Alungi v Yawas [2015] PGNC 162; N6066 (10 September 2015)

N6066

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO (EP) NO 846 OF 2014

BETWEEN

OXY ALUNGI
Applicant

AND

ERICK YAWAS
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail J
2015: 08th & 10th September

JUDICIAL REVIEW – Review by National Court of decision of District Court dismissing election petition – Election petition arising from Local-level Government Elections – Election of President of Local-level Government – Invoking of inherent power of National Court to review exercise of judicial authority – Constitution – Section 155(3)(a).

ELECTION – Local-level Government Election – Election petition – Grounds of – Errors or Omissions by Assistant Returning Officer – Scrutiny of votes – Exclusion of ballot-boxes from scrutiny – Whether errors or omissions did affect the result of election – Organic Law on National and Local-level Government Elections – Sections 153A & 218.

Cases cited:

Oxy Alungi v. Erick Yawas & Electoral Commission (2015) N5973
Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape: SCRev (EP)
Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) N4960
Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295

Counsel:

Mr. T. Yamarhai, for Applicant
No appearance, for First Respondent
Mr. K. Kepo, for Second Respondent

JUDGMENT

10th September, 2015

1. MAKAIL J: On 25th May 2015 this Court granted leave to the applicant to seek review of a decision of the Tari District Court to dismiss an election petition disputing the election of the President of Hulia Local-level Government pursuant to the inherent power of the National Court under section 155(3) (a) of the Constitution: see Oxy Alungi v. Erick Yawas & Electoral Commission (2015) N5973. This is the decision on the review.

Background

2. The applicant was the petitioner in the election petition proceedings in the District Court in Tari. He disputed the election of the first respondent as President of Hulia Local-level Government. He raised allegations of errors or omissions by the second respondent, particularly the Assistant Returning Officer ("ARO") to exclude 4 ballot-boxes from counting. These ballot-boxes were disputed during the counting. The ARO considered the objection, upheld it and excluded them from counting. The applicant claimed that there was no reason to exclude them. He sought a recount of the votes including votes from the 4 disputed ballot-boxes. The learned Magistrate found that three of the ballot-boxes were wrongly excluded from counting but concluded that the total number of votes contained in these boxes did not affect the result of the election. As to the fourth one, the learned Magistrate found that it was correctly excluded from counting.

Grounds of Review

3. The applicant relied on 7 grounds of review. Grounds 1 to 4 (Grounds 5(a) to (d) of the Amended Application to Review) relate to the learned Magistrate's finding that error or omission by the ARO did not affect the result of the election. Grounds 5 to 7 (Grounds 5(e) to (g) of the Amended Application to Review) relate to the learned Magistrate's finding that the fourth ballot-box from Ho'lla Ward was tampered with and properly excluded from counting by the ARO.

Exclusion of Ballot-boxes for Beneria Station Ward, Dimu Ward and Pagale Ward

4. As to the first four grounds, the applicant submitted the first respondent scored 3,910. The runner-up Gibson Kapo scored 3,418 votes. He came fifth and scored 2,014 votes. The difference between the first respondent and the runner-up was 492 votes. The total number of votes in the 3 of the 4 disputed ballot-boxes was 1,216 (not 1,214 as found by the learned Magistrate). Given that the difference between the first respondent and the runner-up was 492, the 1,216 votes in the 3 disputed ballot-boxes did affect the result of the election.

5. Furthermore, the learned Magistrate did not use the difference of votes between the first respondent and the runner-up to determine if the difference did affect the result. Instead, he used the difference between the first respondent and him, which was 1,896 votes and formed the view that the votes found in the 3 disputed ballot-boxes were less than the difference, and did not affect the result.

6. Only the second respondent made submissions. The first respondent did not attend trial even though he was notified of the trial date by the applicant's lawyers on 25th August 2015 in Tari: see affidavit of service of applicant sworn on 07th September 2015 and filed on 08th September 2015 and affidavit of applicant's counsel sworn and filed on 08th September 2015. The second respondent did not specifically counter the applicant's submissions. However, it submitted that the applicant has failed to show how the learned Magistrate erred in his finding that the 3 ballot-boxes were tampered with and the integrity of the ballot-papers were compromised to justify their exclusion from counting.

7. The threshold issue is whether the learned Magistrate correctly found that the error or omission by the ARO in excluding the 3 ballot-boxes from counting was unlikely to affect or did not affect the result of the election. This was the issue identified in the Court's ruling (supra) when it granted leave. The Court observed at [10] thus:

"10. Section 218 of the Organic Law provides amongst others that an election shall not be avoided on account of an error or an omission by an officer which did not affect the result of the election. In other words, the petitioner must demonstrate in figure terms how the error or omission affected the result of the election. I am satisfied the learned Magistrate correctly held that the 3 ballot-boxes were wrongly excluded from counting but the finding that the result was not likely to be affected was not supported by the evidence. Given that the number of votes in the disputed ballot-boxes are higher than the difference between the first respondent and the runner-up, I am satisfied an error is apparent. It is also apparent that the learned Magistrate may have misapplied the formula to calculate the winning margin when he used the difference between the first respondent and the applicant. This is a point worth further consideration at the hearing proper."

8. The learned Magistrate followed the decision of Manuhu J sitting as a single Judge of the Supreme Court on the question of leave to review in Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape: SCRev (EP) No 11 of 2013 (Unnumbered & Unreported Judgment of 15th March 2013) where his Honour summarised arguments of parties on pleading of facts to show how the winning margin is arrived at in the LPV system. The learned Magistrate concluded that the pleading in the petition failed to plead the relevant facts including figures in order to show how the error or omission by the electoral officials affected the result of the election.

9. The learned Magistrate's reasoning and conclusion is not entirely correct because Manuhu J did not make any determinative finding on how to plead the winning margin. His Honour was merely assessing whether the application for leave had merit. The leave application apparently was against my decision: see Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) N4960.

10. It was the Supreme Court which deliberated on this issue and held, amongst other things, that the insistence on pleading the winning margin was taken out of context. The Court was not saying that the winning margin should always be regarded as the number of votes received by the successful candidate over and above the absolute majority. Rather it is preferable for the petition to plead the total number of votes cast, as that would allow for easy identification of the absolute majority. However, it could also plead the total number of votes allocated to the successful candidate after the final exclusion minus the total number of votes allocated to the runner-up after the final exclusion to give the winning margin: see Phillip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295.

11. The learned Magistrate misconstrued the reasoning in the Phillip Kikala cases (supra) and in so doing, fell into error when he found that the petition failed to plead the winning margin. I am satisfied that the winning margin is sufficiently pleaded in the petition. This can be seen from the total number of votes allocated to the first respondent after the final exclusion minus the total number of votes allocated to the runner-up after the final exclusion. Furthermore, it pleaded the total number of votes the second, third and fourth runner-ups were allocated after they were eliminated to give the winning margin between them and the first respondent. This in turned formed the basis of the evidence that was adduced in the Court below.

12. In relation to the number of votes from each of the 3 polling places, the undisputed evidence before the Court was:

12.1. Beneria Station - 259 votes,

12.2. Dimu - 574 votes and

12.3. Pagale - 383 votes.

Total - 1,216 votes.

13. At the final count (elimination), the first respondent polled 3,910 votes. The winning margin between the first respondent and the last 4 candidates was as follows:

13.1. Gibson Kapo (first runner-up polled 3,418) = 492 votes difference.

13.2. Tobani Andaya (second runner-up polled 2,800) = 1,110 votes difference.

13.3. Luke Panguma (third runner-up polled 2,287) = 1,623 votes difference.

13.4. Applicant (fourth runner-up polled 2,014) = 1,896 votes difference.

14. If 1,216 disputed votes are added to the applicant (2,014 + 1,216 = 3,230 votes) or Luke Panguma (2,287 + 1,216) = 3,503 votes), the result will not be affected. However, if 1,216 disputed votes are added to Tobani Andaya (2,800 + 1,216 = 4,016 votes) or Gibson Kapo (3,418 + 1,216 = 4,634 votes), these two candidates would score more votes than the first respondent hence the result of the election was likely to be affected or was affected.

15. In my view the learned Magistrate erred when he calculated the winning margin based on the total votes allocated to the first respondent at final count (elimination) and the total votes allocated to the applicant at his elimination and held that the applicant failed to master the number of votes (2,014 + 1,216 = 3,230 votes) over and above the total votes of 3,910 received by the first respondent.

16. He should have calculated it based on the total votes allocated to the first respondent at final count (elimination) and the total votes allocated to the first runner-up (Gibson Kapo). If he had done that, the first respondent received 3,910 votes and Gibson Kapo received 3,418 and 492 votes would be the winning margin. The total number of votes affected by the error or omission was 1,216 and it was greater than the winning margin. I am satisfied the error or omission did affect the result of the election. The learned Magistrate erred in holding a contrary view. Grounds 1 to 4 are upheld.

Exclusion of Ballot-box for Ho'lla Ward

17. As to the second four grounds, the applicant submitted there was uncontested evidence that the fourth ballot-box for Ho'lla Ward was not tampered with. The ballot-papers were scattered at Tari Airport when the ballot-box was removed from the helicopter and the inner and outer tags became dislodged. It was an accident and the manner in which the ballot-papers were removed could not be described as tampering of ballot-papers. Even so, most of the ballot-papers were secured and they should have been counted.

18. The second respondent submitted the ballot-box was tempered with because it was broken at Tari Airport when it was off-loaded from the helicopter. The ballot-papers were scattered all over the place by the whirl wind from the helicopter and the learned Magistrate was correct to find that it was tampered with and excluded it from counting. The important question of law is whether the incident as described by the parties would constitute tampering of a ballot-box.

19. The answer to this question lies in Section 153A of the Organic Law on National and Local-level Government Elections ("Organic Law"). It states:

"153A. Excluding ballot-box from scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:—

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition." (Emphasis added).

20. The pertinent Subsection is Subsection (3). The parties may have a different story in relation to the cause of the dislodging of the tags of the ballot-box but it is common ground amongst them that the whirlwind from the helicopter scattered the ballot-papers after the ballot-box tags were dislodged. In my view it is irrelevant whether some of the ballot-papers were recovered or bulk of them remained inside the box. The fact remains that the contents of the ballot-box was disturbed. This was not a case where the contents of the box were secured and only the box was damaged, eg. dent caused by mishandling. Once the ballot-box is opened and ballot-papers removed deliberately or accidently, it is sufficient to be rejected and not counted. I find no error in this finding by the learned Magistrate. Grounds 5 to 7 are dismissed.

Relief

21. The final issue is the relief. What sort of relief should be granted this type of case under consideration? According to the petition, the applicant sought, amongst other things, a declaration that the first respondent was not duly elected and recount of votes. The applicant submitted that the relief he seeks is a recount of all the ballot-papers including those in the 4 disputed ballot-boxes.

22. The appeal against the finding by the learned Magistrate to exclude the ballot-box for Ho'lla Ward from scrutiny has been dismissed. That means that the decision by the ARO to exclude this box and ballot-papers from counting stands. However, given that ballot-papers from the 3 disputed ballot-boxes were excluded from scrutiny, I am satisfied that the appropriate relief to grant is an order for recount of votes. The recount will be for all ballot-boxes included the 3 disputed ballot-boxes from Beneria Station Ward, Dimu Ward and Pagale Ward but excluding ballot-box from Ho'lla Ward. The result of the recount shall be presented to the District Court for endorsement on a date, time and venue when the recount is completed. The consequence of this decision is that the first respondent will remain President until the recount is completed and result is returned to the District Court for endorsement.

FORMAL ORDERS

23. The formal orders of the Court are:

1. The application for review is upheld.

2. The decision of the District Court at Tari of 14th November 2013 is quashed.

3. There shall be a recount of ballot-papers including ballot-papers from Beneria Ward, Dimu Ward and Pagale Ward but excluding ballot-papers from Ho'lla Ward on a date, time and venue to be fixed by the responsible Authority.

4. The result of the recount shall be presented to the District Court for endorsement on a date, time and venue when the recount is completed.

5. The first respondent will remain President until the recount is completed and result is returned to the District Court for endorsement.

6. The respondents shall pay the costs of the proceedings, to be taxed, if not agreed.

________________________________________________________________
Warner Shand Lawyers: Lawyers for the Applicant
Niugini Legal Practice Lawyers: Lawyers for the Second Respondent