Review Pursuant to Constitution s155(2)(b); In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of a Disputed Return in the 2002 National Elections for the Kandep Open Electorate; Jimson Sauk v Don Pomb Polye and Electoral Commission of Papua New Guinea (2004) SC769

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Sevua J, Gavara–Nanu J
• Judgment Date: 15 October 2004
• Court: Supreme Court
• Citation: (2004) SC769
• Docket Number: SCR 38 of 2003
• Year: 2004
• Judgement Number: SC769

Full Title: SCR 38 of 2003; Review Pursuant to Constitution s155(2)(b); In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of a Disputed Return in the 2002 National Elections for the Kandep Open Electorate; Jimson Sauk v Don Pomb Polye and Electoral Commission of Papua New Guinea (2004) SC769

Supreme Court: Sakora J, Sevua J, Gavara–Nanu J

Judgment Delivered: 15 October 2004

SC769

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 38 OF 2003

REVIEW PURSUANT TO CONSTITUTION S. 155 (2) (b)

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN IN THE 2002 NATIONAL ELECTIONS FOR THE KANDEP OPEN ELECTORATE

AND:

JIMSON SAUK

Applicant

AND:

DON POMB POLYE

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani : Sakora, Sevua & Gavara-Nanu JJ

2003 : 1st October

2004 : 15th October

Constitutional Law – Organic Law – National Elections – Practice and procedure – Petition disputing validity of election and return – Method of disputing – Addressed to the National Court – What means – Requisites of petition – Challenge to competency of petition – Review of decision on – Constitution, ss 50 and 155 (2) (b) – Organic Law on National and Local Level Government Elections, ss 4, 206, 208, 209, 210, 212, 217, 222 and 227. Whether s. 206 is a requisite of a petition - Whether s. 206 is a strict compliance provision.

Constitution, ss 50, 155 (2) (b), Schedule 2.9 & 2.10

Organic Law of National and Local Level Government Elections, ss 4, 97, 177, 206, 208,

209, 210, 212, 217, 222, 227

Cases cited:

Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342

Anthony Michael Siaguru v David Unagi & The Electoral Commissioner [1987] PNGLR 342

Philemon Embel v Robert Kopaol & Electoral Commission (EP 66 of 2002) unreported and unnumbered, 18th February 2003

Mathias Ijape v Bire Kimisopa & The Electoral Commission & The Electoral Commission (EP04 of 2002) unreported and unnumbered, 06th March 2003.

Ginson Saonu v. Bob Dadae & The Electoral Commissioner (EP15 of 2002) unreported and unnumbered, 02nd April 2003.

The Public Prosecutor v. John Aia of Mondo & Anor [1978] PNGLR 224.

Herowa Agiwa v. The Electoral Commission & Ben Peri (EP29 of 2002) unreported and unnumbered, 18th February 2003.

The Independent State v. Zachary Gelu & Manoburn Earthmoving Limited, N2322, unreported, 13th December 2002.

Benias Epe Peri v. Nane Petrus Thomas & Andrew Trawen, Acting Electoral Commissioner and the Electoral Commission (EP73 of 2003) unreported, 20th April 2004.

Re Menyama Open Parliamentary Election [1977] PNGLR 298.

Morgan v. Simpson [1975] 1 QB. 151 at p.166.

Francis Koimanrea v. Alois Sumunda, The Electoral Commission & Paul Tiensten (EP01 of 2002) unreported, 13th March 2003.

Ginson Saonu v. Bob Dadae & Electoral Commissioner (SC763) unreported, 01st October 2004.

G J Sheppard with H Leahy for Applicant.
G Garo for First Respondent.

R William for Second Respondent.

15th October 2004

BY THE COURT: This is an application for review of the decision of the National Court in proceedings EP No. 3 of 2002 where the court sitting at Mt Hagen dismissed the petition as being incompetent.

The applicant was an unsuccessful candidate in the 2002 National General Elections for the Parliamentary seat of Kandep Open in the Enga Province. The first respondent was returned as the winning candidate with 135099 votes while the applicant came second polling 11763 votes, a difference of 1936 votes.

Pursuant to s 206 Organic Law on National and Local Level Government Elections (the Organic Law), the applicant disputed the return by filing with the National Court his petition (EP No. 3 of 2002), pursuant to s 208 (e) Organic Law. He stated and relied on the following two grounds to support his dispute:

1. The late return of Writ (of Election); and

2. Massive destruction of ballot papers before scrutiny.

It was the applicant’s claim that, of the 48662 ballot papers issued for the electorate, 11247 ballot papers with “cast votes” were deliberately destroyed before scrutiny. This is asserted to be or represent 24 % of the ballot papers issued and votes cast on, but deliberately destroyed before scrutiny was undertaken. It is further asserted in the petition that of the total papers destroyed, 2174 were destroyed at various polling stations while the balance of 9073 was alleged to have been destroyed at the Wabag Police Station. Thus, the allegation in this respect concluded that the balance of 9073 ballot papers (with “cast votes”) destroyed at the Police Station represented five times the difference between the votes for the first respondent and the applicant.

When the petition came on for hearing at Mt Hagen the respondents challenged the competency of the petition on four grounds. These were that:

1. The petition was not “addressed to” the National Court as required under s 206 of the Organic Law.

2. The facts required by s 208 of the Organic Law not sufficiently pleaded.

3. The late return of the Writ of Election for the electorate gave no cause to dispute the return.

4. The destruction of ballot papers were not identified as an illegal practice or “error or omission” of an electoral official under the Organic Law.

Taking each of the grounds relied on by the respondents in their “competency” challenge to the petition, the trial judge, whilst acknowledging that the petition was addressed to the National Court, and gave reasons for this, in the end preferred to follow “case authorities” and had to “go along with the waves, so to speak”, whatever that may mean. In a four page (unpaginated) judgment, his Honour said this:

Section 222 of the Organic Law shows that it is for the aggrieved individual to challenge an election in court personally in the first place. In this case the petitioner has nowhere to go but to the court. He has no intention to go to the winning candidate to challenge him in the house or in his village.

Having said that, however, on the face of case authorities now, I have to go along with the waves, so to speak. I therefore find this clause incompetent.

In relation to the second ground, after reproducing certain extracts from the judgments in the two previous Supreme Court cases of Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342 (at 345) and Siaguru v Unagi [1987] PNGLR 372 (at 33), and referring to a couple of later cases, his Honour made no determination, came to no conclusion, on this ground. That is to say, his Honour made no findings on the ground relied on and the submissions made in respect of the sufficiency or otherwise of the facts pleaded as required under s 208 of the Organic Law.

The third ground relied on by the respondents asserted that insufficient facts were pleaded to constitute a valid ground. That is to say, it was the respondent’s case that no statement was included in the petition as to whether the late return of the writ was alleged to be an illegal practice or an error or an omission. It was further contended that, in any case, such a ground was excluded by s 218 (1) of the Organic Law, “and more importantly the Petitioner has not stated how the delay in the return of the writ effected (sic) the result of the election”.

The trial judge upheld this ground, relying on what he himself had said in an earlier unreported case (Philemon Embel v Robert Kopaol EP 66 of 2002, 18/2/2003), which was:

In relation to the late return of the writ, that is accepted as a matter of fact. But what the effect would be on election is a legal issue and I accept the submission by the counsel for the first respondent that it should be addressed elsewhere. It has not been shown what the results would have been affected.

Finally, on the fourth ground, destruction of ballot papers, it was contended by the respondents that, as with the other grounds of the petition, there was no pleading as to whether the destruction (at Wabag Police Station of 9073 ballot papers, the 2174 at polling stations having not proceeded with) was an error or, or if it was an illegal practice. After reproducing s 215 Organic Law, the provision on the voiding of election for illegal practice, his Honour concluded that this ground of the petition was incompetent, there being “serious failure” in not pleading who was responsible for the destruction of the votes (ballot papers), and the likely effect this destruction would have had on the result of the election.

His Honour then concluded that the entire petition was incompetent on the grounds contended by the respondents and dismissed it.

His Honour declared that he had to “go along with the waves, so to speak” (supra) because of “on the face of case authorities now . . .” . Unfortunately, his Honour omitted to specify which case authorities he was referring to and felt obliged to follow. As far as we are aware, there are no Supreme Court pronouncements on the issue of what is intended by s 206 of the Organic Law. This, therefore, is the first time a case, a review, such as this that turns on the...