Philip Undialu v Francis Potape and The Electoral Commission of Papua New Guinea (2020) SC1981

• Jurisdiction: Papua New Guinea
• Judge: Makail, Polume-Kiele & Dingake JJ
• Judgment Date: 07 August 2020
• Court: Supreme Court
• Citation: (2020) SC1981
• Docket Number: SC REVIEW (EP) NO. 8 OF 2019
• Year: 2020
• Judgement Number: SC1981

Full Title: SC REVIEW (EP) NO. 8 OF 2019; Philip Undialu v Francis Potape and The Electoral Commission of Papua New Guinea (2020) SC1981

Supreme Court: Makail, Polume-Kiele & Dingake JJ

Judgment Delivered: 7 August 2020

SC1981

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 8 OF 2019

BETWEEN

PHILIP UNDIALU

Applicant

AND

FRANCIS POTAPE

First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, Polume-Kiele & Dingake JJ

2020: 16th March & 7th August

APPLICATION FOR REVIEW – Review of National Court decision – Election petition – Order for recount of votes – Errors or omissions by electoral officials at counting – Constitution – Section 155(2)(b)

ELECTION PETITION – Illegal practices – Errors or omissions – Allegations against Electoral Officials at counting – Proper tests to apply – Organic Law on National and Local-level Government Elections – Sections 215 & 218

ELECTION PETITION – Allegations of tampering and manipulation of Form 66B and final results of election – Whether tampering with or manipulation constituted illegal practices or errors or omissions – Organic Law on National and Local-level Government Elections – Sections 215 & 218

PLEADINGS – Pleading of grounds of review – Grounds must be clear and unambiguous, brief, specific and comprehensible but not convoluted and riddled with longwinded argumentative statements – Supreme Court Rules – Order 5 – Rule 19(c)

Facts

This is an application to review the decision of the National Court to uphold an election petition and order a recount of votes. The petition was based on allegations of illegal practices and errors or omissions. The allegations of illegal practices were withdrawn prior to the trial. The National Court upheld the allegations that the Returning Officer “tampered” with or “manipulated” Form 66B by changing the final figures on it and his actions and or omissions may have affected by the final result of the election. The first respondent asserted that the application for review comprised of multiple grounds totalling thirty and are so convoluted and vague because they do not clearly and succinctly identify the important point of law that is without merit or an obvious error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice.

Held:

1. While the grounds are multiple thirty in totality, they are not inadequate or failed to sufficiently articulate and identify the issues for determination. Nor are they vague, lacked particulars or details but comprehensible.

2. A petition must make it clear whether an illegal practice or error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proven. Section 215 of the Organic Law on National and Local-level Government Election deals with illegal practices and Section 218 Organic Law on National and Local-level Government Election deals with errors or omissions: Phillip Kikala v. Electoral Commission (2013) SC1295 adopted.

3. The allegation that the Returning Officer “tampered” with or “manipulated” the final figures on Form 66B which may have affected the final results of the General election constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

4. The allegation that the Returning Officer “tampered” with or “manipulated” the final figures to which the declaration of the applicant was made on 24th July 2017 constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

5. As the allegations of illegal practices by Returning Officer and electoral officials at counting were withdrawn, there were no allegations of illegal practices for the first respondent to rely on to prove at trial.

6. The trial judge erred when he held that the Returning Officer “tampered” with or “manipulated” the final figures on Form 66B which may have affected the final results of the General election constituted an error or omission under Section 218 of the Organic Law on National and Local-level Government Election.

7. The trial judge erred when he held that the Returning Officer “tampered” with or “manipulated” the final figures to which the declaration of the applicant was made on 24th July 2017 constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

8. The misapplication of the different allegations (illegal practices and errors or omissions) not only constituted an error on the face of the record (judgement) but the finding that Form 66B is “manifested with glaring instances of tampering or manipulation” is not supported by pleadings and has resulted in an injustice.

9. The application for review is upheld, the decision of the National Court is quashed and petition is dismissed with costs.

Cases Cited:

Francis Potape v. Phillip Undialu & Electoral Commission: EP No 3 of 2017 (Unnumbered & Unreported Judgment of 24th January 2018)

Francis Potape v. Phillip Undialu & Electoral Commission (2018) SC1680

Application of Ludwig Shulze (1998) SC572

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

Kalit v. Pundari (1998) SC569

Waranaka v. Dusava (2006) SC98

Jurvie v. Oveyara (2008) SC935

James Marape v. Tom Tomiape (2006) SC827

John Kekeno v. Phillip Undialu & Electoral Commission (2014) SC1428

Sandy Talita v. Peter Ipatas (2016) SC1603

Phillip Kikala v. Electoral Commission (2013) SC1295

Jamie Maxton-Graham v. Electoral Commission & Ors (2013) N5385

Mathias Karani v. Yawa Silupa (2003) N2385

Robert Sandan Ganim v. Lino Tom Moses (2018) N7233

Electoral Commission & Amkat Mai v. Simon Solo & Anor (2015) SC1467

Simon Solo v. Amkat Mai & Electoral Commission (2013) N5562

Samson Malcolm Kuli v. James Apamia & Ors (2013) N5275

James Pini v. Wesley Nukundi & Electoral Commission (2018) N7342

Kelly Kilyali Kalit v. John Pundari and Electoral Commission (1998) SC569

Counsel:

Mr. P. Mawa with Mr. G. Gileng, for Applicant

Mr. P. Othas, for First Respondent

Ms. A. Kimbu, for Second Respondent

JUDGMENT

7th August, 2020

1. BY THE COURT: We heard parties and read their written submissions including documents in five bound volumes of review book in relation to the application to review the decision of the National Court of 28th June 2019 pursuant to Section 155(2)(b) of the Constitution. By that decision, an election petition by the first respondent was upheld and a recount of votes was ordered.

2. It arose from the 2017 General election where the applicant was declared the successful candidate after scoring the highest votes and the first respondent was runner-up.

3. On 24th January 2018 the National Court upheld objections to competency and dismissed the petition. A Supreme Court review of that decision was upheld, the petition was reinstated, and a retrial was ordered: We refer parties to the full reasons for decision in Francis Potape v. Phillip Undialu & Electoral Commission: EP No 3 of 2017 (Unnumbered & Unreported Judgment of 24th January 2018) and Francis Potape v. Phillip Undialu & Electoral Commission (2018) SC1680.

Issues

4. We consider that the review can be decided on three principal issues:

4.1. Whether the grounds of review sufficiently articulate and identify the issues for determination.

4.2. If so, whether the finding by the trial judge that Form 66B was manifested with glaring instances of “tampering” or “manipulation” constituted an illegal practice or error or omission.

4.3. Whether the finding by the trial judge that the final figures to which the declaration of the applicant was made on 24th July 2017 were “tampered” with or “manipulated” and constituted an illegal practice or error or omission.

Sufficiency of Grounds of Review

5. There are thirty (30) grounds of review. Despite the withdrawal of his written notice of objection to competency due to its belatedness and not being listed for hearing before us, the first respondent asserted that even though the applicant relied on a high number of grounds, each ground failed to meet the tests for grant of review and the review should be dismissed.

6. First, each ground failed to identify an important point of law that is not without merit or an obvious error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice: see Application of Ludwig Shulze (1998) SC572; Applications of Kasap and Yama [1988-89] PNGLR 197; Kalit v. Pundari (1998) SC569; Waranaka v. Dusava (2006) SC98 and Jurvie v. Oveyara (2008) SC935

7. Secondly, the multiple grounds are so convoluted and vague such that the entire review is beyond comprehension and adverse to the respondents defence of the review. For these reasons, the review should be dismissed as being incompetent: see James Marape v. Tom Tomiape (2006) SC827; John Kekeno v. Phillip Undialu & Electoral Commission (2014) SC1428 and Sandy Talita v. Peter Ipatas (2016) SC1603.

Pleading of Grounds of Review

8. As to the requirement of pleading of grounds, we...