Anisi v Aimo [2013] PGSC 16; SC1237 (28 June 2013)

SC1237

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 41 OF 2012

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (b)

APPLICATION BY EZEKIEL SIGI ANISI
Applicant

AND:

TONY WATERUPU AIMO
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, DCJ, Manuhu, J, Poole, J. 2013: May 2, June 28

ELECTIONS – Review – Distinction between appeals and review – Age of successful candidate – Enrolment on Common Roll – Appropriate relief upon invalidation of result.
Cases cited

Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 Waranaka v Dusava [2009] SC 980 Powes Parkop v Wari Vele (No. 2) of 2007 (N3321)

Counsel:
Mr. A. Manase and Mr. M. Wagambie, for the Applicant Mr. M. M. Varitimos and Mr. T. Waisi, for the First Respondent Mr. H. Nii, for the Second Respondent

28th June, 2013

1. BY THE COURT: The Applicant seeks judicial review of the decision of Kawi, J invalidating his election as Member for Ambunti-Drekikir Electorate (Electorate) in East Sepik Province, in proceedings EP No. 1 of 2012, Tony Waterupu Aimo v Ezekiel Sigi Anisi & Electoral Commission of Papua New Guinea.

2. His Honour delivered his decision on 24th October 2012. It was found that the Applicant was not qualified to become a Member of Parliament as he was below the age of 25 years. The trial Judge also found that the Applicant's name was not on the Common Roll. His Honour then proceeded to declare the First Respondent, who was the first runner-up, as the duly elected Member for the Electorate.

3. The Court is indebted to Mr. Varitimos for reminding the Court that this is a review, not an appeal. The distinction was explained in Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157, thus:

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

"In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

"Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisor jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.

"As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986 AC484)

'where .....fact is left to the judgment of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...'

"Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that, is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s.220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process".

4. This decision was followed by the Supreme Court in a review matter of Waranaka v Dusava [2009] SC 980. It is, in our opinion, a correct statement of the law that is relevant to the matter before us, and we will be guided accordingly in our consideration of the issues.

5. The first issue in this matter is whether it was open to the trial Judge to find that the Applicant was less than 25 years of age.

6. Section 103 (1) of the Constitution provides that a Member of Parliament must not be less than 25 years of age.

7. The trial Judge had before him the following evidence on the Applicant's age. The First Respondent produced a Certificate of Birth Entry showing the Applicant as being born on 1st September 1988 to Alexander Anisi and Salome Andekumo at Kudjip Nazarene Hospital, Western Highlands Province. These were confirmed by Kema Vegala, the Momase Regional Co-ordinator for Births. He stated that upon request by the First Respondent, he supplied information on the Applicant's date of birth as well as that of Eugene Anisi, who was born on 22nd September 1986. The Director of the Measurement Services Branch of the Education Department also testified that the Applicant was 17 years old when he sat for his Grade 10 examination in 2005.

8. The Applicant gave oral evidence that he was born on 1st September 1986. He also produced an affidavit dated 10th August 2012. Annexure "A" was a photocopy of Eugene Anisi's Certificate of Birth Entry. He also produced the "original" copy of the Extract of Birth Entry showing that he was born on 1st September 1986. Affidavits from his mother and his grandparents were also admitted into evidence. An affidavit sworn by Augustus Wagambio, Director of Office of Registrar General, was not admitted into evidence as the deponent could not avail himself to testify and be cross-examined on "many interesting gaps" in his affidavit.

9. The trial Judge then analysed the evidence on the Applicant's two dates of birth, one being 1st September 1986 and the other being 1st September 1988. The trial Judge found that birth records had been tampered with. His Honour referred to the Applicant's affidavit dated 10th August 2012 where annexure "A" was a photocopy of Eugene Anisi's Certificate of Birth Entry. It shows 22nd September 1986 as the date of birth. Accepting this as Eugene Anisi's date of birth, the trial Judge found it to be "the most illogical, bizarre, irrational and nonsensical story ever told" that the Applicant was born 21 days earlier on 1st September 1986. The trial Judge eventually found that the Applicant was born on 1st September 1988.
10. The age issue is a question of fact. The trial Judge made his findings on the evidence before him. On the evidence, he was entitled to find that birth records had been tampered with. There is no proper basis for the submission that the trial Judge was biased. The trial Judge eventually found as a fact that the Applicant was born on 1st September 1988.

11. This Court, in its review jurisdiction, is not persuaded that the trial Judge fell into any error, procedurally or otherwise, in his reception of and his analysis of the evidence on the Applicant's age. The trial Judge was entitled to find that the Applicant was born on 1st September 1988 and was under the age of 25 years when he nominated to contest in the 2012 National General Elections.

12. The second issue is whether it was open to the trial Judge to find that the Applicant's name was not on the Common Roll.

13. Section 103 (1) of the Constitution provides that a person is not qualified to be a Member of Parliament if he is not entitled to vote in elections to Parliament.

