Yagama v Yama [2013] PGSC 73; SC1282 (18 January 2013)

SC1282

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 55 OF 2012

BETWEEN:

ANTHON YAGAMA
Applicant

AND:

PETER CHARLES YAMA
First Respondent

AND:

STEVEN BIKO – Returning Officer
Second Respondent

AND:

ANDREW TRAWEN, Electoral Commissioner, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Kassman, J
2013: 17th & 18th January

Cases Cited:

The following cases are cited in the judgment:
Peter Wararu Waranaka v Gabriel Dusava (2008) SC942
Moi Avei v Electoral Commission & Charles Maino SC 584
Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1998] PNGLR 99

Legislations Cited:

Supreme Court Election Petition Review Rules 2002 (as amended)
Organic Law on National and Local Level Government Elections
Constitution

Counsel

Peter Kuman, for the Appellant
Nick Kiuk, for the First Respondent
Harvey Nii, for the Second, Third & Fourth Respondents

18th January, 2013

1. KASSMAN J: Anton Yagama ("Yagama") was declared member elect for Usino Bundi Open Electorate in the Madang Province in the 2012 National Elections on 27 July 2012.
   
2. On 29 August 2012, a losing candidate Peter Yama ("Yama") filed a Petition EP 52 of 2012 disputing the return.
   
3. On 2 October 2012, the Electoral Commission (and officers named as parties in the petition) filed Notice of Objection to Competency of the petition. Of the five grounds of the petition, the National Court on 14 December 2012 upheld the objection to ground 3 of the petition and ordered to trial the remaining grounds 1, 2, 4 and 5 of the petition.
   
4. The trial was then adjourned to 21 January 2013.
   
5. Yagama then filed on 27 December 2012, Application for Leave to Review the decision of the National Court of 14 December 2012.
   
6. Rule 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) provides a party aggrieved by a decision shall file an application to the Supreme Court and "decision" is defined in the rules to mean a "final decision" of the National Court after the hearing of the election petition. In Peter Wararu Waranaka v Gabriel Dusava (2008) SC942 Injia DCJ, as he then was, said "an applicant seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition ... must apply for and obtain leave dispensing with the requirement of rule 1 and obtain leave to challenge the preliminary ruling."
   
7. On 14 January 2013, the Supreme Court granted Yagama orders dispensing with the requirement of rule 1.
   
8. It was acknowledged by all counsel that an applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. I also agree with Mr Nii that it is appropriate that in considering the issue of whether the Supreme Court should intervene before a final decision is made, a further criteria is appropriate in so far as the review relates to a ruling on the challenge to the Court's jurisdiction, the applicant must demonstrate serious jurisdictional error(s) committed by the trial judge; see Moi Avei v Electoral Commission & Charles Maino SC 584.
   
9. The four grounds remaining in the petition are headed Ground 1 bias and undue influence of electoral officials – Steven Biko; Ground 2 bias and undue influence of electoral officials – Joe Yama; Ground 4 failure to conduct polling at designated places and conducting them elsewhere, delays, double and under age children voting; Ground 5 illegal practices, errors and omissions at the counting.
   
10. The allegations in the petition of impropriety and illegal acts or omissions during polling and counting are directed at the Electoral Commission and its officers who officiated at polling and counting. Yagama himself is not accused in the petition of any impropriety or illegal acts or omissions.
    
11. The objection to competency of the Petition filed by the Electoral Commission and its officers challenge all grounds of the petition. The objection to competency claimed the Petition failed to plead the actual date of the declaration and the result.
    
12. From my quick perusal of the Petition, paragraph 2.07 of the Petition states the actual date of the declaration as 27 July 2012. I note the National Court found the date of the declaration is stated in paragraph 5.09 of the Petition.
    
13. It is clear the results at the time of the declaration are not pleaded.
    
14. The failure to plead the results or ultimate tally of votes counted is effectively conceded by the Petitioner through his lawyer reiterating that that information was sought by his client and not provided by the Electoral Commission prior to filing the Petition and even after being so directed by the Court after the Petition was filed.
    
15. It is arguable this deficiency in pleading is a breach of the requirements of sections 208(a) and (e), 215 and 218 of the Organic Law on National and Local Level Government Elections in terms of pleading the facts or material facts of the allegations of illegal practices and errors and omissions and whether and how the results of the election were affected.
    
16. The National Court dismissed the objection on this aspect of pleading after ruling "I am satisfied the petitioner has pleaded, as best as he reasonably could, the results of the election and has pleaded as best as he reasonably could how the errors and omissions he relies on affected the result of the election."
    
17. Yagama and the Electoral Commission argue the National Court erred in accepting into evidence a letter from Yama's lawyer being a written request for results of the election. It is argued this piece of evidence influenced the National Court and its admission into evidence was allowed by the National Court pursuant to section 217 of the Organic Law. Mr Nii argued this was an error as the Supreme Court has said section 217 is applicable on the hearing of a Petition and not on an objection to competency – Delba Biri v Bill Ninkama [1982] PNGLR 342. This is a seriously arguable point.

18. Mr Kuman also argued that even if Yama was able to secure the facts as to the results of the election, Yama was out of time to cure these serious defects in his Petition. Again on this point, Yama's lawyer could not counter this argument. This is a seriously arguable point.
    
19. It is arguable the National Court erred in allowing the Petition to stand by accepting the Petitioner pleaded the result "as best as he reasonably could" when it is settled law that a failure to plead material facts is fatal to a Petition challenging an election result. Section 210 is in mandatory terms "Proceedings shall not be heard on a petition unless the requirements of section 208 and 209 are complied with." Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1998] PNGLR 99.
    
20. It is arguable these are serious jurisdictional errors which necessitates intervention by the Supreme Court exercising its inherent jurisdiction under section 155(2)(b) of the Constitution.
    
21. I grant leave to review the decision of the National Court of 14 December 2012 in EP 52 of 2012.
    

Judgment accordingly:

_______________________________________________________________
Kuman Lawyers: Lawyers for the Appellant
Nikiuma Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second, Third & Fourth Respondents