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Yagama v Yama [2013] PGSC 22; SC1244 (29 July 2013)

SC 1244


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC REVIEW (EP) 36 & 37 OF 2013


Application under Section 155 (2)(b) of the Constitution


And in the matter of Part XVIII of the Organic Law on National and Local Level Government Elections.


ANTON YAGAMA
Applicant


PETER CHARLES YAMA
First Respondent


STEVEN BIKO
Second Respondent


ANDREW TRAWEN, Electoral Commissioner
Third Respondent


ELECTORAL COMMISSION OR PAPUA NEW GUINEA
Fourth Respondent


AND


ELECTORAL COMMISSION OR PAPUA NEW GUINEA
Applicant


PETER CHARLES YAMA
First Respondent


ANTON YAGAMA
Second Respondent


Waigani: Batari J
2013: 11, 29 July


ELECTION PETITION – Judicial Review – leave – application for – discretion to grant leave for judicial review – principles of – grounds - errors of law and facts – higher stand of scrutiny applied - Returning officer - unlawful declaration of failed election – acting appointment of returning officer - Electoral Commission purporting to appoint Returning officer to fill temporary vacancy – delegation of powers and functions - instrument of delegation -– whether valid in form - errors by electoral official - invalid Form 66B –order for recount – whether appropriate relief – ss. 18, 21, 212, 217, 218 Organic Law considered


Facts


At the counting for an election to a seat in the National Parliament, the Returning Officer declared a "failed election" and stopped the counting. The Electoral Commission appointed two Assistant Returning Officers and an acting Returning Officer, but the instrument appointing the latter was not gazetted, did not specify the duties to be performed and was not served on the delegate. The National Court Judge found the errors in relation to the appointment of the acting Returning Officer, combined with the fact that the counting continued in the absence of scrutineers and that no Form 66B record of the results of the count was prepared, justified an order for a re-count. On an application for leave to review the decision of the National Court Judge―


Held;


1. The factual finding that the appointment of the acting Returning Officer was defective in law, goes to the question of jurisdiction. Arguments relating to the relative position of the petitioner in the count do not raise serious questions justifying the grant of leave, at [15];


2. It is an essential element of s 18(1) that the delegated power or function must be clearly specified as to:


(a) electorate or electorates;

(b) such matters or class or matters;

(c) the whole country or such part of the country.

At, [29];


3. An argument that the remedy against a defective instrument of delegation in respect of the counting at an election, lies in judicial review, does not raise a serious or important question for the grant of leave, at [38-42];


4. The argument that the evidence in relation to Form 66B was not properly before the Court is contrary to the record, at [47-48];


5. The argument that the occasion and jurisdiction to order a recount had not arisen, does not raise a serious or important question in light of the discretion granted to the Court by ss212(3) and 217, at [60];


6. That ground 5 (errors at the counting) was dismissed does not raise a serious or important question concerning the order for a re-count, which was based on the flawed delegation, not on counting errors, at [65-68];


7. That the petition did not plead the return or result of the election contrary to ss 170 and 172 does not raise a serious or important question, when the errors found by the trial judge were unrelated to the procedure for challenging a scrutiny, at [71];


8. That an order for a re-count may ultimately lead to the avoiding of the result of an election does not raise a serious or important question to negative that the order for a re-count under s 212(1)(d) does not have the same effect as voiding an election, at [77];
9. Application to apply for leave for judicial review refused.

Cases Cited:


Anton Yagama v Peter Charles Yama, Steven Biko, Andrew Trawen and the Electoral Commission (2013) SCR 55of 2012, (Unnumbered)
Application of Ludwig Patrick Shulze (1998) SC 572
Avia Aihi v The State [1981] PNGLR 81
Ben Semri (2003) SC 723
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC 788
Herman Joseph Leahy (2006) SC 855
Jurvie v Bony Oveyara (2008) SC 935
Kasap v Yama [1988-89] PNGLR 81
Kelly Kalit v John Pundari (1998) SC 569
Lisio v Puana (2008) N3463
Maino v Avei [1998] PNGLR 178
Paul Aihi v Sir Moi Avei N2523" title="View LawCiteRecord" class="autolink_findcases">[2004] PGNC; N2523
The State v Paul Loi, Gerard Reu, Valentine Reu, Darius Dende (2009) N4058:
Trawen v Kama (2008) SC 915
Wingti v Rawali (2008) N3286


Counsel


Mr. T. Boboro, for the First Applicant in SC Review (EP) 36 of 2013 and Second Respondent in SC Review (EP) 37 of 2013.
Mr. H. Nii, for the Second, Third and Forth Respondents in SC Review (EP) 36 of 2013 and Applicant in SC Review (EP) 37 of 2013

Mr. N. Kiuk, for the First Respondent in both applications.


