SC644

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 22 of 1999

BETWEEN:

JIMSON SAUK PAPAKI
Applicant

AND:

DON POMB PULLIE POLYE
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani	:	SHEEHAN, JALINA,
SAWONG, JJ.
1999		:	25th, 29th October

Election Petition – application for judicial review of National Court determination.

Counsel:
Mr G. Sheppard for the Applicant 
Mr P. Dowa for the 1st Respondent
Mr K. Kongri for the 2nd Respondent

DECISION

BY THE COURT: In this application for judicial review the Applicant Jimson Sauk Papaki challengers the decision of the National Court which upheld the petition of Don Pomb Pullie Polye and declared that the election of the Applicant as Member of Parliament for the Kandep Open Electorate was invalid. 

Such review is not a matter of course and before relief may be obtained the Court must be shown cogent and convincing reasons. 

Of all the grounds pleaded in support of this review the Applicant pursued only three. The substance of these was:

(1) 	the first Respondent lacked standing as an elector and candidate and therefore lacked the standing to bring a petition under the Organic Law. The petition should therefore have been dismissed without hearing. 
(2)	the National Court determination that the Electoral Commission had through carelessness failed to secure the integrity of the poll at some polling places and in particular by the lack of security whereby boxes and ballot were stolen could not be sustained on the evidence. 
(3)	The National Court failed to observe the requirement of the onus of proof in civil matters by not giving due weight to rebuttal evidence of the Applicant. In brief the National Court failed to give proper weight to the evidence that the stealing of ballot boxes and papers from the Second Respondent was carried out by supporters of the First Respondent.

The third of these contentions can be dealt with quickly. The National Court held such evidence amounted to no more than untried accusations and therefore of little weight. We are satisfied that was a conclusion that was open to the trial Judge and one that he was entitled to adopt. It can not be said to be wholly unreasonable. We therefore find no merit in this ground. 

The Second ground does have merit. The claim to carelessness amounting to errors or omission by the Respondent Electoral Commissioner in allowing or enabling the theft of ballot boxes and papers was supported only by the fact of theft itself. That is the ballot boxes and papers were stolen, therefore there must have been a lack of security. Therefore there must have been carelessness. Therefore that carelessness amount to errors and omissions. That sequence does not necessarily or logically follow. It can be said to be an error in the decision amounting to an error going to the jurisdiction of the Court. 

But it is the first ground that determines this application.

The First Respondent nominated as candidate for the Kandep Open Electorate in the name Don Pomb Pollie Polye from Kokosa village. But the undisputed evidence is that that name does not appear in the common roll whether in respect of a person from Kokosa, or any where in the electorate at all. The learned trial Judge accepted the first Respondent’s evidence that in fact he is one and the same person as Don Pela of Gina Rest House, subsistence farmer, a name he said was used by him at school and subsequently in tertiary education. This was shown by school and tertiary certificates, driver’s licences and the like. 

But whether the First Respondent is in fact truly Don Pela or not is of no consequence for the electoral process. The law is very clear. A person not enrolled as an elector cannot vote and cannot be a candidate for election. This Court made that clear in Application of Takai Kapi SCR 88/97.

Therefore since the clear evidence before the trial Judge was that there was no person in the name of the 1st Respondent recorded in the common roll for the Kandep Open Electorate the Petitioner was without standing and could not be heard. The only conclusion that the Court could have come to was to strike the petition out. In failing to do so the National Court acted outside its jurisdiction. 

Accordingly this application must and does succeed. The decision of the National Court that the election of the Applicant void is quashed and the 1st Respondent’s petition before the National Court is declared invalid. 

That being the case there is no petition challenging the election of the Applicant for the Kandep Open Electorate. The election of the Applicant is therefore unchallenged and he is entitled to a declaration that he is validly elected. The application is therefore upheld in these terms with costs to the Applicant and the Second Respondent.

Lawyer for the Applicant		-	Maladinas Lawyers
Lawyer for the 1st Respondent	-	Paulis Dowa Lawyers
Lawyer for the 2nd Respondent	-	Nonggorr & Associates