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; Sir Arnold Amet v Peter Charles Yama (2010) SC1064

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ; Batari & Davani, JJ
• Judgment Date: 09 July 2010
• Citation: (2010) SC1064
• Docket Number: SCR 50 OF 2008
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1064

Full Title: SCR 50 OF 2008; 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; Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Supreme Court: Salika, DCJ; Batari & Davani, JJ

Judgment Delivered: 9 July 2010

SC1064

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 50 OF 2008

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:

SIR ARNOLD AMET

Applicant

AND:

PETER CHARLES YAMA

Respondent

Waigani: Salika, DCJ; Batari & Davani, JJ

2009: 25 February

2010: 09 July

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Illegal practices - “Undue Influence” - Definition of - Standard of proof required –

NATIONAL PARLIAMENT - Election Petition - Pleading of facts under s. 208 (a) of the Organic Law on National and Local Level Government Elections –

NATIONAL ELECTIONS- Judicial Review – Application to quash decision declaring election void and ordering by-election – Objection to competency – Failure to meet requirements of section 208(a) OLNLLGE - Need to plead relevant and material facts – - Failure to exercise discretion to dismiss petition at preliminary hearing or trial– Bad pleadings – Burden of Proof - Review upheld – Order for by-election quashed – Petition remains dismissed – Applicant’s return as duly elected confirmed – Constitution, s.155(2)(b), Organic Law on National and Local Level Government Elections N0.3 of 1997, ss.206, 208, 210, 215

Facts

Sir Arnold Amet (the applicant) was returned as the successful candidate for the Madang Regional Seat in the 2007 National Elections. Mr. Yama (the respondent) brought a petition in the National Court under the Organic Law on National and Local Level Government Elections (the Organic Law) in which the results of the election were declared void and a by-election ordered. The applicant has sought a review of the National Court decision. The basis of the Petition in the National Court was various statements made by supporters of the applicant and statements by the applicant said to amount to fraud or undue influence under the Criminal Code s102 and the Organic Law s215. The trial judge gave oral reasons and undertook to make written reasons available. The written reasons were not available at the time of the hearing of the review.

Per Salika DCJ and Batari J:

1) Having the right to appeal or review of a decision of the National Court necessarily comes with a right to be informed orally or in writing of the reasons for the decision;

2) A pronouncement by the Court falling short of giving reasons will inevitably lead to the conclusion that the Court or decision maker has no good reasons for the decision made;

3) Where a judge gives reasons and undertakes to give written reasons that publication should be available at the end of the proceedings or shortly thereafter;

4) The Supreme Court while reviewing the decision of the National Court is entitled to draw conclusions from the findings on the face of the record;

5) The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings (Davani J. to the same effect);

6) The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below;

7) The petitioner in an election petition must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent (Davani J to the same effect);

8) Under s215(3)(a) of the Organic Law:

a) the “ knowledge ” or “ authority ” of the candidate as to any illegal act or undue influence is an essential element of the ground [51];

b) it must be pleaded that the act relied upon was likely to affect the election result [51];

c) it is helpful to plead the number of votes received by the winner and the runner-up to determine whether or not the result was likely to be affected [51];

d) it is a requirement that the petition plead that it is just that the results of the election should be declared void;

9) To prove the allegation of undue influence under102(b) of the Criminal Code (read together with illegal practices under s215(3)(b) of the Organic Law) the petitioner must plead [56]:

a) the ground relied upon and whether “ force ” or “ fraud ” was used to induce or restrain an elector from voting at the election;

b) if fraud is relied upon it must be pleaded that “ a false statement was made by a person to an elector known to be false or without belief in its truth or careless as to whether it be true or false, with the intention that the elector act on it ”;

c) the inducement or illegal practice of the winning candidate was likely to affect the election result;

d) the number of votes secured by the winning candidate and the runner-up;

e) it is just that the winner should be declared not duly elected; (Davani J to the same effect)

10) (per Davani J) undue influence and bribery (ss102 & 103) of the Criminal Code must be pleaded and proven as criminal offences;

11) Grounds 1-4 in the Petition were insufficiently pleaded and should not have gone to trial; (Davani J to the same effect)

12) Where the presence of the winning candidate is relied upon to prove “ knowledge ” or “ authority ” it must be alleged that the candidate was present with knowledge or approval of what his supporters would say [70]; (Davani J to the same effect)

13) The terms “knowledge” and “ authority ” must denote a pre-existing state of a candidate knowing or authorising an illegal act or undue influence on his behalf [71], It must be proven that the candidate wilfully encouraged the statement by his supporters [72];

14) The presence of a candidate where a statement was made is not by itself evidence that the candidate authorised or had knowledge of what the speaker was going to say;

15) There was no evidence of how the statements relied upon;

a) influenced particular electors;

b) how the whole election was likely to be affected by a statement to a small number of electors (Davani J to the same effect, and per Davani J sufficient material facts were not pleaded to demonstrate the likelihood or tendency to affect the results of the election);

c) why declaring the election void was the only just remedy (Davani J to the same effect);

16) Orders (Davani J concurring):

a) orders of the National Court set aside;

b) the Petition EP 54 of 2007 dismissed;

c) Responded to pay costs.

Cases Cited

Applicant by Herman Leahy (2006) SC 855;

Application of Ludwig Shulze (1998) SC 572; Application by Kasap and Yama [1988-89] PNGLR, 1971

Kalit v Pundari (1998) SC 723;

Application by Agiwa (1993) SC 442

Application by Ben Semri (2003) SC 723.

Ombudsman Commission v Peter Yama (2004) SC 747

Godfrey Niggints v Henry Tokam & 2 Ors [1993] PNGLR 66

Mission Asiki v Manasupe Zurenoc and the State, (2005) unreported, SC 797

Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853

Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399

Holloway v Ivarato & Anor [1988] PNGLR, 99

Lambu v Ipatas (1997), N1701

Ephraim Apelis v Sir Julius Chan (1998) SC 573

Okuk v Nickare

Nilkare??

G J1 [1983] PNGLR, 28

Mond v Mape & Ors (2003) N2318

Bourne v Voeto [1977] PNGLR 298

Agiru Aieni v Paul Tohian [1978] PNGLR 37

Ludger Mond v. Jeffrey Nape & Ors (2003) N2318

Agonia v Karo [1992] PNGLR 463

Karo v Kidu (Unreported N1626 of 9/10/97)

Koimanrea v Sumunda & Ors [2003] N 2421 (13 March 2003))

Delba Biri v. Bill Ginbogl Ninkama, the Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342

Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363

PNGBC v Jeff Tole (2002) SC 694

Legislations Cited

Constitution

National Court Rules

Organic Law on National and Local Level Government Elections (Amendment) Law 2006

Criminal Code

Supreme Court Act, 1975

Supreme Court Election Petition Review Rules 2002

Counsel:

Mr G J Shepherd with C Copland, for the Applicant

Mr P Ame, for the Respondent

09th July, 2010

1. SALIKA, DCJ and BATARI J: The Court of Disputed Returns in a successful dispute of Sir Arnold Amet’s election declared the poll results invalid and ordered a By-Election for the Madang Regional Seat in the National Parliament. That decision is before this Court for review, the applicant having been granted leave to apply for judicial review in a decision by Injia, CJ.

BACKGROUND

2. Sir Arnold Amet and Mr. Peter Yama amongst many others contested the Madang Regional Seat in the National Parliament during the 2007 General Elections. Sir Arnold Amet was declared the winner. Mr. Yama came third after Jim Kas who was runner-up.

3. Mr. Yama contested the election results in an election petition claiming undue influence and illegal practices committed by the winning...