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
• Judge: Makail, J
• Judgment Date: 17 February 2014
• Court: Supreme Court
• Citation: (2014) SC1309
• Docket Number: SC Review (EP) NO 55 OF 2013
• Year: 2014
• Judgement Number: SC1309

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

SC1309

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

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

BETWEEN

BARI PALMA

Applicant

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

CAMILLUS DANGIMA BONGORO

Second Respondent

Waigani: Makail, J

2014: 06th & 17th February

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 – s. 155(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

Counsel:

Mr P Ame, for Applicant

Mr K Kepo, for First Respondent

Mr M Kombri, for Second Respondent

RULING

17th February, 2014

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 rely on this evidence because he did not plead it as a ground in the petition. Parties agreed that if the exhausted ballot-papers were counted, it would amount to an error and omission under s. 218(1) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).

5. According to the evidence before the trial judge, there were two versions of the events that occurred on the night of the counting at the counting centre on 28th July 2012. The applicant’s version is that during the second power blackout, a counting official took 400 exhausted ballot-papers and placed them in the second respondent’s tray. They were then counted with the live ballot-papers and as a resulted inflated the number of votes of the second respondent. The respondents denied the allegation. Their version is that there were two power black-outs that night but rather one was very brief, that the counting official in question was not in the counting room, that two of the applicant’s witnesses who claimed to have seen the counting official remove the 400 exhausted ballot-papers and placed them in the second respondent’s tray were not in the counting centre.

Trial Judge’s Reasons

6. The trial judge dismissed the petition because firstly, he did not believe the evidence of the applicant’s witnesses. He found it unreliable because if the allegation had any truth in it, firstly, none of the witnesses immediately reported the error to the Returning Officer and as the 400 ballot-papers were in large quantity, everyone at the counting centre would have seen the error and would have complained about it. The most striking thing about the allegation is that the applicant’s witnesses said that the counting official manipulated the counting in full view of the counting officials and scrutineers and yet none of them complained or objected to the counting. Secondly, the demeanour of the witnesses was poor. These matters cast doubt on the credibility of their evidence.

7. Secondly, the trial judge held that the allegation that the number of votes did not match or correspond to the figures recorded in Form 66B raised a separate and distinct ground and amounted to an amendment of the petition and this was prohibited by the Organic Law on Elections. In any case, he held that there was nothing wrong with them and did not change the final result of the election.

Principles on Leave to Review

8. In an application for leave to review, the Court is asked to exercise its discretion to grant leave. As a review is no ordinary appeal, the exercise of discretion requires a higher standard of scrutiny of the materials supporting the application. The test is whether the proposed grounds of review raise an important point of law and that it is not without merit: Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935; Application of Ludwig Patrick Schulze (1998) SC572 and followed in subsequent cases including Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244. In so far as the application relates to facts, the test is whether there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap -v- Yama [1998-1999] PNGLR 81, Application of Ludwig Patrick Schulze (supra) or where on the face of finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723.

Issues

9. In this case, the issue is whether the applicant has established that there is a clear error in the decision of the trial judge which has a very high chance of success. The applicant raised...