Applications by Kasap and Yama [1988] PGSC 5; [1988-89] PNGLR 197 (24 May 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 197 - SC Review No 5 and SC Review No 6; Applications by Melchior Kasap and Peter Yama 

[1988-89] PNGLR 197

SC365

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REVIEW NO 5 OF 1988; APPLICATION FOR REVIEW BY MELCHOIR KASAP AND SC REVIEW NO 6 OF 1988; APPLICATION FOR REVIEW BY PETER YAMA

Waigani

Kidu CJ Kapi DCJ Woods J

29 November 1988

24 May 1989

PARLIAMENT - Elections - Disputed election petition - Judicial review - When available - Where important point of law - Where gross error - Constitution, s 155(2)(b) - Organic Law on National Elections (Ch No 1), s 220.

ADMINISTRATIVE LAW - Judicial review of judicial acts - Application to review National Court orders on election petition - Where no appeal to Supreme Court - When review available - Where important point of law - Where gross error - Constitution, s 155(2)(b) - Organic Law on National Elections (Ch No 1), s 220.

PARLIAMENT - Elections - Disputed election petition - Orders on - Power to declare “candidate” duly elected - “Candidate” need not be a party to petition - Power not confined to illegal practices - Power to alter count of vote after poll declared in National Court only - Organic Law on National Elections (Ch No 1), s 212(1)(g).

The Organic Law on National Elections (Ch No 1) (the Organic Law), s 212(1)(g), gives the National Court, on the hearing of an election petition, power to “declare a candidate duly elected who was not returned as elected”.

Section 220 of the Organic Law provides:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

The Constitution, s 155(2)(b), provides that the Supreme Court has an inherent power to review all judicial acts of the National Court.

On the hearing of an election petition, the National Court, after a recount of votes and without proceeding to deal with other matters raised in the petition declared a candidate, who was not a party to the election petition, to be duly elected.

On an application to the Supreme Court for judicial review pursuant to s 155(2)(b) of the Constitution,

Held

N1>(1)      In a case where a person or a party to proceedings has no right of appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under s 155(2)(b) of the Constitution is available without the need to meet any other established criteria.

Malipu Balakau v Paul Torato [1983] PNGLR 242, referred to.

SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 at 437, followed.

(Per Woods J): There must be a gross error clearly apparent on the face of the evidence before the Court should review.

N1>(2)      In the circumstances, there being merit in the grounds for review of the election petition, the application for judicial review should be determined.

N1>(3)      For the purposes of s 212(1)(g) of the Organic Law, the word “candidate” means a person who has properly nominated for election, has been accepted and who stands for election.

N1>(4)      Accordingly, in a proper case, the National Court has power under s 212(1)(g) of the Organic Law to declare a candidate to be duly elected although he or she is not a party to the election petition before the Court.

N1>(5)      In the circumstances, although the recount of votes showed that a candidate who was not a party to the election petition was the winner, the National Court should not have proceeded to making a declaration under s 212(1)(g) of the Organic Law until all outstanding issues had been dealt with. Accordingly, the petition should be remitted to the National Court for that Court to deal with the outstanding grounds.

(Per Kidu CJ) The power to declare a winner not duly elected may be exercised on grounds other than illegal practices.

After a candidate for election has been declared duly elected under the Organic Law, the results of that election may only be altered by the National Court; the Electoral Commission has no such power.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State (No 2) [1982] PNGLR 44.

Danny Sunu v The State [1984] PNGLR 305.

Independent State of Papua New Guinea, The v Colbert [1988] PNGLR 138.

Malipu Balakau v Paul Torato [1983] PNGLR 242.

Morris v Burdett (1813) 2 M and S 212; [1813] EngR 648; 105 ER 361.

SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.

Ume More v The University of Papua New Guinea [1985] PNGLR 401.

Applications for Judical Review and Judicial Review

These were applications for judicial review, pursuant to s 155(2)(b) of the Constitution, in respect of a decision and orders of the National Court on an election petition under the Organic Law on National Elections.

