Sandy Talita v Peter Ipatas and The Electoral Commission of Papua New Guinea (2016) SC1603

• Jurisdiction: Papua New Guinea
• Judge: Batari J, David, Bona JJ
• Judgment Date: 16 March 2016
• Court: Supreme Court
• Citation: (2016) SC1603
• Docket Number: SC REV (EP) NO. 45 OF 2013
• Year: 2016
• Judgement Number: SC1603

Full Title: SC REV (EP) NO. 45 OF 2013; Sandy Talita v Peter Ipatas and The Electoral Commission of Papua New Guinea (2016) SC1603

Supreme Court: Batari J, David, Bona JJ

Judgment Delivered: 16 March 2016

SC1603

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 45 OF 2013

SANDY TALITA

Applicant

V

PETER IPATAS

First Respondent

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Batari J, David, Bona JJ

2016: 16th March

ELECTION PETITION REVIEW – election petition – grounds and facts - objection to competency of – pleading of illegal practices excluding bribery committed by persons other than winning candidate – knowledge and authority of candidate – effect on election result – errors or omissions - pleading of – material facts – s. 208 (a) Organic Law on National and Provincial Government Elections – application of – winning margin - requirement to set out winning margin.

ELECTION PETITION REVIEW – election petition – attesting witness – requirement that election petition, “be attested by two witnesses whose occupation and addresses are stated” – “attest” - whether witnesses of fact alleged or mere witnesses to attestation of EP document - Organic Law on National and Local-level Government Elections s. 208 (d) considered and applied.

Facts

In the National Court the applicant’s petition was struck out. He sought a review on the basis that, amongst other matters, the Electoral Commission ought not to have been heard as it did not comply with court directions, that the ruling that an attesting witness to the petition did not supply sufficient particulars of address was wrong, that anyone can sign as an attesting witness and it was wrong to hold the witness must be able to attest to the facts pleaded in the petition, that the winning margin was as pleaded and not as held by the trial judge, that it is not necessary to plead the illegal practice was committed with the winning candidate’s knowledge or authority in the second situation under s. 215 (3) of the Organic Law, that it was not necessary to plead the names of witnesses to illegal practices at the polling, nor to plead whether or not there was any objection by the scrutineers, whether or not objection was taken is not a material fact, with respect to some grounds the judge was wrong to find material facts were not pleaded, and “just” that the winning candidate declared not duly elected, was not a material fact, it was not necessary to name the electoral officials committing errors or omissions, that it was sufficient to plead the ballot boxes contain more papers than were allocated to raise the inference that ballot papers were tainted, and that the declaration was made by a person without authority.

Held;

1. Where a petition seeks to disturb the results of an election the successful candidate and the Electoral Commission have standing to be heard on all aspects of the Petition and to contest the validity of the Petition, at [12];

2. A lot and section number and suburb name are sufficient particulars of an address for the purposes of s 208(d), at [20];

3. An attesting witness to a petition should be able to attest to the signing of the petition and to the facts pleaded in the petition, at [21-43];
Nomane v Mori & Electoral Commission (2013) SC1242; Kikala v Electoral Commission (November 2013) SC 1295 and Kimave v Tore (2013) SC 1303 not ollowed on this point.

4. Whether a statement of the winning margin is correct or not is not something that affects the competency of the Petition, it is a matter for trial, at [48];

5. In the second situation envisaged under s 215(3) the petitioner need not plead the illegal practice was committed with the winning candidates’ knowledge or authority, at [53];

6. In the second situation envisaged under s 215(3) the petitioner must plead (a) that the result of the election was likely to be affected, and (b) that it is just that the candidate should be declared not duly elected or that the election should be declared void, at [55] and also at [82];

7. A petitioner cannot plead inferentially in the alternative, this is impermissible, at [62];

8. Where it is alleged that voters and scrutineers were informed before the commencement of polling of illegal marking of ballot papers, it is not improper for the judge to require that the petition plead whether or not there was objection to conduct of voting and at the scrutiny of votes, at [69];

9. It is not permissible to plead there was no polling, or polling was flawed and also plead there was scrutiny without objection, at [72];

