Unreported Supreme Court Decisions
SC633
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR NO. 8 OF 1999 & SCR NO. 13 OF 1999
IN THE MATTER OF: REVIEW PURSUANT TO SECTION 155(2)(B) OF THE CONSTITUTION
AND IN THE MATTER OF: ORGANIC LAW ON NATIONAL & LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF: A DISPUTED RETURN IN THE ELECTION FOR THE KAIRUKU-HIRI OPEN ELECTORATE IN THE CENTRAL PROVINCE
BETWEEN: CHARLES MAINO
APPELLANT
AND: MOI AVEI
FIRST RESPONDENT
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
SECOND RESPONDENT
Waigani
Los Sheehan Injia JJ
26 October  1999
5 May 2000
9 May 2000
Counsel
S. Kassman for Sir Charles Maino
G. Sheppard for Moi Avei
J. Nonggorr for the Electoral Commission
9 May 2000
LOS INJIA JJ:  These are two applications for judicial review made pursuant to S.155(2)(b) of the Constitution and they arise from the decision of the National Court in election petition EP No. 64 of 1997.  In the first review, in SC Rev. No. 8 of 1999, the applicant (Sir Charles) is seeking a review of the National Court decision made on 28 December 1998 where in the Court dismissed his election petition.  This decision was made following a recount of votes conducted on 9 November 1998 pursuant to an earlier Court Order made by the same Court on 6 May 1998.  The Court proceedings which resulted in the order of 6 May 1998 are not the subject of this review.  In the second review in SCR 13 of 1999, the Electoral Commission (“the Commission”) is seeking a review of the National Court decision to award costs to Sir Charles as against the Commission on 28 December 1998 in relation to the whole proceedings in EP No. 64/97.  We wish to first deal with SCR 8/99.
(A) SCR 8/99
The short facts of SCR 8/99 are that, in the 1997 general elections, on 3 July 1997, the result of the election for the Kairuku-Hiri Open electorate in the National Parliament was declared.  The First Respondent (Mr. Avei) won that election with 5,112 votes and Sir Charles was the runner up with 5,048 votes, a difference of 64 votes.  Sir Charles challenged the result of the election in election petition No. EP 64/97 filed in the National Court at Waigani under provisions of the Organic Law on National and Local Level Government Elections 1996 (hereinafter abbreviated OLNE).  The petition was tried by the National Court in 1998 between March 10 - 13 and 17 - 26.  The trial was conducted on allegations of illegal practices, irregularities, errors and omissions levelled against the Commission only which were set out in clauses 8 - 10.1 of the said petition.  On 6 may 1998, the Court handed down its decision.  The judge found certain “circumstances of irregularities, some of which amounted to punishable offences and illegal practices are such serious circumstances of irregularities, acts and omissions by electoral officials as amounting to such grounds which in our discretion pursuant to Section 212(3), we consider just and sufficient that we should exercise the Court’s power under this subsection and in particular pursuant to section 213(1)(d) to order a recount of all ballot papers in the election in this electorate”.  The result of the recount were then to be submitted to the Court for a final judgment on the whole petition.
It is important to summarise the findings of illegal practices, etc. which warranted an order for a re-count.  These are set out in the court’s written judgment as follows:
1.       Clause 8.3 of the Petition:  Presiding Officer failed to initial the back of some 14 ballot papers in Counts 1 - 7 of Polling Team No. 1 and rendered informal.  These 14 votes were genuine votes belonging to the petitioner.
2.       Ground 9.2 of the Petition:  Counting process was quite fast, not allowing adequate time for scrutiny of ballot papers resulting in evidence of a number of instances of informal ballot papers being placed in some candidates’ trays or in the wrong trays.
3.       Ground 10 of the Petition:  Electoral officials tempered with electoral records both during the polling and counting.  These practices were “flagrantly unlawful and irregular”.
I quote the Court’s judgment in respect to Ground 10 in full.
“This ground also alleges discrepancies both at the polling and more particularly during the counting.  The Petitioner produced tables and schedules of voting tallies taken by his own scrutineers and election team to demonstrate differences and discrepancies in the number of ballot papers used at the polling and those that were counted at the counting of votes.  Also after examination of the official returns; Forms EC 507, EC 510, and EC 602 that were tendered by the Second Respondent’s officers, it was submitted they demonstrated substantial discrepancies in the figures.  Evidence was adduced from the Electoral Officials who gave evidence that some of the forms had been corrected by correction fluid to change the original figures and also some of the votes marked in the sex tally sheets had been erased.
