In the matter of the Organic Law on National and Local-Level Government Elections a disputed return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013)

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 May 2013
• Court: National Court
• Citation: (2013)
• Docket Number: EP NO 52 0F 2012
• Year: 2013
• Judgement Number: N5222

Full Title: EP NO 52 0F 2012; In the matter of the Organic Law on National and Local-Level Government Elections a disputed return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013)

National Court: Cannings J

Judgment Delivered: 16 May 2013

N5222

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA

Petitioner

V

ANTON YAGAMA

First Respondent

STEVEN BIKO, RETURNING OFFICER

Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2013: 29, 31 January, 1, 4, 5, 6, 7 February, 4, 13 March,

7, 8, 9, 14, 16 May

Elections – petitions – validity of return of a member of the National Parliament disputed by petition – alleged errors by officers – alleged bias of returning officer and assistant returning officer – proof of bias – alleged delays in polling – alleged failure to control unlawful voting – alleged errors in counting.

Elections – appointment of Returning Officer – powers, functions, duties and responsibilities of Returning Officer – whether Returning Officer has power to declare a failed election – appointment of officer to perform duties of office in event of absence from duty of Returning Officer: Organic Law on National and Local-level Government Elections, Section 21.

Elections – petitions – powers of court in event of proof of errors by officers – Organic Law, Section 218.

The petitioner challenged the return of the first respondent as the successful candidate at an election on five grounds described as (1) ‘bias and undue influence of electoral officials’, in particular the Returning Officer; (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 the counting’. Ground 3 was struck out on determination of an objection to competency. The petitioner argued that the grounds of the petition should be substantially upheld and were sufficient to warrant the court ordering a recount of all ballot papers and/or declaring that the first respondent was not duly elected.

Held

(1) The petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Returning Officer but proved the commission of an “error” by the Returning Officer in that he stopped the counting and declared a failed election, thereby exercising a power that he did not have. Ground 1 was to that limited extent upheld.

(2) The petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Assistant Returning Officer but proved the commission of “errors” by various officers regarding the appointment of an officer to perform the duties of the office of Returning Officer contrary to Section 21 of the Organic Law, and the exercise of powers by that officer including conducting the final stages of the scrutiny and declaring the result of the election. Ground 2 was to that limited extent upheld.

(3) The petitioner failed to prove commission of any of the errors pleaded in ground 4 and that ground was entirely dismissed.

(4) The petitioner failed to prove commission of any of the errors pleaded in ground 5 and that ground was entirely dismissed.

(5) Though only two grounds were partially upheld the errors disclosed in the course of determining those grounds were significant culminating in an irregularly appointed officer conducting the final stages of the scrutiny in the absence of all relevant scrutineers and declaring the result of the election.

(6) The significance of the errors gave rise to the question whether in light of the duty of the Court under Section 217 of the Organic Law to “be guided by the substantial merits and good conscience of each case”, the Court should exercise all or any of its powers under Section 212(1) including (d) ordering a recount of ballot papers, (f) declaring the person who was elected as not duly elected, (g) declaring a candidate duly elected who was not returned as elected and (h) declaring the election absolutely void.

(7) It was not appropriate to make any of the declarations provided for by Sections 212(1)(f), (g) or (h) as that would amount to ‘avoiding’ the election, which Section 218(1) provides can only be done if it is clear that the errors affected the result of the election; and here it was not clear that the errors affected the result.

(8) However, the significance of the errors and the fact that they occurred at critical stages of the election were for the purposes of Section 213(3) “just and sufficient” grounds on which to exercise the power of the court under Section 212(1)(d) to order a recount of ballot papers in the electorate.

(9) The petition was accordingly upheld in part and a recount was ordered. The petitioner will pay the respondents’ costs of the petition as the bulk of the grounds were dismissed as being without substance.

Cases cited

The following cases are cited in the judgment:

Lisio v Puana (2008) N3463

Maino v Avei [1998] PNGLR 178

Peter Charles Yama v Anton Yagama (2012) N4928

SCR No 4 of 2002, Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689

Wingti v Rawali (2008) N3286

TRIAL

This was the trial of an election petition disputing the validity of an election.

Counsel

N Kiuk, for the petitioner

T Bobor,o for the first respondent

J S Umbu, for the second, third & fourth respondents

Terminology and dates

In this judgment:

· ‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections;

· dates refer to the year 2012 unless otherwise indicated.

1. CANNINGS J: The petitioner Peter Charles Yama has filed a petition disputing the election of the first respondent Anton Yagama as the member for Usino-Bundi Open in the 2012 general election. The petition is based on five grounds described as:

(1) ‘bias and undue influence of electoral officials’, in particular the Returning Officer;

(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 the counting’.

2. Ground 3 was struck out on determination of an objection to competency (Peter Charles Yama v Anton Yagama (2012) N4928). A trial has been held on the remaining four grounds. The petitioner argues that the grounds of the petition should be substantially upheld and are sufficient to warrant the court ordering a recount of all ballot papers and/or declaring that the first respondent was not duly elected. The respondents argue that none of the grounds are made out and that there is no good reason to grant any of the relief sought by the petitioner.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· The Returning Officer appointed by the Electoral Commissioner was Steven Biko (the second respondent). Before the election the petitioner objected to his appointment on various grounds including unresolved allegations of official corruption against Mr Biko and Mr Biko’s alleged bias against the petitioner and Mr Biko’s alleged close friendship with candidate and then sitting member, Samson Kuli MP. The petitioner’s objection was rejected by the Electoral Commissioner on the advice of the Madang Provincial Election Steering Committee. Mr Biko remained as Returning Officer.

· There were three Assistant Returning Officers, each being responsible for one of the three Local-level Government (LLG) areas in the electorate: Bundi, Gama and Usino. The Assistant Returning Officers (each of whom gave evidence at the trial) who in fact conducted the election (assisting in both polling and counting) did not correspond entirely with those gazetted, as shown in the following table:

LLG area	Gazetted appointment	In fact
Bundi	Joseph Yama	Joseph Yama
Gama	Vincent Awin	James Aiam
Usino	James Aiam	Doling Gembo

· Various presiding officers were appointed to be in charge of polling teams. The task of polling teams was to conduct polling within designated wards within each LLG area. Some of the presiding officers gave evidence.

· After the polling was completed counting of votes took place at the counting centre at Walium. There was no significant disruption or controversy during the...