Iangalio v Electoral Commission, Ranyeta and Kaeok [1998] PGSC 36; SC568 (5 October 1998)

Unreported Supreme Court Decisions

SC568

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 67 & 70 OF 1998
BETWEEN: MASKET IANGALIO
FIRST APPLICANT
AND: THE ELECTORAL COMMISSION
SECOND APPLICANTS
AND: WAUNI WASI RANYETA
FIRST RESPONDENT
AND: MIKI KAEOK
SECOND RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
31 July 1998
5 October 1998

JUDICIAL REVIEW - S.155(2)(b) of Constitution – Simultaneous trials of related Election Petitions – Different pleadings – Different reliefs sought.

CONDUCT OF TRIAL – Parties represented by separate lawyers – Cross-examination of witnesses – Opening and Concluding speeches by different lawyers.

JURISDICTION of Court of Disputed Returns Wanting – No proper consolidation or joinder – Common law.

Held

1. No jurisdiction to jointly try two or more election petitions from election in the same electorate, where not validly consolidated or joined.

2. Where the grounds of the petitions are substantially different, petitioners are represented by separate lawyers and relief claimed are different and inconsistent, no jurisdiction to jointly try.

Counsel

GJ Sheppard, for First Applicant.

J Nonggor, for Electoral Commission.

A Manase, for First Respondent.

M Wilson (with Manda), for Second Respondent.

AMET CJ: This is an application for review pursuant to s. 155(2)(b) of the Constitution, to review decisions of the National Court sitting as a Court of Disputed Returns, in the joint trials of two election petitions arising out of the National Election for the Wapenamanda Open Electorate. The two petitions were EP No. 13 of 1997 and EP No. 65 of 1997.

The petition EP No. 65 of 1997 was set down for hearing on 11 February 1998 in Mt. Hagen. On the morning of the trial, the lawyer for the petitioner in EP No. 13 of 1997 made application for the petition, the trial of which had been confirmed for 16 March 1997, to be tried jointly with EP No. 65 of 1997. The Applicant objected to the joint trials of the two petitions. The Court however allowed the application and ordered the two petitions to be tried together.

The Court subsequently made the following declarations; that the Applicant who was returned as elected was not duly elected, that the general election for the Wapenamanda Open Electorate was absolutely void and that a by election be conducted for the electorate.

The Applicant had made application for review of these declarations including the decision to jointly try the two petitions. Because the application for review in respect of the decision to jointly try the two petitions went to jurisdiction, the Supreme Court had directed that that ground be argued separately from the other grounds for review. That ground, 6(a)(ii) pleads as follows:

Both petitions were heard together contrary to law, notwithstanding that there were two separate petitions, involving two separate petitioners, two separate lawyers and counsel for the respective petitioners, two separate and distinctly different issues of fact, and two separate and inconsistent sets of relief sough by the respective petitioners.

I have read the opinions of the Deputy Chief Justice and Justice Los. I am in general agreement with the conclusions reached by Los J, and wish only to add a few observations of my own.

I consider that in the circumstances of these two petitions it was inappropriate for the learned trial judge to have ordered them to be tried together. They were not consolidated, as is understood in common law, which has been adopted as part of the underlying law. They were not joined either, again as a joinder is properly to be understood in common law. What occurred, in my view, is that two petitions with different grounds and reliefs sought were simultaneously tried, simply because they arose out of the same election, and were against the same respondent, the duly elected candidate.

In my opinion, unless the two petitions were properly consolidated or joined, they could not be tried together in the manner they were. I consider that the Court did not have jurisdiction to try the two petitions together as it did. The following were the circumstances. The grounds of the petitions that remained to be tried were not the same; EP 65 of 1997 alleged bribery by the First Respondent which was not alleged in EP 13 of 1997. Both petitions alleged errors or omissions on the part of electoral officials in not counting certain ballot boxes; but they did not allege the same ballot boxes. In EP 65 of 1997 four boxes were plead to have been wrongly omitted from the count, whereas in EP 13 of 1997 only two were said to have unlawfully rejected from the count; these were boxes 0003 and 0068. In EP 13 of 1997 a different ground was also pleaded; that electoral officials counted two additional boxes which should not have been counted, boxes 0410 and 0458.

The relief sought by the two petitions was understandably different. EP No 65 of 1997 sought the following relief:

A recount of all the votes or recount of the four ballot boxes that were omitted from the count, being boxes 0003, 0068, 0104 and 0376.

The following were the common reliefs sought:

1. that the first respondent was not duly elected;

2. that the ballot papers in boxes –0458 and 0410 be declared informal and not be counted.

The following were the relief differently claimed; in EP 56 of 1997 claimed a full recount or alternatively four boxes that were omitted be counted; 0003, 00t658, 901904, 0376 and that the petitioner be duly elected; whereas in EP 13 of 1997 a recount was only sought for Boxes 0003 and 00568 and that the petitioner be duly elected duly elected.

I consider that these legal statuses of the petitions and the different issues raised are such that even if court were minded to, in my opinion it could not properly in law have “consolidated” or “joined” the two petitions. It is therefore all the more difficult in law to have tried the petitions jointly as the learned trial judge did.

It is true that the petitions arise out of the same election, but the only common question of law is whether the Electoral Officials erred in omitting to count certain common ballot boxes. Each petition also seeks the common relief that the First Respondent be declared not to have been duly elected. They each seek recount of different ballot boxes. The most significant different relief sought is that each petitioner seeks a declaration that he be declared duly elected.

The joint trials posed numerous practical and legal difficulties. Because the petitioners are separately represented two separate opening speeches would need to be made. Would it be right that the petitioners should have as against the Respondents, and the First Respondent in particular, the advantage of two opening speeches instead of one? In the conduct of the cases, because the were two petitioners were separately represented, would each petitioner be allowed to cross-examine the other petitioners witnesses and have the advantage of being able to put leading questions to a witness who would be substantially on the same side? Again when the Respondents witnesses were called, would it be right that both petitioners, separately represented, should be allowed to cross-examine those witnesses? The same problem would arise in respect of the final speeches at the end of the case. Would separately represented petitioners be allowed to have two speeches?

Where the grounds for the petitions are not the same, I consider the difficulties are considerably complicated. For instance, in these petitions, in EP 65 of 1997 the first ground relied upon to seek a declaration that the First Respondent was not duly elected was bribery. If this ground were successful the mandatory order that should be made is that the winner was not duly elected. I do not think it is possible to then have another petitioner declared winner on the basis of different grounds such as a recount of ballot papers, such as being sought by the petitioner in EP 13 of 1997. The two petitions also seek a recount of different ballot papers. If on a recount of these different ballot papers the result is different in each recount, what is the relief to be granted? If each petition were successful on the grounds each has relied upon, and given the fact that each has sought a declaration that he be declared to have been duly elected, what is to be the outcome in such a situation.

For these foregoing reasons of practical and legal impossibilities, I consider that the Court was without jurisdiction to order joint trials of two distinct petitions.

I agree with Justice Los that the application for review be upheld and the declarations of the trial Court be brought up into this Court and quashed. I agree also that the petitions be tried separately in the order in which they were set down for trial. Until that occurs, the Applicant is restored as the duly elected member for the Wapenamanda Open Electorate.

KAPI DCJ: On 1^st June 1998, the National Court made a declaration after a joint trial of EP 13 and 65 of 1997 that Mr Masket Iangalio (hereinafter referred to as the Applicant) was not duly elected and that the election in the Wapenamanda Open electorate was absolutely void.

The applicant filed a judicial review against this decision under s 155 (2) (b) of the Constitution. The review is sought on a number of grounds and it is pending.

The Supreme Court gave a direction that there should be a split hearing of the grounds of review (see Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission, Unreported judgement of the Supreme Court dated 17^th July 1998 SC 562). The Court directed that ground 6 (a) (ii) of the review should be heard before the other grounds of review. It is this ground of review which has come before us for hearing.

The ground for consideration is as follows:

“6. GROUNDS

In making the Orders referred to in paragraph 4 hereof the Court acted in excess of or in want of jurisdiction in the following respects:

(a) there are the following errors of law on the face of the record in that:

(i) ....

(ii) Both petitions were heard together contrary to law, notwithstanding that there were two separate petitions, involving two separate petitioners, two separate lawyers and counsel for the respective petitioners, two separate and distinctly different issues of fact, and two separate and inconsistent sets of relief sought by the respective petitioners.

(iii) ....”

Before dealing with this ground of review, I should deal with a number of points raised by counsel for the applicant in his submissions. The first point is that the application to vacate the date of hearing of EP 13 of 1997 on the 16^th March 1998 and to bring it forward to be joined with the hearing of EP 65 of 1997 was decided by Sheehan J. and the trial judge had no power to reconsider the same issue. This is a separate issue and does not come within the ambit of ground 6 (a) (ii) as drafted.

The second point raised by counsel for the applicant is the question of breach of principles of natural justice in relation to the application to join EP 13 of 1997 with the trial of EP 65 of 1997. This is also a separate issue and does not come within the ambit of ground 6 (a) (ii) as drafted.

Counsel for the applicant is not entitled to raise both points under ground 6 (a) (ii) and therefore I will not consider them.

The ground of review for consideration simply questions the jurisdiction of the National Court in joining the two petitions in the one trial. In this regard, counsel for the applicant submits that the ruling made by the trial judge to have a joint trial of the two petitions was made without jurisdiction and therefore the decision should be quashed. The main thrust of the submission is that what the trial judge did in this case does not fall within what is regarded as consolidation in other civil proceedings and therefore the order to have the joint trial was made without jurisdiction.

Counsel for the respondents submits that there is no question that the National Court has jurisdiction to join two petitions in the one trial. He submits that the trial judge has exercised his discretion under the law and the question of lack of jurisdiction does not arise.

The point raised by this ground of review relates to the question of practice and procedure with regard to trial of multiple petitions challenging the result of an election. The law which regulates trial of election petitions is the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law). The Organic Law provides that Judges of the National Court should make rules to regulate procedure (s 212 (2)). This is delegated legislative power given to the Judges to make rules regarding pre-trial and procedures in election petitions as distinct from exercise of judicial power. No such rules have been made.

Apparently in place of the rules of court, the judges issued Practice Directions No. NC 2 of 1997 to regulate practice and procedure in election petitions. In my opinion these directions cannot have effect as rules of court referred to in s 212 (2) of the Organic Law. They have not been made in accordance with s 184 (5) of the Constitution. It follows from this that the issue of whether the National Court can join two petitions in the one trial cannot be resolved by reference to these Practice Directions.

In absence of rules of court, s 185 of the Constitution is applicable. This provision enables a judge of the National Court in a particular case to give ad hoc directions to remedy the lack of practice and procedure. In exercising this power, a judge has the same power to determine a matter of practice and procedure as given to the Judges in their law making power under s 212 (2) of the Organic Law (see also s 184 of the Constitution). I find that the trial judge had power to determine a matter of practice and procedure in respect of hearing of multiple petitions. It was within the power of the Court (s 185 of the Constitution) to give such directions. There is no legal impediment to the exercise of this power by the National Court under s 185 of the Constitution.

The submissions by counsel for the applicant are premised on law applicable to other proceedings. I find that reference to case law or definition of what is consolidation in other civil proceedings are not applicable. It is clear from the Organic Law that resolution of disputes in an election is to be determined differently to other proceedings. The Organic Law has clearly expressed this intention in providing for a different jurisdiction to be exercised by the National Court. In my view it is contrary to this intention to apply concepts of practice and procedure in other civil proceedings with regard to joint trials. As to what is the proper practice and procedure for joining two petitions in one trial in an election petition, is a matter entirely within the discretion of judges in their law making power to determine under s 212 (2) of the Organic Law. In the exercise of their law making power, they may or may not adopt rules of consolidation from other civil proceedings. The trial judge in the present case exercised this jurisdiction. The exercise of this legislative power is not subject to review by the Supreme Court except where the trial judge may exceed its legislative power under s 185 of the Constitution. There is no suggestion that the trial judge exceeded its legislative power under s 185 of the Constitution.

Whether, or not, the direction given by the trial judge to try the two petitions together in the circumstances of the present case was proper is a question which goes to the exercise of discretion. The exercise of such a discretion is not subject to appeal (s 220 of the Organic Law). However, it may be subject to review by the Supreme Court under s 155(2)(b) of the Constitution. At no stage did counsel for the applicant in the present case made any allegation that the joint trial of the two petitions raise “some substantial injustice is manifest, or the case is of special gravity” (see PNG v. Colbert [1988] PNGLR 138). In response to a question I put in this respect, counsel for the applicant confirmed that applicant does not allege any prejudice or injustice that may have been caused by the joint trial in the present case. In absence of any such injustice, the decision of the National Court should not be quashed on a matter of practice and procedure (s 217 of the Organic Law). The case should be decided on substantial merits and good conscience without regard to mere matters of procedure. That is to say, this case should be determined on other grounds of review dealing with substantial merits of the case provided they raise issues which fall within the principles set out in PNG v. Colbert (supra).

For the reasons I have given, I would dismiss ground 6 (a) (ii) and direct that the rest of the grounds of review be set down for hearing.

LOS J: Mr Wilson sought a direction under s 185 of the Constitution to challenge the amended application. We ruled that s 185 procedure was appropriately invoked. But it should have been done earlier so as not to disrupt the argument on substantive issues which were whether the joint hearing of two election petitions were permitted by law. Many of the arguments are relevant to the substantive issues, nevertheless.

The original review has a number of grounds. But this review is limited to whether Salika, J sitting as a Court of disputed Return had jurisdiction to run two petitions together. Mr Sheppard has argued that the court had no jurisdiction to run two trials together. Mr Manase and Mr Wilson argued to the contrary. Their submissions were that the judge was authorised by the constitution, by several provisions of the Organic Law on Provincial and Local Level Government Elections, Practice Directions, Case Law and Common Law.

Section 206 of the Organic Law requires all the election related disputes to be filed at the National Court. This gives the original jurisdiction to the National Court. Section 206 says:

“The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise”.

Section 207 follows on by specifically mentioning the “jurisdiction of the National Court”. It reads:

“The jurisdiction of the National Court in relation to any matter under this Part may be exercised by a single Judge.”

It was argued further that the joint trial was authorized by the discretionary exercise of powers under s 212(3) of the Organic Law and the flexibility in the use of the technical rules prescribed in s 217 of the Organic Law. Section 212(3) says:

“The court may exercise all or any of its powers under this section on such ground as the Court in its discretion things just and sufficient.”

Section 217 says:

“The National Court shall be 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 not.”

The contrary argument was also based on Rule 14 of the Practice Directions which reads:

“(1) Where two or more election petitions relating to the same election or return are presented, they may be considered together in the election list and dealt with as one petition.”

“(2) Unless the Court directs otherwise, a consolidated petition shall be placed in the order of the position where the last of the petitions would have stood on the election list if it had been the only petition.”

Whether the Practice Direction has been made under any rules made by Judges under the powers prescribed in s 212 of the Organic Law, in particular sub-s(2) begs the question. I do not intend to address it because Mr Sheppard’s argument did not go to the rule making power but what was authorised by the direction. His argument is that the Practice Direction allows consolidation and not joint trials.

The Common Law position in relation to consolidation would appear to be that to get the matter on for a decision as to whether two or more matters should be heard together as one, it has to be by way of summons with the notices to other parties, see Dawis v. Daily Sketch (1960) 1 All ER 397. Then a number of substantive matters must be looked at to decide whether consolidation is possible. That is to say whether there are common questions of law involved. Or whether there are common questions of facts involved even in different causes of action. But the court does have discretion to exclude any parties if such inclusion is embarrassing, see Horwood v. Statesman Publishing (1929) All ER 558.

If two or more actions are consolidated, representation must also be consolidated. In this respect I quote a part of the judgement of Pearson LJ in Lewis v. Daily Telegraph (No.2) (1964) QB CA 601. At pages 620 to 621 His Lordship said:

“It would be extremely inconvenient and awkward, so far as one can see, to have any separate representation in a matter of that kind. Many difficult problems would arise. How would the opening speech (or speeches) be made? Would it be right that the plaintiffs should have as against the defendants the advantage of two opening speeches instead of one? Then, in the conduct of the case, if there were two plaintiffs separately represented, would each plaintiff be allowed to cross-examine the other plaintiff’s witnesses and have the advantage of being able (as Lord Gardiner pointed out) to put leading questions to a witness who would be substantially on the same side? Again when the defendants’ witnesses were called, would it be right that both plaintiffs, separately represented, should be allowed to cross-examine those witnesses? The same problem would arise in respect of the final speeches at the end of the case. Would separately represented plaintiffs be allowed to have two speeches?”

To an extent I consider that in relation to election petitions s 222(2) of the Organic Law Prohibits a party represented by more than one counsel. It says:

“In no case shall more than one counsel appear on behalf of a party.”

In a proper consolidation it would mean that all actions are joined as one hence represented by one counsel excepting junior counsel. If this cannot happen then a joint hearing is not a consolidated action.

