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Supreme Court of Papua New Guinea |
SC 1003
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV NO. 4 OF 2009 &
SC REV NO. 5 OF 2009
APPLICATIONS UNDER SECTION 155 (2) (b) OF THE CONSTITUTION
AND
IN THE MATTER OF PART XVIII OF THE ORGNIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
BETWEEN
A TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA, AND KALA RAWALI, PROVINCIAL RETURNING OFFICER FOR THE WESTERN HIGHLANDS PROVINCIAL
ELECTORATE
Applicants SCR No. 4 of 2009
AND
TOM OLGA
Applicant SCR No. 5 of 2009
AND
PAIAS WINGTI
Respondent
Waigani: Sakora, Kirriwom and Mogish, JJ.
2009: 31st August, 1st September & 27th November
PARLIAMENT – Elections – Election of Member of National Parliament – Provincial electorate - Disputed election petition – Petition upheld on the grounds of errors, omissions and irregularities on the part of electoral officials in the counting of ballot papers and the figures returned – Ballot papers in five ballot boxes disputed - Recount ordered – Candidate returned as winner sought judicial review of order for recount – Review unsuccessful – Organic Law on National and Local-level Government Elections(OLNLLGE), ss 206 and 212(1)(d).
PARLIAMENT – Elections – Election of Member of Parliament – Provincial electorate – Disputed election petition – Petition upheld on the grounds of errors, omissions and irregularities on the part of electoral officials – Recount ordered - Recount conducted and completed – Result of recount presented to the National Court – Candidate declared winner at the general elections maintains lead but with a slightly reduced number – Serious glaring errors, anomalies, discrepancies and irregularities found once again to have been committed in and at the recount – Allegations of bribery and bias on the part of court-appointed Returning officer – OLNLLGE, ss 206 and 212 (1)(d).
PARLIAMENT – Elections – Election of Member of Parliament - Provincial electorate – Disputed election petition – Recount ordered – Recount conducted and returned – Serious glaring errors, anomalies, discrepancies and irregularities found once again to have been committed in and at the recount – Allegations of bribery and bias on the part of court-appointed Returning Officer – Powers of the court in respect of the allegations and the result of the recount – OLNLLGE, ss 206 and 212(1)(d).
PARLIAMENT – Elections – Election of Member of Parliament – Provincial electorate – Disputed election petition – Recount ordered, conducted and returned – Evidence called and parties heard on the conduct of the recount and the allegations – Powers of the court in respect of these - Court declares the return of Tom Olga as elected was not duly elected – Court declares the election for the Western Highlands Provincial Electorate absolutely void – OLNLLGE, ss 206,208,209, 212(1)(f)&(h,) and 217.
PARLIAMENT – Elections – Election of Member of Parliament – Provincial electorate – Disputed election petition – Practice and procedure - Recount ordered, conducted and returned – Whether errors and omissions committed at recount capable of being cured by another recount or by invalidation of the entire election result - Whether leader in the recount ought to have been declared winner and duly elected – Whether justice of the case required declaring the entire election result null and void necessitating a By-election where all parties at the return of the recount accepted and acknowledged that recount was not properly conducted.
Held:
(1) Where the parties have accepted that there were anomalies in the figures produced at the recount due to suspected foul-plays at the recount, the only cure or remedy for that was to order or direct another recount.
(2) Where the further recount or recheck produced no drastic difference to the results as shown in the initial scrutiny and the first recount order, the National Court must proceed to declare the winner pursuant to the relief sought in the petition.
(3) There was no justification to invalidate the whole election result and order a by-election on the basis of anomalies and discrepancies encountered at the recount, which facts had no direct relevance to the grounds of the petition.
Cases Cited
The following cases are cited in the judgment:
Uma More v University of Papua New Guinea [1985] SC310
Delba Biri v Bill Ninkama [1982] PNGLR 342
Mapun Papol v Antony Temo and the Electoral Commission [1981] PNGLR 178
SC Review No 1 of 1990 – Application By Electoral Commission [1990] PNGLR 441
Application By Ben Semri [2003] SC723.
