Dr Clement Waine v Andrew Trawen - Electoral Commissioner and Papua New Guinea Electoral Commission (2007) N3132

• Jurisdiction: Papua New Guinea
• Judge: Sevua, J
• Judgment Date: 29 June 2007
• Court: National Court
• Citation: (2007) N3132
• Docket Number: OS 324 OF 2007 (EP)
• Year: 2007
• Judgement Number: N3132

Full Title: OS 324 OF 2007 (EP); Dr Clement Waine v Andrew Trawen - Electoral Commissioner and Papua New Guinea Electoral Commission (2007) N3132

National Court: Sevua, J

Judgment Delivered: 29 June 2007

N3132

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 324 OF 2007 (EP)

BETWEEN

DR. CLEMENT WAINE

Plaintiff

AND

ANDREW TRAWEN – ELECTORAL COMMISSIONER

First Defendant

AND

PAPUA NEW GUINEA ELECTORAL COMMISSION

Second Defendant

Waigani: Sevua, J

2007: 25 & 29 June

PARLIAMENT – Elections – Nomination of candidate – Plaintiff not personally nominated – Plaintiff in United States of America at time of nomination – Plaintiff’s brother nominated on behalf of plaintiff – Plaintiff’s name subsequently removed as candidate – Whether National Court has power to order reinstatement of plaintiff as nominated – Whether National Court has jurisdiction to intervene during process of elections – Whether National Court has power to order relief sought by plaintiffs.

Constitution s.43, s.46, s.50, s.52, s.57, s.126, s.158

Organic Law on National and Local-Level Government Elections s.4, s.5, s.15, s.19, s.82, s.83, s.85, s.86, s.87, s.88, s.89, s.91, s.92, s.93, s.96, s.97, s.206

Cases cited

Billy Jababa v. Iambakey Okuk [1983] PNGLR 69

Immelman v. Sutherland Municipal Election (Returning Officer) [1921] CPD 1 (SAP)

Re Organic Law on National Elections [1982] PNGLR 289

Re The New Ireland Provincial Constitution [1984] PNGLR 81

Thomas Niggints v. The Electoral Commission (1992), unreported, N 1072, 24th June 1992 (Woods, J)

William Dihm v. Returning Officer for Moresby South Electorate & Anor [1992] PNGLR 377

Special Reference Pursuant to Section 19; Reference by the Attorney General (2002), unreported, SC 689, 26th July 2002; (Amet CJ, Kapi DCJ, Sheehan, Sakora, Sevua, JJ)

NEC & Luke Lucas v. Public Employees Association of PNG [1993] PNGLR 264

The Electoral Commission & Ors v. Pila Niningi (2003), unreported, SC 710, 20th June 2003 (Kapi, CJ, Salika, Gavara-Nanu, JJ)

Oscar Pomaleu & Ors v. William Skate Jr (2006), unreported, SC 838, 21st July 2006 (Kapi, CJ, Injia, DCJ, Salika, J)

Counsel

G. Manda with V. Yobone, for Plaintiff

R. William, for Defendants

29 June, 2006

1. SEVUA, J: The plaintiff filed these proceeding by ordinary originating summons and sought the same relief claimed in his notice of motion. There are:-

1. A declaration that the plaintiff has a right to stand for elective public office under Section 50(1)(d) of the Constitution and is enforceable pursuant to the combined provisions of Sections 57 and 158(2) of the Constitution.

2. A declaration that the defendants’ actions to remove the plaintiff from the drawn list of candidates nominated for the Simbu Provincial Seat was in breach of Section 88, 89 and 93 of the Organic Law on National and Local Level Government Elections and breached the plaintiff’s right to stand for elective public office under section 50(1)(d) of the Constitution.

3. An order that the defendants are estopped from refusing to accept the plaintiff’s nomination after the close of nomination on the basis of not nominating in person only given that the Returning Officer accepted the nomination during the hour of nomination in the fair exercise of discretion considering matters under sections 87 and 88 and so declared under section 93 of the Organic Law on Elections.

4. An order that the plaintiff be deemed duly nominated on 10 May 2007 for the Simbu Provincial Seat.

5. An order restraining the defendants temporarily by themselves, their servants or agents from proceeding with the conduct of the election for the Simbu Provincial Seat until the defendants take all steps necessary to restore the plaintiffs name on the draw as duly nominated.

6. Costs preferably on an indemnity basis/solicitor-client basis.

7. Time be abridged.

8. Such other orders the Court deems fit.

2. In support of the application, the plaintiff relied on eight affidavits including his own and that of counsel. The defendants relied on two affidavits sworn by the first defendant, Andrew Trawen, the Electoral Commissioner and John Elle, the Election Manager and Provincial Returning Officer.

3. The facts of the case are as agreed to by all parties as contained in a Statement of Agreed and Disputed facts directed by the Court and filed on 21 June 2007. The facts are as follows.

