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; Anton Yagama v Peter Charles Yama and Steven Biko and Andrew Trawen, Electoral Commissioner and Electoral Commission or Papua New Guinea And Electoral Commission or Papua New v Peter Charles Yama and Anton Yagama (2013) SC1244

• Jurisdiction: Papua New Guinea
• Judge: Batari J
• Judgment Date: 29 July 2013
• Court: Supreme Court
• Citation: (2013) SC1244
• Docket Number: SC REVIEW (EP) 36 & 37 OF 2013
• Year: 2013
• Judgement Number: SC1244

Full Title: SC REVIEW (EP) 36 & 37 OF 2013; 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; Anton Yagama v Peter Charles Yama and Steven Biko and Andrew Trawen, Electoral Commissioner and Electoral Commission or Papua New Guinea And Electoral Commission or Papua New v Peter Charles Yama and Anton Yagama (2013) SC1244

Supreme Court: Batari J

Judgment Delivered: 29 July 2013

SC1244

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) 36 & 37 OF 2013

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.

ANTON YAGAMA

Applicant

PETER CHARLES YAMA

First Respondent

STEVEN BIKO

Second Respondent

ANDREW TRAWEN, Electoral Commissioner

Third Respondent

ELECTORAL COMMISSION OR PAPUA NEW GUINEA

Fourth Respondent

AND

ELECTORAL COMMISSION OR PAPUA NEW GUINEA

Applicant

PETER CHARLES YAMA

First Respondent

ANTON YAGAMA

Second Respondent

Waigani: Batari J

2013: 11, 29 July

ELECTION PETITION – Judicial Review – leave – application for – discretion to grant leave for judicial review – principles of – grounds - errors of law and facts – higher stand of scrutiny applied - Returning officer - unlawful declaration of failed election – acting appointment of returning officer - Electoral Commission purporting to appoint Returning officer to fill temporary vacancy – delegation of powers and functions - instrument of delegation -– whether valid in form - errors by electoral official - invalid Form 66B –order for recount – whether appropriate relief – ss. 18, 21, 212, 217, 218 Organic Law considered

Facts

At the counting for an election to a seat in the National Parliament, the Returning Officer declared a “failed election” and stopped the counting. The Electoral Commission appointed two Assistant Returning Officers and an acting Returning Officer, but the instrument appointing the latter was not gazetted, did not specify the duties to be performed and was not served on the delegate. The National Court Judge found the errors in relation to the appointment of the acting Returning Officer, combined with the fact that the counting continued in the absence of scrutineers and that no Form 66B record of the results of the count was prepared, justified an order for a re-count. On an application for leave to review the decision of the National Court Judge¯

Held;

1. The factual finding that the appointment of the acting Returning Officer was defective in law, goes to the question of jurisdiction. Arguments relating to the relative position of the petitioner in the count do not raise serious questions justifying the grant of leave, at [15];

2. It is an essential element of s 18(1) that the delegated power or function must be clearly specified as to:

(a) electorate or electorates;

(b) such matters or class or matters;

(c) the whole country or such part of the country.

At, [29];

3. An argument that the remedy against a defective instrument of delegation in respect of the counting at an election, lies in judicial review, does not raise a serious or important question for the grant of leave, at [38-42];

4. The argument that the evidence in relation to Form 66B was not properly before the Court is contrary to the record, at [47-48];

5. The argument that the occasion and jurisdiction to order a recount had not arisen, does not raise a serious or important question in light of the discretion granted to the Court by ss212(3) and 217, at [60];

6. That ground 5 (errors at the counting) was dismissed does not raise a serious or important question concerning the order for a re-count, which was based on the flawed delegation, not on counting errors, at [65-68];

7. That the petition did not plead the return or result of the election contrary to ss 170 and 172 does not raise a serious or important question, when the errors found by the trial judge were unrelated to the procedure for challenging a scrutiny, at [71];

8. That an order for a re-count may ultimately lead to the avoiding of the result of an election does not raise a serious or important question to negative that the order for a re-count under s 212(1)(d) does not have the same effect as voiding an election, at [77];

9. Application to apply for leave for judicial review refused.

Cases Cited:

Anton Yagama v Peter Charles Yama, Steven Biko, Andrew Trawen and the Electoral Commission (2013) SCR 55of 2012, (Unnumbered)

Application of Ludwig Patrick Shulze (1998) SC 572

Avia Aihi v The State [1981] PNGLR 81

Ben Semri (2003) SC 723

Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC 788

Herman Joseph Leahy (2006) SC 855

Jurvie v Bony Oveyara (2008) SC 935

Kasap v Yama [1988-89] PNGLR 81

Kelly Kalit v John Pundari (1998) SC 569

Lisio v Puana (2008) N3463

Maino v Avei [1998] PNGLR 178

Paul Aihi v Sir Moi Avei [2004] PGNC; N2523

The State v Paul Loi, Gerard Reu, Valentine Reu, Darius Dende (2009) N4058:

Trawen v Kama (2008) SC 915

Wingti v Rawali (2008) N3286

Counsel

Mr. T. Boboro, for the First Applicant in SC Review (EP) 36 of 2013 and Second Respondent in SC Review (EP) 37 of 2013.

Mr. H. Nii, for the Second, Third and Forth Respondents in SC Review (EP) 36 of 2013 and Applicant in SC Review (EP) 37 of 2013

Mr. N. Kiuk, for the First Respondent in both applications.

29th July, 2013

1. BATARI, J: These are applications for leave to apply for judicial review of the decision of the National Court which upheld the Election Petition, in EP 52 of 2012 Peter Charles Yama v. Anton Yagama, Steven Biko, Andrew Trawen (Electoral Commissioner) and Electoral Commission in part with consequential orders for a recount. By consent of the parties, the two applications are heard together. The applications are made under s.155 (2)(b) of the Constitution and Order 5,Sub-division 2 of the Supreme Court Rules 2012 (the SCR).

A. BACKGROUND

2. In the National Court at Madang, the Petitioner, Peter Charles Yama disputed the return of Mr. Anton Yagama as the successful candidate for the Usino-Bundi Open Electorate of Madang Province in the 2012 General Elections on the grounds of:

1) bias and undue influence of electoral officials, in particular the Returning Officer Steven Biko;

2) bias and undue influence of electoral officials, in particular an Assistant Returning Officer;

3) other illegal practices, errors and omissions;

4) failure to conduct polling at designated places and delays, double and underage children voting, and

5) illegal practices, errors and omissions at counting.

3. Ground 3 was struck out at the competency stage while the remaining grounds proceeded to trial. On 16 May, 2013 the trial Judge, Cannings J partially upheld Grounds 1 and 2 and dismissed Grounds 4 and 5 of the Petition. On Ground 1 the court held, the Petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Returning Officer, Steven Biko but found an “error” was committed by the Returning Officer in acting outside his lawful authority to stop the count and declare a failed election. In a similar ruling, Ground 2 partially succeeded on the basis that the petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Assistant Returning Officer but found the petitioner had proven the commission of “errors” by various officers regarding the appointment of an officer to perform the duties of the office of the Returning Officer contrary to s. 21 of the Organic Law on National and Local Level Government Elections (the Organic Law) and the exercise of powers by that officer, including conducting the final stages of the scrutiny and declaring the election result.

B. GROUNDS FOR LEAVE FOR JUDICIAL REVIEW

4. The grounds for leave to apply for judicial review of the decision of the Court of the National Court are numerous. They seek to challenge decision in partially upholding two grounds of the Petition and the subsequent orders for a recount. In brief, both applications for leave are premised and developed around three principle contentions that:

1) the trial judge for the number of given reasons (factual and/or legal) erred in ordering a recount;

2) the trial judge on a number of aspects, erred in making findings of facts on insufficient evidence or, that was either not pleaded or not properly before the Court;

3) the trial judge erred in holding that the instrument of delegation appointing James Apimia to exercise the powers and functions of the Electoral Commissioner from 27th July 2012 to 30 July 2012 was invalid.

C. PRINCIPLES GOVERNING LEAVE APPLICATION

5. Section 220 of the Organic Law prohibits an appeal against a decision or ruling of the National Court . However, it is settled from the seminal authority of, Avia Aihi v The State [1981] PNGLR, 81that an aggrieved party may, with leave, seek a judicial review of the Court...