Peter Yama v Melchior Kasap and Electoral Commission (No.1) of 25 March 1988
Peter Yama v Melchior Kasap and Electoral Commission (No.2) [1988-89] PNGLR 318 N788 (11 August 1989
Counsel
A. Kongri, for the Electoral Commissioner, Applicant for SC. Rev. 4 of 2009
K. Naru with C. Mende, for the Third Respondent, Tom Olga, Applicant for SC. Rev 5 of 2009
A. Manase with C. Wara, for the Petitioner, Paias Wingti, Respondent
REASONS FOR DECISION
27th November, 2009
1. BY THE COURT: There are two judicial review applications that are consolidated as one and were heard together as directed by the Chief Justice at the directions hearing. SC Rev 4 of 2009 was filed by the Electoral Commissioner and SC Rev 5 of 2009 was filed by Tom Olga, the Third Respondent in the petition who was the candidate declared duly elected following the 2007 National Elections as Member for the Western Highlands Regional seat.
2. Both reviews are against the decision of the National Court made 21 January 2009 following the recount in which the Court declared the election results for the Western Highlands Provincial electorate null and void thereby declaring Tom Olga as not duly elected Member of Parliament for that electorate. It is also noted that the application for review by the Electoral Commission is against both decisions of the National Court, the one made earlier on 14 March 2008 ordering recount as well as the one made after the recount. Electoral Commission seems to maintain the view that the petition ought to have been dismissed in the first place.
3. The approach by the Electoral Commission in this review places the Court in an untenable position of trying to isolate the issues with respect to the decisions sought to be reviewed. We note too that Tom Olga had filed a review against the National Court decision ordering the recount on 14 March 2008, resulting in the recount being delayed from proceeding as ordered by the court. But that application was dismissed on technical grounds, thereby paving way for the recount to take place.
4. Therefore, to avoid any confusion as to which judgment or decision is the one that is under review, we hold that the judgment that is for review before us is that of 21 January 2009. We refuse to entertain Electoral Commission's belated attempt to seek review of the decision of 14 March 2008, which right was not availed of earlier, and now extinguished, in our opinion, by the passage of time.
5. To give a brief background to the applications, it is convenient that we set out the chronology of events, and we do so as follows:
Tom Olga polled 140,246 votes
Paias Wingti polled 139,242 votes, a difference of 1,004 votes. The recount result has reduced the winning margin by 2,301 votes.
1,210 ballot papers from Keltiga ballot box 0386 were not counted and reported missing.
1,877 ballot papers were rejected as informal when they should have been allowed.
511 ballot papers unaccounted for at exclusion No. 22.
46 extra ballot papers introduced at exclusion No. 24
465 ballot papers miscounted in Form 66B
6. In addressing the issues raised in these applications we confine our deliberations to the applicants' grounds for review contesting the trial judge's ruling following the recount. We do not believe that there should be any doubt about the trial judge's authority or power to order recount as he did here. If there was any challenge to that decision, it should have been taken there and then and heard and a decision ought to have been made before the recount proceeded. In the absence of any such challenge being made, the only challenge that legitimately requires this court's deliberation is the ruling on 21 January, 2009.
7. The applicants' grounds for reviews have been discussed adopting the style of submissions that cover many paragraphs and pages, thereby making it difficult to differentiate between those facts setting out the grounds and those paragraphs that are submissions. Be that as it may, sifting through this somewhat legal quagmire, the applicants' contentions can be narrowed down to what appear to be the following main issues:
(a) Did the trial judge err in not declaring the winner based on the results produced in the recount without dealing with the issues raised since the recount?
(b) Did the trial judge err in the way he dealt with the Report of the Recount received from the Returning Officer namely by conducting a further hearing on the issues raised since the recount?
(c) Did the trial judge err in the exercise of his discretion under section 217 when considering an appropriate relief under section 212 of OLNLLGE?
