Sauk v Poyle [2004] PGLawRp 23; [2004] PNGLR 677 (15 October 2004)

SUPREME COURT OF JUSTICE

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

V

DON POMB POLYE; AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

WAIGANI: SAKORA, SEVUA & GAVARA-NANU JJ

1 October 2003; 15 October 2004

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.

Facts

The applicant, an unsuccessful candidate in the 2002 National General Elections for the Parliamentary seat of Kandep Open in the Enga Province was seeking judicial review of the decision of the National Court in proceedings EP No. 3 of 2002 where the Court dismissed the entire petition as being incompetent. The first respondent was returned as the winning candidate while the applicant came second.

The applicant sought a judicial review of the decision of the National Court and for orders inter alia that the decision of the National Court is quashed, the Petition EP 3 of 2002NCD is reinstated, and that there shall be no hearing on competency issues and that all grounds of the Petition shall proceed to substantive trial.

Held

1. Unless a party (petitioner) strictly complies with the requirements of ss.208 and 209, pursuant to s.210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s.206 (Method of Disputing Returns), but unless each and every requirement of ss.208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return (Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342 applied).

2. Section 206 of the Organic Law only stipulates the method by which an election or its return can be challenged in the National Court and contains no conditions requiring strict compliance as to the form a petition shall take.

3. That "fair and liberal meaning" ought to be applied to the phrase "addressed to the National Court", that does in fact take cognizance of the original intention of the legislature that parties to election petitions could commence proceedings themselves without the benefit of legal advice and representation.

4. That the petition was addressed, directed, dispatched or presented to the National Court (Ginson Saonu v Bob Dadae and Electoral Commission; unreported, SC763 delivered on 1 October 2004)

5. That the late return of the writ raises legal issues as to the effect or otherwise of ss.218, 97 and 176 Organic Law upon the trial of the facts alleging this and not matters of competency as such, but rather matters to be dealt with at the trial by evidence and submissions.

6. The Petitioner pleaded the effect of the destruction of ballot papers and it is not material to plead who destroyed the ballot papers because that is a matter of evidence.

Papua New Guinea cases cited

Anthony Michael Siaguru v David Unagi & The Electoral Commissioner [1987] PNGLR 342.
Benias Epe Peri v Nane Petrus Thomas & Andrew Trawen, Acting Electoral Commissioner and the Electoral Commission (EP73 of 2003) unreported, 20th April 2004.
Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342.
Francis Koimanrea v Alois Sumunda, The Electoral Commission & Paul Tiensten (EP01 of 2002) unreported, 13th March 2003.
Ginson Saonu v Bob Dadae & The Electoral Commissioner (EP15 of 2002) unreported and unnumbered, 02nd April 2003.
Ginson Saonu v Bob Dadae & Electoral Commissioner (SC763) unreported, 01st October 2004.
Herowa Agiwa v The Electoral Commission & Ben Peri (EP29 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.
Philemon Embel v Robert Kopaol & Electoral Commission (EP 66 of 2002) unreported and unnumbered, 18th February 2003
Re Menyama Open Parliamentary Election [1977] PNGLR 298.
The Independent State v. Zachary Gelu & Manoburn Earthmoving Limited, N2322, unreported, 13 December 2002.
The Public Prosecutor v. John Aia of Mondo & Anor [1978] PNGLR 224.

Other cases cited

Morgan v Simpson [1975] 1 QB. 151.

Counsel

G J Sheppard with H Leahy for applicant.
G Garo for first respondent.
R William for second respondent.

15 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 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 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 proper interpretation of s.26 Organic Law has come to this Court.

Thus, the "case authorities" his Honour was alluding to were perhaps the two recent National Court unreported decisions that have upheld the objection to competency of petition based on what were contended to be non-compliance with s.206 Organic Law. These were the decision of firstly, Kandakasi J in EP 4 of 2002, Mathias Ijape v Bire Kimisopa and the Electoral Commission (6/3/2003), and, secondly, the unreported decision of Salika J in EP 15 of 2002, Ginson Saonu v Bob Dadae and the Electoral Commission (2/4/2003). In the former case the trial judge found that the petition was not properly before the National Court because it had been addressed to the two respondents rather than to the National Court as provided, it was concluded, by s.206 (supra). Thus, it was further concluded, the petition was incompetent, and was dismissed on this basis.

