The National, Monday July 1st, 2013
By ADRIAN MATHIAS
THE Supreme Court declared on Friday that there was a vacancy in the Ambunti-Dreikikir electorate in East Sepik after it found Tony Aimo was not duly elected and ordered a by-election for the seat.
Aimo, who lost the seat to Ezekiel Anisi in the 2012 elections, scoring 6,634 votes to 8, 141 votes, was declared by the Court of Disputed Returns last October as duly elected member of the electorate after his successful election petition against Anisi on qualification grounds.
Justice John Kawi stripped Anisi’s election win after he found that Anisi was below 25 years of age to become a Member of Parliament.
Kawi also found that Anisi’s name was not on the common roll.
The trial judge then exercised his discretion to declare Aimo as a duly elected member of Ambunti-Dreikikir electorate.
Subsequently, Aimo held the seat, representing the people of Ambunti-Dreikikir for the last eight months until last Friday.
Anisi applied in the Supreme Court to seek judicial review of that decision, which a decision by a full Supreme Court bench last Friday, ordered Aimo to cease to be a member for Ambunti-Dreikikir after it found that the trial judge erred in the exercise of his discretion when he declared the first respondent (Aimo) as duly elected.
“The over-riding consideration is that when a court is considering whether to declare a losing candidate as duly elected, the election results cannot be ignored. Where the results do not favour that losing candidate, it would be wrong to declare him duly elected,” a full Supreme Court bench comprising Deputy Chief Justice Gibbs Salika, Justices George Manuhu and Goodwin Poole, ruled in the judgment.
But on the issue of age and name on common roll, the court reaffirmed the decision of Kawi that Anisi was in fact below the age of 25 years and his name was also not on the common roll when he contested and won in the 2012 elections.
Manuhu, while announcing the court’s decision, said they had found that the trial judge did not make any error in his findings in relation to qualification grounds of age and name on common roll, saying there was no proper basis for this court to interfere with this finding.
“The age issue is a question of fact.
“The trial judge made his findings on the evidence before him and found as a fact that the applicant was born on Sept 1, 1988,” Manuhu said.
“This court, in its review jurisdiction, is not persuaded that the trial judge fell into any error, procedurally or otherwise, in his reception of and his analysis of the evidence on the applicant’s age.
“The trial judge was entitled to find that the applicant was born on Sept 1, 1988 and was under the age of 25 years when he nominated to contest in the 2012 National General Election,”
The court also found that Kawi opted to declare the first respondent (Aimo), who was the runner-up, as duly elected member of the electorate because he thought of “costs and logistics of conducting a by-election would be too enormous”.
This finding, however, was not right in law, the Supreme Court found, and therefore the declaration of Aimo as duly elected was quashed.