Anisi v Waterupu [2013] PGSC 25; SC1249 (19 February 2013)

SC1249

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 41 of 2012

In the matter of an Application under s 155 (2) (b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

EZIKIEL SIGI ANISI
Applicant

And:

TONY WATERUPU
First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 15, 19 February

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding election petition – Granted – Petitioner Declared Duly Elected- Application for Leave for Review - Exercise of discretion- Application Granted - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935

Counsel:

Mr Manase with Mr Ampalake, for the applicant
Mr Waisi, for the first respondent
Mr Umbu, for the second respondent
19th February, 2013

1. INJIA, CJ: This is an application for leave to apply for review of the decision of the National Court to grant an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002. It is contested by the first respondent. The second respondent supports the applicant's position.

2. The applicant is the winner of the Ambunti -Drekikir Open electorate seat in the 2012 National Elections scoring 8141 votes, to the first respondent's 6,634 votes; a difference of 1,507 votes.

3. In an election petition brought by the first respondent challenging the result of the election, the petition raised two grounds which questioned the applicant's qualification to stand for elective office, namely that he was under the minimum prescribed age of 25; and, that his name was not registered on the Common Roll for the electorate to qualify him to nominate as a candidate for the election. The petition was tried on those grounds and the trial judge found in favor of the first respondent on both grounds, declared the election of the applicant not duly elected and declared the first respondent duly elected. The applicant seeks leave to review this decision.

4. There is no question as to application of the principles and criteria for grant of leave enunciated by this Court in Jurvie v Oveyara (2008) SC 935 to the circumstances of the case at hand. Those are that 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; and, 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 or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice. An applicant must demonstrate that he or she has a serious and important issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge is not determining the merits of the substantive application and the Judge must avoid engaging in a detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.

5. I deal with the main points raised by the applicant's counsel and argued in this application. My consideration of those arguments is embodied in the body of my reasoning.

6. The first main point is that the trial judge erred in law in finding that the applicant did not enroll in the Common Roll and therefore he was not entitled to nominate for the seat. It is argued on behalf of the applicant that whether or not he was enrolled, by whatever name, he was entitled to nominate by virtue of s 64 (2) of the OLNLLGE.

7. It is agreed between the parties that facts relating to OLNLLGE, s 64 (2) was neither pleaded in the petition the issue was not considered at the trial. I have read s 64 closely and to me it seems that the facts tried to raise the issue of the application of s64 as a relevant and determinative issue. A determination on the application of that section had the potential of defeating the argument over whether he was entitled to nominate for an electorate for which he was not registered on the Common Roll. OLNLLGE, s208 (a) requires facts to be pleaded. Issues of law can be raised at the trial insofar as those issues are given rise to by the facts. A threshold issue that will have to be argued and determined by this review Court is that very issue of whether a party can be permitted to raise an important and relevant point of law that was not the subject of pleading in the petition and/ or raised at the trial; and if so, how the provision ought to be applied to the circumstances of the case at hand. Ordinary appeal principles preclude such matters from being raised in an appeal. The same principle may not necessarily apply to reviews. I am in no position to determine that issue; only the full Court will determine those issues. I am satisfied this is an important and serious point of law that is not without merit.

8. The second main point raised is that the trial judge erred in law and fact in finding that the applicant was under-age. There was much dispute on his birth date. Evidence was called from both sides and assessed by the trial judge and findings of fact were made. The trial judge accepted the evidence offered by the first respondent and found that the applicant was 24 years at the time of his nomination and therefore fell short of the 25 year prescription under s 103(1) of the Constitution.

9. The grounds set out in paragraphs 3.8-3.16 of the application for leave on their face do raise important points as to the manner in which the trial judge handled the evidence and made findings. For instance documentary evidence over registration of birth under the Civil Registration Act became critical and there were conflicting versions even from sources within the office of the Registrar. As to how the trial judge resolved conflicting versions of such evidence, on the face of the findings, raises important issues of fact that I cannot dismiss offhand as lacking merit. The full Court is the appropriate forum to resolve those difficult but important and serious issues of fact.

10. The third main point is that the trial judge erred in granting the relief it did by declaring the first respondent the duly elected member. During argument, counsel were unable to assist me in understanding how the rationale for the grant of this relief as opposed to other relief such as a recount and by-election. The relief open under OLNLLGE s 212(1) are open-ended and discretionary. I do not think it is an accurate statement of the law as developed in this jurisdiction, as put to me by Mr Manase that a recount is a precursory to the Court's declaration that a candidate was not duly elected and another candidate was duly elected. But I have some difficulty in understanding the appropriateness of the grant of this relief when a declaration of results of an election turn on assignment or allocation of number of valid votes amongst candidates. When you take out one candidate and his votes from the equation under LPV System, a serious question arises as to the assignment of completed ballot papers amongst candidates at the original count with a clear winner emerging such that the Court would be in a good position to make a declaration that a person was or was not duly elected. I am satisfied that an important and serious point of law has been raised on this point and it is not without merit.

11. I consider other points argued before me to be of little or no significance or importance to warrant separate consideration.

12. For the foregoing reasons the application for leave is granted. Costs shall be in the cause of the substantive review.

_______________________________________________
M S Wagambie Lawyers: Lawyer for the Applicant
Waisi Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent