Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590 (17 February 1998)

Unreported Supreme Court Decisions

SC590

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 75 OF 1997
DICK MUNE
APPLICANT
V
ANDERSON AGIRU
FIRST RESPONDENT
REUBEN KAIULO
SECOND RESPONDENT
ELECTORAL COMMISSION
THIRD RESPONDENT

Waigani

Amet CJ Woods Injia JJ
25 November 1997
17 February 1998

JUDICIAL REVIEW - Constitution, s.155(2)(b) - Election petition - Grounds - Illegal practices - Facts constituting grounds - Meaning of “illegal practices” in the Organic Law on National and Local-Level Government Elections, Ss.206, 207, 208(a); 220, 178, 222, 217, 191 (Offence No. 5); 151-154, s.187, 218, 151, 154, 108-110; Constitution Ss.37(2); 155 (2)(b); Criminal Code, Ss.105 - 106, 78; 98 - 116.

Cases Cited

The Koroba - Lake Kopiago Open Parliamentary Election [1977] PNGLR 328

Avia Aihi -v- The State [1981] PNGLR 81,

Biri -v- Ninkama [1982] PNGLR 242,

Okuk -v- Nilkare [1983] PNGLR 28,

Balakau -v- Torato [1983] PNGLR 242,

Sunu & Ors -v- The State [1984] PNGLR 305,

Holloway -v- Ivarato [1988] PNGLR 99,

Agona -v- Karo [1992] PNGLR 463,

Karo -v- Kidu N1626 [1997].

Counsel

P. Paraka, for the applicant.

P. Ame, for the First Respondent.

D. Dotaona, for the Second & Third Respondents.

17 February 1998

AMET CJ: I agree with the opinions of their Honours Justices Woods and Injia.

WOODS J: This is an application for review of the judgment of the National Court sitting as a Court of Disputed Returns in a preliminary objection to a Petition disputing the election of the First Respondent for the National Elections for the Southern Highlands Provincial Electorate.

The National Court sitting as a Court of Disputed Returns is a creature of Statute under the Organic Law on National and Local-Level Government Elections. Section 220 of the Organic Law states that a decision of the National Court is final and conclusive and without Appeal and shall not be questioned in any way. Whilst this provision appears to preclude any application by way of appeal to the Supreme Court, the Supreme Court has in a number of cases considered its role as the final judicial authority of the people under the Constitution and whether this final power or authority can be restricted by any other Act or Law of the Parliament. And the Supreme Court has considered that the Constitution section 155 does give it an overriding power to review all matters from other courts or judicial bodies. I do not need to re-iterate the principles and reasons expounded in the various cases such as Avia Ahia -v- The State [1981] PNGLR 81, and Balakau -v- Torato [1983] PNGLR 242, and Sunu & Os -v- The State [1984] PNGLR 305, where the following was stated in the latter case:

The discretionary power to grant a review of a decision of the National Court under s.155(2)(b) of the Constitution should be exercised only where:

it is in the interests of justice;

there are cogent and convincing reasons or exceptional circumstances; and

there are clear legal grounds meriting a review of the decision.

The applicant is seeking review on a number of grounds but in summary they are that:

1. The judge erred in striking out allegations on the basis that they not illegal acts within the meaning of s.178 of the Organic Law and certain sections of the Criminal Code.

2. The trial judge erred in determining whether acts complained of amounted to illegal acts when that issue should have been determined in the trial proper.

3. The trial judge failed to consider whether acts complained of could have been illegal practices.

4. The trial judge erred in ruling that certain allegation did not contain enough material facts.

5. The trial judge erred in stating that the effects of the results of the allegation were not stated.

The Petitioner in his Petition has made a number of allegations of irregularities in the counting of the votes which in effect allege that the scrutiny of the votes as provided for under section 154 of the Organic Law was not done in accordance with that section. The allegations are that unauthorised persons were allowed to take over the control and scrutiny of the counting of votes at Tari Station on the 22nd, 24th, and 26th June. The allegations are contained in Clauses 6 (A), (B), and (C) of the Petition with quite substantial details. The allegations clearly state the times and place and name names of persons and include suggestions of threats to people.

There is no doubt that if the allegations are proved to be correct they do raise serious questions about the scrutiny of the votes and the counting of the votes and because of the numbers of votes involved as stated in the allegations there was the potential for the final count and result to have been affected.

