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
• Court: Supreme Court
• Date: 15 October 2004
• Citation: (2004) SC769
• Docket Number: SCR 38 of 2003
• Year: 2004

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

1 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, s50 and s155(2)(b)—Organic Law on National and Local–level Government Elections, s4, s206, s208, s209, s210, s212, s217, s222 and 227. Whether s206 is a requisite of a petition—Whether s206 is a strict compliance provision.

2 SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Siaguru v Unagi [1987] PNGLR 372, Philemon Embel v Robert Kopaol and The Electoral Commission (EP 66 of 2002) (unreported and unnumbered judgment of Los J, dated 18 February 2003), Mathias Ijape v Bire Kimisopa (2003) N2344, Ginson Saonu v Bob Dadae and The Electoral Commissioner (EP 15 of 2002) unreported and unnumbered, 2 April 2003, The Public Prosecutor v John Aia of Mondo [1978] PNGLR 224, Herowa Agiwa v Benias Peri (2003) N2345, The Independent State of Papua New Guinea v Zachary Gelu (2002) N2322, Benias Epe Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (EP 73 of 2003) (Unnumbered and unreported decision of the National Court (Hinchliffe J) dated 20 April 2004), Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Morgan v Simpson [1975] 1 QB 151, Francis Koimanrea v Alois Sumunda [2003] PNGLR 264, Ginson Goheyu Saonu v Bob Dadae (2004) SC763 referred to

4 Constitution, s50, s155(2)(b), Sch2.9 and Sch2.10; Organic Law on National and Local–level Government Elections, s4, s97, s177, s206, s208, s209, s210, s212, s217, s222, s227

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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 s206 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 s208(e) Organic Law on National and Local–level Government Elections. 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 on National and Local–level Government Elections.

2. The facts required by s208 of the Organic Law on National and Local–level Government Elections 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 on National and Local–level Government Elections.

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:

"S222 of the Organic Law on National and Local–level Government Elections 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 SCR No 4 of 1982; Delba Biri v Bill 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 s208 of the Organic Law on National and Local–level Government Elections.

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 s218(1) of the Organic Law on National and Local–level Government Elections, "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 and The Electoral Commission (EP 66 of 2002) (unreported and unnumbered judgment of Los J, dated 18 February 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 s215 Organic Law on National and Local–level Government Elections, 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 s206 of the Organic Law on National and Local–level Government Elections. This, therefore, is the first time a case, a review, such as this that turns on the proper interpretation of s26 Organic Law on National and Local–level...