29th July, 2013


  1. BATARI, J: These are applications for leave to apply for judicial review of the decision of the National Court which upheld the Election Petition, in EP 52 of 2012 Peter Charles Yama v. Anton Yagama, Steven Biko, Andrew Trawen (Electoral Commissioner) and Electoral Commission in part with consequential orders for a recount. By consent of the parties, the two applications are heard together. The applications are made under s.155 (2)(b) of the Constitution and Order 5,Sub-division 2 of the Supreme Court Rules 2012 (the SCR).
    1. BACKGROUND
  2. In the National Court at Madang, the Petitioner, Peter Charles Yama disputed the return of Mr. Anton Yagama as the successful candidate for the Usino-Bundi Open Electorate of Madang Province in the 2012 General Elections on the grounds of:
    1. bias and undue influence of electoral officials, in particular the Returning Officer Steven Biko;
    2. bias and undue influence of electoral officials, in particular an Assistant Returning Officer;
    3. other illegal practices, errors and omissions;
    4. failure to conduct polling at designated places and delays, double and underage children voting, and
    5. illegal practices, errors and omissions at counting.
  3. Ground 3 was struck out at the competency stage while the remaining grounds proceeded to trial. On 16 May, 2013 the trial Judge, Cannings J partially upheld Grounds 1 and 2 and dismissed Grounds 4 and 5 of the Petition. On Ground 1 the court held, the Petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Returning Officer, Steven Biko but found an "error" was committed by the Returning Officer in acting outside his lawful authority to stop the count and declare a failed election. In a similar ruling, Ground 2 partially succeeded on the basis that the petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Assistant Returning Officer but found the petitioner had proven the commission of "errors" by various officers regarding the appointment of an officer to perform the duties of the office of the Returning Officer contrary to s. 21 of the Organic Law on National and Local Level Government Elections (the Organic Law) and the exercise of powers by that officer, including conducting the final stages of the scrutiny and declaring the election result.
    1. GROUNDS FOR LEAVE FOR JUDICIAL REVIEW
  4. The grounds for leave to apply for judicial review of the decision of the Court of the National Court are numerous. They seek to challenge decision in partially upholding two grounds of the Petition and the subsequent orders for a recount. In brief, both applications for leave are premised and developed around three principle contentions that:
    1. the trial judge for the number of given reasons (factual and/or legal) erred in ordering a recount;
    2. the trial judge on a number of aspects, erred in making findings of facts on insufficient evidence or, that was either not pleaded or not properly before the Court;
    3. the trial judge erred in holding that the instrument of delegation appointing James Apimia to exercise the powers and functions of the Electoral Commissioner from 27th July 2012 to 30 July 2012 was invalid.
  1. PRINCIPLES GOVERNING LEAVE APPLICATION
  1. Section 220 of the Organic Law prohibits an appeal against a decision or ruling of the National Court . However, it is settled from the seminal authority of, Avia Aihi v The State [1981] PNGLR, 81that an aggrieved party may, with leave, seek a judicial review of the Court decision under s. 155(2)(b) of the Constitution. This provision vests in the Supreme Court inherent power to review a decision of the lower court where the applicant has lost the right of appeal and where an appeal is expressly prohibited by statutory provision.
  2. In election petition reviews, the application for leave is made before a single judge, whose decision or ruling is final and not subject to further review under Order 5 Sub-division 2 of the SCR. The discretion to grant or refuse or leave must be exercised properly and judicially.
  3. The test to be applied, as expounded in Jurvie v Bony Oveyara (2008) SC 935, from decided cases is based on four main principles namely:
    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) SC 915.
    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) SC 572.
    3. The three criteria set out for grant of leave in Avia 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) 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 Shulze (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 finding of fact is warranted.
  4. The substantive merits of the application are not under scrutiny at this leave stage. Hence the evidence and materials supporting the leave application ought not to be considered and assessed in minute detail. Conversely, the Court 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 on by the parties. The applicant must show he or she has satisfied the strict standard of scrutiny for the grant of leave as suggested in Jurvie's case.
  5. The standard of scrutiny in assessing the leave application in election petition reviews is higher than the usual considerations in ordinary cases of administrative reviews or where the applicant has no right of appeal or has lost that right. This is evident from the precondition to show an apparent error of law or fact on the face of the record. If the error is a question of law, it must be a serious and important point of law that is not without merit. If factual error is alleged, it must be shown to be 'a gross error clearly apparent or manifested on the face of the evidence.' Or the exercise of discretion was excessive or the decision is 'so outrageous or absurd so as to result in injustice.' This high onus was recently restated in obiter dicta by the Supreme Court in, Anton Yagama v Peter Charles Yama, Steven Biko, Andrew Trawen and the Electoral Commission (2013) SCR 55of 2012 (unnumbered), that such a review should only be allowed where, "there is a clear error which has a very high chance of success."
  6. The Full Court decision which had preceded this application was dealing with a review of an interlocutory ruling in this same election petition proceeding. The high standard required for leave in election petition cases in my view, applies to all manner of decisions and rulings being sought for review because s. 155 (2)(b) does not distinguish between classes of decisions or rulings, whether the ruling was interlocutory or final and so forth. This is clear from the words, "to review all judicial acts of the National Court." (my underlining).
  1. ISSUES FOR REVIEW
  1. I begin with questions surrounding findings of errors in Ground 1 and Ground 2 of the Petition, followed by issues pertaining to a recount.

Trail judge erred when he stated in his findings of facts that the Returning officer, 'over reacted' when he declared a 'failed election.'


  1. The contention by the applicants as set out in paragraph (j) (vii) in SC Rev. No.36 of 2013 Application for Leave to Review by Anton Yagama are that the trial judge erred in his factual findings that the Returning Officer 'overreacted' when he declared a 'failed election.' Mr. Boboro of Counsel for the applicant argued that the trial judge failed to consider and give due weight to the evidence of the Returning Officer, Steven Biko being forced into making the declarations as the scrutiny and counting officials were "under siege" and that the hostility only ceased after Mr. Biko declared a failed election, albeit, unlawfully.
  2. That contention has no basis. There is no dispute over the disturbances and fighting at the counting centre. There was also evidence of presence of police. The fighting was stopped and normalcy restored. The trial judge found there was no or insufficient cause to justify aborting the counting and that the Returning Officer had overreacted. Inferentially, the situation; (i) did not warrant a declaration of a failed election; (ii) the returning officer had either misunderstood the extent of his powers or he had deliberately flouted the election laws. His Honour was better placed to make the finding of facts he did based on his assessment of the evidence and demeanor of witnesses.
  3. If the allegation is, that trial judge misunderstood or misconstrued the evidence; the applicant has the onus to show that. The self–serving statements in the two versions before the Court are in conflict. Those conflicts were no doubt resolved on the oral evidence of witnesses called by both sides. That evidence is not before this Court. Failure to produce the transcript of the court proceedings leaves the applicant's case incomplete and unsustainable.
  4. I agree with Mr. Kiuk for the respondent, that the applicant has not shown any gross error clearly apparent or manifested on the face of the evidence. Nor were the findings, that the Returning Officer overacted, so outrageous or absurd so as to result in injustice. If anything, the point raised was merely arguable, it was not likely to succeed on review.

Undue weight and consideration given to irregular appointment of James Apimia when Petitioner was eliminated at count 39.


  1. The applicant's contention in paragraph (j) (vi) of the grounds for leave is, that the trial judge erred in law in giving undue weight and consideration to the issue of the irregular appointment of James Apimia to order a recount, when the evidence clearly showed that the Petitioner was eliminated at the 39th count, and it would not have mattered to the result or outcome of the election.
  2. This issue is intended to be against the orders for recount. It also raises the issue of weight of evidence. The finding that the appointment of James Apimia breached a statutory provision goes to the question of jurisdiction. When the appointment was found to be defective in law, the delegated power and function was rendered ineffective. It becomes a secondary issue to a just and satisfactory relief in all the circumstances of the case. The question is discretionary.
  3. The errors, as found by the trial judgment, were significant errors, such that the whole counting process became a nullity from when counting was unlawfully stopped by Steven Biko to the irregular appointment of James Apimia. The fact that the First Respondent was eliminated at count 39th is not a signification considerable against a recount relief. That issue in my view is merely arguable, at the highest. This ground fails to raise any serious or important issue for review.

Errors in the appointments of Electoral Officers and illegal act of Steven Biko


  1. The errors in the appointments of Mr. Aiam and Mr. Gembo as Assistant Returning Officers for Gama and Usino LLG areas respectively are conceded by the applicants. It is also conceded that there were no notices of appointments to those positions in the National Gazette. Too, the unlawful assumption of power by the Returning Officer, Steven Biko is admitted.
  2. The unlawful act of Steven Biko set off a chain-reaction culminating in the appointment of James Apimia. The Court found the acting appointment to have been made in contravention of statutory requirements. This is the next most contentious issue on the question of leave.

Errors of law and facts in the trial judge's findings that the appointment of James Apimia was vague and ineffective.


  1. The parties' contentions are similar. The statements of issues challenging the findings of the trial judge against the regularity of the instrument of delegation are succinctly summed up by Mr. Nii for the applicant Electoral Commission in his written submissions as follows:
  2. The grounds for leave on these legal issues are particularized in SC Review (EP) 37 of 2013 Application for Leave to Review by the Electoral Commission in Grounds 3.1 to 3.5 inclusive. They challenge the findings of facts and the application of s. 21(2) and (5) of the Organic Law in regard to the appointment of Mr Apimia to complete the count and make the declaration. In SC Review (EP) No 36 of 2013 Application for Leave to Review by Anton Yagam, the contentions are raised in paragraphs (j) (viii) and (ix).
  3. Mr. Nii submitted in a nutshell that the appointment of Mr. Apimia was proper, in an emergency situation, to perform the tasks of the Returning Officer. The trial judge erred when relying on the lack of Gazettal Notice to invalidate the instrument of delegation, as the intention of Parliament under s. 21(5) is clear, that the failure or lack of gazettal notice is not a serious or fundamental flaw that will invalidate an election. In a similar contention, Mr. Boboro argued that the trial judge erred in unduly treating the appointment as an error in the elections when the issue is an appropriate cause for judicial review by an aggrieved party.
  4. Mr. Kiuk for the respondent, Mr. Yama submitted that the Court had correctly held the appointment of Mr. Apimia breached s. 21 of the Organic Law in that the instrument of delegation did not prescribe the powers and functions so delegated to Mr. Apimia. Furthermore, the delegation was not published in the National Gazette as required. Consequently, Mr. Apimia lacked the lawful authority to continue counting and to declare the result of the election as he did. And because of that breach, the return of the writ was legally flawed. To that extent, the trial judge correctly ruled on the basis of the material before the court.
  5. The applicants rely heavily on the non-compliance with the requirement for gazettal notice as the main reason for holding the instrument of delegation invalid. They argued that the trial judge misread the provisions of s. 21 (1) and (5), when it is clear, that the failure to publish the notice is not a ground to invalid the election. The trial judge, in the judgment dealt with this issue at page 19:

"It is arguable that this means that the errors concerning Mr Apimia's appointment ought to be disregarded. There are two answers to that proposition. First, the failure to publish the notice of Mr Apimia's appointment was not the only error that occurred, it was one of a series of errors. Secondly, the failure to publish the notice is not being relied on as a ground for invalidating the election. Ordering a recount is not invalidating the election." (Underlining added)


  1. These issues require a close scrutiny of the provisions of ss. 18 and 21 of the Organic Law. Section 18 vests in the Electoral Commission the power of delegation. Sections 21 provides for delegated appointment in cases of emergency.
  2. Section 18 reads:

"18. Delegation.


(1) The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.


(2) Every delegation under Subsection (1) is revocable, in writing, at will.


(3) No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission.


"Section 21 reads:"Appointment in cases of emergency.


(1) Subject to Subsection (2), in the event of a vacancy occurring in an office of Returning Officer or Assistant Returning Officer, or in the absence from duty of any such officer, the Electoral Commission may, by notice in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.


(2) The Electoral Commission shall publish each notice under Subsection (1) in the National Gazette.


(3) In the event of a vacancy occurring in an office of Assistant Returning Officer appointed under Section 20(4), or in the absence from duty of any such officer, the Returning Officer may, by instrument in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.


(4) An appointment under Subsection (1) is temporary only, and does not confer on the appointee any right or claim to be permanently appointed to the position.


(5) The Failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election."


These two provisions must be read together when the question of delegation of power or function arises as it did in this case. The enabling provision of s.18 (1) envisages two situations under which the Electoral Commission may delegate, namely, (a) all the powers or functions of the Electoral Commission, (b) specified powers. This is apparent from the phrase, "all or any of its powers". The difference is that one is a broad delegation while the other is limited to a selection of delegated power or function. In both cases, the delegation may be determined by a prevailing situation and that the delegated power or function must be clearly specified in the instrument of delegation in respect of:electorate or electorates;


(a) such matters or class of matters,

(b) the whole country or such part of the country.


  1. Under s. 21(1), there must first exist, a vacancy occurring in the office of Returning Officer or Assistant Returning Officer. In this case there was clearly no vacancy because the absence of the Returning Officer from counting or scrutiny was due to self-imposed illegitimate exercise of power to declare a failed election. It was then for the Electoral Commissioner to rectify it. The Commissioner ought to advise the Returning Officer of his mistake and instruct him to resume counting. If he refuses, absconds or defies instructions that may pave the way for an emergency situation that would warrant delegation of power under s. 21(1).
  2. Accepting that there was an urgent vacancy, the Electoral Commission is required under s.21 (1) to appoint a relieving Returning Officer or Assistant Returning Officer. That intention is clear from the phrase, "to perform the duties of the office". When s.21 (1) is read together with s. 18 (1), the intention is clear that the delegated power or function must be specific and it must relate to a particular office. For the purpose of s. 18 (1) the delegated power or function must relate to a particular electorate or electorates, or it must relate to a particular matter or class of matters, or it must relate to the whole country or part of the country.
  3. The whole intention of these provisions is for employees or staff of the Electoral Commission or the electoral officers, for the purpose of general elections for the three tiers of government, to be delegated all or limited powers and functions of the Electoral Commission, when the occasion for elections arises, or when a prevailing situation in connection with polling, scrutiny or any other aspect of the electoral process, requires devolution of power and function.
  4. In this case, the prevailing situation that necessitated devolution of power and function related to counting. The instrument of delegation in question reads:

I ANDREW SEAN TRAWEN CMG MBE, Electoral Commissioner, by virtue of the powers conferred by Section 18 of the Organic Law on National and Local-Level Government Elections and all other powers enabling me, hereby delegate all the powers and functions to James Apimia to be exercised in relation to all parts of Usino-Bundi Open electorate for a period from Friday 27th to Monday 30th July 2012.


Dated this 27th day of July 2012.


  1. In his affidavit filed in support of this application for leave, the Electoral Commissioner, Mr. Andrew Trawen stated in paragraph 8:

"I verily believe that the appointment of James Apimia was proper and in accordance with the Organic Law on National and Local Level Government Elections. As such, he had delegated powers and functions of the Returning Officer and the Electoral Commissioner to complete scrutiny of the elimination counts and make the declaration of the new Member-elect of the Usino-Bundi Open electorate."


  1. One can immediately see the vast disparity between defined powers and functions and the office to which those powers and functions were to be had and exercised set out in the affidavit of the Electoral Commissioner and the broad statement of delegation in the instrument of delegation. The evidence in the affidavit came after the trial and is intended for this leave application. It does not cure the following apparent defects in the statutory instrument of appointment:
  2. Applying the high standard of scrutiny set out in Jurvie v Bony Oveyara, I am not satisfied on the basis of a defective statutory instrument of delegation, that there is an important point of law to be determined and that it is not without merit. See also, Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.
  3. The question of scrutinizing the validity or otherwise of a delegation instrument on the court's own motion, raises two important concerns. First, the source or basis upon which the validity of the delegation instrument arose at the trial is unclear. This has not been clarified by the applicants. It is uncertain whether the issue was raised and articulated by the parties in the court below. Or was this an issue the parties were denied the opportunity to address? The transcript of the court proceedings will throw some light on this. It is not before this court. The failure to take steps to request or secure the transcript for the purpose of this leave application is to the disadvantage by the applicants.
  4. Second, it is my strong view that no judge, exercising judicial prudence and vigilance, will ignore the onerous duty to closely scrutinize and give the evidence before the Court due weight or disregard the evidence, for reason. Non-compliances with statutory or procedural requirements or abuse of the court process cannot be simply disregarded by the court. As I said of the duty of a judge in the context of a criminal trial in, The State v Paul Loi, Gerard Reu, Valentine Reu, Darius Dende (2009) N4058:

"This sentiment also fortifies the ultimate responsibility of the trial judge over the court's own processes and the duty to ensure the proper conduct of criminal trial proceedings. The judge has the overall supervisory role over trial matters before the court. It is a crucial role first and foremost, to secure a fair trial in the general criminal justice administration."


  1. In the context of an election petition, the judge has the overall supervisory role over trial matters before the court. The crucial role of the judge is first and foremost, to secure a fair trial guided by the substantial merits and good conscience of the case without strict adherence to the law of evidence (s 217 Organic Law) and to make orders on such grounds as the judge thinks just and sufficient (s. 212(3) Organic Law) in all the circumstances of each case.
  2. Returning to this case, the delegation note is a legal document. It was tendered into evidence by the applicants. The document was insufficient and defective in failing to follow the optional specific requirements set out in ss. 18 and 21 of the Organic Law. The broad statement of delegation did not specify the office to which the power or function was delegated under s. 21(1). The instrument of delegation also failed to address the situation at hand under s. 18(1). So, the instrument of delegation, in the words of the trial judge is, "vague and ineffective".
  3. This issue is compounded by the fact, that Mr Apimia was not given a written authority in any form or shape to continue the scrutiny. If the defective instrument of delegation existed, he was not aware or given the original as he should. Mr. Apimia in his evidence denied sighting any instrument of appointment authorizing him to perform the duties of Returning Officer.
  4. In the context of these discussions, I also hold that the argument by Mr. Boboro suggesting a remedy in judicial review is untenable and without merit. The argument suggests that the trial judge should either ignore the error or let the aggrieved party apply for judicial review at the end of the trial or abort the hearing there and then for the party aggrieved to seek a judicial review of the administrative act of the Electoral commissioner.
  5. So it is merely arguable that the judge over emphasized the failure to publish the notice in the National Gazette. The critical point is that the notice in its form was defective and that error can stand alone. The failure to gazette the notice was not a determinative error. As the trial judge stated, the non gazettal of the notice was not relied on as a ground or important error for invalidating an election.

Error in giving undue weight evidence not properly before the Court.


  1. Grounds 3.7 to 3.9 in SC Review (EP) No 37 of 2013 concerned Form 66B. Mr. Nii submitted that the trial judge erred in using Form 66B as a basis to order the recount, when the evidence was adduced in respect of Ground 5 only. That evidence dissipated with the dismissal that ground. It was also submitted that the evidence was not properly before the Court. The trial judge therefore erred when he made adverse findings on the basis of that evidence.
  2. The court referred to Form 66B when discussing the appropriate relief in the light of the errors that had occurred. It stated at page 19 of the judgment:

"Form 66B, a tally sheet intended to show the details of distribution of votes and how the final result was determined was not completed. These errors have called into question the entire scrutiny, the declaration of the result and the return of the writ."


  1. The statutory base for Form 66B is possibly ss.154(2)(d) and 162 of the Organic Law which requires in mandatory terms, the completion of a statement setting out the number of votes for each candidate and the number of informal votes. The form must be completed and signed by the electoral officer conducting the scrutiny. It seems Form 66B was not tendered into evidence. It is however not correct to say the evidence of that document was not properly before the court.
  2. The failure to comply with this statutory requirement is implied in James Apimia's affidavit at paragraph 13 as follows:

"The final exclusion was completed at 6:30pm and I made a verbal declaration at 6:15pm. I did not pursue the signing of the writ as there was no document for suspension of Mr Biko and my appointment as acting Returning Officer for Usin-Bundi, thus I had no legal basis to effect such."


