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Sorenu v Nayara; Re Provincial Government (Electoral Provisions) Regulation and Disputed Returns for the Yabem [1985] PNGLR 444 (23 December 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 444 - Sam Sorenu v Tom Nayara; Re Provincial Government (Electoral Provisions) Regulation and Disputed Returns for the Yabem-Mape Constituency, Morobe Province 

[1985] PNGLR 444

N528

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE PROVINCIAL GOVERNMENT

(ELECTORAL PROVISIONS) REGULATION

AND

IN THE MATTER OF DISPUTED RETURNS FOR THE YABEM-MAPE CONSTITUENCY

AND

IN THE MATTER OF SAM SORENU

PETITIONER

AND

IN THE MATTER OF TOM NAYARA

RESPONDENT

Lae & Port Moresby

Kapi DCJ

18-19 November 1985

23 December 1985

PROVINCIAL ASSEMBLY - Elections - “Declaration of result of election” - What constitutes - Public announcement sufficient - Provincial Government (Electoral Provisions) Regulation (Ch No 56), ss 148(1) 153.

PROVINCIAL ASSEMBLY - Elections - Voting - Recount of votes - Order for - When available - May be ordered by returning officer only before declaration of result - Provincial Government (Electoral Provisions) Regulation (Ch No 56), ss 148(1), 153.

Under the Provincial Government (Electoral Provisions) Regulation (Ch No 56), s 148(1), a returning officer may order a recount of votes “at any time before the declaration of the result of the election”.

Held

(1)      For the purposes of s 148(1), a “declaration of the result of the election” is the public announcement of the result made under s 153 and no more.

(2)      Accordingly, where a returning officer has made a public announcement of the result of an election he has no discretion to order a recount of votes.

Petition

This was a petition brought pursuant to the Provincial Government (Electoral Provisions) Regulations (Ch No 56) disputing the validity of an election to a provincial government.

Counsel

M Sevua, for the petitioner.

J Everingham, for the respondent.

Cur adv vult

23 December 1985

KAPI DCJ: This is a petition brought pursuant to the Provincial Government (Electoral Provisions) Regulation (Ch No 56), Pt XVIII. The petition disputes the election of the member for Yabem-Mape constituency in the Morobe provincial elections held in mid 1984. The winning candidate of the seat is Tom Nayara who is the respondent in this petition. The petitioner is Sam Sorenu, one of the losing candidates.

The writs for the Morobe provincial elections were issued on 12 April 1984. The nominations opened on 12 April 1984 and closed on 27 April. A total of seven candidates nominated for the seat. The polling period for the Yabem-Mape constituency commenced on 19 May and ended on 8 June 1984. The counting of votes started on 9 June at the council chambers, Finschafen. The counting of votes on this particular seat was completed on the morning of 10 June 1984. The result of counting at this point in time was as follows:

At about 7.30 am the returning officer, Napoleon Kaemala, declared Sam Sorenu elected member of the seat. The returning officer determined at this point in time that the officials were tired and he decided to suspend counting of votes on the other constituencies in the area and commence again at 1.00 pm in the afternoon. The returning officer was on his way home, walking across the sports field, when he was approached by Mr Tom Nayara and one of his scrutineers, Boi Ronuka, and requested that there be a recount of the votes. The request for recount was based on the counting of votes in ballot boxes 1, 3 and 7. The returning officer, after a preliminary investigation of the counting of votes, determined that there would be a recount. According to him, he made a public announcement at 1.00 pm that there would be a recount of votes on this particular seat after the counting of votes on all the other seats. There is some dispute as to whether or not the petitioner was notified but there is no dispute that not all the candidates were notified that this recount would take place.

The recount took place late in the afternoon and after the recount, different results were reached:

As a result of the recount, Tom Nayara was then declared elected and returned as the winning candidate. The petitioner disputes this result on two grounds. They are both questions of law:

(1)      That a returning officer under s 148 of the Regulations has a discretion to order a recount before a declaration of the result of an election. After a declaration is made, the returning officer has no power to order a recount. The result of this recount is therefore invalid.

(2)      In the alternative, if the above argument fails, the results of the recount are invalid in that proper notice of the recount was not given in accordance with s 150 of the Provincial Government (Electoral Provisions) Regulation.

The power of counting of the votes is given to a returning officer by s 148 of the Regulations. This provision sets out how the discretion may be exercised and the time in which this may be exercised. A recount may be conducted at the request of a candidate, Electoral Commissioner or by the initiative of the returning office. However, the power to recount votes is limited by the opening words of s 148, subs 1:

“At any time before the declaration of the result of an election ... .”

There is no other provision authorising the returning officer to conduct a recount after this point in time.

Counsel for the petitioner submitted that a declaration of the result of an election is a public announcement of the winning candidate. He submitted that when the returning officer, Napoleon Kaernala, announced that Sam Sorenu was the winner after the initial count, that is a declaration within the meaning of s 148(1).

Counsel for the respondent submitted that a declaration of a result of an election takes place when the writ is endorsed with the name of the winning candidate and returned to the Electoral Commissioner.

There is no definition of the term “declaration” under the Regulations. The proper meaning and the nature of this word can be ascertained from the other provisions setting out the various steps in the election process. Under s 146, a result of an election is known by ascertaining the number of votes given to each candidate. If there is a recount, it is conducted pursuant to ss 148, 149 and 150. When all the results are ascertained after this process, the returning officer is required to do two things under s 153:

(a)      publicly declare the result; and

(b)      endorse and return the writ to the Electoral Commissioner.

It is obvious from this provision that declaration of a result is a different and separate step from the endorsement and return of the writ. The legislature in choosing to use the word “declaration” s 148(1), did not include the step of return of the writ. The submission by counsel for the respondent on this point must fail.

What then is the exact nature of a declaration of a result of an election? A declaration is preceded by ascertainment of votes for each candidate under s 146 and is proceeded by endorsement of the name of the winning candidate on the writ under s 153(1)(b). It is clear that to publicly declare is to make an oral public announcement of the result at the counting of votes.

When the returning officer made a public announcement on the morning of 10 June 1984 at about 7.30 am that Sam Sorenu was the winner, a declaration of the result of an election had taken place within the meaning of those words in s 148 and s 153(1)(a). The returning officer has no power to conduct a recount of votes after such a declaration. It is clear in this case that the returning officer conducted the recount of votes after the declaration was made. The returning officer by that time had no discretion to conduct the recount and therefore the result of the recount is therefore invalid. That is not to say that if there are proper grounds for a recount that a recount could not be held after this point in time. That is to say, if there were votes not included by mistake and were discovered after the declaration, this may be a good ground for a petition under Pt XVIII of the Regulations. Under s 189(d) of the Regulations, a court may order a recount of ballot papers in a constituency on an election petition. That becomes a matter for the court and not the returning officer.

Having come to the above conclusion, it is not necessary to decide the second issue. I declare that Tom Nayara was not duly elected and declare Sam Sorenu as duly elected.

Declarations accordingly

Lawyer for the petitioner: Kanat & Sevua.

Lawyer for the respondent and the Electoral Commissioner: J Everingham.