Review Pursuant to Constitution Section 155(2)(b); Application by Kelly Kilyali Kalit to Review Decision of The National Court to dismiss EP No 78 of 1997; Kelly Kilyali Kalit v John Pundari and The Electoral Commission [1998] PGSC 39; SC569 (7 October 1998)

Unreported Supreme Court Decisions

SC569

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW NO 49 OF 1998
REVIEW PURSUANT TO CONSTITUTION, SECTION 155 (2)(B)
IN RE APPLICATION BY KELLY KILYALI KALIT TO REVIEW DECISION OF THE NATIONAL COURT TO DISMISS EP NO 78 of 1997
BETWEEN
KELLY KILYALI KALIT - APPLICANT
AND
JOHN PUNDARI - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Los Hinchliffe Injia JJ
27 August 1998
7 October 1998

JUDICIAL REVIEW - Constitution s. 155 (2) (b) - Review of decision of National Court sitting as Court of Disputed Returns - Review of trial judges’ findings of fact alone as to date of declaration of result of election endorsed on Writ - Whether findings of fact alone open to review - Constitution, s. 155 (2) (b), Organic Law on National and Local-Level Government Election, Ss. 73-82, 175, 208 (e), 217.

Cases Cited

Aviah Aihi v The State [1981] PNGLR 81

Balakau v Torato [1983] PNGLR 242

Sunu & Ors v The State [1984] PNGLR 305

SC Rev No 5 of 1987: Re Central Banking (Foreign Exchange & Gold) [1987] PNGLR 437

SCR No 5 of 1998 Re: Kasap v Yama [1988] PNGLR 197

Korak Yason v Castan Maibawa SC552 [1998]

Takai Kapi v Don Kapi SC548 [1998]

Peter Yama v Mathew Gubag SC456 [1998]

Counsel

Mr Kuimb for Applicant

Mr Kandakasi for First Respondent

Mr Kongri for Second Respondent

7 October 1998

LOS HINCHLIFFE INJIA JJ: This is an application by the Applicant pursuant to Constitution, s. 155 (2) (b) seeking a review of the decision of the National Court, sitting as a Court of Disputed Returns, dismissing the applicant’s election petition against the First Respondent in EP No 78 of 1997.

In EP No 78 of 1997, the petitioner/applicant disputed the election return of the First Respondent as the National Parliament member for the Kompiam-Ambum Open electorate in the June-July 1997 general elections. The petition contained various allegations of illegal acts, errors and omissions and corrupt practices by the Second Respondent on its own or in collusion with the First Respondent in preparing for the elections in the electorate, and the conduct of the elections including the declaration of the result of the election. It also contained allegations of bribery and undue influence by the First Respondent or by his agents.

The trial judge dealt with the preliminary issue of whether the petition was filed within the period of forty days commencing from the date of declaration of the result of the election as required by section 208 (e) of the Organic Law or National and Local-Level Government Elections (hereinafter abbreviated OLNE). At the preliminary hearing before Salika J the First Respondent contested the date of the declaration stated in the petition and raised the issue of time bar under OLNE, s. 208 (e). In the petition, the applicant had stated that the declaration was made on 5th July 1997 whereas the First Respondent maintained it was made on the 4th of July 1997. If the First Respondent’s contention was to be upheld, the whole Petition would fail for failing to comply with OLNE, s. 208 (e) in that the Petition which was filed on 14 August 1997 was filed outside 40 days. After hearing the evidence and submissions from counsels, the trial judge decided the issue in favour of the First Respondent and dismissed the petition. This application is the subject of that decision.

The principles governing review under Constitution s. 155 (2)(b) are settled. Whilst OLNE, s. 220 precludes an appeal, it does not preclude the Supreme Court’s inherent power of review under s. 155 (2)(b). This power is a discretionary one. It is exercised only where it is in the interest of justice to do so, that there are cogent and convincing reasons or exceptional circumstances, and there are clear legal grounds meriting a review of the decision. These broad principles were established in earlier cases commencing with Aviah Aihi v The State [1981] PNGLR 81, Sunu & Ors v The State [1984] PNGLR 305 and applied in Balakau v Torato [1983] PNGLR 242. The scope of review of a decision of the National Court, in an election petition in particular, was considered by the Supreme Court in SCR No 5 of 1998: Re: Kasap v Yama [198-89] PNGLR 197. It was decided in that case that the review available under s. 155 (2)(b) is limited to where there is an important point of law to be determined. The Supreme Court adopted what Kidu CJ, Kapi Dep CJ and Amet J (as he then was) said in SCR No 5 of 1987; Re: Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 at 437:

“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.”

Woods J in SC Rev No 5 of 1998: Kasap v Yama went on further to consider the scope of review on the trial judges’ findings of fact on the evidence. His Honour said at p. 208:

“There must therefore be a gross error clearly apparent on the fact of the evidence before this Court should review.” (our underlining).

