N10592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 303 OF 2023

BETWEEN:
TOMAIP KAPILI
Plaintiff

AND
NEWMAN WAILYO, in his capacity as RETURNING OFFICER, LAGAIP OPEN ELECTORATE  
First Defendant

AND
SIMON SINAI, THE ELECTORAL COMMISSIONER
Second Defendant

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

Mt Hagen: Toliken J
2023:  09th, 10th, 11th November

PARLIAMENT – supplementary Election – appointment of counting centres – appointment by Returning Officer – Whether counting centre was appointed – whether Electoral Commissioner has power to over-ride decision of Returning Officer – power of delegation by Electoral Commissioner – whether the Electoral Commissioner has power to over-ride decision of a Returning Officer - whether the National Court has jurisdiction to intervene in counting process of an election – Constitution, s 126(3), Sch. 1.10; Organic Law on National and Local-Level Government Elections, ss 18(3), 19(1), 148.
PRACTICE AND PROCEDURE - application to dismiss for non-disclosure of a reasonable cause of action or abuse of process – National Court Rules, Order 12 Rule 40. 

Cases Cited:
Electoral Commission v Niningi (2003) SC710
Special Reference to Constitution section; Reference by Francis Damem, Attorney general (2002) SC689
Martin Lakari v Simon Sinai (2023) N10535
Waranaka v Ralai (2017) N6809
Marabe v Elle (2008) N3490 
Negints v Electoral Commissioner (1992) N1072

Counsel:
E. Minok, for the Plaintiff
D. Kints, for the Defendants 

RULING

11th October 2023

1.	TOLIKEN J: 	INTRODUCTION: The Plaintiff, Tomait Kapili, a candidate for the recently concluded polling for the Lagaip Electorate, Enga Province, instituted proceedings by way of Originating Summons on 06 November 2023. He sought, among others, the following declarations and orders:

(1)	A declaration that it is entirely the prerogative of the Returning Officer for Lagaip Open Electorate to appoint a Counting Center pursuant to Section 148(10) of the Organic Law on National and Local-level Government Elections.
(2)	 A declaration that the Returning Officer for Lagaip Open Electorate is the only person that can appoint a counting center outside of the Electorate or Province if circumstances make it difficult to count within the Electorate or Province pursuant to Section 148(3) of the Organic Law on National and Local-level Government Elections.
(3)	A declaration that the Electoral Commissioner does not have the authority or cannot issue directions in relation to the appointment of Counting Centers pursuant to Section 148 of the Organic Law on National and Local-level Government Elections.
(4)	An order pursuant to Section 155(4) of the Constitution that any directives issued by the Electoral Commission for appointment or change of counting center for scrutin[y] of ballot papers for 2023 Lagaip Open Electorate Supplementary Election is null and void.
(5)	An order pursuant to Section 155(4) of the Constitution for the Returning Officer for Lagaip Open Electorate and Enga Election Committee, Enga Provincial Police Commander and Election Manager to conduct a meeting to assist all situation on the ground so the Returning Officer can appoint a Counting Center within Enga Province.
(6)	An order pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution be made for a permanent restraining order against the Electoral Commissioner from interfering with the job of the Returning Officer for Lagaip Open Electorate in appointing a convenient counting centre in Enga Province for Lagaip Open Electorate … in consultation with the … Enga Election Steering Committee, Enga Provincial Police Commander and Enga Provincial Manager. 
….

2.	I issued ex parte interim orders retaining the Defendants from moving the counting of ballot papers to Goroka and made these orders returnable for inter partes hearing on Thursday 09 November 2023.

3.	On 08 November 2023 the Defendants filed a Notice of Motion to dismiss the proceedings for not disclosing a reasonable cause of action and for being an abuse of process pursuant to Order 12 Rule 40 (a) and (c)  of the National Court Rules.

4.	On 09 November 2023 I enquired of counsel if they had talked before coming to Court. They said they did not, so I allowed them time to try and reach an amicable settlement out of court overnight.  When the matter returned the next morning counsel advised that they did not reach a settlement, hence the matter proceeded.

5.	Mr.  Kints of counsel for the Defendants sought leave to move the Defendants Notice of Motion to dismiss. He first sought an order to dispense with the requirement for service. Mr. Minok of counsel for the Plaintiff objected but I over-ruled his objection on the basis that even though he was short served, the urgency of the whole matter of conducting the scrutiny of the ballot for the Supplementary Election to meet the date of the Return of Writs was such that, any delay would derail the process and further deprive the people of Lagaip from having a voice in Parliament in due time. Furthermore, there is no prejudice on the part of the Plaintiff.  I therefore allowed the Defendants to move their motion to dismiss and adjourned to this Saturday afternoon for a ruling.

6.	I gave a ruling in summary and undertook to provide a full judgment. This is the judgment.

BACKGROUND

7.	The following pertinent facts appear from the supporting affidavits  of  both the Plaintiff and the Defendants:

•	By National Gazette No. G716 – 5 September 2023, George Puio was appointed Returning Officer by the Electoral Commissioner.
•	The Governor General issued the Writs for the Lagaip Supplementary Elections on Thursday 21 September 2023 and Nominations opened.
•	Nominations closed on Thursday 28 September 2023.
•	Polling commenced on Saturday 21 October 2023 and concluded on Friday 27 October 2023.
•	Return of Writs on or before Friday 17 November 2023.
•	On 01 November 2023, a group of candidates namely, Nathan Piari, Mark Pema Erepan, Paul Paken Torato, Newman Poio Taki, Newman Wanpis Titakai and Mathew Lau wrote to the Electoral Commissioner seeking the suspension of the Returning Officer Mr. Puoi and other officials (named) for alleged irregularities and illegal practices during the polling period. They expressed concern about the security of ballots and integrity of the scrutiny and requested that the counting be moved to either Goroka or Kundiawa. 
•	On 01 November 2023, Assistant Commissioner, Highlands Western Command, Samson N Kua penned a Minute to the DCP - Operations. ACP Kua commended the peaceful conduct and conclusion of the Supplementary Election. He advised that members of the Election Steering Committee, namely the Provincial Administrator, the Election Manager, R/O for Laiagam [Lagaip] and PPC Enga. The Steering Committee generally agreed to conduct the counting at Wabag Primary School. ACP Kua had reservations about this and expressed the opinion that the counting should be moved to either Kundiawa or Goroka. This is to allow counting to progress freely without intimidation, favouritism or nepotism by politically affiliated persons because Laiagaam had never in the past had peaceful elections. ACP Kua advised that ACP for Eastern End agreed with him.
•	It appears that the Electoral Commissioner was persuaded by these letters so, he wrote to Mr. Puio on 02nd November 2023 and directed him to change the Counting Venue from Wabag to Goroka.
•	Mr. Puio responded on the same day.  Mr. Puio thanked the Commissioner for acknowledging his team’s efforts in delivering a safe, fair and transparent polling. He further advised the Commissioner that they had intended to start counting that day (2 November 2023) but since the Commissioner had directed for a change of venue they will comply with his directions. Mr. Puio then submitted his resignation citing a big protest in Wabag against him by supporters of candidates and that he had been getting threats as well.
•	On Friday 3rd November 2023, by Gazette No. G872, the Electoral Commissioner revoked the appointment of Mr. George Puio as Returning Officer and appointed Mr. Newman Wailyo to replace him.
•	On the same day the Electoral Commissioner wrote to Mr. Wailyo advising him of his appointment. He referred Mr. Wailyo to his directions of 2 November 2023 to Mr. Puio for the change of counting venue to Goroka and for ballot boxes to be moved there for counting to commence there and directed Mr. Wailyo to implement these directions immediately.
•	By letter dated the same day, the Electoral Commissioner also advised the Provincial Administrator, Mr. Sandis Tsaka of the change of venue to Goroka, giving his reasons for doing so.   