Justice Salika in the latter case adopted the interpretation of Kandakasi J, and granted a similar objection to competency. It should be noted that whilst the first case has not been challenged on review, the decision in the second case is the subject of another application for review before the Supreme Court. And it must be further noted that Justice Los was not bound to follow these two previous National Court decisions in the accepted doctrine of precedents, established by the Latin maxim: stare decisis, meaning to stand by things decided, so that it is necessary to abide by former precedents when the same points arise in litigation. One need only to read what are provided for by the Constitution itself under Schedules 2.9 and 2.10 (Subordination of Courts, and Conflict of Precedents respectively) to appreciate the correct methodology in dealing with previous cases.

It is instructive that the pertinent parts of Schedule 2.9 should be reproduced here, and we do so as follows:

Sch. 2.9 - Subordination of Courts

(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself.

(2) Subject to Section Sch. 2.10 (conflict of precedents), all decisions of law by the National Court are binding on all other courts (other than the Supreme Court), but not on itself (except insofar as a decision of the National Court constituted by more Judges than one is of greater authority than a decision of the Court constituted by a lesser number).

(3) . . .

(4) . . .

This provision was considered in the Supreme Court case of The Public Prosecutor v John Aia of Mondo and anor [1978] PNGLR 224, where Wilson J (at 232 – 233) said:

I realize that the Supreme Court is not bound by earlier decisions of the Supreme Court (see Sch. 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled after great caution and in a clear case. I am of the opinion that, if the Supreme Court is to be invited to over-rule an earlier decision of the Supreme Court, or even an earlier decision of the pre-Independence Supreme Court, it is desirable that the Court be constituted by more than three judges and, if possible, the Chief Justice of the day should preside. I am also of the opinion that the Supreme Court should not consider over-ruling one of its earlier decisions, assuring it considers the earlier decision to be wrong, unless it has heard full argument (and we heard none in this case on this aspect) as to the desirability or otherwise of the Supreme Court at this stage in this country's development and in circumstances such as arose in this case changing the law by judicial as opposed to legislative decision.

These two decisions (the Mathias Ijape & Ginson Saonu cases, supra) were, therefore, not judicial precedents binding on Justice Los on the question. In any case, at the time of his Honour's decision, one of the decisions was on review to the Supreme Court (supra). It will be noted that Kandakasi J referred to and relied on his own unreported decision in Herowa Agiwa v The Electoral Commission and Ben Peri (of 18/2/2003), and the case of The Independent State v Zachary Gelu and Manoburn Earthmoving Limited (unreported N2322 of 13/12/2002). Needless to say, these decisions are not binding authorities on other National Courts, and certainly do not bind the Supreme Court (see Sch. 2.9, supra).

It will be further noted that the trial judge in this case did not specify any legal basis for following or adopting the judgment in Mathias Ijape v Bire Kimisopa (supra), and, to "go along with the waves, so to speak" is, with respect, no substitute for a well reasoned legal argument for the adoption, even as a matter of judicial comity as between judges of first instance.

The decision in the Mathias Ijape case (supra) was, briefly, that as the petition was "addressed" to the winning candidate and the Electoral Commission, instead of "to the National Court" according to s.206 Organic Law, it was not properly before the National Court, and, therefore, incompetent, warranting dismissal.

Before embarking upon the various grounds of review, we must ask what exactly is meant by the competency in the context of legal proceedings? In answer to our question, we would suggest, firstly, that in respect to evidence before a judicial tribunal, competency is equivalent to admissibility. And in relation to a witness before such a tribunal, the term refers to his or her legal capacity to be a witness. Does the witness (if a child) appreciate the consequence(s) of not telling the truth in the witness stand? Is the witness a competent witness, and, if so, is he or she compellable?

Finally, in relation to the legal proceedings itself, the term would, in our opinion, concern the issue of whether or not there is (or are) legal basis for the proceedings.

