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Electoral Commission of Papua New Guinea v Masueng [1999] PGNC 129; [1999] PNGLR 171 (14 December 1999)

[1999] PNGLR 171

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ELECTORAL COMMISSION OF PAPUA NEW GUINEA; and
PETER SIMBI

V

JOHN MASUENG; and
RICHARD KORONAI

WAIGANI: SEVUA J
19 August; 14 December 1999

Facts

The plaintiffs, Electoral Commission of Papua New Guinea and Peter Simbi are seeking review of the decision of the second respondent, Richard Koronai in respect of a Local Level Government election petition filed by the first respondent, John Masueng. The application commenced as a review under Order 16 of the National Court Rules then changed to a Section 155(3) Constitution, application for review.

The second plaintiff, Peter Simbi conducted the Local Level Government Elections for the Aitape-Lumi Open Electorate from 27th September to 10th October, 1997. He was appointed by the Electoral Commissioner as the Returning Officer for that electorate, however his name was not gazetted in the National Gazette as the Returning Officer for that electorate. The Aitape-Lumi Open Electorate comprised of four Local Level Governments: East and West Wapei with 15 Wards each and 15 Ward Councillors to be elected and the Aitape East and Aitape West Local Level Governments which consisted of 25 Wards with 25 Ward Councillors to be elected. Thus in all, 80 Ward Councillors were elected during the Aitape-Lumi Local Level Government Elections in 1997.

The first respondent was a losing candidate in Ward 7 in the Aitape East Local Level Government. He filed an election petition, LEP 14 of 1997 in the Aitape District Court seeking an order to invalidate the results of the Ward 7 election in the Aitape East Local Level Government election. The ground for his petition was that, the second plaintiff was not gazetted as the Returning Officer to conduct the Local Level Government elections. The first respondent therefore challenged the legal authority of the second plaintiff in conducting these elections.

The second respondent, Richard Koronai sitting as the Principal Magistrate of the Aitape District Court declared, inter alia, that the second plaintiff’s appointment as Returning Officer for the Aitape-Lumi Open Electorate was null and void and of no effect.

Held

1. The question of substantial compliance discussed in Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481 does not arise and has no relevance in the present application.
   
2. The appointment of a Returning Officer pursuant to s19 of the Organic Law on National and Local Level Government Elections is by publication in the National Gazette. That statutory requirement is mandatory.
   
3. The second plaintiff, Peter Simbi, was not legally appointed as the Returning Officer for the Aitape-Lumi Open Electorate pursuant to s19 of the Organic Law on National and Local Level Government Elections. Hence he did not have lawful authority to conduct the Aitape-Lumi Local Level Government Elections.
   
4. The second plaintiff’s purported appointment was not an appointment pursuant to s 21 of the Organic Law on National and Local Level Government Elections as it was not a case of emergency.
   
5. A Returning Officer cannot conduct an Election unless he is duly appointed under s 19 of the Organic Law. That is a fundamental jurisdictional issue.
   
6. As the elections in the whole of Aitape-Lumi Open Electorate was conducted by a person who had no authority in law to conduct such elections, the purported exercise of such authority affected all the Ward elections in that electorate thereby rendering the result null and void.
   
7. The plaintiff’s application for judicial review is dismissed.
   

Papua New Guinea cases cited

Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481.

Counsel

C Makail, for plaintiffs.

14 December 1999

SEVUA J. The plaintiffs are seeking review of the decision of the second respondent in respect of a Local Level Government election petition filed by the first respondent. The application commenced as a review under Order 16 of the National Court Rules then changed to a Section 155(3) Constitution, application for review.

The facts are as follows; the second plaintiff conducted the Local Level Government Elections for the Aitape-Lumi Open Electorate from 27th September to 10th October, 1997. He was appointed by the Electoral Commissioner as the Returning Officer for that electorate, however his name was not gazetted in the National Gazette as the Returning Officer for that electorate. The Aitape-Lumi Open Electorate comprised of four Local Level Governments. East and West Wapei with 15 Wards each and 15 Ward Councillors to be elected and the Aitape East and Aitape West Local Level Governments which consisted of 25 Wards with 25 Ward Councillors to be elected. Thus in all, 80 Ward Councillors were elected during the Aitape-Lumi Local Level Government Elections in 1997.

