An appeal in the Supreme Court over the appointment of the Hagen Returning officer and Assistant Returning officer will be treated as a matter of urgency given the impending elections.
The appeal will return for directions in the Supreme Court before appeal books can be filed next week in preparation for hearing of the substantive appeal.
Lawyer representing James Yoka Ekip and Simon Sanagke clarified that the appeal is still on foot, or ongoing, after the Supreme Court on Saturday refused an interim application they filed, asking the court to stay an earlier decision of the National Court dated 4 May.
The Supreme Court on Saturday also refused to allow restraining orders against Paul Goema and Andrew Kerowa, as the Returning Officer and Assistant Returning Officer for the Hagen Open seat, from carrying out their functions, pending the determination of the appeal.
This appeal was filed challenging the National Court’s decision in refusing leave to judicially review the decision of Electoral Commissioner, Patilias Gamato, in appointing Goema and Kerowa as the returning officer and assistant returning officer for the upcoming elections.
They filed the judicial review on the basis that the appointments did not follow proper procedures.
The National Court refused to allow that decision to be judicially reviewed because it was of the view that they, Ekip and Sanagke, did not have legal standing to bring the case and did not have an arguable case.
Chief Justice Sir Salamo Injia heard the application on Thursday and gave his ruling on Saturday morning.
Sir Salamo, in his ruling, said the case was evenly balanced but given the high discretionary nature of the National Court’s judicial review proceedings, which leave was not granted in the National Court, it was not appropriate for the Supreme Court to order a stay or interim relief to Ekip and Sanagke.
He however, found that Ekip and Sanagke’s appeal grounds did have merit and that the National Court trial judge may have erred in finding that they did not have standing and an arguable case.
He also found that new appointments could be made this late under section 21 of the Organic Law on National and Local Level Government elections, and that the returning officer and assistant returning officers could be swapped with others in the district.
The court also said it was not difficult to operate in the other electorates as all returning officers and assistant returning officers go through the same training.
He however, maintained in his ruling that the order for stay and restraining orders they were asking the court could not be granted because of the nature of the National Court’s judicial review proceedings.
He also added that all is not lost and that Ekip and Sanagke still have the option of filing an election petition after the return of writs to challenge the decision of the returning officer and whoever the candidates that win.
There was no evidence put before the court to show if Ekip and Sanagke filed nominations to contest the Hagen Open seat and are candidates.
Sir Salamo said the onus was on them to provide evidence to the court if they had filed nomination to contest the election.
There was evidence both were from the Hagen open electorate.
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