14. The Applicant gave evidence that he voted under the name Anisi Siki Mahite. The name Ezekiel Sigi Anisi was not on the Common Roll. The Applicant did not nominate as Anisi Siki Mahite but as Ezekiel Sigi Anisi. The trial Judge was of the impression that Anisi Siki Mahite could have been another person. The Common Roll shows that Anisi Siki Mahite was born in 1983, a different year of birth to the dates of births in question. The trial Judge concluded that the Applicant did not enrol and his name was not on the Common Roll.

15. Section 64 (2) of the Organic Law on National and Local-level Government Elections (Organic Law) provides:

"(2) Where a person who is entitled to do so nominates for an electorate and his name is not already on a Roll for the electorate he nominates, on the acceptance of his nomination for the electorate, the person shall be deemed to be on the Roll and he shall so nominate and vote in the electorate."

16. This provision is of no consequence. The Applicant, who was found to be less than 25 years of age at the relevant time, was not entitled to nominate to contest in the elections. In any case, this provision was not raised in the trial court.

17. The trial Judge was therefore entitled to find that the Applicant's name was not on the Common Roll. There is no proper basis for this Court to interfere with this finding.

18. The trial Judge, for the foregoing reasons, was entitled to invalidate the election of the Applicant as a Member of Parliament as he so did. There is no proper basis to interfere.

19. The third issue is whether it was open to the trial Judge to declare the First Respondent as the duly elected Member for the Electorate.

20. Section 212 (1) of the Organic Law provides that in relation to an election petition the National Court may:

• declare that a person who was returned as elected was not duly elected,
• declare a candidate duly elected who was not returned as elected,
• declare an election absolutely void
• dismiss or uphold a petition in whole or in part.
  

21. It was submitted on behalf of the First Respondent, among other things, that the declaration by the trial Judge in favour of the First Respondent is consistent with the relief sought in the petition and the discretion to grant such relief under section 212 of the Organic Law. The trial Judge did not declare nor was he obliged to declare in the exercise of his discretion that the election was absolutely void, so that a new election was required to be held. This Court, would err if it were to interfere with the relief granted because, if the members of this Court had been presiding as the trial judge, they would have exercised their discretion differently.

22. It is trite procedural law that exercise of discretion must be exercised properly and judiciously. In the context of section 212 (1), a declaration by a court must, where possible, be reflective of the will of the electors. It is for this reason that under section 218 of the Organic Law, for instance, where errors and omissions are alleged and proved, it must still be shown that the result of the election was affected. On the other hand, in bribery cases, the result of an election is usually unclear after the judicial elimination of a successful candidate who is guilty of bribery. A by-election would usually be the appropriate relief.

23. As Kirriwom J stated in Powes Parkop v Wari Vele (No. 2) of 2007 (N3321):

"I...reject any suggestion that in an election petition where the ground alleged and proved to the satisfaction of the court is bribery and the election of the successful candidate is declared void, another losing candidate, runner up or not, can be declared winner. I don't think that is what the law intended at all.

"Vesting the Court with such power is the same as empowering it to substitute the people's choice of leader by popular vote with one that the Court chooses. That would defeat the whole purpose of election."

24. We accept the submission that invalidation of an election result under section 103 of the Constitution is akin to invalidation of an election result on the ground of bribery. In both cases, the People's choice is unascertainable after the invalidation of election of the successful candidate.

25. In this case, the Applicant was the successful candidate. He scored 8141 votes. The First Respondent was runner-up with 6634 votes. The appropriateness or otherwise of the relief in question is apparent from these figures. The 8141 votes that were collected by the Applicant, in the proper exercise of discretion, cannot be overlooked. In other words, the majority of voters in the electorate did not vote for the First Respondent.

26. The trial Judge opted to declare the First Respondent duly elected because "costs and logistics of conducting [a by-election] would be too enormous". With respect, this reason is secondary, if not irrelevant. The overriding consideration is that when a court is considering whether to declare a losing candidate as duly elected, the election results cannot be ignored. Where the results do not favour that losing candidate, it would be wrong to declare him duly elected.

27. The Court is of the view that, in the circumstances, the trial Judge erred in the exercise of his discretion when he declared the First Respondent as duly elected.

28. In the final analysis, we uphold and confirm the trial Judge's declarations:

• that the Applicant is disqualified to become a Member of Parliament as he was less than 25 years of age,
  
• that the Applicant was not duly elected as member for Ambunti-Dreikikir Open Seat.
  

29. We, however, set aside and quash the trial Judge's declaration:

• that the First Respondent was duly elected as member for Ambunti-Dreikikir Open Seat.
  

30. This means that the First Respondent ceases to be a Member of Parliament forthwith; there is a vacancy in the Ambunti-Dreikikir Open Seat; and there shall be a by-election for the Ambunti-Dreikikir Open Seat.

The parties shall bear their own costs.

Orders accordingly.
________________________________________________
M.S. Wagambie Lawyers: Lawyer for the Applicant
Waisi Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent