Application under s155 (2) (b) of the Constitution and in re Part XVIII of the Organic Law on National and Local Level Government Elections; Tom Olga v Paias Wingti and Kala Rawali, Provincial Returning Officer and Electoral Commission of Papua New Guinea (2008) SC938

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 17 September 2008
• Docket Number: SC REV. NO. 12 OF 2008
• Citation: (2008) SC938
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC938

Full Title: SC REV. NO. 12 OF 2008; Application under s155 (2) (b) of the Constitution and in re Part XVIII of the Organic Law on National and Local Level Government Elections; Tom Olga v Paias Wingti and Kala Rawali, Provincial Returning Officer and Electoral Commission of Papua New Guinea (2008) SC938

Supreme Court: Injia, DCJ

Judgment Delivered: 17 September 2008

SC938

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 12 OF 2008

Application under s 155 (2) (b) of the Constitution

And 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, DCJ

2008: 4th, 5th & 17 September

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Leave for review under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended) - Whether applicant is an aggrieved person – Whether findings that grounds alleged in a Petition were proven and an order for recount issued is a final decision - Whether ruling against objection to competency under s 208(a) of Organic Law on National and Local – Level Governments is a final decision - Whether leave for review should be granted - Exercise of discretion.

Counsel:

H Nii, for the Applicant

A Manase, for the First Respondent

A Kongri, for the Second and Third Respondents

17 September, 2008.

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the “Petition Review Rules) ). It is contested by the respondents.

2. By way of background, the application relates to a decision made by the National Court sitting at Mt Hagen in which the trial judge heard the election petition, found that the two grounds of the Petition alleging errors and omissions and illegal practices committed by polling officials had been proved and ordered a recount of ballot-papers contained in eight (8) ballot- boxes . Five (5) of the ballot-boxes were rejected by the Returning officer. The judge ordered their recount. They are two (2) ballot-boxes from Mala 2; one (1) ballot- box from Keltiga and two (2) ballot-boxes from Korkum. These five ballot-boxes relate to the first ground of the Petition. Ballot-papers from three (3) ballot-boxes, one each from Palimb, Tega and Keltiga relate to the second ground of the Petition. The judge found them to have been not properly counted and ordered their recount. The results of the recount were then ordered to be furnished to the judge for ratification. The recount has been suspended by Court Order issued by the National Court pending determination of this application.

3. Extensive submissions, both written and oral, were made by learned counsel last week over two days and I reserved my ruling. Without restating those submissions, they are dealt with in my reasons for decision which I now give.

4. Recently, in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935, this Court laid down the criteria or principles for grant of leave, in the following terms:

“When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1. Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE : Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC 915.

2. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC 572.

3. The three criteria set out for grant of leave in Avia Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.

4. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -

- 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: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.

- 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 : Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulz (1998) SC 572 Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice : Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases.

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.”

5. In the present case, two new matters were addressed by parties. They are the requirements in r 1 that applicant must be a person who is aggrieved by the decision and the decision sought to be reviewed must be final. In my view these matters raise threshold procedural issues of compliance with the requirements of r 1 of the Petition Review Rules. They do not constitute considerations or criteria for the exercise of discretion on leave. I now deal with the two matters.

6. Rule 1 of the Petition Review Rules states:

A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155(2)(b) of the Constitution.

7. The word “Decision” is defined in the Petition Review Rules as follows:

“Decision” means a final decision of the National Court made after the hearing of an election Petition or an order dismissing the petition under rule 18 of the National Court Election Petition Rules 2002 (as Amended)”.

Is the applicant an aggrieved person?

8. In relation to this question, I am satisfied that the applicant is an aggrieved person. He was named as a party in the Petition and is entitled to bring this application because his election as the provincial member for Western Highlands Province is directly affected by the order for recount. The results of the recount, if it favours the First Respondent, will affect his election. Therefore, I am satisfied that the applicant is an aggrieved person within the meaning of r 1 of the Petition Review Rules.

Was the decision final, such that it is amenable to review?

9. In relation to this question, extensive submissions were made by counsel on the construction of the orders made by the trial judge and relevant provisions of OLNLLGE, in particular ss 212, 218, 220 & 226. I am invited by parties to interpret these provisions of my own and apply the interpretation to the nature of the decision and orders made by the judge.

10. An order for recount is one of the relief under s 212 (1) claimed in the Petition. The other relief claimed are (1)(f) (declare that a person who was returned as elected was not duly elected), (1) (g) (declare a candidate duly elected who was not returned as elected), and...