Counsel

N Kirriwom, for the applicant, Melchior Kasap.

L Henao, for the applicant, Peter Yama.

P Ame, for the Electoral Commission.

V Kapa, for the candidate, Tom Pais.

Cur adv vult

24 May 1989

KIDU CJ: These two applications are brought under s 155(2)(b) of the Constitution. Both applicants ask this Court to review a decision of the National Court made in an election petition by the applicant Peter Yama.

National Elections for the National Parliament were held in 1987. In the seat of Madang Provincial, 11 candidates stood and applicant Melchior Kasap was declared the winner by the Returning Officer for that electorate. According to figures on which the declaration was made, the three top candidates polled as follows:

Melchior Kasap	10,572
Tom Pais	9,756
Peter Yama	9,614

Mr Tom Pais was the sitting member when the elections were held but after the winner was declared he did not challenge the results. But Mr Peter Yama did. However, when the National Court gave its decision, it declared Mr Pais the winner. This decision was made pursuant to s 212(1)(g) of the Organic Law on National Elections (Ch No 1) (the Organic Law). This provision is as follows:

N2>“212.   Powers of the Court

(1)      In relation to any matter under this part the National Court shall sit in open court and may, amongst other things:

...

(g)      declare a candidate duly elected who was not returned as elected . . .” (My emphasis)

It was found by the learned trial judge that, counting vote figures provided for the Provincial seat by the six Returning Officers in Madang Province for the six seats in the Province, the top three candidates for the Provincial seat should have polled as follows:

Tom Pais	11,104
Melchior Kasap	10,785
Peter Yama	10,079

On the basis of these figures the trial judge utilised s 212(1)(g) of the Organic Law and declared Mr Pais the winner.

There are numerous grounds of review raised by Mr Kasap. Mr Yama raised only three. The common ground is that the trial judge did not have the power to declare Mr Pais the winner as he was not a party to the petition.

The first question to be determined is whether the Court should exercise its discretionary power under s 155(2)(b) of the Constitution and review the National Court’s decision in question.

This is, of course, not the type of case in Avia Aihi v The State [1981] PNGLR 81; Avia Aihi v The State (No 2) [1982] PNGLR 44; Danny Sunu v The State [1984] PNGLR 305 and The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138. Those were cases where appeals were allowed but the applicants failed to appeal in time and then applied for review under s 155(2)(b). In election cases s 220 of the Organic Law on National Elections specifically provides:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

So the only way these applicants could come to this Court is via s 155(2)(b) of the Constitution.

In a similar case, that is, a case where the applicant had no other way to come to this Court except by way of an application under s 155(2)(b), this Court (Kidu CJ, Kapi Dep CJ and Amet J) said:

“In a case where a person or a party in a proceedings has no other way of coming before this Court in similar circumstances as in this case, s 155(2) is available without the criteria in Avia Aihi and Danny Sunu being first established. In this case, there is an important point of law to be determined and it is not without merit.” (SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 at 437.)

It was on this basis that the applicants were allowed to proceed with their applications.

I shall deal with the grounds for review which Mr Yama has, which are distinct from those of Mr Kasap. Mr Yama’s lawyer, Mr Henao, submitted that his client was not allowed to put before the National Court his whole case. There were numerous grounds in the petition and Mr Henao submitted that, in the trial, grounds 1(f) and 2 were not dealt with. These grounds are as follows:

N2>“1(f)   During the counting of votes at Karkar Island the electoral officials on a number of occasions transferred votes cast in favour of the petitioner to be counted in favour of the first respondent and failed or refused to rectify such errors or malpractices despite protest by the petitioner’s scrutineer.

N2>2.       During the polling:

(a)      The presiding officers on numerous occasions failed or neglected to initial ballot papers in accordance with Section 126 of the Organic Law on National Elections by reason whereof a substantial number of electors were denied an effective vote which resulted in a record number of 6,551 votes being declared informal for the said Madang Provincial Electorate.

(b)      Numerous ballot papers were declared informal, despite protest from scrutineers of the petitioner, because electors had marked an ‘X’ indicating their intention to vote for the petitioner in the empty box relating to the petitioner, which had he not been an independent candidate would have ordinarily contained a photograph of the political leader of his party. The said ballot papers were not otherwise marked.

(c)      Keys for two ballot boxes in official sealed envelopes were discovered during counting in a rubbish bin outside a supermarket in Madang.”

The Appeal Book at p 42 has this record:

“I suggest that it would save time if you split your argument on this issue first because if you succeed here then that is a winning issue. But I will give opposing counsel a last chance of affect to that cause of action.”

This was a suggestion made by the trial judge and although there is no specific agreement by the parties the hearing seems to have proceeded on this basis.

Pursuant to O 11, r 25 of the Supreme Court Rules, the trial judge was requested to furnish a report on this aspect and his Honour reported as follows:

“REPORT BY THE TRIAL JUDGE TO THE SUPREME COURT

I have been verbally requested by the Chief Justice to report to the Supreme Court on ground 3(1) in the Application to Review which reads as follows:

(1)      That his Honour erred in denying the applicant from calling evidence in relation to grounds 1(f) and 2, thereby denying him a fair hearing.

This report is made under Order 11, Rule 25 of the Supreme Court Rules.

Mr Henao, for the petitioner, did not at any time ask to lead evidence on grounds 1(f) and 2 and have his application refused. Neither was he stopped from doing so. Ground 1(f) of the petition alleges that during counting of votes at Karkar Is, electoral officials transferred votes cast in favour of Mr Yama to Mr Kasap. At p 54.9 of the transcript Justus Bawaloi said he did not visit Karkar Is during counting. He may have been asked a question about that in the hope of leading evidence on Ground 1(f). Ground 2(a) alleges a failure to initial votes thereby leading to 6,551 informal votes. At p 55.1 two questions are asked about that. Ground 2(c) alleges that keys for two ballot boxes in official sealed envelopes were discovered during counting in a rubbish bin outside a supermarket in Madang. Evidence on this was led at pp 55 and 56 of the transcript and the envelopes and keys were tendered Ex G1 and G2. Although the hearing concentrated on Grounds 1(a) and (b) of the petition as a result of my suggestion at p 42 and 43 of the transcript — because at that time those grounds, if proved, seemed a winning issue for the petitioner — some evidence was led on other grounds. For example par 1(d)(i) of the petition alleges that the official Bill Nala was a relative of candidate Lesley Stahl Salum. Evidence on that was led from Justus Bawaloi at p 53 and from Bill Nala at p 84.4. Par 1(d)(iii) alleges excessive use of correctional fluid on the Tally Sheets by Bill Nala. Evidence on this was led from Bawaloi at p 54 and from Nala at p 81.6.

Dated this 3rd day of May 1989.”

Although some evidence was led on grounds 1(f) and 2 of the petition, it is quite clear to me from several readings of the judgment that these grounds were “forgotten” and never dealt with by the trial judge. But it is understandable. The intention of the judge was to deal with what was a possible “winning issue”. Of course, as it turned out, it was not. On this failure by the Court to deal with the grounds still outstanding, some blame must lie on the shoulder of Mr Yama’s counsel, Mr Henao. He should have reminded the trial judge that part of his client’s case was still to be dealt with. If the whole petition had been dealt with properly the proper course should have been as follows. As soon as the trial judge made up his mind to declare Mr Pais the winner, without doing so he should have proceeded with the outstanding grounds. Further evidence might have shown that the course to take was to order a recount or a by-election rather than declare Mr Pais the winner. The failure to give Mr Yama an opportunity to put his whole case resulted in a grave injustice and this must be rectified by this Court. I would quash the decision made by the National Court and refer the matter back to that Court for it to deal with the outstanding grounds that were not dealt with.

