SC2290
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 3 OF 2021

BETWEEN

WILLIAM POWI
  Applicant

AND
PASTOR BERNARD KAKU
First Respondent

AND
ELECTORAL COMMISSION
  Second Respondent

Waigani:  Kandakasi DCJ, Yagi & Makail JJ
2021: 25th November
2022: 29th July  

SUPREME COURT REVIEW – ELECTION PETITION – Application to review National Court decision – Decision upholding petition – Declaration of applicant as not duly elected – Re-count of ballot-papers – Suspension of applicant as Provincial Governor pending re-count of votes – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Elections (Organic Law on Elections) – Section 212(1)(d)&(f) & (3)

SUPREME COURT REVIEW – ELECTION PETITION – Application to review National Court decision – Grounds of review – Lack of jurisdiction – Geographical jurisdiction – Decision of National Court delivered by trial judge via video link – Trial judge located outside Papua New Guinea – Use of digital technology – New mode of Court hearing – Meaning of open Court – Constitution – Section 155(2)(b) – Organic Law Elections – Section 212(1)

SUPREME COURT REVIEW – ELECTION PETITION – Ground and facts pleaded alleging declaration of election results by provincial returning officer – Evidence failed to establish case pleaded and provide foundation for grant of relief sought – Declaration by electoral commission under s.175(1A) (b) of the Organic Law on Elections – Not subject of any specific challenge - Whether s. 217 of the Organic Law on Elections applies? – Requirements of ss.208 and 210 of the Organic Law on Elections - Role of judges and courts

SUPREME COURT REVIEW – ELECTION PETITION – Application to review 
National Court decision – Grounds of review – Error of law – Direction by Electoral Commission to Returning Officer not to declare result – Withdrawal of direction – Declaration of result under special circumstances – Declaration of result while counting not completed and no absolute majority reached – Errors or omissions in scrutiny of votes – Constitution – Section 155(2)(b) – Organic Law on Elections – Sections 168 & 175(1A)

Facts:

The first respondent, Pastor Bernard Kaku (Pr. Kaku) filed an election petition against the applicant (Hon. Powi) and the Electoral Commission (EC).  Two grounds of petition went to trial.  One of them alleged errors or omissions committed by the Provincial Returning Officer Mr Stephen Gore Kaupa (PRO) by declaring the applicant as the winner of the election for the Southern Highlands Regional Seat (“SHP Seat”) when an instruction to him by the Electoral Commissioner (Commissioner) for him not to do so was not withdrawn, he made the declaration prematurely and without proper scrutiny contrary to s. 168 (1) of the Organic Law on National and Local Level Government Elections (Organic Law).  The second ground alleged an “inappropriate and erroneous application of s. 175 (1A) of the Organic Law when Hon. Powi was declared as the member elect for SHP Seat on 27th September 2017 on the basis of “special circumstance”.  That ground of the petition was premised on: (a) the declaration was made on 27th September by the PRO under s. 175 (1A) of the Organic Law; (b) the Commissioner did not withdraw his earlier instruction to the PRO not to make any declarations and therefore the PRO had no power under s. 175 (1A) (a) of the Organic Law to declare the result for the SHP Seat; and (c) since the PRO made the declaration, it ruled out the Commissioner’s powers under s. 175 (1A) (b) of the Organic Law to declare a result based on “special circumstances”.

Evidence at the trial showed it was the then Commissioner, who declared Hon Powi as the winner of the relevant election under s.175 (1A) (b) of the Organic Law on “special circumstances” and not by the PRO has pleaded.  The special circumstances included civil unrest, threats and actual violence with deaths and constant interference by Pr. Kaku, Hon. Powi and other candidates’ servants, agents and supporters in the smooth counting of ballots and declaration of a winner of the election.  Hence, the evidence did not establish the case pleaded. The trial judge decided to invoked s. 217 of the Organic Law and found for Pr. Kaku on the evidence before Court. The trial judge found the problem inconsequential reasoning that the gist of the grounds of the petition remained the same and the fact of the EC making the declaration was not reasonably known to the petitioner at the time of filing the petition, as the declaration was not made in public and the writ that was returned was signed by the returning officer, which gave rise to the reasonable inference that he declared the result. Thereafter, the trial judge proceeded to declare Hon. Powi not duly elected, restrained him from continuing and functioning as the governor of the Southern Highlands Province and ordered a recount of the ballot papers.  The trial judge delivered his decision whilst he was on leave outside the sovereignty and the territorial limits of Papua New Guinea (PNG) via video link. He was not properly attired as a judge of the National Court sitting in a duly gazetted National Court sitting area or a judge’s chambers and without the consent of the parties. No constitutional law or any Act of Parliament, Court Rules or Practice Notes or Directions authorised delivering of decisions in that way. The trial judge gave no reasons for his decision to deliver the decision in the way he did.

Hon. Powi claims the trial judge fell into several serious errors affecting the entirety of the judgement which fall under three broad categories. The first claims the trial judge acting unconstitutionally and illegally when he delivered his decision from outside the sovereignty and territorial limits of PNG as defined by s. 2 of the Constitution and not in an open Court as required by s. 166 (5) also of the Constitution with its formalities including sitting at a gazetted sitting area. The second claims on the substantive merits, the learned trial judge erred in upholding the petition on a ground not pleaded and fairly contested between the parties.  Finally, the third category claims the trial judge erred in his granting of the various reliefs which also did not have any foundation in the pleadings or the evidence and in any event contrary to law.

Held:

By the majority per Kandakasi DCJ and Yagi J)

1.	It is a given that the judiciaries of each nation in addition any limitation placed by their enabling legislation, are limited in their jurisdiction to their respective territorial limits and have no extra territorial jurisdiction except as may be provided for by a treaty or agreement between consenting nations. Consistent with that given, the National Court of Justice of PNG established under s. 163 of the Constitution as unlimited jurisdiction under s. 166 (1) also of the Constitution but within the territorial limits of PNG as prescribed in s. 2 of the Constitution itself.   

2.	Pursuant to s. 166 (5) of the Constitution, the jurisdiction of the National Court “may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.”

3.	The National Court Act authorises the Chief Justice by s. 3 to determine in consultation with the Judges, the principal seat of the National Court and by s. 4 to determine in consultation with the Judges, the place and frequency of sittings of the National Court as well as the locations for such sittings and the number of registries.  Government Gazette No. 187 dated 29th September 2009 sets out the designated sitting places of the National Court.

4.	No judge or court can unilaterally depart from the processes and procedure established by any legislation and practice and procedures of the Court: Adopted and applied Kumagai Gumi Co Ltd v. National Provident Fund Board of Trustees (2006) SC837.

5.	The learned trial judge erred in purporting to sit as the National Court at the time of delivering his decision when he:

(a)	was on leave and was physically outside the sovereignty and territorial limits of PNG;
(b)	did not physically sit in an open and a usual court room in PNG at a place duly gazetted as a place of sitting with the usual features such as the PNG flag for the National Court;
(c)	sat without being attired as a judge of the National Court; and
(d)	delivered his judgment through video link through a TV screen in a court room in PNG, when the use of such technology is not yet authorised either by an Act of Parliament, court rules or practice notes or directions. 

6.	The process and procedure adopted by the learned trial judge was unilateral, not authorised by any Act of Parliament or by any Court Rules and or any practice direction or note and it thus amounted to a breach of the Constitution ss.2 and 166 (1) and (5) and ss.3 and 4 of the National Court Act which rendered the decision unconstitutional, illegal and null and void and of no effect.

7.	It is settled law that the duty is always on the parties to plead their respective cases, where a plaintiff or a petitioner pleads the basis for his or her claim and a defendant or respondent responds to what is pleaded against him or her.  A court or a judge as an independent umpire, cannot enter the field of play and go outside the cause and defence and or response pleaded by the parties unless the parties themselves mutually invite the court to do so.  This is most basic yet a fundamental component or feature in our system of justice: Adopted and applied The State v. Transferees (2015) SC1451 and The State v. Tamate & Ors (2021) SC2132.

8.	Given the mandatory requirements of ss. 208 and 210, the provisions of s. 217 all of the Organic Law, applies only within the context of a ground of a petition pleaded and is not an authorisation for a judge or a court to venture outside what has been pleaded and proceed on a basis that has not been the subject of any fair contest between the parties.

9.	Amendments to petitions are permissible for any minor corrections or changes to a ground of a petition that has already been pleaded but not to allow for a complete departure from what has been pleaded and introduce a new ground of a petition outside the 40 days limit under s. 208 (e) of the Organic Law: Adopted and applied William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018.

10.	The EC has a unlimited discretion to determine if any “special circumstance” is presented for the purposes of any of the decisions he has to make under such provisions as s. 175 (1A) (b) of the Organic Law and given that discretion the Supreme Court has declined to circumscribe what does and what does not constitute such circumstance and left it open for a party to plead an appropriate case in the National Court: Cited Special Reference by the Attorney-General [2002] PNGLR 696 and Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814

11.	A declaration by the EC under s. 175 (1A) (b) is a specific act which must be specifically challenged by a petitioner pleading the nonexistence of any “special circumstance” warranting the EC to exercise such power. 

12.	Upon a petition being made out, the Court can grant any of the reliefs under s. 212 of the Organic law as may be pleaded and or prayed for by the petitioner.  However, a grant of any of the reliefs under that provision should not contradict each other and especially with a declaration of a nullity of an election with and order for re-count of ballot papers: Adopted an applied Yagama v. Yama (2013) SC1244 and In Yama v. Yagama (2013) N5222.

13.	Where a recount of ballot papers is ordered, it is inappropriate to restraint the member elect, from continuing to hold office and function pending the completion and the outcome of the re-count: Adopted and applied in Hoap v. Iwei (2008) N3420, Wingti v Rawali (2008) N3286, Kuli v. Apamia (2013) N5275 and Gore v. Amuli (2018) N7228.

14.	In the present case, after having found, Pr. Kaku as the petitioner had failed to establish the grounds of the petition he had pleaded, the learned trial judge erred in:

(a)	invoking the provisions of s. 217 of the Organic Law, and got into the position of the petitioner and went outside the pleadings to find for the petitioner on a totally new ground which was that, the EC did not properly exercising his powers under s. 175 (1A) (b) of the Organic Law to declare Hon. Powi duly elected when there was no “special circumstance” within the meaning of that provision;

(b)	in failing to find or appreciate that the ground he was permitting outside the pleadings required specific pleading challenging the EC’s basis for exercising his powers under s. 175 (1A) (b), especially in the light of evidence of civil unrest, threats and actual violence with death and constant interruptions of the commencing and completion of counting of votes, which was contributed to by all candidates including Pr. Kaku and Hon. Powi supporters;

(c)	effectively amending the petition and allowed for the introduction of a new ground of the petitioner outside the 40 days limit placed by s. 208 (e) of the Organic Law and without any application for any such amendment and hearing of the parties;

(d)	failing to specify under which of the provisions in s. 212 (1) of the Organic Law he decided grant the relief of Hon. Powi not being duly elected, proceeding to order a recount of the ballot papers which contradicted the declaration of nullity and restraint Hon. Powi from continuing to occupy the relevant office and carry out his duties and responsibilities. 

15.	Accordingly, the review was upheld and the whole of the judgment, decision and orders of the trial Court were quashed with the election petition dismissed with costs to applicant and the second respondent.

16.	(Per Makail J) The use of digital technology formed part of the new mode of Court hearings and the delivery of the judgment by the presiding judge via video-link is accepted as uncontroversial and within the meaning of open Court under Section 212(1) of the Organic Law.  Grounds 1 and 2 which alleged lack of jurisdiction lacked merit and are dismissed.

17.	(Per Makail J) While the evidence did not establish the allegation that the Returning Officer committed the errors or omissions when he declared the Applicant before scrutiny of votes was completed and no absolute majority was reached, the National Court is conferred wide discretion under Section 217 of the Organic Law not to summarily dismiss the election petition.  Grounds 3 to 7 which alleged error of law lacked merit and are dismissed.

18.	(Per Makail J) Section 175)(1A)(a) and (b) of the Organic Law must be read together.  Unless a direction by the Electoral Commission is withdrawn, the Returning Officer shall not declare the result and in special circumstances, the Electoral Commission may intervene and declare the result.  

19.	(Per Makail J) In the present case, the Second Respondent withdrew its earlier direction to the Returning Officer not to declare the result and the precondition to the exercise of power by the Second Respondent to declare the result in special circumstances did not exist.  No error of law was established and grounds 8 to 14 are dismissed.

20.	(Per Makail J) Section 212 of the Organic Law conferred discretion on the National Court to declare that the member-elect was not duly elected and order a re-count of votes in a case where the Second Respondent has erroneously and prematurely declared the result in special circumstances while the scrutiny of votes was not completed, and no absolute majority was reached. Ground 15 which alleged error of law is dismissed.

21.	(Per Makail J) Further, Section 212(3) of the Organic Law does not limit the discretion of the National Court to order the suspension of the Applicant who was erroneously and prematurely declared as member-elect for the Southern Highlands Provincial seat in special circumstances when scrutiny of votes was not completed, and no absolute majority was reached.  Grounds 16 and 17 which alleged error of law are dismissed.

Cases Cited:

Papua New Guinea Cases
William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018.
Kumagai Gumi Co Ltd v. National Provident Fund Board of Trustees (2006) SC837.
Lee & Song Timber (PNG) Co Ltd v. Burua (2003) PNGLR 237.
Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331.
Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257.
The State v. Transferees (2015) SC1451.
The State v. Tamate & Ors (2021) SC2132.
Peter Waranaka v. Gabriel Dusava (2009) SC980.	
Marabe v. Tomiape (2006) SC827.
Kopaol v. Embel (2003) SC727
Delba Biri v. Bill Ninkama [1982] PNGLR 342.
Steven Pirika Kamma v. John Itanu (2007) N3246.
Wasege v. Karani (1998) N1679.
SC Rev (EP) No. 3 and SC Rev (EP) No. 4 of 2019: William Powi v. Pr. Kaku (2019) SC1856.
Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814.
Mune v. Poto [1997] PNGLR 356.
Tulapi v. Luta [2000] PNGLR 120.
Yagama v. Yama (2013) SC1244.
Yama v. Yagama (2013) N5222.
Kereme v. O’Neill (2019) SC1781.
Hoap v. Iwei (2008) N3420.
Wingti v Rawali (2008) N3286.
Kuli v. Apamia (2013) N5275.
Gore v. Amuli (2018) N7228.
Bexhill Funding Group Limited v Basumel Limited (formerly MBA Limited (In Liquidation) (2006) N3092
TK (an Infant) Re [1965-66] PNGLR 1
Pastor Bernard Peter Kaku v. William Powi & Electoral Commission (2021) N9054
William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018
Special Reference by the Attorney-General [2002] PNGLR 696
Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814
Peter Charles Yama v. Anton Yagama & Ors (2013) N5222
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Dick Mune v. Poto [1997] PNGLR 356
Application by William Ekip Wii: SCR No. 4 of 1994 (16th July 1994)
Martin Thompson v. James Pokasui & Electoral Commission [1988] PNGLR 210
Delilah Gore v. Henry Amuli & Electoral Commission (2018) N7228
Steve Toap Hoap v. Peter Iwei (2008) N3420
Tommy Tomscoll v. Electoral Commission of PNG (2003) N2349
Samson Kuli v. Electoral Commission & Anton Yagama (2013) N5275

Overseas Cases
R v. Sussex Justice; Ex parte McCarthy [1942] 1 K.B. 256.
General Electric Co. Ltd v. Price Commission [1975] 1 C.R. 1

Counsel:
Mr. A. Baniyamai, for the Applicant 
Mr. G. Sheppard with Mr. G. Kuilt, for the First Respondent
Mr. H. Nii, for the Second Respondent 

JUDGMENT
29th July, 2022

1.	KANDAKASI DCJ:	I have had the benefit of reading my brother Makail J’s draft decision. For reasons I will shortly give, I have with the greatest of respect, arrived at a different view which upholds each of the grounds of the review and ultimately the review.

