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Kapal v Karali [1998] PNGLR 417 (12 June 1997)

[1998] PNGLR 417

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PHILIP KAPAL

V

JACK KARALI; AND
the ELECTORAL COMMISSION

MOUNT HAGEN: INJIA J
11, 12 June 1997

Facts

The plaintiff who was a candidate for the Western Highlands Provincial Seat in the 1997 National Elections approached the National Court to seek orders for the Electoral Commission to correct errors relating to the ballot papers. According to the plaintiff’s evidence, the ballot papers showed that the plaintiff was a Pangu Pati candidate whereas he was a National Party candidate. Also beside his photo was the photograph of the Leader of Pangu Pati, Chris Haiveta.

The plaintiff requested the court to order the defendants to rectify the anomaly by requiring them to make an announcement at the 646 polling booths in the province that the plaintiff was a National Party candidate.

Held

1. Where an error is committed by electoral officials, the error can only be rectified administratively by the Electoral Commission.
   
2. The Organic Law on National and Local-level Government Elections (OLNLGE) does not make provision for an aggrieved candidate to invoke the power of the National Court to rectify the errors of the Electoral Commission.
   
3. An aggrieved candidate can however, review the decision of the Electoral Commission not to rectify the errors, but only through the judicial review procedure provided under Order 16 of the National Court Rules.
   

Counsels

P Kopunye, for the plaintiff.
M Tamutai, for the defendants.

12 June 1997

INJIA J. This is an application by the plaintiff for orders requiring the defendants to correct an error on the ballot paper for the Provincial seat in the Western Highlands Province in the coming National Elections. The plaintiff is a candidate for that seat. The first defendant is the Provincial Returning Officer employed by the second defendant. The error sought to be corrected is in respect of the ballot paper for the Provincial seat wherein the plaintiff appears as being endorsed by the Pangu Party with that party’s leader Chris Haiveta’s photograph appearing next to the plaintiff’s photograph. The plaintiff claims he is a National Party candidate and not a Pangu Party candidate and therefore, the ballot paper should be immediately corrected in that regard before the date of polling which is scheduled for 16th June 1997. As to the method of correction, the plaintiff seeks orders by notice of motion as follows:

"That the defendants, before casting of votes in the 646 polling booths in the Western Highlands Province, informs and announce in public to the voters the following information:

1. That there had been a mistake in the printing of the Ballot Papers.
   
2. Philip Kapal is contesting the Western Highlands Regional Seat as a National Party endorsed candidate and not Pangu Party endorsed candidate."
   

There is evidence to show that the Electoral Commission was notified as early on 2 April 1997 that the plaintiff was a National Party candidate. Notices published in the daily Post Courier and the National newspapers by the Commission shows that it was aware of the plaintiff being endorsed by the National Party, but somehow the ballot paper does not reflect this. When the error was pointed out by the plaintiff’s lawyer, the Commission responded in writing saying that according to their records, the Pangu Party officially endorsed the plaintiff for the Western Highlands provincial seat which was contained in their list of candidates dated 2nd April, 1997 and that the National Party still had not registered under the Association’s Incorporation Act "which meant receiving their list of endorsed candidates well after the required period". The Commission maintained no fault on its part.

The procedure for correcting of errors in a ballot paper is specifically provided for in s 176 of the Organic Law on National and Local-Level Government Elections 1997 (hereinafter abbreviated OLNLGE) which provides:

"Any ... error or omission in the printing, ... issue ... of any ... ballot paper ... may be remedied, removed, rectified and supplied by the Electoral Commission by notice in the National Gazette, specifying the matter dealt with and providing for the course to be followed, and that course shall be valid and sufficient".

The procedural options required of the Electoral Commission by the plaintiff in his lawyer’s letter of 9 June 1997 which are similar to the options sought in this application is not provided for in s 176 and therefore misconceived.

Also, the OLNLGE does not make provision for a dissatisfied candidate to resort to the National Court to seek such orders. (c.f. s 185 which empowers the National Court, upon application by an officer of the Commission, to grant an injunction restraining an apprehended contravention of s 182 (Display of certain electoral posters prohibited)). The intention of the OLNLGE is that errors or omissions, inter alia, on the ballot paper would be administratively dealt with in accordance with the specific procedure prescribed in s 176. I have already said that the options put to the Commission are misconceived. In the event of a refusal by the Commission, the aggrieved person would have to apply to this court by way of application for judicial review against his refusal under the rules of court, i.e. National Court Rules, Order 16. This present application is not a judicial review application.

The other intention of the OLNLGE is that the National Court sitting as a Court of Disputed Returns when dealing with an election petition under Part XVIII can deal with errors or omissions on the part of the Commission if such ground is raised in the petition. In the event that the plaintiff looses the election, he may, if he wishes to, take up this very same ground in an election petition. It would be pre-mature, superfluous and duplicatory of the election review process of the Court of Disputed Returns for this court to deal with the same issue now.

For these reasons, I dismiss the plaintiff’s claim with costs to the defendants.

Lawyer for the plaintiff: Kopunye Lawyers.
Lawyer for the defendants: Tamutai Lawyers.