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 five proposed grounds of review but they raise two main issues. First is whether the trial judge properly exercised his discretion in rejecting the evidence of the applicant's witnesses. The second issue is whether the trial judge properly rejected the evidence of the Form 66B.

Applicant's Submissions

10.	In submissions, Mr Ame of counsel for the applicant addressed both issues together by submitting that the error by the trial judge is that he failed to accept credible evidence put forward by the applicant during the second power black-out where a total of 400 exhausted ballot-papers were added to the second respondent's tray and counted with the live ballot-papers. If the 400 exhausted ballot-papers were removed, it will affect the winning margin of 170 votes. 

11.	The evidence was corroborated by the figures for the total allowable ballot-papers recorded on Form 66B because the figures did not balance or correspond to each other. The figures in Form 66B appeared to have been altered and the addition was not properly done. As a result, a deficit of 320 votes was recorded.

12.	Mr Ame submitted that the trial judge failed to adequately address the discrepancy in the evidence or offer an explanation for such discrepancy for occurring. The discrepancy supports the applicant's contention that 400 exhausted ballot-papers were placed in the second respondent's tray and counted because as the winning margin was 170 votes, the number of votes affected by the discrepancy, namely 400 was sufficient to affect the result of the election under s. 218(1) of the Organic Law on Elections. 

13.	The trial judge's failure to adequately address the discrepancy or did not have a reasonable explanation for the inconsistency further supports the applicant's contention that the respondents' evidence was unreliable and should have been rejected. As the Supreme Court held in Peter Wararu Waranaka -v- Gabriel Dusava (2009) SC890, "....... unless any inconsistencies are properly and reasonably explained and are insignificant, inconsistencies can form the foundation to find the evidence unreliable." 

14.	Mr Ame went on to submit that the trial judge was wrong to reject the evidence of Form 66B because it raised a separate and distinct issue which amounted to an additional ground and not pleaded. For this reason, it could not be raised and considered by the Court. Relying on Paias Wingti -v- Tom Olga & Electoral Commission (2008) N3286 and Tom Olga -v- Paias Wingti & Electoral Commission (2008) SC938, he submitted that the discrepancies in the figures in Form 66B were factual issues which were "incidental to a determination of the express grounds in the petition" and should have been accepted and considered by the trial judge. 

Respondents' Submissions

15.	As for the respondents, in a detailed written submission, Mr Kombri of counsel for the second respondent with Mr Kepo of counsel for the first respondent defended the trial judge's decision. First, they opposed leave by objecting to the application for want of form. They drew the Court's attention to the wording of the application document on the title page which stated as "PART XV111" instead of "PART XVIII" and submitted that this was in breach of the requirements of the Supreme Court Rules on review of election petitions. As the Court has held that the requirements of the Organic Law on Elections and the Rules must be strictly complied with and that the wording of the application is not in accordance with the Organic Law on Elections, the application is incompetent and must be dismissed. 

16.	For this submission, Mr Ame submitted in response that it is not open to the respondents to object to the competency of the application because their objection was previously dismissed for want of prosecution and for this reason, it is a dead issue. 

17.	In their alternative submissions, counsel submitted that the proposed grounds challenge the trial judge's assessment of the evidence because there were two versions of events that occurred on the night of the counting at the counting centre on 28th July 2012. They submitted that the applicant did not identify where the trial judge erred in his assessment of the evidence. They added that it is not the responsibility of the Court and the respondents to work out the alleged error by the trial judge. To simply contend that the trial judge rejected the evidence of the applicant and his witnesses and accepted the evidence of the respondents because the applicant's witnesses' evidence was unreliable is not sufficient. Conversely, while the trial judge stated that there were some inconsistencies in the respondents' witnesses' evidence, they were insignificant because they "go to mere details while the essentials of the respondents' case are the same."

Competency of Application

18.	Addressing first the respondents' objection to competency, I accept the submission that the respondents' objection was previously dismissed for want of prosecution. But that does not mean that its' merits has been decided. It is still alive and therefore, it is open to the applicant to raise it again. While there is no written objection filed and served, the issue of competency is one that can be raised at any time. For these reasons, I will consider it. 

19.	I accept that the submission that strict compliance with the Organic Law on Elections and the Rules are mandatory and a failure to comply with them may result in the dismissal of the application. In this instance, notwithstanding that the wording of PART XVIII has figures "111", instead of Roman numeral "III", it is plain and clear to me that the applicant intended to move the application pursuant to PART "18" (English Version) of the Organic Law on Elections. The respondents do not say that they are confused about the jurisdictional basis of the application nor have they shown that they have been prejudiced in their defence by reason of a "wrong" law being cited. Certainly, the Court has not been misled or confused by the citation in the title of the application. Even then, this is not a case where the relevant law on the jurisdiction has not been pleaded. It has been pleaded and it suffices. I find this objection mischievous and dismiss it.

Merits of Application

20.	As to the merits of the application, the onus of proof was on the applicant to prove the allegation and not on the respondents. Given that there were two versions of events at the counting centre on the night of 28th July 2012, the trial judge was obliged to decide whose version to accept. In a case where there are two different versions of an event or events before a trial Court, a trial judge is entitled to assess the evidence of witnesses based on demeanour, logic and common sense and inconsistencies in the evidence and make appropriate findings of fact. In this case, after assessing the evidence of both sides, the trial judge preferred the respondents' version and found that the applicant failed to prove the allegation of errors and omissions during counting. 

21.	The applicant called Simon Gigmai, Alois Arba and Tony Tetor as witnesses. They said that they saw a counting official named Aina Jamoa pick up 400 exhausted ballot-papers and counted them with the second respondent's live ballot papers. This happened during one of the power black-outs. Their evidence was not logical and did not make sense because firstly, none of the witnesses immediately reported the error to the Returning Officer or to the applicant. Secondly, there were 400 ballot-papers and surely there would have been a huge pile of papers to carry from one location to the other in the counting centre and everyone at the counting centre would have seen it. Certainly, it would have attracted a lot of complaints and objections from counting officials and scrutineers of other candidates, especially if it had occurred in full view of the counting officials and scrutineers; counting was nearing its end, final results announced and a declaration was expected. I am unable to see how the trial judge went wrong with his assessment of the evidence here. 

22.	The other evidence came from the applicant and Anton Molki. They said that Aina Jamoa had informed them on the morning of 28th July 2012 that there was a plan in place to manipulate the ballot-papers to increase the second respondent's votes. If the applicant paid him some money, he would similarly assist him. The applicant did not because he had exhausted his funds. Although the applicant wrote to the Returning Officer requesting a re-check of the counting at Exclusion No. 47, it was not based on the manipulation of the ballot-papers by Aina Jamoa but the late ending of the counting and power black-out and he doubted the accuracy of the counting. Certainly, there were some inconsistencies in the evidence, and they were significant because each version had a different reason for the complaint about the counting at Exclusion No. 47. 

 23.	The other inconsistency which undermined the credibility of the witnesses was Tony Tetor's claim that he was a duly approved "independent observer" and "a third year law student at UPNG." Mr Tetor's claim was discredited in cross-examination. I agree with the respondents' submission that the trial judge found that the applicant and his witnesses' evidence were inconsistent. These inconsistencies were one of the reasons for the trial judge to doubt their evidence.

24.	Demeanour wise, it has been said that a trial judge is better placed to assess the demeanour of witnesses. In Peter Wararu Waranaka (supra), Injia, DCJ (as he then was) said that "The judge assessed the evidence on both sides, assessed the credibility and demeanour of their witnesses and made findings of fact. It is difficult for a review Court to overturn findings of fact based on assessment of credibility of witnesses because the review court is not in a better position than the trial judge to assess the performance and demeanour of witnesses and asses the probative value of the evidence they give. The review Court will often defer to the trial judge's judgment on these sort of matters except where there is gross error manifest on the findings of fact based on the evidence before the Court."

25.	In this case, the trial judge reached a conclusion that Simon Gigmai's demeanour was poor because from his observation he saw that Mr Gigmai was fidgety, appeared confused at times during his testimony and sweated profusely even though he was drinking water continuously during his testimony. The applicant did not identify where the trial judge erred when he held that the demeanour of this witness was poor. I also cannot see where the trial judge may have gone wrong in questioning the credibility of this witness based on the witness' poor performance in Court. This was the other reason the trial judge doubted the evidence of the applicant and his witnesses.

26.	 In relation to the applicant's claim that there were significant inconsistencies in the respondents' evidence, in his decision, the trial judge stated that there were some inconsistencies between the evidence of certain witnesses of the respondents in relation to such matters as: 

(1)	How Alois Rokoa moved around during the power black-out;

(2)	Where exactly Alois Rokoa was when he called out for Aina Jamoa;

(3)	Where exactly Aina Jamoa was outside the counting centre at the time of the power black-out; and

(4)	At what stage the process of Exclusion No 47 had reached when the lights came on after the power black-out.

27.	But he said that they were minor or insignificant because they did not change the essence of the respondents' case that Aina Jamoa did not manipulate the votes at counting. Except for those inconsistencies, I accept the respondents' submission that the applicant has not explained why these inconsistencies or discrepancies would have cast doubt in the mind of the trial judge. Similarly, he has not identified other inconsistencies or discrepancies in the evidence of the respondents' witnesses which would have cast doubt in the mind of the trial judge. For these reasons, I am not satisfied that in these proposed grounds, a gross error is clearly apparent which would merit a review and I dismiss them. 

28.	Finally, in relation to whether the trial judge properly rejected the evidence of Form 66B, I mention that even though he held that it raised a separate and distinct ground and amounted to an amendment of the petition and was prohibited by the Organic Law on Elections, he did consider it. This renders the applicant's claim that the trial judge erred when he failed to address the discrepancies in the figures in Form 66B nugatory. If taken into account, this piece of evidence was more or less an independent piece of evidence and introduced to corroborate the applicant's claim that 400 exhausted ballot-papers were counted with live ballot-papers in favour of the second respondent. 

29.	The trial judge explained why the figures in Form 66B were not wrong and therefore, did not corroborate the applicant's eye witnesses' account that 400 ballot-papers were counted with live ballot-papers in favour of the second respondent. He explained that electoral officials used Form 66A to record the tallies for the primary count and Form 66B for the elimination count. He also explained the total informal votes, total allowable ballot-papers and the grand total. The total allowable ballot-papers came from Form 66A. It is the difference between the grand total and informal votes. The grand total was 47,749 and less 536 informal votes gave total allowable ballot-papers of 47,258.

30.	In conclusion, he explained that the electoral officials manually completed these Forms at the counting centre and forwarded them to the Head Office where they were verified and corrected by computer, figures were printed out and remitted to the counting centre. While Form 66B recorded a grand total of 47,794, the corrected figure by computer of the total allowable ballot-papers was 47,259. In the end, the trial judge sufficiently explained the discrepancy, that the figures matched and did not change the final result of the election. I am also not satisfied that in this proposed ground, a gross error is clearly apparent which would merit a review and dismiss it.

Order

31.	The application for leave is refused and the applicant shall pay the respondents' costs to be taxed, if not agreed.

Ruling and orders accordingly.
______________________________________________

Philip Ame Lawyers: Lawyers for Applicant
Niugini Legal Practice: Lawyers for First Respondent
Kombri & Associates: Lawyers for Second Respondent