ISSUES

8.	I will decide the Defendant’s Motion to dismiss the proceeding for abuse of process and not disclosing a reasonable cause of action, and by extension, if need be, the Plaintiff’s substantive cause in the context of the following issues:

(1)	Did the former Returning Officer Mr. George Puio appoint a Counting Centre of the Lagaip Open Electorate Supplementary Election?
(2)	If so, does the Electoral Commissioner have the power or authority to over-ride a decision of the Returning Officer or to appoint a counting centre where none was appointed?
(3)	Does the National Court have the power to intervene in the counting process of an election?  

Issue 1:	Did Mr. Puio appoint a counting venue in Enga for the Lagaip Open Electorate Supplementary Election? 

9.	The affidavit materials before me do not show that Mr. Puio did in fact appoint Wabag Primary School and the counting venue. The only reference to a counting venue in Wabag was in ACP Kua’s Minute to DCP - Operations where ACP Kua makes reference to a desire by the Election Steering Committee to have the counting done in Wabag. Of course the Steering Committee, has no power to appoint counting centres. That power as we shall see is vested in the Returning Officer by Section 149 of the Organic Law on National and Local-level Government Elections (the Organic Law), subject to any direction to the contrary by the Electoral Commissioner.

10.	Mr. Puio did not file any affidavit, but he did acknowledge the Commissioner’s direction for change of venue to Goroka and undertook to comply with the direction. But he then resigned immediately. Mr. Newman Wailyo, therefore, did not appoint any venue, because he was directed by the Commissioner to immediately implement the direction to Mr. Puio.

11.	Without any evidence to the contrary, I can safely conclude that neither Mr. Puio nor Mr. Wailyo appointed a counting venue for the Electorate in accordance with powers vested in them by Section 148 of the Organic Law.

Issue 2: Does the Electoral Commissioner have the power to appoint a counting centre or over-ride the decision of a Returning officer?

12.	The power to appoint a counter centre is provided under Section 148 of the Organic Law. It says:

148.	COUNTING CENTRES.
(1) The scrutiny shall be conducted at such places, to be known as “counting centres”, as are appointed by the Returning Officer for the purpose.
(2) The counting centre shall be within the electorate where the election was held.
(3) Where circumstances make it difficult for the counting centre to be located within the electorate, the Returning Officer may appoint a place outside the electorate to be the counting centre.
13.	Mr. Kints submitted for the Defendants that Section 148 is not a stand-alone provision. It must be read with Sections 18 (3) and 19 (1) of the Organic law. The effect and intention of Parliament is that powers vested in Returning Officers is a delegated function of the Commissioner whose prime function is to organize and conduct elections according to Section 15 of the Organic Law. The fact that the power to appoint counting centres is vested in the Returning Officer by s148, does not necessarily mean that the power is not one that is not primarily vested in the Commissioner.

14.	Furthermore, the Commissioner is not subject to direction or control of any person or authority as provided by Section 126 of the Constitution. Counsel submitted that it is absurd to argue, as the Plaintiff does, that the power under s148 is vested exclusively in the Returning Officer and that the Commissioner cannot interfere with the exercise of that power.

15.	The use of the word “shall” in Section 148, is merely directory, not mandatory and certainly does not mean that the Electoral Commission is divested of powers to appoint counting venues for the simple reason that as the over-all person in charge of elections he can exercise powers vested in the Returning Officer.

16.	These proceedings are an abuse of process on that basis and should therefore be dismissed.

17.	Mr. Minok strenuously argued that the Electoral Commissioner has absolutely no power to appoint counting centres. This is a power that is vested exclusively in the Returning Officer. Counsel agreed with Mr. Kints that the use of the word “shall” in Section 148 is merely directory but nevertheless stuck to his view that the Electoral Commissioner has no power to appoint counting centres.

18.	So, is the power under s 148 vested in the Returning Officer to the exclusion of the appointing authority and the person charged with organising, managing and conducting elections?

19.	Returning Officers are appointed by the Electoral Commissioner under Section 19 of the Organic Law. Section 19(1) pertinently provides:

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.
…
(Underlining supplied)

20.	Returning officers are appointees of the Electoral Commissioner.  Their duty is to give effect to Organic Law with the electorate for which they are appointed. This duty includes the duty vested in them by Section 148 - appointment of counting centres.

21.	While Section 148, when read alone, does not provide that returning officers are subject to direction by the Electoral Commission, s 19 (1) clearly provides that they are so subject. The Electoral Commission is defined by the Organic Law, Section 5 (2), as consisting of the Electoral Commissioner.  To argue as Mr. Minok does, that the Electoral Commissioner has no power to appoint counting centres is absurd and clearly runs against the clear intention of Parliament that the exercise of duties by officers appointed by the Electoral Commissioner under the Organic Law to assist him in his prime function of organising and conducting elections, must be subject to directions by the Commissioner. To hold otherwise will be to invite insubordination which will have serious consequences to this important constitutional and democratic process of governance according to the rule of law.

22.	 The argument is absurd because a Returning Officer holds no independent and original exclusive constitutional powers in the conduct of elections. His appointment and duties are those that are specifically provided under the Organic Law. He cannot hold powers that are independent of direction and control by the Commissioner. He is not like the Electoral Commissioner, who, by constitutional edict, is not subject to direction or control by any person or authority when discharging his exclusive and independent powers and functions and responsibilities in the management and conduct of elections. (s 126 (3) of Constitution).

23.	Furthermore, a returning officer (and other officers and employees, or those engaged by the Electoral Commissioner to assist in the conduct of elections) are exercising delegated functions of the Commissioner. 

24.	The power to delegate is vested in the Commissioner by Section 18 of the Organic Law.  Section 18 says:

18.	DELEGATION.
(1)  The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.
(2) Every delegation under Subsection (1) is revocable, in writing, at will.
(3) No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission.
(Underlining supplied)
25.	Clearly then, there being no serious argument to support the proposition that the power to appoint counting centres is vested exclusively in a returning officer, or that the power is not a delegated power of the Electoral Commissioner, the Commissioner’s decision and direction to move the scrutiny of the ballot for Lagaip Open Electorate Supplementary Election to Goroka was and is within his powers to do so.

26.	As we have seen, there is no evidence that Mr. George Puio has appointed a counting centre, but even if he did the Commissioner’s direction to him to move the counting to Goroka effectively countermanded any decision by him.

27.	Was the Commissioner’s direction without foundation? No, he acted upon advice by ACP Kua whose professional opinion was that it would be unsafe to conduct counting in Wabag based on past experience. His decision was further bolstered by no less than six candidates who also expressed similar sentiments and requested that the counting be moved to either Goroka or Kundiawa.

28.	The decision and the reasons why the Commissioner decided as he did, are, in my respectful opinion, not subject to judicial scrutiny, at least not until the end of the process when losing candidates can invoke the power of this Court to dispute the returns or results.

29.	Mr. Minok’s further argument that his client was denied natural justice is without basis or foundation. The Plaintiff did not plead this in his Originating Summons. But even if he did, I do not see how he was denied natural justice (be it the right to be heard or apprehension of bias) when the decision to appoint counting places is something that candidates or voters for that matter play no part in.  This argument must fail.

30.	I have been referred to case precedents which I thank counsel for. The case of Marabe v Elle (2008) N3490 (Yalo AJ) is a case on point and also on all fours with this current matter. Yalo AJ eloquently canvassed the issue at hand and discussed Sections 148 and 19 of the Organic Law as well as the powers of delegation vested  in the Commissioner under s 18 (3) of the Organic Law. In that case the Electoral Commissioner removed a returning officer and directed that the counting be shifted elsewhere.  I agree with his Honour when he said at paragraphs 11 & 12 that:

11. …, is the Electoral Commission bound by its Returning Officer’s decision? Or alternatively is it at liberty to appoint another venue? Counsel for Mr Marabe did not point me to any relevant provision of the Organic Law that suggests that the Electoral Commission is bound by its officer’s decision in this case. My own research offers me no help.
12 	What I do find though are provisions that clearly suggest the contrary. For instance, Section 18(3) of the Organic Law expressly states that the fact that powers and functions have been delegated does not prevent the Electoral Commission from exercising the same powers itself. The Organic Law is saying that the Electoral Commission has the ultimate reserve power which it may invoke or exercise at any time as it pleases. As to under what circumstances it may do so is not prescribed by the Organic Law. But I understand that to mean that as the ultimate source of the power or function so delegated it has the overriding prerogative to exercise the same delegated powers and functions as it sees fit at any time it chooses to notwithstanding that the delegate of such power is capable of exercising the same power. It is not for the officer delegated the power to question the very source of the power.

31. 	And at paragraphs 14 and 17, his Honour continued:
14.  The second point is that under Section 19 a Returning Officer exercises the delegated powers and performs the delegated functions "subject to any direction from the Electoral Commission". Applying this provision in the present instance, it means that even if a Returning Officer has properly exercised a delegated power or properly performed a delegated function it is still subject to the direction of the Electoral Commission. The Electoral Commission is entitled to make a decision that overrides, reverses or contradicts the decision of its Returning Officer, having considered all relevant factors. As to whether such an action or decision is proper or not in any given circumstance may be open to be challenged at a proper forum if an aggrieved party so wishes. The important point to note is that the officers exercise their delegated powers and perform their functions "subject to any direction of the Electoral Commission".
	…….
17 	I am convinced that the Electoral Commission is not bound by the decision of the Returning Officer to count the ballots in Wabag. It is at liberty to conduct scrutiny of the ballots in Wabag or appoint another venue. That decision cannot be influenced by the National Court unless it is necessary to do justice in the particular circumstances of a particular case. This is not one of those cases where the Court can invoke its inherent jurisdiction under Section 155(4) of the Constitution. Furthermore the Electoral Commission’s choice of counting venue cannot be influenced by any person or authority, although it is at liberty to consider views of others or the relevant security personnel that may be expressed with a genuine view to assist it.

31.	So, when it comes to organizing, managing and conducting elections, the people through the Constitution and the Organic Law have vested original and exclusive power to no other body except the Electoral Commission. The Commissioner has the power to delegate, and this includes the power to assume a delegated function once delegated. The power to appoint counting centres vested under s148 of the Organic Law is one such delegated function and the Commissioner has the original power as manager of elections and the person who appoints returning officers.

32.	To urge the Court to declare therefore that the Commissioner had no power to appoint counting place under section 148 of the Organic Law and that the power is vested exclusively in the Returning Officer is misconceived.
Issue 3:	Whether the National Court can intervene in the counting process.
33.	The law on whether or not the National Court can intervene during the election process is settled. The Supreme Court and this Court have repeatedly and consistently held that the National Court has no power to interfere with elections while they are in progress. (Electoral Commission v Niningi (2003) SC 710; Special Reference to Constitution section; Reference by Francis Damem, Attorney general  (2002) SC689; Marabe v Elle (spra.); Waranaka v Ralai (2017) N6809; Negints v Electoral Commissioner (1992) N 1072; Martin Lakari v Simon Sinai (2023) N10535).

34.	The Plaintiff has not convinced me to hold otherwise. This Court cannot therefore descend into the arena of the Electoral Commissioner when the election process has yet to conclude. In other words to reiterate the prevailing case precedents, until the election has concluded, the National Court has no  power to intervene, let alone direct the Electoral Commission on how  to manage, organized and conduct election.

35.	These proceedings are therefore dismissed for disclosing no reasonable cause of action and for abuse of process.

36.	The Plaintiff shall pay the defendants’ costs to be taxed if not agreed upon.  
Ordered accordingly.
________________________________________________________________
Minok & Company Lawyers: Lawyers for the Plaintiff	
Jema Lawyers: Lawyers for the Defendants