Ame v Kimisopa [2018] PGSC 43; SC1696 (8 August 2018)

SC1696

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 28 OF 2018

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:
HENRY TUTUWO AME
Applicant

AND:
BIRE KIMISOPA
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2018: 18, 25 & 30 July

SUPREME COURT – ELECTION PETITION – PRACTICE AND PROCEDURE- Leave sought to review National Court Decision – onus on Applicant to satisfy relevant criteria – criteria outlined – held criteria not met – Application refused.

Cased Cited:

Eric Ovake Jurvie v Bony Oveyara (2008) SC935;
Kelly Kalit v John Pundari (1998) SC562;

Kelly Kalit v John Pundari (2003) SC723;

Counsels:

Mr. Tom Sirae, for the Appellants
Mr. Jason Kolo, for the First Respondent
Mr. John Ole, for the Second Respondent

8^th August, 2018

1. DINGAKE J: This is an application in which the applicant, Henry Tutuwo Ame, seeks leave to review the whole of the decision of the National Court (per Gavara-Nanu J) in proceedings EP No. 2 of 2017 – Bire Kimisopa v Henry Tutuwo Ame & Electoral Commission of Papua New Guinea made on the 28^th of May, 2018, in which, following a trial, the Court upheld the petition against the applicant and the second respondent and ordered a recount of ballot papers in Goroka Open Election.
2. The applicant was declared the winner for the Goroka Open Electorate on the 25^th of July, 2017, following the National General Elections.
3. The election was conducted under the Limited Preferential Voting (“LPV”) system.
4. The first respondent, the Petitioner in the Lower Court, was the first runner-up to the applicant. In his petition he disputed the validity of the applicant’s election as Member for Goroka Open Electorate, alleging a number of errors, omissions and illegal practices by electoral officials, which he averred affected or had the likely effect of affecting the result of the election.
5. In this application, the Court is called upon to decide whether the application for leave to review is merited, the other subsidiary applications having been dealt with and or abandoned.
6. The power to grant leave under Section 155(2)(b) of the Constitution is discretionary. The applicant bears the onus to satisfy the Court that the application is merited and satisfies the requisite criteria.
7. The criteria for the exercise of the Court’s discretion was set out in the leading case of Eric Ovake Jurvie v Bony Oveyara (2008) SC935, by Injia DCJ (as he then was). His Honour stated at paragraph 11 that:
   • “11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The 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. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in 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.”
8. Significantly, and relevantly, Section 220 of the Organic Law on National and Local-Level Government Elections (Organic Law) provides that:
   • “220. Decision to be final.
     • A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”
9. In my considered view the import of Section 220 of the Organic Law on National and Local-Level Government Elections, is to emphasize or underscore the importance of finality on matters of election petitions. It follows that the Courts in exercising their review powers in terms of Section 155(2) (b) of the Constitution must not undermine, unnecessarily, the clear legislative intent captured by Section 220 of the Organic Law on National and Local-Level Government Elections.
10. It is quite clear from a number of authorities that leave is not readily granted. It will be granted where the applicant is able to demonstrate a meritorious point of law and or that there is a gross factual error clearly apparent or manifested in the face of the evidence before the Court. The authorities indicate that a finding of fact is reviewable if on the face of it, it is considered so outrageous or absurd as to result in injustice (Kelly Kalit v John Pundari (1998) SC562; Application of Ludwig Patrick Schalze (1998) SC572; Application by Ben Semvi (2003).
11. Taking stock of all the relevant authorities governing an application for leave to review an election petition in this jurisdiction, it seems that the bar is set quite high, and in my mind for good reason, because, the voice and choice of the people, ought, ordinarily, to be respected as may be declared by election officials and should not be subverted by fanciful or unmeritorious complaints.
12. Public interest requires that duly elected representatives must upon being elected carry out their duties to serve their electorates without being distracted by unmeritorious litigation.
13. The applicant’s grounds for leave to review are wide ranging, sixteen (16) in number. They overlap in many respects. The main ground seems to revolve around the interpretation of Section 168(d) and (e) of the Organic Law, particularly the elimination process under subsection (d) and (e) which the applicant contends raises an important point of law to be reviewed.
14. It is not necessary for me to reproduce verbatim all the grounds as framed by the applicant, save to capture in summary form the essence of the grounds upon which leave to review is sought. I emphasize for avoidance of doubt that I have carefully perused each of the proposed grounds for review and relevant material relied upon by the applicant.
15. I remind myself that in an application for leave to review an election petition, this Court must be careful not to stray into determining the merits of the substantive application and must of necessity, avoid engaging in detailed discussions of the grounds relied upon by the applicant, it being sufficient that the Court must have a careful perusal of each ground and material before it, as I have done.
16. I must emphasize, further, that in order to succeed the grounds raised by the applicant must be demonstrably be of such a nature that if leave is granted, the application is likely to succeed.
17. I have had regard to all the grounds advanced by the applicant. The applicant’s grounds for leave are captured in his amended application for leave to review filed on the 25^th of June, 2018.
18. A close assessment of the above grounds reveal that the applicant’s grounds essentially fall into three (3) broad categories namely alleged errors of fact on the face of the evidence before the Court, alleged errors of law and alleged errors of mixed facts and law.
19. The applicant’s grounds 3, 4, 5, 12 and 15 allege errors of fact in the face of the evidence before the Court; grounds 6, 7, 8, 9, 10, 13 and 14 allege errors of law, whilst grounds 1, 2, 11 and 6 allege grounds of mixture of facts and law.
20. It is convenient to deal with the three (3) broad categories in the manner I have stated them above.
21. With respect to alleged errors of fact, and or of law and fact, the applicant takes issue amongst others, with the following pieces of evidence;
    • (a) The trial Court’s assessment of evidence relating to 1800 votes that were to have been collected by the first respondent.
    • (b) The trial Court’s findings based on evidence that counting of first preference votes takes precedence over the second and third preference votes in the order of counting.
    • (c) That the trial judge erred when he found that the second respondent and their lawyers contradicted themselves on whether the primary votes were to be counted first.
    • (d) That the trial judge erred when he gave weight to the petitioners evidence from Justice Kerewo, pertaining to Captain Allan Awangi entering the counting centre and ordering the counting at exclusion 28 to proceed, when there was evidence to the contrary.
    • (e) That the trial judge erred in fact, in finding on the Petitioner’s evidence, that there was not enough awareness by the second respondent’s officials on the LPV counting system.
      
22. I do not consider that any of the above grounds is sustainable relative the applicable test.
23. With respect to the affidavit of Terry Warigi pertaining to 775 votes, I am of the view that such evidence was properly before the Court by way of affidavit and the Court was entitled to have regard to it. I have found nothing to suggest any error of law in the manner in which the error of fact and Court dealt with the evidence placed before it, let alone that can be characterized as gross or outrageous.
24. With respect to the conduct or actions of the Returning Officer, Terry Waringi, the Court correctly found that his absence from the counting centre was in breach of his duty under Section 149 of the Organic Law and likely to affect the result of the elections. The same is equally true of the conduct of Captain Allan Awingi, when he unlawfully entered the counting centre and ordered the counting officials to proceed with the count in the final elimination 28. Such conduct in my mind was likely to affect the result of the elections.
25. The grounds relating to misdirection on findings of fact or assessment of the evidence by the trial judge seem to be grounded on the assertion that there was another way of interpreting the evidence in a manner that is favourable to the applicant without pinpointing the gross fault lines that led to such findings of fact. The trial Court was best placed to assess the evidence tendered before it, and even if this Court may have reservations about some findings of fact based on the evidence adduced it cannot be a sufficient basis to hold that it supports leave for review being granted in the absence of a gross error of fact apparent on the face of the record.
26. I have read the judgment of the lower court to decipher any possible gross factual errors relative the evidence that was adduced in Court, in the context of the proposed grounds by the applicant.
27. I have found nothing in the judgment of the National Court on its findings of fact based on the evidence placed before it that is outrageous or absurd as to result in injustice (Kelly Kalit v John Pundari (2003) SC723.
28. The main ground with respect to alleged error of law that was raised by the applicant relate to the interpretation the Court ascribed to Section 168 of the Organic Law.
29. I have found that the trial judge interpretation of the law was well considered. With respect to Section 168 of the Organic Law, I cannot fault the learned trial judge in holding that Section 168 and the LPV system requires that the votes must be counted in order of the voter’s choice starting with the primary votes, then the second preference and eventually the third preference, if need be, when the absolute majority is not established during the count of the primary votes or the second preference votes. I have found no evidence to suggest that the scrutiny process under Section 168 of the Organic Law was breached, or in any way flawed.
30. I have come to the conclusion that all the alleged errors of law do not raise any important points of law that stand a chance of succeeding in the event leave is granted.
31. The grounds on mixture of fact and law are similarly unmeritorious. They do not reveal any gross factual errors in the face of the evidence before the Court, or do they raise any important points of law.
32. For all the above reasons, I dismiss the application with costs to the respondent.
    

______________________________________________________________
Sirae & Co. Lawyers: Lawyer for the Appellant
Kolo & Associate Lawyers: Lawyer for the First Respondent
Kimbu & Associate Lawyers: Lawyer for the Second Respondent