On the question of whether the National Court had power under s 212(1)(g) of the Organic Law to declare Mr Pais winner, I make the following comments and ruling.

It is true that the Supreme Court has strictly interpreted provisions relating to the filing of an election petition. But there is no problem here. Mr Yama filed a petition which complied strictly with these provisions (for example, s 208 and s 209). The powers vested in the National Court by s 212 operate only after a petition is validly before the Court, that is, after the petitioner has complied with all conditions precedent. I consider that these powers are in no way affected by the fact that Mr Pais never took part as a party to any petition. Section 212(1)(g) is in very clear terms and I see no legal reason to cut down its meaning, that is, the word “candidate” means a person who stood for the elections. In the Organic Law, only in the provisions relating to electoral offences is the word defined to include persons who did not actually stand for elections. Section 2(1) of the Organic Law enlarges the meaning of the word. It says:

N2>“(1)    In this Law, unless the contrary intention appears ‘candidate’, in Parts II and XVII, includes a person who within three months before the first day of the polling period announces himself as a candidate for election as a member of Parliament.”

Nowhere else in the Organic Law is there another provision altering the ordinary meaning of the word “candidate”.

In an old English case Morris v Burdett [1813] EngR 648; (1813) 2 M & S 215; 105 ER 361, Lord Ellenborough CJ said, at 363:

“... persons offering themselves to the suffrages of the electors ... is ... the correct sense of the word candidate.”

And, old as this case might be, the meaning of “candidate” has not changed except where exceptions to it have been made by legislation, such as s 2 of the Organic Law.

In a proper case, therefore, the National Court has the power to declare a candidate the winner although he or she was not a party to the proceedings before it.

Other grounds raised by Mr Kasap included:

N2>1.3.2(c)        “That even if the Court had jurisdiction, it was wrong in law in involving s 212(1)(g) without regard to the other provisions of the Organic Law on National Elections, and the well developed laws by the courts on elections in Papua New Guinea.”

The power given by s 212(1)(g) is not dependent on whether a person is before the court. It is self-evident from reading the provision that the power may be exercised if evidence shows another candidate should have been declared the winner. As I have already said, it comes into operation only after the petition has complied with provisions such as s 208. So in this case as the matter was legally before the court there cannot be said to be any jurisdictional problem. The question of locus standi did not arise as s 212(1)(g) very clearly entitled the court to declare a candidate not before it the winner.

N2>2.3.3(a)        “That the trial Judge’s finding of fact fell far short of establishing illegal practices within the meaning of ss 212(3), and 215(1) or 215(3) of the Organic Law to entitle the court to exercise the powers vested in it under s 212(1)(g) and s 212(2) and s 212(3).”

Section 215 relates to declaring an election void because of illegal practices. In this case the election was not declared void for reasons of illegal practices, so I do not see where s 215 is of relevance. Also s 212(3) is in terms which indicate very clearly that the court’s power to declare a person who was declared elected to be not duly elected for reasons of illegal practices is an extra power. There are other grounds on which the court may order that a person declared elected was not duly elected and one of them is a clear case where the polling figures show another candidate should have been declared elected.

N2>3.3.3(b)        “That in any event, even if the court did make any findings of illegal practices, that these were not committed by the winning candidate, Melchior Kasap, within the meaning of s 215(3) and accordingly it was devoid of power to declare him not duly elected.”

There was no finding of any commission of illegal practices (that is, bribery or undue influence or attempts to commit such). And as I have already said, the power to declare a winner not duly elected may be exercised on grounds other than illegal practices.

N2>4.3.3(c)        “That all or any material facts found to be established by the trial Judge only entitled him to declare an election void, as a matter of justice and good conscience, and consistent with the provisions of the Organic Law, and the Constitution ss 126 and 130.”