However the judge at the preliminary hearing of objections has ruled that these allegations do not refer to illegal acts as defined either by the Organic Law or the Criminal Code as illegal practices. The judge refers to section 178 of the Organic Law for a guide as to what are illegal acts during elections and then as the Court has clearly recognised that illegal acts are also referred to in the Criminal Code, he refers to the relevant sections of the Criminal Code namely sections 78, and section 98 to 116 and cannot find these particular acts of interfering with the scrutiny or the counting as coming within those provisions. The judge then notes that the Parliament has not created any of the acts complained of as an illegal practice, and it is not the role of the court to create new practices as illegal acts where the whole conduct of elections is a creature of statute and must be bound and governed wholly by that statute which in effect has the higher status of an Organic Law.

However the judge does admit that ‘at the highest the acts complained of would fall within the ambit of sections 108, 109, and 110 of the Code’:

S108. interference at elections

S109. electors attempting to violate secrecy of ballot

S110. stuffing ballot-boxes.

but he then finds that the pleadings fail to plead facts in the terms of those provisions.

I find this rather strange, he admits that they would be acts that come within those provisions of the Criminal Code. What does he mean by fails to plead them in the terms of the provisions. I note that the petitioner does not name the particular sections of the Criminal Code. But by any reading of the allegations there are clear allegations of interference and forced marking of ballot papers in various subclauses of paragraphs 6 (A), (B), and (C).

There is no doubt that there is a body of law which correctly states that the right to challenge an election being a creature of statute and also an action that can have serious consequences to the representation of the people of the country in the parliament then there must be strict compliance with the Organic Law. And therefore as was clearly emphasised in the case Holloway -v- Ivarato [1988] PNGLR 99, ‘the facts which must be set out under section 208(a) of the Organic Law are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved’.

So has the petitioner clearly alleged relevant or material facts. I find that he has and even the judge did agree as he seemed to be clear about the acts that were alleged by being able to relate them to various sections of the Criminal Code, ‘the acts complained of would fall within the ambit of the sections....’

The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers.

Later in his judgment the judge seems to contradict himself after having said that at their highest the acts complained of would fall within the ambit of those sections of the Criminal Code but then a page later he said that the pleadings do not plead any facts constituting any of the elements of any of the illegal practices prescribed in those sections. I have trouble understanding this contradictions; he seems to clearly understand the allegations as pleaded but then says that they do not plead any facts.

Conclusions of law are matters for the Court to consider, after an analysis of the pleadings and the evidence. The trial judge seemed to understand from the facts pleaded what was being alleged and I find that the allegations are quite clear and specific, they make serious allegations about the scrutiny and the counting of the votes polled as well as possible stuffing of ballot boxes, so surely it is then a matter for a petitioner to bring his evidence to the court. There are sufficient facts pleaded about the numbers of votes involved to support the allegation that the results of the election could have been affected.

I note that the judge did deal with the allegation in 6 (C) (vi) separately and said that there was insufficient particularity, however a reading of the petition show that this allegation involves quite a number of sub-paragraphs which includes a complete list of ballot boxes and the polling area they came from, and an analysis of the number of votes and details of the alleged behaviour over each of the boxes referred to. I find that this allegation is pleaded with sufficient particularity such that the petitioner should be allowed to bring the evidence to a trial and then for the judge to make the relevant decisions in relation to the law on elections.

This Court is reviewing the decisions made by the judge in a preliminary hearing of an election petition. Whilst the principles guiding the National Court in the consideration of such petitions are quite clear and I have no difficulty with the principles enunciated in the cases of Biri -v- Ninkama [1982] PNGLR 342 and Holloway -v- Ivarato already referred to, the trial judge was determining conclusions of law after seeming to agree that the facts alleged were clear but before the petitioner had had the opportunity to present the evidence to support the facts alleged and to show how they then were affected by the law.

From the above I am satisfied that there are clear and cogent reasons and there are clear legal grounds meriting a review of the decision of the judge in the preliminary hearing. I am satisfied that the petitioner has in paragraphs 6 (A), (B) and (C) clearly alleged certain matters with sufficient particularity that it is incumbent on the court, mindful of the requirements of section 208 of the Organic Law, to allow the petitioner to bring the evidence to support the allegations and to show how these allegations if proved are breaches of the Organic Law and the law generally on the conduct of elections.

There is a further series of allegations of undue influence however I note that the judge did rule that allegation II (A) was to go to trial. I agree with the judge that there is some confusion in this allegation II (B) and therefore his ruling here can stand.

I would therefore find that this Court should review the findings of the judge and quash most of his rulings, except for the ruling on allegation II (B) referred to above and that the petition should go to trial on the rest of the allegations.

INJIA J: I have read the judgment of Woods, J I agree with Woods, J on his statement of the background circumstances of this application and the principles of law applicable to judicial review under Constitution, s.155 (2)(b). I wish to state my own views on several other aspects of this case.

The procedural rule and forms designed for and in use by the National Court in dealing with various matters within it’s general or special jurisdiction is prescribed by law. It is necessary that this be so because litigants need to be assured of certainty in the manner in which matters are litigated and determined in that Court. Generally speaking, the procedural rules used in the National Court are formal, technical and legalistic. On the other hand, the procedural rules and forms applicable to special tribunals such as quasi-judicial and administrative tribunals are flexible and not so technical.

The jurisdiction of the National Court to deal with election petitions is clear. The National court sits to deal with the election petition as the National Court of Justice and not as a special quasi-judicial or administrative tribunal: see Balakau -v- Torato [1983] PNGLR 242 at 247 & 249.

It has been consistently decided in the past that the provision of the Organic Law on National and Provincial and Local-Level Government Elections (hereinafter abbreviated OLNE) must be strictly interpreted and applied by the National Court: Biri -v- Ninkama [1982] PNGLR 242; Holloway -v- Ivarato [1988] PNGLR 99. If a provision of that law prescribes a mandatory requirement, then it must be strictly complied with. If a provision of that law confers a discretionary power, then such provision be given effect to accordingly. This is indicated by the use of the words “shall” and “may” in OLNE, S. 206 - 207.

Section 210 empowers the National Court to strictly scrutinise election petitions filed under s.206 at a preliminary stage. Following the Supreme Court’s decision in Biri -v- Ninkama, supra, the National Court has strictly scrutinised election petitions to see if they comply with the mandatory requirements of s.208(a) - (e). Failure to comply with any of the mandatory requirements in s.208 has resulted in either parts of allegations in a petition or the whole petition being struck out. In this review, there is no issue on this aspect of the National Court’s procedure.

When a petition survives this preliminary scrutiny process, it advances to the trial or hearing stage. At the hearing, the National Court is “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or no”: see s.217. But the National Court is not a free-for-all open political quasi-judicial forum for any aggrieved persons to come to air their grievances in the hope that the election, the choice of the majority, may be overturned. As Sheehan, J said in Agonia -v- Karo [1992] PNGLR 463 (at p.466):

“Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.”

The interpretation to be accorded to s.208(a) was discussed by the Supreme Court in Holloway -v- Ivarato, supra. In that case, it was decided that the facts which must be set out in a petition in compliance with s.208(a) must be the material or relevant facts which would constitute the ground(s) upon which an election may be invalidated but not the evidence by which they might be proved. I also agree with Woods, J that there is no requirement in s.208(a) that a petition should plead the law or relevant statutory provision which defines that ground. However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice: In Holloway -v- Ivarato, supra, Kapi DCJ, demonstrates the confusion apparent on the face of the petition where a petitioner simply pleads the provision breached as follows:

“Application to cl(f)

Section 161 and s.162 are to be read together. The substantive provision in s.162 which is concerned with the manner in which votes cast under Pt XIII, Div. 3 are dealt with. Section 162 of the Organic Law deals with votes cast under Ss. 141 - 143 of the Organic Law.

The petition simply states that ballot papers were admitted contrary to s.161 and s.162 of the Organic Law, but does not state the facts which constitute such a breach. In addition it does not set out whether it is concerned with ballot papers under Ss. 141 - 153. Further it does not set out any facts as to whether there was a breach of s.162(b),(c),(d),(e) or (f). This clause suffers from a failure to set out facts within the meaning of s.208(a) of the Organic Law.”

In the above case, if the facts alone were pleaded without reference to the specific provision affected under Ss. 141 - 143 & s.162(b),(c),(d),(e) or (f), there would be much confusion in the mind of the court and the opposing party. Therefore, the petition suffered from failure to comply with s.208(a).

Recently, in Albert Karo -v- Carol Kidu, N1626 [1977], which I decided as a National Court Judge, I struck out clause 8 of the petition which simply alleged violation of various electoral laws by polling officials in, inter-alia, failing to provide adequate opportunity for scrutiny of votes casted at polling booths, without specifying the particular electoral provision breached. I said (at p. 25):

“Clause 8 does not specify which electoral law was violated by the action of these officials. It is not in the interest of justice to leave the court and the Second Respondent (Electoral Commission) guessing as to what the provision breached might be. Where the Petitioner relies on the breach of statutory or constitutional duty by an electoral official, then that provision must be set out besides the alleged facts.”

