In The Matter of an Application for Review Pursuant to Section 155(2)(b) of The Constitution; And In The Matter of an Application to Review Decision of The National Court to Allow Certain Grounds of The Petition EP No 66 of 2002 to Remain and Proceed to Hearing and The Decision of The National Court That The Election for Nipa/Kutubu Open Electorate was Invalid and That There be a By–Election Between Robert Kopaol and Philemon Embel (2003) SC727

• Jurisdiction: Papua New Guinea
• Judge: Sawong J, Kirriwom J, Batari J
• Judgment Date: 17 December 2003
• Court: Supreme Court
• Docket Number: SCR No 72 of 2003
• Judgement Number: SC727

Full Title: SCR No 72 of 2003; In The Matter of an Application for Review Pursuant to Section 155(2)(b) of The Constitution; And In The Matter of an Application to Review Decision of The National Court to Allow Certain Grounds of The Petition EP No 66 of 2002 to Remain and Proceed to Hearing and The Decision of The National Court That The Election for Nipa/Kutubu Open Electorate was Invalid and That There be a By–Election Between Robert Kopaol and Philemon Embel (2003) SC727

Supreme Court: Sawong J, Kirriwom J, Batari J

Judgment Delivered: 17 December 2003

1 PARLIAMENT—National Elections—Judicial Review—Application to quash decision declaring election void and ordering by–election—Objection to competency—Failure to meet requirements of s208(a) Organic Law on National and Local–level Government Elections—Need to plead relevant and material facts—Consistent and coherent pleading—Failure to exercise discretion to dismiss petition at preliminary—Bad pleadings—Burden of Proof—Review upheld—Order for by–election quashed—Petition remains dismissed—Applicant's return as duly elected confirmed—Constitution, s155(2)(b), Organic Law on National and Local–level Government Elections (No 3 of 1997), s206, s208, s210, s215, s218

2 Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Malipu Balakau v Paul Torato [1983] PNGLR 242, SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433, Holloway v Ivarato [1988] PNGLR 99, SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197, Raymond Agonia v Albert Karo [1992] PNGLR 463, Ben Micah v Ian Ling–Stuckey [1998] PNGLR 151, Dick Mune v Anderson Agiru (1998) SC590, Michael Buku Nali v Stephen Naik Mendepo [1998] PNGLR 128, Daniel Tulapi v Charles Luta (2000) SC653, Nelson Omagan v Leo Unumba [1988–89] PNGLR 8 referred to

Facts

Applicant was returned winner as elected Member of parliament for Nipa/Kutubu Open Electorate in 2002 National Elections. He ousted the sitting Member the Respondent herein.

A petition challenging the result was filed in the National Court and after preliminary objection was raised objecting to the competency of the petition, all grounds were struck out as incompetent except for two (ground 9 and 13). Those two grounds proceeded to trial and election was overturned and by–election was ordered.

Applicant applied for judicial review under s155(2)(b) of the Constitution challenging the decision on two grounds: firstly, both grounds ought not have been allowed to go to trial as they violated s208(a) of the Constitution in that no proper facts were pleaded and pleading was poor and inconsistent hence, petition was prohibited by s210 from being heard; and secondly, there was hardly any credible evidence showing whether results of the election were affected if errors or omissions under s218 were relied upon.

Held: Firstly, both grounds 9 and 13 were incompetent as they failed to meet the requirements of s208(a) and the trial judge erred in allowing them to go to trial; secondly, having allowed them to go to trial, there was hardly any credible evidence showing that the result of the election was affected by the alleged errors or omissions of the election officials; thirdly, there is no credible evidence of any relationship between the Applicant and the officials of the Electoral Commission; and fourthly, there is no credible evidence that the Applicant was in any way involved in a conspiracy with the election officials to interfere with free exercise of elections in the Electorate.

Details facts and reasons for decision are in the judgment.

___________________________

SC727

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR.NO.72 OF 2003

IN THE MATTER OF AN APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF AN APPLICATION TO REVIEW DECISION OF THE NATIONAL COURT TO ALLOW CERTAIN GROUNDS OF THE PETITION EP.NO.66 OF 2002 TO REMAIN AND PROCEED TO HEARING AND THE DECISION OF THE NATIONAL COURT THAT THE ELECTION FOR NIPA/KUTUBU OPEN ELECTORATE WAS INVALID AND THAT THERE BE A BY-ELECTION

BETWEEN:

ROBERT KOPAOL

-Applicant-

AND:

PHILEMON EMBEL

-Respondent-

WAIGANI: Sawong, Kirriwom and Batari, JJ.

2003: 24th November & 17th December

PARLIAMENT – National Elections- Judicial Review – Application to quash decision declaring election void and ordering by-election – Objection to competency – Failure to meet requirements of section 208(a) OLNLLGE - Need to plead relevant and material facts – Consistent and coherent pleading - Failure to exercise discretion to dismiss petition at preliminary – Bad pleadings – Burden of Proof - Review upheld – Order for by-election quashed – Petition remains dismissed – Applicant’s return as duly elected confirmed – Constitution, s.155(2)(b), Organic Law on National and Local Level Government Elections N0.3 of 1997, ss.206, 208, 210, 215, 218

Facts

Applicant was returned winner as elected Member of parliament for Nipa/Kutubu Open Electorate in 2002 National Elections. He ousted the sitting Member the Respondent herein.

A petition challenging the result was filed in the National Court and after preliminary objection was raised objecting to the competency of the petition, all grounds were struck out as incompetent except for two (ground 9 and 13). Those two grounds proceeded to trial and election was overturned and by-election was ordered.

Applicant applied for judicial review under s.155 (2)(b) of the Constitution challenging the decision on two grounds: firstly, both grounds ought not have been allowed to go to trial as they violated s. 208(a) of the Constitution in that no proper facts were pleaded and pleading was poor and inconsistent hence, petition was prohibited by s.210 from being heard; and secondly, there was hardly any credible evidence showing whether results of the election were affected if errors or omissions under s.218 were relied upon-

Held: Firstly, both grounds 9 and 13 were incompetent as they failed to meet the requirements of s.208(a) and the trial judge erred in allowing them to go to trial; secondly, having allowed them to go to trial, there was hardly any credible evidence showing that the result of the election was affected by the alleged errors or omissions of the election officials; thirdly, there is no credible evidence of any relationship between the Applicant and the officials of the Electoral Commission; and fourthly, there is no credible evidence that the Applicant was in any way involved in a conspiracy with the election officials to interfere with free exercise of elections in the Electorate.

Details facts and reasons for decision are in the judgment.

Cases cited and referred to:

1. Neville Bourne v Manasseh Voeto [1977] PNGLR 298.

2. Malipu Balakau v Paul Torato [1983] PNGLR 242

3. In re Central Banking (Foreign Exchange and Gold Regulations) [1987] PNGLR 433

4. Holloway v Ivarato [1988] PNGLR 99

5. Kasap v Yama [1988-89] PNGLR 197

6. Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.

7. Micah v Ling-Stuckey [1998] PNGLR 151

8. Mune v Agiru & Ors [1998]Unreported Judgement of the Supreme Court No. SC 590).

9. Michael B. Nali v Stephen N. Mendopo and Electoral Commission [1998] PNGLR 128

10. Daniel Tulapi v Charles Luta [2000] Unreported Supreme Court Judgment SC 653

Counsel:

G.Sheppard for Robert Kopaol, Applicant

A.Amet, Jr. for Philemon Embel for the Respondent

T. Sirae for the Electoral Commission (with leave of the Court)

December 17, 2003

BY THE COURT:

This is an application for judicial review of the decision of the court of disputed returns on a petition by Philemon Embel (hereafter “the Respondent”) challenging the result of the election of Robert Kopaol (hereafter “the Applicant”) as the duly elected Member for Nipa/Kutubu Open Electorate in the 2002 National Elections. The Applicant was the First Respondent in the Court of Disputed Returns and the Electoral Commission of PNG (hereafter “Electoral Commission” or “Commission”) was the Second Respondent.

The Commission is not a party in this review proceeding as it was not named as a party as a respondent nor did it file an application challenging the decision of the court below. However it is represented in this review which is objected to by Mr. A. Amet, Jr for Mr. Embel principally on two grounds: firstly, it did not file any review against the decision of the Court of Disputed Return and secondly, it has not been named as a party and therefore in both cases lacked locus standi and need not be heard in this matter.

Mr Amet was unable to cite any authority to the court for both his propositions and we dismissed his objection. We accept Mr Sirae’s submission that Electoral Commission, as the body constitutionally mandated with conducting Parliamentary elections and those of the legislative arms of the local level governments and...