N5973
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: 21st & 25th May

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 – Leave required –Principles of – Constitution – Section 155(3)(a) – Organic Law on National and Local-level Government Elections – Sections 220 & 287.

Cases cited

Baudawa Topagogo v. Nialyne Kiteiap & Electoral Commission: OS No 845 of 2014 (Unnumbered & Unreported Judgment of 25th March 2015)
Electoral Commission of Papua New Guinea and Peter Simbi v. John Masueng (1999) N1965 
David Kuna v. Vincent Eralia, Presiding Magistrate & The State (2004) N2771
Siwi Bungo v. John Robin & Electoral Commission (2011) N4195 

Counsel

Mr. T. Yamarhai, for Applicant
Mr. J. Tonge, for First Respondent
Mr. K. Kepo, for Second Respondent

RULING ON APPLICATION FOR LEAVE

25th May, 2015

1. MAKAIL J: This is an application for leave to review 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. Section 155(3)(a) states:

 "(3) The National Court —

a) has an inherent power to review any exercise of judicial authority; and...."

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 ballot box, the learned Magistrate found that it was correctly excluded from counting. 

3. Leave is being sought following the Court's ruling in an earlier case where it was held that leave is required to review a decision of a District Court in an election petition dispute for Local-level Government election: see Baudawa Topagogo v. Nialyne Kiteiap & Electoral Commission: OS No 845 of 2014 (Unnumbered & Unreported Judgment of 25th March 2015). There is no issue on this requirement: cf: Electoral Commission of Papua New Guinea and Peter Simbi v. John Masueng (1999) N1965 and David Kuna v. Vincent Eralia, Presiding Magistrate & The State (2004) N2771 and Siwi Bungo v. John Robin & Electoral Commission (2011) N4195 where the National Court heard the review and in the course granted leave as a matter of course. 

4. The cited cases did not lay down any particular principles relevant to the grant of leave. Grant of leave is an exercise of discretion. The applicant suggested that in addition to the question of locus standi, delay and no other avenues to challenge the decision, the principles applied by the Supreme Court in Election Petition Reviews be adopted and applied. They are whether the application raises an important point of law and that it is not without merit and whether there is a gross error clearly apparent or manifested on the face of the evidence before the Court or that the finding of fact is so outrages or absurd that it would result in injustice. 

5. The respondents did not take issue with the applicant's suggestion on the first three principles. As to the fourth principle, they submitted that the criteria to review should be whether there is an arguable case. The second respondent added a further requirement that the applicant must give notice of the application for leave to the Secretary for Justice in accordance with Order 16, rule 3(3) of the National Court Rules. It further submitted that the application must fail because the applicant failed to comply with this requirement.

6. As there is no dispute in relation to the first three principles, I will apply them in this case. There is no issue in relation to the applicant's standing to bring the proceedings. He is aggrieved by the decision of the District Court to dismiss his election petition. He has met this requirement. There is also no issue on the question of delay. The proceedings have been filed within a reasonable time. Finally, pursuant to sections 220 and 287 of the Organic Law on National and Local-level Government Elections ("Organic Law"), the only avenue to seek redress is the National Court by way of a review. The second respondent's submission on the failure by the applicant to give notice to the Secretary for Justice must fail because the application for leave is made under section 155(3)(a) of the Constitution where there is no expressed requirement for such notice. This submission is also not supported by any case authority to persuade me to rule in favour of the second respondent.

7. As to the fourth principle, as suggested by the applicant, I will apply the tests applied by the Supreme Court in Election Petition Reviews. He relied on 11 grounds of review. Grounds 1 to 4 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 8 relate to the learned Magistrate's finding that the fourth ballot-box from Ho'lla Ward was tempered with and properly excluded from counting by the ARO. Grounds 9 to 11 relate to the learned Magistrate's finding that the exclusion of the 4 ballot-boxes from counting by the ARO was not open to challenge as it was within the discretion (delegated powers) of the ARO.

8. As to the first five 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 4 disputed ballot-boxes did affect the result of the election. 

9. 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. The respondents did not specifically counter these submissions save to generally submit that the applicant has failed to show how the error or omission affected the result of the election. 

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.

11. As to the second four grounds, the applicant submitted there was uncontested evidence that the fourth ballot-box for Ho'lla Ward was not tempered with. The ballot-papers were scattered at Tari Airport when the ballot-box was removed from the Helicopter and the tag became dislodged. It was an accident and the manner in which the ballot-papers were removed could not be described as tempering of ballot-papers. The respondents 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 tempered with and excluded it from counting. I am satisfied there is an important question of law as to whether the incident as described by the parties would constitute tempering of a ballot-box and requires further consideration. 

12. As to the last three grounds, the applicant submitted the learned Magistrate erred when he held that the exclusion of the 4 ballot-boxes from counting by the ARO was not open to challenge as it was within the discretion (delegated powers) of the ARO. I dismiss these grounds as being misconceived because an ARO exercises powers conferred by the Organic Law in conducting the election including scrutinising votes. Under section 153A, just like the Returning Officer, he has power to exclude a ballot-box from counting. The decision by the ARO is not open to challenge except by way of an election petition. That was the point the learned Magistrate was making when he held that the ARO exercise of power was not open to challenge once he made the decision to exclude the 4 ballot-boxes from counting. These grounds are dismissed.

13. Except for grounds challenging the finding of the learned Magistrate on the exercise of power by the ARO to exclude the 4 ballot-boxes from counting, I grant leave to the applicant to review the decision of the District Court based on the other grounds of review.

14. Leave is granted. Costs shall be in the cause. 

Ruling accordingly.
_______________________________________________________________
Warner Shand Lawyers: Lawyers for the Applicant
Tonge Lawyers: Lawyers for the First Respondent
Niugini Legal Practice Lawyers: Lawyers for the Second Respondent