SC941

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 17 OF 2008

APPLICATION UNDER S 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:

ROBERT KOPAOL
Applicant

AND:

PHILEMON EMBEL
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, DCJ
2008: 26th September

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution – Dismissal of election Petition on competency grounds – Failure to plead facts required by s 208(a) of Organic Law on National and Local –Level Government Elections - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended) - Exercise of discretion. 

Cases cited: 
Biri v Ninkama [1982] PNGLR 342
Ijape v Kimisopa (2003) N2344
Sauk v Polye (2004) SC769

Counsel: 
G Shepphard with C Copland, for the Applicant 
G Garo, for the First Respondent
R William, for the Second Respondent

26th September, 2008

1. INJIA, DCJ: 1. 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 (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the "Petition Review Rules)). It is contested by the first respondent. The second respondent supports the first respondent and made submissions on the law only. Counsel representing all the parties presented oral and written submissions and I reserved my ruling which I now deliver.

2. A short background to this application is that on 28th July 2007, the first respondent was declared the duly elected member for the Nipa- Kutubu Open Electorate in the National Parliament. The first respondent won by 18,829 votes whilst the applicant was the runner up with 18,126 votes, a difference of 645 votes. On 5th September 2007, the applicant disputed his election by filing an election petition. On 6th September 2007, an Amended Petition was filed. On 26 October 2007, the first respondent filed a Notice of Objection to Competency of the petition. On a date unknown in 2008, the first respondent filed an amended notice of objection to competency. Pursuant to r 15 of Election Petition Rules, the objections were dealt with at the commencement of the trial. The trial commenced on 15th April 2008 and was concluded on 23rd April 2008. The trial judge upheld the "objection to competency" and dismissed the petition. The applicant seeks a review of this decision. 

3. Copies of the initial notice of objection and the amended notice of objection are not before me. A belated attempt by the applicant’s counsel to produce them to the Court was refused. This leaves me to discern the grounds of objection from the judgment of the court below and the other documents filed in these proceedings and submissions made before me.

4. Recently, in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC935, this Court laid down the criteria or principles for grant of leave, in the following terms: 
 
"When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1.	Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE: Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC915.

2.	The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC572.

3.	The three criteria set out for grant of leave in Aviha Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.

4.	The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -

 First, 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: Application by Herman Joseph Leahy (2006) SC855;  Application of Ludwig Patric Shulze (1998) SC 572. 

 Second, 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: Kasap v  Yama [1988-89] PNGLR 81, Application of Ludwig Patric Shulz (1998) SC572 Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723; and such that a review of  the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases. 

11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. 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."

5. The proposed grounds of review set out in the application for leave mainly relate to points of law because the Petition was not tried. Some of the grounds raise matters of facts relating to the procedural manner in which the judge dealt with the two notices of objection.

6. There are twelve (12) proposed grounds of review set out in the application and these are:

1.	Although the learned trial Judge (‘the Judge")correctly struck out the First Respondent’s Amended Objection to Competency filed on an unknown date and served on the Petitioner on the 9 April 2008 as an abuse of process, the Judge erred in law in then proceeding to uphold the Notice of Objection to Competency filed the 26 October 2007 and dismiss the Petition because:

(1)The Notice of Objection to Competency filed 26 October 2007 was not moved in Court by the First Respondent, and was not therefore before the Judge.

(2)	The only Objection to Competency moved before the Court was that served on the Petitioner on the 9 April 2008.

(3)	The Notice of Objection to Competency filed 26 October 2007 merged with or was subsumed by the filing of the Amended Notice of Objection to Competency served on the Petitioner on 9 April 2008, and could not be relied on.

(4)	Accordingly, the Judge had no jurisdiction to uphold the Objection of Competency because neither Notice of Objection to Competency filed 26 October 2007.

2. In any event, the Judge did not have jurisdiction to uphold any Objection to Competency because neither Notice of Objection to Competency gave the Petitioner;

(1) fair or proper notice of the grounds upon which the Objection to Competency was based (as required by the National Court Election Petition Rules), or

(2)	sufficient particulars thereof to enable the Petitioner a fair opportunity to respond thereof, and

(3)	the Petitioner was ambushed and caught by surprise, and therefore constituted a denial of natural justice for the Petitioner.

3. The Judge erred in law and in fact:

(1) in finding that the Petitioner did not object at the outset of the First Respondent’s Amended Objection to Competency, when in fact such an objection was made by the Petitioner’s lawyer; and

(2 ) Failing to uphold the objection by the Petitioner’s lawyer at the stage and proceed to trial; and

(3) Proceeding to hear the First Respondent’s Amended Objection to Competency notwithstanding the Petitioner’s objection at the outset.

4. The Judge erred in fact and law finding that by not relying on some parts of the Petition as pleaded, the Petitioner accepted some of the Respondent’s submissions, when the contrary was the case. He should have found in accordance with the Petitioner’s submissions that the purpose of not relying on all of the grounds in the Petition as pleaded was simply to narrow the issues for trial, not to concede to the submissions of the First Respondent.

5. The Judge fell into error of fact and law at paragraph 58 of his decision when he held that the Petition was defective because it does not allege that the Kum polling place had been unlawfully abolished by the Second Respondent by its servants or agents, such that it would rely on section 43 of the Organic Law on National and Local-Level Government Elections (the Organic Law). In doing so:-

(1) he misconceived the Petitioners case because:

(i)	The only remaining issue in the Petition was (as the Judge correctly stated at paragraph 49 of his decision) was:

"Did the Electoral Commission by its servants and agents unlawfully move the polling placer from Kum village to Kapit Community School", and not the unlawful abolition of a polling place, which is a totally different issue not raised ore relied on by the Petitioner.

(ii)	Having correctly stated the issue in those terms, the Judge should have found in accordance with the Petitioner’s submissions and applying the Supreme Court decision in SC 769 Jimson Sauk v Don Pomb Polye and the Electoral Commission, that the only essential facts required to be pleaded under section 208(a) of the Organic Law are:

•	The gazetted polling place was Kum; and

•	The Ballot Box for polling at Kum was No 0642, (the Kum Ballot Box); and

•	Polling gazetted to take place at Kum Ballot Box was required to be located and take place at Kum to be valid;

•	The Kum Ballot Box was removed by the First Respondent from Kum to Kapit, a long distance away from Kum; and

•	The Ballot Papers cast at Kapit in the Kum Ballot Box were invalid for that reason and should not have been counted.

(2) he erred in finding that as a matter of competency the Petitioner was required to plead matters of law, when only matters of fact are required to be pleaded under section 208(a) of the Organic Law.

6. The Judge correctly observed at paragraph 68 of his decision that while the Organic law prohibits the abolition of a polling place after the issue of a writ and before the return of the writ, it does not provide for moving or shifting of polling places to the other places and under what circumstances they may be moved or shifted. Having so found, the Judge should have dismissed the Objection to Competency and allowed the Petition to go to trial because;

(1) it alleged that the Kum Ballot Box was moved by the First Respondent from Kum to Kapit, a fact for which there is no lawful authority, justification or excuse in the Organic law; and

(2) the obligation of the Second Respondent under the Constitution is to conduct elections in accordance with the Organic law, which on the facts pleaded, was breached in this case.

7. The Judge erred in fact and law at paragraph 72 of his decision in finding that the Petitioner did not also alleged errors and omissions against the Second Respondent, when the contrary is the case.

8. The Judge erred at paragraph 73 to 79 of his decision in finding that there were insufficient facts pleaded and relied upon to support the granting of relief in the form of a recount. He should have found that sufficient facts were pleaded to ground an order for a recount because of the matters alleged in paragraph 1 to 5, 7 to 16, 20, 23, 24, 29, 31, 50 –to 60, 62 and 63 of the Amended Petition.

9. The Judge erred in finding that a direction by the Electoral Commission to the Returning Officer to count the Kum Ballot Box pursuant to section 18 and 19 of the Organic Law overrides the provisions of section 153A of the Organic Law, and the Constitution. In any event matters of law should be dealt with at the trial not at the competency stage.

10. The Judge erred in law finding that a decision by the Electoral Commission to count Kum Ballot Box overcomes the invalidity of the ballot papers in the Kum Ballot Box, and should have found instead that the said decision to include the Kum Ballot Box in the Count was invalid.

11. The Judge erred in law in;

(1) making conclusions on law at the competency stage, as only issues pursuant to section 208 of the Organic Law are to be considered as to the competency of a petition to proceed to trial; and

(2) failing to apply the authority of Supreme Court decision SC 769 Jimson Sauk v Don Pomb Polye and the Electoral Commission, in dealing with the Objection to Competency.

12. Further and in the alternative, the dismissal of the petition was contrary to section 41 of the Constitution as such dismissal was not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

7. Ground No. 1, 2 & 3 are related and they can be dealt with together. The applicant is pleading the correctness of the judge’s ruling in dismissing the amended notice of objection but pleading that the judge erred in dealing with and upholding the original notice of objection: 

(a ) The point of law arising from grounds 1 & and part of 2 is whether it was open to the judge to deal with the original notice of objection after the amended notice of objection had been struck out. Counsel for the applicant made extensive submissions on the effect of an amendment of originating processes and pleadings in ordinary civil suits and cites various cases to support his contention that once an originating process, notice or pleading is amended, it replaces the original document. Therefore it is not open for a party or the Court to revert to the original document and assume jurisdiction and grant orders sought therein. Counsel did not cite any local or overseas cases on amendment of an election petition or notice of objection to an election petition. The Election Petition Rules do not provide for a formal notice of objection to competency and amendment of the same. By implication, it is left to the Court or judge to issue directions in individual cases to deal with such notice of objection as it arises. The judge has wide discretion on these sorts of procedural matters. Further, the fact that copies of the two notices of objection are not before me does not assist me in appreciating the importance of this procedural point. In the circumstances, I am not satisfied an important point of law with merit that is worthy of full argument before the Supreme Court has been demonstrated. Also no gross error of fact has been demonstrated by the applicant. Leave is refused in respect of these grounds.

(b) It follows that to the extent that ground 2 raises issues on the amended notice of objection which had been dismissed, it does not raise an important point of law. 

(c) It also follows that ground 3 which relates to the petitioner’s objection to the Amended notice of objection does not raise an important point of law which has merit. 

8. Ground 4 is broadly framed and it is too general. The statement of the judge appearing at page 21, paragraph 43 of the judgment is also a general statement. No important and specific point of law of merit is demonstrated. 

9. Ground 5, 6, 9 and 10 relate to polling intended for Kum polling place, the polling was shifted to Kapit Community School where voting took place and counting of votes contained in Kum ballot-box number 0642 at the counting centre. They can be dealt with together. The facts pertaining to these matters are pleaded in the Amended Petition, paragraphs 9-16, 20 and 21 (at Kum village), paragraphs 24, 29 & 31 (at Kapit village) and paragraphs 52-62 (at the counting center) . Many of the paragraphs in the Amended Petition relating to alleged illegal activities conducted in these three places were withdrawn by the petitioner.

10. The applicant’s case in respect of these grounds 5, 6, 9 and 10 is that Kum polling place was the gazetted polling place but polling officials moved to Kapit Community School without authority to obstruct the free exercise of franchise to vote in that election. At Kapit the Kum polling team set up a second polling booth besides the one that was already there and voting continued beyond 6 pm and thereby the electoral officials unlawfully prevented the free exercise of franchise by Kum voters to vote in the election. For this reason ballot-box No. 0642 was objected at the scrutiny. Initially the Returning Officer correctly refused to count the box. The Deputy Electoral Commissioner wrongly wrote to the Commissioner advising him to authorize the counting of the box. The Commissioner wrongly wrote to the Returning Officer advising him to count the box. The Returning Officer wrongly decided to count the box and the box was counted. After this box was counted, the first respondent tallied 1,063 votes from this box and went on to win the election. Had this ballot-box remained excluded from the count, the applicant would have won the election by 418 votes. 

11. A number of points of law have been argued before me in relation to these grounds of review and I deal with them in this manner: 

(a) I am unable to understand the nature of the objection to competency in respect of these grounds because the notices of objection to competency is not before me. This does not assist the applicant because as I said previously, the onus is on him to provide these documents.

(b) Nevertheless, it is clear from the judgment that the main issue before the judge was: "Did the Electoral Commission by its servants and agents unlawfully move the polling from Kum to Kapit Community School". The judge found that nowhere in the petition was it pleaded that Kum polling place had been abolished by the second respondent by its servants or agents such that the petitioner could rely on s 43. The applicant says the judge correctly identified this issue but erred in law when he found there was no pleading on abolition of Kum polling place. Counsel for the applicant submits however that the applicant’s case was not about abolition of Kum polling place but about polling being shifted to an unscheduled or unauthorized polling place and that the judge erred when he found there was no pleading on abolition of Kum polling place. From my reading of the judgment, the petitioner relied on breach of s 43 of OLNLLGE. The judge made two observations about this section. First, this section was not pleaded in the petition in accordance with case authorities such as Ijape v Kimisopa (2003) N2344 and second, this section provides for appointing and abolishing a polling place. The judge found that nowhere in the petition was it pleaded that Kum polling place had been abolished by the second respondent such that the petitioner could rely on s 43. 

(c) I do not know how the applicant introduced the argument based on s 43 in Court but the judge determined the objection based on the wording of s 43. This Section states:

"43. Polling places
(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 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".

(d) From a plain reading of this provision, an allegation of fact made about the unlawfulness of a polling place can only be brought in respect of the appointment or abolition of a polling place. I agree with the judge that the facts pleaded in the petition did not come within the ambit of s 43. Counsel for the applicant’s submission is that the applicant’s case was not about abolition of Kum polling place but about polling shifted to an unscheduled or unauthorized polling place. I do not know the exact nature or wording of the grounds of objection to competency but s 43 is not a provision which deals with shifting polling schedule or shifting of polling from one polling place to another polling place and polling taking place at the new polling location. The Section deals with appointment of a polling place and abolition of a polling place. In order to bring a ground in a petition within the ambit of s 43, one must plead if a polling place was not lawfully appointed or abolished under s 43. Simply moving polling activities from one polling place to another polling place, both polling place of which may be duly appointed polling places within the same electorate, in order to facilitate voting, to my mind cannot amount to breach of s43. The judge was quiet right in his reasoning. Therefore there is no important point of law raised which has merit. 

(e) The other issue of specifying the provision breached also does not raise an important point of law which has merit in view of the cases decided already. Extensive arguments were made before me on the courts’ new trend in the development of new principles in cases including the judgment of the Supreme Court in Sauk v Polye (2004) SC 769 which has been quoted extensively by the applicant’s counsel. The pinnacle of this new thinking is of course Sauk v Polye. The same arguments were open to be made before the judge. However, there is no reference in the judgment to Sauk v Polye from which I assume that this case was not considered by the judge. In Sauk v Polye, Supreme Court advocated a more broader and flexible approach in dealing with petitions and more particularly pleadings in a petition and objections to competency of a petition rather than the more restrictive approach in the Supreme Court decision in Biri v Ninkama [1982] PNGLR 342. The development of a more appropriate jurisprudence in the approach in dealing with election petitions and more particularly in relation to pleading in a petition and objections to competency of the petition is always open to the Court. But the judge did not rely on Biri v Ninkama and Sauk v Polye. The judge cannot be said to have erred in not adopting a different approach consistent with Polye v Sauk as opposed to Biri v Ninkama. I agree that the judge’s approach was consistent with the approach in Biri v Ninkama. Unlike Sauk v Polye which was decided by 3 - member bench, Biri v Ninkama was decided by 5 - member bench and it is still good law until a bench comprising of a greater number of judges in an appropriate case overrules Biri v Ninkama. I do not consider the present case to be one such case because on the face of the judgment, the judge was not asked to follow Sauk v Polye as opposed to Biri v Ninkama. I am not satisfied an important point of law which has merit has been established.

(f) Further, it was open to the judge to insist that for purpose of clarity, it is necessary to plead the relevant provision of the law alleged to have been breached as case authorities such as Ijape v Kimisopa established. The provisions are necessary to understand the relevance of the factual ground pleaded. For these reasons, I am satisfied there is no important point(s) of law which has merit established in the particular circumstances of the present case. 

(g) In relation to polling at Kapit, the applicant relies on the obiter observation of the judge which appears in paragraph 68 of his judgment. An obiter observation of course does not raise an important point of law. In any case, ground 6 which deals with polling at Kapit follows on from the correctness of the pleading of unlawfulness of shifting of polling from Kum to Kapit. It follows from my conclusions in relation to Kum polling place that this ground also lacks merit.

(h) In relation to ground 9, the applicant places much reliance on breach of s 153A (4). The applicant’s argument is that a decision of an electoral officer in respect of a exclusion of a ballot- box from a count pursuant to s 153A can only be challenged in a petition filed under Part XVIII of OLNLLGE. In my view, this argument is misconceived. Subsection (4) relates to the challenge to a decision made by the Returning Officer excluding a box on his own accord pursuant to s 153A(1) or in response to an objection by a scrutineer of a candidate pursuant to s 153A (2). Section 90 of the Regulations made under OLNLLGE complements the procedure in s 153A. Such a decision is challenged by a candidate or a person who is aggrieved by an election or return by way of an election petition filed under Part XVIII of the OLNLLGE. The Electoral Commission does not qualify as a Petitioner under this Part XVIII. The judge considered s 153A and s 90 of the Regulations. His conclusions are consistent with my reading of these provisions. This point does not raise an important point of law which has merit.

(i) In relation the powers of the Electoral Commission vis- a- vis the Returning officer’s powers under s 18, 19 and 153A of OLNLLGE and s 90 of the Regulations, I accept the first respondent’s submission that the judge was clearly correct when he said s 18 and s 19 gives the Electoral Commission supervisory powers over Returning Officers when they are conducting a scrutiny. This supervisory power includes supervision of Returning officer’s performance of functions at the scrutiny or counting of votes which includes exclusion or admission of ballot boxes in counting. I agree with the judge that it is "nonsensical" to suggest the Electoral Commission does not have such powers. After-all the Returning Officer is an agent or servant of the Electoral Commission. The judge also correctly noted no question of integrity of this box was raised in the grounds over the Kum box. In the light of all these matters, I do not think this point raises an important point of law which has merit.

(j) In summary, I am satisfied no important point of law arises which have merit. Leave is refused on grounds 5, 6, 9 and 10.

12. Grounds 7 which says the judge erred in finding the petitioner did not also allege error and omissions against the second respondent is vaguely and broadly pleaded and is of no consequence. It does not raise an important point of law. Leave is refused.

13. In relation to ground 8, the correct relief for an order for recount was pleaded in paragraph 63 (iii) & (v) but the judge found that the petitioner failed to plead facts supporting this relief. I agree with the judge that with the demise of the grounds relating to what transpired at Kum and Kapit polling places and given the withdrawal of the grounds relating to alleged illegal activities carried out at the Club house and the first respondent’s house, there were no facts to support an order for recount. This ground has no merit and leave is refused.

14. Ground 11 is based on extensive submissions made before me on the strength of reasoning in Sauk v Polye. From what I concluded above in the application of the principles in this case, it follows that this ground has no merit. 

15. Ground 12 relates to application of s 41 of the Constitution to exercise judicial power and functions. There is a case cited by Mr Sheppard which is SCR No. 1 of 1984 Re Morobe Provincial Government [1984] PNGLR 212. I am not sure if this case assists the applicant’s argument. I know of no case on point which applies to a decision of the National Court sitting as Court of Disputed Returns dealing with and upholding an objection to competency of a petition. I do not think this point is an important point of law with merit.

16. The final upshot of the foregoing reasons and conclusions is leave is refused in respect of all 12 grounds of review. Consequently the application for leave for review is dismissed with costs to the respondents. 

Young & Williams: Lawyer for the applicant
Paraka Lawyers: Lawyer for the first respondent
Nonggorr & Associates: Lawyer for the second respondent
_________________________________________

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV. 17 OF 2008

BETWEEN:

ROBERT KOPAOL
Applicant

AND:

PHILEMON EMBEL
Respondent

Waigani: Injia, DCJ
2008: 11 September

RULING ON OBJECTION TO ADMISSIBILITY OF NOTICES OF OBJECTION TO COMPETENCY.

I have considered the submissions of both counsel made this morning on the issue of admissibility of the Applicant’s affidavit which annexes copies of the two Notices of Objection to competency in question. Without restating those submissions, I respond to them in this way.

1. Rule 4 of the Petition Review Rules requires the applicant to file an affidavit in support of the application for leave, which should set out the circumstances of the application and annex a copy of the Petition and the National Court’s judgment. Rule 8 requires the affidavit to be served on the respondent together with the application for leave. Those provisions have been complied with.

3. In the grounds of review set out in the application and the submissions made by counsel for the applicant and counsel for the First Respondent, reference is made to how the trial judge acted correctly or erred in dealing with two Notices of Objection to competency. They made submissions on whether the trial judge erred in law in allowing the objections contained in the initial Objection to competency which had been superseded by the Amended Objection to competency. Initially written extract of arguments were filed and full written submissions have been presented followed by oral arguments. We are now at the concluding stage where counsel for the applicant is in the middle of his closing arguments in rebuttal. Up to this point, none of the parties, especially the applicant and the first respondent have seen it necessary to produce to the Court copies of the two Notices of objection to support their arguments. 

3. Documents filed in the National Court in the petition proceedings do not stand automatically admitted before the Supreme Court. The two documents in this case are obviously relevant to the application before me, and that is the reason why I enquired of parties yesterday as to whether they could be produced to the Court by consent of the parties. Under the Petition Review Rules, the Court is given no power to request or compel parties or allow parties to produce new affidavit evidence which were not filed at the time the application for leave was filed. My invitation to counsel yesterday to discuss the production of these documents was not a request to the parties to produce those documents and should not be interpreted as such. 

4. The filing of affidavit material for purpose of leave application is governed by r 4 of the Review Rules. Under this provision, Notices of Objections to competency is not required to be annexed to the affidavit filed in support of the application but in a case where the application related to a final ruling on an objection to competency, the Notice of objection should be annexed to the affidavit and this is covered by the broad phrase " the affidavit shall set out the circumstances pertaining to the application" in r 4. The onus is on the applicant to file those documents as part of the affidavit.

5. In the present case, even though the grounds of review raise matters relating to how the trial judge dealt with the two objections to competency, the applicant saw no need to file those documents then. The applicant saw no need to produce them at the time of filing his extract of arguments and presenting his full submissions in Court yesterday. The parties in particular the applicant saw no need to produce those documents at the conclusion of his submissions and submissions for the first respondent. 

6. The provision of the new Petition Review Rules are intended to be complied with strictly by parties and read and applied strictly by the Court. If a party has difficulty in complying with any of the requirements of the Rules, proper application should be made to dispense with requirement of the rules and not made in Court in the course of argument on an objection to admissibility of new evidence, as done in this case.

7. I am required to do justice to the parties in accordance with law. Because election cases have their genesis in politics of government, the Court should be well advised to decide the case based on the case presented by the parties and not be seen to run the case for a party or parties. 

8. In my view, the application to tender new evidence has come too late; parties have not required the production of these documents for the Court’s use up to this point and we are now in the concluding stage of submissions. The Court must decide the case on the strength of the case presented by the parties and that is without the two Notices of Objection to competency. For these reasons, I rule that the evidence sought to be tendered is inadmissible.

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