Officer—Such power and function cannot be performed by another officer or person without good reason—The meaning of 'public declaration' as used in s175.

7 Enforcement Pursuant to Constitution s57; Application by Daniel Don Kapi [2002] PNGLR 630, Peter Peipul Ipu v Pila Niningi (1998) SC580, Baki Reipa v Yuntivi Bao [1999] PNGLR 232, SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, Sam Sorenu v Tom Nayara [1985] PNGLR 444 and Peter Simbi v John Masueng [1999] PNGLR 171 referred to

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Gavara–Nanu J: The petitioner is disputing the election of the second respondent as the member for Wabag Open Electorate (hereinafter referred to as 'Wabag Open') which was declared in Port Moresby on 1 August 2002.

Agreed Statement of facts

At the commencement of the trial, the lawyer for the petitioner filed the Agreed Statement of Facts by all three parties pursuant to the Election Petition r12(3)(e)(iii). In the Agreed Statement of Facts, the parties agreed that—Mr Morris Kwadogi was appointed as the Returning Officer for Wabag Open by the Electoral Commission by notice in the National Gazette No G55 dated 3 April 2002. That appointment was made pursuant to s19 of the Organic Law on National and Local–level Government Elections (hereinafter referred to as 'the Organic Law'). The writ for Wabag Open was addressed to Mr Kwadogi who upon the receipt of the writ on 10 April 2002, endorsed it, in accordance with s82 of the Organic Law. The writ was issued by the Governor General on 4 April 2002, and was fixed to be returned on or before 15 July 2002, pursuant to s105 of the Constitution and s73 of the Organic Law. However, upon advise from the Electoral Commission, the Governor General extended the return date of the writ to 29 July 2002, pursuant to s177 of the Organic Law.

Mr Kwadogi was replaced as the Returning Officer for Wabag Open on 25 July 2002, by Mr Henry Kyakas. The revocation of Mr Kwadogi's appointment as the Returning Officer for Wabag Open was gazetted in the National Gazette No 139, on 28 August 2002. In the same Gazette the appointment of Mr Henry Kyakas as the new Returning Officer for Wabag Open was gazetted. But prior to these changes, the counting of votes for Wabag Open under Mr Kwadogi, proceeded until after count 34, when Mr Kwadogi decided to declare the petitioner as the member elect for Wabag Open on 24 July 2002, at about 5.45 pm at the Wabag Provincial Administration Centre (hereinafter referred to as 'the Ipatas Center').

On or about 26 July 2002, the writ for Wabag Open which was signed by Mr Kwadogi and the petitioner as the member elect for Wabag Open was returned to the Electoral Commission by Mr Kwadogi. Despite the return of the writ, the Electoral Commission directed the counting to continue under the new Returning Officer, Mr Kyakas, until 29 July 2002. However, no declaration was made by Mr Kyakas in Wabag. The second respondent was later declared and returned as the member for Wabag Open on 1 August 2002, in Port Moresby either by the Electoral Commission or Mr Kyakas.

The Electoral Commission made an application to the National Court in Waigani, through OS No 420 of 2002, for the return date of the writ for Wabag Open to be extended beyond 29 July 2002. However that application was refused by the National Court.

On or about 1 August 2002, the second respondent signed the writ after being declared as the member for Wabag Open, and the writ was delivered to the Governor General on the same day.

A total of eight ballot boxes containing ballot papers for Wabag Open were destroyed by a bomb blast by unknown persons at the Wabag Police Station prior to the commencement of the counting of votes. The details of where the pollings were done in respect of each of the destroyed ballot boxes, and the number of ballot papers issued for those ballot boxes are as follows:—

Rest House Box No. Ballot Papers Issued

IRELYA NO. 1 031 2725

KAMA NO. 1 015 795

YAKANANDA 007 1546

TABITANIS 003 1065

WEE NO. 2 042 829

LENDI NO. 2 034 1280

BIRIP NO. 2 044 1125

KOROKET 071 224

TOTAL 9,589

From these particulars, it can be noted that, the total number of ballot papers issued for the destroyed eight ballot boxes was 9,589.

The foregoing are the agreed facts by all parties and the lawyers for the respective parties have endorsed them. Therefore, there is no dispute by the parties in respect of these facts. Thus, all the parties having subscribed to these facts are bound by them.

Evidence

There is evidence that there were constant interjections during the scrutiny process from counts 1 to 34, however, Mr Kwadogi was able to manage and control those interjections and continued with counting until count 35 which was disputed and rejected several times. When the counting proceeded to count 35 in the afternoon of 24 July 2002, that was going to be the fourth time it was going to come in to the counting room for counting. It was at that point that, the scrutineers and supporters of the candidates became rowdy and started assaulting each other and over turned and threw tables and chairs in the room. At that point Mr Kwadogi was assaulted, one witness said, Mr Kwadogi was punched. As the result, the police went into the counting center and forced everyone out. All the scrutineers and the supporters were told to put their hands on their heads and were marched out. One of the witnesses described the actions of the police as excessive and the others said, the police used excessive force to remove people from the counting center.

Following that, Mr Kwadogi suspended the counting, by telling everyone in the counting center, that he was suspending the counting indefinitely and he would decide on the fate of the boxes which were rejected due to being tampered with, then he would decide on the next course of action. The respondents' witnesses testified that Mr Kwadogi in fact said that, he was suspending the counting briefly and would resume at 6.00 pm, but that was denied by both Mr Kwadogi and the petitioner's other witnesses. The incident which caused Mr Kwadogi to suspend the counting was described by some witnesses as a commotion which gave rise to a lot of confusion and as such, those in the counting room, did not know what was to happen next.

There were about 30 boxes from Maramuni and Wabag Central which were disputed during counts 1 to count 34 by the scrutineers because, those boxes were tampered with, in that, the boxes either had knife and axe marks or had no proper seals, or that there were evidence that the polling in respect of those boxes were conducted on road sides or other undesignated places.

Following the suspension of counting on 24 July 2002, Mr Kwadogi proceeded to the Ipatas Center and declared the petitioner as the member elect for the Wabag Open at about 5.30pm. Mr Kwadogi said the declaration was made in front of the Ipatas Center and it was witnessed by the Administrator, some policemen and some members of the public. He said, he and...