N4732

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 429 OF 2012 (EP) & OS NO 430 OF 2012 (EP)

BETWEEN

PHILEMON EMBEL & JOSEPH KOPOL
Plaintiffs

AND

JOHN HARISOL, RETURNING OFFICER, Mendi,
Southern Highlands Province
First Defendant

AND

ANDREW TRAWEN, Electoral Commissioner of Papua New Guinea
Second Defendant

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2012: 17th & 18th July

PRACTICE & PROCEDURE - Application for interim injunction - Application arising from election related dispute - Stopping Returning Officer from counting disputed ballot boxes - Grounds of - Allegations of tempering of ballot boxes - Application made pursuant to inherent powers of the National Court - Constitution - Section 155(4).

ELECTIONS RELATED DISPUTE - Disputed ballot boxes - Stopping Returning Officer from counting disputed ballot boxes - Grounds of - Allegations of tempering of ballot boxes - Powers of Returning Officer - Exercise of power - Direction by Electoral Commissioner to count disputed ballot boxes - Refusal by Returning Officer to comply with direction - No appeal process available to challenge decision of Returning Officer - Decision of Returning Officer subject to challenge by way of petition - Organic Law on National and Local-level Government Elections - Sections 19, 153A(4) & 206.

Cases cited:

Thomas Negints -v- The Electoral Commission (1992) N1072
Special Reference by Attorney General Francis Damem (2002) SC689
Electoral Commission & Ors -v- Pila Niningi (2003) SC710 
Dr Clement Waine -v- Andrew Traven-Electoral Commissioner & Anor (2007) N3132

Counsel:

Mr P Tabuchi, for Plaintiff 
No appearance, for Defendants

RULING ON APPLICATION FOR INTERIM INJUNCTION

18th July, 2012

1. MAKAIL, J: These two proceedings are related as they relate to 9 disputed ballot boxes for the Nipa-Kutubu Open electorate in the Southern Highlands Province. For this reason, this ruling covers both cases. The plaintiff Mr Philemon Embel is the seating member and one of the candidates contesting the Nipa-Kutubu Open electorate and the plaintiff Mr Joseph Kopol is a candidate contesting the Southern Highlands Province Regional seat in the 2012 National-General elections. Each seeks an interim injunction pending the hearing of the substantive matter. They seek to restrain the first defendant from counting 9 disputed ballot boxes. They bring the application under section 155(4) of the Constitution and rule 5(2)(e)(ii) of the Motions (Amendment) Rules, 2005.

2. According to Mr Embel's affidavit filed on 14th July 2012, Mr Kopol's affidavit filed on 14th July 2012 and an affidavit of Mr Phillip Tabuchi filed 16th July 2012, Mr Embel and Mr Kopol assert that they and other candidates disputed 9 ballot boxes. These ballot boxes are from the following polling locations:

1. Injip No 1;
2. Injip No 2; 
3. Pombrel No 1;
4. Pombrel No 2;
5. Merep No 1;
6. Embi No 1;
7. Upa No 1;
8. Iomo No 1; and
9. Iomo No 2.

3. They assert that on 27th June 2012, Mr Embel sent a petition to the Provincial Election Manager for Southern Highlands Province Mr David Wakias. In that petition, he alleged inter-alia, that the polling was mismanaged. For example, the certified common roll was not physically published for all to see names of registered voters before polling. The other example was the distribution and dispatchment of ballot papers to polling locations in secret, resulting in candidates unaware of the number of ballot papers issued for each polling location. This suggested that extra ballot papers were given for the 9 polling locations, resulting in voters casting their votes twice, thus inflating the total number of votes for the leading candidate in each seat.

4. On 28th June 2012, he and Mr Kopol sent another petition to the second defendant raising the same issues. On 09th July 2012, Mr Embel sent another letter to the second defendant requesting among other things, the removal of the first defendant as Returning Officer. They further assert that on 07th July 2012, the second defendant sent a letter to the first defendant directing him to exclude the 9 disputed ballot boxes from counting. Instead, the first defendant counted ballot boxes from Injip No 1, Injip No 2, Iomo No 1 and Embi No 1. On 11th July 2012, he sent a letter to the second defendant and also Mr Wakias protesting the actions by the first defendant. He did not receive any reply. A news article ran by the National newspaper on 16th July 2012 reported that the first defendant refused to comply with the directive from the second defendant and will count the disputed ballot boxes. 

5. The National Court has inherent powers under section 155(4) of the Constitution and it may be exercised to do justice in the circumstances of a particular case. In election related dispute cases, the inherent powers of the National Court must be exercise with extreme caution. This is because the process of conducting elections lies within the jurisdiction of the Electoral Commission and the Court must not be seen usurping the powers of the Electoral Commission. see section 126 of the Constitution, Thomas Negints -v- The Electoral Commission (1992) N1072, Special Reference by Attorney General Francis Damem (2002) SC689, Electoral Commission & Ors -v- Pila Niningi (2003) SC710 and Dr Clement Waine -v- Andrew Traven-Electoral Commissioner & Anor (2007) N3132.

6. In the present case, on the evidence I find that despite the petitions by Mr Embel and Mr Kopol to Mr Wakias to have the first defendant exclude the disputed ballot boxes from counting, the first defendant decided to count them. That means, the first defendant has made a decision to count them. This is consistent with his powers under s 153A of the Organic Law on National and Local-level Government Elections ("OLN&LLG Elections"). It states: 

"153A. Excluding Ballot-box from Scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: -

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition." (Emphasis added).

7. The first defendant's refusal to exclude the disputed ballot boxes from counting led to further petitions to the second defendant to have him exclude them from counting. As a result, a purported direction was issued by the second defendant to the first defendant to exclude the disputed ballot boxes from counting. However, according to sub-section 4 of s 153A, "[a] decision of a Returning Officer under this section may not be challenged other than by way of petition." 

8. Counsel for Messrs Embel and Kopol has not referred to an appeal process in the OLN&LLG Elections by which aggrieved candidates may invoke to challenge the decision of the Returning Officer who refuses to exclude disputed ballot boxes from counting to the Electoral Commissioner. He generally submits that s 153A of the OLN&LLG Elections applies to cases where the Returning Officer excludes disputed ballot boxes from counting. In this case, the Returning Officer has refused to exclude them from counting. In other words, he has decided to count them. Thus, s 153A has not application. Secondly, he submits that the second defendant has issued a direction to the first defendant to exclude the 9 disputed ballot boxes from counting. It is a lawful direction from the second defendant under s 19 of the OLN&LLG Elections and must be complied with. Section 19 states:

"19. Returning Officers.

(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission."

9. Counsel further submits that instead of complying with this direction, the first defendant decided to count them. He submits that this is the gist of the application and separates this case from past election related dispute cases. The Court should invoke its inherent powers under s 155(4) of the Constitution and issue interim restraining orders to stop the first defendant from counting these ballot boxes.

10. With respect, these submissions are misconceived. Section 153A is explicit. In cases where there is a dispute in relation to a ballot box, the Returning Officer may refuse to count it after considering the objection and response from the concerned parties. His decision may not be challenged other than by way of a petition. In the present case, as I have found, he has made a decision to count the disputed ballot boxes after he considered the objections put to him by way of petitions. In my opinion, in the absence of an appeal process in the OLN&LLG Elections, the second defendant cannot override the first defendant's decision under the pretext of a direction under s 19. It follows, unless the decision of the first defendant is overturned by way of a petition, it stands and must be abided by all pursuant to s 153A(4) of the OLN&LLG Elections. 

11. The proceedings giving rise to the interim application in each case are not election petitions under s 206 of the OLN&LLG Elections. That means, they are premature and amount to an abuse of process. For this reason, I refuse the application for interim injunction in each case and dismiss the entire proceedings as being an abuse of process. Costs shall follow the event.

Ruling accordingly.

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Young & Williams Lawyers: Lawyers for Plaintiffs