4. Writs for the General Elections were issued on 4 May 2007. Nominations opened on the same day and closed on 10 May 2007. Polling will generally commence on 30 June until 10 July 2007. Polling in Simbu will be conducted on 9 July 2007. Counting of votes will be held from 10 July to 30 July 2007. The writs will be returned on 30 July 2007.

5. The plaintiff who has a PhD in biochemistry is employed as the Principal Investigator for Du Pont, a scientific research corporation in USA. He had, since 2005, planned to enter politics, and is the founder and leader of Stars Alliance Party Inc. For reasons that were stated in the agreed facts, the plaintiff was not present in Kundiawa on 10 May 2007 to nominate personally as he was in USA. With the consent of the plaintiff, his brother Dr. Arnold Waine signed the nomination form in Port Moresby on 10 June 2007, witnessed by Bonny Waim Korugl, a cousin brother.

6. The nomination of the plaintiff by his brother was confirmed by the Stars Alliance Party for the Simbu Provincial Seat. The nomination form was then faxed from Dream Inn in Port Moresby to Kundiawa. However, it was not faxed to the Provincial Returning Officer or the Returning Officer in Kundiawa, instead it was faxed to a third party in Kundiawa. An unnamed representative of the plaintiff with supporters of the Stars Alliance Party delivered the nomination form to the Provincial Returning Officer, John Elle, who received the nomination.

7. At the close of nomination at 4.00 pm that day, John Elle conducted an official draw of candidate’s nominations for the Simbu Provincial Seat. The plaintiff’s name was drawn on the fifth count and allocated a number 14 candidate. Thereafter, email communications were transmitted between John Elle and the Electoral Commissioner on 10th and 11 May 2007, resulting in the advice to John Elle to remove the plaintiff’s name from the draw on 11 May 2007. The plaintiff’s name was therefore removed from the official list of candidates nominated for the Simbu Provincial Seat.

8. Facts in dispute are firstly that, the Returning Officer accepted the nomination on 10 May 2007 as presented; secondly, the Returning Officer, John Elle conducted a redraw on 11 May 2007, and thirdly, the plaintiff’s name was removed as a candidate nominated for the Simbu Provincial Seat after the redraw.

9. At this juncture, the Court notes that from the agreed facts, one pertinent aspect of the Electoral Commissioner’s email to John Elle had been omitted for reasons unknown to the Court, however it is in evidence therefore it is not controversial. That particular part of the email which is Annexure “G” in the plaintiff’s affidavit sworn on 22 June 2007; Annexure “A” in the affidavit of Martin Sine filed on 13 June 2007; Annexure “A” in the affidavit of Korugl Nime sworn on 11 June 2007, and Annexure “A” in the affidavit of John Elle, sworn on 16 June 2007.

10. The omitted part is the first line of the email from the Electoral Commissioner to John Elle on Thursday, 10 May 2007 at 7.26 pm. It reads:

“I have NEVER EVER GIVEN YOU ANY VERBAL
ADVICE OR INSTRUCTIONS TO ACCEPT THIS
NOMINATION.”

11. It is necessary to quote the whole content of the email.

“This is completely incorrect and misleading. Please
retract this message.

This person I heard is in US and on his way to PNG and
arriving tomorrow. How on earth can we accept his
nomination without his physical presence in PNG and for
that matter in Kundiawa
thanks
electoral commissioner.”

12. That email was in response to the message from John Elle to the Electoral Commissioner on 10 May 2007 at 5.56 pm which reads:

“Sir,
Based on your verbal advise, (sic) I have accepted
Dr. Waine’s nomination.
thanks
jelle.”

13. The plaintiff has raised three legal issues for determination by this Court. These are:

1. Whether the plaintiff’s nomination for the Simbu Regional Seat was accepted.

2. Whether the defendants could in law remove a candidate already nominated by the Returning Officer under Section 93 of the Organic Law from the list of candidates after the close of nominations.

3. Whether the defendants breached the plaintiff’s right to stand for public elective office under Section 50(1)(d) of the Constitution when they removed the plaintiff’s name from the list of candidates for the Simbu Regional Seat after the close of nomination on 10 May 2007.

14. Having heard submissions from both counsels and considered the above issues, I consider that the threshold or fundamental issue in this case is whether the plaintiff nominated according to law. Thus, other issues referred to by the plaintiff’s counsel are subsidiary to that threshold issue, and that is what this Court must determine first. Other fundamental issues are whether the National Court has power to intervene in the election process, and whether the National Court has jurisdiction to grant the relief sought by the plaintiff in his originating summons and notice of motion.

15. The plaintiff, at the outset must establish that his nomination was done in accordance with the Organic Law on National & Local-Level Government Elections (hereunder the Organic Law). In order to...