Jamie Maxton-Graham v Electoral Commission of PNG

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 28 December 2016
• Citation: (2016) SC1559
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1559

Full : SC REVIEW (EP) NO 03 OF 2014; 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; Jamie Maxton-Graham v Electoral Commission of Papua New Guinea and Dr. William Tongamp (2016) SC1559

Supreme Court: Makail, J

Judgment Delivered: 28 December 2016

SC1559

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 03 OF 2014

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

JAMIE MAXTON-GRAHAM

Applicant

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

DR. WILLIAM TONGAMP

Second Respondent

Waigani: Makail, J

2016: 22nd August & 28th December

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE – Leave sought to review National Court decision – Dismissal of petition – Grounds of – Errors and omissions – Illegal appointment of Returning Officer – Conduct of election by Returning Officer – Avoiding of election on account of errors and omissions – Whether errors and omissions affected result of election – No proof of – Leave refused – Organic Law on National and Local-level Government Elections – Section 218 – Supreme Court Rules – Order 5, rule 14

Cases cited:

David Arore v. John Warisan & Electoral Commission (2015) SC1448

Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935

Kelly Kalit v. John Pundari (1998) SC562

Peter Charles Yama v. Anton Yagama (2013) N5222

Counsel:

Mr. M. Wilson, for Applicant

Ms. S. Kapi, for First Respondent

Mr. M. Kuma, for Second Respondent

RULING ON LEAVE TO REVIEW

28th December, 2016

1. MAKAIL J: In the case of an election petition, no appeal lies to the Supreme Court from a decision of the National Court. This is clearly borne out by Section 220 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”) which states, “A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.” The only recourse for an aggrieved party is to seek review of the decision pursuant to Section 155 (2) (b) of the Constitution but only with leave. According to Order 5, rule 14 of the Supreme Court Rules, the application for leave must be filed, served and heard within fourteen days from the date of decision or within such time as extended by the Judge.

2. These laws and rules are intended to safe guard the interests of the successful candidate who is said to be elected by the majority of voters to represent the people of the electorate in Parliament. And it is intended that the National Court is the forum by which election disputes are exclusively settled. Thus, it is only with leave of the Supreme Court that an election dispute can go beyond the National Court.

3. It is for these reasons that leave is not readily granted: David Arore v. John Warisan & Electoral Commission (2015) SC1448. It will be granted where an Applicant is able to demonstrate that in so far as matters of law are concerned, there is an important point of law and that it is not without merit and in so far as matters of evidence are concerned, that a gross error is apparent or manifested on the face of the evidence: Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935. Even if there is none, a finding of fact is reviewable if on the face of it, it is considered so outrages or absurd so as to result in injustice: Kelly Kalit v. John Pundari (1998) SC562.

4. In this case the Applicant lost his election petition challenge in the National Court. He disputed the election of the Second Respondent as Governor of the newly established Jiwaka Province. On 7th April 2014 the National Court constituted by David J dismissed it on the ground that he failed to prove that the illegal appointment of the Provincial Returning Officer was a material error or omission which affected the result of the election. He now seeks leave to review the decision following a successful slip-rule application.

5. The petition before David J was grounded on three allegations. First, errors and omissions by the First Respondent to appoint the Provincial Returning Officer (PRO) and counting officials for Jiwaka Province, secondly, illegal counting of ballot papers after 4:00 pm to the early hours of 1st August 2012; and thirdly, errors, omissions and illegal practices by the First Respondent to count ballot papers.

6. The Applicant sought a declaration that the Second Respondent was not duly elected as Governor of the Province; an order for a re-count of ballot papers for the electorate and that he be declared duly elected Governor. He sought no order to declare the election void, such an order, if granted, would necessitate a by-election.

7. Following a hearing on an objection to competency part of the first allegation was struck out and the balance in relation to the allegation concerning the validity of the appointment of the PRO for the Jiwaka Province proceeded to trial. The second and third allegations were also struck out.

8. The remaining allegation was that the late Sale Bunat was appointed as the PRO for Jiwaka Province. His appointment was gazetted on 7th May 2012. A Joseph Karap was the person who actually conducted the scrutiny of ballot papers for the Jiwaka Provincial Seat from 16th July to 1st August 2012.

9. Joseph Karap was empowered by the First Respondent through an Instrument of Delegation of powers under Section 18 of the Organic Law on Elections from 16th July to 27th July 2012. On 1st August 2012, Sale Bunat made the declaration of the result of the election.

10. It was argued that the appointment of the PRO was illegal and constituted a material error on the part of the First Respondent sufficient to vitiate the election of the Second Respondent.

11. It should be also mentioned that while the trial was pending the Applicant obtained an order for the safe keeping of the ballot-boxes. Before the commencement of trial on 13th September 2013 they were destroyed in a fire that engulfed the building that housed them at Banz town. The Applicant commenced contempt proceedings against a number of persons including the Second Respondent. It was dismissed on the ground that the motion for contempt was not served on the Second Respondent.

12. At trial it was argued that as the ballot-boxes were destroyed in the fire, it was impossible to re-count the ballot papers and it was not appropriate to order a re-count of votes in the circumstance. Logically the remedy open to the Court to grant was to invoke Section 217 of the Organic Law on Elections to declare the entire election void and a by-election would follow.

13. His Honour held that “the delegation to Joseph Karap by an Instrument of Delegation dated 16th July 2012 was defective. His conduct of the scrutiny from 16th July to 1st August 2012 was done without authority other than the defective Instrument of Delegation therefore unlawful and invalid.”

14. His Honour further held that the invalid or defective Instrument of Delegation of Joseph Karap as the PRO was not a material error or omission to avoid the election. Finally, he held that as the Applicant had not sought an order to invalidate the entire election, it was not open to grant it. Even if Section 217 of the Organic Law on Elections on real justice to be observed were to apply, the burning of ballot-boxes could not be attributed to the Second Respondent because the contempt proceeding against him was dismissed.

15. In this case the application for leave sets out fifteen grounds: see Grounds 3 (a) to (m). They are repetitious as they raised no new grounds but three. The first ground from Grounds 3 (a) to (d) seeks to challenge his Honour’s rejection of the allegation that the illegal appointment of Joseph Karap as PRO was a material error and affected the result of the election. The second ground from Grounds 3 (e) to (l) seeks to challenge his Honour’s rejection of the relief of a by-election as a result of the burning of the ballot papers. The final ground in Ground 3 (m) challenges his Honour’s ruling on the release of security for costs to be apportioned equally between the Respondents.

16. It was argued that the allegation relating to the illegal appointment of PRO raised an important point of law to be determined and that it is not without merit. If his Honour held that “the delegation to Joseph Karap by an Instrument of Delegation dated 16th July 2012 was defective” and “His conduct of the scrutiny from 16th July to 1st August 2012 was done without authority other than the defective Instrument of Delegation therefore unlawful and invalid,” then by virtue of the illegal appointment, the election of the Second Respondent was invalid or void.

17. With respect, the law on avoiding an election is as stated in Section 218 of the Organic Law on Elections which his Honour relied on to reject the Applicant’s argument. This provision states:

“218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on...