In more recent times, this Court has dealt with a number of applications for review under s. 155 (2) (b) in election petition matters. Many of those applications relate to points of law. These include In re: Yasona v Maibawa SC552 [1998]; Re: Takai Kapi v Don Kapi SC548 [1998; Peter Yama v Mathew Gubag SC456 [1998].

The applicant in the present matter is seeking a review of the trial judge’s findings of fact alone on the evidence, as to the date of declaration. The applicant asks us to disturb the findings of fact by the trial judge and find that the declaration was made on 5 July 1997 and not on the 4th of July, 1997 as found by the trial judge.

The trial judge’s findings were made after he accepted the evidence of the Returning Officer who made the public declaration of the result of the election immediately after the completion of the counting and who completed the particulars of the Writ which included the filling in of the date; the Provincial Returning Officer who witnessed the declaration and took the completed Writ to Port Moresby; the Provincial Police Commander who witnessed the declaration and made entries in his official police diary and the Clerk of the National Parliament who received the Writ from the Governor General and produced this original Writ in evidence. His Honour rejected the evidence of the witnesses called by the applicant. The trial judge accepted the date on the original Writ which was 4 July 1997. This date was filled in by the Returning Officer at the time and place of his declaration of the result of the election, that is on 4 July 1997 at the Wabag community School Central Counting centre. The Returning Officer at the same time signed the Writ and was then co-signed by the First Respondent as the winning candidate. The public declaration of the result of the election, the filing in of the name of the winning candidate, the signing of the Writ and filling in of the date of declaration were all done by the Returning Officer except the co-signing of the Writ by the winning candidate. All these actions were taken in compliance with section OLNE, s. 175. The applicant did not produce any evidence to show that the original Writ or the date on the original Writ was fabricated. The applicant relied on verbal representations made by certain Electoral commission’s employees together with other Electoral Commission official documents showing the date of declaration as 5th July 1997, to support his argument that the date of declaration was on 5th July 1997. It was also put before the trial judge by the applicant and now repeated before us, that the Electoral Commission should be estopped from and raising the argument that the declaration was made on 4th July when it had represented to the Applicant all along that the declaration was made on the 5th of July.

In our view, none of those official documents emanating from the Electoral Commission office and representations made by the Electoral Commission staff have more critical constitutional basis, significance and force in an election process than the Writ. The Writ is an official document issued independent of the Electoral Commission, by the Governor General. An election begins with the issue of the Writ by the Governor General and ends with the return of the Writ to the Governor General signed and dated by the Returning Officer and counter-signed by the winning candidate. These requirements are succinctly set out under Part X of the OLNE (s. 73-82) and, s. 175. All other documents issued under the OLNE by the Electoral Commission are designed to attain administrative efficiency to ensure an orderly and free election by those entitled to stand for and vote in an election. Such documents and representations by the Electoral Commission staff, whether deliberate or through inadvertence, cannot be permitted to strike down the Writ unless there is clear evidence of fraud on the part of the Returning Officer or any other Electoral Commission official in completing the Writ as to the winner of the election, the signatures on the Writ and the return date of the Writ. There is only one Writ which is the original Writ and that is the Writ which should be completed by the Returning Officer and the winning candidate. Any representations made by the employees of the Electoral Commission, a person other than the Returning Officer, as to the form or content of the Writ is extraneous and irrelevant. The Original Writ speaks for itself. No amount of persuasion or representation by the Electoral Commission or by its staff can change the Writ. The equitable principle of estoppel also has no application on the face of a clear legal constitutional document; the Writ.

Findings of fact alone by the trial judge in an election petition matter under the principles should not, in our view, be open to review by this Court except in the most exceptional cases where there is some gross error which is clearly manifested on the records. Even when reviewed, this Court will have to pay greater deference to the trial judge’s findings of fact. This view is supported by OLNE, s. 217 which provides that the “National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not”. (our emphasis).

For these reasons, we agree with the trial judge that in the absence of any evidence of fraud, the Writ speaks for itself. We cannot find any gross error clearly apparent on the face of the record to merit a review. We dismiss the application. We confirm the decision of the trial judge that EP No 78 of 1997 should stand dismissed. Costs follow the event.

Lawyer for the Applicant: Warner Shand

Lawyer for the First Respondent: Young & Williams

Lawyer for the Second Respondent: Nongorr & Associates

ORDER

Upon hearing the application by the applicant pursuant to the Constitution s. 155 (2) (b) seeking a review of the National Court decision in EP 78 of 1997, the Supreme Court ordered that:

· The application be dismissed.

· The decision of the trial judge that EP 78 of 1997 should stand dismissed be confirmed.

· Costs follow the event.