N7515 
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP N0. 02 OF 2014

BETWEEN
PETER CHARLES YAMA
Petitioner

AND
NIXON PHILLIP DUBAN
First Respondent

AND
ADOLF DUANGHA
RETURNING OFFICER
Second Respondent

AND
ANDREW TRAWEN
PNG ELECTORAL COMMISSIONER
Third Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J
2017: 5th April & 2018: 16th October

ELECTION PETITION – Contempt of Court – Motion for contempt – Alleged contempt arising from an election petition – Order for recount of votes – Alleged breach of order – Conduct must be wilful – Deliberate act of disobedience – Order must be clear and unambiguous – Proof of – Lack of – Charges dismissed – Organic Law on National and Local-level Government Elections – Section 212 (1) (k) – National Court Rules – Order 14, rule 42 (1)

Cases cited:

Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429

Counsel:

Mr. B. Lomai, for Applicant/Petitioner 
Mr. J. Simbala, for First and Second Contemnors
Mr. A. Kongri, for Third Contemnor

RULING ON MOTION FOR CONTEMPT

16th October, 2018

1.	MAKAIL J:  This is a motion for contempt arising from a by-election in 2012 and against the following persons which I will refer to as contemnors:

1.	Sir Andrew Trawen (Late), 

2.	Mr. Simon Sinai, and 	

3.	Mr. Harvey Nii.

2.	It is moved pursuant to the powers of the Court under Section 212(1)(k) of the Organic Law on National and Local-level Government Elections (“Organic Law”) and Order 14, rule 42(1) of the National Court Rules.

Statement of Charge against Sir Andrew Trawen (Late)

•	The first charge was that, he failed to ensure that the Returning Officer completed the recount of votes in accordance with the Court Orders of 6th and 12th August 2014.

•	The second charge was that he failed to provide adequate supervision and coordination of the recount of votes to complete it on time.

•	The final charge was that he did not give correct instructions to his lawyers.  Firstly, when the time had lapsed to file a review, he should not have instructed them to apply for extension of time.  Secondly, when the lawyers applied for extension of time, it was to procrastinate and delay the recount of votes.

Statement of Charge against Mr. Simon Sinai

•	The first charge was that he did not include and count ballot-papers including 6,116 marked ballot-papers found at the grave yard on the night of 18th December 2013 as ordered by the Court on 6th and 12th August 2014.

•	The second charge was that he relied on electoral materials not considered and discarded by the Court during the trial.

•	The third charge was that he introduced and applied new rules in relation to the conduct of recount of votes which did not form part of the scrutiny process under the Organic Law.

•	The fourth charge was that he did not comply with the Court Order of 6th August 2014 and publicly ridiculed its existence and effect, thus showing no respect to the Court system.

•	The final charge was that he delayed, and procrastinate the recount of votes and the furnishing of result to the Court.

Statement of Charge against Mr. Harvey Nii

•	The first charge was that he did not provide appropriate advice to count all ballot-papers including 6,116 marked ballot-papers.

•	The second charge was that he did not ensure that any ambiguity in the terms of the Court Orders of 6th and 12th August 2014 were resolved without delay.

•	The third charge was that he did not make applications for extension of time within a reasonable time and in a timely manner to bring the recount of votes to finality and presentation of the result to the Court.

•	The final charge was that instead of applying to extend time to complete the recount of votes in the National Court, he applied to the Supreme Court which caused a lot of delay and costs to the parties.

Plea

3.	Sir Andrew and Mr. Sinai were represented by Mr. Simbala and denied the charges.  Mr. Nii who was represented by Mr. Kongri also denied the charges.

Principles of Contempt 

4.	Case law, some of which were cited by respective counsel and need no introduction, established that an act complained of is contemptuous if it is established that it was wilful or deliberate disobedience of a Court order.  It must also be established that the order is expressed in clear and unambiguous terms.  A guilty verdict will not be returned if the terms of the order are unclear and ambiguous.  

Terms of Orders

5.	In this case the charges arose from the orders of 6th and 12th August 2014 after the National Court upheld the petition and ordered a recount of votes.  Thus, the Court will confine its consideration to whether the contemnors disobeyed these orders.  Any reference to other or subsequent orders as alleged by the petitioner is irrelevant and will not be considered.

6.	The relevant parts of the orders referred to above are summarised as follows: 

1.	All ballot-papers must be counted.

2.	6,116 marked ballot-papers found at the graveyard on the night of 18th December 2013 must be counted.

3.	Ballot-papers cast at the re-polling at Wards 4 and 21 in Ambenob Local-level Government (“LLG”) area must be counted.

4.	No electoral officials based in Madang and engaged in the Madang Open by-election should be engaged in the recount of votes.

5.	The recount must be completed by 2nd September 2014.

Clarity of Orders

7.	The order for engagement of no Madang based electoral officials and those engaged in the Madang Open by-election is clear enough to understand why Sir Andrew appointed Mr. Sinai as the Returning Officer in place of the second respondent Mr. Adolf Duangha and for Mr. Sinai to take charge of the recount.  Mr. Sinai from the Lae branch of the Electoral Commission was assisted by Mr. Martin Anskar from Vanimo and Ms. Fredah Joses from Lae as Assistant Returning Officers.  The clarity in the order also explains why there are no charges against each contemnor for disobeying this term of the order.

8.	But it is the order to count all the ballot-papers that was contested.  Part XIV of the Organic Law governs the conduct of scrutiny of votes.   Section 153 which falls under Part XIV deals with informal votes, that is, grounds on which a vote may be considered as informal.  The next provision, Section 154 provides for scrutiny of votes.  This is where ballot-papers are opened, all informal votes are rejected and formal votes are counted beginning with the first preference votes. 

9.	Putting this process into the context of this case, when the Court ordered that all ballot-papers including 6,116 market ballot-papers from the grave yard and those from Ambenob LLG Wards 4 and 21 be counted, was it intended that the ballot-papers be added to the final result at the date of declaration and prior to the by-election or did it simply mean that all these ballot-papers be admitted and subjected to the usual terms and conditions of the scrutiny process?  That is, where ballot-papers are found to be informal under Sections 153 and 154, they must be rejected and only the formal ones be counted or added to the tally of each candidate based on a voter’s preference.

10.	The petitioner bears the onus of proving that the orders are clear and unambiguous.  I am not persuaded by the petitioner’s contention that the contemnors have breached or disobeyed the Court orders of 6th and 12th August 2014 because none of these orders stated that 6,116 marked ballot-papers and those from Ambenob LLG wards 4 and 21 be “added” to Mr. Yama’s total tally at the final primary counts or at the date of declaration, whichever the case may be.  For these reasons, I am not satisfied that he has proven that they are clear and unambiguous.  (Emphasis added).

11.	Where the orders are unclear and ambiguous, it results in confusion and renders it unsafe to act on to find that Sir Andrew failed to ensure that Mr. Sinai completed the recount of votes in accordance with the orders.  Similarly, it is unsafe to find that Mr. Sinai did not include and count the ballot-papers including 6,116 marked ballot-papers.  Further, if Mr. Gelu’s claim of Mr. Sinai ridiculing the orders and was being disrespectful of the Court system on one occasions at the counting centre is true, it highlights the need for clarity in the orders and nothing adverse can be drawn from this finding.  The orders did not clearly state what he should do with the additional ballot-papers and so Mr. Sinai simply expressed his reservation about them.  This kind of evidence is not enough to sustain this sort of charge. 

12.	As for Mr. Nii, it is without a doubt that as legal counsel for Sir Andrew and Mr. Sinai, he had a duty to advise them to comply with the orders.  However, compliance can only be achieved if the orders clearly set out what Mr. Nii should do.  In this case, the orders did not state what sort of advice Mr. Nii was required to give to Sir Andrew and Mr. Sinai on the conduct of recount.  For example, the orders did not state that Mr. Nii is prohibited from giving legal advice to them to challenge the order for recount in the Supreme Court or directed him to advise Mr. Sinai to add the additional ballot-papers to the petitioner’s tally.  Where the orders are unclear and ambiguous, it is quite difficult to expect him to advise Sir Andrew and Mr. Sinai to comply with the orders or what the Court required of them so as to avoid breaching them.    

13.	For these reasons, I am not satisfied it is safe to return a verdict of guilty on the first charge in case of Sir Andrew, first charge in the case of Mr. Sinai and first charge and second charge in the case of Mr. Nii.

Wilful Disobedience of Orders

14.	In any event, I do not accept the proposition that 6,116 marked ballot-papers and those from Ambenob LLG Wards 4 and 21 must be automatically added to the final tally of the primary count of each candidate or at the date of declaration, whichever the case may be.  To accept this proposition would be contrary to the discretion conferred on the Returning Officer under Part XIV of the Organic Law where the inclusion of those ballot-papers did not preclude the Returning Officer and counting officials from verifying them before adding to the tally of each candidate at the primary counts according to each voter’s preference.  Following that, they were to do elimination of candidates beginning with the candidate with the least number of votes until the last.  

15.	Furthermore, there are no specific orders prohibiting the Returning Officer from using or applying certain rules or procedure at the recount including use of manual and electronic recording of tally of votes for candidates.  In the absence of specific orders, it is quite difficult to say if it was intended that the recount was to be conducted in the way as contended by the petitioner. The discretion conferred on the Returning Officer is wide enough for him to run the recount in the best possible way to achieve a best outcome.  That is why the Electoral Commissioner Sir Andrew made it clear in his affidavit (exhibit”D2”) that he left Mr. Sinai to run the recount in the way he show fit.

16.	The complaint by Mr. Benedict Simanjon in his affidavit of 6th October 2014 (exhibit “P3”) about errors being made by counting officials in refusing to add 2,943 primary votes for Mr. Yama from the ballot-papers classified as court exhibits to give a total of 10,382 and secondly, the removal of 2,938 primary votes from Mr. Yama’s 7,378 votes posted on the Central Tally Board is and should appropriately be raised at the presentation of final result before the trial judge on 8th October 2014.  Taking this course is not unprecedented as it was done before in a number of cases, one of them was Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429.  

17.	The time fixed by the Court to complete the recount was 2nd September 2014.  This was less than a month.  The additional ballot-papers in excess of 6,000 to be counted, the bringing of electoral officers from outside Madang and setting up of the counting venue were amongst the logistical challenges that made it practically difficult for the contemnors to put together and complete the recount by the appointed date.  Cost of conducting the recount was another important consideration.  Putting in place security measures was another one.  These considerations were highlighted by Mr. Sinai in his report annexed to his affidavit (exhibit “D1”) which was not contested by the petitioner.  

18.	It was then a case of racing against time and it did not work for all parties and that was why time was extended and the final result of the recount was eventually presented and approved by the Court on 8th October 2014.  Where such evidence is produced, it is not difficult to see why the contemnors contend that they did not wilfully disobey the orders. 

19.	Finally, it is arguable that a party aggrieved by an order for recount is entitled to seek a review in the Supreme Court.  It is not for this Court to determine this question except to point out that for an act complained of to be contemptuous, it must be proved beyond reasonable doubt that it was wilful or intentional. In this case, the petitioner’s assertion that individually and/or collectively, the contemnors deliberately flouted the Court orders by giving instructions, advising and taking instructions and applying for extension of time for review in the Supreme Court was to frustrate and delay the recount of votes fell short of establishing the requisite intention to flout the orders.

20.	For these reasons, I am not satisfied that the remaining charges against each contemnor have been proved beyond reasonable doubt.  They are, accordingly, dismissed.

Costs

21.	The contemnors seek costs on solicitor/client basis on the ground that the petitioner has pursued these proceedings in bad faith, in that, what he was really after was to have the Court declare him as the duly elected member in the by-election.  In my view, pursuing this case on this ground does not prove that the petitioner acted with malice or bad faith.  However, it was clearly a misconceived ground.  For this reason, I will award costs on part/party basis.

Order

22.	The orders are:

1.	The first charge against Sir Andrew Trawen (Late) that he failed to ensure that the Returning Officer completed the recount of votes in accordance with the Court Orders of 6th and 12th August 2014 is dismissed.

2.	The second charge against Sir Andrew Trawen (Late) that he failed to provide adequate supervision and coordination of the recount of votes to complete it on time is dismissed.

3.	The final charge against Sir Andrew Trawen (Late) that he did not give correct instructions to his lawyers.  Firstly, when the time had lapsed to file a review, he should not have instructed them to apply for extension of time.  Secondly, when the lawyers applied for extension of time, it was to procrastinate and delay the recount of votes is dismissed.
4.	The first charge against Mr. Simon Sinai that he did not include and count ballot-papers including 6,116 marked ballot-papers found at the grave yard on the night of 18th December 2013 as ordered by the Court on 6th and 12th August 2014 is dismissed.

5.	The second charge against Mr. Simon Sinai that he relied on electoral materials not considered and discarded by the Court during the trial is dismissed.

6.	The third charge against Mr. Simon Sinai that he introduced and applied new rules in relation to the conduct of recount of votes which did not form part of the scrutiny process under the Organic Law is dismissed.

7.	The fourth charge against Mr. Simon Sinai that he did not comply with the Court Order of 6th August 2014 and publicly ridiculed its existence and effect, thus showing no respect to the Court system is dismissed.
	
8.	The final charge against Mr. Simon Sinai that he delayed and procrastinate the recount of votes and the furnishing of result to the Court is dismissed.

9.	The first charge against Mr. Harvey Nii that he did not provide appropriate advice to count all ballot-papers including 6,116 marked ballot-papers is dismissed.

10.	The second charge against Mr. Harvey Nii that he did not ensure that any ambiguity in the terms of the Court Orders of 6th and 14th August 2014 were resolved without delay is dismissed.

11.	The third charge against Mr. Harvey Nii that he did not make applications for extension of time within a reasonable time and in a timely manner to bring the recount of votes to finality and presentation of the result to the Court is dismissed.

12.	The final charge against Mr. Harvey Nii that instead of applying to extend time to complete the recount of votes in the National Court, he applied to the Supreme Court which caused a lot of delay and costs to the parties is dismissed.

13.	The petitioner shall pay the costs of the contemnors on a party/party basis, to be taxed, if not agreed.	

Lomai & Lomai Attorneys:	Lawyers for Applicant/Petitioner
Harvey Nii Lawyers:		Lawyers for Contemnors