In the present case, sitting as a judge of the Supreme Court, I am not persuaded that I should change my view. In the interest of clarity and precision and good pleading, I hold the view that where a petitioner relies on breach of statutory duties by the officers of the electoral commission or by other persons, either or their own or in association with each other, then the specific provision breached should be set out beside the alleged facts.

In the present case, in the Amended Petition, under Part 1, which was headed “Illegal Practices committed by the First Respondent and his supporters and the Electoral Commission,” the petitioner set out facts which showed that the District Returning Officers concerned “and his agents and officials failed to keep the counting room under control, by allowing unauthorised person to enter the counting room and take over counting of votes by use of threatening and assaulting counting officials, chasing away securities, etc...” Names of those unauthorised persons and how they threatened or assaulted proper counting officers are sufficiently and clearly pleaded. The total number of votes affected are also clearly pleaded. I agree with Woods, J that all the material or relevant facts are sufficiently pleaded except for the entitling of the ground constituted by those facts under the heading “Illegal Practices.”

Counsel for the applicant, Mr. Paraka appears to agree with the trial judge’s view that the alleged facts do not fall within the definition of “illegal practice” under OLNE s.178 and the Criminal Code, Ss. 105 & 106. However, he submits that “illegal practice” has an extended meaning and it can be extended to cover the present situation. Mr. Paraka goes on to submit that the present facts amount to an offence under OLNE, s.191, (Electoral offences), offence No. 5 which provides “Any Contravention of this law for which no other punishment is provided” is punishable by a fine of K500.00. He submits any breach of the provision for conduct of scrutiny (counting of votes) provided under s.151-154 is a “Contravention of this Law” for which s.191 Offence No. 5, provides the punishment. To support his arguments, Mr. Paraka relies on a passage from Andrew, J in Okuk -v- Nilkare [1983] PNGLR 28. In that case, one Wera Mori, a candidate for the Simbu Provincial Election was found to be under-aged and not entitled to stand. The question was whether that amounted to an illegal practice under the Organic Law on National Elections. Andrew, J said (at p. 30):

“The expression “illegal practice” is one which historical has been used to denote offences relating to elections. They are set out in the Criminal Code and in s.179 of the Organic Law. But the list contained therein is not exhaustive. I agree with the passage of Pritchard J, in In Re Koroba-Lake Kopiago Open Parliamentary Election [1977] P.N.G.L.R. 328 at 335, (and followed by Woods, A.J in the matter of Thomas Kavali and James Kuru Kupul (Unreported judgment dated 26 November 1982) that:

When one looks at s.215 of the Organic Law, it is perfectly clear that the expression ‘Illegal practice’ was intended to describe more than those offences spelt out in s.179 or those in s.105 and s.106 of the Criminal Code. If not, why in s.215(3)(b) was it necessary to exclude undue influence in bribery from the general expression ‘illegal practice’ if they were not be inference deemed to be included in the first place. They quite clearly were included and, in my view, all offences in the Code Chapter XIV ‘Corrupt and Improper Practices at Election’, s.98 - s.117, Chapter X ‘Interfering with Political Liberty’, s.78, together with the offences created under Pt. XVII of the Organic Law are all included in the meaning of that expression.”

More specifically, the conduct of Mr. Wera Mori amounted to an illegal practice under Ss.187, 191 (offences Nos. 4 and 12) and s.195 of the Organic Law.”

In my view however, Mr. Paraka’s submissions on this point is misconceived, both in terms of the statement of Andrew, J and Pritchad, J referred to above, and the type of electoral offences set out under OLNE. s.191. Section 191 clearly refers to criminal “offences.” A criminal offence (and it’s punishment) is defined by written law: Constitution, s.37(2). Statutory provisions which simply impose a duty on a public official without providing for a criminal penalty for failing to discharge that duty, is not a criminal “offence” which is punishable by a criminal sanction such as a fine or imprisonment. OLNE, Ss. 151-154 clearly impose public duties on Electoral Commission Officials without providing for a criminal sanction for failing to discharge that duty. Therefore, failure to discharge the duty of properly supervising the counting of votes as required by s.154 is not a criminal offence which comes within the ambit of OLNE, s.191 (Offence No. 5).

