SC1339
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 11 OF 2014

APPLICATION UNDER SECTION 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

DON POMB POLYE
Applicant
 
AND

LUKE ALFRED MANASE
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2014: 17th October & 2015: 03rd February

SUPREME COURT REVIEW – ELECTION PETITION – Application for leave to review – Review of National Court decision – Dismissal of objection to competency – Objection based on insufficient material facts – Allegations of errors and omissions and illegal practices at counting – Result of election likely or was affected by errors and omissions and illegal practices – Decision not determining proceedings in petition – Dispensation required and sought – Grant of dispensation discretionary – Relevant principles considered – No meritorious grounds – Dispensation refused – Constitution – section 155(2)(b) – Organic Law on National and Local-level Government Election – sections 208(a) & 215 – Supreme Court Rules – Order 5, Rules 7, 8, 14, 15 & 39.

Cases cited:

De Kewano v. Isaac Joseph & Electoral Commission (2013) SC 1261 
Peter Wararu Waranaka v. Gabriel Dusawa (2008) SC942 
David Arore v. John Warisan (2008) SC1030
Sir Julius Chan v. Andrew Trawen & Ian Ling Stuckey (2012) SC1215 
Anton Yagama v. Peter Yama & Electoral Commission (2013) SC1219

Counsel:

Mr. N. M. Cooke, QC for Applicant
Ms. G. Salika, for First Respondent
Mr. R. William, for Second Respondent

RULING

03rd February, 2015

1. MAKAIL, J: The applicant Mr. Don Pomb Polye seeks orders:

1.1. to dispense with the requirement of Order 5, Rules 7 and 8 of the Supreme Court Rules ("SCR") that the decision of the National Court the subject of the proposed review under those rules be a final decision given after the hearing of an election petition pursuant to Order 5, Rule 39 of the SCR,

1.2. to dispense with the requirement of Order 5, Rule 14 of the SCR for him to serve and have the application for leave to review heard within fourteen (14) days of the decision pursuant to Order 5, Rule 39 of the SCR, and

1.3. for leave to review the decision pursuant to section 155(2)(b) of the Constitution.

National Court Decision

2. The orders sought arise from a decision by the National Court constituted by his Honour Mr. Justice Yagi of 09th September 2014 wherein his Honour upheld in part Mr. Polye's objection to competency and struck out certain allegations pleaded in the petition and dismissed the rest of the objection. The gist of the objection was that, the first respondent as the petitioner failed to plead sufficient material facts in support of the allegations of errors and omissions committed in the appointment of the Returning Officer, errors and omissions and illegal practices committed at counting. The decision allowed the first respondent to proceed to trial to prove the remaining allegations. 

3. As the decision did not finally terminate the proceedings, hence not reviewable, dispensation is required and is been sought. If granted, Mr. Polye will seek leave to review the decision pursuant to section 155(2)(b) of the Constitution.

Relevant Principles of Dispensation
 
4. I have considered the written and oral submissions of the parties. Mr. Cooke of counsel for Mr. Polye pointed out that the decision did not finally determine the proceedings in the petition and dispensation is required to review it. 

5. He submits that the Court adopt the principles identified by the Chief Justice in De Kewano v. Isaac Joseph & Electoral Commission (2013) SC1261 in considering the application for dispensation. He submits that these are the relevant principles for the exercise of discretion for dispensing with the strict requirement of Order 5, Rules 7 and 8 of the SCR. Ms. Salika of counsel for the first respondent and Mr. William of counsel for the second respondent did not make any submissions in response to this submission.

6. Mr. Cooke submits that one of the principles is that the proposed grounds must have merits, that is, the trial judge had clearly erred on the face of the record and that, therefore, the review would succeed. In this case, the proposed grounds of review raise the issue whether the finding by his Honour that sufficient material facts in support of the allegations had been pleaded. It is Mr. Cooke's contention that the finding that sufficient material facts in support of the allegations were pleaded is unsupported by the pleadings in the petition, hence wrong. Dispensation should be granted and if granted, Mr. Polye will move the Court for leave to review.

7. Mr William supported Mr Cooke's submissions. As for Ms. Salika, she referred to the case of Peter Wararu Waranaka v. Gabriel Dusawa (2008) SC942 by Injia, DCJ as he then was which was followed by his Honour in David Arore v. John Warisan (2008) SC1030. That case pointed out that there is a requirement for dispensation if the decision of the National Court does not determine the proceedings in the petition. But she did not refer me to a case which sets out the relevant principles for the exercise of discretion in such a case. 

8. I consider that the requirement to dispense with Order 5, Rules 7 and 8 of the SCR is distinct and separate from the requirement to seek leave to review under section 155(2)(b) of the Constitution. As it is a distinct and separate requirement, the principles upon which the discretion is exercised may not be the same as those for leave to review. This is because by necessary implication, Rules 7 and 8 prohibit reviews from decisions of the National Court which do not determine the proceedings in the petition. 

9. Rule 8 states:
 
"8. A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application for an election petition review."

10. According to Rule 7, "decision means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended)."

11. An application for dispensation is made under Order 5, Rule 39 which states:

"39. The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law."

12. These Rules reinforce the underlying principle that a successful candidate of an election must be given the uninterrupted benefit to represent the people of the electorate in Parliament. Only decisions which determine proceedings in the petition are reviewable, subject of course to leave.

13. In Sir Julius Chan v. Andrew Trawen & Ian Ling Stuckey (2012) SC1215, the Chief Justice expressed this underlying principle in this way:

"The requirement for reviews to proceed by leave only, granted by a Judge of the Supreme Court gives effect to the constitutional dictate in the OLNLLGE that a decision in an election petition is final and not subject to appeal or question in any manner. It reinforces the constitutional position that the review jurisdiction of the Supreme Court under s 155 (2)(b) of the Constitution is highly discretionary and is available in limited cases with exceptional circumstances." 

14. His Honour went on to suggest the following tests or principles to be applied in deciding the question of dispensation: 

"(1) Whether the rule is founded on the dictates or requirements of law and expressed in mandatory terms requiring strict compliance.

(2) The impact of non compliance on the parties.

(3) Whether there are alternative avenues open under the rules of court for the applicant to seek redress in Court for the same grievance.

(4) Whether the requirement of the rule sought to be dispensed with is one that is fundamental and one that goes to the very foundation upon which the Court's review jurisdiction is based; and if the dispensation were granted, it would render the review procedure contained in the PRR ineffectual or meaningless, and tantamount to re-writing the rules of court by judicial act. In other words those rules must be ancillary and facilitate implementation of the substantive provisions of the rules that create avenues for relief by way of judicial review."

15. I would adopt them. I would add a further principle. This is the one Mr. Cooke advanced in his submissions. As the Supreme Court comprising of Sakora, Manuhu and Kariko, JJ in Anton Yagama v. Peter Yama & Electoral Commission (2013) SC1219 further suggested, "....... such dispensation with the requirement should only be granted where the trial judge had clearly erred on the face of the record and that, therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested (s 208 (c) and (d)), and the security for costs had not been deposited (s 209) Organic Law, and the petition proceeded to substantive hearing despite these clear breaches." 

Application of Principles

16. In relation to the first and second principles, the requirements of the law according to Rules 7 and 8 require strict compliance. A party aggrieved by a final decision of the National Court shall file an application for an election petition review. The only way to have a decision that is not final reviewed is to seek dispensation. It is a fundamental requirement which if not complied with will render the entire proceedings incompetent.

17. But dispensing with the requirements of Rules 7 and 8 may render ineffectual and meaningless these Rules which are by necessary implication intended to prohibit reviews against decisions of the National Court which do not finally determine the proceedings in the petition. They are intended to ensure speedy trial of the petition; that the petition proceed to trial without having to be delayed simply because of a review against a decision which is not final. 

18. In my view, the parties' rights and interests in the matters in dispute between them are not extinguished by the decision. An applicant who has sought unsuccessfully a dismissal of a petition for being incompetent has the opportunity to defend or respond to the allegations at the trial. Thus, in order for the Court to grant dispensation the applicant must show from the proposed ground of review that the trial judge clearly erred on the face of the record and that, therefore, the review would succeed.

19. In the context of this case and moreover the dismissal of the objection to competency, the proceedings in the petition are well and truly alive and it is not simply a matter for Mr. Polye to challenge the decision because he is unhappy or aggrieved by it. It must be something more than that; there must be a clear error made by the trial judge in order for the trial of the petition to be delayed by reason of the dispensation. Re-emphasising the point here, this is because he still has the opportunity to defend or respond to the allegations levelled against him and the Electoral Commission at the trial.

20. The application for leave to review itself sets out 4 proposed grounds of review. None of the grounds alleged errors which the Supreme Court in Anton Yagama's case (supra) cited as examples as clear error which would clearly succeed on review, ie., failure to sign and attest the petition (section 208(c)) or failure to pay security for costs (section 209). As noted, they challenge the trial judge's finding on the sufficiency of material facts pleaded in the petition pursuant to section 208(a) of the Organic Law on National and Local-level Government Elections ("Organic Law"). 

21. The allegations in the petition which the trial judge allowed to go to trial and are the subject of the proposed review are:

 18.1. Failure to appoint a Returning Officer: paragraphs 7 to 32.
18.2. Discrepancies in the votes tally during counting: paragraphs 33 to 45.
 18.3. Failure to count 5 ballot boxes: paragraphs 46 to 52.
 18.4. Ballots in excess of Common Roll; paragraphs 53 to 60.

22. In relation to the first and second grounds, Mr. Cooke submits that the petition does not state how the Electoral Commission failed to appoint the Returning Officer and how this affected the polling and the results of the elections under section 215 of the Organic Law. The petition does not state the dates, times, names of personnel and place where the errors and omissions and illegal practice occurred. 

23. But I have to agree with the trial judge in his consideration of these allegations. The pleading shows consistency in the material facts. In fact, it is very detail, beginning with a background history of how the Returning Officer for Kandep Open was appointed and ending up with confusion as to who the legitimate Returning Officer was because after the Returning Officer was appointed, another person was purportedly appointed Returning Officer. 

24. There was Mr. Naipet Keae and then there was Mr. Leo Talipan. Attempts were made by the first respondent and other candidates to have Mr. Keae removed either through legal proceedings commenced in the National Court by way of judicial review or protests to the Electoral Commission but were unsuccessful. Mr. Keae was the person who supervised the counting of votes, then Mr. Talipan and then Mr. Keae until its conclusion despite serious objections from the first respondent and other candidates. The candidates are entitled to know who the legitimate Returning Officer is and authorised person to conduct and supervise the counting.

25. Mr. Keae was in charge of the counting of votes when allegations of alteration and discrepancies of tally of votes at Count 1 to Court 6 rose. From my reading of the pleadings, the allegations are clear and specific. The winning margin was 94 votes. This figure was derived from Count 67 tally of 47,713 and the absolute majority of 50% plus 1 which was 23,858. Mr. Polye was declared winner when he received 23,952 votes. 94 votes was the difference between 23,952 and 23,858.

26. The allegation was, Mr. Polye received no votes between Count 1 and Count 6 and yet at the beginning of Court 7, the tally showed that he received 2,832 votes. So where did these votes come from? Someone needs to explain or account for them, especially when the winning margin was 94 votes. The number of votes does have a bearing on the final outcome of the election. The result of the election was likely to be affected.

27. The other allegations of discrepancies relate to Count 63 to Court 67. Again, the petition sets out the numbers of votes received by Mr. Polye and the first respondent and the progressive tally for each count. Paragraphs 39 to 45 of the petition sets in detail the discrepancies in the tally from Count 63 to Count 67. In my view, the pleading of these allegations of fact cannot be said to be insufficient or inadequate. 

28. Before I finish, I should point out here too that the allegation of errors and omissions and illegal practices is in relation to the conduct of counting and not polling. Facts in relation to dates, times, personnel and place are matters relevant to conduct of polling, thus I agree with the trial judge that their absence from the pleadings are of no real consequence. 

29. With regard to the allegation of failure to count 5 ballot-boxes, Mr. Cooke's submission is that the pleadings did not state whether there was proper polling in the polling places where the 5 ballot- boxes originated from. He submits that this is a vital fact to show whether polling was conducted and if it was, whether it was conducted well and therefore, there was no reason not to count them.

30. Moreover, the trial judge did not give detail reasons for rejecting the submissions of the defence and why he considered that not pleading that polling was conducted properly or not was not important. Failure to give detailed reasons may in itself be a ground to uphold the review.

31. These are the applicant's contentions but what did the trial judge say? It is worthy to go back to the trial judge's decision to find out what he said. The trial judge said at page 15, lines 40 and 41 of the decision these:

"40. The petitioner says that in the normal conduct of the counting process the retuning officer is legally obliged to count the ballot papers inside the 5 ballot boxes unless he decides otherwise and in which case he is required to give reasons for his decision to exclude the 5 boxes from counting. The allegation is that no reason at all had been given and therefore this constitutes an error or omission and when this is considered in the light of the winning margin and the 3,248 discounted ballot papers, such error or omission have affected or did affect the results of the election. 

41. I find favour in the submissions of the petitioner. I find that material facts have been pleaded........"

32. With respect, based on these reasons, it is wrong and mischievous for Mr. Polye to say that the trial judge failed to give detailed reasons. The trial judge did give his reasons. His reasons are as per the first respondent's submissions and it is sufficient to infer that he rejected the submissions for the reasons given by the first respondent. Conversely, he does not need to repeat what the first respondent had submitted nor does he need to expressly state why he rejected Mr. Polye's submission. 

33. The allegation is the 5 ballot-boxes were supposed to be counted. According to paragraph 47 of the petition, these boxes were from Lungutenges No. 1 ward with 479 ballot-papers, Kombros No. 1 ward with 635 ballot-papers, Kambia No. 1 ward with 520 ballot-papers, Maru ward with 772 ballot-papers and Imipiaka ward with 842 ballot-papers. The Returning Officer did not have them counted. Why did he do that? He gave no reasons when one is and was expected. 

34. There are no allegations of tempering of these boxes and/or objections raised by scrutineers of candidates against the counting of these boxes and so if the Returning Officer did not have them counted, the onus is on him to give his reasons for not having them counted. I find the submissions on behalf of Mr. Polye mischievous and without merit.

35. Mr. Cooke's submission in support of the fourth and final proposed ground of review is that as the trial judge struck out paragraph 57 of the petition which alleged extra ballot-papers tally and allowed the balance of the allegations to proceed to trial, he erred. 

36. Mr. Cooke submits paragraph 57 pleaded illegal practice and his Honour at paragraph 50 of his decision concluded that:

"First and foremost no names of the persons who allegedly committed an illegal act are stated. Secondly the pleading does not say whether the illegal practice was committed on behalf of the respondents, and if so, whether it was committed with the knowledge and authority of the respondents. Thirdly, the pleading does not state that the illegal practice was likely to or did affect the result of the Election."

37. Counsel further submits that his Honour allowed the balance of the grounds which he considered relate to errors and omissions to proceed to trial and at paragraphs 52 and 53 of his decision, held that:

"A reading of the pleading (paragraphs 53 – 60) as a whole demonstrate clearly that the allegation concerns errors in implementing proper procedures in the scrutiny of the ballot papers before they are admitted for counting. I fail to see any ambiguity or confusion arising in the pleading. They are clear and not speculative. 

I therefore accept the submission by the Petitioner that the allegation is clear and is essentially in relation to the scrutiny and counting of entire 2130 ballot papers. The allegation concerns lack of implementation of proper procedure in the scrutiny of the ballot papers before they are admitted for counting."

38. According to Mr. Cooke's submission, this conclusion is wrong because firstly, it is unsupported by the pleadings. There is no pleading in relation to the proper procedure in the scrutiny of ballot-papers before admission for counting and its implementation. Secondly, there is no pleading on whether section 153(A) of the Organic Law was administered. It would provide the basis for this ground because it would clearly show whether objections were raised and whether to admit a ballot-box for counting or not and how the errors and omissions were committed by the electoral officials.

39. Thirdly, the allegation presupposes existence of illegal practice at polling places with speculation that double voting took place with extra ballot-papers. There are no facts to show what happened at the polling places.

40. With respect, the submissions made on behalf of Mr. Polye are misconceived. They miss the point. The point is at counting, there were 2,130 extra votes. The parties are aware of where they came from because the first respondent has pleaded the names of the polling places. It is for the Returning Officer to explain why they were counted and it is inconceivable to suggest that there is no proper basis for raising this allegation given the glaring error in the total number of votes counted after Count 67.

41. The summation of the allegations of fact pleaded at paragraphs 53 to 60 excluding paragraph 57 is this, the second respondent through its Returning Officer and counting officials did not conduct the counting properly and as a result, extra votes were received by Mr. Polye when the final results were announced. The extra votes of 2,130 were likely or did affect the result of the election given that the winning margin was 94 votes. I find this ground misconceived and without merit.

Conclusion

42. I conclude there are no meritorious grounds and the application must fail, Mr. Polye will pay the first respondent's costs and as the second respondent supported the application, in my discretion I order that it bear its own costs.

Order

43. The orders of the Court are:

1. The application for dispensation of Order 5, Rules 7 and 8 of the SCR is refused.

 2. The whole proceedings are dismissed.

3. The applicant shall pay the first respondent's costs of the proceedings, to be taxed, if not agreed.

4. The second respondent shall bear its own costs.

5. The security deposit of K5,000.00 held by the Registrar shall be released and paid to the first respondent as part payment of his costs.

_______________________________________________________________
Paulus Dowa Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent