|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV. NO. 12 OF 2008
Application under s 155 (2) (b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local Level
Government Elections
BETWEEN:
TOM OLGA
-Applicant-
AND:
PAIAS WINGTI
-First Respondent-
AND:
KALA RAWALI,
Provincial Returning Officer
-Second Respondent-
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Third Respondent-
Waigani: Injia, DCJ
2008: 4th, 5th & 17 September
JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Leave for review under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended) - Whether applicant is an aggrieved person – Whether findings that grounds alleged in a Petition were proven and an order for recount issued is a final decision - Whether ruling against objection to competency under s 208(a) of Organic Law on National and Local – Level Governments is a final decision - Whether leave for review should be granted - Exercise of discretion.
Counsel:
H Nii, for the Applicant
A Manase, for the First Respondent
A Kongri, for the Second and Third Respondents
17 September, 2008.
1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "Petition Review Rules) ). It is contested by the respondents.
2. By way of background, the application relates to a decision made by the National Court sitting at Mt Hagen in which the trial judge heard the election petition, found that the two grounds of the Petition alleging errors and omissions and illegal practices committed by polling officials had been proved and ordered a recount of ballot-papers contained in eight (8) ballot- boxes . Five (5) of the ballot-boxes were rejected by the Returning officer. The judge ordered their recount. They are two (2) ballot-boxes from Mala 2; one (1) ballot- box from Keltiga and two (2) ballot-boxes from Korkum. These five ballot-boxes relate to the first ground of the Petition. Ballot-papers from three (3) ballot-boxes, one each from Palimb, Tega and Keltiga relate to the second ground of the Petition. The judge found them to have been not properly counted and ordered their recount. The results of the recount were then ordered to be furnished to the judge for ratification. The recount has been suspended by Court Order issued by the National Court pending determination of this application.
3. Extensive submissions, both written and oral, were made by learned counsel last week over two days and I reserved my ruling. Without restating those submissions, they are dealt with in my reasons for decision which I now give.
4. Recently, in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935, this Court laid down the criteria or principles for grant of leave, in the following terms:
"When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-
- First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.
- Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulz (1998) SC 572 Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted.
10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases.
11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties."
5. In the present case, two new matters were addressed by parties. They are the requirements in r 1 that applicant must be a person who is aggrieved by the decision and the decision sought to be reviewed must be final. In my view these matters raise threshold procedural issues of compliance with the requirements of r 1 of the Petition Review Rules. They do not constitute considerations or criteria for the exercise of discretion on leave. I now deal with the two matters.
6. Rule 1 of the Petition Review Rules states:
A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155(2)(b) of the Constitution.
7. The word "Decision" is defined in the Petition Review Rules as follows:
"Decision" means a final decision of the National Court made after the hearing of an election Petition or an order dismissing the petition under rule 18 of the National Court Election Petition Rules 2002 (as Amended)".
Is the applicant an aggrieved person?
8. In relation to this question, I am satisfied that the applicant is an aggrieved person. He was named as a party in the Petition and is entitled to bring this application because his election as the provincial member for Western Highlands Province is directly affected by the order for recount. The results of the recount, if it favours the First Respondent, will affect his election. Therefore, I am satisfied that the applicant is an aggrieved person within the meaning of r 1 of the Petition Review Rules.
Was the decision final, such that it is amenable to review?
9. In relation to this question, extensive submissions were made by counsel on the construction of the orders made by the trial judge and relevant provisions of OLNLLGE, in particular ss 212, 218, 220 & 226. I am invited by parties to interpret these provisions of my own and apply the interpretation to the nature of the decision and orders made by the judge.
10. An order for recount is one of the relief under s 212 (1) claimed in the Petition. The other relief claimed are (1)(f) (declare that a person who was returned as elected was not duly elected), (1) (g) (declare a candidate duly elected who was not returned as elected), and (1) (h) (declare an election absolutely void) in conjunction with s 226 (c) ( a by-election be held).
11. On one hand it is argued for the applicant and the Electoral Commission that the decision is final because the hearing of the Petition is complete, the two grounds of the Petition have been found to be proven based on which a relief in the nature of an order for recount has been granted. As to the return of the results of the recount, the Court will not change the result. It will simply ratify the result. Therefore when the decision is taken as a whole, it is final.
12. On the other hand, it is argued for the First Respondent that the decision is not final because the Court’s final decision on the other appropriate relief claimed in the Petition and available to be granted under s 212 will be pursued and granted depending on the result of the recount. The case remains to be completed.
13. I accept the submissions of the applicant and the Electoral Commission. It is not necessary for me to engage in detailed construction exercise over these provisions. It is obvious that the ratification of results of the recount by the Court will not involve a further exercise of discretion. There is no question the judge’s decision on the facts and finding that the two allegations have been proved is final because that part of the decision is not subject to review or variation by the same judge. As to the relief, the result of the recount will dictate the grant of other appropriate relief claimed in the Petition. The whole of the decision therefore is final and it is properly before this Court to deal with the question of leave.
DECISION NO. 1 REFUSAL TO DISMISS PETITION FOR LACK OF SERVICE OF PETITION.
Grounds 2.1-2.2
14. This ground relates to the decision by Justice Sevua in the directions hearing in which His Honour refused to dismiss the Petition under r 18 of the Petition Rules on the grounds that the Petition was not personally served on the applicant as required by rr 6 & 7 of the Petition Rules. There was evidence that the applicant accepted service of the Petition and other documents which were served through another person. The judge found this to be substantial compliance with the rules requiring service. I do not consider the exercise of his discretion to be manifestly erroneous. I also do not consider this to be an important point of law, it has no merit, it does not raise serious issues of both fact and law.
15. In the alternative, on a plain reading of the definition of "decision" in the Petition Review Rules, a refusal to dismiss an objection does not come within the meaning of the word "decision". It is not a final decision on a Petition. A decision dismissing the Petition under r 18, not an order refusing to dismiss the Petition, is a final decision which is reviewable. These grounds are misconceived. Leave is refused.
Decision No. 2 -Ruling on objection to competency:
Review Ground 2.3
16. This ground relates to the trial judge’s decision not to dismiss the Petition when it was established that the Petition pleaded affected number of votes being less than the winning votes margin difference between the applicant and the third respondent, hence the result would not have been affected, even if the number of votes pleaded were first preference votes for the First Respondent.
17. The applicant polled 141,286 to win the election. The First Respondent was runner up with 137,981. The winning margin was 3,305. The Petition pleaded 3,181 ballot-papers in five uncounted ballot boxes votes were affected but then multiplied that by 3 ( 1st, 2nd and 3rd preference votes) to arrive at a total figure of 9543 as the votes affected. The trial judge said under the limited preferential voting, the distribution of votes amongst the remaining candidates through elimination process might have well affected the result of the election. In my view what is not clear from the ground of review as pleaded is whether the number of remaining candidates who would have collected votes from these five boxes and how the elimination would have affected the distribution of votes from those candidates eliminated to the remaining candidates including the applicant and the First Respondent. The onus is on the applicant to demonstrate the importance and seriousness of this point of law. I am not satisfied that has been done. I do not see any gross error in the judge’s conclusion.
18. In the alternative, this ruling does not come within the meaning of a "decision" in the Petition Review Rules.
19. For these reasons, leave on this ground is refused.
Review ground 2.4 - 2.7
20. These grounds relate to the trial judge’s refusal to dismiss paragraphs B(1) (C), (D) & (E) of the Petition on objections to competency. They relate to how Mala No. 2 and Korkum ballot-boxes were included in the count and pleading of how the votes in those boxes affected the result of the election. The trial judge agreed with the applicant’s submission that it was difficult to see the logical connection between these pleadings but said ground 1 contained serious allegations which remains to be proven by evidence at the trial. The trial Judge accepted the submission from the First Respondent’s counsel. I agree with the trial judge that the result of the election is a matter of evidence. Under the LPV system of vote scrutiny process, it is difficult at the outset to work out the likely result of the election in terms of votes affected, with mathematical precision and plead those figures in a Petition. These grounds have no merit.
21. In the alternative, this ruling does not come under the definition of "decision" under the Petition Review Rules. This ground is misconceived.
22. For these reasons leave is refused in respect of these grounds.
Review Grounds 2.8 – 2.10
23. These grounds relate to the trial judge’s refusal to specify names of security force personnel who were allegedly involved in committing illegal practices on 5th of August, 2008. The judge ruled that the names of those officers would have been known to the Returning Officer and the Electoral Commission; the First Respondent would not be reasonably expected to know their names in order to plead them in the Petition.
24. Although case authorities suggest that the Petitioner must plead the relevant facts concisely, clearly and sufficiently this may include names of alleged perpetrators who committed the illegal act or witnesses to it, I do not see any gross error in the finding and conclusion reached by the judge. This ground does not raise an important point of law which has merit.
25. In the alternative, this ruling does not come under the definition of "decision" under the Petition Review Rules. This ground is misconceived.
26. For these reasons leave is refused on these grounds.
Review ground 2.11 – 2.12.
27. These grounds were not pursued by the applicant.
DECISION AFTER TRIAL OF PETITION:
Ground 1 of Petition:
Review Ground 2:13.
28. This ground relates to judge’s finding that the Returning Officer wrongly rejected ballot papers in two ballot boxes from Mala No. 2. In these boxes, the outer lid were not closed, thereby exposing the ballot boxes to the risk of new ballot papers being deposited through the opening or cleft on the inner lid, throughout the night. I accept the respondents’ submission that the mere fact that the outer lids were open does not necessarily follow the integrity of the ballot-papers in those ballot - boxes were compromised. According to the Supreme Court decision in the Application of Ben Semri, the mere fact that the outer lids were open does not necessarily follow the integrity of the ballot boxes were compromised. Specific evidence is required to establish a case of integrity being compromised. Did the trial judge carefully consider all relevant evidence to find the integrity was not compromised? On the face of the judgment, the trial judge did not consider this issue specifically. Integrity of ballot-papers in a ballot- box which is unlocked and unsealed is always an important issue to be carefully considered in the light of all available evidence. On the face of the judge’s decision, this does not seem to have happened. There is a gross error on the face of the evidence and findings. This ground raises serious issues as to whether the judge’s conclusion that there was nothing untoward that happened that night was supported by the evidence before him. This ground has merit and leave is granted in respect of this ground.
Review Ground 2. 14-16.
29. These grounds relate to Keltiga Ballot Box No. 0386. This box was assigned to Keltiga Team 29. The ballot papers in this ballot box had four different signatures at the back of the ballot paper because the presiding officers and assistant presiding officers for Keltiga Team 29 and 30 combined and signed the ballot papers. These facts were not disputed. The judge held that the Returning Officer wrongly rejected this box.
30. The judge’s decision was based on his interpretation of s 126, 136 (1) and s 153 (1)(a) of the OLNLLGE. He accepted that there were issues of constitutional interpretation involved but decided against referring them to the Supreme Court under s 18 of the Constitution because to do so would delay the proceedings. He then proceeded to interpret those sections. His interpretation was that they did not prohibit electoral officials other than the presiding officer from signing or initialling the same ballot paper.
31. These provisions are expressed in mandatory terms. On the face of these provisions, only the Presiding Officer is required to initial ballot- papers at the back. The interpretation given by the trial judge is an expansive reading of those provisions. Whether such an interpretation is permitted in law is an important point of constitutional law which is not without merit. The interpretation pressed upon by the applicant may well be open and it is likely that the Supreme Court may agree with him. Whatever interpretation the Supreme Court gives will be determinative of whether the ballot papers in this particular box is counted. I grant leave for review in respect of these grounds.
Review Grounds 2.17-18
32. These grounds relate to trial judge’s acceptance of evidence relating to Keltiga and Korkum ballot - boxes. Part of ground 2.17 relates to Keltiga Ballot-box. In fairness, the points on evidence should be allowed to be argued with points of law raised in grounds 2.14-16. Leave is granted.
33. Part of ground 2. 17 & ground 2.18 relate to the two boxes from Korkum, much depended on the assessment of the evidence of Raphael Agua as against the evidence of the Returning Officer. Mr Agua was the presiding officer for Korkum. Also much depended on the quality of evidence given and demeanour of witnesses. Raphael no doubt gave direct evidence on what transpired at Korkum whereas the Returning Officer gave secondary or hearsay evidence based on reports he received. It is difficult for a review court to disturb the trial judge’s findings based on direct evidence and demeanour of witnesses unless it is shown on the face of the evidence that some material piece of evidence was overlooked or that the witnesses’ credibility was shattered or destroyed in cross-examination such that the evidence should not be believed. Mr Agua’s own evidence that polling ended abruptly and he did not file a return was not considered properly. This is a gross error on the face of the evidence. Leave is granted in respect of these grounds.
Review Ground 2.19
34. This ground relates to acceptance of Raphael Agua’s evidence on Keltiga Box No. 0386. This box was assigned to Keltiga Team No. 30. Mr Agua was Presiding Officer for Keltiga Team No. 29. The ballot-papers had four initials or signatures consisting of signatures of Presiding Officer and Assistant Presiding Officers for Team 29 and 30. Presiding Officer for Team No. 29, Raphael Agua gave evidence for the Petitioner and he explained how the ballot papers had four signatures. The Presiding Officer for Team No 30 was not called by any of the parties. The Court was left with only the evidence of Raphael Agua.
35. As to whether the ballot-papers were informal by virtue of s 126 and s 153(1) (a) and should have been excluded is a point of law which I have considered in grounds 2.14-2.16, supra. In terms of accepting his evidence, there was no other evidence to counter his evidence. He gave an explanation as to why they had four signatures.
36. This ground is related to 2;14-2.16. Because I have granted leave in respect of those grounds, in fairness, issues of fact should also be allowed to be argued with issues of law.
37. Also as to how a ballot-box assigned to a particular polling area ends up in another polling area and ballot-papers get signed by other polling officials who are not responsible for polling in the area to which the ballot-box is assigned to, raises important and serious issues of law. Leave is granted to proceed with this ground.
Petition Ground 2:
38. This ground relates to allegations of illegal practices committed at the counting centre by counting officials and security force officials during the counting on the evening of 5th August 2007. Counting was ¾ complete and there were six boxes left and counting was in progress when a Court order halting the count was produced. Ballot papers were put back into the boxes and taken to the Police Station and kept there overnight. The ballot-papers were locked with ordinary locks and were not re-sealed with inner and outer seals. The keys to the locks were not thrown away but given to security force personnel. The allegation was that 5,000 votes had been inserted in the box overnight which when counted increased the applicant’s tally by 5,000 votes. In the end, 3 ballot-boxes, one box each from Palimb (Box No. 0391), Tega (Box No. 0371) and Keltiga (Box No. 0385) were counted on 6th August 2007, which the judge found were not properly counted and should be recounted.
Review Grounds 2.20 – 2. 21.
39. The applicant says the trial judge erred in introducing and dealt with new issues which were not submitted by the parties under an agreed statement of facts and legal issues. By allowing new issues to be introduced, the trial judge allowed the Petitioner to introduce evidence pertaining to these new issues which had not been pleaded in the petition and which parties did not submit to the Court, thereby in effect allowing the petition to be amended outside of prescribed time limit contrary to established precedent in cases such as Biri v Ninkama [1982] PNGLR 342 and Tulapi v Luta (2000) SC 653.
40. Counsel’s submission before me firstly were focused on the Court’s power to introduce new issues which were not submitted by the parties and allowing new facts and issues to be argued the effect of which amended the Petition. I agree with the trial judge that these three issues were factual issues which were "incidental to determination of the express grounds of the Petition" and related to the two main issues raised by the parties. They did not raise distinct grounds of Petition. Once a Petition has passed the scrutiny at a preliminary hearing, the trial judge is required to determine the Petition on the grounds of the Petition in a manner that dispenses with substantial justice and in doing, it must be "guided by 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" (s 217). The Court’s identification and determination of legal and factual issues which arise directly or indirectly from the grounds pleaded and advanced at the trial should not be hampered or restricted by parties submission of legal and factual issues by parties, by consent or otherwise. The case of Application of Ben Semri, Biri v Ninkama and Tulapi v Luta do not deal with this specific issue. I do not see anything wrong with the enunciation of this new principle that may be inconsistent with precedent. I am not satisfied these grounds raise serious issues of fact or law, which have merit such that they are likely to succeed at the review. Leave is refused in respect of these grounds which challenge the judge’s decision on these issues.
41. In respect of the order for recount of ballot-papers from the three boxes, the judge found on the evidence that there was no evidence to support a finding that electoral officials were intimidated by security personnel. The judge also declined to find that the applicant’s tally was bolstered by 5,000 votes. However he found that there were reasonable grounds to suspect that the ballot papers were tampered with at the Police Station where they were kept overnight. This finding raises serious issues on integrity of ballot-papers in these boxes. In the face of the findings of fact, I am satisfied that this part of the decision – that is whether they should be recounted - demonstrates gross error. Leave is granted to review this part of the decision.
Review grounds 2.22 - 2. 23
42. These grounds relate to the order for refund of the security for cost deposit made under s 209 after an order for recount was made. The point of law in contention is "whether the National Court has further jurisdiction to deal with any further proceedings arising out of the Petition, after the Order for refund of K5,000.00 security deposit is made, bearing in mind section 210 of the Organic Law which effectively says that there shall be no proceeding in a Petition if there is no security deposit" (see par 136 of Mr Nii’s written submission. In my view, the mandatory requirement of s 209 (security for cost deposit) is a pre-requisite for the filing of a Petition. The purpose of s 209 and s 210 is two-fold: to ensure a Petitioner is genuine and serious about bringing the Petition and that the costs respondents’ costs of the proceedings are met if the Petition fails. As the hearing on the Petition continues, the issue of costs remains alive throughout the proceedings and even after the conclusion of proceedings because costs of parties must be met. The actual costs in many cases far exceed the security deposit amount because election cases are expensive to run. Costs issues in an election petition proceeding can continue to be litigated after a final decision on a Petition. Therefore the order for a refund at the end of a hearing if the Petitioner succeeds in proving the Petition does not mean the Petition has ceased to be valid. The argument raised by the applicant’s counsel is a literal reading of s 209 and s 210. In my view, the point of law raised is not an important point of law and is without merit, rather, it is purely academic. Leave is refused in respect of these grounds.
CONCLUSION AND ORDERS
43. The upshot of the foregoing analysis and conclusions are as follows:
1. Leave is refused in respect of grounds 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, part only of grounds 2.20 & 2.21, 2. 22 & 2.23. Grounds 2.11 & 2.12 were not pursued. These grounds will not proceed to a hearing on review.
2. Leave is granted in respect of grounds 2.13, 2.14, 2.15, 2.16, 2.17, 2.18, 2.19, and 2.20 & 2.21 in part only.
3. I direct that the applicant take steps in strict compliance with the Petition Review Rules to file and serve the substantive application for review in accordance with this ruling and take other steps required by the Petition Review Rules to prepare the substantive review for hearing in the September or October sitting of the Supreme Court.
4. Costs of these proceedings shall be in the cause of the substantive review.
I issue orders accordingly.
Nii Lawyers: Lawyer for the Applicant
Steeles Lawyers: Lawyer for the First Respondent
Nonggorr & Associates: Lawyer for the Second Third Respondents
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2008/24.html