SC1033

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 4 OF 2009

APPLICATION UNDER S 155 (2) (B) OF THE CONSTITUTION
IN RE PART XVIII OF THE ORGANIC LAW ON 
NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

Between:

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Applicant

And:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Applicant

And:

PAIAS WINGTI
First Respondent

And

TOM OLGA
Second Respondent
__________________________________________

SC REV. NO. 5 OF 2009

APPLICATION UNDER S 155 (2) (B) OF THE CONSTITUTION
IN RE PART XVIII OF THE ORGANIC LAW ON 
NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

Between:

TOM OLGA
Applicant

And:

PAIAS WINGTI
First Respondent

And:

KALA RAWALI, PROVINCIAL RETURNING OFFICER
Second Respondent

And:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, CJ
2009: 24th March

RULING ON APPLICATION FOR LEAVE FOR REVIEW

JUDICIAL REVIEW – application for leave for review – objection to competency raised by first respondent - submissions on the competency issues rejected on basis that hearing conducted after recount was continuation of petition hearing – principles on grant of leave considered - criteria to be met - insofar as application relates to point of law that there is an important point of law to be determined and that it is not without merit - insofar as application relates to facts that there is gross error clearly apparent or manifested on the face of evidence –both criteria met by applicants in both applications – application for leave granted - Part XVIII of the Organic Law on National and Local-Level Government Elections, Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002

Cases Cited:

Biri v Ninkama [1982] PNGLR 342
Jurvie v Oveyara (2008) SC935
Maino v Avei (2000) SC633 & SC648
Sauk v Polye (2004) SC769
SCR No. 1 of 1990 Application of Electoral Commission [1990] PNGLR 441

Counsel:

A Kongri, for the Applicant in SC Rev. 4/09 & Second & Third respondents in SC Rev. 5/09
A Manase with S Tadabe, for the First Respondent in SC Rev. 4 /09 & SC Rev. 5/09
K Naru, for the Second Respondent in SC Rev. 4/09 & Applicant in SC Rev. 5/09 

24th March, 2009

1. INJIA, CJ: These are two related applications for leave to apply for review of the decision of the National Court made under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The applications are made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended)( hereinafter referred to as the "Petition Review Rules) ). The hearing of the applications were somewhat consolidated because the same parties are involved in both applications, the same decision is sought to be challenged in the review and the matters and issues raised in both applications are similar. I completed hearing submissions last Friday and I reserved my ruling which I now deliver. 

2. By way of background, Mr Olga won the election for the Western Highlands Provincial Seat in the 2007 general elections and Mr Wingti was the runner-up. Mr Wingti challenged the election result in an election petition filed in the National Court. The Court heard and determined the petition. The Court ordered a recount of votes. Amongst other ancillary orders, the Court ordered that the " result of the recount must be presented to the National Court for ratification at a hearing of the Court on 5th May 2008". In SC Rev. 12 of 2008, Mr Olga challenged that decision by way of an application for leave for review. I heard and determined the application. On 22 September 2008, I granted leave to apply for judicial review of the said decision. The substantive application was dismissed by the Supreme Court on technical grounds. Consequently, a recount was conducted and completed. At the completion of the recount, Mr Olga still maintained a lead over Mr Wingti. At the recount, some new errors, omissions and irregularities were uncovered. The Court appointed Returning Officer presented a report on the recount to the Court. Based on this new material on errors and omissions, the Court conducted a further hearing in which new evidence was received and submissions were made by counsel. The Court handed down its decision in which the Court voided the election and ordered a by-election. Both Mr Olga and the Electoral Commission were aggrieved by that decision and filed these two applications. 

3. In the applications before me, submissions took 3 full days. The proposed grounds of review in each application were lengthy and multiple and divided in may parts and lengthy and submissions, both oral and written, were made by counsel representing the parties. I have considered those submissions. It is not necessary to deal with the arguments made on each ground. I intend to extract the main issues of law and fact from the proposed grounds of review as they were argued before me and determine the existence of the two criteria for grant of leave enunciated in Jurvie v Oveyara (2008) SC 935.

4. Further, despite the multiplicity of grounds and issues of both procedural competency and substantive law and facts argued before me, I consider that some of the proposed grounds of review are unnecessarily duplicated and some are clearly without merit. In paragraphs 8 – 16 of my judgment, I crystallize the grounds and issues, weed out the duplicated grounds and grounds which lack merit and outline the issues that remain to be considered.

Competency of applications for leave

5. I will first deal with two similar objections to competency which were raised by Mr Wingti’s counsel at the outset and argued before me. Mr Manase for Mr Wingti submitted that the final decision the subject of a leave application is that made by the National Court on 14th March 2008. He submits in this Court’s ruling in SC Rev. No. 12 of 2008, this Court determined that the decision of 14th March 2008 was final and that the Court’s ratification of the result of the recount did not involve further exercise of discretion. He submits under the definition of "decision" in the Review Rules, only a final decision made after the hearing of a petition is subject to review. Counsel for Mr Olga and the Commission submit that the definition of " decision" in the Review Rules is wide enough to include the nature of the decision made on 21 January 2009. The nature of the Court hearing conducted after the recount comes within the phrase " a final decision of the National Court made after the hearing of an election Petition" in the definition of "Decision". If the Court had simply ratified the result of the recount as previously ordered, then the final decision would still remain the decision of 14th March 2008. In this case the hearing conducted after the recount was a continuation of the hearing and the final decision was made on 21 January 2008. Mr Manase responds by submitting there can only be one final decision and that is the decision made on 14th March 2009. Mr Olga cannot have it both ways.

6. I accept submissions of counsel for the Commission and Mr Olga. It is clear from the nature of the hearing conducted after the recount that that hearing involved more than a simple or formal ratification or confirmation of the results of the recount. After the hearing new reliefs were granted. I am satisfied that the Court did not confine the scope and ambit of its hearing to a ratification of the result and thereby converted the hearing into a full hearing into establishing the new irregularities discovered at the recount and voided the election and ordered a by-election. I am satisfied that the hearing conducted after the recount was a continuation of the hearing on the petition. For this reason, I reject Mr Manase’s submissions on the competency issues.

Principles on grant of leave

7. The principles on grant of leave for judicial review under Div. 1 rr 1-14 of the Petition Review Rules are set out in my decision in Jurvie v Oveyara. There are two criteria to be met: First, 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. Second, 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 and such that a review of the findings of fact is warranted.

Crystallization of proposed grounds of review & dismissal of clearly unmeritorious grounds

8. In SC Rev. No. 5 of 2009, paragraph 1.1.2 and grounds 2.7 -2.8 challenge Justice Sevua’s ruling on service of petition. Mr Olga’s counsel withdrew these grounds after both parties had expended time and resources to put submissions on this point in their written submissions. These grounds are clearly without merit and I would have dismissed these grounds at the outset if they were sought to be advanced before me.

9. The criteria for grant of leave for judicial review of administrative action under common law are not applicable to grant of leave for review in election petition matters. Consequently, the proposed grounds of review in SC Rev. 5 of 2009 based on unreasonableness, taking into account irrelevant considerations and ignoring relevant considerations and unfairness are without legal basis and the arguments advanced in support of those grounds are rejected. The way these grounds are worded bear no resemblance to error of law in terms of exercise of s 217 discretion where the wording is substantive merits and good conscience of the case. These grounds are D (2.16- 2.22). 

10. In SC Rev. 5 of 2009, ground F (2.2-2.4) (Alternative order for further recount) (grounds is duplicated ground G (2.5-2.6) (Voiding the election). These two grounds (Grounds F 7 G) may be consolidated into one ground. This consolidated ground plus Ground A (2.1-26) ( Bias & bribery) and Ground B (2.2-2.10) and Ground C (2.11 – 2.15) (Keltiga Box 0386) remain to be considered.

11. In SC Rev. 4 of 2009, Ground 4 seeks to challenge the Courts appointment of Mr Jimmy Alwyn as the Returning Officer. It is apparent from counsels submission that the appointment of the returning officer was done with the consent of the parties and that the returning officer at all material times was an electoral official employed by the Electoral Commission or an electoral officer performing duties vested in him by the Organic Law in conducting the recount in accordance with provisions of the Organic Law. At the time of his appointment Mr Alywn was serving as the Election Manager for Eastern Highlands Province. Any errors and omissions committed by him were committed in that capacity and not an electoral officer of the Court. This ground is clearly without merit and it is dismissed.

12. However in SC Rev 4 of 2009, the conduct of the Returning Officer in the course of the recount is sought to be challenged throughout the other grounds pleaded in the body of the application. In my view, the Commission is entitled distance itself from the conduct of the Returning Officer and seek to protect the integrity of the Commission and the integrity of the process, particularly in a case such as the present where the Returning Officer is alleged to have performed his powers in a manner inconsistent with the recount process in the Organic Law. 

13. The remaining grounds are Ground 1 (Keltiga Box 0386), Ground 2 (Recount errors) and Ground 3 (Error of law in application of s 217 of the Organic Law). These grounds remain to be considered.

14. The remaining grounds in both applications can be merged as follows: 

(1)	Errors of law in application of s 217 of the Organic Law in not ordering a further recount.

(2)	Errors of law in voiding election and ordering a by- election.

(3)	Recount errors

(4)	Keltiga Box 0386

(5)	Bias & Bribery.

15. Out of the first, second and third category of grounds, three important issues emerge which is common to all these grounds: 

(1)	 Did the Court commit an error of law in the exercise of its discretion under s 217 and s 212 (1)(g) and (3) in reopening the hearing of the petition after the recount results were presented?