Relevant background and arguments

2.	This review application is before this Court because, the learned trial Judge decided to deliver his decision via video link from Australia when he was on leave which decision made findings of fact and granted reliefs and orders that had no foundation in the petition.  The argument firstly is the learned trial Judge delivered his decision when he was not officially at work and not sitting in a duly gazetted National Court sitting location and in an open Court in Papua New Guinea (PNG) without being properly attired as a Judge of the National Court.    Secondly, there was no foundation in the petition for the findings and the learned trial judge’s decision and the reliefs he granted and in so doing erroneously applied the provisions of s. 217 of the Organic Law on National and Local-level Government Elections (Organic Law).

3.	The relevant facts and background to the review are as set out in Makail J’s decision, which I wish not to repeat except as may be required for the purpose of my decision.  With that, I delve straight into a consideration of the grounds for the review. 

Grounds 1 and 2 - Lack of Jurisdiction –

4.	Grounds 1 and 2 of the review can be dealt with together.  These grounds question the legality of the use of video-link to deliver a judgment whilst the learned trial Judge was physically outside the territorial limits of PNG and outside a formal Court room. They claim that the learned trial Judge fell into a clearly identifiable error of law when he delivered his judgment via video-link from overseas and outside a formal court room and outside the territorial jurisdictional limits or outside the sovereignty of the Independent State of PNG.  In so doing, his honour acted contrary to the provisions of s.166(5) of the Constitution, s.212(1) of the Organic Law and s. 4(a) of the National Court Act.   The issues raised in this regard are:

(a)	there were no proper reasons to constitute the National Court outside PNG’s territorial jurisdictional limits;

(b)	the Court room took a form other than an open Court as required under s. 212(1) of the Organic Law and in a room, space and or area that is not a designated place for the sittings of the National Court of Justice of PNG; 

(c)	the learned trial judge was not properly attired as a judge of the National Court of PNG; and

(d)	the learned trial judge exercised his judicial powers when he was officially on leave and not on duty.

5.	Submitting in support of these issues, learned counsel Mr. Baniyamai, for the applicant, Hon. William Powi (“Hon Powi”), in short submits the learned trial judge acted ultra vires his powers and functions and was thus null and void.  Counsel for the second respondent, the Electoral Commission (‘the EC”) supports and concurs with the applicant.

6.	In response, counsel for the first respondent, Pastor Bernard Kaku (“Pr Kaku”), Mr Shephard submits, the Court should be guided by the provisions of s. 217 of the Organic Law.  That provision calls upon a Court dealing with an election petition case to be guided by the substantial merits of the case as recently affirmed by five-member bench decision of this Court in William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018. Proceeding on that basis, Mr Sheppard argues s.166(5) of the Constitution conferred jurisdiction on the trial judge to exercise jurisdiction “in Court” via video-link when he delivered his judgment.  Counsel went on to submit that the jurisdiction of the National Court can be exercised by a judge, wherever situated.  Additionally, Mr Sheppard submits a decision has been delivered. But because it went against the applicant, the jurisdictional issues are raised.  The opposite would be the case, if the decision went in favour of the applicant.

7.	In my view, the issues raised by the applicant in his first two grounds of the review are not merely technical issues or lighter matters. They are fundamental arguments going into the very heart of a court or a judge’s jurisdiction to deal with a matter at any stage of a proceeding in PNG.  Seriously in issue are the territorial limits within which the National Court and indeed any court in PNG must function in addition to any other limits that may be placed on them by any specific legislation.  Section 2 of the Constitution defines PNG’s territorial limits as follows:

“2. The area of Papua New Guinea.
 
(1)	The area of Papua New Guinea consists of the area that, immediately before Independence Day, constituted what was then known as Papua New Guinea, together with all internal waters and the territorial sea and underlying lands, and, subject to disclaimer by resolution of the Parliament at or before the end of its next meeting, includes such neighbouring waters and such lands underlying any such waters, and such additional lands and waters, as are declared by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, to be part of that area.

(2)	The sovereignty of Papua New Guinea over its territory, and over the natural resources of its territory, is and shall remain absolute, subject only to such obligations at international law as are freely accepted by Papua New Guinea in accordance with this Constitution.”

8.	Stating the obvious, the judiciaries of each nation in our global village are limited in their jurisdiction to their respective territorial limits. They all have no extra territorial jurisdiction except as may be provided for by a treaty or agreement between consenting nations as in the case of the Court of Justice of the European Union established by the member countries of the European Union.  Even then, they a limited to the territorial limits of the member or consenting country parties.  This is a given.

9.	Consistent with that given, the National Court of Justice of PNG established under s. 163 of the Constitution as unlimited jurisdiction under s. 166 (1) also of the Constitution but within the territorial limits of PNG as prescribed in s. 2 of the Constitution itself.   Pursuant to s. 166 (5) of the Constitution:

“The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.”

10.	Section 3 of the National Court Act authorises the Chief Justice to determine in consultation with the Judges, the principal seat of the National Court. The next provision, s. 4 further authorises the Chief Justice to determine in consultation with the Judges, the place and frequency of sittings of the National Court as well as the locations for such sittings and the number of registries.  Government Gazette No. 187 dated 29th September 2009 sets out the designated sitting places of the National Court.

11.	Additionally, Order 1, Rule 6 of the National Court Rules (NCR) defines a court to mean a “judge” or “acting judge” of the National Court.  The word “court” is also defined by the same provision to mean:

“the National Court of Justice of Papua New Guinea and includes a judge or two or more judges when exercising the jurisdiction of the Court or his or their jurisdiction, power or function as a judge under any Act.”

12.	It should thus follow that the National Court is comprised of a judge of the National Court, substantive or acting. Lawyers or other officers of the Court do not comprise the National Court. 

13.	Neither the Constitution nor any Act of Parliament or any rules of the National Court authorise a Judge of the National Court to exercise his or her powers in any of the following ways:

(a)	via video link;
(b)	whilst on leave;
(c)	from anywhere outside the territorial limits of PNG; 
(d)	from a place other than a designated court sitting location; and
(e)	with the exception of a judge’s chambers, outside an open court room.

14.	I consider what this Court in Kumagai Gumi Co Ltd v. National Provident Fund Board of Trustees (2006) SC837, Injia DCJ, Salika and Davani J (as they then were) held is instructive.  There sitting in the National Court, I decided to enter judgment against the appellant for pleading a general issue in a claim based on fraud because the appellant failed to specifically plead to specific cheques, their presentation to the banks, clearances and deposits into various persons’ accounts.  The appellant merely traverse or merely deny the claim without more. 

15.	On appeal, this Court held I erred by unilaterally deciding to depart from the NCR which preclude entry of summary judgment in claims based on fraud.   The Supreme Court reasoned:

“23.   We are of the view that the Court erred in unilaterally disbanding r.37(b) of the National Court Rules on the face of clear and binding Supreme Court authority on this rule. We are of the view that whilst a judge of the National Court has power to waive or dispense with compliance with the rules of the National Court rules, (O.1 r.7), the judge has no power to amend, repeal, disband, or declare inappropriate and inapplicable a rule of the National Court Rules because it is delegated legislations made by the judges collectively, pursuant to their rule-making power under s.8 of the National Court Act (Ch. No. 38) and s.184 of the Constitution.”

16.	In the present case, the learned trial Judge purported to sit as the National Court on 24th August 2021 to deliver his decision. There is no contest, at the relevant time he was physically not in PNG and did not physically sit in an open court in PNG at a placed duly gazetted as a place of sitting for the National Court.  He was on leave at the relevant time and sat in a room outside the sovereignty and territorial limits of PNG.  The room where he sat did not have the usual presence of the PNG flag, the national emblem and other features. Also, his honour sat without being attired as a judge of the National Court. But the learned trial judge delivered his judgment through video link through a TV screen in a court room in PNG.

17.	I note and accept that, technology has developed and is developing to a stage where judges and courts may be able to exercise their powers and functions from anywhere in the world at any point in time. The Covid -19 pandemic has fast tracked an advancement worldwide into the use of technology to deliver court and other services.  The PNG judiciary has decided to embrace this development in technology to expedite the delivery of judicial services to our people.  Many other judiciaries in the world are doing likewise.  In those jurisdictions, what is permissible and what is not through such technology are governed either by an Act of Parliament or by court rules. 

18.	Practice directions have been issued by the Registrar of the National Court and the Chief Justice of PNG on the use of technology during the Covid-19 pandemic and for the recently introduced Integrated Electronic Case Management System (IECMS).  Unfortunately, none of them provide for a judge to deliver his or her decision from outside the territorial limits of PNG, or whilst a judge is on leave and from outside a gazetted National Court sitting area and outside a formal court room with the judge not formally attired as a judge.  What transpired here went clearly against the established practice and procedure for the delivery of decisions within PNG by the National Court.  It was a unilateral action by a single judge of the National Court.  That went against all the relevant laws and the decision in Kumagai Gumi v. NPF (supra). 

19.	The unilateral action of the learned trial judge in this case was more serious because he:

(a)	acted against the dictates of s.  163 of the Constitution, 166 (1) and (5) and s. 2 of the Constitution and Organic Law by delivering his decision from outside the territorial limits of PNG;
(b)	exercised his judicial powers when he was on leave; 
(c)	delivered his decision from outside a designated court room and without being properly attired as a Judge; and
(d)	did not consider the effect of the decision of this Court in Kumagai Gumi v. NPF (supra) and refrain from acting unilaterally.

20.	In addition to the above I note also that, the learned trial judge gave no reason for his decision to deliver his decision in the manner he ultimately chose to employ.  It is settled law that, all decision makers are duty bound to give good reason for their decisions unless there is no contest.  I repeat what I said Lee & Song Timber (PNG) Co Ltd v. Burua (2003) PNGLR 237:

“Providing reasons for decisions made by public authorities is a necessary element of being transparent unless the security of the nation or a statute specifically dictates or provides otherwise. Hence, I do not consider it appropriate that it should be left to the circumstances to dictate whether or not reasons should be provided for every decision by a public authority or tribunal. The reason for this is simple, unless good reasons are provided, a decision by a public authority or tribunal could be perceived as being arrived at unfairly and being actuated by such things as bias, bribery and so on and not necessarily on its merits. … This is particularly necessary given the numerous instances of concerns raised and experiences experienced in our country over the fair and proper exercise of public powers, duties and functions.” 

21.	This statement of the law is firmly established at common law under the doctrine or concept of natural justice.  Section 59 of the PNG Constitution adopts these principles. One of the minimum requirements of the principles is in subsection (2), which is the duty to act fairly, and in principle, to be seen to be acting fairly. This is in effect a codification of a long-established principle represented by cases like that of R v. Sussex Justice; Ex parte McCarthy [1942] 1 K.B. 256.

22.	Specifically on the need to provided reasons, the decision of Lord Denning in General Electric Co. Ltd v. Price Commission [1975] 1 C.R. 1 at 12 is clear. There his Lordship said:

“If it (the decision maker) gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.”

23.	Courts in PNG have adopted and applied this statement of the law with approval. An example of that is the decision in Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 33, per Amet J (as he then was).  In my decision in Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257, re-echoed this principle in these terms:

“It is settled law that a discretion that is vested in a decision-maker in a democratic society such as ours must be exercised on proper consideration as to the relevant facts and the law. There is no such a thing as unfettered discretion. Good reasons must be given for an exercise of discretion. A failure to do so may leave open the floodgate for all sorts of allegations, including allegations that the discretion was exercised for ulterior motives. For examples of authorities on this point, see The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339.”

24.	Only if the parties’ consent were first sought and obtained by the learned trial judge in the present case before proceeding in the way he did, there would be arguably no need for any reason to be given.  There is no indication of the parties’ consent being first sought and secured by the learned trial judge.  Seeking and securing the parties consent could have prevented any of the parties from complaining about a process they may have consented too.  A failure to seek and secure the parties consent entitles all or any of the parties to raise the issues raised in the two grounds of review under consideration.  I point out quickly however, that any such consent sought and obtained would not remedy the obvious breach of the Constitution and the learned trial judge exercising his judicial powers outside established law and practice.

25.	For these reasons I find the first two grounds of the review are made out.  Given the importance and seriousness of these issues, the review application could be upheld on these two grounds alone.  

Finding for matter not pleaded - Grounds 3 -7

26.	To be complete however, I will proceed to consider the other grounds for the review.  I turn first to grounds 3 to 7 of the review application.  These grounds claim the learned trial judge erred by deciding to uphold grounds 4 and 6 of the petition. That he did after having found that Pr Kaku, the petitioner failed to prove the allegations in both grounds. 

27.	The petition originally pleaded several grounds.  However, through successful objections to the competency of the petition, most of the grounds were dismissed.  That left only two grounds which went to trial.  One of the grounds, namely ground 4 alleged errors or omissions committed by the Provincial Returning Officer (PRO) Mr Stephen Gore Kaupa by declaring the applicant as the winner of the election for the Southern Highlands Regional Seat (“SHP Seat”) when an instruction to him by the EC for him not to do so was not withdrawn and he made the declaration prematurely and without proper scrutiny contrary to s. 168 (1) of the Organic Law.  The second ground, ground 6 alleged an “inappropriate and erroneous application of s. 175 (1A) of the Organic Law when the applicant was declared as the member elect for SHP Seat on 27th September 2017 on the basis of “special circumstance”.  That ground of the petition was premised on the following facts:

(a)	The declaration was made on 27th September by the PRO Stephen Gore Kaupa under s. 175 (1A) of the Organic Law;
(b)	The EC did not withdraw his earlier instruction on 08th September 2017 to the PRO not to make any declarations and therefore the PRO had no power under s. 175 (1A) (a) of the Organic Law to declare the result for the SHP Seat; and 
(c)	Since the PRO Stephen Gore Kaupa made the declaration, it ruled out the EC’s powers under s. 175 (1A) (b) of the Organic Law to declare a result based on “special circumstances”. 