Putting it another way, it involves determining whether or not there is legal foundation for the initiation of the proceedings; is there a proper or legitimate cause of action recognized by law, analogous to determining in ordinary civil litigation if there is a lis inter partes. Does there exist a recognized legal bar to bringing the particular proceedings?

In ordinary parlance the adjective competent which is derived from the noun competence or competency, connotes ability or authority to do what is required. Thus, in relation to judicial proceedings, the term would refer to having the legal power or authority to deal with something, so that we are concerned with the power of the court to entertain, and determine, a particular action, claim or dispute. It, therefore, has to do with jurisdiction. The Oxford Dictionary of Law defines jurisdiction as: the power of a court to hear and decide a case or make a certain order; it is the power of a court or judge to entertain an action, petition or other proceeding: Osborne's Concise Law Dictionary.

In election petitions the subject of the National Court's determination and the resultant application for review before us now, what provision in the Organic Law creates or vests jurisdiction? We would, without hesitation, hold that s.208 does by its enumeration of five (5) requisites of an election petition. The mandatory nature of these requisites is well established from a line of judicial authorities starting with the seminal decision of the Supreme Court in the case of: Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342, where the Court stated (at 345) that:

In our view it is clear that all the requirements in s 208 and s.209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s.208 and s.209 are complied with.

The Supreme Court interpreted ss.208, 209 and 210 and laid down the law that unless a party (petitioner) strictly complies with the requirements of ss.208 and 209, pursuant to s.210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s.206 (Method of Disputing Returns), but unless each and every requirement of ss.208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return.

Section 208 is in the following terms:

208. Requisites of Petition

A Petition shall –

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a).

The dictionary definition of "requisite" means something that is needed for a purpose; necessary. Without it, nothing can be done. Thus, it is a thing needed for a particular purpose. And, in the context of an election petition under the Organic Law, each of the five (5) requisites under s.208 is an essential element (or ingredient) of a petition capable of invoking the jurisdiction of the National Court. Absence of or non-compliance with any one or more of the requisites will render the petition incompetent. Similary s.209, where, at the time of filing the petition, if no deposit of the sum of K2,500.00 is made with the Registrar of the National Court, the National Court cannot exercise jurisdiction over the challenge to the election or return. It is not a valid petition.

As if the mandatory nature of the preceding two provisions were not emphatic enough, the Organic Law drives home the jurisdictional point by enacting s.210 which reads:

210. No Proceedings Unless Requisites Complied With. Proceedings shall not be heard unless the requirements of Sections 208 and 209 are complied with.

Nothing could be clearer in its intent than this. A notable absence under s.210 is s 206 which has been relied on to allege incompetence of the petition here. And this is because s.206 does not provide for essential element(s) of a valid petition over which the National Court can properly exercise jurisdiction.

Section 206 is in the following terms:

206. Method of Disputing Returns.

The validity of an election or return may be disputed by petition addressed to the National Court.

It is our considered opinion that this provision does not vest jurisdiction such that its non-compliance would render the petition invalid and/or incompetent. The provision is quite clear as to what it means. It means what it says, and that is to provide the method by or through which an election or return can be challenged or disputed. To suggest that this provision has anything to do with jurisdiction such that the validity or competency of a petition depended on its compliance is to, in our respectful opinion, indulge in a mischievous importation of an intention or purpose never envisaged.

And to suggest further that a petition that is "addressed" to the respondents rather than to the National Court is somehow asking those respondents to exercise power over the petition is to, once again, indulge in a mischievous side-stepping of the legislative intent of the Organic Law. The National Court is the only court of first instance with the jurisdiction to deal with valid petitions. No other!

Section 4 Organic Law makes the point absolutely clear, by providing as follows:

4. Reference of Certain Questions to National Court.

Any question as to whether a certain person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court.

A further jurisdictional provision is provided by s.207 where a single judge of the National Court may exercise jurisdiction. By way of repetition to emphasise the point that s.206 does not determine validity or competency of a petition, in order for the petition to invoke the jurisdiction of the National Court, it must comply with the strict requirements of ss.208 and 209, one of which is that the petition "be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a)": s.208 (e) Organic Law.

Only when there has been full compliance with the mandatory requirements of ss.208 and 209, as insisted upon by s.210 of the Organic Law, will the National Court embark upon exercising power or jurisdiction over the allegations contained in the Petition. And this is done pursuant to s.212 Organic Law which lists the powers that the court can exercise, in hearing and determining the Petition. Needless to say, these powers are exclusive to the National Court pursuant to s.4 Organic Law (supra).

The document that is named a Petition is titled "In the National Court of Justice", in the usual manner when any originating process is intended for the court, seeking the indulgence of the court and invoking its powers to grant relief, dispense justice. We accept the applicant/petitioner's submission that "fair and liberal meaning" ought to be applied to the phrase "addressed to the National Court", that does in fact take cognizance of the original intention of the legislature that parties to election petitions could commence proceedings themselves without the benefit of legal advice and representation.

Section 222 Organic Law is in the following terms:

222. Counsel or Solicitor

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of a party.

It is obvious to us that the legislative intent is to exclude or limit professional legal involvement in the initiation and conduct of the election petitions. Never was there an intention that this special jurisdiction of the court would end up being a game for legal eagles to play around with depending on whose instructions they were acting on.

We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) when commenting on another National Court decision that had been relied on and referred to him:

With all respect to the trial judge, it seems to me that his requirements to satisfy s.208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s.222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard.

This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of his Honour. Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss.208, 209 and 210 Organic Law, supra, or ss.50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission's discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter. In the first election petition filed after the first election after Independence under the then Organic Law on National Elections, the case of In re Menyama Open Parliamentary Election [1977] PNGLR 298, the need to have free and fair elections was emphasized by Frost CJ (at 300) in the following way:

The Organic Law thus gives full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle. regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void.

And further on (at 301) in relation to the seriousness of an electoral system, the learned Chief Justice referred to and cited from the English case of Morgan v Simpson [1975] 1 QB. 151 at p. 166:

. . . An election petition is a serious – and expensive – matter and is not lightly to be set aside.

In a recent decision of Sakora J, in the case of Francis Koimanrea and anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03), his Honour adverted to these concerns where he said (at 10):

As the Constitutional Planning Committee (CPC) took great pains to explain, emphasise and make recommendations on for inclusion in the Independence Constitution (CPC Report Ch. 5, p. 13; Ch. 16, pp. 2 & 3), and as numerous judicial decisions have stressed over the years, considerable importance is attached to the electoral system; the system, as we all know full well, by which members of Parliament are chosen; the aim of which system is to make Parliament representative of the views of the people.

His Honour continued (at 13) a little later with the following:

Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . .

The Constitutional burden of organizing the machinery of an election, and particularly the poll and the count, rest, as has been repeatedly noted and emphasized over the years, entirely on the Electoral Commission (see, ss.126 and 127 Constitution, and s.5 Organic Law). Under the Organic Law, legal regulations and restrictions are provided to ensure as far as possible that election campaigns are fairly conducted. Bribery, treating and undue influence in the nature of duress are corrupt practices. Thus, to take such unmeritorious challenges to the competency of an election petition to their ludicrous extent, to countenance such challenges would mean that genuine legal/Constitutional challenges based on either the mandatory requisites under Organic Law (ss.208, 209 and 210) or the express limitation imposed by the Constitution (ss.50 (1) (a) and (b), and 103) would be stopped in their tracks, as it were, and irregularly elected candidates would assume office and perform or discharge public duties. Similarly, if a successful candidate were allowed to assume office when a petition against his election were attended by serious allegations of voting irregularities such as double or multiple voting, voting by unregistered voters, or by aliens, minors and convicted persons.

There is definitely, in our opinion, too much lawyering in the electoral process! There is too much unwelcome interference and influence by meddlesome legal eagles. The courts have a duty to be wary of these, and be ever mindful of the public interest that ought to operate both ways in election petitions. Because of the current climate of unnecessary and unmeritorious objections and challenges to election petitions, we must note that the election petitions in the late 1970s and early 1980s were never attended by the long drawn-out interlocutory challenges and reviews upon reviews. These were straight-forward affairs that were dealt with by individual judges on circuits and disposed of speedily, both any preliminary issues as to Constitutional qualifications or otherwise, and the substantive allegations pursuant to the Organic Law.

Then in the 1990s the courts threw open their doors to all manner of applications and challenges. These quickly developed into what came to be described as objections on competency. Meritorious or not, everyone was heard, again and again on some invented grounds. We would respectfully describe the conduct of the election petitions then as an unmitigated disaster, though the eventual judicial determinations were conclusive of the issues and cannot be impeached here. So much so that these disastrous experiments of the 1990s led to the felt need to instill some order to the conduct and determination of election petitions. Thus were promulgated pursuant to s.184 Constitution and s.212 (2) of the Organic Law, the National Court Petition Rules in July of 2002, and under Part XVIII Organic Law the Supreme Court Election Petition Review Rules of November 2002.

In conclusion, in respect of the first ground of the competency challenge, we hold that s.206 Organic Law only stipulates the method by which an election or its return can be challenged in the National Court. We accept the applicant's submission that the stipulated method is by petition "addressed, directed, dispatched or presented to the National Court and no other tribunal". This provision contains no conditions requiring strict compliance as to the form a petition shall take. Nor, indeed, do the Organic Law or the National Court Petition Rules (supra). Section 208 Organic Law alone sets out the essential matters that must be provided for a valid petition invoking the jurisdiction of the National Court. Needless to say, s.208 precludes the inclusion of any others demanding similar strict compliance. And s.210 Organic Law puts this beyond doubt.

We accept the applicant's submission that there can be no doubt that the petition was addressed, directed, dispatched or presented to the National Court. In this respect we agree with the contention that, reading the petition without straining ordinary words:

(a) It is entitled "In the National Court of Justice"; and

(b) It invokes the jurisdiction of the National Court under the Organic Law; and

(c) It states that it is Petition; and

(d) It seeks relief by orders of the National Court, not the respondents; and

(e) The words "To" the first respondent and "And to" the second respondent so plainly mean the giving of notice of the petition, that is notice of the petition as the parties to it.

This Court agrees with the conclusion and the basis for that conclusion reached by the Supreme Court in Ginson Saonu v Bob Dadae and Electoral Commission; unreported, SC763 delivered on 1 October 2004.

In respect of the second ground, the allegation that the petition failed to plead facts, we repeat that His Honour made no findings on this. Thus, no issue arises as to the petition's due compliance with the mandatory requirement of s.208 (a) Organic Law. We therefore express no opinion on that issue.

The third ground of objection was in relation to the allegations in the petition on the late return of the Writ of Election. The trial Judge said he followed his decision given on 18 February 2003 in Philemon Embel v Robert Kopaol & Electoral Commission, (supra). However we do not seem to see anything in that judgment which relates to the issue of the late return of the writ. In any event in the hearing of the applicant's petition in EP 3 of 2002, His Honour said at page 3 of his unpaginated judgment:

"I have considered the arguments and I subscribe to my decision on this point in Philemeon Emberl v Robert Kopaol EP 66 of 2002 delivered on 18 February 2003. That is "In relation to the late return of the writ, that is accepted as a matter of fact. But what the effect would be on the election is a legal issue and I accept the submission of the counsel for the first respondent that it should be addressed elsewhere. It has not been shown that the results would have been affected" (our underlining).

In the petition, the subject of this review, the trial Judge accepted the respondents'submission. He said:

" I accept the submission on the basis that the Petitioner has not specifically stated what the end result would be."

With respect, we find that the trial Judge erred in his conclusion. It was erroneous of His Honour to find that the petitioner failed to plead the effect of the late return of the writ. A close scrutiny of the petition, EP 3 of 2002, revealed that the petitioner had stated that the effect of the late return of the writ was that the election was deemed to have failed. We are of the opinion that the petitioner had sufficiently pleaded this in paragraph 3 of his petition in the following terms:

" and consequently any return made thereafter is null and void, and the election is by operation of section 97 of the Organic Law on National and Local Government Elections (the Organic Law) deemed to have failed."

It is our opinion therefore that the petitioner had alluded to the effect of the late return of the writ in his Petition thus, for purpose of pleadings, he sufficiently pleaded the fact in that manner. The trial Judge therefore erred in his conclusion on this issue. If he were to strictly follow his decision in Philemon Embel, which he said he did, he would have allowed this issue to go to trial instead of dealing with it as a competency issue because this ground raises issues of law which must be determined at the trial proper.

We therefore conclude that the late return of the writ raises legal issues as to the effect or otherwise of ss.218, 97 and 176 Organic Law upon the trial of the facts alleging this. Thus, they are not matters of competency as such, but rather matters to be dealt with at the trial by evidence and submissions.

The fourth ground of objection was in relation to the destruction of ballot papers. It is pertinent to refer to the pleadings on this issue because of the finding and or conclusion of the trial Judge. On page 3 of the petition, the petitioner pleaded this issue as follows:

"11,247 ballot papers destroyed before scrutiny

5. A total of 48,662 ballot papers were issued by the second respondent for the Kandep Open electorate.

6. A total of 2174 ballot papers were destroyed at polling booths immediately after the polling.

7. On 10 July 2002, a total of 9073 ballot papers received by the returning officers, marked by the electors by the Kandep Open Electorate and awaiting scrutiny by electoral officials were deliberately destroyed by fire at Wabag Police Station.

8. After the final count of the remaining or surviving ballot papers, the first respondent received 13,599 votes, and the petitioner received 11,763 votes.

9. The burning and destruction of total of 11,247 ballot papers in this electorate constitutes an illegal practice committed in connection with this election, and

(a) the result of the election in this electorate was likely to be affected, and

(b) it is just that the election should be declared void."

On the bottom of the second last page of the unpaginated judgment of the Court, the trial Judge said,

"In relation to the destruction of the ballot papers at Wabag Police Station, the question would be who destroyed them, what was the outcome expected from the beginning. There is serious failure on this aspect. I therefore rule this part incompetent."

The Court then concluded that the whole of the petition was incompetent and dismissed it. We note that the trial Judge was discussing therein illegal practices under s.215 of the Organic Law. Then he found that that ground was incompetent as it did not plead who was responsible for the destruction of the votes.

In our view, there is glaringly an error here because the petitioner had pleaded the effect of the destruction of ballot papers as we have ascertained from the paragraphs which we have alluded to above. We consider that it is not material to plead who destroyed the ballot papers because that is a matter of evidence.

A simple mathematical calculation of the difference of votes cast for the petitioner and the first respondent would have clearly shown that the destruction of so many votes would have affected the result of the return. The difference of the votes cast for the first respondent and the petitioner was 1,836. The total votes cast but which were destroyed at various polling stations and the Wabag Police Station were 11,247. Obviously the destruction of so many votes was likely to have affected the result of the election. The trial Judge therefore erred in failing to take this into account when considering this issue.

We find that the petitioner did plead in paragraph 9 (a) of the petition that the destruction of the ballot papers would have affected the result of the election. This is patently stated in the petition so we find no basis at all for the trial Judge's finding that the petitioner failed to plead the effect of the destruction of ballot papers.

For these reasons, we conclude that the petition should not have been dismissed on competency grounds, but that it should have proceeded to trial. We therefore grant the application with costs.

We make the following orders:-

1. The application is granted.

2. The decision of the National Court is quashed.

3. The Petition, EP 3 of 2002NCD, is reinstated.

4. There shall be no hearing on competency issues and that all grounds of the Petition shall proceed to substantive trial.

5. The respondents shall pay the applicant's costs of this application together with his costs of the Petition before the National Court.

6. The parties appear before the Judge Administrator - Election Petitions on Tuesday, 19 October 2004, at 9:30 am at Waigani for Directions Hearing to set the dates for trial.

7. The orders are abridged to the date of settlement which shall take place forthwith.

Orders accordingly.

Lawyer for applicant: Maladinas.
Lawyer for first respondent: Paraka Lawyers.
Lawyer for second respondent: Nonggorr & Associates.