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Manwau v Trawen [2009] PGSC 37; SC1034 (25 May 2009)

SC1034

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 13 OF 2009

IN THE MATTER OF AN APPLICATION UNDER S 155 (2) (B) OF THE CONSTITUTION
AND IN RE PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL
GOVERNMENT ELECTIONS

BETWEEN:

MOSES MANWAU
Applicant

AND:

ANDREW TRAWEN, ELECTORAL COMMISSIONER, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND:

MARTIN MAINGU, THE RETURNING OFFICER FOR WEWAK OPEN ELECTORATE
Second Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

AND:

JIM SIMATAB
Fourth respondent

Waigani: Injia, CJ
2009: 25th May

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Final decision of National Court on an election petition - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Exercise of discretion- Relevant criteria and principles.

Cases Cited:

Jurvie v Bony Oveyara (2008) SC935.
Olga v Wingti (2008) SC938,

Counsel:

M Murray, for the Applicant
R William, for the First, Second and Third Respondents
T Sirae, for the Second Respondent

25 May, 2009

1. INJIA, CJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) ("Petition Review Rules)). It is contested by the respondents.

2. The decision was made after a trial of the Election Petition. There are three categories of proposed grounds of review set out in the application:

(1) challenges the judges decision to reject the Statement of Agreed and Disputed Facts and Legal Issues (Statement) or confine himself to the issues raised in the said Statement which was filed pursuant to direction issued by the Court in the direction hearings: paragraphs 2.1 – 2.5, 2.7, 2.8, 2.9 (c ) & (d);

(2) challenges the judges decision not to accept the petitioners evidence and witnesses: paragraphs 2.6, 2.7, 2.9, 2.10 & 2.11;

(3) challenges to the judge’s decision to call further expert evidence after the parties had closed their case to respond to the petitioners/applicant evidence and accepting the new evidence and not giving the applicant opportunity to call rebuttal evidence: paragraphs 2.7, 2.8, 2.9.

3. The proposed grounds of review set out in the application raise points of law and facts. The relevant test is set out in my decision in Jurvie v Bony Oveyara (2008) SC 935. That is insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit. Insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice and such that a review of the findings of fact is warranted. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.

4. I apply the same principles in Jurvie v Oveyara to the circumstances of this case in the following manner.

5. I have considered the submissions made by counsel representing the parties and the material placed before me. My response to the submissions is embodied in the determination of the three categories of proposed grounds of review. I apply the principles in Jurvie v Oveyara to the circumstances of this case in the following manner.

6. In relation to the first set of grounds, the trial judge’s approach in the course of the trial of an election petition in dealing with a Statement of Agreed and Disputed Facts and Legal Issues submitted by the parties to the Court at the direction hearings is set out in my judgment in Olga v Wingti (2008) SC 938, where I said:

"Once a Petition has passed the scrutiny at a preliminary hearing, the trial judge is required to determine the Petition on the grounds of the Petition in a manner that dispenses with substantial justice and in doing, it must be "guided by 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" (s 217). The Court’s identification and determination of legal and factual issues which arise directly or indirectly from the grounds pleaded in the petition and advanced at the trial should not be hampered or restricted by parties’ submission of legal and factual issues, by consent or otherwise. The case of Application of Ben Semri, Biri v Ninkama and Tulapi v Luta do not deal with this specific issue. I do not see anything wrong with the enunciation of this new principle that may be inconsistent with precedent."

7. To the above statement of principle I should add that it is a matter in the entire discretion of the Court to admit or adopt the agreed Statement and whether the trial should be conducted in the manner outlined by the parties in the Statement. The Statement is merely to assist the Court in identifying the facts and legal issues in dispute, to alert the judge to those matters so that the trial is conducted in a focused, expeditious and less costly manner. The facts and legal issues agreed to or disputed by parties as set out in a formal statement or orally presented by the parties at the trial, whether or not agreed to at the directions hearing do not remain so admitted for purpose of the trial unless the Court in the course of the trial so directs or orders.

8. In the present case, I consider the first category of proposed grounds of review do not raise important points of law which have merit. Also they do not demonstrate any apparent error of fact on the face of the record of evidence or that the judge’ approach was so outrageous or absurd as to result in injustice. Leave is refused in respect of those grounds or parts of those grounds specified above.

9. The second and third category of grounds can be dealt with together. The 4th respondent won the election with 5603 votes whilst the applicant was runner up with 5442 votes, a difference of 161 votes. The case was contested on ballot box No. 0389 from Sapuain and Kubrien village polling places containing 1,050 ballot papers. This box was disputed at the count on the basis that it was tampered with by the presiding officer but the Returning Officer dismissed the objection and counted the box. The Court’s decision on this ballot box could affect the outcome of the result of the election.

10. The only evidence before the Court was those produced by the petitioner and his witnesses. They were cross examined by respondents counsel. Their evidence related to tampering with ballot box No. 0389 by the Presiding Officer Mr Petrus Alim. It was not disputed and the Court found at the trial that the outer and inner seal broke at some point during or after polling at Sapuen, Kubrien, Woginara 1 &2 villages. The Court was faced with deciding on two probable causes before the Court– Whether the seals broke due to bad road conditions or by someone and it was by someone, whether it was Petrus Alim, or some other person, by inference cut the seals and tampered with the box. The petitioner’s case was that Petrus Alim removed the seals and tampered with ballot papers. The respondents’ case was that it was through other causes. The respondents also defended the case on the basis that the integrity of the ballot box was not affected by the broken seals: para 61 of Judgment.

11. The petitioner produced evidence from polling officer Cosmos Morisa that showed that Petrus Alim tampered with the ballot box. Cosmos was the only key eye witness to the alleged tampering. The petitioner and other witnesses called by him gave evidence of what transpired at the counting center in terms of handling the objection raised to this disputed box. The respondents did not call any evidence. Petrus Alim was not called to rebut Cosmos evidence. On the face of the evidence, the weight of the evidence favored the petitioner. The trial judge instead of deciding the case on the evidence presented by the parties decided to call his own rebuttal evidence. He called Kila Buro, an electoral official to give expert evidence on the likely cause of the broken inner and outer seals. The respondent was not accorded similar opportunity to call similar evidence. The petitioners counsel filled in by demonstration in Court but that was not enough to convince the Court. It is apparent from the judgment that Kila Buro’s evidence was given ample weight to find that the inner and outer seals would have broken due to other causes identified by Kila Buro.

12. I am satisfied that on the face of the evidence there is gross error apparent or manifested in the way the petitioner’s evidence was handled by the trial judge. If the Petitioner’s evidence had been accepted a finding in his favor would have resulted in this box being disallowed which means an order for recount would have followed and the result of the election could easily change given the small margin of difference between the petitioner and the respondent. I am also satisfied that there is an important point of law raised under s 217 of the Organic Law which is not without merit.
13. It is not necessary for me to deal with application of the law to the facts in relation to the integrity of this ballot box. Those are matters to be argued at the substantive hearing.

14. For these reasons I grant leave to apply for review on grounds 2.6, 2.7,2.8, 2.9, 2.10 & 2.11 with costs to the applicant. Leave is refused in respect of any part of these grounds which make reference to the trial judge’s handling of the Statement of Agreed and Disputed Facts and Legal Issues. Leave is also refused in respect of grounds 2.1, 2.2, 2.3, 2.4, 2.5; and parts of 2.7 & 2.8 which relate to the Statement of Agreed and Disputed Facts and Legal Issues. Costs follow the event.

_______________________________________________
Moses Murray & Associates Lawyers: Lawyer for the Applicant
Nonggorr & Associates Lawyers: Lawyer for the First, Second & Third Respondent
Henao Lawyers: Lawyer for the Fourth Respondent