The main facts on which the trial judge made his decision were that the final figures from six electorates tallied with those held by the Provincial Returning Officer and these showed that Mr Pais should have been declared the winner. His Honour’s judgment shows that, although there were some irregularities in the main tally room, these did not affect the actual vote numbers for all candidates. As far as I am concerned, it is “just and good conscience” that the people’s choice is declared the winner by the court but in this case it was done prematurely as the petitioner’s case had not finished.

N2>5.3.3(d)        “The trial Judge was wrong in law in taking into account irrelevant or extraneous factors and costs in declaring Tom Pais the winner.”

There is nothing in the transcript of evidence or the judgment about this allegation. Also there is no other material (such as an affidavit) on which this ground is based. I therefore find myself in a situation where I am unable to make any determination one way or the other.

N2>6.3.3(e)        “The trial Judge erred in law and in good conscience in admitting into evidence progressive tally sheets marked exhibit ‘B’ (progressive tally sheet kept at the Central Tally Room at Apex Stall) in that:

(i)       these sheets were substantially altered and tampered with, marked and written over with corrections, all of which alterations were done after the declaration of Melchior Kasap as the winner thus giving a different result; and

(ii)      that in any event the trial Judge was wrong in giving weight to these alterations to the tally sheets, in the decision made; and

(iii)     that in the circumstances of this case and having regard to the fact that there was no scrutiny of the new result, the Judge was without power to declare Tom Pais as winner or as duly elected.”

After the declaration of Mr Kasap as the winner was made, election officials altered the progressive tally sheets (exhibit B). There were 25 of them but, when the results from the Madang Open were counted, three more sheets were added. These were all done without the sanction of the only competent authority, that is, the National Court. I say this because it is clear from the Organic Law that after the declaration of a winner, only the National Court may have the results altered; even the Electoral Commission has no power to alter any electoral documents after the winner has been declared.

When errors in counting were discovered, the Electoral Commissioner should have notified the candidates and left it at that. There was no power in him or his officials to alter anything in the tally sheets without a court order. Although this error was committed by the electoral officials, it did not affect the figures relied upon by the trial judge as his Honour based his decision on figures supplied by the six Returning Officers. The lawyer for Mr Kasap did not challenge five of the results. The controversy on this aspect was the result of the Provincial seat from the Madang Open Electorate. On this the trial judge, after rejecting the altered figures in the main tally sheet (exhibit B) “as not good because again these figures came from a secondary source”, said at pp 6-7 of his judgment:

“The primary evidence is the tally sheets kept by the six recording officers who actually counted the votes. So I believe the correct results can be better obtained from an addition of the six tally sheets for the Madang Provincial seat actually signed by the Returning Officers and the assistant Returning Officers who did the counting, and in some cases by the scrutineers. No challenge has been made to five of those tally sheets. The sixth one which was for the Madang Open part of the Provincial seat prepared by a Peter Kaimu has been challenged by Mr Kirriwom, counsel for Mr Kasap. He argued that it was suspicious that this Mr Kaimu had kept this form in his own home for two weeks after the election and made other arguments attacking generally the credit of Mr Kaimu. I note that there was no head-on direct cross-examination of Mr Kaimu that he falsified this tally sheet while he kept it in his home. So Mr Kirriwom has challenged the accuracy of Mr Kaimu’s work. On the other hand, I have work sheets which were made over the phone by Mr Bawaloi and a few of which were actually picked up by Mr Bawaloi. Some ten or fifteen were picked up by Mr Bawaloi from Mr Kaimu and they probably were the last boxes which Mr Kaimu counted. Those work sheets are in evidence here and they have been in Mr Bawaloi’s custody from the day he took them over the phone; they have not been out of his custody. They have not been in Mr Kaimu’s custody. They represent a cross check on the accuracy of Mr Kaimu’s tally sheet exhibit D and I have checked them through over lunch time with my Associate. I have checked those work sheets exhibit A kept by Mr Bawaloi against exhibit D compiled by Mr Kaimu and they agree. Just looking at Mr Kaimu’s exhibit D it is in careful handwriting, the figures are neat, there are a number of ticks along the side where he checked and I accept exhibit D as accurate work. The errors in this case were not made by Mr Kaimu in counting the votes but were made by Mr Bawaloi in getting in the results to his central tally room and in declaring the result before he had got all the results in and had checked his paper work.

