Electoral Commission of Papua New Guinea v Yama [2014] PGSC 68; SC1383 (22 September 2014)

SC1383

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 09 OF 2014

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

BETWEEN

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant

AND

PETER CHARLES YAMA
First Respondent

AND

NIXON PHILIP DUBAN
Second Respondent

AND

SCREV (EP) NO 10 OF 2014

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

BETWEEN

NIXON PHILIP DUBAN
Applicant

AND

PETER CHARLES YAMA
First Respondent

AND

ADOLF DUANGHA-RETURNING OFFICER
Second Respondent

AND

ANDREW TRAWEN, PNG ELECTORAL COMMISSIONER
Third Respondent

AND

ELECTORAL COMMISION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J, Poole & Kangwia, JJ
2014: 19th & 22nd September

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Application for Stay – Stay sought pending review of National Court decision – Decision to refuse objection to competency and decision to uphold petition and order recount of votes – Jurisdiction of – Inherent power of Court to grant stay – Discretion – Test to be applied – Necessary to do justice in the circumstances of a particular case – Wide discretion – Important points of law – Balance of convenience – Prejudice and hardship – Recourse to National Court available – Public interest demands finality to litigation – Appropriate and necessary for recount to be completed – Stay refused – Constitution – sections 155(2)(b) & 155(4)

Facts

The Applicant in each case objected to the competency of a petition in the National Court. The National Court dismissed them and, after a trial, upheld the Petition and ordered a recount of votes to be completed within 21 days. The Applicants filed separate Applications to review the decisions, were granted leave, and pending review, applied to stay the decision.

Held:

1. The jurisdiction of the Supreme Court to grant a stay of a decision of the National Court on an election petition pending a review is derived from its inherent power under section 155(4) of the Constitution. The test to be applied is not exceptional circumstances but whether the stay is necessary to justice in the circumstances of a particular case: Viviso Seravo v. John Giheno & Electoral Commission (1998) SC555; David Arore v. John Warison & Electoral Commission (2008) SC947 and Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1219 referred to.

2. The power to grant a stay is discretionary which is exercised properly when it is "necessary to do justice in the circumstances of the particular case," taking into account, first, competing rights of each of the parties and secondly, considering delay in making the Application. The third consideration is the type of order sought to be stayed: Viviso Seravo v. John Giheno & Electoral Commission (1998) SC555; David Arore v. John Warison & Electoral Commission (2008) SC947 and Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1219 referred to.

3. Further factors to be taken into account are whether the Applicants' interests will be prejudiced and whether it is in the overall interest of justice that a stay is granted.

4. In this case, while the review raised important points of law in relation to the sufficiency of facts and authenticity of 6,116 ballot-papers which require further consideration by the Court, the trial has been completed and recount is at an advanced stage and it would not be in the interests of justice to stop it.

5. The Application for stay is refused.

Cases cited:

Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1219
David Arore v. John Warison & Electoral Commission (2008) SC947
Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429
Paias Wingti v. Electoral Commission & Tom Olga (2008) N3982
Peter Charles Yama v. Anton Yagama & Electoral Commission (2013) N5354
SCR Nos 4 & 5 of 2009 Re Trawen v. Paias Wingti (2009) SC1003
Viviso Seravo v. John Giheno & Electoral Commission (1998) SC555

Counsel:

Mr H. Nii, for Applicant in SC Rev (EP) 09 of 2014 & Second, Third and
Fourth Respondents in SC Rev (EP) 10 of 2014
Mr P. Mawa, for Applicant in SC Rev (EP) 10 of 2014 & Second
Respondent in SC Rev (EP) 09 of 2014
Mr N. Kiuk, for First Respondent in SC Rev (EP) 09 of 2014
& SC Rev (EP) 10 of 2014

RULING ON STAY

22nd September, 2014

1. BY THE COURT: On 17th July 2014, the National Court dismissed the Applicants' objection to competency and proceeded with the trial of the petition challenging the election of the applicant Mr Nixon Philip Duban as Member for Madang Open electorate following a By-Election in December 2013. On 06th August 2014, the National Court upheld the Petition and ordered a recount of votes after finding, amongst other things, that 6,116 ballot-papers found in a plastic bag at night at a grave site at Madang Public Cemetery were illegally excluded during the counting and ordered that they be counted.

National Court Decision

2. It is necessary to set out in full the order of 06th August 2014 because it has been the subject of debate between the parties during the recount and also at the hearing of the Application for stay, which is before us for ruling:

The decision is as follows:

"1. The petition is upheld.

2. Pursuant to Section 212(1)(d) of the Organic Law on National and Local Level Government Elections, there shall be a recount of the votes for the Madang Open Electorate By-Election.

3. The recount shall include previously counted ballot papers as well as the 6,116 marked ballot papers found at the grave yard on the night of 19th December, 2013 and the ballot papers casted during the re-polling conducted at Wards 4 & 21 in the Ambenob Local Level Government Area.

4. The status quo remains meaning that the First Respondent namely Honourable Nixon Philip Duban, MP remains as the Member of the National Parliament representing the people of Madang Open Electorate until the time of results of the recount are presented to the Court by the Registrar or Assistant Registrar of the National Court and the Court determines otherwise.

5. The Respondents shall pay the costs of the Petitioner to be taxed, if not agreed."

3. On 12th August 2014, the National Court issued a further order for the conduct of the recount. It is also necessary to set it out that ruling in full and we do here:

"1. Pursuant to the findings and previous Order of this Court, a recount of the votes cast in the Madang Open Electorate By-Election 2013 be conducted by the Electoral Commission of Papua New Guinea.

2. The recount shall involve all the ballot papers that led to the final elimination process resulting in the declaration of the result of the election on the night of 19 December 2013, together with the 6,116 marked ballot papers discovered at the grave yard on the night of 18th December, 2013 (and not counted), together with the votes cast during the re-polling at Wards 4 & 21 in the Ambenob Local Level Government Areas.

3. The recount should be conducted by the electoral officials based in Madang and who were involved in the Madang Open Electorate By-Election of 2013.

4. The ballot papers contained in the container and which are presently in the custody and control, and security of the Police at the Jomba Police Station, shall remain in the custody and control of the Police and none other, until handed over into the custody and control of the Electoral Officer duly appointed to conduct the recount.

5. The two cartons of 6,116 marked ballot papers presently in the custody and control of the Assistant Registrar, National Court Madang, shall be handed over into the custody and control of the Electoral Officer appointed by the Electoral Commissioner to conduct the recount.

6. No other security personnel or police officers from outside the Police based in Madang, will in any way be involved in the custody, control and security of the ballot papers and/ or ballot boxes and the container containing same.

7. The Electoral Commission and/ or its officials shall within three (3) clear days notice to all the parties, and in the presence of the Police Station Commander at Jomba Police Station, and also in the presence of all the parties, their scrutineers and lawyers, securely weld the container containing the ballot papers and place in a position clearly visible to the public.

8. The recount should be conducted both manually and electronically by the Electoral Commission.

9. The recount should be conducted by the Electoral Commission of PNG and its officers from outside Madang Province, under the supervision of the Registrar or Assistant Registrar of the National Court.

10. The Registrar of the National Court shall present a report of the recount duly certified by the Returning Officer of the recount to the National Court in Madang within seven (7) clear days the completion of the recount.

11. That the recount shall be completed by 02nd September 2014"

Applications for Leave to Review and Substantive Reviews

4. Following the order for recount, the Electoral Commission and Mr Duban filed separate Applications for leave to review the decision to dismiss the objections to competency and to review the decision for a recount. On 08th September 2014, the Chief Justice granted leave to review the decisions. His Honour held that there were important points of law raised by the applicants in relation to the sufficiency of pleadings, the authenticity of the 6,116 ballot-papers found at the grave site and whether, if the decision to recount votes were to remain unchallenged, the Applicants' interests would be seriously prejudiced.

5. Pending the hearing of the reviews, the Applicants applied to stay the order for recount. In each instance, the Application was prompted by a series of subsequent orders issued by the National Court which extended the time for the completion of the recount and for the Electoral Commission to conduct the recount with less procrastination. The first extension on 01st September 2014 was for 4 days (time expired on 05th September 2014) and the second, on 08th September 2014, a 3 days extension to 11th September 2014. It became increasingly urgent when, on 08th September 2014, the Court warned that the Returning Officer Mr Duanhga would be cited for contempt of Court if he failed to complete the recount in time.

Jurisdiction of Supreme Court

6. There is no question that the Supreme Court has jurisdiction to grant a stay of a decision of the National Court on an election petition pending a review derived from its inherent power under section 155(4) of the Constitution. A single judge of the Supreme Court has no power to grant a stay. The power is vested in the full Court as was explained in the Supreme Court case of Viviso Seravo v. John Giheno & Electoral Commission (1998) SC555 and subsequently followed in the cases of David Arore v. John Warison & Electoral Commission (2008) SC947 and Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1219.

Applicable Principles

7. The power to grant stay is discretionary and the decided cases have held that the test to be applied for the exercise of the discretion is not exceptional circumstances, but whether a grant of stay is necessary to do justice in the circumstances of the particular case. The phrase "necessary to do justice in the circumstances of the particular case" has been held by the Court in the decided cases to encompass first, the competing rights of each of the parties and secondly, the question if there has been delay in making the Application: Viviso Seravo's case (supra).

8. The third consideration is of the type of order sought to be stayed: David Arore's case (supra). These are in, our respectful view, the relevant considerations to be applied by the Court when deciding to grant a stay. These principles guide the Court in making an assessment of whether a grant of stay is necessary to do justice in the circumstances of the case. We apply these principles.

9. In Viviso Seravo's case (supra), the Court stayed the decision of the National Court because the trial had not started after the Court refused the objection to competency. In David Arore's case (supra), the Court refused to stay the recount of votes and reinstated the applicant to Parliament because it was tantamount to determining the merits of the substantive review. The Court also refused to stay the trial of the petition in Anton Yagama's case (supra), because it was in an advanced stage; 2 weeks into the hearing. But, at the end of the day, each case must be decided on its own merits.

Application of Principles to Facts

10. An Application for stay may be refused if there has been an unexplained delay and in this case, we accept that each Application has been promptly filed and moved.

11. As to the other considerations, the Applicants advanced four main arguments in support of the Application. First, the respective Applications raised important points of law. This view is also reflected in the decision of the Chief Justice when he granted leave and held that there were important points of law which required further consideration by the Court at the substantive review and that the Applicants may be prejudiced if the decision of the recount remained unchallenged.

12. Secondly, the order for recount is challenged as vague and ambiguous. This has resulted in differing views on how the recount should be conducted. The Applicants say, for example, when counting commenced, the counting team found that all ballot-boxes containing the ballot-papers had no padlocks or seals. The ballot papers were exposed. Under normal circumstances, Mr Duangha could have rejected them in the exercise of his power under section 153A of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections").

13. Another example the Applicants give is that the Court ordered that 6,116 ballot-papers found at the grave yard be counted at the recount and when they were counted, those votes turned out to be a total of 6,315 ballot-papers, not 6,116; an extra 199 ballot-papers. As a result, Mr Duangha was faced with a dilemma as to whether to count only 6,116 ballot-papers and exclude the extra 199 and if so, which ones to exclude. If he were to count all of them, he would be in breach of the terms of the order for recount which specifically directed him to count 6,116 ballot-papers.

14. It was also at the recount on 26th August 2014 that counting officials discovered that 1,022 "live" votes for Mr Yama were in the "exhausted" box and 1,965 "live" votes for him in his own ballot-box giving a total of 2,987 "live" votes for Mr Yama. These, and many other issues, highlighted the ambiguity in the order for recount and the reason for the delay in completing the recount.

15. Thirdly, the Applicants say that if a stay is not granted, it will result in uncertainty and confusion amongst the people of the Madang Open electorate. This will arise because, if the recount is completed and another candidate is declared as Member, and then the Reviews are successful and the petition is dismissed, Mr Duban would then return as Member. There will be changes done to accommodate the decision of the Supreme Court and it would further result in administrative inconvenience and deep disorder.

16. Finally, the First Respondent, Mr Yama, obtained the subsequent orders with great haste and ex parte. As a result, the other parties were not heard although the orders were obtained in their absence, they appeared to be final in nature because they did not state a return date or grant parties liberty to apply. The opportunity to apply to set aside or vary the orders was not open to them. The significant aspect of the latest order was that there would be no further extension of time for the recount and that Mr Duangha would be cited for contempt of Court if he failed to complete the recount within the time ordered.

17. In opposing the application, Mr Yama submitted that the order for recount is clear. It required the Electoral Commission, and particularly Mr Duangha, to count 6,116 ballot-papers and there was no reason for him to procrastinate. Mr Duangha should not have counted "live" ballot-papers that were not counted at the original count of the By-Election. He should not have used Form 66A and Form 66B to verify the number of votes received by each candidate because the Court had found these forms flawed as they were not properly completed.

Reasons

18. First, we accept that while the reviews raised important points of law in relation to the sufficiency of facts and authenticity of the 6,116 ballot-papers which would require further consideration by the Court, we are of the respectful opinion that, as the trial has been completed and the recount is at an advanced stage, it would not be in the overall interests of justice to stop the recount. To stop it would delay its completion and we note that time had twice been extended to allow the Electoral Commission to complete the recount.

19. Conversely, if the recount were to be stopped, that would just further delay the completion. This would cause further delay in prosecuting the reviews because it will take time to prepare them for hearing. Parties will spend time to go through directions hearings to prepare them for hearing; especially settlement of the draft index to the review book and the preparation and filing of it.

20. Finally, parties will need to obtain a hearing date, which at this stage is very uncertain. We do not know when the reviews will be ready for hearing. It could be weeks or months before the reviews are ready for hearing, and while parties will go through this process, the validity of the election of Mr Duban will remain in limbo, a highly unsatisfactory situation. These are some of the reasons the recount should not be stopped.

21. We note also that the National Court acknowledged that it would take time to conduct a recount and the importance of having a Member in the Parliament pending the recount when it made it abundantly clear in its decision that Mr Duban remained as Member for Madang Open electorate pending the recount. Given this, in our respectful opinion, Mr Duban would neither suffer any real prejudice nor any reduction in status or otherwise as a Member of the Parliament, if a stay is refused.

22. In view of the potential delay, should there be a stay, we are of the opinion that it would not be in the interest of the people of Madang Open electorate and general public as a whole to stop the recount. We reaffirm the sentiments by the Supreme and National Courts in past Election Petitions and Reviews that, because an Election Petition or a Review is a direct challenge to the apparent wishes of the majority of voters, public interest demands that they be brought to finality without delay.

23. In our respectful opinion, the people of Madang Open electorate deserve to know who is to represent them in the Parliament, particularly, whether Mr Duban should remain their representative in Parliament for the next two and a half years. To stop the recount would deny them that right and in the overall interests of justice, a stay should not be granted.

24. As to the assertion by the Applicants that to refuse a stay would cause uncertainty and confusion as to who is the correct Member for Madang Open electorate if a different candidate is declared after the recount and if the reviews reverse the result of the recount and Mr Duban is returned as Member, we find this speculative and reject it. The Applicants' position is premised on the view that they will succeed in their pending reviews which will put to rest the current state of affairs they are confronted with by the National Court Order on the recount of votes. With respect this assertion is also speculative.

25. The terms of the order of 12th August 2014 and the swift manner in which Mr Yama had obtained the subsequent series of orders must be understood in the context of expedited hearing of an election petition. Otherwise, it may be misconstrued and raise questions of foul play or improper motive on the part of Mr Yama. This was an election petition case in which Mr Yama exercised his right to challenge the results of a By-Election in 2013. On 06th August 2014, the decision for a recount of votes was handed down. This was 2 years after the 2012 General Election had ended and time was of essence.

26. The Court had to balance the interest of the Electoral Commission and the interest of the petitioner in order to arrive at a time frame that would be fair to them and for the Electoral Commission to conduct and complete the recount. The absence of a time limit to conduct a recount following a By-Election in the Organic Law on Elections means that the Court has no guidance to when a recount should be completed.

27. Logistics, financial issues, staffing and security problems are key matters that the Electoral Commission cannot avoid when organising a recount. These are practical challenges that confront the Electoral Commission and, in our respectful opinion, the National Court was assisting and facilitating the prompt disposition of the recount and at the same time acknowledging the Electoral Commission's limitation and short comings when it issued the order of 12th August 2014 and fixed 02nd September 2014 as the date for the recount to be completed.

28. The other aspect of the order is that, since the recount was for only one electorate, the Court ordered, to save time and money, that the recount be conducted by electoral officials based in Madang and who were involved in the Madang Open electorate By-Election and that no other security personnel or police officers outside the Police based in Madang would be involved in providing security during the recount.

29. The order also required (paragraph 2), the Court ordered that the following ballot-papers to be counted:

(a) all the ballot-papers that led to the final elimination process resulting in the declaration of the result (wining candidate);

(b) 6,116 marked ballot-papers discovered at the grave yard; and

(c) votes cast (ballot-papers) during the re-polling at Wards 4 & 21 in the Ambenob Local-level Government Area.

30. Paragraph 2 of the order is precise as to which ballot-papers are to be counted. This and the delay in completing the recount, even after the Electoral Commission was given two extensions of time, may explain why the petitioner has returned to Court in haste to obtain the series of orders subsequent to the order for recount. However, if the Applicants maintained, as they have, that the order for recount is vague and ambiguous, it is open to the parties to raise that before the National Court for clarification, and where necessary, directions as to how the recount of the ballot-papers should be conducted.

31. Similarly, while the subsequent orders for recount appear to be final in nature, given the circumstance in which they had been obtained, in our respectful opinion, they are not final and it is open to the Applicants to apply to have them set aside or varied. That remains open to them.

32. If the Applicants decide to take that course, they must be mindful of respecting the Returning Officer Mr Duangha's exercise of power as the representative of the Electoral Commissioner on the ground. He is charged with the duty to conduct the recount and must be allowed to discharge that duty in accordance with the Organic Law on Elections without unnecessary interference, especially in circumstances when the National Court has fixed a time for the recount to be completed. Such exercise of power includes the power to exclude a ballot-box from scrutiny under section 153A of the Organic Law on Elections. It is, therefore, incumbent on Mr Duban and Mr Yama to assist him complete the recount within the time fixed by the Court.

33. If the Electoral Commission and the Returning Officer ran out of time to complete the recount, it was incumbent on them to request an extension of time and it was entirely within the discretion of the National Court to extend time. If the order for recount was vague and ambiguous, it was incumbent on them to seek clarification or directions from the Court rather than to dispute the order and cause further delay.

34. Given that the results of the recount are to be presented to the National Court for final decision of the identity of the winning candidate, Mr Duban and Mr Yama will have the opportunity to support or object to the results at the time they are presented to the Court. This was done in the case of Paias Wingti v. Electoral Commission & Tom Olga (2008) N3982 after the Supreme Court in SCR Nos 4 & 5 of 2009 Re Trawen v. Paias Wingti (2009) SC1003 upheld the review by Electoral Commission and ordered a further recount of votes.

35. The National Court took the same approach in Peter Charles Yama v. Anton Yagama & Electoral Commission (2013) N5354 and recently in Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429.

36. In our respectful view, this is not only the proper course for Mr Duban and Mr Yama to take but also the matters they raised before us fall well within the jurisdiction of the National Court and should be raised there in the proceeding yet to be concluded. Mr Duban and Mr Yama should wait until the results of the recount are presented to the National Court before they respond to them.

Conclusion

37. For the foregoing reasons, we are not satisfied that the Applicants have discharged the onus required to enliven our discretion to grant a stay.

Order

38. The Orders are:

1. The Application for stay in each proceeding is refused.

2. The Review in each proceeding is adjourned to a date to be fixed for Directions hearing.

3. Costs of the Application in each proceeding shall be in the Review.

4. Time for entry of these Orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant in SC Rev (EP) 09 of 2014 & Second, Third and Fourth Respondents in SC Rev (EP) 10 of 2014
Mawa Lawyers: Lawyers for the Applicant in SC Rev (EP) 10 of 2014
& Second Respondents in SC Rev (EP) 09 of 2014
Nikiuma Lawyers: Lawyers for the First Respondent in SC Rev (EP) 09
of 2014 and SC Rev (EP) 10 of 2014