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; Bari Palma v The Electoral Commission of Papua New Guinea and Camillus Dangima Bongoro (2014) SC1309

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 17 February 2014
• Citation: (2014) SC1309
• Docket Number: SC Review (EP) NO 55 OF 2013
• Year: 2014

Full Title: SC Review (EP) NO 55 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; Bari Palma v The Electoral Commission of Papua New Guinea and Camillus Dangima Bongoro (2014) SC1309

Supreme Court: Makail, J

Judgment Delivered: 17 February 2014

ELECTION PETITIONS—Practice & Procedure—Application for leave to review—Review of National Court decision—Dismissal of petition—Grounds of dismissal—Failure to prove allegation of errors and omissions during counting—Evidence unreliable—Proposed grounds of review—Assessment of evidence—Whether proposed grounds established clear error in trial judge’s assessment of evidence—Constitution—s155(2)(b).

ELECTION PETITIONS—Practice & Procedure—Competency of application for leave to review—Objection as to form—Citing of jurisdiction of Supreme Court in title of application—Citing of PART “XV111” instead of PART “XVIII”—Whether application incompetent—Organic Law on Provincial and Local-level Government Elections.

Facts

The National Court dismissed an election petition on the ground that the applicant failed to prove allegation of errors and omissions during counting. The trial judge found that the evidence was unreliable. The applicant applied for leave to review the decision pursuant to s. 155(2)(b) of the Constitution. The proposed grounds of review were against the trial judge’s assessment of evidence and rejection of the applicant’s evidence. The respondents opposed leave and contended inter-alia, that the application was incompetent for want of form because it did not comply with the Organic Law on National and Local-level Government Elections by citing “PART XV111” instead of “PART XVIII”.

Held:

1. Notwithstanding that PART “XVIII” of the Organic Law on National and Local-level Government Elections is written in Roman numeral, it is plain and clear that the applicant intended to move the application pursuant to PART “18” (English Version) of the Organic Law on National and Local-level Government Elections. The respondents did not say that they are confused about the jurisdictional basis of the application nor did they show that they were prejudiced in their defence by reason of a “wrong” law being cited. The objection is dismissed.

2. No gross error is clearly apparent in the proposed grounds in relation to the trial judge’s assessment of evidence and rejection of the applicant’s evidence which would merit a review. They are dismissed.

3. No gross error is clearly apparent in the proposed ground in relation to the trial judge’s rejection of Form 66B which would merit a review. It is dismissed.

4. The application for leave to review is refused with costs to be taxed, if not agreed.

Cases cited:

Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935

Application of Ludwig Patrick Schulze (1998) SC572

Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244

Kasap -v- Yama [1998-1999] PNGLR 81

Application by Ben Semri (2003) SC723

Peter Wararu Waranaka -v- Gabriel Dusava (2009) SC890

Paias Wingti -v- Tom Olga & Electoral Commission (2008) N3286

Tom Olga -v- Paias Wingti & Electoral Commission (2008) SC938

RULING

1. Makail, J: This is an application for leave to review a decision of the National Court to dismiss an election petition. It is made pursuant to s.155(2)(b) of the Constitution.

Petition in the National Court

2. The applicant Bari Palma who was the second runner-up petitioned the National Court to declare void the election of the second respondent as Member for Kerowagi Open electorate on the ground that electoral officials made errors and omissions during counting. He alleged that during power black-outs at the counting centre on the night of 28th July 2012, a counting official wrongly took 400 exhausted ballot-papers from the exhausted ballots screening table and counted them with the second respondent’s live ballot-papers. This illegal act took place during Exclusion No. 47.

3. This allegation is true because when the evidence of eye witnesses is considered with evidence of the figures in Form 66B the Manual Tally Sheet (“Form 66B”) they do not match or correspond to the number of counted votes. This supports his case that 400 exhausted ballot-papers were wrongly included and counted in favour of the second respondent. As a result, they inflated the number of votes of the second respondent and he won.

4. At the trial, witnesses were called and gave evidence for and in defence of the allegation. The respondents categorically denied the allegation. They also took issue with the applicant’s claim that the total number of votes did not match or correspond to the figures recorded in Form 66B. They said that it was not open to the applicant to...