A fundamental error that he made was not to count the votes himself. A much better practice for a Provincial Returning Officer is to have all the votes brought into a central place and for him to count them with his team. That is what the job really requires, not total delegation to six other people. The second fundamental mistake he made was not to have received the six tally sheets (the EC 601 forms) signed by the men who actually counted the votes and they are supposed to be signed by the scrutineers too, before he declared the result. Instead he based his result on 271 or so phone calls and which he wrote down on bits of paper which he gave to an official to put into a tally sheet which he did not check in any way and therefore they made the mistakes. I therefore accept the six tally sheets, including the one prepared by Mr Kaimu as accurate and they give the following result. Mr Tom Pais 11,104, Mr Melchior Kasap 10,785 and Mr Peter Yama 10,079 and a grand total 81,934. The winning margin between Tom Pais and Melchior Kasap was 319 votes When I compare the six tally sheets for the Regional with the six tally sheets for the Open, the total number of votes is as follows:

Provincial: 81,934

Open: 82,134, a difference of 200 votes.

The Provincial votes are 200 less overall than the total of the Open. Two hundred votes is significant if the result is very close, but in percentage terms is not such a bad error. It is a very, very minor percentage, 200 votes in 81,934 comes to less than 1%. It comes to 0.24 of 1%. Mr Kaimu was asked to explain the difference in the overall total votes between Provincial and Open and he was also asked why, when particular boxes were opened, the two lots of votes — Provincial and Open — were not the same. And in a number of cases it was shown that they were not the same. He had no good explanation for that. I can only conclude that in view of the winning margin of 319 votes an unexplained 200 votes does not affect the result.”

I do not see that the trial judge erred on this aspect of the matter.

N2>7.3.4(a)        “His Honour erred in not complying with the general standard and procedure adopted in election petition cases in that:

(i)       the Judge virtually took over the prosecution of the petition from the beginning from the petitioner;

(ii)      the Judge called the witnesses and ordered them to his own priority;

(iii)     the Judge did not allow the petitioner to present his case;

(iv)     by having witnesses Justus Bawaloi and Bill Nala give evidence in the petitioner’s case the Judge deprived both the first and second respondents from the evidence that was to have been given by these witnesses in favour of the respondents;

(v)      the Judge ought to have counselled Tom Pais to be joined as a party.”

My reading of the transcript of the proceedings does not show that the trial judge took over the petitioner’s case. Mr Kirriwom should have pointed out parts of the transcript substantiating his allegation and as this has not been made out I declare that it has no merit. Also there is no evidence that the trial judge called witnesses and ordered them to his own priority. There is therefore no merit in this allegation.

The petitioner did put part of his case before the National Court. I have found he did not put the rest of his case before the Court and have ruled in his favour.

Justus Bawaloi and Bill Nala were called as part of the petitioner’s case. They were cross-examined by Mr Kirriwom for Mr Kasap and Mr Ame for the Electoral Commissioner. I cannot see how their giving evidence for the petitioner deprived Mr Kasap and the Electoral Commissioner of any particular advantage. Anyway, there was no legal impediment to their being called as witnesses by the petitioner. Mr Kasap and his lawyer had no special legal rights to have the testimonies of these witnesses adduced on behalf of Mr Kasap’s defence of the petition.

N2>8.3.4(b)        “That in any event, the decision was clearly against the evidence and the weight of the evidence in that the requisite standard of proof was never discharged by the petitioner.”

The evidence upon which the trial judge acted was very straightforward. Figures from the six Returning Officers quite clearly showed that Mr Kasap had been wrongly declared as the winner. I say no more on this except again that Mr Pais should not have been declared the winner until the petitioner had finished his whole case.

