Arore v Warisan [2008] PGSC 49; SC1030 (3 October 2008)

SC1030

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 16 OF 2008

APPLICATION UNDER S 155(2)(B) OF THE CONSTITUTION
AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL –LEVEL
GOVERNMENT ELECTIONS

BETWEEN:

DAVID ARORE
Applicant

AND:

JOHN WARISAN
First Respondent

AND:

PAUL KAMANE AS THE RETURNING OFFICER OF THE IJIVITARI OPEN ELECTORATE
Second Respondent

AND:

THE ELECTORAL COMMISSION
Third Respondent

Waigani: Injia, DCJ
2008: 3rd October

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Preliminary ruling on notice of objection to competency, Preliminary ruling on no case submission & Final decision of National Court under Part XVIII of Organic Law on National and Local –Level Government Elections - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended) – Jurisdiction to review preliminary rulings – Exercise of discretion- Leave refused in respect of two preliminary rulings – Leave granted in respect of final decision.

Cases cited:

Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC579
Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC935
Olga v Wingti (2008) SC938
Pawa Wai v Jamie Maxtone Graham (2005) N2768
Peter Wararu Waranaka v Gabriel Dusava (2008) SC942
Robert Lak v Paias Wingti (2003) N2358
Robert Kapaol v Philemon Embel & Electoral Commission, (2008) SC941
Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered Supreme

Counsel:

D Datoana, for the Applicant
D Diweni, for the First Respondent
No appearance, for the Second and Third Respondents

3rd October, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to uphold 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 first respondent. Counsel representing both parties presented oral and written submissions and I reserved my ruling which I now deliver.

2. I have considered the material and submissions put before me by both counsel. I have also considered the submissions made before Kapi CJ on 21 May 2008 by counsel who appeared before him, which have been adopted at the rehearing of this application before me.

3. The background of this application is that on 25th July 2007, the applicant was declared the duly elected member for the Ijivitari Open Electorate in the National Parliament. The second respondent is the Returning Officer who made the declaration. The applicant polled 5,479 votes to win the election whilst the first respondent came second with 4941 votes, a difference of 538 votes. On 3rd September 2007 the first respondent filed an election petition disputing the applicant’s election. On 5th October 2007, the first respondent filed a Notice of Objection to competency of the petition. Pursuant to r 15 of Election Petition Rules, the notice of objection was dealt with in the trial as a preliminary matter.

4. The trial commenced on 10th March 2008 and was concluded on 25th April 2008. The trial judge made two preliminary rulings followed by a final decision. In the first preliminary ruling which was made on 11th March 2008, the judge dismissed the first respondent’s notice of objection to competency. In the second preliminary ruling which was made on 28th March 2008, the judge dismissed a no case submission made by the second and third respondents after the completion of the case for the first respondent. After completing the evidence for the applicant and receiving submissions, the judge gave the final decision on 25th April 2008. The judge found that the second respondent and other officials of the third respondent committed errors and omissions at the counting centre during the scrutiny of votes and declared void the election or return of the applicant and ordered a recount. The judge summarized the findings upon which he made the decision, as follows:

(a) The second respondent and the officials of the third respondent failed in their duty which constituted breaches of ss 147, 151(c), 154 (2)(b)(c) and (d) of OLNLLGE.

(b) The third respondent by its servants or agents including the second respondent failed to properly scrutinized the ballot-papers that were counted during the 34th elimination round of the Ijivitari Open Electorate.

(c) The third respondent by its servants or agents including the second respondent failed in the 34th elimination round to call out the second and third preference votes as well, scrutineers were not allowed to raise objections, this was despite the fact that two counting officials had raise such issue with the Presiding Officer.

(d) As the result of the above, authorized scrutineers were not permitted to raise any objections."

5. The applicant seeks leave to review all three decisions. In respect of the two preliminary rulings, the Petition Review Rules is silent on the procedure for filing and /or moving notices of objection to competency and making a "no case submission". In the recent case of Robert Kapaol v Philemon Embel & Electoral Commission, (2008) SC 941, I described the highly discretionary nature of procedural matters which are not regulated by the Election Petition Rules, as follows:

"The Election Petition Rules do not provide for a formal notice of objection to competency and amendment of the same. By implication, it is left to the Court or judge to issue directions in individual cases to deal with such notice of objection as it arises. The judge has wide discretion on these sorts of procedural matters."

6. The above observation applies to notice of objection to competency but it equally applies to no case submission in the trial of an election petition.

7. In relation to the ruling on objection to competency, the judge ruled on the objection to competency after considering the well established principles which require essential facts to be pleaded concisely and with clarity. In the petition, the petitioner had alleged illegal and improper practices were committed by the first respondent. The petitioner did not pursue those allegations against the first respondent. The remaining allegations in the petition related to illegal practices, errors and omissions committed by the second and third respondents. The judge noted that the notice of objection was filed by the first respondent and not the second and third respondents. This meant that in respect of those matters pleaded against the second and third respondents in the notice of objection, they could not be pursued by the first respondent. For this reason the judge dismissed the first respondent’s objection to competency. In the absence of any express provision in the Election Petition Rules on filing and moving of notices to objections to competency against which the correctness of the trial judge’s ruling can be tested, it remained a matter of discretion as to the balance of the grounds that remained to be considered. Further the judge was correct in law when he said pursuant to s 222(1) of the Organic Law, counsel for the first respondent could not pursue grounds of objection which related to the conduct of the second and third respondents. From this, I am not able to identify any important point of law which has merit. I do not think there is an important point of law which has merit which warrants a full review. Leave is refused in respect of grounds which relate to this first preliminary ruling.

8. In relation to the second preliminary ruling, the Election Petition Rules 2002 as amended, is silent on the procedure for "no case submission". However case law establishes that a no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and "it would be open to a judge having regard to the terms of s.217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election": Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579, Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered judgment, Robert Lak v Paias Wingti (2003) N2358, Pawa Wai v Jamie Maxtone Graham (2005) N2768.

9. The judge considered the nature of the objection, the established principles of procedural law, the relevant provisions of the Organic Law which related to the allegations and the allegations in the petition. Most importantly he considered the evidence given by the petitioner’s side and found there was sufficient evidence to establish a prima facie case for the respondents to answer. I do not find any gross error in his considerations of the evidence on the face of the evidence discussed in the judgment. I also do not see any important point of law with merit on the face of the principles of law applied to the case before it. Leave is refused in respect of those grounds which relate to this second preliminary ruling.

10. In the alternative, leave should be refused on a further procedural grounds. Recently in Peter Wararu Waranaka v Gabriel Dusava (2008) SC942, I clarified the correct procedure to be followed in seeking leave for review from a preliminary ruling which does not determine the proceedings on the petition. I said:

"For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 ( as amended) ( Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought: see r 1 and definition of a "Decision" in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of "decision" . I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court’s power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r 32 is incompetent: see Olga v Wingti (2008) SC938".

11. In the present case no such application for dispensation is made before me in respect of the two preliminary rulings made on 11th March 2008 and 28th March 2008 respectively. Therefore, it is not open to the applicant to raise those issues in this application.

12. For these reasons, I refuse leave in respect of those grounds of review which challenge the trial judge’s dismissal of objection to competency of the petition and dismissal of the no case submission. They are grounds 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7.

13. The remaining grounds relate to the final decision. They are 2.8, 2.9, 2.10,2.11, 2.12 & 2.13.They plead errors of fact and law.

14. Recently, in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC935, 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:-

1. Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE: Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC915.
   
2. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC572.
   
3. The three criteria set out for grant of leave in Aviha Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.
   
4. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -
   

. 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) SC855; Application of Ludwig Patric 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 Patric Shulz (1998) SC572 Kelly Kalit v John Pundari [1998] SC569; 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) SC723; 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."

15. I deal with matters of law and fact raised in the remaining grounds together. In relation to matters of fact, recently in Peter Wararu Waranaka v Gabriel Dusava (2008) SC 942, I said:

"It is difficult for a review Court to overturn findings of fact based on assessment of credibility of witnesses because the review court is not in a better position than the trial judge to assess the performance and demeanor of witnesses and asses the probative value of the evidence they give. The review Court will often defer to the trial judge’s judgment on these sort of matters except where there is gross error manifest on the findings of fact based on the evidence before the Court".

16. I deal with the remaining grounds in the following manner:

(a) Ground 2.8 is: "The trial judge erred in fact and law when he relied on the evidence of the First respondent’s witness John Kembu who stated that forms 55, 58 and 67 were missing when those allegation were never pleaded in the petition".

(i) In his judgment the judge said only Mr Kembu gave evidence of missing forms 55, 58 and 67. The judge accepted his evidence. The judge did not describe the nature of these forms and the relevance and importance of the information contained in these forms in the scrutiny process. He described them as "essential" documents but did not explain.

(ii) I agree with the applicant that the first respondent did not plead in the petition the nature and importance of these forms for scrutiny purposes, the absence of these forms at the scrutiny and how their absence affected the integrity or propriety of the scrutiny process. The trial judge’s decision is premised on the integrity and reliability or propriety of the scrutiny process. I am satisfied this ground demonstrates gross error on facts. It also raises an important point of law which has merit.

(b) Ground 2.9 is: " The learned trial judge erred in law and fact and in accepting the evidence of four scrutineers called by the First respondent who said they were in the Counting Centre at the same time when it was in breach of s 150 (1) of the Organic Law which allows only one scrutineer to be in the counting center at any one time.

(i) At paragraph 21, p. 10 of the final judgment, the judge notes 3 scrutineers namely Bart Lakun, Max Dire and Samson Imal were appointed by the petitioner and John Morrison Sinapa was appointed by another candidate one George King Baure. All appointments were made under s 150 of the Organic Law which requires only one scrutineers for each candidate.

(ii) They all gave evidence for the petitioner. At par 22 of the judgment, the judge found that "they each were engaged for the full duration of the counting period". The judge did not find that they were "present in the counting center at any one time in the scrutiny": s150. Section 150 allows a candidate to appoint one or more scrutineers but only one scrutineer must be present at any one time in the scrutiny. The counting period is not specified in the judgment. The judgment at paragraphs 22 is linked to paragraphs 74-75 at p.27 and paragraphs 78 at p 28, which tends to suggest that three of the four scrutineers were present at the 34th elimination and they witnessed that particular elimination, thereby suggesting a breach of s 150 of the Organic Law. There is gross error demonstrated by this ground on the facts.

(ii) The meaning and application of s 150 is not in issue. However to the extent that the error affects the application of s 150 to discredit the totality of the evidence given by the four scrutineers, an important point of law which has merit is demonstrated.

( c) Grounds 2.10 & 2.11 are related and they can be dealt with together. Ground 2.10 is: " The trial judge erred in fact and law in concluding that counting officials stopped calling out the 2nd preferences for the excluded ballot papers and concluding that counting officials did not call out exhausted ballot papers"; Ground 2.11 is: " The trial judge erred in fact and law in concluding that counting officials and the Presiding Officer failed to exclude informal ballot papers."

(i) These two grounds do not say how the judge made the error alleged. On their own, they do not raise an important point of law or demonstrate any gross error of the facts. However when they are read together with the other grounds relating to conduct of the scrutiny, they may raise important points of law or demonstrate gross error on facts.

(d) Ground 2.12 is: "The learned trial judge erred in fact and law in making reference to a tally in his written judgment (p30) when such tally was never admitted into evidence during the trial".

(i) The tally produced in page 30 of the judgment is the same tally set out in paragraph 18 of the Petition. There is no mention of this tally in the evidence as set out by the judge in his judgment. This ground demonstrates a gross error of fact on the face of the evidence.

(e) Ground 2.13 is: The learned trial judge erred in fact and law in his final decision when there was no evidence adduced to show the allegations affected the result of the election". I agree with the applicant’s submission that although it is pleaded in the petition how the result of the election was affected, the judge in his decision on the face of the judgment did not demonstrate how the result of the election was affected by the actions of the counting officials and the applicant’s scrutineers as pleaded in grounds 2.10-2.11 and all the other grounds above. When grounds 2.10, 2.11 & 2.12 are read together, they raise important points of law and gross error on the facts.

17. For all these reasons, leave for review is granted in respect of grounds 2.8, 2.9,2.10, 2.11.2.12 & 2.13 which relate to the final decision. Leave is refused in respect of grounds 2.1, 2.2, 2.3, 2.4, 2.5, 2.6 & 2.7 which relate to the preliminary rulings. Costs of the application shall be in the cause of the substantive application for review.

Ordered accordingly.

___________________________________________
Dataona Lawyers: Lawyer for the Applicant
Blake Dawson Waldron: Lawyer for the First Respondent