N7276
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) 19 of 2017

BETWEEN:
RIMBINK PATO
Plaintiff

AND:
MAKU KOPYALA,
Returning Officer, Wapenamanda
Open Electorate
First Defendant

AND:
ANTON IMAU,
Election Manager, Enga Province
Second Defendant

AND:
PATILIAS GAMATO,
Electoral Commissioner of Papua New Guinea
Third Defendant

Waigani:	Hartshorn J
2017: 26th July
                    
INJUNCTIONS- Whether interim injunctive relief and restraining orders should continue

Cases Cited:
Papua New Guinea Cases

Craftworks Niugini Pty Ltd v. Allan Mott (1997) SC525 
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
Markscal Limited v. MRDC [1996] PNGLR 419
Robinson v. National Airlines Commission [1983] PNGLR 478

Overseas Cases

American Cyanamid Company v. Ethicon Limited (1975) AC 396 

Counsel:

Mr. D. Mel, for the Plaintiff
Ms. A. Kimbu, for the Defendants

Oral decision delivered on
26th July, 2017

1.  HARTSHORN J: This is a decision on whether injunctive relief already granted should continue.  

2.  The plaintiff, a candidate for the Wapenamanda Open Electorate in the 2017 National Elections successfully made urgent application last Saturday for injunctive relief pursuant to Order 4 Rule 49(5)(i) and Order 14 Rule 9(a) National Court Rules before the commencement of proceedings.

3.  The relief granted was, in essence, for two ballot boxes to be removed from scrutiny and if they had been included and their contents counted, for those votes to be deducted from the progressive tally. On the evidence filed on behalf of the plaintiff, these interim orders appear to have been complied with. The plaintiff has commenced the proceeding by originating summons.

4.  The injunctive relief was sought as the Electoral Commissioner, by letter dated 18th July 2017, had directed that the two subject boxes be removed from scrutiny because of overwhelming evidence that the two boxes and ballot papers for two subject polling places had been hijacked, but notwithstanding this directive, the directive had not been complied with by the Returning Officer and Electoral Commission staff in the electorate. 

5.  The plaintiff submits that the interim relief should continue as:

a)	It is undisputed that the Electoral Commissioner gave a lawful direction to exclude two ballot boxes and that direction was not complied with. There is a serious question to be tried;

b)	The Court has the jurisdiction to ensure that the Electoral Commissioner’s direction is complied with;

c)	Damages are not an adequate remedy;

d)	The balance of convenience favours the injunctive relief granted continuing. 

6.  The Defendants’ one of whom is the Electoral Commissioner, oppose the interim relief continuing as:

a)	A serious question to be tried has not been established;

b)	The balance of convenience does not favor the relief continuing;

c)	The plaintiff can petition the Court of Disputed Returns.

Consideration 

7.   The principles upon which the court may grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanamid Company v. Ethicon Limited (1975) AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v. Allan Mott (1997) SC525. The principles contained therein have been reaffirmed by the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853. 

8.   In Chief Collector of Taxes v. Bougainville Copper Limited (supra), the Supreme Court said at 31:

“In our jurisdiction the principles relevant to injunctive reliefs (sic) are well settled. In Golobadana No. 35 v. Bank of South Pacific, Kandakasi J. ….. concluded as follows:

“A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant then an injunctive order should not be granted.” 

9.  Similarly, in Ramu Nico Management (MCC) Limited and Ors v Tarsie and Ors (2010) SC1075 at 53, in a decision in which I dissented on matters not currently relevant, I said:

”The law on injunctions is settled in this jurisdiction. Injunction is an equitable remedy. It is a matter for the discretion of the Court to refuse or grant the relief sought. In order for an injunction to be granted, the applicant must demonstrate to the Court that there is a serious case to be tried on the substantive proceedings. The leading authority is a decision of the House of Lords in “American Cynanamid Company v Ethicon Limited (1975) 1 All ER 594. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525 and Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853. 

10.  The first consideration is whether the plaintiff has a serious question to be tried. A serious question to be tried has been interpreted to mean:

“What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success…..”: Robinson v. National Airlines Commission [1983] PNGLR 478 and 

“……. A strong case which, on the evidence presented would support a permanent injunction”: Markscal Limited v. MRDC [1996] PNGLR 419.

11.  Affidavit evidence has been filed. As to the court’s consideration of that evidence at this stage, I am mindful of the words of Lord Diplock in American Cyanamid (supra):

“It is not part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.”

12.   As to preliminary objections that the substantive relief was sought on an interim basis and that the proceedings should have been commenced by writ of summons:

a)	It is clear that declarations are sought substantively;

b)	There is insufficient evidence before the court for it to determine whether the facts are in dispute such that a writ of summons should have been used to commence the proceeding. 

13.  As to whether a serious question to be tried has been established; the plaintiff seeks substantively declaratory relief to the effect that certain votes for the Wapenamanda Open Electorate were not lawfully cast, that written directions of the Electoral Commissioner directing that the ballot boxes containing the certain votes be rejected were lawful and that the purported acceptance of the ballot boxes for counting was unlawful.

14.  Section 3 Organic Law on National and Local-level Government Elections (Organic Law) relevantly provides:

“"the Electoral Commission" means the Electoral Commission continued in establishment by Section 5;
 "the Electoral Commissioner" means the Electoral Commissioner appointed under Section 5;”

15. Section 5(2) Organic Law provides:

“(2)	The Electoral Commission shall consist of the Electoral Commissioner.”

16.  Sections 15, 19(1) and (7) Organic Law are as follows:

“15.	Prime function of the Electoral Commission.
It is the prime function of the Electoral Commission to organize and conduct all elections for the Parliament and the legislative arms of the Local-Level Governments.

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.

 (7)	A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.”

17.  Further, s. 3 Electoral Law (National Elections) Regulation 2007 provides:

 “3.	Electoral Commissioner.
The Electoral Commissioner has the overall charge of elections and, unless otherwise provided by the Law, all other electoral officers and officers, including Election Managers, Returning Officers, Assistant Returning Officers, Poll Clerks and other polling and scrutiny officials are subject to the direction and control of the Electoral Commissioner on all matters relating to or connected with elections.”

18.  Reliance was placed by the defendants upon s.153A(4) Organic Law for their submission that a decision of a Returning Officer concerning the admittance of a ballot box for scrutiny may not be challenged other than by way of petition, and so this court does not have jurisdiction to consider this proceeding. 

19.   From a perusal of s. 153A Organic Law and specifically s. 153A(4), the word “may” is used. I am satisfied that this grants to this court a discretion. Further, s. 153A does not address a circumstance where the Electoral Commissioner issues a direction concerning the scrutiny or otherwise of a ballot box and that direction is not carried out.

20.    I note that Ms. Kimbu, counsel for the defendants conceded, correctly in my view, that this court does have jurisdiction, and a discretion, but that it should be exercised very carefully.

21.  From the evidence, it is clear that the Electoral Commissioner issued a direction, it is clear that it was not being carried out and that in fact one box had been counted. I am satisfied that the Electoral Commissioner has the power to issue such a direction and that all Returning Officers, Acting Returning Officers and Electoral Commission employees must comply with such directions.

22.  Consequently for the above reasons, I am satisfied that the plaintiff has established a serious question to be tried that has a likelihood of success. 

Damages

23.  I am satisfied that damages are not an adequate remedy in this instance.

Balance of convenience 

24.  In circumstances where the Electoral Commissioner has given a direction and it has not been retracted, the direction must be followed. This is so in this instance as notwithstanding that the Electoral Commissioner opposes the continuation of the injunctive relief, he has not retracted his direction or given evidence as to why he has adopted the position that he has to the proposed continuation of the injunctive relief. For the Court not to give effect to a decision of the Electoral Commissioner after a subordinate has ignored the direction and made a decision or acted to the opposite effect, where the evidence indicates gross abuse and irregularities, and the Electoral Commissioner issued his direction on this basis, is to in effect legitimize disobedience of the Electoral Commissioner’s direction and to undermine his authority. This calls into question the integrity of the powers of the Electoral Commissioner and the integrity of the electoral process. 

25.  This is especially so when the evidence before the court and presumably before the Electoral Commissioner when he made his decision, leaves little doubt that gross abuse and irregularities have occurred. 

26. In such circumstances I am satisfied that the balance of convenience favours the continuation of the interim orders that were initially granted. 

Orders

27.   The Orders of the Court are:

a)	The interim relief already granted shall continue until the determination of the 	substantive proceeding.
b)	Time is abridged. 
____________________________________________________________	
Mel & Henry Lawyers:  Lawyers for the Plaintiff                                                           
Kimbu & Associates:  Lawyers for the Defendants