(2)	Did the Court commit an error of law in the exercise of its discretion under s 217 and s 212 (1)(g) & (3) in relying on errors and omissions discovered at the recount to order a by election instead of an order for a further recount?

(3)	 Did the Court grant a relief which was not sought in the Petition and grounds in support which were not pleaded in the Petition filed and tried at the trial proper?

16. The fourth and fifth category of grounds raise issues related to the above as follows:

(4)	Did the Court commit a gross error of fact in not finding that Returning Officer Jimmy Alwyn was bribed and he was biased in conducting the recount? Therefore a further recount to verify the result of the recount was justified.

(5)	What is the correct status of Keltiga Box 0386. If no ballot papers (1210) were found in the box for the recount, could they be possibly located in other ballot boxes and only a further recount would ascertain their existence?

Determination of issues

17. Without going into detailed analysis of each ground of review and issues raised, I consider the main issue to be on points of law. I frame the main points in question form because in this way, it may be easier to demonstrate the importance of and merit in those points. 

18. What is a recount within the meaning of s 212 (1) & (3)? What is the purpose of a recount under s 212 (1)(g)? Should the Court play a direct and prominent role in the conduct of the recount by appointing a Returning Officer and supervising the performance of his duties throughout the recount and up to the point when the results of the recount are presented? Or should the court leave it to the Electoral Commission to conduct the recount following normal procedures for scrutiny of votes or conducting a recount under the Organic Law and simply ratify the result of the recount as presented to the Court by the Returning Officer? 

19. Should a recount be limited to establishing the errors or omissions proven at the trial proper and which should assist in determining the relief sought in the Petition? What if new errors, omissions or irregularities are uncovered in the recount, are they relevant for purpose of determining the result of the recount at the recount centre?

20. If a report on the result of the recount is presented to the Court as previously ordered for ratification by the Court, what does ratification mean? If ratification means a mere formal confirmation of the recount result without a further exercise of discretion, should the Court simply endorse or confirm the result of the recount and declare the candidate who scored the highest number of votes in the recount? 

21. What should the Court do with the new errors, omissions or irregularities uncovered at the recount? Do s 212 (1) and (3) and s 217 give the Court power to exercise further discretion after the result of the recount is presented to it for ratification? If it involves a further exercise of discretion, how should the Court deal with new errors, omissions or irregularities uncovered at the recount and presented to the Court by the Returning Officer? Should the Court conduct a further hearing involving receiving evidence to establish those errors, omissions or irregularities and consideration of appropriate relief, whether or not those relief are claimed in the petition? If the new errors, omissions or irregularities are established by proof or by agreement of the parties, does the hearing involve an assessment of the evidence and fresh determination of facts to establish if the result of the election was in fact affected? 

22. If it is practically possible to determine the election was in fact affected by those errors, omissions or irregularities, should the Court determine the new result of the election after the recount without voiding the entire election? If it is not possible, what is most just and appropriate remedy as dictated to by the substantive merits and good conscience of the case as mandated by s 217? Should the Court void the election and order a by-election or should the Court order a further recount to reconfirm or verify the result of the previous recount? 

23. What does the phrase substantive merits and good conscience in s 217 mean generally? How should the phrase be applied to the particular circumstances of this case compared to other cases decided by the Courts in which the results of a Court-ordered recount have been dealt with, amongst other cases, the case of SCR No. 1 of 1990 Application of Electoral Commission [1990] PNGLR 441 and the two Supreme Court decisions in Maino v Avei (2000) SC 633 & SC 648? 

24. In relation to these two Supreme Court decisions, my quick perusal of the decision in SCR No. 1 of 1990 shows that the Court did not fully explore and determine the nature of an enquiry conducted by the Court to satisfy itself of the reliability or credibility of the result of the recount. In the two decisions in Maino v Avei which were decided 10 years later, the Court did not determine the point. The decision in SCR No 1 of 1990 is not cited in the two judgments in Maino v Avei. In the present cases, the circumstances of the case raise the point for consideration and that can only be done by the full Court in the context of the determination of the substantive applications. 

25. In terms of the particular circumstances of this case, the following facts are relevant.

(6)	At the post recount hearing before the Court, all parties agreed the following new facts were discovered in the recount: -

i. 1,210 ballot papers in Keltiga Box No. 0386, which the Court ordered to counted, were not located and counted.

ii. 1,877 informal ballot papers which were rejected and not counted because they were signed by presiding officers on the front and not at the back of each ballot paper. 

iii. 511 ballot papers were unaccounted for at Exclusion No. 22

iv. extra ballot papers were introduced at Exclusion No. 24

v. 465 ballot papers were miscounted in the final tally in Form 66B.

(7)	There were means available to conduct a further recount. The Electoral Commission was capable of conducting a further recount. Its capacity had been boosted by an electronic counting process which it had successfully used in the Court-ordered recount for the South Bougainville.

(8)	The Keltiga Ballot papers – Could they be found in other ballot boxes contained in other containers including containers holding ballot boxes for the Anglimp / South Whagi electorate?

(9)	The 1,877 votes could be easily validated by the Supreme Courts decision in Jurvie v Oveyara which upheld the National Court decision, was delivered on 3 December 2008. At the time of the recount, the National Court decision in that matter was made available to the Returning Officer by the Electoral Commission lawyers but the Returning Officer ignored the decision. He rejected these ballot papers as informal on the basis that they were initialed on the front ballot paper and not at the back as required by the Organic Law. In Jurvie v Oveyara the National Court held that the ballot papers were not informal for this reason. The Supreme Court affirmed the National Court decision. At the time of the fresh Court hearing after the recount, the 1877 votes were rendered valid by operation of law and remained to be counted if there were to be a further recount allowed by the Court. Given the difference of votes between Mr Olga and Mr Wingti after the recount of 1,004 votes, the result of the recount could change with 1,877 votes being counted.

(10)	The total votes recounted was over 400,000 allowable ballot papers or votes. The total ballot papers in issue as per (a) above was over 4,000 ballot papers or .01% of total ballot papers. Should the Court rush into voiding the election and ordering a by-election without verifying the results of the recount based on new facts which had emerged at the recount?

(11)	Mr Olga won the election on the 2007 election. He also won on the recount in 2008. Should he be lightly stripped of his win by questions raised over .01% of votes cast at the election? Where is the justice in all this? What is the demand of the substantive merits and good conscience of the case in this set of circumstances?

(12)	In Sauk v Polye (2004) SC 769, the Supreme Court advocated a more liberal and flexible reading and application of s 217. This was contrasted with the more literal and strict reading and application of provisions of the Organic Law including s 217 by the Courts in previous cases including the celebrated case of Biri v Ninkama [1982] PNGLR 342. The facts of the present case provides an opportune time to revisit these cases and set the proper principles for the interpretation and application of provisions of the Organic Law dealing the hearing and determination of election petitions and any post judgment hearing conducted by the Court following completion or otherwise of a Court – ordered recount of votes.

26. All these and other questions remain important questions of law which go to the exercise of discretion under s 212 and s 217. I am satisfied that all these issues raise points of law which are important and they are not without merit. Their determination one way or the other will determine the appropriate course which the parties will take to determine the final result of the Court-ordered recount and hence the whole election.

27. In relation to issues of fact, the consideration of evidence on new matters at a hearing raises both points of law and the propriety of making new findings of fact after facts have already been determined at the trial. Those findings on the face of it presents gross errors which needs to be revisited on review.

Conclusion & Orders

28. For the foregoing reasons, I am satisfied that the two criteria in Jurvie v Oveyara have been met by the applicants in both applications. I am satisfied that the trial Judges whole approach in opening the case for a hearing after the recount and making new findings of fact and inferences and granting new relief raises important points of law which are not without merit. Also on the face of the evidence received and facts determined at the new hearing, serious and gross errors of fact are apparent on the face of the record. Therefore I grant leave to each applicant to apply for review of the decision in respect of the remaining proposed grounds of review in each matter.

29. In relation to costs, I would prefer that costs be cost in the cause of the substantive application but if parties have a different view, I will hear parties later. As time does not permit for this Court to hear arguments on costs, costs could be reserved to be argued later. (Note – after this ruling was handed down, all parties agreed to contest the issue of costs).

Formal orders 

30. The formal orders of the Court are:

(1)	The applicants in SCR No. 4 and No. 5 of 2009 are granted leave to apply for review of the decision of the National Court made at Mt Hagen on 21 January 2009.

(2)	The proposed grounds of review in respect of which leave is granted are as follows:

(a). SC Rev. 4 of 2009 –

(i) Ground 1 (Keltiga Box 0386)

(ii) Ground 2 (Recount Errors)

(iii) Ground 3 (Errors in Application of s 217 of Organic Law).

(b) SC Rev. 5 of 2009 –

 (i) Ground A (2.1-26) ( Bias & bribery) 

 (ii) Ground B (2.7 – 2.10) ( Error of law/Ultra vires)

 (iii) Ground C (2.11 – 2.15) (Keltiga Box)

 (iv) Consolidated Ground F (2.2-2.4) (Alternative order for further recount) and Ground G (2.5-2.6) (Voiding the election). 

(3) Costs of both applications is reserved to be argued later. 

_________________________________________________
Nonggorr & Associates Lawyers: Lawyer for Electoral Commission
Kelly Naru Lawyers: Lawyer for Mr Olga
Steeles Lawyers: Lawyer for Mr Wingti