N2>9.3.4(c)        “The material evidence adduced by Justus Bawaloi and Peter Kaimu was inconsistent, unreliable and substantially self serving as not to have been of any value, and the trial Judge’s reliance on such evidence is clearly wrong in law and good conscience.”

As has already been pointed out, the declaration of Mr Pais as winner was based on results from six Returning Officers. There is no merit in this ground.

N2>10.3.4(d)       “That in the circumstances of this case especially where the officially and publicly declared winner, Melchior Kasap has committed no illegal act or an electoral offence, where Tom Pais was not a petitioner and where results relied upon to declare Tom Pais the winner were compiled weeks after the declaration of the winner, in private, without scrutiny and without recount of the votes it is just and proper that the trial Judge’s decision be reviewed.”

This is a recap of the whole case of Mr Kasap and I have already dealt with the points raised.

The last matter is that relating to the rule that a remedy or relief that is not asked for cannot be granted. This submission was based on Ume More v The University of Papua New Guinea [1985] PNGLR 401. On this point the trial judge ruled as follows:

“Authorities were quoted from civil cases ... I propose however to distinguish these cases. I distinguish the election cases on the basis that here we are not concerned with allowing a party to amend the petition, that is to set out facts, allowing him to expand his petition, set out new material, new issues. We are not really allowing the petitioner to get relief which he did not seek. At any rate there is a general let out for him there in that he seeks ‘such other orders as this Honourable Court deems just’. But I regard s 212(g) of the Organic Law on National Elections as most important. There it says that I can declare ‘a candidate’ duly elected who was not returned as elected. It does not say that I can only declare the petitioner or one of the respondents who was not returned as elected. I should add that at no stage has Mr Pais, who has been present at different times, sought leave to intervene as a party which I thought he would do. I consider that section is in wide terms.

I distinguish the civil cases on the basis that there is an important question of public interest here. If a candidate has been fairly elected then he should be declared as such without having to go through the expense of a recount or a by-election.”

With respect, I agree with his Honour’s view and I add nothing to it. I quash the decision declaring Mr Pais the winner and remit the matter back to the trial judge to deal with issues still outstanding. I order that Mr Kasap be reinstated as originally declared by the Returning Officer pending the final outcome of the petition.

KAPI DCJ: I have had the advantage of reading the draft judgment of the Chief Justice and I agree with the orders proposed. I simply add the following remarks to the reasons for decision.

JUDICIAL REVIEW UNDER S 155(2)(B) OF THE CONSTITUTION

Section 220 of the Organic Law on National Elections (Ch No 1) was considered by the Supreme Court in Malipu Balakau v Paul Torato [1983] PNGLR 242. The Court struck down the words “in any way” from the provision. The section now reads:

“A decision of the National Court is final and conclusive and without appeal.”

The provision simply prohibits an appeal but does not prevent a judicial review under s 155(2)(b) of the Constitution.

I agree with the Chief Justice that the criteria to be applied in this case is the same as in the case of SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.

There is merit in the grounds of review and therefore this Court should review the decision of the National Court.

SPLITTING OF THE ISSUES BY THE TRIAL JUDGE

I agree with the Chief Justice that the trial judge failed to deal with the issues raised in grounds 1(f) and 2 of the grounds of review. I agree that these issues should go back to the trial judge for determination. I also agree with the reasons given by the Chief Justice on the remaining grounds of review.

The upshot of all of this is that even though the correct figures showed that Mr Pais won the election, the trial judge should have delayed the declaration of Mr Pais until he had dealt with the outstanding issues set out in grounds 1(f) and 2.

I would quash the decision declaring Mr Pais the winner and send the matter back to the trial judge for the determination of the issues still outstanding. Mr Melchior Kasap is to be reinstated as originally declared by the Returning Officer until the National Court has determined the outstanding issues.

WOODS J: The first submission by the applicants is that there is no power in the National Court under its power conferred by the Organic Law on National Elections (Ch No 1) (the Organic Law) to declare a person who is not a party to an election petition before the Court to be declared the winner.

This submission puts a very narrow interpretation on the word “candidate” in s 212(1)(g) of the Organic Law. I find no such narrow definition in the Law. A “candidate” can only mean a person who has properly nominated for an electorate and has been accepted and in due course stands in the election. There is a slightly wider definition of the word in s 2(1) of the Organic Law for the purposes of electoral offences but I find no narrow interpretation anywhere else in the Organic Law.

It must be common sense and the law that the person with the highest tally of votes is the winner. When faced with correct figures after some corrections in the compilation, what could the judge do? Under s 212(1)(g) he had to, and it must be common sense to do so, declare the person with the most votes the winner.

“Candidate” in s 212(1)(g) cannot be restricted to mean “petitioner”. It must mean any of the persons who duly nominated and stood.

It is therefore open to find a candidate the winner whether he was party to the petition or not.

Under the Organic Law on National Elections there is no appeal from the hearing of a petition by the National Court. The applicants here are therefore seeking their constitutional right to have a review of a decision by a judicial body from which there is no appeal.

This Court should therefore not allow such a review lightly when Parliament has itself declared there should be no appeal.

There must therefore be a gross error clearly apparent on the face of the evidence before this Court should review.

In this case it is submitted that the judge erred in allowing into evidence corrected figures and figures recompiled by electoral officials without the presence of scrutineers. Counsel objected to the admission of the evidence. However, it is clearly open to the trial judge to allow into evidence, the electoral paper: in many cases he should. In this case the electoral officials have come to this Court and said: here are the records, unfortunately we have found that we made errors in additions, not errors in counting, and here are our corrections. A perusal of the compiled figures shows that there was some double counting and with respect to pp 26-28 of the EC 601 forms for the electorate the officials gave sworn evidence that certain counted figures had been omitted from the totals.

It is submitted that these are fresh figures and should not be allowed into evidence as they suggest tampering with figures and because of this there should have been a recount. However, these corrections are not a new counting, they are not new figures, they are corrections. They must be part of the material that should come before the court. Whether the court is satisfied with these figures then becomes another question based on the evidence.

When those corrected figures were presented through the sworn evidence of the electoral officials, all counsel in the case before the judge together with the judge made a comparison of the total votes cast (see p 114 of Appeal Book). Following my perusal of the amended form, it is clear that they were corrections based on double entries and an omitted series of countings as deposed to by the electoral officials.

No evidence was presented to the judge to show that there were faults or errors in the original casting of votes or counting or that the totals should have been different. So what was the judge to do? There was no evidence before him to warrant a recount. The only evidence was to support a recalculation of the figures and this was done and counsel and the judge (at p 114 of Appeal Book) had the opportunity to study these corrections.

This covers his Honour’s assessment of the votes and tally sheets and his findings thereon.

However, there were other matters raised in the petition and in particular the failure to allow Mr Yama to put his whole case. On this point I agree with the Chief Justice that the matter should be referred back to the Court for it to deal with the outstanding grounds that were not dealt with.

ORDERS

N1>(1)      The decision of the National Court declaring Mr Tom Pais to be the winner of the Madang Provincial Electorate is quashed and the matter remitted to the National Court to deal with the outstanding grounds of Mr Peter Yama’s petition.[iv]¹

N1>(2)      Mr Melchior Kasap is reinstated as originally declared by the Returning Officer pending the final outcome of Mr Peter Yama’s petition.

N1>(3)      The Electoral Commission to pay costs of Mr Kasap, Mr Pais and Mr Yama.

Orders accordingly

Lawyers for the applicant, Melchior Kasap: Kirriwom & Co.

Lawyers for the applicant, Peter Yama: Henao Cunningham & Priestley.

Lawyer for the Electoral Commission: State Solicitor.

Lawyers for the candidate, Tom Pais: Kei Vuatha Kapa & Associates.

[iv]Editor’s Note: See Yama v Kasap No 2 [1988-89] PNGLR 318.