Maxton-Graham v Electoral Commission of Papua New Guinea [2016] PGSC 78; SC1559 (28 December 2016)

SC1559

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 03 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

JAMIE MAXTON-GRAHAM
Applicant

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

DR. WILLIAM TONGAMP
Second Respondent

Waigani: Makail, J
2016: 22^nd August & 28^th December

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Leave sought to review National Court decision – Dismissal of petition – Grounds of – Errors and omissions – Illegal appointment of Returning Officer – Conduct of election by Returning Officer – Avoiding of election on account of errors and omissions – Whether errors and omissions affected result of election – No proof of – Leave refused – Organic Law on National and Local-level Government Elections – Section 218 – Supreme Court Rules – Order 5, rule 14

Cases cited:

David Arore v. John Warisan & Electoral Commission (2015) SC1448
Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935
Kelly Kalit v. John Pundari (1998) SC562
Peter Charles Yama v. Anton Yagama (2013) N5222

Counsel:

Mr. M. Wilson, for Applicant
Ms. S. Kapi, for First Respondent
Mr. M. Kuma, for Second Respondent

RULING ON LEAVE TO REVIEW

28^th December, 2016

1. MAKAIL J: In the case of an election petition, no appeal lies to the Supreme Court from a decision of the National Court. This is clearly borne out by Section 220 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”) which states, “A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.” The only recourse for an aggrieved party is to seek review of the decision pursuant to Section 155 (2) (b) of the Constitution but only with leave. According to Order 5, rule 14 of the Supreme Court Rules, the application for leave must be filed, served and heard within fourteen days from the date of decision or within such time as extended by the Judge.

2. These laws and rules are intended to safe guard the interests of the successful candidate who is said to be elected by the majority of voters to represent the people of the electorate in Parliament. And it is intended that the National Court is the forum by which election disputes are exclusively settled. Thus, it is only with leave of the Supreme Court that an election dispute can go beyond the National Court.

3. It is for these reasons that leave is not readily granted: David Arore v. John Warisan & Electoral Commission (2015) SC1448. It will be granted where an Applicant is able to demonstrate that in so far as matters of law are concerned, there is an important point of law and that it is not without merit and in so far as matters of evidence are concerned, that a gross error is apparent or manifested on the face of the evidence: Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935. Even if there is none, a finding of fact is reviewable if on the face of it, it is considered so outrages or absurd so as to result in injustice: Kelly Kalit v. John Pundari (1998) SC562.

4. In this case the Applicant lost his election petition challenge in the National Court. He disputed the election of the Second Respondent as Governor of the newly established Jiwaka Province. On 7^th April 2014 the National Court constituted by David J dismissed it on the ground that he failed to prove that the illegal appointment of the Provincial Returning Officer was a material error or omission which affected the result of the election. He now seeks leave to review the decision following a successful slip-rule application.

5. The petition before David J was grounded on three allegations. First, errors and omissions by the First Respondent to appoint the Provincial Returning Officer (PRO) and counting officials for Jiwaka Province, secondly, illegal counting of ballot papers after 4:00 pm to the early hours of 1^st August 2012; and thirdly, errors, omissions and illegal practices by the First Respondent to count ballot papers.

6. The Applicant sought a declaration that the Second Respondent was not duly elected as Governor of the Province; an order for a re-count of ballot papers for the electorate and that he be declared duly elected Governor. He sought no order to declare the election void, such an order, if granted, would necessitate a by-election.

7. Following a hearing on an objection to competency part of the first allegation was struck out and the balance in relation to the allegation concerning the validity of the appointment of the PRO for the Jiwaka Province proceeded to trial. The second and third allegations were also struck out.

8. The remaining allegation was that the late Sale Bunat was appointed as the PRO for Jiwaka Province. His appointment was gazetted on 7^th May 2012. A Joseph Karap was the person who actually conducted the scrutiny of ballot papers for the Jiwaka Provincial Seat from 16^th July to 1^st August 2012.

9. Joseph Karap was empowered by the First Respondent through an Instrument of Delegation of powers under Section 18 of the Organic Law on Elections from 16^th July to 27^th July 2012. On 1^st August 2012, Sale Bunat made the declaration of the result of the election.

10. It was argued that the appointment of the PRO was illegal and constituted a material error on the part of the First Respondent sufficient to vitiate the election of the Second Respondent.

11. It should be also mentioned that while the trial was pending the Applicant obtained an order for the safe keeping of the ballot-boxes. Before the commencement of trial on 13^th September 2013 they were destroyed in a fire that engulfed the building that housed them at Banz town. The Applicant commenced contempt proceedings against a number of persons including the Second Respondent. It was dismissed on the ground that the motion for contempt was not served on the Second Respondent.

12. At trial it was argued that as the ballot-boxes were destroyed in the fire, it was impossible to re-count the ballot papers and it was not appropriate to order a re-count of votes in the circumstance. Logically the remedy open to the Court to grant was to invoke Section 217 of the Organic Law on Elections to declare the entire election void and a by-election would follow.

13. His Honour held that “the delegation to Joseph Karap by an Instrument of Delegation dated 16^th July 2012 was defective. His conduct of the scrutiny from 16^th July to 1^st August 2012 was done without authority other than the defective Instrument of Delegation therefore unlawful and invalid.”

14. His Honour further held that the invalid or defective Instrument of Delegation of Joseph Karap as the PRO was not a material error or omission to avoid the election. Finally, he held that as the Applicant had not sought an order to invalidate the entire election, it was not open to grant it. Even if Section 217 of the Organic Law on Elections on real justice to be observed were to apply, the burning of ballot-boxes could not be attributed to the Second Respondent because the contempt proceeding against him was dismissed.

15. In this case the application for leave sets out fifteen grounds: see Grounds 3 (a) to (m). They are repetitious as they raised no new grounds but three. The first ground from Grounds 3 (a) to (d) seeks to challenge his Honour’s rejection of the allegation that the illegal appointment of Joseph Karap as PRO was a material error and affected the result of the election. The second ground from Grounds 3 (e) to (l) seeks to challenge his Honour’s rejection of the relief of a by-election as a result of the burning of the ballot papers. The final ground in Ground 3 (m) challenges his Honour’s ruling on the release of security for costs to be apportioned equally between the Respondents.

16. It was argued that the allegation relating to the illegal appointment of PRO raised an important point of law to be determined and that it is not without merit. If his Honour held that “the delegation to Joseph Karap by an Instrument of Delegation dated 16^th July 2012 was defective” and “His conduct of the scrutiny from 16^th July to 1^st August 2012 was done without authority other than the defective Instrument of Delegation therefore unlawful and invalid,” then by virtue of the illegal appointment, the election of the Second Respondent was invalid or void.

17. With respect, the law on avoiding an election is as stated in Section 218 of the Organic Law on Elections which his Honour relied on to reject the Applicant’s argument. This provision states:

“218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

18. Section 218 provides amongst others that an election shall not be avoided on account of an error or an omission by an officer which did not affect the result of the election. In other words, the Petitioner must demonstrate in figure terms how the error or omission affected the result of the election. And to just allege that the PRO who conducted the scrutiny of votes was illegally appointed is not sufficient to avoid an election. There must be evidence that he made errors or omissions in the scrutiny of votes and they affected the result of the election to the extent that the election must be avoided.

19. For instance, the PRO misallocated ballot papers of candidates or under his watch and supervision counting officials wrongly tallied the running scores of the candidates resulting in a wrong candidate picking up the highest score and winning. A similar kind of situation arose in the case of Peter Charles Yama v. Anton Yagama (2013) N5222 where the errors found against the Electoral Commission were that the acting Returning Officer was illegally appointed, then allowed the scrutiny of votes in the absence of scrutineers and there was no Form 66B record of the results of the count prepared. These series of errors and omissions led the Court to order a re-count of votes.

20. In this case except for the illegal appointment of the PRO, none of the above stated instances are present. Indeed, as mentioned at [7] (supra) the allegations in relation to the PRO allowing the counting of ballot papers beyond the official time and illegal practices by the First Respondent during the counting were dismissed for being incompetent. Given this there was and could not be any evidence to prove them in order to show that by these errors or omissions or illegal practices, the result of the election was affected. Thus, it was open to his Honour to find that there were no proven acts of errors and omissions which could support an order for re-count of votes.

21. That was the reason his Honour gave for rejecting the Applicant’s submission. He puts it in a question and answer form in this way at para. 18 of the Judgment: “Is this a material error or omission to avoid the election? I would say no because the error or omissions only concerns the scrutiny of the whole election process which was affected by the defective Instrument of Delegation and which in turn affected the validity of the declaration and return of the writ.”

22. Even though his Honour considered the question of whether a by-election was a just outcome on account of the destroyed ballot-boxes, it is of no consequence because there were no findings that errors or omissions by the illegally appointed PRO during scrutiny affected the result of the election. Thus, the grounds alleging error by his Honour’s refusal to declare void the election of the Second Respondent and a by-election would have followed are misconceived.

23. As to the ground on security for costs, his Honour awarded costs to the successful party, in this case the Respondents on a party-party basis. He further ordered the release of the security for costs deposited with the Registrar, to be apportioned equally between the Respondents.

24. The Applicant argued that the ruling on security for costs was contrary to his Honour’s own finding that the appointment of the PRO was flawed and illegal and yet the PRO was allowed to conduct the scrutiny of votes. If anyone is to be blamed for the error, it is the First Respondent and it should not be entitled to the security for costs.

25. This argument is quite incorrect. The onus is on the Petitioner to establish that the error or omission did affect the result of the election: Section 218 (supra). As his Honour correctly held, the result of the election was not affected by the error or omission in allowing an illegally appointed PRO to conduct scrutiny of votes.

26. Even the Applicant’s argument that his Honour failed to take into account the peculiar circumstances of the case where the First Respondent failed to protect and secure the ballot-boxes, resulting in their destruction could not support a refund of the security for costs because it is of no consequence.

27. I come to the conclusion that the grounds do not raise important points of law nor meritorious or establish gross errors in how his Honour assessed or dealt with the evidence. Nor can it be said that the findings and conclusions arrived at by his Honour are so outrages or absurd that great injustice has occurred. Leave will be refused for these reasons.

28. The orders of the Court are:

1. The application for leave to review is refused.
   
2. Costs shall follow the event.

___________________________________________________________

Warner Shand Lawyers: Lawyers for Applicant
Niugini Legal Practice: Lawyers for First Respondent
Bradshaw Lawyers: Lawyers for Second Respondent