In Okuk -v- Nilkare, supra and Koroba-Lake Kopiago Open Parliamentary Election, supra, their Honours were dealing with “illegal practices” which were criminal “offences” relating to elections, e.g. in Okuk -v- Nilkare, s.191 (offence No. 4) clearly covered the offence Mr. Mori committed, that is, in making a false declaration on his enrolment form as to his age. Also it was a criminal offence under s.187, in that it was an offence for a person to make a false statement in an electoral paper which was punishable by a fine of K300.00.

In my view, mere breach of a statutory duty by electoral officials under the OLNE, amounts to an error or omission, which if proved to be material which affected the result of the election, may invalidate the election under OLNE, s.218.

The phrase “illegal practice” has a restricted meaning under the OLNE and the Criminal Code in that it connotes electoral “criminal offences.” An illegal practice is not necessarily an “illegal act.” A mere breach of a statutory duty by an electoral official is not an “illegal act” or an “illegal practice,”. For instance, recently in Karo -v- Kidu N1626, I said this of an alleged breach of s.151:

“Mr. Wilson submits that the “illegal practice” pleaded here is a breach by the electoral officials of OLNE s.151(c) which provides that “all the proceedings at the scrutiny shall be open to the inspection of the scrutineers.” He submits an act contrary to law is an illegal act and to not allow proper scrutiny as directed by s.151(c) comes within the meaning of an “illegal act.” In my view, an “illegal practice” at an election is not the same thing as an “illegal act” at an election. The phrase “illegal practice” as used in s.215 has a statutory definition given by OLNE, s.178(1). The conduct of electoral officials of the kind complained of in clause 10 of the Petition is not included in OLNE, s.178. Section 105 and 106 of the Criminal Code (Ch. 262) also sets out instances of “illegal practices” at an election but the conduct of the electoral officials complained of in this petition is also not included in those two sections. The actions complained of here in this Petition which are in breach of OLNE, s.151(c) amounts to “an error of, or omission by, an officer” of the Electoral Commission within the meaning of OLNE, s.218. They are acts of error or omissions constituting breach of s.151 (c) in that they failed to perform their statutory duty in ensuring that the counting of the votes was sufficiently open to scrutineers.”

In the present case, the trial judge accepted that the term “illegal practice” had been given a liberal and extended meaning to include those acts set out in OLNE s.178, as well as Ss. 105 and 106 of the Code. The trial judge however stated that the “illegal practices” were confined to those defined in these provisions and the court must not go out of those provision to create new acts to come within those meanings. The trial judge found that the acts complained of did not come within the meaning of these provisions. I accept this statement of principle and findings on the pleading as being correct.

The trial judge then went on to consider the alternative argument whereby the alleged facts might fall under other electoral offences under s.108-110 of the Code. The trial judge reached the following conclusions:

“At the highest the acts complained of would fall within the ambit of Ss. 108, 109 and 110 of the Code. But the pleading fail to plead facts in terms of those provisions. ... The pleadings do not plead any facts constituting any of the elements of any of the illegal practices prescribed in s.108, 109 or 110 of the Code.”

In my view, the trial judge having correctly arrived at his earlier correct conclusion, it was not necessary for him to consider this alternative argument. His views is obiter dicta.

Having made the foregoing comments however, in my view, the facts read as a whole as pleaded in the present petition was clearly and sufficiently pleaded. They raise serious questions concerning the conduct of electoral officials and their agents in the security arrangements at the counting places resulting in “unauthorised” electoral officials taking over the counting. They amount to a breach of statutory duty imposed by OLNE, s.154, which amount to errors and omissions. If they are proved to be material and such that they affected the result of the election, then the election may be in validated under OLNE, s.218. In the pleadings in the (Amended) petition, these acts of errors and omissions are erroneously, categorised under the ground of “Illegal practices.” I consider this error to be a minor error which the trial judge could have either corrected it or ignored it. The facts as pleaded in my view are sufficiently pleaded to support the ground of errors and omissions on the part of electoral officials which if proven to be material at the trial, may result in invalidating the election pursuant to OLNE, s.218. For this reason, I would uphold the application for review.

As for the other grounds of review, I agree with Woods, J on his conclusions.

ORDER OF COURT

1. Application for review is upheld.

2. Findings of court quashed, except paragraph II (B).

3. Other grounds to proceed to trial.