10. Where an election petition pleads illegal practices, errors and omissions committed at polling known by many people, it follows as a matter of consistency that it is necessary to plead errors and omissions committed by electoral officials in dealing with any objection against admission of the ballot box for counting at scrutiny, at [91];

11. Where legitimate votes are cast and there is no dispute at counting and a final tally of votes is posted with an eventual winner, that the result was declared by a person without authority is an immaterial error within the meaning of s 218(1) of the Organic Law, at [108];

12. The Application for review is dismissed with costs.

Cases Cited:

Papua New Guinea Cases Cited:

Albert Karo v. Lady Kidu (1997) N1626

Application of Ludwig Shulze (1998) SC 572; SCR No 5 of 1988

Applications of Kasap and Yama [1988–89] PNGLR 197

Dawa Lucas Dekena v Nick Kopia Kuman (2013) SC1272

Delba Biri v Bill Ninkama [1982] PNGLR 342

Electoral Commission of PNG v Simon J Solo (2015) SC1467

Ezekiel Sigi Anisi -v- Tony Waterupu Aimo (2013) SC1237

James Ekip -v- Gordon Wimb & Anor (2012) N4899

Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242

Jimson Sauk v Don Pomb Polye (2004) SC769

Jurvie v Oveyara (2008) SC935

Kopaol v Embel and the Electoral Commission (2004) SC 727

Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151

Moi Avei & Electoral Commission v Charles Maino (2000) PNGLR 157

Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285

Paru Aihi v Sir Moi Avei (No 2) (2003) SC720

Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

Philip Kikala v. Electoral Commission & Anor (2013) N4960

Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295

PNG Air Pilots Assoc. v. Director of Civil Aviation & Anor [1983] PNGLR 1

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Riddler Kimave v Poevare Tore & 2 Ors (2013) SC 1303

SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265

Sir Arnold Amet v Peter Charles Yama (2010) SC 1064

Overseas cases cited:

Freshfield v Reed (1842)

9 Meeson and Welsby 404, 152 ER 171

Kitcat v. King (1930) 266

Re Bravada (1967) 2 LL ER 1244.

Shamu Patter and Abdul Kadir Ravutha (1912) TLR 583 PC

Counsel:

Ian Molloy, with G. Purvey, for the Applicant

Paul Mawa, for the First Respondent

Ray Williams, for the Second Respondent

16th March, 2016

1. BY THE COURT: On 16 July 2013 the National Court dismissed the election petition in EP 101 of 2012 in respect of Enga Provincial Electorate. This application seeks a review of the National Court decision.

Background in Brief

2. Sandy Talita lost his election petition at the outset when the Court of Disputed Returns upheld the respondents’ objection to the competency of his court action. He now applies to this Court to review the decision of the National Court. He alleges that the election of Peter Ipatas (First Respondent) as the winning candidate for Enga Regional seat in the 2012 General Election is flawed by reason of electoral officers committing illegal practices, errors and omissions at various polling booths and at the scrutiny of votes.

3. The grounds for review do not make easy reading. So, we opted to adopt and follow the order and form set out in the parties’ written submissions. We consider this necessary to avoid reproducing what on the face of the records are convoluted, verbose statements the Applicant expects the Court to wade through to identify and isolate the issues from submissions.

Judicial Review Application: Jurisdiction

4. The Applicant invokes the power of this Court under s. 155 (2)(b) of the Constitution to review a judicial act of the National Court because he has no right of appeal under s. 220 of the Organic Law on National and Local-level Government Elections (Organic law). The judicial review power has its own separate and distinct process from an appeal. The fundamental differences between the two jurisdictions have been echoed most recently by the Supreme Court in, Electoral Commission of PNG v Simon J Solo (2015) SC1467. See also, Moi Avei & Electoral Commission v Charles Maino (2000) PNGLR 157. See also, Peter Waranaka v Gabriel Dusava (2009) SC980; Dawa Lucas Dekena v Nick Kuman (2013) SC1272; Ezekiel Anisi -v- Tony Aimo (2013) SC1237.

5. The two basic criteria for grant of judicial review application are; (i) where the applicant is able to demonstrate an important point of law that is not without merit to be determined: Application of Ludwig Shulze...