28.	The evidence eventually adduced at the trial showed it was the then Electoral Commissioner, who declared Hon Powi as the winner of the relevant election under s.175 (1A) (b) of the Organic Law on “special circumstances” with reasons given and not by the PRO has pleaded.  Additionally, contrary to the pleadings the evidence disclosed a withdrawal of the EC’s instructions to the PRO not to declare the results of the relevant election.  Clearly, the evidence did not establish the case pleaded by Pr Kaku against Hon Powi and the EC.

29.	Having found that the matter pleaded was not established by any of the evidence adduced before the Court, the learned trial judge asked the most relevant question of whether the petition should be dismissed.  His Honour decided not to dismiss the petition and gave his reason in brief in these terms: 

“I consider that the error is inconsequential as:

(a) it does not relate to the gist of the grounds, which is, in relation to ground 4, that the result was declared despite the scrutiny process not being completed and no absolute majority attained by the successful candidate, and, in relation to ground 6, that s 175(1A) had been improperly invoked; and

(b) the fact that it was the Electoral Commissioner who declared the result was not reasonably known to the petitioner at the time of filing the petition, as the declaration was not made in public and the writ which was returned to the Governor-General was signed by the returning officer, which gave rise to the reasonable inference that he declared the result.”

30.	With the greatest respect, I find there are at least four problems with that decision.  Firstly, it is settled law that the duty is always on the parties to plead their respective cases.  A plaintiff or a petitioner pleads the basis for his or her claim and a defendant or respondent responds to what is pleaded against him or her.  A court or a judge as an independent umpire, cannot enter the field of play and go outside the cause and defence and or response pleaded by the parties unless the parties themselves mutually invite the court to do so.  For the moment a judge steps into the position of a party, that judge will lose his or her position as an independent and impartial umpire and his or her decision will be open for quashing or a set aside on appeal or review. This is most basic yet a fundamental component or feature in our system of justice. This Court explained this important fundamental feature in its decision initially in the matter of The State v. Transferees (2015) SC1451 (per Sakora, Gavara-Nanu and Ipang JJ) on appeal against a decision of the learned trial Judge in the present case.  The subsequent 5-member decision in The State v. Tamate & Ors (2021) SC2132 (per Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ) also on appeal against a decision by the learned trial Judge in the present case, reiterated the importance of the principle.  Although these cases were in the context of the learned trial judge invoking the Court’s suo moto powers under s. 57 of the Constitution for the enforcement of human rights, the principle applies to all cases in which a judge is to preside and determine the issues presented. 

31.	The question then in the present case is, what facts did the petitioner plead or allege in his petition? Relevantly, in addition to those already noted, the case pleaded by Pr Kaku was that the declaration of the results of the election for the SHP Seat was made initially by the then returning officer, a Mr. Jacob Kurap secretly in Port Moresby somewhere before returning the relevant Writ on 28th July 2017, which the EC rejected.  He also pleaded certain other events which reveals the candidates contesting the relevant seat, including himself and Hon Powi’s supporters disrupted a smooth counting and declaration of results all the way up to a second declaration allegedly made by the PRO, Mr Steven Gore Kaupe, on 27th September 2017.  The disruptive acts included civil unrests with threats and actual violence with deaths and other destruction.  Finally, Pr Kaku pleaded, himself and other candidates went to the EC’s office in Port Moresby on 25th and again on 28th September 2017.   

32.	Clearly, the evidence adduced in the Court below did not establish the facts pleaded, especially in relation who made the ultimate declaration of the results of the election, the date and the circumstances surrounding the declaration. The evidence instead established that the declaration was made by the EC, on 27th September 2017 at the EC’s Conference room in Port Moresby after briefly resuming duties that day.  The Writ was signed off by Mr. Kaupa on the same day as the returning officer.  On 29th September 2017, the Writ was returned to the Governor General (GG) under cover of a letter dated the same day.  The letter stated:

“RETURN OF WRIT – SEAT OF SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

It has been long and costly wait by all stakeholders – by voters, PNGEC, Security Forces, generally population and business houses of the gas-rich province of Southern Highlands.

Excellency, after having carefully considered all facts presented to me by the duly appointed Returning Officer, and unequivocal support expressed by the Commissioner of Royal Papua New Guinea Constabulary, as Head of the combined Security Forces, I now decide to apply provisions of special circumstances expressed in s 175(b) [sic] of the Organic Law on National & Local-level Government Elections.

The situation remains untenable on the ground in all parts of the Province, if the intentions of the majority of voters reflected in the regulatory Election Form 66A by the Returning Officer were not recognized by my Office. [sic]

Your Excellency, admittedly the counting is not fully conclusive, failed to attain the required absolute majority of 50% plus one valid votes cast and admitted to the process of scrutiny-count, as shown in regulatory Election Form 66A, which shows number of votes received by each candidate. [sic]

I base my decision on intentions of these votes admitted and counted thus far, so excruciating clear to recognize, negate expectations of a lesser majority.

I attest to the report by the Returning Officer, which clearly shows and reflects the clear intentions of majority of votes counted in the official records held, shown on regulatory Election Form 66A, to this point in time - in spite of falling short of the absolute majority of votes.

Given these extenuating circumstances, I advice (sic) your Excellency, that you recognize the return of writ, which intentionally recognizes WILLIAM POWI as the member-elect, to represent the Electorate of Southern Highlands Province, in the National Parliament.”

33.	It is trite law in election petition cases that, a petitioner bears the onus of proof.  That onus must be discharged to the entire satisfaction of the Court. This is necessitated by the seriousness of challenging the wishes of the majority. In its decision in Peter Waranaka v. Gabriel Dusava (2009) SC980, (per Kandakasi, Lay, Gabi, JJ (as we then were)), this Court reviewed some of the decisions on the question of who bears the burden of proof in election petitions and how must that be discharged. The Court then concluded at paragraph 15: 

“We agree with the soundness and correctness of this statement of the law. We add that, a final decision on whether an allegation of bribery has been made out depends very much on the consideration and application of the principles concerning the burden of proof and its discharge by the party who bears it. There is not much argument that in nearly all cases, it is well accepted that ‘he who alleges must prove it.’ Similarly, in criminal cases, it is well accepted that, the prosecution has the legal burden throughout to establish the allegations or charges against an accused person beyond any reasonable doubt, something which s.37 (4) of the Constitution protects.”

34.	Although the above statement of the law, was in the context of a petition based on a ground of bribery, it equally applies to petitions based on other grounds: See Marabe v. Tomiape (2006) SC827 (per Hinchliffe J (as he then was), Batari and Cannings JJ and Kopaol v. Embel (2003) SC727, per Sawong and Kirriwom JJ (as they then were) and Batari J.

35.	In the present case, Pr Kaku failed to discharge the burden of proof that was in him as the petitioner to call evidence establishing the case he pleaded in his petition.  The learned trial judge did find that was the case.  That should have naturally resulted in a dismissal of the petition. However, the learned trial judge decided to go against that and find for the petitioner on a ground not properly pleaded, totally different from that which was pleaded and not fairly contested between the parties.  

36.	Was the learned trial judge entitled to do that?  That question leads to the second main problem I have with the learned trial judge’s reasoning and decision. Section 208 of the Organic Law requires a petitioner to do the following:

“208. Requisites of Petition.
A petition shall -
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was
qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”

37.	Additionally, s. 209 requires a security for costs deposit of K5,000.00. The next provision, s. 210 reiterates the mandatory nature of the requirements of ss. 208 and 209 in these terms:

“Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

38.	Many decisions of this and the National Courts have elaborated on what is required.  It is clear from these that ss.208(a) and 210 requires a petitioner to plead the facts disclosing a ground for a nullification of an election outcome.  Upon that happening, the respondents are then required to respond to the matters pleaded.  I note, it is not unusual in our jurisdiction for `a trial judge to venture outside what is pleaded, in ordinary civil and criminal litigation. But that happens in cases, where there is no complete departure from that which is pleaded and forms the basis for a petition or a case.  Such departures are permitted and allowed through appropriate simple amendments.  However, departures in that way are not permissible where an amendment would bring in a whole new ground or a foundation for a claim or a petition.  This Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342, per Kidu CJ Kapi DCJ and Andrew J (as they then were), considered the issue of amendments and held against allowing any amendments outside the 40 days limit placed by s. 208 (e).  At page 349, the Court reasoned:

“But in our opinion the requirements of s. 208 reflect the special nature of electoral petitions. Those requirements are, as we have said, strict and mandatory and we think they serve, inter alia, or attempt to limit the frivolous petition and to ensure as far as is possible that the petition is genuine.
…
There is no dispute that an electoral petition may be amended within the period of two months defined in s. 208(e) of the Organic Law. See Shaw v. Reckitt [1893] 2 Q.B. 59.

We think the real basis for this is that a petitioner who does not comply with any of the requirements of s. 208 can file a completely new petition complying with all requisites within the two months period.

As a matter of common sense it would be sufficient to amend the original petition to save time and costs.”

39.	In Steven Pirika Kamma v. John Itanu (2007) N3246, I questioned in part the soundness of the decision in Biri v. Ninkama (supra) in these terms at paragraph 37:

“Finally, the issue of amendment in Delba Biri v. Bill Ninkama (supra) concerned a failure to include in the petition its attesting witnesses’ occupation. With all due respect, I note that, the Supreme Court failed to clearly distinguish between more serious omissions or failures to meet the requirements of s. 208 such as a failure to state an attesting witness’ occupation to a case of typographical errors or an omission of finer details of say a fact that has been otherwise clearly pleaded. The former is more serious because it is a specific requirement of s. 208 while the latter is not so serious because strictly speaking they may not offend against the requirement of the Organic Law but simply a slip or error of the person drafting the petition which does not seriously affect what is already pleaded by reason of which it could easily be cured by amendment in the light of the fact that, there is no specific and expressed prohibition against amending such defects in the petition. It is a total absurdity in my view, to put the two extremes of errors, one more serious than the other, in the same basket and allow a petition to be defeated even for the simplest of defects or errors or omissions contrary to the intention of s. 217 of the Organic Law as discussed above, only because the Supreme Court and not the legislation prohibits any manner of amendment of election petitions after the expiry of the 40 days’ time limit.”

40.	Later sitting in the Supreme Court in the case of Hagahuno v. Tuke (supra) I repeated the views I expressed in the case of Kama v. Itanu (supra) on the issue of amendment and added at paragraph 43:

“To the final point I now add, by way of clarification, this. In Biri v. Ninkama, there was a complete failure by the petitioner to state the occupations of the attesting witnesses. Correctly, the Court took the view that, that defect could not be cured by any amendment because the need to state the attesting witnesses’ occupation is a mandatory requirement under s. 208 (d). This is to be contrasted with a petition that attempts to disclose the attesting witnesses’ occupation. The decision of the majority of Amet CJ, Los, Injia and Sawong JJ (as they then were) in Paru Aihi v Moi Avei (2003) SC720 is on point.”

41.	In the present case, there are few simple but fundamental errors the learned trial judge made, given his finding that the only grounds for the petition that remained standing were not proven by the evidence adduced at the trial.  The errors were that:

(a)	an application by the petitioner to amend his petition was needed, such an application was made and was granted which laid a proper foundation for a complete departure from the matters pleaded; 

(b)	in the absence of any record of the petitioner making an application for an amendment to his petition to confirm with the evidence after the trial, the learned trial judge effectively amended the petition without hearing the parties and in particular Hon Powi and the EC who stood to be adversely affected by his decision;

(c)	following on from the above, the learned trial judge failed to consider the principles governing amendment of petitions especially after a trial and he consequently also failed to give reasons for effectively amending the petition;

(d)	If any application was made, the petitioner needed to demonstrate to the satisfaction of the Court that the amendment sought was to correct a minor error or defect and not for the introduction of a new ground.  The matters revealed in the evidence was a completely new ground on its own and not something that fell within the gist of what was pleaded; and

(e)	Since the matters disclosed in the evidence was a possible new ground, it could not be permitted outside the 40 days limit under s. 208 (e).

42.	The learned trial judge sought to justify his above errors in two ways. Those two ways were erroneous and therein lies the third and fourth fundamental errors made by the learned trial judge.  The first is his finding that, the fact of the EC making the declaration was not reasonably known to the petitioner at the time of filing the petition because the declaration was not made publicly. The other is the learned trial judge’s invoking of s. 217 of the Organic Law.  I will deal with these problems in that order. 

43.	In all national elections, aside from all other important parts of the electoral process, there are three most important events.  The first is the issue of writs and the second is the declaration of a winner of an election and the third is a return of the writs.  Every intending candidate and contestant in an election pays special attention on these events. For losing candidates who wish to file election petitions challenging an election outcome need to take careful note of the date of the declaration and all related because of s. 208 (e) of the Organic Law. Such persons have 40 days from the date of the declaration to gather their facts and evidence to successfully file a petition against an election outcome.  This necessarily requires appropriate searches and inquiries and securing from the EC and others any information or document in those persons’ possession.  Where necessary, appropriate applications can be made before the National Court for orders for the production of documents or information in the possession of the EC or others prior to the filing of a petition: See Wasege v. Karani (1998) N1679, for an example of a precedent on point.
 
44.	In view of the obligation petitioners have under s. 208 (a) of the Organic Law and the burden of proof they have, it is incumbent upon petitioners to seek and secure from the correct sources the facts correctly.  Upon having done so and they are convinced that they will succeed, they should proceed to file their petition.  Petitions cannot and should not be based on assumptions or on an alleged set of facts that are concocted, inaccurate or otherwise misrepresents the truth. 

45.	 In the present case, the EC making the declaration was an easily ascertainable fact.  That was possible by a simple search and enquiry with and or at the EC’s office.  Such a search and inquiry were necessary and required of the petitioner before filing his petition given his own allegations in the petition that: 

(a)	the counting for the SHP Seat was marred by civil unrest, violence, deaths, threats of violence, various and repeated interruptions by candidates contesting the seat;

(b)	the PRO and other officials got change more than once;

(c)	the PRO’s made the relevant declarations secretly;

(d)	the petitioner and other losing candidates visited the EC’s office in Port Moresby around the dates and periods the EC made the declaration, returned the Writ and the applicant was sworn in as member elect for the SHP Seat; and

(e)	 s. 175 (1A) of the Organic Law was improperly invoked.

46.	 There was neither any pleading nor was there any submission before the learned trial judge as to whether the petitioner conducted any search and enquiry and if yes, how was he prevented from get the information or evidence required.  There is nothing in the transcript and the learned trial judge’s reasons for decision which demonstrates, the issue of the petitioner’s lack of knowledge was the subject of the parties’ submissions and the learned trial judge arrived at a considered judgment or finding on this point. 

Group 7 - Invoking s. 217 of the Organic Law 

47.	Turning to the learned trial Judge’s invoking of s. 217, I note this problem is the subject of ground 7 of the review.  Hence, I am proceeding to deal with that ground now.

48.	Section 217 of the Organic Law reads:

“The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

49.	His honour invoked s. 217 in support of the decision he arrived and reasoned in these terms:

“I discharge the obligation imposed on the Court by s 217 (real justice to be observed) of the Organic Law to be guided by the substantial merits and good conscience of this case. The Supreme Court (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J, Makail J) recently confirmed in Hagahuno v Tuke & Electoral Commission (2020) SC2018 that s 217 calls for a more liberal approach to the raising of technical objections to petitions. Section 217 states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

35. If the petition were to be dismissed because of an error of fact which is inconsequential, I would be guided not by the substantial merits and good conscience of the case but by legal technicalities. I would be deciding the case contrary to the Organic Law. I am obliged not to do that. The application for summary dismissal is therefore refused.”

50.	The Hagauno v. Tuke (supra) decision considered and elaborated on the proper construction and application of the provisions of ss.208, 210 and 217 of the Organic Law on the question of how a petitioner should state the facts as required by s. 208.  That decision points out what is required by ss.208 and 210 and what is excluded by the provisions of s. 217.   As a member of the 5-member bench in that case, I considered my decision in Kamma v. Itanu (supra) and this Court’s decision in Sauk v. Polye (supra), Saonu v. Dade (supra) and its earlier decision in Holloway v. Ivarato (supra).  I then held with the agreement of Mogish J in the Hagahuno decision that, the requirements of ss.208(a) and 209 of the Organic Law were mandatory and must strictly be complied with because of s. 210.  Then specifically as to s. 208 (a) requirements, I pointed out as did many other prior decisions of the Supreme and National Courts that, this provision requires amongst others, the facts relied on to invalidate an election return to disclose a ground for upsetting or setting aside an election outcome.  I then concluded: 

“…what the Courts and the parties should be looking at is, whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the fact alleged and not necessarily every single detail of or about the fact stated.  Such details should be left for the trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or, irregularity or, error or omissions which affected the results of an election.”

51.	Then basing on the decision in Gordon Wesley v. Isi Henry Leonard (2016) SC1477, per Salika DCJ, Sakora and Hartshorn JJ, I pointed out at paragraph 26 that, the requirement to plead facts does not include a requirement to plead the relevant and applicable law.  I also pointed that, a failure to plead in accordance with the requirements of s. 208 does not of itself give rise to the question of competency of an election petition. I explained that in this way at paragraph 27:

“Challenging an election petition on the basis of a lack of proper pleadings and or a petition not being in the correct form comes under “legal forms or technicalities” which in my humble view, is expressly prohibited or excluded from any consideration by s. 217.  Of course, this does not save a petition which fails to state at all any fact under s. 208 (a) that discloses a valid ground to void an election outcome or fails completely to meet any of the other requirements of s. 208 (b) to (e).   For clarity, may I point out that, however hopelessly pleaded a petition might be, if the facts stated disclose a known ground for voiding an election and the petition on the face of it meets all the other requirements under s. 208 and s. 209, it would be sufficient for the purposes of s. 210, and that such a petition should be allowed to progress to trial without delay.  Any argument against a petition of this type as being incompetent would constitute a technical issue, which is prohibited by s. 217.” 
52.	As it could be gathered from the forgoing, s.217 of the Organic Law applies to a petition as presented by a petitioner that meets the requirements of s. 208 and 209 as dictated by s. 210 to do justice in the case.  To achieve real justice the Court must see the merits of the case from the perspective of all parties to a petition and not just one of the parties to the exclusion of the parties. This necessarily requires a careful consideration of each parties’ duties and obligations in a petition challenging an election outcome. Whether the parties have discharged their respective duties starts with a consideration of whether the petitioner has pleaded the relevant facts which sufficiently and discloses a ground capable of upsetting the election the subject of the petition.  Going by the decision in Hagahuno v. Tuke (supra) such statement of the facts need not be exhaustive.  If the question is answered in favour of a petitioner, it would progress to trial.  At the trial the inquiry will have to be whether the evidence called by the petitioner establishes the alleged facts and hence the pleaded ground for nullifying the relevant election’s outcome.   If the answer is yes, the petition would be upheld. If the opposite turns out to be the case, the petition should be dismissed. 

53.	In the present case, with the greatest of respect, I find several errors attending the learned trial judge’s decision.  Firstly, the gist of the grounds, pleaded in ground 4 and 6 as found by the learned trial judge, allegedly were the acts or conduct of the PRO and not the EC.  The EC and the PRO are two different persons with different sets of powers and functions.  The first respondent chose to base his petition on his allegation that it was the PRO who made the declaration and not the EC.  Hence, this was not a case, of a wrong spelling of the name of the person allegedly responsible for the declaration or a misdescription of his official position and its powers or a wrong date and place.  Instead, it was a case of a deliberate decision by the petitioner to base his petition on the allegations stated in his petition. 

54.	Secondly, the learned trial Judge’s reasoning ignores four matters that were specifically pleaded by the petitioner.  These were that the petitioner: 

(a)	correctly alleged that s. 175 (1A) of the Organic Law did not confer any power on the PRO to the make a declaration under special circumstances.

(b)	the EC’s powers to make a declaration under s. 175 (1A) (b) was ruled out by the PRO making the relevant declaration; 

(c)	the EC not directly but through his servant or agent namely the PRO made the relevant the declaration; and

(d)	the EC had not withdrawn his instructions to the PRO not to declare the results of the SHP Seat. 

55.	By these specific pleadings, the petitioner chose to ground his petition on the basis that the relevant declaration was made by the PRO and not the EC.  That was despite the undisputed fact that it was the EC who made the declaration for reasons he gave in his letter to the GG dated 29th September 2017.

56.	Thirdly, as already noted the fact of the EC making the declaration was an easily ascertainable fact.  If the petitioner duly discharged his duty to properly ascertain the relevant facts through a due search and enquiry, he could have obtained the relevant facts and plead his grounds for the petition appropriately. Petitioners are required to plead facts that are sustainable at a trial.  They are not authorised or permitted to base their petition on assumptions or matters that misrepresent the correct facts and are not sustainable at trial. Given the first respondent’s own allegation that the PRO made the relevant declaration secretly and not in public under proper scrutiny, it was incumbent and necessary for him and his lawyer to conduct due search and inquiry with the EC, ascertain the correct facts, plead them and prove them in Court.   There was neither any pleading, nor was there any evidence establishing such due search and inquiry being carried out and how it was difficult to ascertain the fact of the EC making the declaration for the reasons he gave in his letter to the GG. 

57.	Fourthly, in choosing to base and plead his case has he did, the petitioner did not challenge the decision of the EC. He restricted himself to his allegation that it was the PRO who made the declaration. Consequentially, the petitioner chose not to challenge any or all the reasons the EC gave for deciding to exercise his powers under s. 175 (1A) (b) of the Organic Law.  Basing a petition on the ground as pleaded by the first respondent is not the same as a ground based on an allegation of the EC erroneously exercising his powers under s. 175 (1A) (b).  They are two different matters and or grounds that need to be pleaded and established separately. A petition based on the latter allegation would as of necessity require stating facts challenging and displacing the reasons given by the EC for his decision to invoke the provisions of s. 175 (1A) (b).  Given the threats and actual violence and the other ready interference of the smooth counting and completion of the counting process and declaration of a winner before the date set for a return of the Writ by all candidates including the petitioner himself, a case had to be made out that, that and other associate factors did not present any “special circumstance” for the purposes of s. 175 (1A) (b).  Without such a case being pleaded and made out by the evidence called, the learned trial judge did not have the necessary foundation to find for the petitioner and grant the reliefs he decided to grant.

58.	Fifthly, I am of the view that, the matters highlighted in the first to the fourth errors of the learned trial judge, this was not a case of legal forms or technicalities curable by the provisions of s. 217.  The call for the National Court to “be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not” is a call to do just within the allegations presented by a petitioner in a petition given the equally important provisions of s. 208 and 210 of the Organic Law.  The call by s. 217 is not in my humble view, a call for a judge to venture out and decide to upset an election on a ground that was not alleged or pleaded by a petitioner, responded to by the respondents and the Court has decided to assume jurisdiction and hear and determine after the completion of preliminaries such as any objections to competency as was the case here.  The moment a Court does that, it would be stepping into the role of a petitioner outside the 40 days limit under s. 208 (e) of the Organic Law, take the respondents by surprise, deny them natural justice from the beginning of the petition process up to the point of the Court’s final decision. Such an act would be unjust, unfair, unacceptable and cannot be permitted within our system of justice.

59.	For these reasons I find grounds 3 – 7 of the review are made out.

Interpretation & application of s. 175 (1A) - Grounds 8 – 14.

60.	This takes us to the next set of grounds of review which concerns the correct interpretation and application of the provisions of s. 175 (1A) of the Organic Law. These are grounds 8 – 14.

61.	Section 175 (1A) reads:
“(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result:
(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and
(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.”
62.	This Court in this very proceeding but in the context of one of the many reviews that has come to it namely, SC Rev (EP) No. 3 and SC Rev (EP) No. 4 of 2019: William Powi v. Pr. Kaku (2019) SC1856, I held with the agreement of my brothers, Mogish and Dingake JJ as follows:

“92. I note that the conjunctive “and” is used between subsection 1A (a) and (b). That means, subsection 1A(a) cannot be read on its own or to the exclusion of subsection 1A (b). Further, I note that the phrase “special circumstances” also appears in s. 81(2) and (3) of the Organic Law. That provision was the subject of constitutional reference SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689. There the Court held:
‘It is our opinion that the questions as framed do not so much focus on the power and discretion that s 97 the Court provides to declare failure of election, as asking the Court to prescribe and even circumscribe the circumstances in which that power may be exercised. We do not consider that an appropriate course for the Court to take. Although such determination could and may in future be the subject of a National Court petition or review, it is not for this Court to set the circumstances in which the Electoral Commission can or cannot determine that an election has failed. Such would intrude on a power given solely to the Electoral Commission. It would also turn to put limits on the openness of the section.’
93. This Court in its most recent decision in SC Ref No. 4 of 2017; Special Reference by the Ombudsman Commission of PNG (2019) SC1814 reaffirm the decision in the Francis Damem Reference. As could be seen, from these decisions, the Supreme Court has been reluctant to prescribe the factors that would constitute “special circumstances”. At the same time the Court contemplated the issue being raised appropriately in the National Court in an election petition. A petitioner could validly raise the issue if he or she points out in his or her pleadings the kinds of factors that would amount to “special circumstances” and what circumstances would not constitute special circumstances. Applying that to the case at hand, Pr. Kaku had the obligation to demonstrate in his pleadings how the circumstances attending this particular election were not “special circumstances” and the Electoral Commissioner was not entitled to make the decisions he made, ultimately resulting in the declaration of Hon. Powi as the winning candidate. Our quick perusal of the Petition does not appear to disclose any such pleading.”
63.	In the Special Reference by the Ombudsman Commission of Papua New Guinea (supra), in the context of s. 81 (3) of the Constitution, which also uses the phrase “special circumstance” I opined:

“120. If anything should be clear from the foregoing discussions and those especially under the first question, is this. The Electoral Commission is vested with a wide discretion and power to conduct elections and return the writs before the expiry of the date fixed for the fifth anniversary of the previous election. Section 81(3) is part of the discretionary power the Electoral Commission has. It should follow therefore that, what constitutes “special circumstances”, is a matter for the Electoral Commission. The parties failed to assist the Court with submissions identifying the kind of circumstances that would constitute “special circumstances”.

122. No convincing argument has been presented in this reference as to why this Court should depart from its earlier decision in the above matter. The Court cannot circumscribe the kinds of circumstances that would fall under “special circumstance” because neither this court nor anyone else can exhaustively articulate all the possible circumstances. It is best left to the Electoral Commission to determine whether a special circumstance has arisen or exists in each case, rather than limiting him in his discretion. Accordingly, I decline to do what the question is asking this Court to do.”

64.	The Chief Justice who was the president of the Court agreed with me and expressed a similar view.  Mogish J, another member of the Court, also expressed a similar view. 

65.	In the present case, the learned trial Judge did consider only the decisions in SCR Ref No. 4 of 2002 by the Attorney General (supra) and SCR Ref 4 of 2017 by the Ombudsman Commission (supra).  The relevant part of the learned trial Judges decision on this point reads:
“51. It is correct that in both those decisions the Supreme Court emphasised that it is for the Electoral Commission, as the independent constitutional institution entrusted by s 126 of the Constitution with the duty of conducting elections, to decide on what needs to be done to discharge that constitutional mandate. The exercise of its discretion as to whether an election has failed (for the purposes of s 97) and whether there are special circumstances warranting extensions of time under s 177 has been held not to be easily subject to review by the courts.
52. However, both those decisions related to other provisions of the Organic Law, not to s 175(1A).  Section 175(1A) is not a standalone provision that says, ‘that in special circumstances the Electoral Commissioner may declare a result based on information concerning scrutiny etc’. I uphold the submissions of Mr Diweni for the petitioner that the power to invoke s 175(1A) is constrained by the words of the provision: the power to decide that there are special circumstances warranting the declaration of a result may only be exercised where the Commissioner has directed the returning officer not to declare a result and the direction is not withdrawn.”

66.	With the greatest of respect, I find the learned trial judge made five fundamental errors here.  Firstly, this Court decided precisely on the point in issue in Powi v. Kaku (supra). That decision was binding on the learned trial Judge.  A search in Paclii for cases under s. 175 (1A) brings up amongst others that decision.  For reasons only known to the learned trial judge and counsel assisting, this Court’s decision was not considered.  The decision was part of all the prior interlocutory matters dealt with by both the National Court as well as this Court.  This Court’s decision is part of the interlocutory decisions delivered in this matter.  The learned trial Judge’s decision fails to consider and appreciate in any manner or form this Court’s decision and most importantly, its effect on the issue at hand.  Without offering any good reasons and or basis to do so, the learned trial judge was not at any liberty to arrive at a decision that effectively ran contrary to this Court’s earlier decision on the very point in issue. 

67.	Secondly the learned trial judge’s summation of what this Court said in its earlier decisions on point is not entirely correct.  His honour correctly noted as this Court saying what constitutes a “special circumstance” in an election is something that is entirely within the discretion of the EC. Therefore, the Court declined to circumscribe that discretion by prescribing a list of what circumstances might or might not amount to “special circumstances”.  At the same time, the learned trial judge left out the part where this Court said it was open for the issue to be appropriately raised in the National Court.  Given that, the Court could not initiate proceedings, this meant a party to a petition in the National Court could raise the issue by pleading what does and or what does not amount to “special circumstance” in a case where a decision made by the EC purportedly under s.175 (1A) (b) is expressly and directly challenged. 

68.	Thirdly, having omitted the later part of this Court’s decisions, the learned trial Judge gave no consideration to the need for the petitioner to plead there was no “special circumstance” to warrant a declaration by the EC as opposed to the PRO.  Most of the undisputed facts revealed a marred counting process for the SHP Seat. There were civil unrests with threats and actual violence with several deaths and repeated interruptions to a smooth and timely commencement and completion of the counting process with a result declared.  The petitioner contributed to those problems. He was therefore in Court with dirty hands.  If these were not special circumstances, it was for the petitioner to appropriately plead the foundation for that.  That he failed to do.  If the learned trial judge carefully noted the relevant part of this Court’s decision and applied that to the case at hand he would have arrived at a different decision and there would have been a different outcome on the petition. 

69.	Fourthly, I repeat in this context my earlier view that the EC exercising his powers under s. 175 (1A) (b) was a separate and different matter.  It required the petitioner to separately and specifically plead that as a ground of his petition. In so pleading clearly spell out how the EC did not have any special circumstance to warrant an exercise of his unlimited discretionary powers under s. 175 (1A) (b). This was necessary given the undisputed and accepted facts disclosing threats of violence, actual violence with deaths, constant interruptions by all candidates including the petitioner and the matters the EC’s stated in his letter to the GG.   The Court was at no liberty to find for the petitioner without any specific pleading challenging the EC’s exercise of his power under s. 175 (1A) (b) for the reasons he gave.  

70.	Fifthly, the claim based on the PRO having made the declaration, expressly pleaded, the EC did not withdraw his instruction to the PRO not to declare a result, thereby suggesting the PRO did not have any authority and therefore he illegally declared the results. At the same time, that pleading laid the necessary foundation, in my view, for the EC to exercise his powers under s. 175 (1A) (b).  Without any amendment to the relevant pleading, the learned trial judge was at no liberty to go outside that which was pleaded. The learned trial failed to make sense out of what was pleaded, what he was finding and the decision he eventually arrived at. Simply put, the learned trial judge did not give any reasonable explanation for the decision he eventually arrived at given the serious differences in the matters pleaded and the matters disclosed by the evidence the duties and responsibilities in a petition for a petitioner.  Of course, s. 217 of the Organic Law is there but, that provision does not displace the mandatory requirements of s. 208 (a) and s. 210 and the need for a petitioner to plead his grounds sufficiently and establish that at the trial and for the Court to be guided by what is pleaded and is fairly and openly contested between the parties. This was an inevitable error on the part of the learned trial after having decided to depart from the matter pleaded without hearing the parties on his wish to so depart.

71.	For these reasons, I find the applicant has made out review grounds 8 – 14.

72.	The upholding of review grounds 1 – 14, should be sufficient to determine the review in favour of Hon. Powi.  This would render it not necessary for us to consider the grounds concerning the learned trial judge’s decision on the reliefs he finally decided to grant.  However, the grounds raised by the applicant are serious and important. Hence, they require some consideration and determination. Thus, we will consider the relevant grounds. 

Error in granting of reliefs - Grounds 15 to 17 -

73.	The remain grounds of this review, 15 - 17 claim the learned trial judge erred in granting the reliefs he decided to grant.  This all arises out of the primary relief sought in the petition not being granted.  In support of that claim, the applicant submits the relief pleaded in paragraph D 1 of the petition was the primary relief, which was not established by the evidence called by Pr Kaku and was therefore, not granted. 

74.	Relevantly, Pr Kaku pleaded the reliefs he was seeking in this way:

“1.	A Declaration that the declaration of the First Respondent as member-elect for the Southern Highlands made by PRO Steven Gore Kaupa on 27th September 2017 is null and void; and

2.	A Declaration pursuant to Section 212 (1) (f) of the Organic Law that the First Respondent is not duly elected as member for SHP Electorate; and

3.	An Order pursuant to Section 212 (1) (d) of the Organic Law that the Second Respondent conducts a re-count of the ballot-papers for counts 1 to 564 by way of elimination of candidates until such time a candidate reaches the absolute majority necessary to be declared as a member elect for the SHP Electorate; and

4.	Further and in the alternative, a Declaration that the election of the SHP Electorate be declared absolutely void.”

75.	Since the evidence did not establish the alleged fact of the PRO Steven Gore Kaupa making the declaration, the first and primary relief sought could not and was not granted.  Nevertheless, the learned trial judge decided to declare that the applicant “was not duly elected at the 2017 general election to the seat of Southern Highlands Provincial” and proceeded to grant interim restraining orders against Hon Powi.   That was as good as a voiding of the election outcome.  This could come under the second relief sought.  But that was to be a follow-on relief after a grant of the first relief.  In other words, the second relief pleaded was dependant on the first relief being granted.  That was obvious in the way those two reliefs were pleaded.  If there were any doubt the conjunctive word “and” was used as opposed to a pleading in the alternative, in the way it is done for relief 4. 

76.	With the greatest respect, I see four problems with the learned trial judge’s decision.  Firstly, the order is not addressing either of the two different declarations, one by the PRO as pleaded by the petitioner or the other has the evidence disclosed, which was that the EC made the declaration in “special circumstances”.  Without an order specifically nullifying either of these declarations, effectively voiding the election, the first relief granted was not an appropriate order. Secondly, there is nothing to show the learned trial judge’s decision was based on a request made by the petitioner and after having heard the parties on the issue, especially when his honour was going to depart completely from the pleaded case and the specific primary relief sought. Thirdly, assuming there was such a request, the learned trial judge was required to give reasons for his decision.  Such reasons had to specifically address the source of his authority to effectively amend the petition and grant a relief that was not pleaded outside the 40 days limit under s. 208 (e) of the Organic Law.  That the learned trial judge failed to do.

77.	Following on from the third problem, I note, fourthly that, s. 212 of the Organic Law sets out the National Court’s power to grant reliefs in election petitions.   That provision reads:

“212. Powers of Court.

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things -
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order are-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and 
(k) punish contempt of its authority by fine or imprisonment.”
(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.”

78.	 This list of reliefs the Court can grant under subsection (1) is not an open license for the Court to grant any relief the Court wishes to.  The list is instead subject to subsection (3).   This Court made that point clear in Mune v. Poto [1997] PNGLR 356 (per Kapi DCJ, Los and Salika JJ, (as they then were)) in these terms:

“… the discretion in s 212(2) is limited by the phrase all or any of its powers under this section; ‘all’ of its powers are specifically prescribed in s 212(1)(a) to (k). In our view the discretion lies in the choice of selecting and making any of the orders in order to reach a just and efficient result but there is no discretion to go outside the orders specifically mentioned like vacating an order dismissing a petition.”

79.	 Section 212 must also be read subject to or in conjunction with other relevant and applicable provisions in the Organic Law.  In Tulapi v. Luta [2000] PNGLR 120, (per Kapi DCJ, Injia and Sawong JJ (as they then were) this Court held in respect of the power the Court generally as to allow for any amendment purportedly under s.212 (1) as follows:

“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 OLNLGE to give the National Court that specific power.”

80.	Additionally, the list under s. 212 (1) is not an authorisation to make orders that effectively contradict each other.  The decision of this Court in Yagama v. Yama (2013) SC1244 (per Batari J) clearly points that out in these terms:

“The power to order a recount under s. 212 (1)(d) does not have the same effect as voiding or avoiding an election. Conversely, it is indefensible to order a recount in an election result or return that has been voided under s. 218(1) of the Organic Law. In addition, the order for recount does not bring the election result or return to finality. A decision in an election petition is only finalized when it is dismissed or upheld with consequential relief that is final in nature.”

81.	In Yama v. Yagama (2013) N5222, the learned trial judge in the present case was also the learned trial judge there.  His honour explained why it would not be proper to upset the election outcome pending a recount.  His honour said at paragraph 26:

  “It would not be proper to declare under Section 212(1)(f) that the first respondent was not duly elected (nor would it be proper to make declarations under Sections 212(1)(g) or (h)) as that would amount to ‘avoiding’ the election, which Section 218(1) provides can only be done if the errors affected the result of the election; and here it cannot be said that the errors affected the result. However, if all that is being sought is an order for a recount the court does not have to be satisfied that the errors that have been found to have occurred affected the result of the election (Maino v Avei [1998] PNGLR 178, Wingti v Rawali (2008) N3286, Lisio v Puana (2008) N3463). The court can order a recount on such grounds as it thinks just and sufficient (Section 212(3)) provided that it is guided by the substantial merits and good conscience of the case (Section 217).”

82.	Having regard to these authorities, I accept Hon Powi’s Counsel’s submission that, in the context of this case, a decision to make a declaration under s. 212 (1) (f) can only be made if:

(a)	the relief under paragraph D 1 of the petition was granted; and 
(b)	if the election was voided under s. 212 (1) (h) of the Organic Law; and
(c)	if a recount is not ordered under s. 212 (1) (d) of the Organic Law.

83.	This makes sense especially in a case where a recount is ordered, and the recount does not change the outcome of the relevant election.  In such a case, if an election of a candidate is voided under s. 212 (1) (h) or declared not duly elected, under s. 212 (1) (f), a repeat declaration will be required.  Meanwhile, issues as is the case in the present as to who should be occupying the seat pending the recount results would unnecessarily arise.  The general legal position is unless a decision or action is declared null and void by a court of competent jurisdiction, the action or decision remains valid for all intent and purpose: See Kereme v. O’Neill (2019) SC1781 (per Gavara-Nanu & Batari JJ).   This is why, the National Court has refrained from making the kind of restraining order, the learned trial judge made in this case.  Cases on point included the decisions in Hoap v. Iwei (2008) N3420, per Sevua J (as he then was); Wingti v Rawali (2008) N3286, per Cannings J; Kuli v. Apamia (2013) N5275, per Makail J and Gore v. Amuli (2018) N7228, per Geita J.

84.	As can be seen from the list of cases above, the learned trial judge is one of the judges who has in the past allowed for the member elect to continue to hold office until after the results of the recount are in and a final decision is made on his election.  The decision in the present case therefore marks a departure from the position his honour had earlier taken.  That required a proper explanation and offering of reasons warranting such departure.  His honour gave none. 

85.	Applying the above principles to the case at hand, I am of the view that, the duty imposed on the Court by s. 212 (3) read in conjunction with s. 217 of the Organic Law is a call for the Court to do real justice in the particular circumstances of the case. That duty can only be discharged by the Court amongst others, by carefully considering the matters pleaded and was the subject of the trial, the evidence called, the role each of the candidates and more so the petitioner and the applicant and their supporters played or failed to play and their contribution to the disruptive counting process and the EC’s decision to exercise his powers under s. 175 (1A) (b) of the Organic Law.  I quickly add also that, this necessarily requires a consideration and application of the relevant and applicable principles of law, which includes all decided National and Supreme Court decisions on point.

86.	Did the learned trial judge do all the above here?  I note firstly that, the learned trial judge did not discuss any of the above decisions or the principles they represent.  Secondly, the learned trial judge, did not specify under which of the sub provisions under subsection (1) of 212 of the Organic Law he was invoking or making the declaration.   I assume his honour went by s. 212 (1) (f) as this is the only relevant provision that could be applicable.  Having come to that decision, his honour came to the decision also to order a recount.  That was contrary to what the Supreme Court said in Yagama v. Yama (supra) and the position the learned trial himself took in his own decision in the National Court in Yama v. Yagama (supra).  Not only that, but the learned trial judge also decided to grant the interim restraining orders. In so doing, his honour went against the past precedent, including his own past decisions, without giving any convincing reason for that departure.  I consider, the learned trial judge inevitably came to that decision after having erroneously arrived at the decision on the reliefs sought.  

87.	For the foregoing reasons, I find review grounds 15 to 17 has been made out.  Accordingly, I would uphold these grounds of the review.

Decision in summary and final orders
88.	In summary, I have come to the decision that each of the grounds for the review have merit and have been made out. Consequently, I would uphold the review in its entirety with costs.  Based on that, I would make the following orders.   

(1)	The application for review is upheld in its entirety.

(2)	The judgment and orders of the National Court made on 24th August 2021 in EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission are quashed.

(3)	The proceedings under EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission is dismissed.

(4)	Costs of this review and the proceedings under EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission are ordered against the respondent to be ascertained by taxation if not agreed.

(5)		Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

89.	YAGI J:	This is a review application under the Constitution, s. 155(2)(b) emanating from a judgment of the National Court on an election petition. Leave for review was granted on 31 August 2021 pursuant to Order 5 Rule 9 of the Supreme Court Rules.

90.	A petition was filed in the National Court in Waigani by the first respondent disputing the election of the applicant as the duly elected member for the Southern Highlands Province following the 2017 National General Election. The petition was heard in May 2021 in Waigani, National Capital District, Papua New Guinea; however, the decision was delivered via video link on 24 August 2021 from a location not within Papua New Guinea. This review is from that decision.

91.	The National Court ruled in favour of the petition and consequently made, among others, the following orders:

1.	That the applicant was not duly elected as the Provincial Member for the Southern Highlands Province in the 2017 National General Elections.

2.	A recount be done on the ballots pertaining to the Southern Highlands Provincial Seat in the 2017 National Elections and for the results of the recount to be submitted to the Court on or by 5th November 2021.

3.	The applicant’s powers, functions and duties as Governor for Southern Highlands be suspended with effect at 12 noon on Tuesday 31st August 2021.

92.	The applicant challenges the decision of the National Court in this review and presented seventeen (17) grounds as to why he says this Court should disturb the decision. 

93.	The grounds of review maybe categorised into the following main subject areas of contention:

(a)	Exercise of power outside of jurisdiction of Papua New Guinea (PNG)

(b)	Failure to prove material facts

(c)	Interpretation of s. 175(1A) of the Organic Law on National and Local Government Elections

(d)	Failure to consider and apply material evidence

(e)	Failure to apply binding case law authorities

(f)	Error in declaring the applicant not duly elected

(g)	Error in suspending applicant from office

Exercise of power outside of jurisdiction of PNG

94.	The applicant submits that delivering a decision outside of the country via video link is highly irregular and unconstitutional and hence is void and a nullity. He cites the provisions of the Constitution, in particular ss. 2, 3, 163 and 165(5), the National Court Act, ss. 3 and 4(a) and the National Court Rules (NCR), Order 1 Rule 6 in support of the contention. The following cases were also cited in the argument – Bexhill Funding Group Limited v Basumel Limited (formerly MBA Limited (In Liquidation) (2006) N3092 and TK (an Infant) Re [1965-66] PNGLR 189.

95.	The second respondent supports the applicant’s contention and argued in the main that the National Court committed an error of law in delivering its decision via video link in a foreign land by breaching the Constitution, s. 166(5), the Organic Law on National and Local-Level Government Elections (Organic Law), s. 212(1), and the National Court Act, s. 4(a).

96.	The first respondent submitted that the National Court committed no error of law and did not act contrary to s. 166(5) of the Constitution, s. 212(1) of the Organic Law and s. 4(a) of the National Court Act. It is argued the primary Judge appeared “in Court” and exercised the jurisdiction of the National Court via video link. Moreover, subsections (3) and (4) of s. 166 of the Constitution permits exercise of jurisdiction wherever the National Court is situated. 

97.	The issue, in my view, is whether the National Court in delivering its decision via video link in a foreign country outside of Papua New Guinea properly and lawfully exercised its judicial power.

98.	The issue consists of 2 parts; first, whether the use of modern technology such as the video link is proper and acceptable mode in delivering a decision by the National Court. The second is whether delivering a decision in a foreign land is proper and lawful exercise of judicial power.

99.	As regards the first part, the development of technology in the modern world has changed the way business is conducted in both the private and public sector. Technology has enhanced efficiency and proficiency in terms of improved quality in the delivery of services. Many organisations including government bodies and institutions have adapted to the change and embraced technology as a mode of service delivery. For the Courts, the National and Supreme Courts in Papua New Guinea has followed suit in adopting and using technology in dealing with cases. The covid19 pandemic had hastened the pace and brought about regularity in use of technology in the country. The video link technology is now frequently used by the National Court in hearing of cases. The video link technology is embraced by the courts through Practice Directions and the practice appears to be readily accepted by court users particularly legal practitioners. 

100.	In my view, the use of video link by the National Court in delivering the decision, the subject of this review, is neither irregular nor improper. However, in this case, the learned primary Judge was on leave from official duty and not attired in the Judge’s civil robe and in a room other than a court room when delivering the decision. Can these circumstances render the decision a nullity? I do not think there is legal impediment to a judge exercising his judicial power in these circumstances. Counsel for the applicant did not refer to any specific law that may suggest impropriety or illegality. In my opinion upon being sworn into office a Judge has the full ability and capacity to exercise all powers of his judicial office at any time and place twenty-four hours a day. There may be instances where exercise of power is necessary and appropriate at a location, time and without appropriate judicial attire, particularly in circumstances of urgency, when conducting a court hearing within the country, although I do not suggest for one moment that such practice be encouraged and promoted.

101.	With regards to the second part, in my view, the starting point is the Constitution of Papua New Guinea (Constitution). The Constitution is the creature of our country known as the Independent State of Papua New Guinea (Papua New Guinea). It defines Papua New Guinea in terms of territorial boundary and sovereignty. Section 2 of the Constitution states:

2.	The area of Papua New Guinea.

(1)	The area of Papua New Guinea consists of the area that, immediately before Independence Day, constituted what was then known as Papua New Guinea, together with all internal waters and the territorial sea and underlying lands, and, subject to disclaimer by resolution of the Parliament at or before the end of its next meeting, includes such neighbouring waters and such lands underlying any such waters, and such additional lands and waters, as are declared by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, to be part of that area.

(2)	The sovereignty of Papua New Guinea over its territory, and over the natural resources of its territory, is and shall remain absolute, subject only to such obligations at international law as are freely accepted by Papua New Guinea in accordance with this Constitution.

102.	The territorial boundary of Papua New Guinea comprised of “all internal waters and the territorial sea and underlying lands” and does not include external territorial boundaries. Any external waters, sea and land mass are therefore outside the territorial boundary of the Papua New Guinea.

103.	Under the Constitution Papua New Guinea comprises of various institutions, bodies, entities, and systems and includes the National Judicial System.  The National Judicial System is created under s. 155 of the Constitution. Under s. 158 of the Constitution the judicial power and authority belong to the people of Papua New Guinea and is exercise by judicial officers including Judges on behalf of the people. It states:

158.	Exercise of the judicial power.
(1)	Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2)	In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

104.	The Courts comprised the Supreme Court, National Court and other courts established under s. 172 of the Constitution. The National Court is therefore charged with the duty and responsibility in exercising its judicial powers on behalf of the people of Papua New Guinea.

105.	Under the Constitution, s. 1(1) the nation of Papua New Guinea acquires its identity as a sovereign independent State. It is significant to note the use of the expression “sovereign independent State”. The Constitution is silent on the meaning of this expression. Schedule 1.5 of the Constitution directs that the Constitution must be read as a whole and given a fair and liberal meaning.

106.	The notion of “sovereignty” within the meaning of the Constitution requires some consideration. The Oxford Dictionary of English, Second Edition, Revised (2005) defines the word “sovereignty” as “supreme power or authority: the sovereignty of Parliament; the authority of a state to govern itself or another state.”

107.	The Oxford Dictionary of Law, Seventh Edition (2009) gives the following definition of the word “sovereignty”:

Supreme authority in a state. In any state sovereignty is vested in the institution, person or body having the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law. How and by whom the authority is exercised varies according to the political nature of the state. In many countries the executive, legislative and the judicial powers of sovereignty are exercised by different bodies. One of these bodies may in fact retain sovereignty by having ultimate control over the others. But in some countries, such as the USA, the powers are carefully balanced by a constitution. In the UK sovereignty is vested in Parliament.

In international law, it is an essential aspect of sovereignty that all states should have supreme control over their internal affairs, subject to the recognised limitations imposed by international law. These limitations include, in particular, the international law of human rights and the rules prohibiting the use of force. However, no state or international organisation may intervene in matters that fall within the domestic  jurisdiction of another state. The concept of state sovereignty was outlined, among other things, in a declaration on Principles of International Law (Resolution 2625) proclaimed by the General Assembly of the United Nations in 1970.

108.	In my view a fair and liberal meaning of the constitutional notion of sovereignty would in general mean a dominant power or supreme authority. It is the highest power of a State that is vested in a supreme authority. In Papua New Guinea the sovereign power belonged to the people of Papua New Guinea through the Constitution and is exercised through the elected representatives in the National Parliament. 

109.	The powers of the National Court are defined under s. 155(3) of the Constitution and, in my respectful view, is intended to and must be exercised within the territorial boundary of Papua New Guinea. There is nothing in the Constitution that provide for the judicial power is to be exercised beyond the territorial boundary of Papua New Guinea. If the power is to be exercised beyond the territory it would be contrary to international law, conventions, and practices. Conversely, there is no law that empowers or authorises a Court including the National Court in Papua New Guinea to exercise its judicial powers from outside the territorial boundary of Papua New Guinea. Indeed, most judiciaries, around the world, particularly common law jurisdictions, adopt the territorial jurisdiction principle. The Courts exercise their jurisdictions and powers based on the intra-territorial and not on extra-territorial principle. The Courts must exercise the people’s power in an open court in Papua New Guinea where the people are and not outside its territory where its people are not there. The people of a foreign country are not people of Papua New Guinea. The people need to see the wheels of justice been exercised in an open and transparent manner. This will result in the people having faith, trust, confidence and respect for the courts and the rule of law. The people have a right to attend all court sittings, whether it is for hearing, trial, or decision. However, where the court is conducted outside the country the people’s right is compromised and violated.

110.	The Constitution, s. 166 specifies the jurisdiction of the National Court and s. 212 of the Organic Law expressly directs that the National Court sitting as a Court of Disputed Return in an election petition must conduct its sitting in an open Court. Both provisions are reproduced below:

166.	Jurisdiction of the National Court.

(1)	Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2)	In particular, the National Court has the jurisdiction set out in—
(a)	Section 22 (enforcement of the Constitution); and
(b)	Subdivision III.3.D (enforcement); and
(c)	Section 155 (the National Judicial System),
and otherwise as provided by this Constitution or any other law.
(3)	Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.
(4)	The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.
(5)	The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.

212.	Powers of court.
(1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.
(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4)	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

111.	It should be noted that subsection (5) of s. 166 of the Constitution states that the National Court may exercise its jurisdiction in only two places: in court or chamber. In terms of exercising its jurisdiction “in court” the Chief Justice is authorised by ss. 3 and 4 of the National Court Act to determine the sitting places in Papua New Guinea. These provisions read:

3.	Principal Seat of the National Court.
The Chief Justice, after consultation with the other Judges, shall determine the Principal Seat of the National Court.

4.	Sittings and Registries of the National Court.
The Chief Justice, after consultation with the other Judges, shall determine—
(a)	the place and frequency of sittings of the National Court; and
(b)	the location and number of registries of the Court.

112.	In exercising the power, the Chief Justice has published in the National Gazette various designated Court sitting places around the country. None of the designated sitting places include any place in a foreign country and certainly not the place where the National Court sat when delivering its decision on 24 August 2021. The 2021 Annual Court Calendar released by the Chief Justice for that year also did not include a sitting of the National Court outside of Papua New Guinea.

113.	In this case the National Court delivered its decision outside of the territorial boundary or geographical jurisdiction of Papua New Guinea and in a place which is not a gazetted sitting place. For the foregoing reasons, I am of the opinion that the National Court improperly and unlawfully exercised its power on 24 August 2021. Therefore, this issue in the review should be upheld.

114.	In my view, where there is unlawful exercise of power, albeit judicial power, it logically follows that the decision and orders made therefrom are null and void ab initio and must be quashed and set aside. Given this the orders made by the National Court on 24 August 2021 are null and void and must be quashed and set aside forthwith. I do not think the whole proceeding should be declared a mistrial as submitted by the second respondent.

115.	Having reached this conclusion, in my considered opinion, it is unnecessary to consider the other issues in the review.

116.	The question arises what then becomes of the substantive dispute in the election petition proceeding EP No. 79 of 2017 – Pastor Bernard Kaku v William Powi & Electoral Commission? In my view, the facts and circumstances of the case are peculiar.  There is no question that the trial of the proceeding was properly and lawfully conducted and completed within Papua New Guinea. The only thing that rendered the proceeding unlawful is the fact that the decision and orders were made in a foreign territory. The efficacy and utility of the proceeding is now overtaken by events. The 2022 National General Election has commenced and almost concluded with the return of the writs to the Governor General on or about 29 July 2022. Any order made including those made by the National Court will have no utility and serve no purpose.  The error of law, as I said, is technical in nature and may be corrected by the National Court delivering its decision in Papua New Guinea. In the circumstance, having regard to the inherent powers of this Court under s. 155(2)(b) of the Constitution, the proper and appropriate order, in my view, is to order that the National Court deliver its decision in Waigani or another designated sitting place in the country and make appropriate orders in the circumstances.  

117.	However, I had the benefit of reading the draft judgment of the Honourable Deputy Chief Justice Kandakasi and I have given consideration as his Honour’s detailed and comprehensive discussion as regards sufficiency of pleading grounds 3 – 7 in the petition. Having reviewed the evidence in the transcript of proceeding in the Review Books I agree with the reasons and conclusion arrived at by his Honour. In that regard I further note the National Court in fact reached the same conclusion, however, the Court regarded the error as inconsequential. In my view the error is significant and fatal to the outcome of the petition. Accordingly, I would also dismiss the petition for the same reasons. 

118.	Consequently, and for the reasons given, I would uphold the review, quash the judgment and orders of the National Court made on 24 August 2021 and award cost in favour of the applicant.

119.	MAKAIL J:  The Applicant seeks review of the decision of the National Court presided by his Honour Cannings J of 24th August 2021 in an election petition to:

(a)	Declare the Applicant as not duly elected as the Provincial Governor of Southern Highlands Province in the 2017 General elections,

(b)	A recount be done on the ballot-papers pertaining to the Southern Highlands Provincial seat in the 2017 General elections and for the results of the recount to be submitted to the Court on or by 5th November 2021, and

(c)	The Applicant’s powers, functions and duties as Governor for Southern Highlands Province be suspended with effect at 12 noon on Tuesday 31st August 2021.

120.	Ground 4 and Ground 6 of the election petition were held to be competent and allowed to proceed to trial.  Trial was held between 10th and 25th May 2021.  On 24th August 2021 at about 9:30 am his Honour delivered the judgment via video link.  At the time of delivery of the judgment, his Honour was said to be on leave and in a room in an unknown location outside of Papua New Guinea.  His Honour was not robed and in judicial attire.  The decision has been published as Pastor Bernard Peter Kaku v. William Powi & Electoral Commission (2021) N9054.

Ground 4 of Petition

121.	Under this ground, it was alleged by the First Respondent that the Provincial Returning Officer, Mr Stephen Gore Kaupa failed to complete the scrutiny process and prematurely declared the Applicant as being elected.

Ground 6 of Petition

122.	Under this ground, the First Respondent alleged that the declaration by Provincial Returning Officer, Mr Stephen Gore Kaupa under special circumstances pursuant to Section 175(1A) of the Organic Law on Elections was erroneous and inappropriate.

Findings by the National Court

123.	The National Court made a number of findings of fact, some of which are not contested and are set out below:

•	84 ballot-boxes were disputed and that this dispute is contentious.

•	Mr Kurap the Returning Officer at one stage set them aside in a container at the Mendi Police Station, when counting was interrupted by a number of persons including the First Respondent.

•	Mr Kurap made no decisions that the 84 disputed ballot-boxes are not counted amidst objections by many candidates including the First Respondent.

•	When Mr Kurap decided to count the 84 disputed ballot-boxes or to make a further assessment on whether they be counted, his attempts to retrieve them from the container at the Police Station were thwarted by many persons including the First Respondent.

•	On or about 26th July the First Respondent became so agitated by the decision to count the 84 ballot-boxes that he ‘fisted’ (punched) Mr Kurap in the face.

•	Counting was eventually moved to Mt Hagen and following various failed attempts to retrieve the 84 ballot-boxes from Mendi to count, the Electoral Commissioner Mr Patilius Gamato declared the Applicant as duly elected under special circumstances on 27th September 2017. 

Grounds of Review

124.	The Applicant relied on 17 grounds of review.  They are set out at paragraphs 5.1 to 5.17 of the application for review.

125.	Ground 1 and Ground 2 will be considered together because they raise the issue of jurisdiction of the National Court to deliver its judgment via video-link.  In other words, as the judgment was delivered via video-link, these grounds of appeal questioned the legality of the use of video-link to deliver a judgment.

126.	In these grounds, it is alleged his Honour erred in law in acting contrary to Section 166(5) of the Constitution, Section 212(1) of the Organic Law on National and Local-level Government Elections (“Organic Law”) and Section 4(a) of the National Court Act when he delivered the judgment in the election petition via video-link from an unknown overseas location and outside the jurisdiction and sovereignty of the Independent State of Papua New Guinea.  
127.	The grounds in support of this allegation are:
(a)	there were no proper reasons to constitute the National Court outside of the jurisdiction of Papua New Guinea;

(b)	in and from a room other than an open Court as required under Section 212(1) of the Organic Law.

(c)	in a room, space and or area that is not a designated place of the sittings of the National Court of Justice of Papua New Guinea; 

(d)	without being properly attired as a Judge of the National Court of Papua New Guinea; and

(e)	whilst he was on recreational leave.

128.	Submissions were made by Mr Baniyamai of counsel for the Applicant reinforcing these grounds to demonstrate that the conduct of his Honour to deliver the decision in a location other than a Courtroom in Papua New Guinea was ultra vires, null and void.  
129.	The Second Respondent supported the Applicant and endorsed the Applicant’s submissions on these grounds of review.  