The first respondent was a losing candidate in Ward 7 in the Aitape East Local Level Government. He filed an election petition, LEP 14 of 1997 in the Aitape District Court seeking an order to invalidate the results of the Ward 7 election in the Aitape East Local Level Government election. The ground for his petition was that, Peter Simbi, the second plaintiff, was not gazetted as the Returning Officer to conduct the Local Level Government elections. The first respondent therefore challenged the legal authority of the second plaintiff in conducting these elections.

The second respondent sitting as the Principal Magistrate of the Aitape District Court declared, inter alia, that the second plaintiff’s appointment as Returning Officer for the Aitape-Lumi Open Electorate was null and void and of no effect. I set out in full the orders of the District Court.

"1. It is hereby declared that:-

(a) The first respondent’s appointment as Returning Officer for the Aitape-Lumi Open Electorate is null and void and of no effect, and

(b) The first respondent’s exercise of delegated powers and functions under Section 19 of OLNLLGE, including all orders, directions, appointments and declarations, issued or made by him in respect of the Aitape-Lumi Open Electorate Local Level Government Elections 1997, are null and void and of no effect, and

(c) The whole election for Local level Governments within Aitape-Lumi Open electorate absolutely void, pursuant to the provisions of Section 212(1)(h) of OLNLLGE.

2. And it is hereby ordered that:
   

(a) A new Election for Local Level Governments within the Aitape-Lumi Open Electorate shall be held, pursuant to the provision of Section 226(c) of OLNLLGE, within a period of four months from the date of this order, and

(b) The first and second respondents meet the costs of the petitioner, to be agreed upon, if not taxed."

The issue of leave can be disposed off immediately. I have simply taken the approach that leave is granted as a matter of course, to review the District Court’s decision pursuant to s 155 of the Constitution, therefore it is not necessary for an application for leave.

There are five grounds on which the plaintiffs seek to rely on, and these are stated in the statement filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, which I consider is misconceived as this application is not one which is brought under Order 16. Nevertheless, the Court has allowed the plaintiffs to rely on those grounds as no objections have been raised since the respondents were unrepresented in Court.

In order for one to follow the basis of this application, I will set out the grounds of the plaintiffs’ application:

(a) The learned Magistrate, committed an error of law in declaring both the appointment of the second plaintiff as the Returning Officer for the Aitape-Lumi Open Electorate invalid, for failure to comply with Section 19 of the Organic Law on National and Local Level Governments Elections, as well as invalidating the four (4) Local Level Government elections for the whole of the Aitape-Lumi Open Electorate, under Section 212 (1)(h), for failure to comply with Section 19, when evidence showed that there was sufficient and substantial compliance with Section 19 by the Electoral Commission.

(b) The learned Magistrate, committed an error of law in declaring the appointment of the second plaintiff as Returning Officer invalid, for failing to comply with Section 19 of the said Organic Law, as well as invalidating the Local Level Government elections, for the whole of the Aitape-Lumi Open electorate under Section 212 (1)(h), for failure to comply with Section 19.

(c) The learned Magistrate committed an error in law in invalidating the appointment of both the first respondent as the Returning Officer, as well as nullifying the four (4) Local Level Government Council elections, for failing to comply with Section 19, without a proper consideration and application of Section 217, when evidence showed that there was sufficient and substantial compliance with Section 19.

(d) The learned Magistrate committed an error in law in not holding the appointment of the first respondent as Returning Officer valid in consideration and application of Sections 21 and 217 of the Organic Law when evidence showed, that there was sufficient and substantial compliance with Section 19 by the Electoral Commission.

(e) The learned Magistrate acted in excess of jurisdiction to declare all four (4) Local Level Government elections, for the Aitape-Lumi Open electorate void.

In respect of the first two grounds, Mr Makail submitted that the applicants have substantially complied with Section 19 of the Organic Law. In other words, the applicants, in relying on the Supreme Court decision in Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481; say that there has been substantial compliance by the fact that the Electoral Commissioner had submitted the second plaintiff’s name to the Government Printer to print in the Government Gazette. This argument is unmeritorious and misconceived. The question of substantial compliance does not arise in the present case. Therefore, the Supreme Court’s decision referred to has no relevance in the present application. The meaning of Section 19 is not as perceived by the plaintiffs.

The appointment of a Returning Officer pursuant to s 19 of the Organic Law on National and Local Level Government Elections (the Organic Law) is a mandatory requirement contrary to the plaintiff’s contention that the Electoral Commissioner had appointed Peter Simbi as the Returning Officer for Aitape-Lumi Electoral, but that such an appointment was not printed in the gazette, therefore, Peter Simbi was nevertheless the Returning Officer. That is not the letter and spirit of the Organic Law. Section 19 is emphatically clear. It starts with; "The Electoral Commission shall by notice in the National Gazette appoint a Returning Officer,"(my emphasis). In my view, Section 19 can only mean this; the appointment of a Returning Officer is by publication in the National Gazette. The Instrument of Revocation and Appointment of Returning Officer signed by the Electoral Commissioner on 15th August 1997 is not, per se, an appointment by notice in the National Gazette. It is my opinion that for an appointment to be legally effective, such an instrument of appointment of a returning officer must be published in the National Gazette. That is not the case in the present application.

I find, both as a matter of law and fact that, Peter Simbi was not legally appointed as the Returning Officer for the Aitape-Lumi Open Electorate in pursuance of Section 19 of the Organic Law. Accordingly, he did not have legal authority to conduct the Local Level Government Elections in the Aitape-Lumi Open Electorate. Any purported exercise of authority was therefore null and void and of no effect. I find no error in the decision of the second respondent.

The plaintiffs’ alternative argument that the appointment of Peter Simbi was an appointment in case of emergency pursuant to s 21 of the Organic Law is not only spurious, but also equally mischievous and unmeritorious. Simply, Peter Simbi’s appointment was not a Section 21 appointment. It was not a case of an emergency. There is no evidence of that therefore that submission has no basis in law.

I therefore reject the plaintiffs’ first two grounds of review and they are dismissed.

On grounds (c) and (d), the plaintiff’s counsel relied on Sections 212(3), 217 and 218(1) of the Organic Law. He submitted that the presiding magistrate misconstrued those provisions. My view is that, it is not a matter of construction of those legal provisions. The crux of the matter here is a fundamental jurisdictional issue. A Returning Officer cannot conduct an election unless he is duly appointed pursuant to Section 19 of the Organic Law. Whether I accept that the second plaintiff did not commit an error so that reliance can be placed on Section 218(1), that is not the issue here, nor was it an issue before the District Court. The fundamental jurisdictional issue is that the second plaintiff did not have the legal authority to conduct the Aitape-Lumi Local Level Government Elections. I consider that this Court in such a case like this, would be failing in its duty to uphold the Constitution and the Organic Law, if it did not arrive at the same conclusion reached by the District Court.

Here, there was clearly a purported exercise of authority by the second plaintiff, who did not have such legal authority. The Court just cannot turn a blind eye to an unlawful act, that is, the conduct of an election, which was void from the start. I am of the view that the approach taken by the presiding magistrate was correct. The Courts are duty bound to uphold the Constitution and the law. We cannot ignore an illegality or an unconstitutionality and hope that it will resolve itself somehow. It would be tantamount to the Court’s formal sanctioning of an illegality or an unconstitutional act. These two grounds have no merits either, and I dismiss them as well.

The final ground relates to the District Court’s decision in declaring the elections for all the Wards in the four Local Level Government areas void.

It is correct that the petition LEP 14 of 1997, which gave rise to this application, was only in respect of Ward 7 election in the Aitape East Local Level Government election. It is equally correct that the first respondent had no interest in the other Ward elections. However, I would adopt the reasons given in respect of grounds (c) and (d). The appointment of the Returning Officer was not made in accordance with Section 19 of the Organic Law. How could the District Court declare the election in one Ward void and ignore the election in other Wards, when the whole election was conducted by someone who had no authority in law to conduct such elections? Whilst I agree that the petition LEP 14 of 1997 was only in respect of Ward 7 in the Aitape East Local Level Government, the non-compliance of a mandatory requirement of the Organic Law, affected all the election results of the whole Aitape-Lumi Open Electorate. Under the circumstances, I consider that the presiding magistrate acted in an appropriate manner by declaring all election results void. I would also dismiss ground (e) of the application.

For these reasons, I order that the plaintiffs application for review be dismissed, and I further order that the first plaintiff conduct a by-election of the whole of Aitape-Lumi Open Electorate Local Level Government as soon as practicable. I make no order as to costs.

Lawyer for plaintiffs: Acting Solicitor General.