The dispute as far as I understand is not that the National Court can never have jurisdiction to order consolidation of two or more election petitions together. Such a contention would run against the grant of jurisdiction to National Court in sections 206 and 207 of the Organic Law. But the contention is that there are preliminary steps to be taken by the parties to bring the question of consolidation before the court only then can the court consider in the exercise of its discretion whether to grant or not to grant any order for consolidation. Further, a party seeking an order for consolidation of actions must give appropriate notice to other parties so that aside from presenting their view as to appropriateness of consolidation, they must also decide on representation to avoid any dilemma such as set out by Pearson LJ in Levis v. Daily Telegraph. In the matter subject of this review, the proceedings in EP 13 of 1997 was by an order of another judge set for hearing on a different date and at a different place. But the petitioner in EP 65 of 1997 without prior notice and without properly getting the proposed application before the court, applied to have EP 13 joined in. This may sound like making an elephant out of a small technical requirement. However small the requirement may be, the effect on the parties may not be small. Some of these are discussed in Lewis v. Daily Telegraph. I will come to discuss the petitioners’ grounds of the petitions and the remedies they sought later. But at this juncture I state that a need to properly bring the issue of consolidation with proper notice is on the face of it is a mere technicality but when seeing in the light of what prejudice may be caused to the petitioners it is not a mere technicality. Similar issue was raised in Dawis v. Daily Sketch. Willmer LJ at page 399 said:

“I confess that, for myself, I dislike deciding an issue like this on a mere technical ground, and I am therefore consoled by the fact that I am now able to say that in my judgment, on the merits, the case is one in which the learned judge erred in the exercise of his discretion, and, as I see it, erred in principle in such a way as to entitle this court to interfere.”

There is no absolute prohibition against consolidation. But the issue must be properly brought before the court with appropriate and sufficient notice to other parties. A judge before whom an application is made to consolidate certain actions, must consider the facts, practicalities and circumstances of the cases sought to be consolidated. If any two matters for instance cannot be consolidated, they could be heard consecutively.

It is important that if there is to be a joint trial, the remedy the parties seek must not be contradictory. The parties to the joint hearing were Wauni Wasi Ranyeta (EP 65) and Miki Kaeok (EP 13).

Miki Kaeok sought various declarations and orders leading to a declaration that he was the winner. The declarations were:

(i) that the rejection by the Electoral Commission of the ballot papers in ENG 0003 and 0068 were unlawful and null and void;

(ii) that ballot papers in ENG 0410, and 6458 were unlawful and invalid, hence they should not be counted; and

(iii) order:

(a) that the ballot papers in ENG 003 and 0068 be counted; and

(b) that total recount of the ballot papers in Wapenamanda area.

Wasi Ranyeta sought recount of all the ballot papers in Wapenamanda Open Electorate, alternatively especially in the boxes 0003, 0104 and 0376. But he wanted the votes originating from Yuk and Yakaendis Rest Houses excluded from counting or alternatively the ballot boxes be declared informal and rejected. If it was found that recount affected the result of the election then a declaration that the First Respondent was not duly elected, in its stead he was duly elected.

It is clear that a joint hearing could not help any parties or the court. An application for a joint trial was made on a sole basis that one of the two petitioners might be estopped from raising the same issues if the petitions were heard separately. The two were set down originally to be heard separately one at Waigani and the other at Mt Hagen.

Contrary to the suggestion that a joint trial would facilitate hearing, it did not help the parties nor the judge. On the findings and the conclusion by the judge by-election was not necessary and that was not the instant remedy each party was seeking. It would seem the judge found himself in a dilemma . That is he could not declare both petitioners winners. Hence with respect he looked for a way out which he described it as a net result which was to declare the First Respondent not duly elected followed by a declaration that a by-election for the seat of Wapenamanda Open be held.

It is my view that firstly the trial judge had no jurisdiction to entertain the question of consolidation. There was no notice that party in EP 65 would be applying to obtain an order to join EP 13. EP 13 was by order of another judge set down for hearing at a different time and place.

Secondly nevertheless when the judge did decide to entertain an application he failed to exercise his discretionary powers according to the principles on consolidation. That is the grounds of petitions and the remedies sought in these petitions were very different which were incapable of being merged into one action.

I would therefore grant the review sought and quash the decisions in EP 13 and EP 65. I would order that separate petitions be conducted. And until such time as the result of the petitions are known, the First Respondent be restored to his position as the elected member of the Wapenamanda Open Electorate.

ORDERS OF THE COURT

1. The application for review is upheld.

2. Declarations made by the trial Court be brought up into this Court and quashed.

3. The Petitions be remitted to the National Court sitting as the Court of Disputed Returns to be tried separately in the order in which they were set down for trial.

4. The Applicant is restored as the duly elected member for Wapenamanda Open Electorate until the petition(s) have been tried and determined.

Lawyer for the Applicant: Maladinas Lawyers.

Lawyer for the Second Applicant: Nonggor & Associate Lawyers.

Lawyer for the First Respondent: Pato Lawyers

Lawyer for the Second Respondent: Warner Shand Lawyers.