SC2440

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 43 OF 2023

FRANCIS MULUNGU POTAPE
Applicant

V

PHILIP UNDIALU
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 1st, 16th August

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to uphold objection to competency of, and dismiss, election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The National Court dismissed an election petition brought by the applicant, upholding objections to competency of the petition lodged by the two respondents (the successful candidate, first respondent, and the Electoral Commission, second respondent). The applicant then applied to the Supreme Court for leave to review the decision of the National Court. He argued that the National Court erred in fact and/or law in eight respects: (a) ignoring the fact that there was only one petition, signed by the applicant as petitioner and two attesting witnesses, which was filed in time; (b) giving precedence to evidence provided by the Integrated Electronic Case Management System (IECMS) and failing to consider s 217 of the Organic Law on National and Local-level Government Elections; (c) incorrectly finding that there was a second petition filed after the expiry date for filing a petition, which was back-dated by a registry officer; (d) incorrectly accepting evidence in affidavits filed by the first respondent that incorrectly stated that the petition was uploaded by the applicant’s lawyer, when it was filed by the applicant in person, within time; (e) incorrectly finding that there was a second petition filed out of time; (f) incorrectly finding without evidence that the applicant filed a second petition in person and had been attended to by a registry officer; (g) incorrectly rejecting the evidence by the applicant that he filed the petition himself and that it was filed in time; and (h) failing to consider s 217 of the Organic Law and the leading case Hagahuno v Tuke (2020) SC2018 and being influenced by irrelevant matters especially a practice direction regarding IECMS. The application was opposed by the respondents.

Held:

(1)	To be granted leave to review a decision of the National Court on an election petition, an applicant must show: (a)(i) insofar as the application relates to a point of law, that it is an important point, which is not without merit or (ii) insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2)	None of the proposed grounds of review, which related to the alleged errors of fact and law by the primary judge, raised important points of law that appeared to have merit. There was no gross error of fact apparent in the judgment of the National Court. The primary judge properly and fairly addressed the objection to competency. There was an abundance of evidence to support the finding that two petitions were filed. The first was filed within time, but was unsigned. The second was signed, but was filed out of time. There was no need to consider s 217 of the Organic Law.  

(3)	There was no injustice, and the circumstances were not exceptional. Leave was refused.

Cases Cited

The following cases are cited in the judgment:

Agiru v Makiba (2023) SC2366
Hagahuno v Tuke (2020) SC2018
Potape v Undialu & Electoral Commission (2023) N10372
Pundari v Yakos (2023) SC2345

Counsel

J Ole, for the Applicant
G Gileng, for the First Respondent
W Pep, for the Second Respondent

16th August 2023

1.      CANNINGS J: On 28 June 2023 the National Court, constituted by Chief Justice Salika, dismissed an election petition, EP 8 of 2022, brought by Francis Mulungu Potape (the applicant) which challenged the election of Philip Undialu (first respondent) as member for Hela Provincial in the 2022 general election (Potape v Undialu & Electoral Commission (2023) N10372). His Honour upheld objections to competency of the petition by the first respondent and by the second respondent, the Electoral Commission, and dismissed the petition.

2.     The applicant has applied to the Supreme Court for leave to review the decision of the National Court. 

3.     He argues that the primary judge erred in fact and/or law in eight respects, set out in paragraph 2.6, grounds, of the application for leave:

(a) ignoring the fact that there was only one petition, signed by the applicant as petitioner and two attesting witnesses, which was filed in time; 

(b) giving precedence to evidence provided by the Integrated Electronic Case Management System (IECMS) and failing to consider s 217 of the Organic Law on National and Local-level Government Elections; 

(c) incorrectly finding that there was a second petition filed after the expiry date for filing a petition, back-dated by a registry officer; 

(d) incorrectly accepting evidence in affidavits filed by the first respondent that incorrectly stated that the petition was uploaded by the applicant’s lawyer, when it was filed by the applicant in person, within time; 

(e) incorrectly finding that there was a second petition filed out of time; 

(f) incorrectly finding without evidence that the applicant filed a second petition in person and had been attended to by a registry officer; 

(g) incorrectly rejecting the evidence by the applicant that he filed the petition himself and that it was filed in time; and 

(h) failing to consider s 217 of the Organic Law and the leading case Hagahuno v Tuke (2020) SC2018 and being influenced by irrelevant matters especially a practice direction regarding IECMS.

4.     The applicant argues that a review of the National Court decision to dismiss the petition is warranted. The application is opposed by both respondents.

CRITERIA 

5.     There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in two cases, Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366. In each case his Honour refused leave for review of decisions of the National Court in an election petition. 

6.     His Honour spelt out the criteria for granting leave. The applicant must show:

1.	insofar as the application relates to a point of law, that it is an important point, which is not without merit or insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and 

2.	there are exceptional circumstances; and 

3.	it is in the interests of justice to grant leave.

7.     I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. I will apply those criteria.

APPLYING THE CRITERIA 

8.     I first address the question of whether any of the proposed grounds of review (reflected in the alleged errors of fact and law in paragraph 2.6 of the application for leave, summarised above as (a) to (h)) are meritorious and raise an important point of law and/or fact.

(a)	Ignoring the fact that there was only one petition

9.     The critical issues determined by the National Court were questions of fact: How many petitions were filed? When were they filed? How were they filed? Were they signed by the petitioner and the attesting witnesses? 

10.     The applicant (the petitioner in the National Court) deposed in an affidavit that there was only one petition; he filed it at the National Court Registry on Saturday 27 August 2022 (which was agreed by the parties to be the 40th day after the date of declaration of the successful candidate and the last day for filing a petition); he filed it in person; and it was signed by himself as petitioner and his attesting witnesses. 

11.     Evidence of a contrary version of events was in affidavits tendered by the first respondent, by National Court registry officers Mathew Bae and Kini Mamis and a lawyer with Gileng & Co Lawyers (the first respondent’s lawyers) Justin Wohuinangu: two petitions were filed in the name of the applicant; the first was filed at 4.27 pm on Saturday 27 August 2022, the second was filed on Monday 29 August 2022; both were uploaded on IECMS; the first was unsigned, the second was signed by the applicant and his attesting witnesses. 

12.     The primary judge accepted the version of events presented by the first respondent’s witnesses. His Honour rejected the applicant’s evidence, highlighting that there was no evidence to support his claim that he attended the registry on Saturday 27 August 2022: he did not have a sealed copy of the petition that he allegedly filed on that day; and he did not say what time he attended the registry and which registry officer attended to him to register and file his petition. 

13.     His Honour concluded that there were two petitions. The first was filed within time, on 27 August 2022, but was unsigned. The second was signed, but was filed out of time on 29 August 2022. 

14.     I can see no error, let alone a gross error, in his Honour’s findings of fact. There was an abundance of evidence to support the finding that there were two petitions filed. The first was filed within time, but was unsigned. The second was signed, but was filed out of time. There was no cross-examination of the three witnesses who gave evidence for the first respondent. The applicant’s evidence was uncorroborated. The primary judge could hardly make any findings of fact other than those his Honour made. 

(b)	Giving precedence to evidence provided by IECMS

15.     There is no arguable case that his Honour gave precedence to IECMS over the Organic Law. Having found that the first petition, though filed in time, was unsigned, his Honour simply applied s 208(c) and (d) of the Organic Law.

16.     Section 208 (requisites of petition) states:

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).

17.    To be a valid petition, it had to be signed by the petitioner and attested by two witnesses. The first petition, which was filed within time was not signed by the petitioner (s 208(c)) or attested by two witnesses (s 208(d)). It was not a valid petition. 

(c) Incorrectly finding that there was a second petition filed after the expiry date, back-dated by a registry officer

18.    There is no arguable case that his Honour erred in finding that there was a second petition filed on 29 August 2022 and that it was backdated by a registry officer, Kini Mamis. 

19.     Though Ms Mamis did not expressly state in her affidavit that she backdated the second petition, her name appears as K Mamis beneath the signature of the registry officer who ascribed the filing date 27 August 2022 to the signed petition, which was document No 1 on the court file for EP 8 of 2022. His Honour admonished Ms Mamis in his judgment for backdating the petition without authority. However, the evidence clearly supports the finding that there was a second petition filed on 29 August 2022 and that it was backdated by Ms Mamis.
(d) Incorrectly accepting evidence in affidavits filed by the first respondent 

20.    There is no arguable case that his Honour erred in accepting evidence in affidavits filed by the first respondent that the first petition was uploaded by the applicant’s lawyer on Saturday 27 August 2022. 

21.     However, the question of who uploaded the petition is irrelevant. Whoever uploaded it – whether it was the applicant’s lawyer or the applicant himself or any other person – the only reasonable conclusion to draw from the evidence was that the petition uploaded on IECMS on 27 August 2022 was filed in good time, but was unsigned and therefore invalid.

(e) Incorrectly finding that there was a second petition filed out of time

22.     There is no arguable case that his Honour erred in finding that there was a second petition uploaded on IECMS on 29 August 2022. That was the only reasonable finding of fact his Honour could have made, given evidence in the affidavits of registry officers, Mathew Bae and Kini Mamis. 

(f) Incorrectly finding without evidence that the applicant filed a second petition in person and had been attended to by a registry officer

23.     There is an arguable case that his Honour erred in fact by stating at paragraph 28 of his judgment “But we know that Kini Mamis attended to him [the applicant] on 29 August 2022.” 

24.     If his Honour was saying that the applicant attended the registry in person on that date and Kini Mamis attended to him, that would be an arguable error of fact as there appears to be no evidence to support that finding of fact. Mathew Bae states in his affidavit at paragraph 13 “On 29 August 2022 at 11.23 am I then noticed another version of the petition, this time it was signed, that was uploaded on IECMS by the petitioner’s lawyer.” Kini Mamis states at paragraph 7 of her affidavit “I processed the signed petition lodged on 29 August 2022.” 

25.     The second petition, which was signed by the applicant and his attesting witnesses, was uploaded on IECMS on 29 August 2022. If and to the extent that his Honour found as a fact that the applicant attended the registry and was attended to by Kini Mamis on 29 August 2022, there is an arguable case that his Honour erred in fact. 

26.    However, even if it is labelled a gross error of fact, it is insignificant. Whether the petition lodged on 29 August 2022 was uploaded on IECMS or whether it was lodged in person over the counter at the registry at Waigani or whether the applicant or his lawyer lodged it or whether Kini Mamis or another officer attended to them, the petition lodged on 29 August 2022 was filed late, two days after the expiry date of 27 August 2022. It failed to comply with s 208(e) of the Organic Law. The question of fact raised by proposed ground 2(f) is unimportant. It does not warrant the granting of leave to argue it. 

(g) Incorrectly rejecting the applicant’s evidence that he filed the petition himself, in good time

27.    There is no arguable case that his Honour erred in fact in rejecting evidence by the applicant that he filed the petition himself, which he and his attesting witnesses had signed, on Saturday 27 August 2022. 

28.     The applicant’s evidence was vague and uncorroborated and was of little probative value when weighed against the strong evidence presented by the first respondent that there were two petitions and the first one, uploaded on IECMS on 27 August 2022, was unsigned.

(h) Failing to consider s 217 of the Organic Law 

29.    There is no arguable case that his Honour erred in disregarding s 217 of the Organic Law or the leading case Hagahuno v Tuke (2020) SC2018. 

30.     Neither s 217 nor anything said in Hagahuno can save a petition that does not meet the requirements of s 208 of the Organic Law. If the question of compliance with any of those requirements is objectively contentious, s 217 and Hagahuno might be invoked. However, the present case was clear-cut. The result of the objection to competency was driven by the facts. Two petitions were filed. The first was filed within time, but was unsigned. The second was signed, but was filed out of time. No other findings of fact could have been made on the evidence available. 

31.     I find that none of the proposed grounds of review are meritorious. None raise important questions of law. There are no gross errors of fact apparent in the judgment of the National Court. The circumstances of this case are unexceptional. The interests of justice do not require the granting of leave. Leave must be refused.

ORDER

(1)	The application for leave, filed 4 July 2023, to apply for review of the decision of the National Court of 28 June 2023 in EP No 8 of 2022, is refused. 

(2)	The applicant shall pay the respondents’ costs of the application on a party-party basis, which shall if not agreed be taxed.

(3)	The file is closed.
________________________________________________________________
Redman Lawyers: Lawyers for the Applicant
Gileng & Co Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent