SC653
PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO. 13 of 2000

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)

BETWEEN:

DANIEL BALI TULAPI
-Applicant-

AND:

CHARLES MIRU LUTA
- First Respondent -

AND:

DAVID BASUA
- Second Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
- Third Respondent

WAIGANI: Kapi DCJ, Injia & Sawong JJ.
2000: 25th July, 10th October

Counsel:
L. Frank for the applicant
No appearance for the first respondent
D. Hauka for the second respondent
C. Nidue for the third respondent

Judicial Review – Section 155(2)(b) of the Constitution – No power in the National Court to amend petition after the expiration of 40 days – the power to amend does not come within s 212(1) of the Organic Law on National and Local Level Government Elections.

Practice and Procedure – The National Court has jurisdiction to consider the question of consolidation or joint hearing of multiple petitions under s 212(2) of Organic Law on National and Local-Level Government Elections and s 185 of the Constitution.

10th October 2000

BY THE COURT: This is an application for judicial review brought by Mr. Tulapi under s 155(2)(b) of the Constitution in respect of a decision of the National Court under Part XVIII of the Organic Law on National and Local-Level Government Elections (the "OLNE"). 

The relevant chronology of events culminating in this review is as follows: On 28th March 1999 Mr. Luta was declared the winner of a by-election held for the Kagua-Erave Open electorate in the Southern Highlands Province. This by-election was held following an earlier Court decision. Mr. Basua and Mr. Tulapi were loosing candidates in that by-election. On 7th April 1999, Mr. Basua filed election petition EP 1 of 1999 disputing the result of that by-election. Mr. Tulapi filed his own election petition in EP 2 of 1999 disputing that same election result. In both EP 1/99 and EP 2/99, Mr. Luta was named as the first respondent and the Electoral Commission was named as the second respondent.

On 5th March 1999, Mr. Tulapi amended EP 2/99. As the 40 days period allowed by OLNE, s 208(e) to file an election petition had not yet expired, Mr. Tulapi was entitled to amend EP 2/99 in this manner: see Delba Biri v. John Ninkama [1982] PNGLR 342.

On 15th July 1999, Mr. Tulapi’s attempt to consolidate the hearing of EP 2/99 with EP 1/99 was refused by the National Court. Mr. Tulapi could have taken issue with this decision by way of an application for judicial review under the Constitution, s 155(2)(b) but he chose not to: see Masket Iangalio & Electoral Commission v. Wauni Wasia Ranget & Miki Kaeok Unreported Supreme Court judgment No. SC 568 dated 15th October 1998.

Consequently, EP 1/99 was heard first by the National Court. On 16th July 1999, the National Court invalidated the election or return of Mr. Luta and ordered that 3 fresh ballot boxes be counted. As a result of that count, the Court declared Mr. Basua as the winner of that by-election. On 19th August 1999, in SCR 43/99 Mr. Luta sought a review of this decision. On 3rd August 1999, the Supreme Court heard that application and reserved its decision. Between 3rd August 1999 – 29th October 1999, Mr. Tulapi’s petition in EP 2 of 1999 was mentioned in the National Court several times and was adjourned sine die pending the outcome of the Supreme Court review in SCR 43/99. 

On 29th October 1999, the Supreme Court dismissed SCR 43/99. On 9th December 1999, upon learning of the Supreme Court decision in SCR 43/99, Mr. Tulapi filed a motion before the National Court seeking to amend EP 2 of 1999 in two respects, first to substitute Mr. Basua as the first respondent in the place of Mr. Luta ("first amendment"); and second, to add new grounds to the petition in respect of the 3 ballot boxes admitted by the National Court and counted in EP 1/99 ("Second amendment"). On 7th April 2000, the National Court granted the first amendment but refused the second amendment. In the present application, Mr. Tulapi seeks a review of the National Court’s refusal to grant the second amendment. Although he does not take much issue with the first amendment which was granted, he contends that the Court’s decision on the second amendment was inconsistent with the first amendment.

This application raises one important threshold legal issue concerning a petitioner’s right to amend his petition after the expiration of the 40 days period prescribed by OLNE, s 208(e) for the filing of an election petition and the National Court’s power to grant such amendment.

The question is whether a petitioner has a right to amend his petition after the expiration of the said 40 days. This issue was determined by the Supreme Court in Biri v. Ninkama. The Supreme Court said that the petitioner had no right to amend a petition after the 40 days had lapsed. The Supreme Court also ruled in that case that the National Court had no power to make such amendment. To this day, the decision in Biri v. Ninkama has not been overruled. Pursuant to the doctrine of judicial precedent or stare decisis adopted in Schedule 2.8 of the Constitution and the doctrine of subordination of Courts in Schedule 2.9 of the Constitution, the decision in Biri v. Ninkama is binding on the National Court. 