130.	By way of a general principle, Mr Sheppard of counsel for the First Respondent reminded us that in an application to review under Section 155(2)(b) of the Constitution, Section 217 of the Organic Law implores us to be guided by the substantial merits and good conscience of each election petition without being to technical and legalistic: see also William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018.
131.	Applying Section 217 in relation to Ground 1 and Ground 2 of the review, Mr Sheppard submitted Section 166(5) of the Constitution conferred jurisdiction on his Honour to exercise jurisdiction “in Court” via video-link when he delivered the judgment.  The jurisdiction of the National Court is exercised by a judge, wherever situated.  Mr Sheppard emphasised that a decision has been delivered and as it was against the Applicant, the venue of the delivery of the Court decision has become a contentious issue.  If it was in favour of the Applicant, inferentially, the Applicant would not be complaining.
132.	The nett effect of both submissions is that the Applicant’s submission is issue driven while the First Respondent’s submission is outcome based.  The issue driven submission looks at the finer details of where the Court must sit to deliver its decision in the geographical sense having regard to the sovereignty of PNG as an independent country, the establishment of the Courts within the constitutional framework and the designated place of sittings in the country based on notice published in the National Gazette.  A place of sittings of the National Court which does not meet these requirements is illegal.  
133.	But an issue driven submission overlooks the undeniable fact that a decision has been delivered and is now a matter of public knowledge.  To overturn a decision purely on the ground that it was delivered outside the geographical jurisdiction of the National Court, and that it was in and from a room other than an open Court and order a re-trial would be far-fetched and unrealistic.  Image the time and costs to conduct a re-trial while the merit of the decision will be left unscrutinised by the Supreme Court if it was the sole ground of review.
134.	An outcome-based submission, on the other hand, is not only realistic but practical in terms of avoiding a re-trial as well as additional costs and time and allowing the decision to stand as pronounced.  It also acknowledges the reality, that we live in the age of advanced technology, where it has changed lives of people and ways of doing things. Arguably, digital technology is the new revolution. Its benefits are immersed and there is strong push by manufacturers of this technology for commerce, and business and Governments to embrace it and move away from paper to paper-less in the future. 
135.	The Courts will and must embrace these changes and there is no doubt in my mind that in many jurisdictions around the world, money has been invested to introduce digital technology for access to justice. The truth is digital technology is pushing the Courts’ boundary farther than before.  PNG is not immune from these changes and must embrace them.  For example, I recognise that the National Court and Supreme Court have been conducting hearings via video-link in Waigani using Court Room No 9 where it is equipped with the necessary digital technology in the form of video-link facilities.  
136.	In my experience as a Judge sitting at Waigani which is a gazetted place of sittings of the National Court (refer to copy of notice of gazettal G187 dated 29th September 2009 in the affidavit of Mr Baniyamai filed 31st August 2021), Senior Counsel from Brisbane in Australia briefed to appear for parties have been appearing via video-link in number of matters in the National Court and Supreme Court following the Covid-19 pandemic.  There has not been any objection to their appearances via video-link.
137.	The use of video-link technology for Court hearings is not a new phenomenon in this jurisdiction.  Some may recall, it was once used, some would argue, as a trial in criminal cases at Waigani National Court in Court Room No 1 some 15 to 20 years ago but was abandoned.  The video-link hearing was primarily for mentions, directions hearings and listings between the judge sitting at Waigani and remandees at Bomana CIS facility.
138.	A video-link hearing, or virtual hearing as it is technologically called, has been the new mode of Court hearing in recent times, a product of advanced technology.  According to Google, virtual hearings:

“…are court hearings conducted by audio-visual means, where cases are progressed without the need for participants to attend Court in person”.

139.	With the recent Corona virus 19 (Covid-19) pandemic, Courts around the world have moved swiftly to develop guidelines/protocols on use of video-link hearing/virtual hearing to respond to restrictions imposed by Governments because of it. The guidelines/protocols set out a pathway for Courts, legal practitioners, and litigants to follow to conduct virtual hearings. For example, in the State of New South Wales in Australia, a Temporary Safety Measure Guideline updated on 20th April 2022 and published online for Court-users to use included an option for parties to use virtual court room (appearance video or telephone) hearings. (www.supremecourt.justice.nsw.gov.au/Pages/modified_registryservice.aspx).

140.	In Nigeria on the continent of Africa the Nigerian Judiciary adopted Guidelines on Virtual Hearings which led to the Chief Judge of Lagos State signing the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” in May 2020.  It was said:

“The essence of the Practice Direction is to ensure the hearing and determination of urgent and time-bound cases using digital planforms like Zoom, Skype or other video and audio conferencing platforms approved by the Court”. (https://primeraal.com/news/constitutionality-of-virtual-court-hearings/).

141.	A useful source of information on Courts and other quasi-judicial bodies such as Arbitration and Alternative Dispute Resolution Centres in countries around the world including the United States of America adopting virtual hearings may be found in the Publication by Norton Rose Fulbright April 2020 edition and published online.(https://www.nortonrosefulbright.com/eng/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings/).

142.	In PNG, the Registrar of the National and Supreme Courts issued a NJSS Covid 19 Protocol No 5 of 2021 dated 12th April 2021.  However, there is no mention of Virtual Hearings except for Protocol 6.7 which referred to Prison Hearings and stated:

“Where possible and where Correctional Services has the capability, hearing of short applications in criminal cases must be conducted online”: See (http://pngsd.judcom.nsw.gov.au/references/protocols/2021_Protocol_5 _of_2021.html).

143.	That does not mean that in PNG there has not been any hearing via video-link, on the contrary, there has been, and I have referred to some of them above, but it has been on an ad hoc basis in response to the Covid-19 pandemic restrictions.  In essence, just like Courts around the world, Courts in PNG must embrace these changes to make justice accessible to all.  For these reasons, I am of the view that for a virtual hearing to be effective and without controversy, parties must be present and participate in it based on appropriate notice.
144.	In the present case, the trial of the petition was conducted in the presence of the parties until the delivery of the decision when it shifted to a virtual hearing.  The virtual hearing comprised of counsel for parties appearing in Court Room No 9 where the video-link facilities are, to receive the decision and his Honour presiding via video-link from a location somewhere outside of Papua New Guinea.  To be precise the Transcript of the proceedings of 24th August 2021 (date of decision) shows that the session started at 9:31 am.  Mr Diveni announced his appearance for the Petitioner, now First Respondent, Mr Nii announced his appearance for the Second Respondent, now the Second Respondent in this review and Mr Baniyamai announced his appearance for the First Respondent, now the Applicant in this review.  Thus, all the parties were present through their legal representatives.

145.	The virtual hearing was confined to his Honour announcing his decision which was really the act of informing the parties of the results of the trial.  That was all.  Thus, to ground an argument on the fact that the decision was not delivered in an open Court within the meaning of Section 212(1) of the Organic Law is incorrect.  Moreover, the presiding judge’s decision to sit via video-link at a certain location should not be subject to a condition to consult the parties and obtain their consent but it should be left to the discretion of the presiding judge.  If the judge wants to consult the parties, he should do so, but he is not obliged.  Similarly, whether there were no proper reasons to constitute the National Court outside of the jurisdiction of Papua New Guinea or his Honour was not properly attired as a Judge of the National Court or on recreational leave is inconsequential.
146.	I conclude that the venue where his Honour was presiding at the time of delivery of decision must be accepted as uncontroversial and within the meaning of “open Court” under Section 212(1) of the Organic Law.  For these reasons, I agree with Mr Sheppard’s submission that the Applicant has made it a big issue because the decision was not in his favour.  In reaching this conclusion, I am not encouraging nor promoting the notion that judges should be lavishly delivering their decisions outside the physical domain of a Courtroom.  But without being cynical, with the aid of digital technology it is possible for a judge to deliver a decision up in space so long as there is connectivity via video-link to earth.  The point here is, each case must be decided on its own merits and a judge must carefully assess the situation, reasons, and location before deciding to deliver a decision via video-link or virtually. 
147.	For the foregoing reasons, these grounds which alleged lack of jurisdiction lacked merit and are dismissed.

Ground 3 to Ground 7 – Lack of proof of the allegation of errors or omissions that the Provincial Returning Officer Mr Steven Gore Kaupa declared the Applicant before the counting was completed

148.	By combination of these grounds, the Applicant alleged that the evidence did not establish the pleadings in the election petition that it was the Provincial Returning Officer Mr Steven Gore Kaupa who committed the errors or omissions when he failed to allow the counting to be completed and prematurely declared the Applicant contrary to Section 168(1) of the Organic Law.  His Honour erred in law by failing to find that the evidence did not establish that Mr Kaupa was the person who declared the Applicant as Governor of Southern Highlands Province.  

149.	As it is settled in this jurisdiction, pleadings define the foundation of the action, identification of the issues and drive the evidence, his Honour held that Mr Kaupa did not declare the Applicant, but it was the Electoral Commissioner himself, Mr Gamato.  Thus, this finding was contrary to the pleadings, and this is where his Honour erred.  Another error his Honour made was when he disregarded the pleadings and applied Section 217 (Real justice to be observed) of the Organic Law and the decision of the Supreme Court in William Hagahuno v. Johnson Tuke & Electoral Commission (supra) to decline to summarily dismiss the election petition.

150	The Applicant has made compelling submissions supported by case law to emphasise that pleadings drive the evidence to prove the allegations of errors or omissions but overlooks the allegation that the Applicant was declared before the completion of counting and no absolute majority was reached contrary to Section 168 of the Organic Law. Section 168 is a lengthy provision.  However, it provides for scrutiny of votes and significantly, Sub-section(1)(f) provides that “the candidate who has received an absolute majority of votes is elected”.
151.	The scrutiny of votes is the process of ascertaining the result of polling and one step before the final result is declared.  In order to reach the final result, the candidate must reach the absolute majority of votes.  Such is their significance in the electoral process that where it is alleged that the Returning Officer made errors or omissions in the declaration of the result because he did not complete scrutiny of votes and no absolute majority was reached, a Court would not be dispensing justice if it gave them no consideration.
152.	I note his Honour recognised the call to dispense justice when he said that this error of fact was inconsequential for two reasons at [33] of the judgment: 
(a)	it does not address the primary allegation that the counting was not completed, and no absolute majority was attained by the successful candidate; and

(b)	the information about who declared the Applicant was not reasonably known to the First Respondent because the declaration was not made in public and the writ which was returned to the Governor General was signed by the Returning Officer, Mr Kaupa.

153.	Thus, his Honour would not be dispensing justice if he summarily dismissed the election petition on a technical ground, that is, a wrong person was identified in the pleadings as the person who declared the Applicant.  The source of his Honour’s exercise of discretion not to summarily dismiss the election petition has been misconstrued by the Applicant because unlike ordinary civil cases, a judge exercising jurisdiction in an election petition under Sections 206 and 207 of the Organic Law is conferred a wide discretion under Section 217 of the Organic Law to correct an injustice that may have occurred in an election petition.  
154.	Section 217 states:

“The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.	

155.	His Honour correctly averted to the discretion conferred on him by Section 217 and the decision of the Supreme Court in William Hagahuno v. Johnson Tuke & Electoral Commission (supra) which confirmed and implored judges to be less legalistic in their approach when dealing with election petitions where he said at [34] of the judgment:

“……s217 calls for a more liberal approach to the raising of technical objection to petitions”.

156.	A judge having a clear, and good conscience and guided by the substantial merits of the allegation in the election petition would not ignore these glaring errors or omissions in the electoral process just because a wrong person was identified in the pleadings as the person responsible for the errors or omissions but would give them consideration.  Thus, I am in complete agreement with his Honour where he said at [35] of the judgment:

“If the petition were to be dismissed because of an error of fact which is inconsequential, I would be guided not by the substantial merits and good conscience of the case but by legal technicalities.  I would be deciding the case contrary to the Organic Law.  I am obliged not to do that”.

157.	For these reasons, I find these grounds which alleged error of law lacked merit and dismiss them.

Ground 8 to Ground 14 – Allegation of errors or omissions in declaring the Applicant in special circumstances

158.	By combination of these grounds the Applicant alleged that the Second Respondent relied on proper grounds to declare him in special circumstances and his Honour misconstrued Section 175(1A) of the Organic Law.  Section 175 is set out in full below:

“175.	Return of writs.

(1)	Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained—

(a)	at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and
(b)	by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.

(1A)	Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a)	unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b)	in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

(2)	Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and return the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be”.
	
159.	As to proper grounds, the Applicant submitted that his Honour found that the situation on the ground at the material time was tense and volatile such that attempts to include 84 ballot-boxes for counting by the then Provincial Returning Officer Mr Jacob Kurap and later Mr Kaupa were rendered impossible by the actions of the First Respondent and his supporters and supporters of other Provincial candidates.  However, his Honour erred when he failed to adopt the definition of special circumstances given by the Supreme Court in Special Reference by the Attorney-General [2002] PNGLR 696 and Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814 and find that the situation as described constituted special circumstances.

160.	The Applicant further submitted that his Honour misconstrued Section 175(1A) of the Organic Law when he held that a declaration in special circumstances was improper as the precondition was not satisfied.  The precondition under Section 175(1A)(a) states:

“(1A)	Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a)	unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and”

161.	His Honour held that this precondition was not satisfied because the direction by the Electoral Commission to the Returning Officer in the letter dated 23rd August 2017 not to declare the results was withdrawn by the Electoral Commission (Acting Electoral Commissioner Mr Kalamoroh) in the letter dated 20th September 2017.
162.	The Applicant further submitted that his Honour placed so much emphasis on his finding on the first part of the letter of the Electoral Commission of 20th September 2017 and in so doing, overlooked the true reasons for the withdrawal of the earlier direction of 23rd August 2017 which was to enable the Electoral Commission to decide on the Southern Highlands Provincial seat based on special circumstances.

163.	In concluding his submissions, Mr Baniyamai submitted that his Honour erred because Sub-section (1A)(b) is not made subject to Sub-section (1A)(a) of Section 175 but is a stand-alone provision and conferred power on the Electoral Commission to declare the results in special circumstances at anytime.  In other words, the Electoral Commission was not bound to wait for the Returning Officer to continue and complete the counting.  After it withdrew its earlier direction not to declare the result, it was open to it to declare the result because special circumstances existed.
164.	Before addressing the submissions in relation to what may constitute special circumstances, whether his Honour should have adopted the definition of special circumstances given by the Supreme Court in Special Reference by the Attorney-General (supra) and Special Reference by the Ombudsman Commission of Papua New Guinea (supra) and finally, whether his Honour should have found that special circumstances existed to warrant the Electoral Commission to declare the Applicant, it is necessary to first construe Section 175(1A) of the Organic Law.  If I uphold the submissions that Section 175(1A) is not a stand-alone provision, then it will be not necessary to consider whether special circumstances existed and justified the decision of the Electoral Commission to declare the Applicant.  If I reach the opposite view, I will consider these submissions.
165.	Turning now to Section 175, it talks about the process of return of writ, how a declaration of result after completion of counting is done and where there is a dispute in relation to the result, how it is addressed by the Returning Officer and Electoral Commission.  Section 175(1A)(a) and (b) must be read together to give effect to the intention behind this amendment or additional Sub-section in Section 175.  The use of the conjunctive “and” between the two Sub-paragraphs of Sub-section (1A) reinforces this view.  Thus, contrary to the Applicant’s submission that Sub-section (1A)(b) is a stand-alone provision, it is not.  
166.	Reading them together, the only time the Electoral Commission may declare the result in special circumstances is when it intervenes by directing the Returning Officer not to declare the result.  However, the decision to declare the result must be based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.  
167.	The only person authorised to provide the information is the Returning Officer or in his absence, the Assistant Returning Officer.  This is to eliminate the potential risk that, invariably may arise where other persons including candidates or supporters of candidates communicating directly with the Electoral Commission to influence the outcome of the exercise of power by the Electoral Commission.  If the Electoral Commission withdraws the direction, then by inference, the Returning Officer is at liberty to declare the result.  
168.	In the present case, by a letter dated 23rd August 2017 the Electoral Commission directed the Returning Officer to count the 84 ballot-boxes and secondly, not to declare a winner until the counting is completed.  Instead of waiting for the counting to complete, by his letter of 20th September 2017 the Acting Electoral Commissioner, Mr Kalamoroh withdrew the direction of 23rd August 2017.  To emphasis the key issue, I quote the relevant part of Mr Kalamoroh’s letter of 20th September 2017:

“By this letter, on behalf of the Electoral Commission and Commissioner, I withdraw all previous directions, including the directions contained in the Commissioner’s earlier letter of 23rd August 2017, a copy enclosed herein for your file records.  The Electoral Commission can then make a decision given that special circumstances exist in the case of the Southern Highlands Provincial Governor’s Seat.  The withdrawal takes effect forthwith or as you receive this letter”.  (Underlining is mine).	

169.	The moment Mr Kalamoroh withdrew all previous directions including the direction contained in the letter of 23rd August 2017, the withdrawal not only restored the status quo prior to the direction not to declare the result but significantly, the precondition to the exercise of power by the Electoral Commission to declare the result (Applicant) in special circumstances did not exist.  This is the correct construction of Section 175(1A) and the Applicant’s argument that the Electoral Commission was entitled to declare the result in special circumstances is misconceived.  The next course for the Electoral Commission to take is to allow the Returning Officer to continue and complete the counting and reach the absolute majority before a declaration can be made.

170.	As to the completion of counting in Mt Hagen, his Honour noted at [44] of the judgment, “There was nothing then preventing Mr Kaupa from completing the counting.  The security of counting centre at Mt Hagen was intact and counting had proceeded in an orderly manner”.

171.	For these reasons I uphold his Honour finding at [52] of the judgment that “……………..the power to invoke s175(1A) is constrained by the words of this provision: the power to decide that there are special circumstances warranting the declaration of a result may only be exercised where the Commissioner has directed the officer not to declare a result and the direction is not withdrawn”. 

172.	His Honour correctly concluded at [53] of the judgment:

“In the present case the Commissioner, Mr Gamato, directed the returning officer on 23 August not to declare a result (until the 84 disputed ballot boxes were counted).  But the direction was withdrawn on 20th September by Mr Kalamoroh (as acting Commissioner).  The precondition to the exercise of power under s175(1A)(d) did not exist after 20 September”.

173.	It follows I uphold his Honour’s conclusion at [54] of the judgment:

“In summary, the precondition (Electoral Commissioner has directed returning officer not to declare a result) to exercise by the Electoral Commissioner of the power in s 175(1A) of the Organic Law to declare a result “based on information concerning scrutiny and other information provided by the returning officer or an assistant returning officer” was not satisfied. Therefore s 175(1A) could not be invoked”.

174.	Finally, I cannot stress enough the importance of the scrutiny of votes in the electoral process.  Section 168 of the Organic Law is there to ensure that this important stage of the electoral process is fulfilled.  Irrespective of which candidate scored the highest number of votes and was leading the count, if the scrutiny of votes was not completed and no absolute majority was reached, Section 175(1A) cannot be invoked by the Electoral Commission to declare the result in special circumstances.  In a worst case, a fair and legally proper course to take is for the Electoral Commission to advise the Head of State to declare the election as failed under Section 97 of the Organic Law and people of Southern Highlands Province to hold a supplementary election, however, costly, and time-consuming it might be.

175.	His Honour was intimating this at [55] of the judgment where he said:

“Section 175(1A) is not a catchall provision allowing the Commissioner to declare a result in “special circumstances”. I consider further, that even when the precondition to its invocation is satisfied, s 175(1A) does not allow the Commissioner to declare a result if no candidate has attained an absolute majority. Section 175(1A) could not be relied on in the circumstances of this case to authorise the Commissioner’s declaration of the result……………”.

176.	For these reasons, the Applicant has failed to establish an error of law in these grounds, and they are dismissed.  It follows it is not necessary to consider the grounds and submissions on special circumstances.

Ground 15 to Ground 17 - Relief

177.	In the last group of grounds from 15 to 17, the Applicant seeks to set aside the orders made by the National Court. These orders are:

“(1)	Grounds 4 and 6 of the petition are upheld.

(2)	It is declared that the first respondent was not duly elected at the 2017 general election to the seat of Southern Highlands Provincial.

(3)	There shall be, pursuant to s 212(1)(d) of the Organic Law, a recount of ballot papers for the 2017 election for the seat of Southern Highlands Provincial, which shall be conducted in accordance with the Organic Law and the following orders, so that the result of the recount is presented to the Court by the returning officer, supported by an appropriate affidavit, by 5 November 2021 or within such further period to be determined by the Court. 

	(4)	The second respondent shall by 31 August 2021:
(a)	appoint a returning officer to conduct the recount and in appointing such returning officer may appoint, at his discretion, Steven Gore Kaupa; 
(b)	determine the place of the counting centre, which may be at Mt Hagen or at any other place outside Southern Highlands Province;
(c)	make all other arrangements necessary for commencement and completion of the recount;

(d)	if necessary, file and serve a notice of motion, seeking any orders that are convenient or necessary to facilitate compliance with this order, including an order under s 225 of the Constitution for provision of funding; and
(e)	file and serve an affidavit deposing to the details of decisions and arrangements made in accordance with order Nos (4) (a), (b) and (c).

(5)	These proceedings will return to Court on 2 September 2021 at 9.30 am, for mention and to check compliance with order (4) and to hear any notice of motion filed by any of the parties in the interim.

(6)	The returning officer has the power in accordance with s 153A of the Organic Law to include or refuse to admit any ballot box in the scrutiny, including those disputed ballot boxes that became contentious during the initial counting at Mendi, referred to at paragraphs B31 and B47 of the petition, so that the returning officer may independently consider any objections and make decisions under s 153A of the Organic Law, without being constrained by decisions or purported decisions of any returning officer who conducted the initial counting at Mendi.

(7)	The Commissioner of Police shall provide the resources and personnel necessary to ensure that all ballot boxes are brought as soon as possible to the counting centre. 

(8)	The first respondent is suspended with effect from 12 noon on 31 August 2021, on full pay, from discharging all powers, functions, duties and responsibilities of the office to which he has not been duly elected, viz member for Southern Highlands Provincial, and other offices he holds by virtue of being the member for Southern Highlands Provincial, pending the result of the recount. 

(9)	The respondents shall, subject to any specific order for costs made during the course of the proceedings, pay the petitioner’s costs of the petition, on a party-party basis, which shall, if not agreed, be taxed. 
(10)	The Registrar shall forthwith refund to the petitioner the security for costs deposited under s 209 of the Organic Law on National and Local-level Government Elections.  

(11)	The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order”.  

178.	There are two types of orders his Honour made.  The first one had the effect of immediately arresting the erroneous and premature declaration of the Applicant and put it to rest.  These orders are set out at paragraphs (1) to (7) of the final order (supra).  The second was to act as an interim measure pending the outcome of a re-count of votes.  The order which comes under this category is at paragraphs (8) of the final order (supra).

179.	His Honour relied on Section 212 of the Organic Law to make these orders.  Section 212 provides for powers of the Court and states:

“(1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.

(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4)	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election”.

Declaration of Applicant as not duly elected and re-count of votes

180.	As to the first one, the order that is being impugned is order no. (2).  The Applicant relied on three grounds to demonstrate that his Honour erred when he made this order and that it should be quashed.  If this order is quashed, orders no (3) to (7) supra) must follow suit.  First, the primary relief sought by the First Respondent in the election petition was “Declaration that the declaration of the First Respondent as member-elect for the SHP Electorate made by the PRO Steven Gore Kaupa on 27th September 2017 is null and void”.  Order No. (2) is consequential and dependent on the primary relief sought in the election petition.     

181.	Secondly, the First Respondent failed to prove that Mr Kaupa was the person who declared the Applicant as duly elected member for Southern Highlands Province on 27th September 2017.  Finally, order no. (2) is a final relief that can be made if the election is voided or after the results of a recount are ascertained. 

182.	In support of these grounds, Mr Baniyamai relied on his Honour’s decision in Peter Charles Yama v. Anton Yagama & Ors (2013) N5222 where after upholding certain grounds of the election petition expressed the view that it was not appropriate to make any declarations under Section 212(1)(f), (g) or (h) as it would amount to ‘avoiding’ the election.  The gist of these grounds is order no. (2) is a final order that is available if the election is declared void under Section 215 of the Organic Law or after the results of the recount of votes are made available.  Thus, it is not open to his Honour to grant this relief where he has ordered a recount of votes.

183.	The Applicant and the Second Respondent have made an impressive submission to draw the attention away from a serious error or omission made by the Second Respondent in the process of scrutiny of votes.  Putting it colloquially, the Electoral Commission had made a serious ‘plunder’ and it must be corrected.  Otherwise, it will be against the spirit of a free, fair and safe election, a slogan the First Respondent promotes during General Elections.   The appropriate and most effective remedy to correct this irregularity is the relief granted in order no (2).
184.	His Honour was conferred the discretion by Section 212(1)(f) of the Organic Law to make this order and the facts as the evidence revealed at trial established that it was not a case where counting officials misplaced or misallocated ballot-papers of candidates at counting as was the case in Peter Charles Yama v. Anton Yagama & Ors (supra).  Neither was it a case where the Returning Officer refused to admit ballot-box to scrutiny under Section 153(A) of the Organic Law as was the case in Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286 and where the considerations under Section 215 of the Organic Law applied and to declare the election void or declare that the member-elect was not duly elected was not appropriate until a re-count was completed, and results returned for final decision.
185.	This was a case where the declaration of result was made prematurely on an erroneous construction of Section 175(1A) of the Organic Law while scrutiny of votes contained in 84 ballot-papers was still pending and no absolute majority was reached.  It was an irregular exercise of power by the Electoral Commission which vitiated the whole process of scrutiny of votes and the appropriate relief to restore the integrity of the process is to declare that the Applicant was not duly elected.  Based on Section 212(1)(f) of the Organic Law, this order will restore the status quo prior to the declaration of the Applicant and allow the Returning Officer to complete the scrutiny of votes.
186.	Finally, as counting was not completed, and no absolute majority was reached and that there was nothing to prevent counting from being completed in Mt Hagen, consistent with the power conferred on him by Section 212(d) of the Organic Law on recount of votes, his Honour ordered that there shall be a recount of votes as per order no. (3) (supra).  Finally, orders no. (4), (5), (6) and (7) (supra) set out the details of how, and when the recount is to be completed with police assistance to retrieve all ballot-boxes and how the final results are to be presented to the Court on the return date.  These orders complemented the order for re-count of votes to ensure the re-count is completed without delay and any suggestion that the Court has usurped the powers and functions of the Electoral Commission to direct how the re-count is to be counted is misconceived.  
187.	For these reasons, I uphold his Honour’s finding at [59] of the judgment:

“…………it is just and sufficient (in terms of s 212(3) of the Organic Law), and it is the inevitable result of upholding grounds 4 and 6, for the Court to declare that the first respondent was not duly elected”.

Suspension of Applicant

188.	This leads me to the second type of orders his Honour made.  The pertinent order under challenge is order no. (8) (supra).  The submissions of the Applicant and the Second Respondent favoured the view that order no. (8) (supra) that the Applicant be suspended, with full pay, from discharging his duties and responsibilities as Governor of Southern Highlands Province is contrary to and in excess of the jurisdiction of the National Court under Section 212(3) of the Organic Law.  This is because the National Court’s power is limited by the expression “all or any of its powers under this section”. They relied on Dick Mune v. Poto [1997] PNGLR 356 and Application by William Ekip Wii: SCR No. 4 of 1994 (16th July 1994) for this proposition.

189.	In Martin Thompson v. James Pokasui & Electoral Commission [988] PNGLR 210, it was held that the powers set out under Section 212 of the Organic Law do not include the power to order particulars in an election petition.

190.	The other ground relied upon by the Applicant and the Second Respondent is that order no. (8) is unreasonable and not in the interest of justice given that a recount was also ordered.  The weight of case law was also against the finding that the Applicant should be suspended as Governor pending the results of the recount: see Delilah Gore v. Henry Amuli & Electoral Commission (2018) N7228; Steve Toap Hoap v. Peter Iwei (2008) N3420; Tommy Tomscoll v. Electoral Commission of PNG (2003) N2349; Paias Wingti v. Kala Rawali & Electoral Commission (supra); Samson Kuli v. Electoral Commission & Anton Yagama (2013) N5275 and Peter Charles Yama v. Anton Yagama & Ors (supra).

191.	I repeat what I said earlier, the irregularity constituting the erroneous and premature declaration of the Applicant in special circumstances vitiated the entire process of scrutiny of votes and the Applicant as the beneficiary of the erroneous exercise of power by the Electoral Commission must not be allowed to benefit from it. 
192.	For this reason, I agree with his Honour at [56] of his judgment that:

“The Court has a wide discretion conferred on it by s 212 of the Organic Law, regarding the orders that should be made when it upholds an election petition”.

193.	Order no. (8) supra) was made within the discretion conferred on his Honour by Section 212(3) of the Organic Law.  Furthermore, I reject the Applicant’s submission that it was made against the weight of case authorities.  Those cases are distinguishable on their facts.  They addressed issues dealing with misplacing or misallocation of ballot-papers or refusal by the Returning Officer to admit ballot-box to scrutiny where the considerations under Section 215 of the Organic Law applied.  In this case, the Electoral Commission made a declaration of result while counting was yet to be completed and no absolute majority was reached.  It follows the suspension of the Applicant was proper and in the interests of justice.

194.	Grounds 15 to 17 which alleged error of law lacked merit and are dismissed.

Conclusion

195.	None of the grounds of review have been upheld.  It follows that the application for review must fail, and the order of the National Court is affirmed.  As to costs, as the Second Respondent supported the Applicant in the review, both are ordered to pay the First Respondent’s costs, to be taxed, if not agreed.

196.	The orders I would make are:

	1.	The application for review is dismissed in its entirety.
	
	2.	The order of the National Court of 24th August 2021 is affirmed.

3.	The Applicant and the Second Respondent shall pay the First Respondent’s costs of the application, to be taxed, if not agreed,	
	
4.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

Final decision and Orders of the Court
197.	In summary, the Court by a majority of two to one has come to the decision that each of the grounds for the review have merit and have been made out. Consequently, the Court upholds the review in its entirety and makes the following orders:

(1)	The application for review is upheld in its entirety.

(2)	The judgment and orders of the National Court made on 24th August 2021 in EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission are quashed.

(3)	The proceedings under EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission is dismissed.

(5)	Costs of this review and the proceedings under EP 79 of 2017 – Pastor Kaku v. William Powi & Electoral Commission are ordered against the first respondent to be ascertained by taxation if not agreed.

(5)		Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment and orders accordingly.
___________________________________________________________________
Baniyamai Lawyers:		Lawyers for the Applicant 
Young & Williams Lawyers: 	Lawyers for the First Respondent  
Harvey Nii Lawyers: 		Lawyers for the Second Respondent