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; David Arore v John Warisan and Paul Kamane as the Returning Officer of the Ijivitari Open Electorate and the Electoral Commission (2008) SC1030

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 03 October 2008
• Court: Supreme Court
• Citation: (2008) SC1030
• Docket Number: SC REV. NO. 16 OF 2008
• Year: 2008
• Judgement Number: SC1030

Full Title: SC REV. NO. 16 OF 2008; 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; David Arore v John Warisan and Paul Kamane as the Returning Officer of the Ijivitari Open Electorate and the Electoral Commission (2008) SC1030

Supreme Court: Injia, DCJ

Judgment Delivered: 3 October 2008

SC1030

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 16 OF 2008

APPLICATION UNDER S 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:

DAVID ARORE

Applicant

And:

JOHN WARISAN

First Respondent

And:

PAUL KAMANE AS THE RETURNING OFFICER

OF THE IJIVITARI OPEN ELECTORATE

Second Respondent

And:

THE ELECTORAL COMMISSION

Third Respondent

Waigani: Injia, DCJ

2008: 3rd October

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Preliminary ruling on notice of objection to competency, Preliminary ruling on no case submission & Final decision of National Court under Part XVIII of Organic Law on National and Local –Level Government Elections - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended) – Jurisdiction to review preliminary rulings – Exercise of discretion- Leave refused in respect of two preliminary rulings – Leave granted in respect of final decision.

Cases cited:

Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579

Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935

Olga v Wingti (2008) SC 938

Pawa Wai v Jamie Maxtone Graham (2005) N2768

Peter Wararu Waranaka v Gabriel Dusava (2008) SC 942

Robert Lak v Paias Wingti (2003) N2358

Robert Kapaol v Philemon Embel & Electoral Commission, (2008) SC 941

Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered Supreme

Counsel:

D Datoana, for the Applicant

D Diweni, for the First Respondent

No appearance, for the Second and Third Respondents

3rd October, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to uphold 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 first respondent. Counsel representing both parties presented oral and written submissions and I reserved my ruling which I now deliver.

2. I have considered the material and submissions put before me by both counsel. I have also considered the submissions made before Kapi CJ on 21 May 2008 by counsel who appeared before him, which have been adopted at the rehearing of this application before me.

3. The background of this application is that on 25th July 2007, the applicant was declared the duly elected member for the Ijivitari Open Electorate in the National Parliament. The second respondent is the Returning Officer who made the declaration. The applicant polled 5,479 votes to win the election whilst the first respondent came second with 4941 votes, a difference of 538 votes. On 3rd September 2007 the first respondent filed an election petition disputing the applicant’s election. On 5th October 2007, the first respondent filed a Notice of Objection to competency of the petition. Pursuant to r 15 of Election Petition Rules, the notice of objection was dealt with in the trial as a preliminary matter.

4. The trial commenced on 10th March 2008 and was concluded on 25th April 2008. The trial judge made two preliminary rulings followed by a final decision. In the first preliminary ruling which was made on 11th March 2008, the judge dismissed the first respondent’s notice of objection to competency. In the second preliminary ruling which was made on 28th March 2008, the judge dismissed a no case submission made by the second and third respondents after the completion of the case for the first respondent. After completing the evidence for the applicant and receiving submissions, the judge gave the final decision on 25th April 2008. The judge found that the second respondent and other officials of the third respondent committed errors and omissions at the counting centre during the scrutiny of votes and declared void the election or return of the applicant and ordered a recount. The judge summarized the findings upon which he made the decision, as follows:

(a) The second respondent and the officials of the third respondent failed in their duty which constituted breaches of ss 147, 151(c), 154 (2)(b)(c) and (d) of OLNLLGE.

(b) The third respondent by its servants or agents including the second respondent failed to properly scrutinized the ballot-papers that were counted during the 34th elimination round of the Ijivitari Open Electorate.

( c) The third respondent by its servants or agents including the second respondent failed in the 34th elimination round to call out the second and third preference votes as well, scrutineers were not allowed to raise objections, this was despite the fact that two counting officials had raise such issue with the Presiding Officer.

(d) As the result of the above, authorized scrutineers were not permitted to raise any objections.”

5. The applicant seeks leave to review all three decisions. In respect of the two preliminary rulings, the Petition Review Rules is silent on the procedure for filing and /or moving notices of objection to competency and making a “no case submission”. In the recent case of Robert Kapaol v Philemon Embel & Electoral Commission, (2008) SC 941, I described the highly discretionary nature of procedural matters which are not regulated by the Election Petition Rules, as follows:

“The Election Petition Rules do not provide for a formal notice of objection to competency and amendment of the same. By implication, it is left to the Court or judge to issue directions in individual cases to deal with such notice of objection as it arises. The judge has wide discretion on these sorts of procedural matters.”

6. The above observation applies to notice of objection to competency but it equally applies to no case submission in the trial of an election petition.

7. In relation to the ruling on objection to competency, the judge ruled on the objection to competency after considering the well established principles which require essential facts to be pleaded concisely and with clarity. In the petition, the petitioner had alleged illegal and improper practices were committed by the first respondent. The petitioner did not pursue those allegations against the first respondent. The remaining allegations in the petition related to illegal practices, errors and omissions committed by the second and third respondents. The judge noted that the notice of objection was filed by the first respondent and not the second and third respondents. This meant that in respect of those matters pleaded against the second and third respondents in the notice of objection, they could not be pursued by the first respondent. For this reason the judge dismissed the first respondent’s objection to competency. In the absence of any express provision in the Election Petition Rules on filing and moving of notices to objections to competency against which the correctness of the trial judge’s ruling can be tested, it remained a matter of discretion as to the balance of the grounds that remained to be considered. Further the judge was correct in law when he said pursuant to s 222(1) of the Organic Law, counsel for the first respondent could not pursue grounds of objection which related to the conduct of the second and third respondents. From this, I am not able to identify any important point of law which has merit. I do not think there is an important point of law which has merit which warrants a full review. Leave is refused in respect of grounds which relate to this first preliminary ruling.

8. In relation to the second preliminary ruling, the Election Petition Rules 2002 as amended, is silent on the procedure for “no case submission”. However case law establishes that a no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and “it would be open to a judge having regard to the terms of s.217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election”: Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579, Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered judgment, Robert Lak v Paias Wingti (2003) N2358, Pawa Wai v Jamie Maxtone Graham (2005) N2768.

9. The judge considered the nature of the objection, the established principles of procedural law, the relevant provisions of the Organic Law which related to the allegations and the allegations in the petition. Most importantly he considered the evidence given by the petitioner’s side and found there was sufficient evidence to establish a prima facie case for the respondents to answer. I do not find any gross error in his considerations of the evidence on the face of the evidence discussed in the judgment. I also do not see any...