N3982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND A PETITION DISPUTING THE 
VALIDITY OF THE ELECTION FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTION

PAIAS WINGTI
Petitioner

V

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

TOM OLGA
Third Respondent

Kimbe: Cannings J
2010: 8, 9 April

ELECTIONS – second recount of votes – whether National Court obliged to declare result of election without further inquiry into whether the recount was affected by errors or omissions – whether a party has right to challenge result of further recount.

COURTS AND ORDERS – whether a Supreme Court order for a further recount had the effect of denying parties the right to challenge the result of a recount – a particular order must be interpreted in context of all other orders and also in light of the reasons for the orders contained in the written judgment of the court.

The Supreme Court ordered that there be a further recount of ballot papers for an electorate. The result of the further recount showed that the third respondent had the highest number of votes. The third respondent filed a motion that he should be declared duly elected, in accordance with the Supreme Court order which stated amongst other things the National Court "shall declare the candidate with highest number of votes duly elected". The petitioner opposed the motion on the ground that he still had a right to challenge the result of the further recount, such right arising from the terms of a National Court order regarding the first recount, which order had been preserved by the Supreme Court order.

Held:

(1) Any order of any court must be interpreted in the context of all the court’s orders and the reasons given for making the orders conveyed by the written judgment of the court.

(2) When the Supreme Court order was interpreted in context it is apparent that the order was not obliging the National Court to accept the result of the further recount without further inquiry.

(3) The Supreme Court order preserved the right (which had been conferred under a previous National Court order) of any of the parties to challenge by motion the result of the further recount.

(4) Here the petitioner has filed a motion seeking to challenge the result of the further recount which on the face of it is not devoid of merit or frivolous or vexatious. He has a right to have that motion heard.

Cases cited

The following cases are cited in the judgment:

SCR Nos 4 & 5 of 2009 (2009) SC1003
Wingti v Rawali, Electoral Commission and Olga (2008) N3286
Wingti v Rawali, Electoral Commission and Olga (2009) N3569

NOTICE OF MOTION

This was a motion to declare the petitioner duly elected.

Counsel

A Manase, for the petitioner
A Kongri, for the first and second respondents
H Nii, for the third respondent

9 April, 2010

1. CANNINGS J: This is a ruling on a motion by the third respondent, Tom Olga, that he be declared the duly elected member for Western Highlands Provincial. He argues that the National Court is obliged to make that declaration in accordance with an order of the Supreme Court of 27 November 2009. The Supreme Court in SCR Nos 4 & 5 of 2009 (2009) SC1003 ordered that there be a further recount of ballot papers for the Western Highlands Provincial electorate. The result of the further recount showed:

- Mr Olga had the highest number of votes: 140,958 votes;

- the runner-up, the petitioner Paias Wingti, had 139,370 votes; thus

- the winning margin was 1,588.

2. Mr Olga relies on order No 9 of the Supreme Court which states amongst other things that the National Court "shall declare the candidate with highest number of votes duly elected".

3. Mr Wingti opposes the motion on the ground that he still has a right to challenge the result of the further recount, such right arising from the terms of the National Court order regarding the first recount, which order, he says, was preserved by the Supreme Court order.

THE SUPREME COURT ORDER

4. There are ten orders:

1. Both reviews are upheld.

2. The National Court order declaring Tom Olga not duly elected as the Member for Western Highlands Provincial Electorate is set aside.

3. The National Court order declaring the election result of the Western Highlands Provincial Electorate null and void is set aside.

4. There shall be a further recount of the ballot papers in accordance with the order of the National Court of 14 March 2008.

5. Such further recount must include the 1,877 votes excluded from the recount on 13 December 2008.

6. For the avoidance of any doubt, Tom Olga shall remain as the duly elected Member for the Western Highlands Provincial Electorate until a legally and properly conducted further recount determines the eventual winner of the seat.

7. The case is remitted to the National Court for the trial judge to issue directions for the conduct of the further recount, in consultation with the parties.

8. In relation to the conduct of the further recount as ordered here, the Electoral Commissioner shall have the sole authority and discretion in respect of the appointment of the Returning Officer and other electoral officers and officials, the appointment of the convenient time and venue for the recount, and all other matters that are properly within the jurisdiction of the Electoral Commissioner.

9. Following the conduct of the further recount as ordered in the preceding paragraphs, as the return of the result of such recount as required, the National Court shall declare the candidate with the highest number of votes as the duly elected Member for the Western Highlands Provincial Electorate.

10. Costs of these reviews are reserved to a time to be appointed when counsel can be heard.

ISSUES

1. Is the National Court obliged without further inquiry to declare Mr Olga duly elected?

2. If the National Court is not obliged to declare Mr Olga duly elected should it as a matter of discretion do so in the interests of justice?

1 IS THE NATIONAL COURT OBLIGED WITHOUT FURTHER INQUIRY TO DECLARE MR OLGA AS DULY ELECTED?

5. Another way of stating this issue is to pose the question: does the Supreme Court order prevent the parties to the petition from challenging the result of the further recount?

6. Mr Nii, for Mr Olga, submits that the answer to both questions is yes: the National Court is obliged to declare Mr Olga duly elected; the parties are – or at least the petitioner is – prevented from challenging the result of the further recount. Mr Nii relies on the words of Supreme Court Order No 9, particularly the second part, which states:

Following the conduct of the further recount as ordered in the preceding paragraphs, as the return of the result of such recount as required, the National Court shall declare the candidate with the highest number of votes as the duly elected Member for the Western Highlands Provincial Electorate. [Emphasis added.]

7. The words of order No 9 are clear and unequivocal, Mr Nii submits; and the order is expressed in mandatory terms: the National Court "shall declare …". Mr Kongri, for the first and second respondents, supports Mr Nii’s fundamental proposition and, on the face of it, it must be said that the argument appears to have considerable merit.

8. But is that really what the Supreme Court order was saying? A court order, like any legal document, must be interpreted in the context of all the court’s orders and the reasons given for making the orders conveyed by the written judgment of the court.

9. Mr Manase, for Mr Wingti, highlighted three other parts of the Supreme Court order, which tend to support an alternative interpretation of the second part of order No 9, on which Mr Olga relies:

- Order No 4 states that "there shall be a further recount of the ballot papers in accordance with the order of the National Court of 14 March 2008".

- Order No 6 states that Mr Olga remains as the duly elected member "until a legally and properly conducted further recount determines the eventual winner of the seat".

- The first part of Order 9 qualifies the second part (on which Mr Olga relies) by stating "following the conduct of the further recount as ordered in the preceding paragraphs, as the return of the result of such recount as required, the National Court shall declare …".

10. The significance of these orders becomes apparent when they are read in the context of the Supreme Court’s written judgment. The Supreme Court found error in my judgment and orders of 21 January 2009 in EP No 55 of 2007, which declared that Mr Olga was not duly elected and that the 2007 election for the seat of Western Highlands Provincial was absolutely void (Wingti v Rawali, Electoral Commission and Olga (2009) N3569). The error of law was confined to the question of remedies. The Supreme Court found no error in the manner in which I conducted a hearing at Mt Hagen in January 2009 into the question of whether there were errors or omissions committed during the course of the first recount. No error was found in the way in which I permitted challenges to the result of the first recount. The Supreme Court found no error of law in my conclusion that there were errors or omissions in the conduct of the first recount (which was conducted in Mt Hagen from October to December 2008). The only error was found in my decision to declare the election null and void. The Supreme Court said that I should have, in view of the nature of the errors and omissions, ordered another recount. The Court quashed that part of my orders and proceeded to order that there be a further recount and that it should be conducted in accordance with my order of 14 March 2008, by which the first recount was ordered (Wingti v Rawali, Electoral Commission and Olga (2008) N3286).

11. The clear inference to be drawn from the Supreme Court’s reasons for judgment is that it is a proper and regular procedure to allow the parties to a petition to challenge the result of a court-ordered recount. The court is not obliged to accept the results without further inquiry. This inference is reaffirmed, I consider, by the terms of order Nos 4, 6 and 9.

12. Order No 4, by referring to my order of 14 March 2008, is saying impliedly that a challenge to the result of the further recount would be permitted, as it was permitted (the Supreme Court said, rightly so) by my order of 14 March 2008.

13. Order No 6 makes the point even clearer by stipulating that Mr Olga remains in office "until a legally and properly conducted further recount" determines the eventual winner. Thus the Supreme Court is saying that the eventual winner will only be known when there is a legally and properly conducted further recount. The question of whether a recount has been legally and properly conducted can only properly be determined if challenges to it are permitted to be made. Significantly, in this regard, in its judgment the Supreme Court did not say that there is any limit to the number of recounts.

14. The first part of order No 9 cross-refers to order Nos 4 and 6, thus reaffirming the qualifications that those orders place on the second part of order No 9. 

15. I am persuaded by Mr Manase’s submissions that the Supreme Court order does not oblige the National Court to accept the result of the further recount without further inquiry. The parties are not prevented from challenging the result of the further recount. 

2 IF THE NATIONAL COURT IS NOT OBLIGED TO DECLARE MR OLGA DULY ELECTED SHOULD IT AS A MATTER OF DISCRETION DO SO IN THE INTERESTS OF JUSTICE?

16. The only qualification to the right of any of the parties to challenge the result of the further recount is, I consider, that a party’s proposed challenge must not on the face of it be devoid of merit or frivolous or vexatious. I have considered the terms of Mr Wingti’s motion and the affidavits that have been filed in support of it. It does not appear to be devoid of merit and it does not appear to be frivolous or vexatious.

17. Mr Nii and Mr Kongri submitted that I am obliged to consider not only the interests of Mr Wingti – who they say seems unable to accept that he has lost three counts so far and still wants another one – but the wider interests of justice and the interests of the People of Western Highlands, whose will has already been indicated clearly on three separate occasions. Mr Kongri submitted that the result of the further recount shows that there was nothing wrong with the result of the original count. 

18. Mr Nii submitted that the facts prevailing in the further recount are different to those prevailing when the National Court heard challenges to the first recount. He submitted that on the previous occasion all parties had concerns about the first recount and there were challenges being made while the recount was going on. Here no concerns were raised by anyone during the course of the further recount; it was only after the result became known that one party wanted to challenge it. 

19. These are valid concerns but I do not find them sufficiently compelling to convince me that the petitioner should be denied the chance to challenge the result of the further recount. The difference in the prevailing facts is not material. If a party has a right to challenge, than provided the qualifications I have identified are satisfied, that right should be allowed to be exercised.

20. As a matter of discretion I will therefore allow the petitioner’s motion to be moved, provided of course that this is done expeditiously. 

ORDER

(1) The third respondent’s motion that he be declared the duly elected member for Western Highlands Provincial is refused.

(2) The petitioner’s motion that the National Court refuse to confirm the results of the further recount shall be heard expeditiously, at a place and time to be directed.

(3) The question of costs is reserved.

Ruling accordingly.
___________________________

Steeles Lawyers: Lawyers for the Petitioner
Nonggorr & William Lawyers: Lawyers for the 1st and 2nd Respondents
Harvey Nii Lawyers: Lawyers for the 3rd Respondent