N5429

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 74 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE GUMINE OPEN ELECTORATE

BETWEEN

NICK KOPIA KUMAN
Petitioner

AND

DAWA LUCAS DEKENA
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2013: 18th, 19th & 22nd November

ELECTION PETITIONS – Recount of votes following successful Supreme Court review – Result of recount – National Court to declare winner following recount – Discretionary relief – Organic Law on National and Local-level Government Elections – s 212(f)&(g).

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency of petition – Objection raised after successful Supreme Court review – Grounds of – Failure to plead relief – Declaration of first respondent as not duly elected member – Declaration of petitioner as duly elected member – Declaration that it is just that the election of the first respondent should be declared void – Whether issues of competency of petition can be raised following recount – Organic Law on National and Local-level Government Elections – ss. 208(b), 212(f)&(g) & 215(1) – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064
Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC552 
James Yoka Ekip & Anor -v- Gordon Wimb and Electoral Commission (2012) N4899
Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354 
SCR Nos 4 & 5 of 2009 Re Trawen -v- Wingti (2009) SC1003
Peter Charles Yama -v- Electoral Commission & Anton Yagama (2013) SC1290 

Counsel:

Mr A Kongri, for Petitioner 
Mr P Ame, for First Respondent
Mr R William, for Second & Third Respondents

RULING

22nd November, 2013

1.	MAKAIL, J: The Supreme Court heard two reviews against the decision of the National Court which upheld the petition for Gumine Open electorate on the ground of illegal practices at polling, declared the first respondent as not being duly elected as Member and directed that a by-election be held. On 30th August 2013, the Supreme Court handed down its decision and ordered that:

"(a)	The application in SC Rev 04 of 2013: Dawa Lucas Dekena -v- Nick Kopia Kuman and Electoral Commission of Papua New Guinea is dismissed.

(b)	The application in SC Rev 06 of 2013: Nick Kopia Kuman -v- Dawa Lucas Dekena and Electoral Commission of Papua New Guinea is upheld.

(c)	The decision of the trial judge to order a by-election for the Gumine Open Electorate is quashed and set aside.

(d)	The Electoral Commission of PNG is directed and ordered to conduct a recount of all the votes for the Gumine Open Electorate, excluding 723 illegally marked votes from Digibe Ward 4 polling place within 30 days.

(e)	That the recount results be presented to the National Court for a declaration of the winner.

(f)	Mr Dawa Lucas Dekena and the Electoral Commission of Papua New Guinea shall pay the costs of Mr Nick Kopia Kuman for both Applications for Review to be agreed, if not taxed."

2.	Following the orders of the Supreme Court, a recount was held at Polytech Institute in Lae for all the ballot-papers except 723 ballot-papers for Digibe Ward No. 4. The result of the recount has been presented to the National Court for a declaration of the winner. It may be found in a report annexed to the affidavit of the Returning Officer Mr Terence Hetinu filed on 11th November 2013(exhibit "P1"). 

3.	The first respondent has filed an application by way of a further amended notice of motion on 18th November 2013 ("Motion") and seeks the following orders:

"1.	That the Judge Administrator for Election Petitions appoints a judge to deal with Election Petition 74 of 2012.

2.	That pursuant to Section 208(b) and Section 212 (1)(f) and (g) of the Organic Law on National and Local-level Government Elections (hereafter "the Organic Law"), the Election Petition EP No. 74 of 2012 between Nick Kopia Kuman -v- Lucas Dekena & 2 Ors is incompetent and should be dismissed on the basis that the Petitioner having been granted the reliefs he sought in the Election Petition he is not entitled to any further reliefs not sought in the Petition.

3.	In the alternative, the recounted ballot papers from Gumine Open Electoral Polling Team 17 Box 103327 ballot papers serial numbers 11695 to 12829 consisting of 1,134 ballot papers be rejected for being illegally marked ballot papers in breach of Sections 136 and 138 and Section 50 of the Constitution and the winner be declared on the remaining allowed votes.

4.	In the further alternative, the Election Petition EP No. 74 of 2012 between Nick Kopia Kuman -v- Lucas Dekena & 2 Ors be dismissed for failing to comply with Order No. 4 of the Supreme Court dated 30th August 2013.

5.	Pursuant to Section 155(3) and Section 11(2) of the Constitution and Section 208(a) and Section 210 of the Organic Law, the Election Petition be dismissed for failing to plead that 'it is just that the candidate Mr Lucas Dekena was not duly elected or the election of Lucas Dekena should be declared void'.

