Alfred Manase v Don Pomb Polye and Electoral Commission of Papua New Guinea (2008) N3534

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 01 December 2008
• Court: National Court
• Citation: (2008) N3534
• Docket Number: EP No.3 of 2007
• Year: 2008
• Judgement Number: N3534

Full Title: EP No.3 of 2007; Alfred Manase v Don Pomb Polye and Electoral Commission of Papua New Guinea (2008) N3534

National Court: Lay J

Judgment Delivered: 1 December 2008

N3534

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No.3 of 2007

BETWEEN

ALFRED MANASE

Petitioner

AND

DON POMB POLYE

First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second respondent

Mount Hagen: Lay J.

2008: 23rd October, 1st December

CIVIL - National Elections - issues raised by court - whether court should decide questions of fact before close of the evidence - whether petition viable if ground struck out - test for viability of petition - meaning of ‘winning margin’ in Limited Preferential Voting System.

Facts

Before the close of the evidence the Court directed that the parties submit on whether a ground of the petition had been proven by the Petitioner’s evidence, and if not proven whether the Petitioner could still succeed on the remaining grounds of the Petition.

Held

1. The Court can decide a ground of a Petition before the close of the evidence if it will result in the petition being stopped, but if it will not have that result it is best not to decide;

2. In an election decided on first preferences under the Limited Preferential voting system whether a Petition can succeed should be determined by asking; do the number of votes affected by the allegations in the petition exceed the number of votes of the winning margin?;

3. The winning margin in the Limited Preferential voting system is the number of votes received by the successful candidate above or in addition to the absolute majority required by s168 of the Organic Law.

4. Counsel for a constitutional office should draw to the Court’s attention all of the relevant law which his client is constitutionally mandated to administer.

5. Assuming for the argument that the ground raised for submissions was not proven, the votes affected by the remaining ground of the petition still exceed the number of the winning margin. Therefore it is not necessary or desirable to rule on that ground. The petition is still viable and the trial should continue.

PNG Cases Cited

James Marabe v Tom Tomiape (2006) SC 827

Ben Micah v Ling Stuckey (1998) N1790

Benroy Baira v Kilroy Genia (1998) SC579

Benny Diau v Mathew Gubag (2003) N2354

Benny Diau v Mathew Gubag (2004) SC775

Application for Review; Robert Kopoal v Philemon Embel (2003) SC727

Raymond Agonia v Albert Karo & Anor (1992) N1115

Korak Yasona v Castan Maibawa (1998) SC553

Application by William Ekip Wii; SC45 of 1994; Application for Judicial Review

Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354;

Louis Ambane v Electoral Commission & Ors (1998) SC559

Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338

Dick Mune v Paul Poto (No.2) [1997] PNGLR 356

Baki Reipa v Yuntivi Bao [1999] PNGLR 232

Paias Wingi v Kala Rawali (2008) N3285

Tom Olga v Paias Wingti (2008) SC938

References

Organic Law on National and Local Level Government Elections

Electoral Law (National and Local-Level Government Elections) Regulation 2007

Counsel

P. Mawa, for the Petitioner

P. Dowa, for the First Respondent

R. William, for the Second Respondent

1 December, 2008

1. LAY J.: Don Pomb Polye and Alfred Manase were candidates for the Kandep Open Seat in the 2007 National Elections. Mr Polye is the successful candidate and Member of Parliament and Mr Manase has challenged his election.

2. At the end of the Petitioner's case the Electoral Commission’s counsel indicated that he was contemplating making a "no case" submission. Ultimately he did not do so.

3. Mr. Polye’s evidence has proceeded to conclusion, albeit with significant disruptions due to Local Level Government Elections in Kandep and local level government election related violence in Mount Hagen, where the trial has been conducted.

4. As Mr. Polye’s case closed and the Electoral Commission indicated that it proposed to call up to 23 witnesses, I remained concerned that issues which arose at the close of Mr. Manase’s case had not been addressed, partly due to the foreshadowed "no case" application not materialising.

5. I therefore directed counsel that before the Court embarks on the hearing of the evidence for the Electoral commission’s case, counsel should address the court on those issues which I considered arose at the close of Mr. Manase's case, namely: in relation to ground E1of the Petition, which alleges that 8 boxes of ballot papers were excluded from the counting by the District Returning Officer for improper reasons:

a) is Mr. Manase’s evidence capable of proving the pleaded ground?; and

b) if the evidence does not prove the ground can Mr. Manase still succeed on the Petition?

6. Counsel for the Petitioner has raised a preliminary jurisdictional issue, namely that I should not proceed to determine the questions raised at this stage of the trial.

7. The issues then for determination are:

c) Can I proceed to determine issues of fact solely on the evidence for the Petitioner at this stage of the trial?

d) Whether the evidence called for the Petitioner in respect of the 8 ballot boxes is capable of proving the allegations in the petition?

e) If the evidence does not prove the allegation in respect of the 8 boxes, can the Petitioner still succeed on the Petition?

8. However, because of the conclusions I have reached regarding the issues, they are more conveniently addressed in the order of a), c) & b). And while addressing a) I will explain the rationale behind giving the direction to argue the issues.

Can Issues of Fact be Determined on the Petitioner’s Evidence alone before Close of the Evidence?

9. I gave a direction to argue the issues raised firstly because I concluded from the Supreme Court decision of James Marabe v Tom Tomiape (2006) SC 827, Hinchliffe, Batari and Cannings J. J., that having heard evidence and argument, when the evidence fails to prove a ground I may strike it out. In that case the Court said:

“... a petition Judge is not estopped by an earlier refusal to dismiss an objection to competency, from finding that a ground of an election petition is misconceived. The purpose of hearing an objection to competency is to ensure that a prima facie consideration of the ground of a petition makes it clear to the other parties what the case is that they have to meet. Sometimes a Judge will not dismiss an objection and give the benefit of the doubt to the petitioner. However, when the issue is fully argued and evidence is brought and further light is shed on the issue at the hearing of the petition, it might transpire that the Judge will conclude that, in fact, the ground is misconceived. Such a scenario is neither extraordinary nor improper...”

10. This is not strictly a case of the Court considering a ground misconceived, but of the Court being concerned that Petitioner’s evidence possibly did not prove the ground and raising the issue of its own motion because the parties have chosen not to do so. In Ben Micah v Ling Stuckey (1998) N1790( Kirriwom J), the Court struck out a petition on a ‘no case’ submission when the petitioner’s evidence did not prove the pleaded grounds.

11. In Benroy Baira v Kilroy Genia (1998) SC579 Kapi DCJ as he then was said:

“In my opinion it would be open to a judge, having regard to the terms of s217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.”

12. In Benny Diau v Mathew Gubag (2003) N2354 Salika J considered it was appropriate to hear a no case submission in an election petition. In that case the judge had himself identified a deficiency in the evidence, the key witnesses had not given evidence and the evidence did not match the pleaded ground. The Supreme Court took the view in that matter that “Whether this (the Petitioner’s evidence) should be believed is a matter that can be decided at the end of the trial. The trial judge should have allowed the trial to continue and ask the First Respondent if he wishes to call any evidence.”: Benny Diau v Mathew Gubag (2004) SC775

13. Speaking of general principle the Court said:

“We accept the proposition that the National Court has jurisdiction to stop an election petition trial in an appropriate case, after the petitioner has closed its case, if the petitioner fails to prove an essential ground for invalidating the election result (Ben Micah v Ian Ling-Stucky (Unreported Judgment of the National Court, N1790) and Desmond Baira v Kilroy Genia (Unreported Judgment of the Supreme court, SC579).”

14. Although the Court made that statement it held as I have set out at [12]. The facts in Benny Diau v Mathew Gubag were that there was an allegation of bribery on a certain date and there was evidence given of bribery on the day subsequent to the pleaded day. The judge struck out the ground on the basis...