In the present matter, the application to amend the petition was filed well outside the 40 day time limit. The question then arose as to whether the National Court had the power or jurisdiction to amend the petition. The National Court did consider the precedent in Biri v. Ninkama and said "... my own considered opinion on that issue simply is this, that the National Court as a Court of unlimited jurisdiction has inherent power to amend a petition in appropriate circumstances through the life of the petition until final disposition. This surely must be so to enable this Court of justice to effect equity and justice in appropriate circumstances".

At the outset, we are of the opinion that the National Court fell into error in refusing to apply the principles on this point established by the Supreme Court in Biri v. Ninkama. It is not put to us by the applicant that the decision in Biri v. Ninkama is not good law and that we should re-visit the decision. Until the decision in Biri v. Ninkama is overruled by the Supreme Court, it is still binding authority on the National Court.

Notwithstanding the precedent in Biri v. Ninkama, Mr. Frank of counsel for the applicant submits that the power of the National Court to amend an election petition outside the 40 day period is found in OLNE, s 212(1). He submits that even though the power to amend is not specifically listed in the list of powers enumerated in s 212(1), that list is not exhaustive because s 212(1) begins by saying the National Court "may, amongst other things" and the power to amend a petition is one such power which may be extended to the class of powers enumerated in s 212(1). Mr. Nidue of counsel for the third respondent submits s 212(1) cannot be interpreted to confer a specific power which the National Court is excluded from having by necessary implication. Mr. Hauka of counsel for the second respondent assumes there is a power to amend and he refers to Order 8 rule 16 of the National Court Rules 1983 as to some of the considerations which apply as to the manner in which the amending power is to be exercised.

In our view, the jurisdiction of the National Court to hear election petitions is given by statute and the exercise of its powers must strictly be in accordance with the provisions of the OLNE. This Court emphasised this principle in Biri v. Ninkama and many other subsequent election dispute cases.

In our opinion, the class of powers enumerated in s 212(1) are procedural powers given to the National Court to control the conduct of proceedings in court when the Courts sits to hear a petition. Section 212(1) does not apply to the pre-requisites for the commencement of proceedings in the National Court by way of a petition prescribed by ss 206 - 209. This distinction between "pre-requisites for the commencement of proceedings by way of petitions" and "proceeding in Court when the Court sits to hear a petition" is made clear in s 210 and s 212(1). Section 210 says "Proceedings shall not be heard on a petition unless the requirements of ss 208 and 209 are complied with"(our underlying). The opening sentence of s 212(1) says "In relation to any matter under this part the National Court shall sit as an open Court, and may amongst other things". (Our underlying). Section 212 expressly enumerates the powers of the National Court to regulate its own proceedings when the Court is "sitting in open Court" to "hear" a petition that has met the requirements of ss 208 and 209. The power to amend an election petition outside the 40 days is a specific power which neither the OLNE provides for generally nor can the Court construe s 212(1) to give itself that new power. It is for the Parliament to amend the OLNE to give the National Court that specific power. This Court first established this principle in Biri v. Ninkama and it has been applied in many other subsequent election dispute cases.

In the present case, we also conclude from our own construction of ss 206 - 210, and s 212(1) that the National Court had no power or jurisdiction to entertain the applicant’s application for amendment made outside the 40 day period prescribed by s 208(e) in the first place. Having reached this conclusion, it is not necessary to consider the issue of whether the National Court properly exercised its discretion to grant the first amendment and refuse the second amendment sought by the applicant.

This review raises a number of other important questions on election petition procedures on which we would like to make some observations. First, the question arises as to whether a person who is aggrieved by the decision of the National Court declaring a person duly elected or returned in relation to an election petition to which he is not a party, has a right to file an election petition disputing that decision. It is submitted by Mr. Nidue that the applicant should have filed a fresh petition immediately after the declaration of the Court on 16th July 1999. We are of the view that there is no provision in the OLNE which allows for such petition to be filed. OLNE, s 206 which provides for a petition to be filed disputing the validity of "an election or return" relates only to an election or return by the returning officer under s 175(1)(a) of the OLNE following a general election or by-election.

The second question is whether the National Court Rules 1983 has any application to election petition disputes. Mr. Hauka’s entire submissions are based on relevant rules of the Rules pertaining to amendment of originating processes, generally. In our view, once again this issue was determined by the Supreme Court in Biri v. Ninkama. The Supreme Court decided that the National Court Rules do not apply to election petitions. It is clear to us that Mr. Hauka has not read this case and the principles enunciated therein on this point.

The third question is whether various petitions disputing the same election or return ought to be joined or consolidated for purpose of the hearing.

In the present case EP No. 1 of 1999 and EP 2 of 1999 related to the same election. Mr. Tulapi did attempt to join his petition with Mr. Basua’s petition but this was denied by the National Court. Mr. Tulapi could have sought a review of this ruling under Constitution s 155(2)(b) but he chose not to do. As a result, EP 1/99 was heard and resolved first in favour of Mr. Basua whilst Mr. Tulapi’s petition was pending hearing. As a result of the refusal by the National Court to jointly hear EP 1 & 2 of 1999, Mr. Tulapi was completely shut-out from being heard as to the consequences of that petition which might adversely affect his interest. It turned out that the end result in EP 1/99 did affect his interest. This forced him to seek an amendment to his petition in EP 2/99 to add new grounds on matters raised at the hearing of EP 1/99. But we have concluded that such option was not open to him.

The issue of whether or not the National Court has jurisdiction to join or consolidate hearing of separate petitions arising from the same election was discussed in Masket Iangalio’s case, supra. In that case, the majority comprising of Amet J. and Los J. held the view that the National Court has no jurisdiction to (1) try two or more election petitions from the same electorate, where they were not validly consolidated or joined; and (2) to jointly try two separate petitions which plead grounds which are substantively different, the relief claimed are different and inconsistent and the petitioners are represented by separate lawyers. For the meaning of the words "consolidation" or "joinder", and the procedure to be followed, the majority referred to the English common law practice which requires motion on notice and proper grounds to be shown as established in various cases including Howard v. Statesmen Publishing (1929) All E.R. 558 and Levis v. Daily Telegraphs (No. 2) (1964) QBCA 601. The dissenting opinion of Kapi DCJ took issue with the majority on this view and concluded that because the OLNE was silent on the matter of consolidation or joinder of separate petitions, and in the absence of any constitutional regulations made under OLNE, S.212(2), s 185 of the Constitution conferred on the National Court jurisdiction to formulate ad hoc directions in individual cases and in respect of the matter under review, in respect of the practice and procedure relating to the hearing of multiple petitions, the National Court had the jurisdiction to direct that the two petitions on the same election be jointly tried. The majority view in Iangalio was later affirmed by the majority of Amet CJ and Sevua J in David Basua, Electoral Commission and Daniel Tulapi v. Charles Miru, Unreported Supreme Court judgment dated 26th November 1998 whilst Kapi DCJ maintained his dissenting opinion.

In the present case, because the matter of consolidation or joinder of separate petitions was not argued before us, we are unable to address the issue in any detail. That could be done on another occasion in an appropriate case. However the peculiar facts of the present case warrants us to make some remarks on the issue. We consider that there needs to be a distinction made between procedural matters going to jurisdiction and procedural matters going to exercise of discretion. We do not think that the majority in Iangalio’s case meant the National Court completely lacked jurisdiction to consolidate or join separate petitions for the purpose of trial. We understand the majority to mean that if proper application or motion on notice is made supported by proper grounds, the Court is vested or conferred jurisdiction by the parties to determine the matter of consolidation or joinder. As to the manner in which the discretion is to be exercised in the given case will depend on a consideration of a number of relevant considerations including the similarity or otherwise of the grounds in the petition, the relief claimed, the witnesses proposed to be called and the evidence proposed to be led in the trial and the issue(s) to be tried. Also relevant are practical considerations including legal representation and the costs to be incurred by the parties. The dissenting opinion of Kapi DCJ attempts to trace the source of that jurisdiction to the OLNE s 212(2) and the Constitution, s 185. The bottom line under either view, in our opinion, is that the National Court has jurisdiction to entertain an application to join or consolidate separate petitions. The question whether this jurisdiction is conferred by the powers enumerated in OLNE s 212(1); Constitution s 185 or the common law, or rules promulgated by judges known as "Practice Directions" is a moot point that requires to be properly argued and determined conclusively in the future. The manner in which the discretion is exercised is the main focus of judicial review in cases such as Iangalio, supra and Basua, supra, assuming the National Court has jurisdiction to jointly try separate petitions which are validly or properly joined or consolidated. 

In the present case, considering the additional factor that the right to amend a petition outside the 40 days limit is not available to a petitioner and the National Court has no power to grant such amendment, the exercise of discretion of the National Court to allow or refuse a consolidated or joint trial of various petitions disputing the same election should be exercised carefully and in appropriate cases, and in our respectful opinion, the discretion exercised more so than not, in favour of a joint or consolidated hearing. The other relevant considerations discussed in the Iangalio’s case pertinent to the exercise of discretion referred to above and other practical procedural difficulties and complications, some of which are discussed in Iangalio’s case and Basua’s case also need to be carefully considered and balanced. Any decision which would or has the effect of completely shutting out a party from being heard on the election petition(s) disputing the same election result should be avoided. The end result of a joint or consolidated hearing would be that all parties to the various petitions concerning the same election would be given a fair opportunity to be heard on the election dispute and the Court would be able to make a decision which is acceptable to all the parties.

For these reasons, we are of the opinion that even though we find that the National Court erred in assuming jurisdiction to hear Mr. Tulapi’s application for amendment, we agree with the National Court’s end result of that application. Therefore, we dismiss the present application with costs to the respondent.
__________________________________________________________________
Lawyer for the Applicant 		:	Maladina Lawyers
Lawyer for the Second Respondent	:	Dennis Hauka & Associates
Lawyer for the Third Respondent	:	Nonggor & Associates