“In particular the Assistance Presiding Officer of Team 2, George Keru gave frank evidence of a systematic exercise of reconciling figures in the sex tally sheets and the Presiding Officer’s Return of Voters and Ballot Papers, EC Form 510 after the polling each day.  This was an honest explanation of what appeared to the Polling Officials to be an important matter, the need to ensure that the ballot papers used and that remaining at the end of each day’s polling place.  Unfortunately, with good intentions though this practice may have been, it was flagrantly unlawful and irregular.  It is fundamentally unlawful to tamper with what was recorded as being the number of votes cast at a particular polling place.
“Also there was physical evidence and oral evidence from other electoral officials attempting to reconcile and tally up the different figures on the face of the different electoral forms.  There was evidence of presiding officer Kevin Unobo who attended at the Electoral Commission Office in Boroko with the permission of a senior officer Mr. Veri to obtain access to polling documents for Team 5 to cross-check figures in those returns after the Petition had been filed.
This sufficiently demonstrates serious and substantial irregularities by Electoral Officials in the conduct of the Elections.”
On 9 November 1998, the re-count was held in Port Moresby under the supervision of the Registrar of the National Court.  In the intervening period between the original count on 3/7/97 and the re-count on 9/11/98, the ballot boxes containing the ballot papers were stored in a locked container kept at the Bereina Police Station.  On 6 May, 1998 the National Court at Waigani ordered a re-count.  On 8 May, 1998 the container was transported to Port Moresby for the recount.  In Port Moresby, between 8/5/98 - 15/5/98, the container was kept at the Central Provincial Police Headquarters in Port Moresby before it was transported to the National Court at Waigani.  Between 9 - 12 November 1998, the re-count was conducted.  Before these results were presented to the Court for a final determination, between 2 November 26 and December 11, 1998 Sir Charles filed four affidavits which suggested that the container and the ballot boxes inside the container and ballot papers therein had been tampered with by someone, and that the result of the re-count was tainted by further illegal practices, irregularities or errors and omissions perpetrated by electoral officials, the principal suspect being the Returning Officer, Mr. Chris Oasora.  It is the manner in which the Count treated these evidence, which is the main ground in this review.
The four affidavits filed by Sir Charles were the affidavits of Central Provincial Police Commander, Acting Chief Inspector Fred Yakasa sworn on 25/11/98, affidavit of Police Constable Eno Daera sworn on 26/11/98, and affidavit of Sir Charles sworn on 11/2/98.  The sum effect of the evidence deposed to in the affidavits of Messrs. Yakasa, Aikelave and Daera showed that Mr. Yakasa took up his appointment as the new Central Provincial Police Commander at Bereina on 23/12/97.  At the police station was kept the container containing the completed ballot boxes for the Kairuku Hiri Open electorate.  It was never explained to Insp. Yakasa by his predecessor when the former assumed his responsibilities that the container contained the said ballot boxes.  Insp. Yakasa was under the impression that it was used to store relief supplies for Bereina and that it so contained such relief supplies.  The keys to the container were supposed to be with Bereina police at that time.  On 7/5/98, the day following the Court Order for a re-count, Insp. Yakasa received a note that the District Administrator and Returning Officer Mr. Chris Oasora wanted the keys to the container.  Thinking the District Administrator wanted the keys to get relief supplies, Insp. Yakasa arranged for the keys to be brought to him by Constable Aikelave.  But keys were then not kept at the police station.  They were with the Provincial Disaster Co-ordinator, Mr. Henao Tete, who lived at the Kaugere Hiri Ward Council compound.  On 8/5/98, Constable Aikelave got the keys from Mr. Tete and he gave them to Insp. Yakasa who then gave the keys to Bereina Police Station commander, Senior Inspector Dabiri to pass them onto Mr. Oasora which the latter he did.  Few days later, the National Court Staff came and transported the container to Port Moresby without the container keys, which were in Mr. Oasora’s possession.  During the re-count, Mr. Oasora admitted to Mr. Daera and Sir Charles that he had all the keys to the ballot boxes “in a box in my office” from the date of the original count to the date of re-count.  At the re-count, Mr. Daera observed several altered features since the last count.  These were raised as objections at the re-count.
They are:
1.       Ballot Boxes for teams 1 - 6, and 3 boxes for Team 7 when opened, the ballot papers were “bundled together and not in 10”  as he was led to believe by his scrutineers when they attended the counting at Gordons Police Barracks on his behalf. 
2.       In ballot boxes for team 1- 6, he “was surprised to notice that a lot of informal with double x's (2 x's) belong to Sir Charles. 
3.       Ballot boxes for Team 9 and Team 10 when opened, were neatly rolled in 10s and “looked fresh and new.
Sir Charles in his affidavit confirms the above anomalies observed by Mr. Daera and further goes on to state the following altered features.  These were raised at the re-count in the form of objections by Sir Charles:
(1)      A total of 19 ballot papers of his were made informal because of “X's or 2 X's”; 
(2)      1 vote disappeared from Count 14; 
(3)      Provincial ballot papers for Team 2 - 6 were neatly bundled in 10s but not the ballot papers for the open electorate, 
(4)      4 ballot boxes for team 2 from Count 8 - 21 and 5 ballot boxes for team 3 Count 22 - 26 did not have locks but only tags, 
(5)      Ballot papers for Teams 9 and 10 “looked fresh and new”, 
(6)      Count 114 ballot box had 2 locks.  The ballot papers in them “were really fresh and new” and neatly rolled in 10x and clearly labelled, 
(7)      The butts for the ballot papers used at the re-count were requested to be produced by the lawyer for the 1st respondent but the Commission failed to produce them; 
(8)      On 14/5/98, an inspection by Sir Charles in the company of the Registrar of the National Court, of the container kept at Central Provincial Police Headquarters at Port Moresby revealed that one of the two locks to the container and the wax seals at the tope and bottom were broken.  Photographs of these were taken by the Registrar.
The final result of the re-count was that the first respondent still became the winner with 5,105 votes whilst Sir Charles was still the runner up with 5,029 votes, a difference of 76 votes compared with the original difference of 64 votes.  The number of informal votes increased by a further 79 votes, making the total of informal votes for the election at 453.  Of these, 16 informal votes were for Sir Charles and 8 informal were for Mr. Avei.  Also Mr. Avei scored 8 more votes and Sir Charles scored 7 more votes.
At the Court hearing on 14/12/98 after the re-count, counsel for Sir Charles, Mr. S. Kassman without first seeking to formally tender the said four affidavits into evidence, made submissions on the basis of the affidavit evidence already filed.  At that stage, counsel for the respondents Mr. G. Shepherd for Mr. Avei and Prof. J. Nonggor for the Commission did not object to the admissibility of these affidavits.  The judge then extracted these affidavits from the Court file and presumably read them as submission were being made by Mr. Steven.  At the conclusion of Mr. Steven’s submissions, counsel for the respondents raised objections as to the admissibility of these affidavits on various grounds including inadequate preparation time given to them to counter the evidence.  Without first seeking a ruling from the bench on the issue of admissibility, the respondents counsel then made submission on the value and weight to be attached to the contents of those affidavits.  The Court addressed both issues of admissibility of the affidavits and their value and weight in his judgment delivered on 28/12/98.  We set out in full the relevant text of the Court’s judgment:
“The results of the recount have demonstrated that the decision to order a recount was justified.  The recount conducted under more careful scrutiny had demonstrated considerable discrepancies in most of the final figures.  In particular, the number of informal votes increased significantly by some 74 votes.  The positions of the petitioner and the first respondent however did not change.  The difference of votes between them increased in fact by 12 votes from 64 to 76 in the first respondent’s favour.  The petitioner had not challenged the accuracy or the validity of the recount figures except on the basis of the allegations of tampering with some of the ballot boxes and some of the ballot papers by Electoral officials.
“The basis upon which the petitioner has challenged the validity of these recount figures, we cannot accept.  The allegations made by affidavit as to the possible tampering with ballot boxes and thus ballot papers remain merely that.  The allegations remain suspicious and speculations and nothing more.  The procedure is normal and without precedent.  They have not been subjected to the conventional method of cross examination upon the basis of which submissions could be made for the tribunal of fact to make findings of facts.  The additional submission that ballot boxes were opened and ballot papers tampered with and that new ballot papers were inserted, also we are not prepared to accept.  There remain more suspicions and speculations without proof.
“I dismiss therefore the allegations made by the petitioner as being without proof.  I should say however that even if they were to have been proven, they would not result in the declaration sought by the petitioner.  They would result in the original count figures not being able to be tested or challenged.  These kinds of allegations and issues seen from that perspective would seem to be irrelevant to the outcome of a recount.  I would receive the recounted figures as presented.
“The remaining issue whether these recount figures and the result could possibly be affected by the figures of the informal votes, the issue as raised by the petitioner as to perceived or apparent discrepancies which is not a discrepancy at all.  The speculation ignores the fact that ballot papers can be and have in fact been issued in different lots out of sequential numbering.
“In the end result, I do not consider that the different categories of the informal ballot papers that have been scrutinised and returned to me affected the result of the election.  I agree with the submissions for the respondents that if the number of informal ballot papers that did not contain  the authenticating signature of the presiding officer exceeded 76 being the difference between the first respondent and the petitioner upon the recount and the number that were cast in favour of the petitioner also to have exceeded 76, then the issue arises as to whether the result of the election was affected as a result of the irregularities by the Electoral officials in not so authenticating the ballot papers pursuant to section 218(1) of the Organic Law.  That is that the result of the election was affected by the irregularities.  This is not the case here because the number of ballot papers declared informal on this basis were only 50.
“The petition did establish that there were significant discrepancies and irregularities committed on the part of electoral officials.  Ultimately, there were not sufficient to affect the results of the election but they were sufficiently serious to have resulted in a recount as I ordered and as indeed confirmed by the recount returns.”
At the outset, we say that the Court’s findings of irregularities in relation to Clauses 8.3, 9.2 and 10 of the petition on 6 May, 1988 which justified an order for a recount, as well as the irregularities contained in the four affidavits filed by the applicant after the re-count, fall under the category of “errors or omissions” committed by electoral officers under OLNE S.218(1), the test for voiding an election of which is that the errors and omissions “did affect the result of the election: Louis Ambane v. Electoral Commission & Others Unreported Supreme Court Judgment SC 559 dated 5 October 1998.  None of these proven irregularities fall into the category of illegal practices under OLNE, S.215(3), the test for voiding an election of which is that the “the result of the election was likely to be affected.”  For offences which fall into the category of illegal practices: see Dick Mune v. Anderson Agiru & Others Unreported Supreme Court judgment No. SC 590 dated 17 February 1998.    
A procedural  issue arises as to whether the Court erred in not ruling upon the admissibility of the four affidavits objected to and proceeding to assess the value and weight of the evidence contained therein.  If the Court had ruled in favour of the objection, then the affidavits would have been excluded from the proceedings or tendered through the deponents and opportunity given to the respondents to cross-examine the deponents.  All parties in this review appear to agree that the Court did not determine the issue of admissibility separately as a preliminary procedural point.  Mr. Kassman did not rely much on this point in his submissions Counsel for the respondents.  In fact the respondents did any injustice caused to them by this procedural irregularity.  We do not consider this issue to be an important and determinative issue in this review, particularly in view of S.217 of the OLNE which provides that the “National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not”.  The effect of this position then is that the evidence in those affidavits stood unchallenged and were evidence before the Court for the Court to assess their value and weight and make findings of fact.  And that is how the Court proceeded to deal with the unchallenged evidence.
The important issue is whether the irregularities established by the evidence contained in the affidavits, support the finding by the trial judge that the said errors and omissions did not affect the result of the election.  Counsel for the respondents, Mr. Shepherd and Prof. Nonggor submit that the evidence at the highest amounted to nothing more than mere suspicion and speculation that the votes may have been tampered with to the detriment of the petitioner.  They submit the totality of the new evidence fail to show that the result of the re-count was actually affected.  Mr. Kassman for the petitioner submits that the uncontested evidence from those four affidavits established that the integrity of the ballot boxes re-counted were in serious question as a result of the conduct of electoral officials and the vote tally on re-count cannot be trusted as a valid re-count and the election should be declared void and a new election should be ordered. 
The effect of the irregularities committed by electoral officers in this particular election at different critical stages of the election process associated with the determination of the result of the election, namely those committed after the initial count but before the re-count, cannot be considered in isolation to the irregularities committed by electoral officials during the initial count which were considered by the Court to be quite systematic, substantial and serious enough to order a re-count of the ballot papers.  The trial judge described those irregularities in the strongest possible terms in such phrases like “circumstances of irregularities some of which amounted to punishable offences and illegal practices” or “fragrantly unlawful”.
In the period between the original count and the hearing of the petition resulting in the Court Order for a re-count, the evidence in the affidavit is that the counted ballot papers were kept in a locked container parked at Bereina Police Station whilst the keys to the ballot boxes were kept by Mr. Oasora.  Other people had access to the interior of the container in this period because it was also used to store disaster relief supplies for use in the Bereina District. Bereina police were expected to have the keys to the container at all times.  The outgoing Police Station Commander did not inform the incoming Commander Inspector Yakasa the container contained the counted ballot boxes and the whereabouts of the keys to the container.  So when Mr. Yakasa enquired of the container keys to be given to the Returning Officer, the keys were not kept at the police station.  So Constable Aikelave had to search for the keys out of bounds of the police station and obtained them from Mr. Tete at his residence.  Questions arise as to how the keys to the container ended up in the hands of  Mr. Tete and not with Bereina police.  Questions arise as to why Mr. Oasora had the keys to the ballot boxes but not the container keys as one would expect.  And questions arise on to how Mr. Oasora as the Principal District Manager responsible for administration of the District’s affairs including administration of disaster relief supplies did not know of the whereabouts of the keys to the container held by other people such as his subordinate Mr. Tete.  And questions arise as to how the container was used for storing relief supplies without posing any security risk to the ballot boxes inside.  When the container was taken to Port Moresby, and upon inspection by Sir Charles in the presence of the Registrar of the National Court, the top and bottom seals of the container were noticed to be broken.  That confirmed the evidence that the container was opened and used for storing relief supplies or for other purposes and that other people had access to the interior of the container.  At the re-count, in the face of claims by Sir Charles of fresh ballot papers being substituted for genuine ballot papers, lawyer for Mr. Avei asked the Commission to produce the butts for the ballot papers used in the election to discount Sir Charles’ claims.  These were never produced by the Commission.
Although we accept that a few of the instances of irregularities pointed out in the four affidavits which we have set out clearly lack substance, we conclude from the evidence outlined above that these errors and omissions committed by the electoral officers, when viewed against the backdrop of serious irregularities committed by electoral officials as found by the judge which justified a recount, that they raise serious questions concerning the integrity of the ballot papers which were re-counted and the final vote tallies arrived at.
We accept that these errors and omissions were attributed to the electoral officers, principally the Returning Officer, Mr. Oasora.  These irregularities, on their own are serious irregularities which shed doubt on the integrity of the entire votes contained in the container, which were re-counted.  They were a perpetual extension of the proven systematic and substantial irregularities committed by electoral officers, which necessitated an order for a re-count in the first place.  In the circumstances, we conclude that the irregularities perpetrated by electoral officers both during and after the original counting but before the recount were systematically perpetrated, so much so that the integrity of the entire ballot papers counted at the re-count were seriously called into question.
The preservation of the integrity of the Commission’s independent constitutional function to administer an election under the OLNE as mandated by the Constitution is fundamental to the conduct of a fair and open election in a democracy.  Electoral Officers engaged by the Commission to conduct an election must not engage in any activities which may call into question the constitutional independence and integrity of the Commission.  In a case where the election’s  scrutiny and counting process is flawed with proven systematic and substantial irregularities perpetuated by electoral officials, then the result of the election arrived at through a flawed electoral process cannot be said to be fair, open and democratic and therefore valid.  In such cases, it is open to the Court to conclude that these errors and omissions “did affect the result of the election” within the meaning of OLNE, s.218(1).  
In determining whether errors and omissions committed by electoral officers “did affect the result of the election”, it is imperative that the Court should determine this issue in accordance with the “substantial merits and good conscience of each case” as mandated by OLNE, s.217.  In a case where the integrity of the vote cast in an election is not in issue and it becomes only a matter of votes in figures, as in Ambane’s case, then the issue may be appropriately determined with reference to the number of votes which affected the result of the election.  In a case where the integrity of the whole or some critical phase of the electoral process in an election is in question such as in the present case, then the issue is more appropriately determined without reference to the number of votes affected.  The question then becomes whether in all the circumstances the result of the election was arrived at through an electoral process, which was fair, open and democratic, and such that it can be reasonably concluded that the “result of the election” as a whole was in fact affected.  
In the present case, we conclude that the Court erred in the exercise of its discretion under s.218(1) in not voiding the election, and ordering a by-election, in the face proven substantial irregularities systematically committed by electoral officers in the original count which justified an order for a re-count and continued in succession before and during the re-count.  In our view, it is unconscionable and an insult to the principle of fairness and equity that a Court should allow an election tainted with proven substantial irregularities and seriously questionable election process to remain valid.  
It is true that the first respondent played no part in the irregularities, errors and omissions perpetrated by electoral officials and should not be made to suffer the loss of his position.  But that is a natural consequence of this decision as provided for in the OLNE.  Therefore, we are of the opinion that there are cogent and convincing reasons and exceptional circumstances why this Court should grant the review in accordance with the principles on judicial review under S.155(2)(b) of the Constitution laid down in many cases by this Court.  We grant the review, declare the election for Kairuku-Hiri Open in the 1997 general elections invalid and order a by-election.  Costs of this application is awarded to the respondents as against the Commission.
The parties in particular Mr. Shepherd in his submissions raised other procedural matters but we do not think they are significant issues, which require separate deliberation.
B) SC REV. 13/99
BY THE COURT:  In relation to the application for review on award of costs, at the conclusion of the trial on 28/12/99, the judge ruled that the petitioner’s costs and the First respondent’s costs be paid by the Commission.  The pertinent part of the Court’s judgment dated 12/12/99 states:
Finally, in relation to costs.  In the judgment after trial I granted costs of the trial to the Petitioner and ordered a refund of his deposit of K2,500.00.  My judgment has not changed inspite of the fact the petition has been dismissed.
The petition did establish that there were significant discrepancies and irregularities committed on the part of electoral officials.  Ultimately they were not sufficient to affect the result of the election, but they were sufficiently serious to have resulted in a recount as indeed confirmed by the recount returns.
In these circumstances I accept the submissions for the First Respondent that its costs should be borne by the Second Respondent the Electoral Commission.  It was the irregularities on the part of electoral officials that resulted in this petition.
I therefore confirm and make the following orders as to costs in the whole petition trial including the recount process:
1.       The Petitioner’s and the First Respondents costs of the trial including the recount and the further recount of the informal votes are to be borne by the Second Respondent, the Electoral Commission. 
2.       The Petitioner’s deposit of K2,500.00 is to be refunded to him.”
In this application, although the application only refers to the judgment on costs of 28/12/99, it also seeks to review the order for costs of the original trial.
The general power to award costs in an election petition is conferred on the National Court by OLNE S.212(1)(j) and more specifically by OLNE s.223 which gives the National Court a discretion to award costs “against an unsuccessful party to a petition.”  Section 223 embodies the general principle in civil proceedings that costs are normally awarded to a successful party except where it appears to the National Court that some other order should be made to the whole or part of the costs (National Court Rules, O22 r11) depending on how success of one’s case is measured by the Court on the whole or a part of the case:  see Pinzger v. Bougainville Copper Ltd. [1985] PNGLR 160 at 177 - 178, Fraser & Fraser v. Angco Pty. Ltd. [1977] PNGLR 143, both cited by Prof. J. Nonggor in his submissions.
Generally speaking, the issue of costs upon judgment on the substantive hearing is usually determined at the end of the case, at the time of final judgement.  But in the present case, the issue of costs was determined at two levels.  First, upon judgment after the initial trial, the Court awarded costs of the trial to the Petitioner, because at that stage, one must say that the Petitioner was a successful party in achieving one of the principal relief he claimed in the petition, i.e. a re-count.  At that stage, the petitioner was a successful party.  We see no error in the exercise of the Court’s discretion here because the allegations which were proven and which necessitated the re-count were the makings the Commission’s officers.  The first respondent was not a party to the proven allegations so no costs could be awarded against him.  Secondly, costs on the re-count and further re-count was a separate matter.  Here the Commission succeeded as to the final outcome of the re-count but not without some strong criticism from the Court as to considerable or significant discrepancies committed by electoral officials.  For the Commission’s part, the Court awarded the whole of the costs on the re-count and further re-count to the petitioner despite the fact that the Commission had been successful in defending the outcome of the election result.  But now, the outcome of this present review has altered the position of the parties.  The applicant has become the eventual successful party in this review.  Therefore, the Commission will have to pay the applicant’s costs of this review and the costs of the proceedings of National Court on the recount, which led to this review.  For these reasons, we would dismiss the application for review.
SHEEHAN J:  These two applications for judicial review arise from an election petition in respect of the Hiri Kairuku Open Electorate.  In the first, SCA 8 of 1999 the Petitioner seeks to review of the decision of the National Court challenging the results of the election in 1997 and in particular challenging that Courts decision following a recount of votes that no reason was disclosed to overturn the election of the First Respondent as Member of Parliament for the Kairuku Hiri Open Electorate.  The Second matter is the application of the Electoral Commission as 2nd Respondent challenging the National Court Order as to costs in that Petition.
Section 220 of the Organic Law on National and Local Level Government Elections gives exclusive jurisdiction to the National Court for the determination of Election Petitions.  No appeal arises from that jurisdiction, but that does not exclude this Court’s supervisory jurisdiction by way of judicial review.  As was pointed out in the previous decision of this Court between the parties Avei v Manio & Or SC 584 Judicial Review is not a substitute form of appeal.  An appeal involves rehearing of the trial issues and the appeal court may in such case make its own assessments of the evidence and accept or reject the conclusions of the trial Court.  In Judicial Review only the decision making process may be reviewed.  In relation to election petitions that means the only challenge that may be entertained by this Court on review are contentions that the National Court decision was made in excess of jurisdiction, that is the decision was not one that the National Court was entitled to make.
There may be review of contentions that a decision is flawed because there is an error on the face of the record, that the record discloses plain error of fact or law.     There may be review of claims that the parties were not given a fair hearing, and there may be challenge that the decision was so unreasonable that no Court could validly come to such a conclusion.   
The grounds of this review do not stipulates any such grounds.  There has been no assertion that the Court acted outside the jurisdiction accorded it by the Organic Law on National and Local Level Government Elections, no contention that the petitioner did not get a fair hearing, no claim of error on the fact of record; only that the petitioner disagrees with the National Court findings.
This application is in fact pleaded as if an appeal, citing as grounds that the decision is against the weight of the evidence and that there have been errors in the National Court’s exercise of discretion in its consideration of that evidence.
The contention of the Petitioner in this Court in respect of the petition and particularly in regard to the additional affidavit material filed following the recount have all been advanced in support of those pleadings of appeal with the view that the Court should overturn the National Court findings.
It is a basic tenet of judicial review that the findings of fact within jurisdiction of any tribunal statutorily empowered to decide, cannot be interfered with unless challengeable on any of grounds already cited.  It is worth repeating what this Court said in the prior review SC 584:
“It is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointment to determine the matters in question.  It is not intended to take away from those authorities the powers and discretion properly vested in them by law and substituted this Court as the decision maker.   As Lord Brightman stated in R v Hillingdon London BC exp. Pulhofer 1986 AC 484.
Where the existence or non existence  of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely”. 
The nearest this application may be said to come to within the scope of judicial review is that it basically claims the decision of the National Court was perverse, that is that it was unreasonable.  The issue therefore is was the National Court decision so unreasonable that no court could justify such a decision.
The National Court found on the hearing the petition that there had indeed been serious errors and omissions on the part of the Electoral Commission officials warranting a recount of the votes cast.   The Court determined in accordance with s. 218 of the OLNLLE to ascertain whether the errors or omissions did in fact effect the result of the election.
The recount brought no change of result but the Petitioner in further affidavit evidence alleged new irregularities on the part of the Commission during the storage of ballots following the election and up to the time of the recount.  The Petitioner commenced with the assertion that the shipping container in which the boxes were stored after the election had in fact been opened.  While no evidence was offered that the ballot boxes themselves had been opened and stuffed the Petitioner sought the conclusion that they must have been tampered with, based on the other assertions made in respect of the votes found at the recount.  These included the allegations that a lot of votes in favour of the Petitioner had been marked informal, that some votes looked “fresh and new” and that some nine ballot boxes did not have locks only tags.
The obligation to establish facts always that remains with the Petitioner and it is insufficient to simply make allegations or raise questions without evidence to prove those assertions or without evidence which leaves those questions hanging unanswered.  In such circumstances could it be said the decision of the National Court was patently unreasonable.  Because the National Court was the fact finding tribunal which was required to be satisfied on facts and guided by the substantial merits and good conscience of the case, a decision that the complaints raised amounted to no more than unproven suspicions was reasonable and one clearly open to the Court.
In the circumstances I would dismiss the application with costs in favour of the Respondents.
SCR 13/99
As for the 2nd Respondent’s application for review on the award of costs against it prior to the order of recount, there again I find no fault in the National Court ruling and would dismiss that application for review also.
Lawyer for the Applicant: White & Kassman Lawyers
Lawyer for the First Respondent: Maladina Lawyers
Lawyer for the Second Respondent: Nonggor & Associates