N6809
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO. 18 OF 2017
BETWEEN:
PETER WARARU WARANAKA
Plaintiff

AND
KILA RALAI in this capacity
as the Provincial Elections Manager,
East Sepik Province
First Defendant

AND
MARTIN WANA in his capacity
as the Returning Officer,
Yangoru Saussia Electorate, East Sepik Province
Second Defendant

Wewak: Kirriwom J
2017: 21 July

ELECTIONS  - Motion - Application seeking orders inter alia to stop counting - Lacking exceptional circumstances warranting interference by court, matter fell squarely within the powers and functions of the Electoral Commissioner - No evidence of request being first made to the Returning Officer under section 170 of Organic Law of National and Local Level Government Elections - Court devoid of power to unduly interfere  outside a petition under section 206 OLNLLGE properly commenced - Application dismissed as misconceived and an abuse of process - No costs ordered.

Facts:
Plaintiff applied by way of originating summons and a notice of motion seeking orders, inter alia, to stop the counting nearing completion and getting close to declaration and further orders for recount of all primary votes before elimination process.
Held, dismissing the application:
1.	The power to stop counting and ordering re-count of votes outside an election petition vests at first instance with the Returning Officer under section 170 OLNLLGE.
Ronald Rimbao v Maku Kopeyala as Returning Officer for The Wapenamanda Open Electorate, Ruben Kaiulo as Electoral Commissioner of PNG and The Independent State of Papua New Guinea (1997) N1674 and Patrick Nema v Thomas Paraka, Ruben Kaiulo—Electoral Commissioner of PNG and Jack Karali—Returning Officer [1995] N1290 considered and adopted.

2.	Outside an election petition properly commenced under section 206 of OLNLLGE, Court is devoid of power or jurisdiction to entertain any interlocutory application instituted under the ordinary National Court Civil Practice and Procedure Rules to interfere with counting or an election process where no exceptional circumstances are shown. 

Philemon Embel v John Harisoi [2012] N4732 adopted and applied.

3.	Application was misconceived and tantamount to abuse of process.

Cases cited:
In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of the Wapenamanda Open Electorate; Ronald Rimbao v Maku Kopeyala as Returning Officer for The Wapenamanda Open Electorate, Ruben Kaiulo as Electoral Commissioner of PNG and The Independent State of Papua New Guinea (1997) N1674
Malapu & Wasum v Electoral Commissioner (1987) PNGLR 128
Patrick Nema v Thomas Paraka, Ruben Kaiulo—Electoral Commissioner of PNG and Jack Karali—Returning Officer [1995] N1290
Philemon Embel v John Harisoi [2012] N4732
 
Counsel:

J Alman, for the Plaintiff
E Manihambu, for the Defendants

21st July, 2017
1.	KIRRIWOM J.: This is an application by way of originating summons by the Plaintiff, a candidate for the Yangoru/Sausia Electorate in East Sepik Province in this National Election, seeking an order to stop the counting of the ballot papers currently in progress at Yangoru Station from going into quality check and elimination process or secondary counting and a further order for a re-count of all the primary votes before quality check is done and elimination process begins.
2.	The reason for this application is that numerous discrepancies were encountered during the primary counting of the votes and there have been errors and omissions by or on the part of the counting officials who failed to comply with the Organic Law on National and Local Level Government Elections as the result of overbearing and undue influence exerted upon the officials to speed up the counting and make declaration by the sitting Member and leading candidate Richard Maru and Yangoru Saussia District Development Authority CEO Fatson Yaninen acting on behalf of Richard Maru.
3.	The application is supported by an affidavit of the Plaintiff who deposes that he is acting on behalf of fourteen other candidates contesting in this electorate excluding Richard Maru, the leader, and in that affidavit he annexed signed statements, statutory declarations and other affidavits deposed to by six witnesses raising allegations of suspicious and improper acts or omissions on the part of electoral officials in dealing with certain ballot boxes retrieved from the locked container and lost key resulting in forced cutting of the locks on the container to retrieve the boxes.
4.	The application names the First and Second Defendants in their capacities as the East Sepik Provincial Election Manager and Returning Officer Yangoru Sausia Electorate respectively. As I pointed out to the Plaintiff's lawyer, he omitted to name the Electoral Commissioner of Papua New Guinea on whose behalf and instructions that the two named Defendants were carrying out their respective functions.
5.	Lawyer for the Plaintiff/Applicant wanted to move this application ex parte due to the urgency of the matter. However, the court directed for the matter to be heard inter partes and as such it was adjourned from the morning to the afternoon to allow for service to be effected on the Defendants. Consequently a lawyer from the Solicitor General's Office appeared on instructions from the First Defendant who was the only one served with the documents. The service on the Second Defendant could not be effected on time as he was still conducting the scrutiny of the ballots at the counting centre in Yangoru Station. So the application was presented without his participation or presence.
6.	As noted earlier, the proceeding omitted to name the most important person in this action and that is the Electoral Commissioner Patilias Gamato or even the office, namely the Electoral Commission of PNG as the primary Defendant or Defendants in this proceeding. After all, the two Defendants named herein are only servants and/or agents of the Electoral Commission acting on behalf of the Electoral Commissioner and the Electoral Commission, and the power they possess or discretion they exercise in the performance of their functions in the Province or in the electorate concerned where counting is being carried out is done on behalf of the Electoral Commissioner, a constitutional office holder.
7.	The application also fails to state any jurisdictional source or power of this Court to hear this application, other than it being treated as an ordinary civil proceeding commenced by way of originating summons under the National Court Civil Practice and Procedure Rules (Order 4 Division 4). Even proceedings commenced in ordinary civil action under the National Court Civil Practice and Procedure Rules, it is critical and imperative to quote the source of power that allows the court to grant the relief that the applicant seeks. 
8.	This failure or defect/deficiency is quite critical to the success of this application because election process is a totally different cattle of fish to ordinary civil or even criminal causes of action. If there were illegal acts or practices witnessed before and during counting by anyone including electoral officials, if they are criminal acts or criminal in nature, they should be reported to the police for appropriate criminal charges to be laid under the Criminal Code. There are also electoral offences specifically created by the Criminal Code and even the Organic Law on National and Local Level Government Elections that carry criminal sanctions imposed by a court of competent jurisdiction that hears and determines such cases.
9.	If there are reasons to believe that the counting of the ballots was conducted contrary to the accepted normal practice or regular way of carrying out that task thereby amounting to some unfairness, ballot papers being misplaced or placed in wrong candidates tray or extra ballot papers were found in the counting area as implied in this case, these are matters raising questions of illegal practices or errors and omissions by the officials during the counting or scrutiny of the votes. These are complaints akin to those raised under section 215 of the Organic Law which relate to errors and omissions and illegal practices. 
10.	The only way such complaints are heard and determined by this Court is by way of petition that is duly filed under section 206 of the OLNLLGE. And a petition can only be filed after a declaration is made. There is no petition without a declaration. A petition signals the message that the election result is under challenge. And that is when parties come with their evidence to substantiate their allegations of impropriety, breaches of the law and so forth. After all, the allegations or complaints raised are indeed stating grounds for nullifying or invalidating an election or result and must therefore be raised in an appropriate manner.
11.	Outside an election petition, this Court has no power or jurisdiction to stop an election process. Only the Electoral Commissioner has the power to stop the election process and section 170 of the OLNLLGE is an example of such power that he possesses. Electoral Commissioner wields very wide powers in an election. This Court cannot usurp that function of the Electoral Commissioner to conduct an election by directing him to stop mid-stream in a count or scrutiny of the ballot with no good reason, or else the right of the majority choice to be declared is unnecessarily prolonged or delayed as the result of interferences in the process by the Court in response to complaints from disgruntled candidates outside of the avenue available to them under the Organic Law. They can have their say in the Court of Disputed Returns through a duly filed petition pursuant to section 206 OLNLLGE.

The Law
12.	Section 206 is very explicit and clear. It states that the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise. Take note of the phrase "and not otherwise". Complaints now raised are really a challenge to the election or to the result already evident from the progressive tally in the primary count. That can only be challenged by petition under this section, not in any other way.
13.	Section 215 of OLNLLGE relate to voiding of elections for illegal practices. This provision gives the National Court jurisdiction to nullify an election on the grounds of illegal practices. That only comes by way of petition. If the complaints here fall short of illegal practices, they should not be interfering with the process of scrutiny to find the majority choice of the voters as to the winner.
14.	In Philemon Embel v John Harisoi [2012] N4732 a similar application was made before Makail, J seeking injunctive orders to restrain the returning officer from counting large number of ballot boxes pending substantive hearing of the matter. Unlike in this case, the request to exclude from counting the nine ballot boxes was made to the returning officer who exercised his discretion and refused the request, hence the application to the court. There is no evidence before me that the returning officer was requested to stop counting for re-count of primary votes before quality check. On reflection therefore it is imperative that the Electoral Commission is represented in this application.
15.	In his decision Makail J said:
"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.
16.	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)."
16. His Honour goes further:
"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."
17.   Similar applications were made following earlier elections based on the same Organic Law that changed names over time since it was enacted. One such case was In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of the Wapenamanda Open Electorate; Ronald Rimbao v Maku Kopeyala as Returning Officer for The Wapenamanda Open Electorate, Ruben Kaiulo as Electoral Commissioner of PNG and The Independent State of Papua New Guinea (1997) N1674, a decision of Akuram J dated 28 June 1997 where an application was made seeking suspension of counting of votes for Wapenamanda Open Electorate until such time polling in two other polling places that were on-going were completed.
18. His Honour while refusing the application held:
"In the present application all I have is an affidavit of one person alleging certain irregularities on the conduct of polling officials. They are substantial allegations which need more evidence to be substantiated. I cannot act on evidence of only one person and stop the whole counting. However, if these allegations are found to be material later after the counting in the Court of Disputed Returns, it than has the effect of vitiating the election. This is what section 218 envisages and reads: 
218.	Immaterial Errors not to Vitiate Election
 (1) 	Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
 (2) 	Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
The evidence disclosed in this case is regarded by the Organic Law on Elections as immaterial. They cannot be used to vitiate the outcome of the elections. The Plaintiff may say, that is not the issue as the issue is that people did not have the opportunity to exercise their Constitutional right to vote. However, that exercise of the Constitutional right is subject to the prevailing circumstances as alleged and those are regarded by the Organic Law as immaterial.
One must also keep in mind section 126 (6) which says that "the Electoral Commissioner is not subject to direction or control by any person or authority". Although section 126 (4) and section 50 of the Constitution gives the citizen the right to vote but those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. In the present case, the Organic Law on Election regulates the right to vote and Part XIII of the Organic Law (Ss.113-146) sets out the regulatory provisions. Any serious breach of them would only vitiate the outcome of voting in a Court of Disputed Returns. 
What I have said is, one must look at the intends and purpose of the Constitutional provisions on elections with the Organic Law which basically says, the elections process must not be stopped. It must take its normal course and if there are any complaints, they should really be raised in the right forum, the Court of Disputed Returns. Courts must not interfere with the Administrative function of the Electoral Commission.
I am therefore, not satisfied that this court should stop the Electoral Commission from going ahead with the counting. I therefore refuse the application and orders sought and dismiss the application."
19.    And in another case two years earlier in Patrick Nema v Thomas Paraka, Ruben Kaiulo—Electoral Commissioner of PNG and Jack Karali—Returning Officer [1995] N1290 while commenting on the wide powers of the Electoral Commissioner in the elections, Akuram J made this observation:
" The above findings are based on the fact that had the Court been fully informed of the facts of the case, such orders would not have been made. Both in the original application and in the present one, I have not been referred to a provision in the Organic Law on Elections that allow the National Court to stop an election or to make orders for carrying out of elections. However, there is ample authority given to the Electoral Commissioner to exercise his discretion where he finds that there were problems being faced during the voting and that he can either stop the election or stop the counting. This was pointed out by His Honour Woods J in Thomas Negints v The Electoral Commissioner, (1992) (unreported judgement) N1072, that:
"The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commissioner with fairly wide powers and discretions to act in s. 147 to adjourn the polling for any cause or in s. 178 to extend the time for polling where he considers it necessary."
20.    So the Electoral Commissioner has very wide powers and discretion to exercise in relation to Elections. His Honour in the above case continued:
"The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make such orders as are deemed necessary see s. 155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with the responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner. He must realise that if something goes wrong during an election afterwards and they may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards."
21.   His Honour referred to the case of Malapu & Wasum v Electoral Commissioner (1987) PNGLR 128 and said:
"In the Malapu case referred to above on the facts it appeared that the damage may have already been so great, namely the numbers of votes destroyed but nevertheless the Judge in the case refused the application and said that the onus of proving that there had not been a free election had not been discharged because certain information had not been presented. But by saying that all the information so needed would be available after the counting of votes suggested therefore that is not till after the counting that you can present all the evidence required. And of course at that stage you are in the area of the Petition under s. 206."
I would adopt those views in the present case as I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretion granted to the Electoral Commissioner in the Organic Laws and by these proceedings to challenge an election in Section 206. ...."
22.    From this line of authorities it is quite clear that this court does not have jurisdiction outside an election petition to hear an election related complaint to restrain the EC, its servants and/or agents from carrying out their functions during the scrutiny of the ballot or votes when the entire Nation is focussed on knowing the results of the scrutiny and the choice of the majority of the voters by way of declaration. If there is any reason to be aggrieved by the final outcome or the process by which such outcome is said to have been reached, a party can be heard within a properly filed petition challenging the election or the result.
23.  Mr Manihambu for the Defendants challenged the competency of the originating process as being not in accordance with the National Court Rules and that the recount sought needed to be particularised as to the vote difference between the candidate with the highest number of votes and the one who polled the next highest number of votes not exceeding 0.25% of the number of votes polled by the candidate who polled the highest number of votes which are the requirements under section 170 of the OLNLLGE. I set out that provision below.
24.   Section 170 provides:
"170.	Re-count.
(1)	Subject to Subsections (4) and (5), where on the final count, the margin of votes between the candidate who polled the highest number of votes and the candidate who polled the next highest number of votes does not exceed 0.25% of the number of votes polled by the candidate who polled the highest number of votes, the candidate who polled the next highest number of votes may, at any time before the declaration of the result of the election, request the Returning Officer to re-count the ballot-papers contained in a parcel.
(2)	On receipt of a request under Subsection (1) the Returning Officer shall re-count the ballot papers contained in the parcel.
(3)	The officer conducting a re-count has the same powers as if the re-count were the scrutiny, and may reverse any decision in relation to the scrutiny as to the allowance and admission or disallowance and rejection of any ballot-paper.
(4)	Where the scrutiny is conducted by the use of an electronic system, a candidate may request and the Returning Officer shall, subject to compliance with provisions of Subsection (5), count the votes without the electronic system.
(5)	The candidate demanding a recount shall be required to pay a deposit of an amount of money that the Returning Officer estimates will be the cost of conducting a recount and the candidate must pay the amount determined by the Returning Officer and agree to cover further costs of the recount before a recount is granted under Subsection (4).
(6)	If a recount conducted under Subsection (4) produces a result different from the result produced by the electronic count, the Returning Officer shall refund to the candidate the deposit paid but if the result remains the same, the deposit shall be forfeited to cover the expenses of the recount, and, if any excess cost is not covered by the recount, the Electoral Commission shall claim the excess from the candidate who demanded the recount as a debt but if there is a balance remaining in the deposit after deducting the cost of recount, the balance shall be paid to the candidate."
25.    It is explicitly clear that this provision does not grant jurisdiction to the Court to intervene in the election process. It is a provision that is there for disgruntled candidates to seek recount of the ballots outside of an election petition by requesting the Returning Officer and satisfying him of the requirements pleaded or spelt out in section 170(1) of the OLNLLGE being met fully. There is no evidence before me that a request had been made to the Returning Officer, the Second Defendant herein or even the Provincial Election Manager or even the Electoral Commissioner to stop the count and to do a recount of the ballot papers. And there is no evidence before me that such request was made either in writing or orally to either the First or Second Defendant and there is no evidence that such request was made and was refused.
26.    The Court is being asked at first instance to exercise this jurisdiction that it does not have, a function that falls squarely within the power and discretion and well within the domain of the Electoral Commissioner. And he has not been asked to exercise that discretion. 
27.    Mr Alman in response to Mr Manihambu's submission said his client was not asking for re-count, but a re-check before going into elimination. Whatever the case maybe and whatever the procedure that is followed in the scrutiny of the ballot after all the votes have been cast, a re-count or re-check, that is a matter for the court of disputed returns to determine on the evidence and to direct such a course but within an election petition hearing. If recount is justified it shall so order under section 212 (1)(d) OLNLLGE. But not in this ad hoc manner.
28.    This application is misconceived and is an abuse of process in the light of overwhelming case law authorities that clearly explain the legal position in this type of applications while counting is in progress. The Plaintiff nor any other dissatisfied candidate has lost his right to seek redress in the Court which is still available pursuant to section 206 OLNLLGE. 
29.   The application is therefore dismissed.

John Alman Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendants