Dick Mune v Anderson Agiru, Ruben [Reuben] Kaiulo and Electoral Commission (1998) SC590

• Jurisdiction: Papua New Guinea
• Judge: Injia J:
• Judgment Date: 17 February 1998
• Court: Supreme Court
• Citation: (1998) SC590
• Year: 1998
• Judgement Number: SC590

Supreme Court: Amet CJ, Woods J, Injia J

Judgment Delivered: 17 February 1998

SC590

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 75 OF 1997

DICK MUNE

Applicant

-V-

ANDERSON AGIRU

First Respondent

AND:

REUBEN KAIULO

Second Respondent

AND:

ELECTORAL COMMISSION

Third Respondent

Waigani: Amet CJ, Woods, Injia JJ

1997 : 25 November

1998 : 17 February

Judicial review — Constitution, s.155(2)(b) — Election petition — Grounds — Illegal practices — Facts constituting grounds — Meaning of "illegal practices" in the Organic Law on National and Local-Level Government Elections, Ss.206, 207, 208(a); 220, 178, 222, 217, 191 (Offence No. 5); 151-154, s.187, 218, 151, 154, 108-110; Constitution Ss.37(2); 155 (2)(b); Criminal Code, Ss.105 — 106, 78; 98 — 116.

Cases cited in the judgment:

The Koroba — Lake Kopiago Open Parliamentary Election [1977] PNGLR 328

Avia Aihi -v- The State [1981] PNGLR 81,

Biri -v- Ninkama [1982] PNGLR 242,

Okuk -v- Nilkare [1983] PNGLR 28,

Balakau -v- Torato [1983] PNGLR 242,

Sunu & Ors -v- The State [1984] PNGLR 305,

Holloway -v- Ivarato [1988] PNGLR 99,

Agona -v- Karo [1992] PNGLR 463,

Karo -v- Kidu N1626 [1997].

P. Paraka, for the applicant.

P. Ame, for the First Respondent.

D. Dotaona, for the Second & Third Respondents.

17 February 1998

AMET CJ: I agree with the opinions of their Honours Justices Woods and Injia.

WOODS J: This is an application for review of the judgment of the National Court sitting as a Court of Disputed Returns in a preliminary objection to a Petition disputing the election of the First Respondent for the National Elections for the Southern Highlands Provincial Electorate.

The National Court sitting as a Court of Disputed Returns is a creature of Statute under the Organic Law on National and Local-Level Government Elections. Section 220 of the Organic Law states that a decision of the National Court is final and conclusive and without Appeal and shall not be questioned in any way. Whilst this provision appears to preclude any application by way of appeal to the Supreme Court, the Supreme Court has in a number of cases considered its role as the final judicial authority of the people under the Constitution and whether this final power or authority can be restricted by any other Act or Law of the Parliament. And the Supreme Court has considered that the Constitution section 155 does give it an overriding power to review all matters from other courts or judicial bodies. I do not need to re-iterate the principles and reasons expounded in the various cases such as Avia Ahia -v- The State [1981] PNGLR 81, and Balakau -v- Torato [1983] PNGLR 242, and Sunu & Os -v- The State [1984] PNGLR 305, where the following was stated in the latter case:

The discretionary power to grant a review of a decision of the National Court under s.155(2)(b) of the Constitution should be exercised only where:

it is in the interests of justice;

there are cogent and convincing reasons or exceptional circumstances; and

there are clear legal grounds meriting a review of the decision.

The applicant is seeking review on a number of grounds but in summary they are that:

1. The judge erred in striking out allegations on the basis that they not illegal acts within the meaning of s.178 of the Organic Law and certain sections of the Criminal Code.

2. The trial judge erred in determining whether acts complained of amounted to illegal acts when that issue should have been determined in the trial proper.

3. The trial judge failed to consider whether acts complained of could have been illegal practices.

4. The trial judge erred in ruling that certain allegation did not contain enough material facts.

5. The trial judge erred in stating that the effects of the results of the allegation were not stated.

The Petitioner in his Petition has made a number of allegations of irregularities in the counting of the votes which in effect allege that the scrutiny of the votes as provided for under section 154 of the Organic Law was not done in accordance with that section. The allegations are that unauthorised persons were allowed to take over the control and scrutiny of the counting of votes at Tari Station on the 22nd, 24th, and 26th June. The allegations are contained in Clauses 6 (A), (B), and (C) of the Petition with quite substantial details. The allegations clearly state the times and place and name names of persons and include suggestions of threats to people.

There is no doubt that if the allegations are proved to be correct they do raise serious questions about the scrutiny of the votes and the counting of the votes and because of the numbers of votes involved as stated in the allegations there was the potential for the final count and result to have been affected.

However the judge at the preliminary hearing of objections has ruled that these allegations do not refer to illegal acts as defined either by the Organic Law or the Criminal Code as illegal practices. The judge refers to section 178 of the Organic Law for a guide as to what are illegal acts during elections and then as the Court has clearly recognised that illegal acts are also referred to in the Criminal Code, he refers to the relevant sections of the Criminal Code namely sections 78, and section 98 to 116 and cannot find these particular acts of interfering with the scrutiny or the counting as coming within those provisions. The judge then notes that the Parliament has not created any of the acts complained of as an illegal practice, and it is not the role of the court to create new practices as illegal acts where the whole conduct of elections is a creature of statute and must be bound and governed wholly by that statute which in effect has the higher status of an Organic Law.

However the judge does admit that 'at the highest the acts complained of would fall within the ambit of sections 108, 109, and 110 of the Code':

S.108 — interference at elections

S. 109 — electors attempting to violate secrecy of ballot

S. 110 — stuffing ballot-boxes.

but he then finds that the pleadings fail to plead facts in the terms of those provisions.

I find this rather strange, he admits that they would be acts that come within those provisions of the Criminal Code. What does he mean by fails to plead them in the terms of the provisions. I note that the petitioner does not name the particular sections of the Criminal Code. But by any reading of the allegations there are clear allegations of interference and forced marking of ballot papers in various subclauses of paragraphs 6 (A), (B), and (C).

There is no doubt that there is a body of law which correctly states that the right to challenge an election being a creature of statute and also an action that can have serious consequences to the representation of the people of the country in the parliament then there must be strict compliance with the Organic Law. And therefore as was clearly emphasised in the case Holloway -v- Ivarato [1988] PNGLR 99, 'the facts which must be set out under section 208(a) of the Organic Law are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved'.

So has the petitioner clearly alleged relevant or material facts. I find that he has and even the judge did agree as he seemed to be clear about the acts that were alleged by being able to relate them to various sections of the Criminal Code, 'the acts complained of would fall within the ambit of the sections....'

The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers.

Later in his judgment the judge seems to contradict himself after having said that at their highest the acts complained of would fall within the ambit of those sections of the Criminal Code but then a page later he said that the pleadings do not plead any facts constituting any of the elements of any of the illegal practices prescribed in those sections. I have trouble understanding this contradictions; he seems to clearly understand the allegations as pleaded but then says that they do not plead any facts.

Conclusions...