(d) Did the trial judge misapply the law in section 217 in the context of sections 208 and 209 of OLNLLGE?
8. It is instructive in our view to appreciate the terms of the order of 14th March 2008 where the Court ordered recount of the ballot papers and we set out that order below:
ORDER
THE COURT ORDERS that:
1. Pursuant to Section 212(1)(d) of the Organic Law on National and Local-Level Government Elections, there shall be a recount of ballot papers in the Western Highlands Provincial Electorate, for the 2007 general election.
2. The recount must include ballot papers in the five contentious ballot boxes the subject of ground 1 of the petition and in the three ballot boxes brought to the counting centre on 6 August 2007.
3. The recount shall be conducted at the counting centre, which shall be at Kapal Haus, Mt. Hagen.
4. The recount shall be conducted by the Election Manger for Eastern Highlands, Jimmy Alwyn, who shall be the one person primarily responsible for appointment of counting officials, the conduct of the recount, the control and management of the counting centre and the doing of all other things to ensure the secure, efficient and transparent conduct of the recount.
5. Mr. Alwyn shall be assisted by the Election Manager for Chimbu Province and the Election Manager for Enga Province, who shall act under the direction and control of Mr. Alwyn. If Mr. Alwyn is unable for any reason to discharge his duties, the Election Manager for Chimbu shall act in his position until Mr. Alwyn is again available; and if the Election Manager for Chimbu is unable for any reason to discharge his duties, the Election Manager for Enga shall act in the position.
6. The recount must start on or before 14 April 2008.
7. The recount must finish on or before 28 April 2008.
8. The result of the recount must be presented to the National Court for ratification at a hearing of the Court on or before 5 May 2008.
9. It is declared for the avoidance of doubt that Mr. Tom Olga remains in office as the Member for Western Highlands provincial unless and until he loses office by virtue of a court order or the exercise of power by some other lawful authority.
10. The Registrar of the National Court shall within 14 days after service of this order upon him refund to the petitioner the sum of K5, 000.00 security for costs paid by the petitioner pursuant to Section 209 of the Organic Law.
11. Costs of the hearing of this petition, in respect of the period from 24 January to 14 March 2008, shall be paid by the 2nd Respondent to the petitioner and the 3rd Respondent, on a party-party basis, to be taxed if not agreed.
12. Parties are at liberty to apply for variation of these orders, by notice in writing, faxed to the associate to the presiding Judge, with copies to all other parties; and the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with. (Emphasis added is ours)
13. The person responsible for conducting the recount and any party to the petition is at liberty to apply to the court for an order to resolve any issue arising during the course of the recount, by notice in writing, faxed to the associate to the presiding Judge, with copies to all other parties; and the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with. (Emphasis added is ours)
9. It is apparent at the outset that the trial judge was at all times seized of the case. He had in his contemplation that the petition was always alive and once the recount he ordered was completed, the result will be tabled in open court before him and the parties will be addressing the court again pursuant to paragraph 13 of his order. Thus there is nothing extraordinary about His Honour's further investigation of the recount process following the recount as that was envisaged and fully utilized by all the parties to the petition.
10. We would also like to note at the outset that serious allegations of bribery and bias were leveled at the Returning Officer Alwyn Jimmy in connection with the recount regarding some of his decisions, acts or omissions including bribing counting officials, failure to respond to letters from Mr Olga, mistakes disadvantaging Mr Olga during quality-check, failure to comply with court orders, reduction in number of scrutineers, refusal to allow rechecking of exhausted ballot papers, Mr Olga's votes found in exhausted ballot papers tray and 17,137 ballot papers signed by one presiding officer (which was unproven). None of these allegations were substantiated by any credible evidence and the trial judge noted this in his judgment of 21 January, 2009 at p.21:
" It is clear from the evidence that Mr Jimmy faced considerable challenges – logistical, legal and human – during the course of the recount. Security was a major concern. He had to deal with threats of strict action by counting officials and police officers over claims of unpaid allowances. He was accused of bias and corruption at various stages. There were several court proceedings ongoing, in which the parties were seeking various orders regarding the recount. At one stage, Mr Olga filed a motion seeking orders – which I refused – that Mr Jimmy be removed from his position. The atmosphere within the counting centre was at times tense. Some mistakes were made. Mr Jimmy did not receive consistent support from the Electoral Commission. The Commissioner reprimanded him for taking the court action, which led to the orders of 14 November being set aside. Mr Jimmy was in an invidious position and in my assessment he performed his duties capably in all the circumstances.
Besides that, if he were really biased against Mr Olga, it would reasonably be expected that the result of the recount would have been different. But Mr Jimmy reported that Mr Olga secured more votes than Mr Wingti. The result of the recount further undermines the validity of the contention that Mr Jimmy was biased.
Having considered all the evidence, the combined affect of the allegations made against Mr Jimmy would not cause a reasonable person with knowledge of the events surrounding the recount to believe that Mr Jimmy was biased."
11. Generally, the applicants' contention is that the trial judge should not have declared the election null and void. Tom Olga is arguing that the trial judge should have dismissed the petition and declared him the winner based on the results of the recount. Alternatively, the trial judge should have ordered another re-check of the ballot papers so as to correct the mistakes earlier made. This position is supported by the Electoral Commission on the basis that the anomalies discovered in the recount were not matters pleaded in the petition; hence, the court was not at liberty to address them in view of the mandatory requirements of sections 208, 209 and 210 of OLNLLGE that precluded amendment of petition outside the 40 days.
Did the trial judge err in not declaring the winner without dealing with the issues raised in the recount?
12. Counsel for Tom Olga presented a very forceful argument that the relief ordered by the trial judge on 21 January, 2009 is not what the petitioner asked for in the petition. This argument is founded on the basis that the anomalies that were discovered in the recount were not matters that were pleaded in the petition in the first place for the court to delve into them and make its ruling upon them. The allegations stemming from the recount were new facts that had no relevance to the petition and the grounds for petition. It was argued that by considering those matters which came in after the trial on the petition had already run its full length and closed, as far as the evidence was concerned, it was like amending the petition. Instead, he submits, the court should have disregarded them as they were not facts pleaded in the petition in support of the relief the petitioner was seeking and cited Uma More v University of Papua New Guinea [1985] SC310 for the proposition that if you don't ask for the relief in your pleading, you don't get it.
13. Similar argument was advanced with respect to the Keltiga Box No.0386 where, based on the presiding officer's returns, it was found that 1,210 ballot papers ought to have been placed inside, the pleading in the petition was silent on the number of votes affected except the appropriateness or otherwise of the reasons rejecting the ballot papers in that box. It was contended that the figure of 1210 ballot papers from purportedly Keltiga Box no.0386 should never have surfaced or mentioned at all and not form part of the contention because they only emerged or were introduced since or after the recount but not pleaded in the petition. Mr Kelly submitted that there was miscarriage of justice when the trial judge entertained this argument and allowed himself to be swayed or influenced in granting the order he made thereby declaring Tom Olga not duly elected and the entire election null and void as well. It was argued that the trial judge ought not have gone that far.
14. Counsel for the Electoral Commission also took the same position regarding Keltiga Box number 0386. It was contended that errors committed in the recount did not relate directly to allegations pleaded in the petition. These were new discrepancies discovered in the recount and were of no relevance to the facts pleaded in the petition. He relied on SCR No.1 of 1990, Application by Electoral Commission and submitted that the difference between this case and SCR No 1 of 1990 is that in the latter case the discrepancies discovered directly related to the grounds of the petition.
15. In reply, counsel for the respondent made the following submissions. Firstly, he contended that the grounds relied upon by the applicants to overturn the decision of the trial judge were generally against finding of facts and the applicants were using the judicial review process like ordinary appeal to take issue with the trial judge's findings of fact and the conclusion reached. Secondly, he argued that the applicants had not demonstrated any clear error of law to justify the exercise of the Supreme Court's inherent jurisdiction to correct that error. Thirdly, it was also argued that since all the parties accepted the anomalies highlighted in the report presented by the Returning Officer, Alwyn Jimmy, of what happened at the recount, a full blown hearing after the recount was unavoidable as it was also instigated by all the parties following which the trial judge arrived at his decision to order or to declare the election null and void. As such there was no basis for them to complain. Fourthly, counsel submitted that the applicants could not rely on the difference of 1004 votes for the Applicant, Tom Olga, to be declared the winner when even that result was arrived at a recount that was questionable because of the errors and omission conceded by all the parties. And fifthly, it was contended that the applicants had not shown any legal basis or authority for the trial judge to order another recount to correct the errors made in the recount.
16. We have taken note of all the submissions made and we appreciate all the parties' positions.
17. However, the question arises as to whether His Honour should have dismissed the petition after having dealt with the issues raised in the recount by allowing the status quo to prevail for the reasons advanced by the applicants? In our view, the trial judge could not have simply dismissed the petition based on the result produced in the recount. While the position between the Petitioner and the Third Respondent never changed as to the leader according to the votes tally following recount, there were numerous discrepancies uncovered in the recount that needed to be dealt with before His Honour could address his mind to the tally as presented.
18. It is plain to see from the terms of the order of 14 March 2008 that the trial judge was still seized of the case after his decision on 14th March 2008, since the judgment and throughout the recounting and thereafter when the report on the recount was presented to him until he gave his final determination following the recount. His Honour envisaged some hurdles along the way during the recount given the general trend in the style of electioneering in the Highlands and made allowance for any exigencies that arose during the recount process to be properly resolved before a final result was pronounced. Any such outstanding issues arising in the case could not be simply ignored or disregarded as trivial.
19. It is however unfortunate that what took place at the recount was a cause for another full blown trial to determine some of the issues raised that impinged on the recount which process regrettably was inevitable and unavoidable. The parties themselves also added to the twist in the process by filing applications and supporting affidavits complaining of one or more indiscretions on the part of the Returning Officer or the counting officials that His Honour, in all propriety, had no choice but to hear them and determine those new issues stemming from the recount. All the parties conceded that the recount contained anomalies that needed correction.
20. After hearing the parties His Honour concluded that there were errors and omissions in the recount as well. His Honour rightly pointed out the different options open to him including recount of the ballot papers or to declare the entire election null and void so that a by-election could be held. After considering the evidence and weighing up the two options, His Honour decided that the fairest thing to do was nullify the election because he could not be satisfied that the mess created in the counting and the overall conduct of the polling can be corrected by further recount especially when there was a large number of ballot papers well in excess of the difference of 1004 votes between Paias Wingti and Tom Olga were involved.
21. We disagree with His Honour's choice of the two options. In election petition cases, interest of justice is not the only determinative factor that must guide and dictate to the court as to the final outcome of a petition trial. Going to elections and choosing a representative by the constituents of a leader to represent them in Parliament is not about doing justice to anyone. It is about choosing a leader that the majority wants.
22. In this case, the majority choice was clear from the declaration of the results following the scrutiny of the votes in 2007 when Tom Olga polled 141, 286 votes and Paias Wingti scored 137,981, a difference of 3,305 votes which result was challenged. Following the court ordered recount in 2008 the result was Tom Olga scored 140, 246 votes, a reduction of 1040 votes and Paias Wingti scored 139,242 votes, an increase of 1, 261 votes. Tom Olga still led the tally at the close of the recount albeit with reduced margin but still maintained the lead, although not a commanding lead. But the issue at the trial was not whether Tom Olga had the required percentage vote to be declared the winner. He was declared the winner after all the allowable ballots were counted and he was the leader of the two competing candidates and by law the one with the majority of the votes must win. This race was designed to find a winner by a comfortable margin.
23. If there was any ground for the trial judge to declare the election null and void, that ought to have been his decision on 14 March 2008 but he expressed no such view in his judgment on the petition. However, to declare the election null and void after receiving new evidence of foul-play in the court-ordered recount which is only concerned with counting or re-checking of the votes and no more is going beyond the realm of fair trial and speedy disposition of the case without undue suspension of the majority wish being realised. There is legitimate grievance when the original petition is circumvented by subsequent events that lead the National Court to an outcome based on new facts not pleaded in the petition. It does render sections 208, 209 and 210 OLNLLGE superfluous and meaningless.
24. There is a further reason for the trial judge's decision being unsustainable even on the basis of justice being done, which is the fact that at the recount 1877 ballot papers were rejected by the Returning Officer and were not counted because the presiding officer's signatures were placed on the back of the ballot papers and not in the front. His Honour found that the Returning Officer made a mistake by rejecting these ballot papers when he should have counted them. These ballot papers together with the ones that mysteriously propped up during the recount necessitated only one thing – go back and re-check the ballot papers to ascertain the truth or otherwise of the anomalies found. This is an error that occurred at the re-count and well within his discretion to order another re-check.
Did the trial judge err in conducting a further hearing with respect to the issues raised since the recount?
25. We have addressed this above and repeat what we stated therein.
Did the trial judge err in the exercise of his discretion under section 217 when considering an appropriate relief under section 212 of OLNLLGE?
26. We believe that the trial judge erred in his final determination in which he declared the election null and void. That discretion was not open to him to make in the light of section 208, 209 and 210 of OLNLLGE when he had already determined that there must be a recount pursuant to paragraphs 1 and 2 of the relief sought in the petition. The consequential order that was to follow the recount was also sought in paragraph 2 of the petition which expressly stated that 'the candidate with the highest votes after the recount be declared as (sic) duly elected Member for the Western Highlands Province'.
27. As we expressed earlier, once His Honour had decided that the evidence justified recount of the ballot papers and he made that order accordingly, the pleadings in the petition at paragraph 2 of the relief sought by virtue of section 212 OLNLLGE, clearly defined in no uncertain terms what His Honour's next order would be following the recount subject to the results produced. The candidate with the highest number of votes was to be declared. But we do appreciate that His Honour was not bound to adhere to this as dictated in the petition if there were good reasons not to do so. Then in our view the next best option was to go back to recount. There was no harm in doing that and there is no law that says there cannot be second or third orders for recount just to make sure that the integrity of the scrutiny of the ballot papers are protected and in order. After all this is where the issue is, not at the polling but at the counting. There are adequate laws provided by the Organic Law and the Criminal Code to deal with offenders of electoral laws some of which amount to illegal practices that can affect the result of an election. Other offences such tampering with ballot papers are those that can be prosecuted criminally and the offenders punished if convicted. This is the way to go if there was evidence of tampering with ballot papers and not declaring an election void.
28. In our view, in a preferential voting system where the elimination process left only final two contestants remaining and there was challenge to the election following declaration of winner, it would be speculative and presumptuous to conclude that final results would be affected thereby justifying nullification of an election result based on anomalies discovered at a recount. Those anomalies in our view fall squarely within the domain of that regime to rectify them and it is not justified to assume that no better result will be achieved just because they did not do it right in the first place. This is bearing in mind that conducting a National election is an expensive business.
Did the trial judge misapply the law in section 217 in the context of sections 208 and 209 of OLNLLGE?
29. It is trite law in disputed election returns that no challenge to an election result can be entertained by the court unless a petition meets the requirements of sections 208, 209 and 210 of OLNLLGE. These sections are set out below:
208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
209. Deposit as security for costs.
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs.
210. No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
30. Many petitions have either been struck down or dismissed in their entirety where they failed to meet these requirements. And the reason for this is clearly stated in the often cited case of Delba Biri v Bill Ninkama [1982] PNGLR 342 where the Supreme Court said at p. 345:
"..it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210."
31. In that same judgment the Supreme Court also said that the nearest that the law gets to allowing anyone to get past that pre-condition or pre-requisite without having first fulfilled it is section 217 of OLNLLGE which is headed REAL JUSTICE TO BE OBSERVED and talks about substantial merits and good conscience. This is also discussed in pp.345-346 of the judgment but the Supreme Court quite correctly concluded that section 217 cannot be invoked to correct a procedural defect and accord jurisdiction where a person has not legally met the requirements and relied on Mapun Papol v Antony Temo and the Electoral Commission [1981] PNGLR 178. Section 217 becomes relevant only when it has been determined that there is a petition instituted under the Organic Law and the provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit.
32. Section 217 of the Organic Law on National and Local level Government Elections is the critical provision where the issue or issues raised in both reviews revolve around it. It provides as follows:
"217. Real justice to be observed.
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."
33. This provision has been applied in many different situations to find a way around section 208, 209 and 210 OLNLLGE. In SC Review No 1 of 1990 –Application By Electoral Commission [1990] PNGLR 441 the Supreme Court by majority held the view that and thereafter in subsequent cases cited by counsel including Application By Ben Semri [2003] SC723.
34. The test of 'substantial merits and good conscience' cannot not be used to oust or reject an equally effective and less costly method of finding a solution to the dispute like in this case where an order for another recount or re-check is in order. We agree with and endorse the majority decision of the Supreme Court in SC Review No. 1 of 1990 – Application By Electoral Commission (supra) where the Supreme Court expressed as per the head note:
"(1) Where a recount of votes is ordered on the hearing of an election petition, all ballot papers, including votes under s 118, are subject to scrutiny, and the court may satisfy itself of the result of the recount in any way it may deem just, 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" as provided for in s 194 of the Provincial Government Elections Act (Ch No 56).
35. There is a big difference between what happened in SC Review No.1 of 1990 (supra) and this case. The trial judge in that case had no choice but to include those section 118 votes that were found uncounted at the initial scrutiny of the votes during the recount because they were valid votes omitted from count by error or mistake or by oversight. To have ignored them would clearly have amounted to an unfair election.
36. The situation that the trial judge found himself in SC Review No.1 of 1990 (supra) was almost identical to what happened in Peter Yama v Melchior Kasap and Electoral Commission (No.1) of 25 March 1988 in the 1987 elections for the Madang Regional Seat. Peter Yama who contested that Seat came third in the race. The election was won by Melchior Kasap who unseated the sitting Member, Tom Pais. Tom Pais who came second to Kasap did not file any petition. The grounds for petition were largely against the Electoral Commission in regard to the recording of counts. Consequently the court upheld the petition and ordered a recount. The recount showed that the winner ought to have been Tom Pais and not Kasap. The trial judge proceeded to declare Tom Pais as the winner.
37. His Honour's reasoning for his judgment is set out in his unpublished judgment of Peter Yama v Melchior Kasap and Electoral Commission (supra) which he alluded to in his published judgment of Peter Yama v Melchior Kasap and Electoral Commission (No.2) [1988-89] PNGLR 318 N788 (11 August 1989). Both Melchior Kasap and the Electoral Commission filed judicial reviews to the Supreme Court which ultimately became the landmark case on judicial review application emanating from election petition trials.
38. However, for purposes of this review, the significance of Yama v Kasap and EC (No.1) (supra) decision is that the trial judge went outside the reliefs sought by the petition to declare a candidate who was not a party to the petition returned as the duly elected Member because the results of the election clearly showed the majority choice of their leader. In the interests of doing justice and good conscience, the court exercising its discretion had to declare Tom Pais the winner because the law under section 212(1)(g) gave it power to declare a candidate duly elected who was not returned as elected. There was no question that Tom Pais was a candidate and was the runner-up but inhibited by financial constraints, he did not file a petition but threw his moral support behind the Petitioner, Peter Yama.
39. The majority choice of the leader in this case is obvious from the original result of the election and the result of the recount, whether it is by 50% plus 1 or by just one vote. This process has already been exhausted fully and is now a matter of checking and cross-checking the figures to confirm who the leading candidate is who must be declared the winner.
Conclusion
40. In summary we are of the view that the trial judge was correct in allowing the parties to make further representations upon presentation of the Returning Officer's Report of the Recount. He however erred when he allowed himself to be distracted or influenced by events that happened at the re-count which are outside of the concerns raised in the petition that led to the decision and thereby the order for recount. What happened at the recount ie since the declaration of the results, during and after the recount had no relevance on the outcome of the elections generally; hence no reason for him to be drawn into those indiscretions committed by the electoral officials at the recount.
41. If those anomalies were of concerns that needed corrections before any outcome could be pronounced, his only recourse was to send it back for further recount. After all, recount is about re-checking and cross-checking of the scrutiny of the votes and the law does not preclude further recounts if one has to be doubly sure that the results produced at the recount were properly arrived at and are correct.
42. We therefore uphold the review for the reasons given herein. The effect of upholding the review means that the decision of the trial judge following the recount dated 21st January, 2009 must be set aside and the status quo is hereby restored. In other words, the decision and order declaring Tom Olga as not duly elected is hereby set aside and Tom Olga remains the duly elected member for Western Highlands Regional Electorate until a properly conducted re-count determines the winner in accordance with the order of this court. Consequently, we order that the decision of the National Court declaring the election of Tom Olga as Member for Western Highlands Regional Seat null and void is also set aside and we direct that there shall be a further recount of the ballots in accordance with the order of 14th March 2008 which recount must include those ballot boxes containing 1877 ballot papers that were not counted at the recount conducted on 13 December, 2008.
43. The consequences of the trial judge's initial order for recount made on 10th March 2008 was that there was no final determination of the petition at that juncture or stage. After the recount when His Honour declared the election null and void, the consequences of that order would have been that the elected Member was not duly elected and therefore no longer remained a Member of Parliament pursuant to section 226(a) OLNLLGE.
44. Here, however, we are inclined to order a second recount because we find that the trial judge ought not have declared the election void under the circumstances we discussed in the judgment. The consequence of what we are saying here is that there is still no final determination of the petition until the second recount as per the order of this court. In the meantime Tom Olga continues as the member for Western Highlands Regional Seat as initially declared in the original scrutiny of the votes until the second recount.
ORDERS
47. The orders of the court are:
(a) Both reviews are upheld.
(b) The National Court order declaring Tom Olga not duly elected as the Member for the Western Highlands Provincial electorate is set aside.
(c) The National Court order declaring the election result of Western Highlands Provincial electorate null and void is set aside.
(d) There shall be a further re-count of the ballot papers in accordance with the order of the National Court of 14th March 2008.
(e) Such further recount must include the 1877 ballot papers excluded from the recount on 13th December 2008.
(f) For the avoidance of any doubt, Tom Olga shall remain as the duly elected Member for the Western Highlands Provincial electorate until a legally and properly conducted further recount determines the eventual winner of the seat.
(g) The case is remitted to the National Court for the trial judge to issue directions for the conduct of the further recount, in consultation with the parties.
(h) In relation to the conduct of the further recount as ordered here, the Electoral Commissioner shall have the sole authority and discretion in respect of the appointment of the Returning Officer and other electoral officers and officials, the appointment of the convenient time and venue for the recount, and all other matters that are properly within the jurisdiction of the Electoral Commissioner.
(i) Following the conduct of the further recount as ordered in the preceding paragraphs, and the return of the result of such recount as required, the National Court shall declare the candidate with the highest number of votes as the duly elected Member for the Western Highlands Provincial electorate.
(j) Costs of these reviews are reserved to a time to be appointed when counsel can be heard.
John Nonggor & Associates: Lawyer for the Electoral Commission
Kelly Naru Lawyers: Lawyer for Tom Olga
Manase & Co Lawyers: Lawyer for Paias Wingti
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URL: http://www.paclii.org/pg/cases/PGSC/2009/54.html