In the matter of the Organic Law on National and Local -Level Government Elections; and in the matter of an Elction Dispute for the Goroka Open Electorate Bire Kimisopa v Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2019) N7679

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 07 February 2019
• Court: National Court
• Citation: (2019) N7679
• Docket Number: EP NO. 02 OF 2017
• Year: 2019
• Judgement Number: N7679

Full Title: EP NO. 02 OF 2017; In the matter of the Organic Law on National and Local -Level Government Elections; and in the matter of an Elction Dispute for the Goroka Open Electorate Bire Kimisopa v Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2019) N7679

National Court: Gavara-Nanu J

Judgment Delivered: 7 February 2019

N7679

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 02 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL -LEVEL GOVERNMENT ELECTIONS

AND:

AND IN THE MATTER OF AN ELCTION DISPUTE FOR THE GOROKA OPEN ELECTORATE

BETWEEN:

BIRE KIMISOPA

Petitioner

AND:

HENRY TUTUWO AME

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Gavara-Nanu J

2018: 14 September & 23 November

2019: 07 February

ELECTION PETITION - Petition upheld - Court ordered recount - Result of the recount not favouring the petitioner - Result of the recount disputed by the petitioner - Power of the Court - Court rejecting the result of the recount - Court declining to make a declaration - Validity of the result of the recount - Need for further determination.

ELECTION PETITION - Petition - Court ordered recount - Electoral officials – Errors and omissions - Non-compliance with Court Orders - Not possible to comply with Court orders - Effect thereof.

Cases Cited:

Bire Kimisopa v. Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2018) N7289

Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342

Electoral Commission of Papua New Guinea v. Peter Charles Yama (2014) SC1383

Ephraim Apelis v. Sir Julius Chan (1998) SC573

Michael Kandiu v. Powes Parkop (2013) N5093

Patrick Basa v. Bob Dadae (2013) N4991

The State v. Philip Soni (2008) N3694

Counsel:

J. Kolo, for the Petitioner

T. Sirae, for the First Respondent

J. Ole, for the Second Respondent

7th February, 2019

1. GAVARA-NANU J: The first respondent was elected Member for Goroka Open electorate in the 2017, national election with 24,192 votes. The petitioner was the runner up with 22, 232 votes. The election was conducted under the Limited Preferential Voting System (LPVS).

2. The validity of the first respondent’s election was challenged by the petitioner by a petition filed pursuant to s. 206 of the Organic Law on National and Local-level Government Elections (OLNLGE).

3. The petition was based on alleged errors and omissions by the electoral officials, which were made pursuant to s. 218 of the OLNLGE. The petition was tried in Goroka in March, 2018.

4. On 28 May, 2018, the Court gave its decision in which it found that the electoral officials were guilty of committing errors and omissions, the pivotal one being breach of the mandatory requirements of s. 168 of the OLNLGE. The breach related to the requirement for the electoral officials to first establish an absolute majority from primary votes for the purposes of an elimination of a candidate especially in the last exclusion, which resulted in the first respondent being declared the winner. The Court found that those errors and omissions affected the winning margin between the first respondent and the petitioner, thus ordered a recount of all the votes casted for all the candidates for the Goroka Open electorate. See, Bire Kimisopa v. Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2018) N7289.

5. In ordering the recount, the Court made following Orders:-

1. The Petition is upheld.

2. The 775 ballot papers retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidates are declared informal.

3. Pursuant to s. 212 (1) (d) of the OLNLGE, there shall be a recount of votes casted for the Goroka Open electorate in the 2017, National General Elections.

4. The Second Respondent shall conduct the recount of votes from the First (1st) exclusion to Twenty Eighth (28th) exclusion, both manually and electronically, taking into account the 775 informal votes which were retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidates for whom those ballot papers were marked.

5. The recount of votes shall concern all the ballot-papers casted in favour of candidate Tom Nunue, which were placed in the container (box) marked as Tom Nunue No.1 with inner seal No. 574555 containing 7,944 Primary Votes together with 9,664 exhausted votes contained in containers (boxes) marked Tom Nunue No. 2 with inner seal 296066 (sic.) and Tom Nunue No. 3 without inner seal number.

6. The ballot papers contained in these respective containers (boxes) shall be held in custody and control of the Eastern Highlands Provincial Police Commander and none other, until handed over to the custody and control of the electoral officer duly appointed to conduct the recount of votes.

7. The Second Respondent and its officials who should come from outside of Goroka shall conduct the recount of votes under the supervision of the Registrar or the Deputy or an Assistant Registrar of the National Court.

8. The Registrar of the National Court shall present the report of the recount duly certified by the Returning Officer appointed specifically for the recount to the National Court in Goroka within seven (7) days after the completion of the recount.

9. The Second Respondent shall pay the Petitioner and the First Respondent's (sic.) costs of and incidental to this Petition are to (sic.) be taxed, if not agreed.

10. The Petitioner shall be entitled to the refund of the security deposit of K5,000.00 held at the National Court Trust Account.

6. Before the recount began, trainings were conducted by the Returning Officer (RO) for the electoral officials and the scrutineers in Goroka, on or about 16 July, 2018 especially on the LPVS. The actual recount commenced on 18 July, 2018.

7. It is not my intention to give a detailed account of how the recount was done. I consider it sufficient just to highlight the aspects of the recount which I consider are relevant to the issue of whether the result of the recount is valid.

8. But before I do that, I consider it necessary at this juncture to comment on a number of preliminary issues raised by the respondents. They argued that the Court lacked jurisdiction to further determine whether the result of the recount was valid. They argued that the Court’s power is limited to declaring the result of the recount it ordered. A further issue they raised is that it is an abuse of process for the petitioner to seek review of the result of the recount by way of a notice of motion.

9. When Mr. Kolo, counsel for the petitioner moved the notice of motion I also queried whether I had discretion to review the result of the recount. After carefully considering the submissions by counsel, I have concluded that I do have discretion to review the result of the recount. This conclusion is based on my view that the Court has wide discretion sourced from its inherent powers to review the result of the recount if there are grounds to do so. I consider that to properly exercise this discretion the Court should have recourse to s. 217 of the OLNLGE and be guided by its terms. So the Court should be guided by the substantial merits and good conscience of the case, without legal forms or technicalities, or whether the evidence before it accords with the law of evidence or not.

10. To me this approach also accords with basic common sense and logic. So that if there are serious and genuine legal issues raised which may or are likely to affect the validity of the result of the recount, the Court has a duty to review the validity of the result of the recount. This duty is aligned to the duty of the Court to administer and dispense justice. It would be a dangerous precedent if the Court was prevented or refrained from reviewing the result of the recount in which serious legal issues have been raised, including an alleged failure by the electoral officials to comply with the Orders of the Court. This issue is discussed further later in the judgment.

11. In regard to the issue of whether it is an abuse of process for the petitioner to seek review of the result of the recount by way of a notice of motion, there is no prescribed form or procedure in the OLNLGE the petitioner could have used or followed to raise the issues he has raised in his application. Thus, it is in my view proper for the petitioner to seek review by way of a notice of motion. I also think the use of a notice of motion is permitted by the terms of s. 217.

12. In any event, there is nothing extraordinary or even improper about the petitioner using the notice of motion to seek relief, given the lack of prescribed procedure by which the relief can be sought. Other laws also provide for a notice of motion as a mode to seek even substantive relief. For example, Order 16 r 5 (1) of the National Court Rules and Order 10 of the Supreme Court Rules, 2012, to seek substantive relief in judicial review cases and to appeal against decisions in such cases.

13. The respondents have also argued that the notice of motion is incompetent because it did not plead the grounds upon which relief was sought. But there...