  1. Mr. Apimia also gave evidence, that he did not sign Form 66B, despite it being an important requirement. This is averted to in the written submissions by lawyers for Mr Yama at pp. 22-23. The issue was also put to the Electoral Commission witness, Ms Emily Kelton Siamoli in cross-examination. She agreed Form 66B must be completed and signed. On page 23 of the written submissions, it was conceded Ms Siamoli knew the requirement for Form 66B and that she was certain Mr. Apimia signed the form.
  2. It is therefore apparent, that the evidence on Form 66B was properly before the Court by way of oral evidence from both parties. It was part of the whole of the evidence on allegations of errors and omissions against electoral officials. The evidence was before the Court on that basis and by virtue of s. 217 of the Organic Law, which requires the Court to be guided by the substantial merits and good conscience of the case without strict adherence to the law of evidence.
  3. The court is at liberty to assess admissible evidence and decide its worth like any other evidence as the issues before the court may dictate. In this case, the trial judge believed Mr. Apimia and concluded that an error was committed when the statutory requirement was ignored. It is a fallacy to suggest the evidence dissipated with Ground 5 of the petition as the applicants submitted.
  4. An aspect of some concern is the conduct of the Electoral Commission. It had in its possession, a public legal document that should have been tendered irrespective of whether it is adverse to its case or not. The Commission had absolutely no good reason to withhold and deny the Court the existence of that public document. The validity of Form 66B had been fairly raised and the onus was on the Electoral Commission to disprove it.
  5. The Electoral Commission, like in many past instances appeared to be behaving unlawfully and unfairly in defending and condoning apparent errors and omissions of its officers. This is a very serious matter. The Electoral Commission has a constitutional duty and obligation to ensure strict adherence to and compliance with important statutory requirements in order to protect the integrity of the elections as well as the independence of the office.

Orders for Recount: Whether the trial judge erred in ordering a recount.


  1. The issues against the recount relief are numerous in challenging from different points and perceptions, the choice of a recount relief.
  2. The principal contention by the applicant, Anton Yagama and supported by the Electoral Commission are, that the exercise of power by the Electoral Commission to appoint the Returning Officer and Assistant Returning Officers in an emergency situation are administrative decisions, not subject to determination in an election petition. It is an appropriate matter for judicial review. Further, the question of whether James Apimio was properly appointed does not affect the result of the election result or return for a number of reasons that will follow.
  3. Mr. Boboro submitted, that having dismissed the entire grounds of the petition, except for Grounds 1 and 2 which were partially upheld, and having noted that the errors of the electoral officials should not invalidate the election, the trial judge fell into error when he ordered a recount under s.212 (1) (d) of the Organic Law. Counsel argued that his Honour misapplied the law and gave undue consideration and weight to matters which were administrative in nature.
  4. The Petitioner had alleged in Ground 1, bias and undue influence of electoral officials, in particular Steven Biko as Returning Officer. The trial judge dismissed those allegations, but found a serious official blunder when Mr Biko exceeded his lawful authority to stop the counting and declare a failed election. I think Mr. Biko then deliberately absented himself or absconded from the counting centre. His Honour also found in relation to Ground 2, the allegations of bias and undue influence were not proved, but found 'error' by various officers in the appointment of an officer to perform the duties of the Office of Returning Officer.
  5. The question then arose as to the appropriate relief in the particular circumstances of the errors the court had found. His Honour considered the various options available to the court under s. 212 (1) of the Organic Law and resolved the issue as follows at pp.19 - 20 of the judgment:

"It would not be proper to declare under Section 212(1)(f) that the first respondent was not duly elected (nor would it be proper to make declarations under Sections 212(1)(g) or (h)) as that would amount to 'avoiding' the election, which Section 218 (1) provides can only be done if the errors affected the result of the election; and here it cannot be said that the errors affected the result. However, if all that is being sought is an order for a recount the court does not have to be satisfied that the errors that have been found to have occurred affected the result of the election (Maino v Avei [1998] PNGLR 178, Wingti v Rawali (2008) N3286, Lisio v Puana (2008) N3463. It can order a recount on such grounds as it thinks just and sufficient (Section 212(3) provided that it is guided by the substantial merits and good conscience of the case (Section 217).


I think there are just and sufficient grounds for a recount. The errors made as to the appointment of the two Assistant Returning Officers can rightly be regarded as relatively minor and do not provide good grounds for ordering a recount. However the errors that occurred on 26 and 27 July were very significant, culminating in an irregularly appointed officer conducting the final stages of the scrutiny in the absence of all relevant scrutineers and declaring the result of the election. Form 66B, a tally sheet intended to show the details of distribution of votes and how the final result was determined, was not completed. These errors have called in question the entire scrutiny, the declaration of the result and the return of the writ. I note that Section 21(5) of the Organic Law provides that "the failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election". It is arguable that this means that the errors concerning Mr Apimia's appointment ought to be disregarded. There are two answers to that proposition. First, the failure to publish the notice of Mr Apimia's appointment was not the only error that occurred, it was one of a series of errors. Secondly, the failure to publish the notice is not being relied on as a ground for invalidating the election. Ordering a recount is not invalidating the election..............


I consider that the errors that have been proven to have been made can be rectified by a recount. Being guided by the substantial merits and good conscience of this case, real justice will in my view be observed by ordering a recount. I will order that it be conducted within 28 days. The justice of the case dictates that the first respondent not lose his seat, not yet anyway. Whether he retains his seat will turn on the result of the recount,"


  1. The orders for recount were based on fundamental statutory errors connected with the very existence and legitimacy of the powers and functions to be had and performed by the electoral officers in the counting process. Errors were made in the appointment of two Assistant Returning Officers. Then the progress of a legitimate scrutiny was abruptly stopped by an unlawful act of the Returning Officer. Imprudent and hasty reaction by electoral officers including the Electoral Commission to rectify the situation, led to further error in the failure to specify the delegated power and functions in the appointment of the relieving Returning Officer and a further error occurred an incomplete scrutiny form. The combined effect of these errors was to partially uphold Grounds 1 and 2 of the petition.
  2. The Organic Law is silent on what consequences should follow when errors are committed by electoral officers in the nature of the case before this Court. The applicants' position is that the whole petition should be dismissed because the entire grounds constituting the substance of the petition have been dismissed.
  3. The court is empowered under s. 212 (3) to exercise any of its powers set out therein on such grounds as in its discretion it thinks just and sufficient. When s. 212 is read together with s. 217 the trial judge is, in my view, correct in preferring the recount relief under s. 212(1) (d). Section 217 behoves the National Court to be guided by the substantial merits and good conscience of each case.
  4. The statutory suppleness of s. 217 resonates the requirement that the Court be guided by 'just and sufficient' grounds (s.212 (3)) when exercising its powers under s. 212 (1) and s. 222 of the Organic Law which prohibits legal representation of parties, except with consent by the other party, or by leave of the Court. The intention of the Parliament is clearly that an ordinary citizen, aggrieved by the result or return of election should be able to come to Court without the assistance of a lawyer to file and prosecute an election petition. See, Paul Aihi v Sir Moi Avei N2523" title="View LawCiteRecord" class="autolink_findcases">[2004] PGNC; N2523.
  5. The crucial consideration is however, that the National Court is not devoid of the power to make the orders it did in the particular circumstances of this case.
  6. The applicants have not satisfied the required high standard for leave on this ground. They have not seriously challenged the exercise of judicial discretion to order a recount in the circumstances of the errors under s. 217 of the Organic Law.

Error in law in ordering a recount when the entire Ground 5 of the Petition which would have formed the basis for a recount had been dismissed.


  1. This is a common issue to both applications. Mr. Nii submitted that having dismissed Ground 5 of the petition, which alleged specific errors and omissions at the counting centre, the exercise of discretion by the trial judge to order a relief of recount under s. 217 of the Organic Law was wrong in law. A recount is usually ordered to remedy errors and omissions in the scrutiny process. Hence, the judge wrongly exercised his discretion under s. 212 of the Organic Law. Counsel relied on Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC 788 in support of his proposition. Mr. Boboro made similar submissions on behalf of the first applicant.
  2. Mr Kiuk on the other hand submitted that the Court has wide powers to make orders as it deemed appropriate in the circumstances of each case pursuant to ss. 212, 217 and 218 of the Organic Law. Counsel submitted the various grounds do not raise serious or important questions of law or facts for review.
  3. In my view, the applicants' grounds do not raise a question that is not without merit. The contention by the applicants ignores the fact that the trial judge found errors in the form of statutory breaches, which had nothing to do with the usual errors or omission in the actual counting of votes. The pleading of facts in Ground 5 were specific and they related to allegations of illegal practices, errors and omissions at counting. None of the instances of errors alleged there related to the erroneous declaration of a failed election by Steven Biko. Nor do those grounds relate to the delegation of power to James Apimia. More importantly, the errors as the trial judge found in Grounds 1 and 2 and were correctly decided alone and in isolation from Ground 5 in regard to the consequential effect to follow.
  4. There is a clear distinction between the errors pleaded in Ground 5 and the errors that the trial judge found to have occurred in Ground 1 in relation to conduct of the Returning Officer in assuming and exercising a statutory authority he did not possess. Similarly, the error in Ground 2 relating to the actions of the electoral officials in regard to the appointment of Mr. Apimia is distinct from those allegations in Ground 5. While the relief for the type of errors and omissions in Ground 5 if proven may be a recount, the answer is not as clear-cut for the errors the trial judge found in Grounds 1 and 2.
  5. So, the trial judge had quite correctly reverted to ss. 212, 217 and 218 to guide his discretion as to the "just and sufficient" relief (s. 212(3)) and guided by "substantial merits and good conscience of each case" (s. 217). His Honour decided that s. 212(1)(g) and (h) should not apply as that would amount to "avoiding" the election which s.218(1) states can only be done if the errors affected the result of the election.
  6. In all the circumstances of this case, the serious and important errors cannot be simply swept under the carpet as the applicants are contending. The illegal and unfair acts of the Electoral Commission and its electoral officials cannot be condoned by dismissing the whole petition. The proper course logically and for convenience of time and costs to the State and all stakeholders is to reach a finality in the election process in the most convenient and cost effective way. This, in my view, is where the application of s.217 is most relevant and applicable. It has not been shown that the orders for recount were not guided by substantial merits and good conscience in the particular circumstances of this case.

The Order for recount is unsupported by the failure to plead the returns or result of the election and is contrary to ss. 170 and 172 of the Organic Law.


  1. It is submitted by the applicants, that the orders for recount was not an available remedy because the petition did not plead the final returns or result of the election. The court also erred in failing to consider the application of ss. 170 and 172 of the Organic Law which provide the basis for recount and further that it failed to appreciate that the order for recount is not an appropriate remedy in the circumstances of this case.
  2. I do not find the argument compelling. On the basis of the observations I have made elsewhere in this ruling and the following, the argument does not raise a matter of law that requires review of the exercise of court discretion. Nor does it raise a question of fact which is such that would warrant a review.
  3. The errors founded on substantive statutory breaches cannot be vitiated by mere technical rules of pleadings. Furthermore, the circumstances of the errors found by the trial judge were unrelated to the procedure for challenging a scrutiny during counting under s. 170 and s. 172 of the Organic Law. Those provisions have no application or relevance where the error goes to the very standing or validity of appointment and authority of the officers involved in the counting.

Error in reliance on case law that ordered recount


  1. The applicants' contention is that the trial judge erroneously ordered a recount relying on, Maino v Avei [1998] PNGLR 178; Wingty v Rawali (2008) N3286; Liso v Puana (2008) N3463 when a recount was not the only relief sought in the petition and that in those cases, the errors and omissions by the electoral officials in tampering with ballot boxes, disallowing and removal of ballot votes occurred during the counting process. It is submitted that orders for recount would have been the appropriated relief had those allegations in Ground 5 been proved. So, the trial judge erred in relying on the cited cases to order a recount.
  2. It is apparent from the passage quoted earlier from his Honour's judgment that the case authorities were referred to when debating the appropriate relief to meet the circumstances of the case. The reference to case law was made in the context, that if all that is being sought is an order for a recount, the court does not have to be satisfied that the errors that have been found to have occurred affected the result of the election. The trial judge was of the view that the court can order a recount on such grounds as it thinks just and sufficient (s 212(3) provided that it is guided by the substantial merits and good conscience of the case (s.217). The issue raised here are not substantial and are merely arguable.

Error in holding, a recount does not invalidate an election when the net effect of it may amount to avoiding an election under s. 218 of the Organic Law.


  1. The applicants' case is that the trial judge erred in law in ordering a recount when he had satisfied himself pursuant to s. 218(1) that the errors that have been proven to have been made did not warrant avoiding of the election. It is submitted that the net effect of a recount may amount to avoiding of the election.
  2. His Honour considered the errors in Grounds 1 and 2 and in weighing up the powers of the Court under s. 212 (1) concluded, it would not be proper to declare a candidate duly elected who was not returned as elected (212(1)(g)), or declare an election absolutely void (212(1)(h)) because that would amount to 'avoiding' the election under s. 218(1) of the Organic Law. Under s. 218(1), an election can be avoided if the errors affected the result of the election. His Honour clarified the nature of the error the court had found did not affect the result of the election. Too, the error did not prevent a recount if that relief is sought. That aside, the issue raised here is whether an order for recount amounts to avoiding an election.
  3. In my view, this is not an important or serious question for review because of the definitive provisions of s.212 (1) (d), (g) and (h) and s. 218(1) of the Organic Law. The power to order a recount under s. 212(1)(d) does not have the same effect as voiding or avoiding an election. Conversely, it is indefensible to order a recount in an election result or return that has been voided under s. 218(1) of the Organic Law. In addition, the order for recount does not bring the election result or return to finality. A decision in an election petition is only finalized when it is dismissed, or upheld with consequential relief that is final in nature.
  4. In this case, the orders for recount only affected the counting aspect of the election petition. It does not affect the whole election process unless the recount is completed and the matter returns to court for formal and final endorsement and orders. Besides, the applicants' contention ignores the specific reliefs: – (i) to declare that a person who was returned as elected was not duly elected, (s. 212 (1) (f)); (ii) to declare a candidate duly elected who was not returned as elected (s.212 (1) (g)); or (iii) to declare an election absolutely void (s.212 (1)(h)) provided the elections result or return are affected, (s. 218 (1)). This ground does not raise an important question of law that is not without merit.
  5. In conclusion, the applicants have not met the high standard required for leave for judicial review as set out in Jurvie v Oveyara (supra). The applications have not made out any serious or important points of law or fact warranting a review. The errors of law and fact relied by the applicants are properly raised before this Court, but they are at the highest, merely arguable. The application for leave to apply for judicial review of the National Court is refused. Cost will follow the event to be taxed if not agreed.

Judgment accordingly
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Nikiuma Lawyers: Lawyers for the PetitionerKuman Lawyers: Lawyers for the First RespondentHarvey Nii Lawyers: Lawyers for the Second, Third and Fourth Respondents

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