Application under s155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Electoral Commission of Papua New Guinea v Peter Charles Yama and Nixon Philip Duban; SCREV (EP) NO 10 of 2014; Application under s155(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Nixon Philip Duban v Peter Charles Yama and Adolf Duangha-Returning Officer and Andrew Trawen, PNG Electoral Commissioner and Electoral Commision of Papua New Guinea (2014) SC1383

• Jurisdiction: Papua New Guinea
• Judge: Makail J, Poole & Kangwia, JJ
• Judgment Date: 22 September 2014
• Court: Supreme Court
• Citation: (2014) SC1383
• Docket Number: SCREV (EP) No 09 of 2014
• Year: 2014
• Judgement Number: SC1383

Full Title: SCREV (EP) No 09 of 2014; Application under s155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Electoral Commission of Papua New Guinea v Peter Charles Yama and Nixon Philip Duban; SCREV (EP) NO 10 of 2014; Application under s155(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Nixon Philip Duban v Peter Charles Yama and Adolf Duangha-Returning Officer and Andrew Trawen, PNG Electoral Commissioner and Electoral Commision of Papua New Guinea (2014) SC1383

Supreme Court: Makail J, Poole & Kangwia, JJ

Judgment Delivered: 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...