6.	Any further Orders the Court deems fit.

7.	Costs."

4.	There is no issue with the first order sought in the motion. The rest are and the grounds can be summarised as follows:

4.1.	The petition is incompetent.

4.2.	Result of recount is flawed because of tampering of ballot-papers at polling and original count and errors and omissions at recount.

4.3.	Breach of term no. 4 of the Supreme Court order of 30th August 2013.

Competency of Petition

5.	As regards this ground, the gist of the submissions by Mr Ame of counsel for the first respondent is that it is not open to the Court to endorse the result of the recount and declare the winner because the entire petition is incompetent. For this proposition, Mr Ame relies on the decision of the Supreme Court in Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064 and submits that as the Supreme Court has held that issues of competency can be raised at any stage of the proceedings, it is open to the first respondent to raise it before the Court declares the winner of the recount. This Court is bound by that decision and the objection is not an abuse of process. If it is considered, the entire petition is incompetent and must be dismissed.

6.	From grounds 1 and 5 of the motion, the grounds of competency can be summarised as follows:

6.1.	Failure to plead relief that the first respondent is not duly elected as Member and that the petitioner is duly elected Member; and

6.2.	Failure to plead that it is just that the first respondent was not duly elected or the election of the first respondent should be declared void.

7.	Basing his submission on s. 208(b) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") which requires a petition to specify the relief and relying further on Amet -v- Yama and James Yoka Ekip & Anor -v- Gordon Wimb and Electoral Commission (2012) N4899, Mr Ame submits that these cases held that a petitioner must plead the relief he seeks in the petition. Given this requirement, the petitioner must plead that the first respondent was not duly elected as Member and that he was duly elected as Member. The petitioner has failed to specifically plead them and it is not open to him to claim them. For this reason, it is not open to the Court to grant them. 

8.	The respondents opposed the application. Mr William of counsel for the second and third respondents relying on Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC552 submits that these grounds are misconceived because although the relief sought is not precisely pleaded in terms of the enabling provision, such as ss. 212(f) & (g) and 215(1) of the Organic Law Elections, the Court is nonetheless competent to grant the relief, once the allegations are established under the relevant empowering provision. 

9.	In this case, the petition went through trial in the National Court, was upheld, then went on review to the Supreme Court and the Supreme Court having satisfied itself that the National Court was correct to uphold the petition, dismissed the first respondent's review, upheld the petitioner's review and ordered a recount. The result of the recount is clear. It establishes that the petitioner has scored the highest number of votes and it is within the Court's discretion to declare him as duly elected Member. These grounds should be dismissed.

10.	Mr Kongri of counsel for the petitioner adds to Mr William's submission by submitting that as the National Court has also declared that the first respondent not duly elected Member for Gumine Open electorate and that the Supreme Court has dismissed the first respondent's review against this decision, the National Court decision stands and it means that there is no Member for the electorate. For this Court to then not declare the petitioner as duly elected Member would not only run counter to the original decision of the National Court but also leave a vacuum in that seat in Parliament.
11.	In his alternative submission, Mr Kongri submits that, the competency of the petition based on lack of pleading the specific relief was raised by the first respondent and argued before the Supreme Court in SC Rev 04 of 2013: Dawa Lucas Dekena -v- Nick Kopia Kuman and Electoral Commission of Papua New Guinea and the Court dismissed it. For this reason, the issue is res judicata.

12.	According to Rule 15 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"), an objection to competency of a petition shall be heard at the hearing of the petition. This is the time an objection to competency is heard. Given this, the grounds and submissions of the first respondent in relation to competency of the petition should have been raised and argued at the hearing of the petition. If they were not raised at the hearing before the National Court, then going by the authority of Amet -v- Yama, they may be raised at the Supreme Court. If they were not raised in the Supreme Court, then the first respondent has lost that right. He is deemed to have accepted that the petition is in order.

13.	The proposition advanced by Mr Ame that based on Amet -v- Yama, it is open to the first respondent to object to the competency of the petition before the Court declares the winner after the recount is a very difficult one to accept. The Supreme Court in Amet -v- Yama did not hold that issues of competency can be raised after a recount as ordered by the Supreme Court and before declaration of a winner. To accept Mr Ame's submission would be adding a proposition that the Supreme Court did not hold. 

14.	In raising the issue of failure to plead the appropriate and specific relief at the hearing following a recount, the first respondent is asking the Court to rewind the clock so to speak and have a second opportunity to challenge the competency of the petition. In my view this is an abuse of process and the first respondent should not be permitted to do that. 

15.	After all, a trial was conducted in the National Court. The petitioner's primary relief was a recount of votes excluding 723 votes from Digibe Ward No. 4. Instead, in upholding the petition, the National Court further held that the first respondent was not duly elected as Member and directed that there be a by-election. The petitioner and the first respondent sought a review of that decision. The petitioner asked the Supreme Court to quash that decision and order a recount of votes excluding 723 votes from Digibe Ward No. 4. The first respondent asked for its quashing.

16.	The Supreme Court upheld the petitioner's review and ordered a recount of votes excluding 723 votes from Digibe Ward No. 4. It dismissed the first respondent's review. These events show that the petition has progressed to a stage where it is beyond rewind. It is at the final stage of concluding the dispute and must be allowed to be completed. The second and third respondents must be allowed to present the result of the recount to the Court for a final decision unless it can be shown that the result of the recount was tainted with illegality, errors and omissions: Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354 (Cannings, J); SCR Nos 4 & 5 of 2009 Re Trawen -v- Wingti (2009) SC1003 and Peter Charles Yama -v- Electoral Commission & Anton Yagama (2013) SC1290 (Makail, J). 

17.	Otherwise, the consequence may be fatal. As Mr Kongri submitted and I accept, as the National Court has also declared that the first respondent was not duly elected as Member and that the Supreme Court had dismissed his review against that decision, the National Court decision stands and it means that there is no Member for the electorate right now. For this Court to then not declare the petitioner as duly elected Member would not only run counter to the original decision of the National Court but also leave a vacuum in that seat in Parliament. There will be no Member and this will be absurd, especially after going through a long process of getting this dispute settled. 

18.	I accept Mr William's submission that although the relief sought is not precisely pleaded in terms of the enabling provision, such as ss. 212(f) & (g) and 215(1) of the Organic Law on Elections, grant of a relief is a discretionary matter and the Court is nonetheless competent to grant the relief, once the allegations are established under the relevant empowering provision. For these reasons, I dismiss grounds 1 and 5 of the motion.

19.	Having reached this conclusion, I consider it not necessary to address Mr Kongri's alternative submission on the issue of res judicata. 	

Illegal Practices at Original Count and Errors and Omissions at Recount of Votes

20.	For this ground, Mr Ame submits in a convoluted manner that the results of the recount is tainted such that it is unreliable for the Court to accept and declare the winner because there were illegal practices, errors and omissions at the original count and at the recount, namely 1,134 ballot-papers from ballot-box no. 103327 were illegally marked for the petitioner and also 208 ballot-papers were placed in the tray for the petitioner at the recount. As a result, these ballot-papers inflated the number of votes received by the petitioner. 

21.	He relies on the first respondent's affidavit filed on 18th November 2013 (exhibit "R1") and submits that this affidavit establishes that at the recount of votes, the first respondent's scrutineers objected to 1,134 ballot-papers from ballot-box no. 103327 from being counted but were overruled. These ballot-papers were illegally marked at the polling for the petitioner. The first respondent's scrutineers also objected to 208 ballot-papers at the recount because they claimed that the counting officials wrongly placed them in the tray for the petitioner. 

22.	Counsel also relies on his affidavit filed on 18th November 2013 (exhibit "R2") and submits that his affidavit establishes that he wrote to the Electoral Commissioner and asked him to respond to the first respondent's objections in relation to firstly, 197 votes reserved for the Electoral Commission to make a decision and secondly, 1,134 votes from ballot-box no. 103327 from team no. 17. He has received no response to these objections. 

23.	Mr Ame further served a belated notice to cross-examine the Returning Officer Mr Hetinu. Pursuant to this notice, Mr Hetinu attended Court and was cross-examined by Mr Ame in relation to his affidavit and the result of the recount. A copy of a letter from Mr Hetinu to the first respondent's scrutineers dated 09th October 2013 was also tendered as exhibit "P2". It essentially stated Mr Hetinu overruled the first respondent scrutineers' objection to 255 second and third preferential votes that were placed in the petitioner's tray. 

24.	Mr Ame submits that this evidence sufficiently establish that despite the objections to the ballot-papers from being admitted to scrutiny, these illegal ballot-papers were admitted and as a result, inflated the number of votes received by the petitioner. Therefore, the result of the recount has been tainted and must be refused. 

25.	Mr William submits that as regards the objection to 1,134 ballot-papers, these ballot-papers were allegedly marked at the polling and the first respondent objected to their admission to scrutiny at the original count. The objection was not at the recount of votes and therefore irrelevant. As regards the 208 votes, the affidavits of the first respondent and Mr Ame are hearsay and should be rejected. Thus, there is no evidence to establish the allegation that 208 votes were wrongly placed in the petitioner's tray at the recount of votes.

26.	In supporting Mr William's submission on this point, Mr Kongri submits that this is a strange ground. The first respondent wants 1,134 ballot-papers from ballot-box no. 103327 for team no. 17 to be excluded from the recount but there are no allegations that these ballot-papers were tampered with at the recount. The allegations of illegal practices or tampering of these ballot-papers were from the polling and original count and for these reasons, they cannot form the basis for the result of the recount to be rejected.

27.	I said earlier that Mr Ame made submissions in a convoluted manner because while it is noted that this ground alleged that the "recounted" ballot-papers from Gumine Open electorate polling team no. 17 and ballot-box no. 103327 consisting of 1,134 ballot-papers were illegally marked, it does not state if these ballot-papers were marked in favour of the petitioner. It assumes that. Then, when evidence was led from the first respondent, he said that these ballot-papers were illegally marked at polling and should have been rejected at the original count when he objected to them. 

28.	It becomes more confusing when, in submission, Mr Ame adds that 208 ballot-papers were illegally placed in the tray of the petitioner at the recount. This inflated the number of votes received by the petitioner and as a result, he ended up receiving the highest number of votes at the recount. There is a problem with this submission. The first respondent did not plead 208 votes in the motion as a ground to dispute the result of the recount. The very ground of failure to plead the relief which he relies on to dismiss the petition has now come back to bite him. He is guilty of failing to plead the specific relief and this has adversely prejudiced the petitioner, the second and third respondents' in their defence of the application in terms of calling rebuttal evidence. 

29.	 It is important to plead in the motion that the result of the recount of votes should be rejected and the applicant, be it the petitioner or respondent, be declared as duly elected Member because the Court's primary task following a recount of votes as ordered by the Supreme Court is to satisfy itself that the result is in order and declare a winner. 

30.	This was what the petitioner and the first respondent did and how the Court approached and dealt with the petitioner's objection to the result of the recount of votes for the Usino-Bundi Open electorate in Peter Charles Yama -v- Anton Yagama & Electoral Commission. The first respondent in this case has not done that and as a result, the petitioner, the second and third respondents, and the Court were not aware of his intention to dispute the result of the recount. This ground has come as a surprise and does not form part of ground 3 of the motion. It will not be considered. I give the same reasons for 255 second and third preferential votes allegedly wrongly placed in the petitioner's tray. 

31.	But if these assertions were to be considered and I will consider them nonetheless, the onus of proof is on the party who alleges. The result of the recount at the 38th exclusion as presented by the Returning Officer Mr Hetinu shows these:

(a)	Petitioner (Nick Kopia Kuman) received 12,726 votes.

(b)	First respondent (Dawa Lucas Dekena) received 12,567 votes.

32.	The total exhausted votes are 14,967. The total allowable votes are 25,293. The absolute majority (50% + 1of the total allowable votes) is 12,647 votes.

33.	If the first respondent alleges that 208 ballot-papers were wrongly placed in the petitioner's tray and a further 255 second preference and third preference votes were put in the petitioner's tray, he must prove them. The first respondent was not at the counting centre at Polytech Institute in Lae to say that he witnessed ballot-papers placed in the petitioner's tray. In his affidavit, Mr Ame also does not say that he was at the counting centre and witnessed the misplacing of ballot-papers. For these reasons, I accept Mr William's submission that the evidence of the first respondent is hearsay and I reject it. 

34.	This means that there is no evidence to establish the allegations of errors and omissions by counting officials that they wrongly placed 208 ballot-papers in the petitioner's tray and a further 255 second and third preferences votes in the petitioner's tray. 	Mr Ame also attempted to rely on some belated affidavits allegedly sworn by scrutineers, which he says would establish the allegations of errors and omissions at the recount. These affidavits were rejected because they were belated. In his cross-examination of the Returning Officer Mr Hetinu, he attempted to elicit evidence from him that there were instances of misplacing of ballot-papers at the recount and there were discrepancies in the figures in the tally sheets in Form 66A and Form 66B such that the result was flawed . In my view, this was a fishing exercise as there was no evidence from the first respondent to prove these allegations.

35.	Mr Ame's evidence relates to objections raised in relation to the admission of ballot-papers to scrutiny but the Returning Officer Mr Hetino said that he dealt with some of them and also made it abundantly clear that if there were others, they can be raised in Court when the matter returns for final decision. He took this position because there was not enough time to delay the counting. This means, the aggrieved party must bring evidence to prove that the recount was not properly conducted. 

36.	On the other hand, in the report, Mr Hetinu stated that 721 ballot-papers were excluded from the recount rather than 723 ballot-papers. But he explained that 2 ballot-papers were informal votes. This means that they were also excluded from the recount. Other than this, he reported that the recount proceeded well with the usual objections raised and scrutineers advised in no uncertain terms that they should raise the objections before the Court when the result is presented. I accept Mr Hetinu's evidence.

37.	With regards to the objection to 1,134 ballot-papers, I accept Mr William's submission whose submission was endorsed by Mr Kongri that these ballot-papers were allegedly marked at the polling and the first respondent objected to their admission to scrutiny at the original count. The objection was not at the recount of votes and therefore irrelevant. This ground is misconceived and is dismissed.

Breach of Supreme Court order

38.	Finally, Mr Ame submits that the second and third respondents have breached the Supreme Court order of 30th August 2013, in that they have failed to complete the recount within 30 days. He cites no authority for this proposition but relies on the inherent power of the Supreme Court to suggest that given that the Supreme Court had ordered a recount to take place within a specific period of time and failure to comply will result in a nullity of the result of the recount of votes and the status of the dispute reverts to the original position where the first respondent remains as Member.

39.	Mr William submits that the pleading of this ground is vague and he was not able to work out how the respondents have failed to comply with that order until the hearing of the application where he heard Mr Ame made submission that the reason for the breach of the Court order was that the second and third respondents were late in completing the recount within 30 days of the order. As the pleading of this ground is vague, the second and third respondents have been prejudiced in responding to this ground of objection and for this reasons, this ground should be dismissed.

40.	In the alternative, the Supreme Court did not order that the recount should be completed within 30 days of the order but rather to commence within 30 days of the order. In this case, the recount was commenced within 30 days, that is, on 12th September 2013 and concluded on 23rd October 2013. In the further alternative, he submits that to dismiss the petition without hearing the presentation of the result of the recount would defeat the whole purpose of having a recount as ordered by the Supreme Court. A recount has been conducted and completed. It is only appropriate that the Court must look at the result of the recount and make appropriate orders based on the result. 

41.	Mr Kongri for the petitioner submits that there is no ambiguity in the terms of order no. 4 of the Supreme Court. It requires the second and third respondents to conduct the recount within 30 days of the order. It does not say that the recount must be conducted, completed and result returned within 30 days. To give such an interpretation is logically impracticable. 

42.	In any event, counsel further submits that since the first respondent seeks dismissal of the petition based on an order made by the Supreme Court, the exercise of discretion lies with the Supreme Court and not the National Court. The Supreme Court is the Court that has the jurisdiction to determine this issue. This ground is misconceived and should be dismissed.

43.	Putting all the arguments of parties to one side, I accept Mr Kongri's alternative submission that since the first respondent seeks to dismiss the petition based on a Supreme Court order, the exercise of discretion lies with the Supreme Court and not the National Court. That means that if the first respondent is of the view that the second and third respondents have breached the order, he should make the application to the Supreme Court. For this reason, this ground is misconceived and is dismissed.

Conclusion

44.	Given the evidence, I am satisfied that the result is in order and on that basis, I declare the petitioner Nick Kopia Kuman having scored 12,726 votes as duly elected Member for Gumine Open electorate. On the other hand, I dismiss the first respondent's application.

Orders

45.	The orders are:

(a)	The petitioner Nick Kopia Kuman is the duly elected Member for Gumine Open electorate.

(b)	The first respondent's application is dismissed.

(c)	The first respondent shall pay the costs of proceedings in relation to the recount.

______________________________________________________

Sirae & Co Lawyers: Lawyers for Petitioner
Philip Ame Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents