SC1832

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) 07 of 2018

BETWEEN
JAMES DONALD
Applicant

AND
PAIYO BALE
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn, Nablu and Berrigan JJ
2018: 18 December 
2019: 23 August

SUPREME COURT – Application for review – official error for the purposes of s. 218 of the Organic Law on National and Local-level Government Elections – Failure to comply with notices issued pursuant to s. 43 of the Organic Law - Creation of electoral boundaries an exclusive matter for Parliament. 

Cases Cited:

In re Menyamya Open Parliamentary Election [1977] PNGLR 298
Biami Constituency, Fly River Provincial Assembly: Isilowa v Biaguni [1980] PNGLR 140 
SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518
Application by Kasap and Yama [1988-89] PNGLR 1971
Application by Agiwa (1993) SC442
Lipu, President of Lumasa Local Government Council, on behalf of the People of Lumasa and Lumasa Local Government Council v Electoral Boundaries Commission and the Independent State of Papua New Guinea [1996] PNGLR 178
Application of Ludwig Shulze (1998) SC572
Kalit v Pundari (1998) SC723
Application by Ben Semri (2003) SC 723
Application by Herman Leahy (2006) SC855
In re Fly River Provincial Executive (2007) SC918
Kopaol v Embel (2008) SC941 
Kaiabe v Mulungu (2008) N3329 
Amet v Yama (2010) SC1064  
Special Reference by the Morobe Provincial Executive (2012) SC1202
Kumbakor v Sungi (2012) N5002
Alphonse Moroi v Kila Haoda (2014) SC1379 
Soloma v Waigavara (2014) N5658
Motor Vehicles Insurance Ltd v Nominees Niugini Ltd (2015) SC1435

References cited

Sections 35, 43 and 218 of the Organic Law on National and Local-level Government Elections (the Organic Law) 
Sections 125 and 155(2)(b) and Schedule 2.11 of the Constitution

Counsel

Mr D. Igolena, for the Applicant  
Mr G. Lome with B. Kome, for the First Respondent 
Mr W. Stephen, for the Second Respondent  

DECISION ON APPLICATION

23 August, 2019

1.	HARTSHORN J. and BERRIGAN J.: This review was heard on 18 December 2018 before a Supreme Court constituted by Hartshorn J, Nablu J and Berrigan J.  The Court reserved its decision. On 28 July 2019 Nablu J. died. After being requested to inform the Court of their position, all parties agreed that the remaining judges should continue to hear the review. The judgement of the Court is now given.

2.	The Applicant, James Donald, and First Respondent, Paiyo Bale, were candidates with 50 others for the North Fly Open Electorate in Western Province in the 2017 General Election.  The Applicant was declared the successful candidate by the Second Respondent, the Electoral Commission of Papua New Guinea, on 28 July 2017.  

3.	The First Respondent, who finished third, filed a petition in the National Court challenging the election of the Applicant on the basis that the polling that had taken place at Nomad Local Level Government (LLG) for the North Fly Open Electorate was illegal.  In particular, it was alleged that two out of four disputed ballot boxes for Nomad LLG were wrongly admitted to scrutiny and counting. 

4.	At trial the evidence was largely uncontested. It was not in dispute that Nomad LLG is geographically located in the “middle” of North Fly Open Electorate and Middle Fly Open Electorate, nor that administratively, provision of government services is shared between these two electorates.  

5.	Nor was it in dispute that on 21 April 2017 the Electoral Commission published gazettal notices for each of the North Fly and Middle Fly Open Electorates pursuant to s. 43 of the Organic Law on National and Local-level Government Elections (the Organic Law) listing the dates of polling, names of polling teams and polling locations.  The gazettal notice for Middle Fly Open Electorate appointed 41 polling places in Nomad LLG.  No polling places within Nomad LLG were appointed in the gazettal notice for the North Fly Open Electorate.

6.	The learned trial judge found that instead of all wards voting in the Middle Fly Open Electorate, election officials, including the Returning Officer and the Election Steering Committee, ignored the gazettal notices and divided Nomad LLG for the purpose of polling.  Twenty four (24) wards were allocated to the North Fly Open Electorate and seventeen (17) to the Middle Fly Open Electorate.  Polling Teams 26, 27, 28 and 29 conducted polling for North Fly.  Polling Teams 30 to 33 conducted polling for Middle Fly.  This was done in accordance with a longstanding practice, “sanctioned and accepted” by the Electoral Commission, since Independence. 

7.	The First Respondent and other candidates subsequently objected to the admission to scrutiny and counting of four ballot boxes from Teams 26 to 29.  Ultimately, ballot boxes from Teams 26 and 27 were counted but those from Teams 28 and 29 were excluded because they had been tampered with.

8.	Given the geographical location of Nomad LLG and associated practical challenges in terms of accessibility the learned trial judge was not satisfied that the decision to ignore the gazettal notices and conduct polling in Nomad LLG for the North Fly Open Electorate was intended to deprive voters or disadvantage any candidate such as to constitute an illegal act within the meaning of s. 215 of the Organic Law.

9.	His Honour did find, however, that the admission of ballot boxes from Teams 26 and 27 to counting in the North Fly Open Electorate by election officials was an error which was likely to affect the result of the election for the purposes of s. 218 of the Organic Law.  He upheld the First Respondent’s petition, declared the election of the Applicant null and void, and ordered a recount of ballot-papers for the North Fly Open Electorate excluding ballot-papers from Nomad LLG on the basis that it was part of the Middle Fly Open Electorate.

10.	The Applicant sought leave to review that decision, which was granted by a single judge of the Supreme Court on 23 March 2018.  The Full Court of the Supreme Court subsequently stayed the recount pending the outcome of this review.

Grounds of Review

11.	The Applicant relies on six (6) grounds contained in the Application for Review filed in the Supplementary Review Book.  The grounds may be summarised as follows:  

(a)	Grounds 1, 2, 4 and 5: - the learned trial judge erred in fact and law in finding that non-compliance with s. 43 of the Organic Law had the effect of invaliding all votes where Teams 26 and 27 had polled, and furthermore, lacked jurisdiction or erred in fact and law in finding that the non-compliance affected the results of the election, in the absence of evidence that the disputed boxes were from Nomad LLG in the Middle Fly Open Electorate; 
(b)	Ground 3: - the learned trial judge erred in law, the exercise of his jurisdiction or the exercise of his discretion pursuant to Schedule 2.11 of the Constitution having regard to evidence that the wards where Teams 26 and 27 had polled had voted in the North Fly Open Electorate since Independence; and
(c)	Ground 6: - the learned trial judge’s decision to award costs against the Applicant was harsh and oppressive contrary to s. 41 of the Constitution.

12.	The power of the Supreme Court to review all judicial acts of the National Court pursuant to Section 155(2)(b) of the Constitution is well settled and extends to the review of election petition matters for which there is no right of appeal pursuant to Section 22 of the Organic Law: Amet v Yama (2010) SC1064 at [4]. 

13.	The inherent power of review of election petition cases is only available, however, where the applicant has an important point of law to be determined that is not without merit: Application by Herman Leahy (2006) SC855; Application of Ludwig Shulze (1998) SC572; Application by Kasap and Yama [1988-89] PNGLR 1971.  Where issues of fact are raised, gross error must be clearly apparent on the face of the record: Application of Ludwig Shulze (supra); Kalit v Pundari (1998) SC723; Application by Agiwa (1993) SC442; or the findings on the face of the record must appear so outrageous or absurd that injustice inevitably resulted:  Application by Ben Semri (2003) SC 723. See also Alphonse Moroi v Kila Haoda (2014) SC1379.

Grounds 1, 2, 4 and 5: Failure to comply with notices issued pursuant to s. 43 of the Organic Law

14.	The central issue for determination before the National Court was whether the admission of two disputed ballot boxes from Nomad LLG to counting for the North Fly Open Electorate was an error or omission by election officials for the purposes of voiding the election pursuant to s. 218 of the Organic Law.  

15.	Section 218 relevantly provides that (emphasis added):
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
16.	The standard of proof in such cases is well established.  The petitioner must establish the ground alleged to the tribunal’s entire satisfaction: Alphonse Moroi v Kila Haoda (supra) clarifying Biami Constituency, Fly River Provincial Assembly: Isilowa v Biaguni [1980] PNGLR 140 and In re Menyamya Open Parliamentary Election [1977] PNGLR 298. 

17.	The petitioner must also establish that the error or omission by officials affected the result of the election. In ascertaining this matter, a comparison should be made between the actual voting and what the voting would have been had the election been free from all official irregularities: Isilowa v Biaguni (supra); see also Amet v Yama (supra) at [51] and [56] regarding s. 215 of the Organic Law. 

18.	A number of authorities have considered the application of s. 43 of the Organic Law, which provides as follows:
43. (1) The Electoral Commission may, by notice published in the National Gazette or in a newspaper circulating in the electorate–
(a) appoint such number of polling places for each electorate as it thinks necessary and practicable; and
(b) abolish a polling place.
(2) No polling place shall be abolished after the issue of the writ and before the time appointed for its return.
19.	In general terms, the authorities have held that the petitioner must establish that a polling place was not lawfully appointed or abolished under s. 43 of the Organic Law.  Merely moving polling from one place to another, both of which may be duly appointed polling places within the same electorate, in response to the prevailing circumstances (bad weather, time constraints or security issues for instance) to facilitate voting does not amount to a breach of s. 43:  Kopaol v Embel (2008) SC941 at [11(d)]; Kaiabe v Mulungu (2008) N3329 at [49]; Kumbakor v Sungi (2012) N5002 at [118]; and Soloma v Waigavara (2014) N5658 at [59] to [69].

20.	In this case the National Court found that Teams 26 and 27 should have conducted polling in the Middle Fly Open Electorate and not the North Fly Open Electorate and that the polling was in breach of the prescribed polling locations contained in the gazettal notice for the Middle Fly Open Electorate under s. 43 of the Organic Law.  

21.	Whilst we are only concerned with the petition as it relates to the North Fly Open Electorate, it was open to His Honour to find that this constituted an official error for the purposes of s. 218 of the Organic Law on the evidence before him.  This was a very different case from those discussed at [18] above.  It was not in dispute that officials deliberately conducted polling for the North Fly Open Electorate outside the polling places appointed under s. 43 of the Organic Law for that electorate, and at polling places appointed for another electorate, Middle Fly.  The polling in Nomad LLG for North Fly was clearly conducted at places not lawfully appointed pursuant to s. 43 of the Organic Law. 

22.	His Honour went on to find that the outcome of the election in the North Fly Open Electorate was likely to be affected as a result.  He did so on the basis that the gazettal notices, which were uncontested, established that all of Nomad LLG is located within the Middle Fly Open Electorate.  

23.	Again the finding was open to the learned trial judge on the evidence before him.    

24.	Whilst the finding of fact was open in the lower court, the learned trial judge did misapprehend the effect of s. 43 of the Organic Law as a matter of law.  At [93] the learned trial judge said (emphasis added): 

“If the law under Section 43 of the Organic Law says that Nomad LLG is in Middle Fly Open electorate, then that is the law.  It is not an option.  They must vote in Middle Fly Open electorate.  If they want to vote in the North Fly Open electorate, then they must ask the Electoral Commissioner to move them out of Middle Fly and put them in North Fly before the next General election in 2022”.

25.	With respect to the learned trial judge, open electorates and their boundaries are not determined pursuant to s. 43 of the Organic Law.  This provision is concerned with the appointment or abolition of a polling place by the Electoral Commission within a duly created electorate:  Kopaol v Embel (2008) SC941 per Injia DCJ (as he then was) at [11(d)]. Whereas, the creation of open electorates and their boundaries is an exclusive matter for Parliament acting in accordance with recommendations from the Boundaries Commission pursuant to Section 125 of the Constitution and, where applicable, with respect to the determination of new electorates; s. 35 and following of the Organic Law: per Injia J (as he then was) in  Lipu, President of Lumasa Local Government Council, on behalf of the People of Lumasa and Lumasa Local Government Council v Electoral Boundaries Commission and the Independent State of Papua New Guinea [1996] PNGLR 178.  See also the discussion generally of Kapi J (as he then was) in SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518.

26.	Section 125(1) of the Constitution provides as follows: 

(1) The number of open electorates and of provincial electorates and their boundaries shall be determined by the Parliament in accordance with recommendations from a Boundaries Commission from time to time, at intervals determined by or under an Organic Law, being intervals of not more than 10 years.

27.	As discussed, no evidence as to the Boundaries Commission report nor a map setting out the boundaries of either electorate was tendered by the First Respondent in the National Court.  The Electoral Commission readily agreed at trial that polling in certain wards in Nomad LLG for the North Fly Open Electorate was a longstanding practice which it sanctioned but surprisingly led no evidence as to the basis on which it issued the gazettal notices of 21 April.

28.	Maps for Middle Fly and North Fly Electoral Boundaries contained in a document entitled “Revised Electoral Boundaries 1997”, published under the Authority of the Electoral Boundaries Commission, 27 January 1977,  have been filed in support of this application by the Applicant, however, and form part of the Supplementary Appeal Book certified as correct by all parties.  

29.	An enlarged map entitled “Nomad Statistical Area Western Province” prepared by the National Mapping Bureau showing “Provincial and Electoral Boundaries Derived from 1977 Electoral Boundaries” was admitted on this review as Exhibit A on behalf of the Applicant. The citation relevantly states that Statistical LLG Boundaries are supplied by the National Statistical Office (1999).

30.	Whilst the citation notes that the Statistical LLG Boundaries shown have not been finalised, what is immediately clear is that Nomad LLG is not in the “middle” of North Fly and Middle Fly Open Electorates, as such.  This suggests that Nomad LLG lies between the two electorates.  A more accurate description might be that Nomad LLG straddles both electorates, or in other words, some of the wards within Nomad LLG are located in the Middle Fly Open Electorate and others in the North Fly Open Electorate.  

31.	On this basis the Applicant submits that the majority of wards polled by Teams 26 and 27 do in fact form part of the North Fly Open Electorate.  The Electoral Commission now supports the Applicant in this regard and says that Exhibit A shows that the disputed boxes were from the North Fly Open Electorate.  Effectively, it concedes that the s. 43 gazettal notices were issued by it in error.  

32.	Whilst there might be some dispute about four (4) of the wards (Hafini, Kofabi, Igimi and Ayedubi), it is clear on our reading of Exhibit A that at least thirteen (13) of the seventeen (17) Nomad LLG wards polled by Teams 26 and 27 are located in the North Fly Open Electorate and not in the Middle Fly Open Electorate as found by the lower court. 

33.	This perhaps explains the longstanding “practice” of polling in those wards for the North Fly Open Electorate and why both geographically and politically voters in those wards regard themselves as part of the North Fly Open Electorate.  They are, in fact, part of the North Fly Open Electorate.  

34.	Of course, it must be emphasised that the learned trial judge did not have the benefit of this evidence.  Nor do we condone the conduct of the electoral officials and others who ignored the gazettal notices in favour of what they regarded as an accepted practice.  

35.	Moreover, given that “the prime function of the Electoral Commission is to organise and conduct all elections for the Parliament and the legislative arms of the Local-level Governments”, pursuant to s. 15 of the Organic Law, the fact that it remains dependent on others to identify the boundaries of both the Middle and North Fly Open Electorates is perplexing.  

36.	In its initial submissions on this review filed on 31 July 2018 the Electoral Commission admitted that the notices published under s. 43 of the Organic Law “may have been wrongly published without clearly ascertaining the boundaries of the wards in Nomad LLG as against the Middle Fly Electorate and the North Fly Electorate”.  This is a serious concession and raises the question: on what basis were the notices issued? 

37.	Nevertheless, having regard to the evidence admitted on this review, it is manifest on the face of the record that the learned trial judge erred in both fact and law in finding that the admission of ballots from Teams 26 and 27 to scrutiny and counting for the North Fly Open Electorate would likely have affected the election result.  

38.	As above, it is the case that four of the wards polled by Teams 26 and 27 may form part of the Middle Fly Open Electorate. There is no evidence to establish, however, that the votes from these four wards would be sufficient to change the outcome of the election in the North Fly Open Electorate. 

39.	In summary, this is a most unusual case.  There is no doubt that there was an error on the part of election officials in failing to comply with the notices issued under s. 43 of the Organic Law and in admitting to counting the ballots polled by Teams 26 and 27 in Nomad LLG contrary to those notices.  It has not been shown, however, that the error would have affected the result of the election because the notices themselves were issued in error, and furthermore, most if not all, of those ballots should have been admitted to counting for the North Fly Open Electorate in any event, having regard to its boundaries, as determined by Parliament, and established on this application.     

Ground 3: Failure to apply Schedule 2.11 of the Constitution

40.	Both the Applicant and the Electoral Commission contend that the learned trial judge erred in law, the exercise of his jurisdiction or the exercise of his discretion under Schedule 2.11 of the Constitution having regard to evidence that the wards where Teams 26 and 27 polled had voted in the North Fly Open Electorate since Independence. 

41.	Schedule 2.11 provides as follows:

“Sch.2.11 Prospective over-ruling.

(1) Subject to any decision of law that is binding upon it, in over-ruling a decision of law or in making a decision of law that is contrary to previous practice, doctrine or accepted custom, a court may, for a special reason, apply its decision of law only to situations occurring after the new decision.
(2) In the circumstances described by Subsection (1), a court may apply to a situation a decision of law that was over-ruled after the occurrence of the situation, or a practice, doctrine or custom that was current or accepted at the time of the occurrence of any relevant transaction, act or event.
(3) In a case to which Subsection (1) or (2) applies, a court may make its decision subject to such conditions and restrictions as to it seem just.”

42.	In view of our decision above, it is not necessary for us to determine this ground.  We note, however, that Schedule 2.11 was not explicitly raised with the learned trial judge.  Furthermore, the application or otherwise of Schedule 2.11 is a matter of discretion for the court having regard to the circumstances of a particular case before it.  Moreover, the Constitution makes clear that it is the exclusive power of Parliament to determine the boundaries of any electorate, acting on recommendations from the Boundaries Commission.  The fact that electoral officials and others in Nomad LLG have repeatedly chosen to conduct polling according to “practice”, albeit sanctioned by the Electoral Commission, does not mean that the practice falls within the ambit of Schedule 2.11 for “a special reason”.  On the contrary, it suggests an ongoing ignorance or disregard of the electoral process established by the Constitution.

Ground 6:  Costs 
43.	The Applicant submits that the costs awarded against him at the lower court were harsh and oppressive contrary to s. 41 of the Constitution. 

44.	S. 41 of the Constitution has no application here.  The law with respect to costs is well established.  As a general rule, costs follow the event and the successful party has his costs met by the other parties.  

45.	It is also well established that the awarding of costs pursuant to Order 12 of the Supreme Court Rules, 2012 is a discretionary matter for the court and that there may be exceptions to the general rule, for example where the peculiar circumstances of the case may warrant parties to meet their own costs: see Motor Vehicles Insurance Ltd v Nominees Niugini Ltd (2015) SC1435. 

46.	The Supreme Court has also held that it may be appropriate to make an order for costs in constitutional reference proceedings despite their unique nature:  In re Fly River Provincial Executive (2007) SC918.  In Special Reference by the Morobe Provincial Executive (2012) SC1202 the Court said that in applying the rule of thumb that costs follow the event, the Court should identify the party or parties primarily responsible for “the event” and the party or parties primarily responsible for opposing it; and then award costs to the former against the latter subject to taking into account any special considerations that would warrant a departure from the general rule.   For example, where a party made a significant contribution to the proper determination of the reference (even though its submissions may not have ultimately been upheld), or where a party is declared by the Court to have acted unconstitutionally.  A party guilty of abuse of process would not normally be expected to obtain the benefit of a costs order. 

47.	For similar reasons, it is our view in this case that the costs of the proceedings both before the National Court and on this Application should be met by the Electoral Commission.

48.	The Applicant benefited in the first instance from a decision to ignore gazettal notices issued by the Electoral Commission.  The practice, however, has long been sanctioned by the Electoral Commission.  Moreover, the Applicant has been the only party to lead evidence to establish the boundaries of the North Fly Open Electorate, as a result of which he is now the successful party.  

49.	Whilst the First Respondent did not make efforts to obtain evidence to establish the boundaries of the electorate, his reliance on the gazettal notices issued by the Electoral Commission and his decision to challenge the election result on that basis is understandable. Whilst in ordinary circumstances this might not of itself suffice to excuse him from the burden of costs, as discussed above, this is a case warranting special consideration.

50.	As the Supreme Court said in Amet v Yama (supra) at [32] (emphasis added):

“It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise… 
It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a sacred right ….””
51.	It is the Electoral Commission that is charged with ensuring this “sacred right” pursuant to its mandate, and on the basis of which it is assumed that the electoral process is properly conducted.  

52.	In this case, however, the Electoral Commission was unable to assist the court in either this or the proceedings before the lower court as to the boundaries of the electorates of Middle and North Fly.  It concedes that it has allowed elections to take place in accordance with long-established practice, instead of active compliance with the law, since Independence.  It was unable to identify the basis upon which the gazettal notices of 21 April were issued, and now concedes that the gazettal notices were issued in error. This is deeply concerning.  

53.	Whilst it is not suggested that there was any impropriety on the part of the Electoral Commission, it is its repeated failure to ensure that notices were issued in compliance with the boundaries created by Parliament, and/or to ensure that these notices were complied with, which has ultimately resulted in both the petition and its review. 

Orders

54.	We make the following orders:

1)	The review application is upheld.
2)	Orders of 9 February 2018 in EP No. 31 of 2017 are quashed.
3)	The Petition in EP No. 31 of 2017 is dismissed.
4)	The costs of the Applicant and the First Respondent of and incidental to this proceeding and to the National Court proceeding EP No. 31 of 2017 shall be paid by the Second Respondent, the Electoral Commission, to be taxed if not otherwise agreed.
5)	Any sum that was and remains deposited by the Applicant in the Registrar’s Trust Account as security for costs shall be repaid to the Applicant. 

_______________________________________________________________
Centurion Lawyers:	Lawyer for the Applicant
Jefferson Lawyers: 	Lawyer for the First Respondent
Kawat Lawyers:	Lawyer for the Second Respondent