Maino v Avei [2000] PGSC 30; [2000] PNGLR 404 (7 July 2000)

[2000] PNGLR 404

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHARLES MAINO

V

MOI AVEI AND ELECTORAL COMMISSION

WAIGANI: LOS, SHEEHAN, INJIA JJ
22 June; 07 July 2000

Facts

The second respondent sought relief from the judgment of this Court, delivered on 9 May 2000, when under powers of review, it reversed the decision of the National Court in the election petition in respect of the Kairuku-Hiri Electorate. This application is made on, in reliance of the Supreme Court’s inherent jurisdiction to correct inadvertent error arising in a judgment.

Held

1. Supreme Court has power to correct a judgement it has made, where it is shown, there is a matter of substance integral to the judgement that is incorrect and that such error is based on a misapprehension of the true facts or of the law applicable in particular case. Wallbank & Minifie v The State [1994] PNGLR 78 considered, Autodesk Inc. v Deyason (No. 2) 176 CLR at 300 referred to for guidance.
   
2. In an election petition the technical rules of evidence do not apply but the Court must "be guided by the substantial merits and good conscience ... without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not". Maino v Avei and the Electoral Commission of PNG (2000) unreported SC633 considered.
   
3. Supreme Court is the final court of appeal and ... "there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgement". Autodesk Inc. v The Dyason (No.2) [1993] HCA 6; 176 CLR 300, Wallbank & Minifie v The State [1994] PNGLR 78 and Chan v Apelis (No. 2) and Anor [1999] PNGLR 187 referred.
   

Papua New Guinea cases cited

Ambane and Electoral Commission of PNG v Thomas Tumun [Tumon] Sumuno (1998) unreported SC559.
Application by David Lambu v Peter Ipatas and Electoral Commission [1999] PNGLR 634.
Biri v Ninkama [1982] PNGLR 342.
Chan v Apelis (No. 2) and Anor [1999] PNGLR 187.
Dick Mune v Paul Poto (No. 2) [1997] PNGLR 356.
Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission [2000] PNGLR 166.
Maino v Avei (1998) unreported SC584.
Maino v Avei and the Electoral Commission of PNG (2000) unreported SC633.
Sir Julius Chan v Ephraim Apelis (No. 2) & the Electoral Commission of Papua New Guinea [1999] PNGLR 187.
Wallbank & Minifie v The State [1994] PNGLR 78.

Other cases cited

Autodesk Inc. v Dyason (No. 2) 176 CLR.
Browne v Dunn (1893) 6R 67 (H.L.).

Counsel

S Kassman, for applicant.
G Shepherd, for first respondents.
J Nonggorr, for second respondent.

7 July 2000

LOS J. It has been fairly decided that the Supreme Court has power to correct a judgment it has made and this was confirmed in 1994 in Wallbank & Minifie v The State [1994] PNGLR 78. In this case the court turned to Autodesk Inc. v Dyason (No. 2) 176 CLR at 300 for guidance. In the context of election petition the principles were applied in Dick Mune v Paul Poto (No. 2) [1997] PNGLR 356.

More recently the court constituted by Sir Mari DCJ, Sheehan and Akuram, JJ applied the principles. All these cases emphasize that jurisdiction to re-open a case is not open-ended; in other words it is rare and the discretion must be exercised with great care. The summary of the principles are that the court may re-open a case where; (a) an apparent error arising from some miscarriage in the judgement; (b) the court has proceeded on some misapprehension of facts or relevant law and such misapprehension cannot be attributed solely to the neglect or default of the party seeking rehearing. A re-opening must not be to re-agitate arguments or to better argue when in the first argument not all aspects of the arguments were presented.

In the decision the subject of this application SCR No. 8 of 1999 – Maino v Avei and the Electoral Commission of PNG (2000) unreported SC633, I joined in with my brother Injia who had kindly made his draft available to me for my consideration. To me the influencing factors were the receiving of certain affidavits by the reviewing judge; their contents and the judge’s words on the contents of the affidavits. The trial judge did consider the contents though subsequently he rejected them both on their admissibility and the credibility. The majority reached the view on the basis that because of the applicability of s 217 of the Organic Law, no issue could arise because in an election petition the technical rules of evidence did not apply but the court must "be guided by the substantial merits and good conscience ... without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not". But the provisions of s 217 are not meant to override the right to have a say on any allegation or evidence that may affect a party, unless the party’s own action shows him not wishing to conduct any examination or call any contrary evidence. The superior court, in this case the Supreme Court, cannot apply a different law to this.

Secondly the trial judges’ criticism of those substantial systematic irregularities did not relate to the ballot papers, but they were directed at the secondary documents, the electoral returns used for checking the actual count. I therefore consider this was a misapprehension which s 217, "substantial merits and good conscience" and s 218, "immaterial errors not to vitiate elections", cannot save.

For these reasons and others in the well thought out judgment of Sheehan, J., I join him. His decision and my decision now form the majority judgement.

SHEEHAN J. The second respondent sought relief from the judgement of this Court, delivered on 9 May 2000, when under powers of review, it reversed the decision of the National Court in the Election Petition in respect of the Kairuku-Hiri Electorate. This application is made on and in reliance of the Supreme Court’s inherent jurisdiction to correct inadvertent error arising in a judgement. It is contended for the Electoral Commission that the Court inadvertently and mistakenly assumed that particular affidavit evidence filed in the election petition trial, had been accepted matters of uncontested fact, when such was not the case. The second respondent maintains that the Courts’ determination of the law, applied to those supposed facts, amounts to an error that calls for correction.

There is no doubt that the Supreme Court has power to correct a judgement it has made, where it is shown, there is a matter of substance integral to the judgement that is incorrect and that such error is based on a misapprehension of the true facts or of the law applicable in particular case. This court, in Wallbank & Minifie v The State [1994] PNGLR 78, confirmed that, when it stated that while decisions of the Supreme Court, as the final court of appeal, are final, that does not preclude there being the possibility of reviewing a decision made or rehearing an issue affecting a decision, when the Court has good reason to consider that a judgement that it has made has been arrived at on a misapprehension as to the true facts or applicable law. Such jurisdiction of course arises only if it is clearly shown that there is a matter calling for review. A slip – such as a spelling or arithmetical mistake are straight forward examples, but to ensure there is no miscarriage of justice, the Court may look further. As was said in Autodesk Inc. v The Dyason (No. 2) [1993] HCA 6; 176 CLR 300, cited in Wallbank’s case, and again in Chan v Apelis (No. 2) and Anor [1999] PNGLR 187:

"As this court is the final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgement".

But those decisions also make it clear that this is not an extension to the appeal system "the purpose is not to provide a back door method by which unsuccessful litigants can seek to reargue their case". There has to be a genuine error or misapprehension, one not occurring through failure of the parties to put their case adequately, see Application by David Lambu v Peter Ipatas and Electoral Commission [1999] PNGLR 634 and Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission [2000] PNGLR 166.

The applicant, the Electoral Commission, points to two matters of concern. The first of these arises from the fact that the review brought before the Supreme Court was one brought by the petitioner to challenge the National Court decision adverse to him. It was brought on grounds that contested the trial Judges’ rejection of four affidavits (which alleged irregularities in the re-count ordered by the Court), as not amounting to evidence, but to speculation only. The Applicants argue that this Court erroneously assumed that because the Applicant though objecting to the affidavits had not sought any ruling on admissibility, those affidavits filed in the proceedings had been and were accepted as evidence in the petition both by the parties and trial court itself. Following that assumption the Supreme Court considered that that evidence was therefore open to reconsideration/review as to its credibility and effect.

The second matter applicant’s argue, is that the Supreme Court’s decision is based on the misapprehension that the errors for a re-count, were errors and omissions relating to the primary vote itself. That is, the actual counting of the votes in the Election. The true position it is said, was that the trial court did not find error in the primary count or that the ballot boxes or papers were tampered with. The errors found related only to secondary documents; the electoral returns used for checking the actual count. The essential, applicant says, that having found irregular practices committed by of the poll, the Court determined that a re-count was appropriated to have had any effect on the primary count itself. The misapprehension arises from this Court assuming that these irregularities found by it to have occurred on the re-count were not and could not be the case. Even had there been irregularities in respect of the recount, because there was no finding by the trial Court prejudicial to the integrity of the ballots irregularities on the recount would only affect the validity of the recount not the result of the election.

In addition to the issues raised by the Commission, the first respondent who supported this application, further submitted that in making its own findings of facts on evidence tried before the National Court, this Court had in error assumed an appellate stance rather than its supervisory role on review.

Taking the issue of the admissibility of the four affidavits first, the relevant portion of this Court’s decision of 9 May dealt with the matter as follows:

"A procedural issue arises as to whether the Court erred in not ruling upon the admissibility of the four affidavits objected to and proceeding to assess the value and weight of the evidence contained therein. If the Court had ruled in favour of the objection, then the affidavits would have been excluded from the proceedings or tendered through the deponents and opportunity given to the respondents to cross-examine the deponents. All parties in this review appear to agree that the Court did not determine the issue of admissibility separately as a preliminary procedural point."

Counsel for the second respondent points out that this " issue of admissibility" did not arise during any trial of evidence. The affidavits were filed after the petition hearing and before the court’s decision following the recount. They had never been tendered as evidence in the trial of the petition itself or at anytime. They were merely referred to for the first time in final submissions following the re-count. That is after the closure of each party’s case. It is argued there was therefore no issue of admissibility arising as such. And no need for ruling on admissibility either. That was the reason that respondent’s Counsel did not immediately rise to object, though they did so at first opportunity, that is in submissions in reply. It can be argued there was therefore no issue of admissibility arising as such. And no need for any ruling on admissibility either, even though the judges dealing with the issue may well be said to be a ruling on admissibility.

The relevant portion of the petition Court’s decision on this issue of admissibility is also set out in this Court’s judgement. At p 10 we recorded:

"The basis upon which the petitioner has challenged the validity of these recount figures I cannot accept. The allegations made by affidavit as to the possible tampering with ballot boxes and thus ballot papers remain merely that. The allegations remain suspicions and speculations and nothing more. The procedure (of their introduction) is abnormal and without precedent. They have not being subjected to the conventional method of cross-examination upon the basis on which submissions could be made for the tribunal of fact to make findings of fact. The additional submission that ballot boxes were open and ballot paper tampered with and that new ballot papers were inserted, I am also not prepared to accept. They remain more suspicions and speculations without proof.

I dismiss therefore the allegations made by the Petitioner as being without proof. I should say however that even if it were to have been proven, they will not result in the declaration sought by the Petitioner. They would result in the original count figures not being able to be tested or challenged." (brackets added)

This Court’s consideration of that part of the trial Court’s ruling is stated at p. 12 where we say:

"All parities in this review appear to agree that the court did not determine the issue of admissibility separately as a preliminary procedural point. Mr. Kassman did not rely much on this point in his submissions Counsel for the respondent. In fact the respondents did any justice caused to them but this procedural irregularity. We do not consider this issue to be an important determinative issue in this review particularly in view of s 217 of the OLNE which provides that "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 in the accordance with the law of evidence or not"

The effect of this position then is that the evidence in those affidavits stood unchallenged and were evidence before the Court for the Court to assess their value and making findings of fact. And that is how the proceeded to deal with the unchallenged evidence". (emphasis added)

It is clear from submissions before us and from the record, that while parties may have given an "appearance" of agreement that there had been no separate determination of the issue of admissibility, and there certainly had been no agreement that it was a "preliminary procedural point." Parities had each closed their case. According to ordinary procedure there could therefore be no introduction of fresh evidence without application being made, for leave to reopen and introduce that evidence and for leave of the Court granted for that to occur. As such there was no requirement for any ruling on admissibility.

Further consideration of the trial judges’ treatment of those affidavits shows that in any case it is equally open to the interpretation, that although referring to the content (allegations suspicions and the like) the passage does reflect a rejection of them, not just for their content, but as not amounting to evidence at all, thus constituting a "ruling" on admissibility. That was certainly an interpretation not adverted to by this Court on review.

The passage underlined in the ruling quoted above discloses that for whatever case, significant punctuation and words are obviously omitted. Plainly the slip rule applies in this case and wording must be supplied to give meaning to the passage. Thus it should read, "Mr. Kassman did not rely much on this point in his submission, though Counsel for the respondent did. But in fact it would seem the respondents did not suffer any injustice caused to them by this procedural irregularity."(emphasis added).

Upon reconsideration it would certainly seem that there was not a great deal of point in Mr Kassman taking issue on the question of admissibility, it was his purpose to rely on it being evidence in the review. But for the respondents, once that affidavit evidence was admitted (if it was) then "the injustice caused to them by this procedural irregularity was significant. Untried affidavits were allowed in to stand as "factual" unchallenged evidence.

The respondents were not prejudiced by any lack of specific ruling on admissibility in the trial Court (or even its acceptance as evidence, if that is what occurred) since the evidence was in any case rejected as being without proof. But since this Court has apprehended that evidence to be "uncontested" evidence and on assessment of that evidence made findings entirely opposite to the trial Court determinative of the election petition itself, the respondents have been prejudiced. As has been submitted to us, if those affidavits were to be let in by this Court, they were not given the opportunity to challenge or rebut them.

This was highlighted before us when Counsel for the applicant sought to return to rebuttal affidavit to evidence by Mr. Oasara the returning officer, which were filed in support of the application. Counsel for the first respondent strenuously objected to any such reference contending that such affidavit had not been accepted before this Court and the merits of the application stood to be determined on the record before it. It was indeed a reprise of the issue before the National Court with petitioner and respondents roles reversed. No application was made under s 217 of the OLNE. The incident emphasized the significance of a finding on fact made by this Court that was not specifically adverted to when ruling as we did.

It is in any case, anomalous to apply to the submissions of Counsel for the petitioner, the procedural advantages established in the law of evidence in formal court process by Browne v Dunn (1893) 6 ER 67 (H.L.) (that evidence not denied, stands as uncontested) by and after the event application of s 217 of the ONLE, yet not accord the same breadth of consideration – the leniency of s 217 – to the objections of Counsel for the respondents, or indeed the ruling of the trial judge on the issue.

It must also be said that in deciding that because no specific ruling had been made on the admissibility of the affidavits at the trial, s 217 is directive, for guidance of the court and encouraging of the fullest inquiry into available evidence. But it does not of itself simply convert any or all unacceptable or admissible statements into admissible evidence without there being recourse to the section and a ruling by the trial Court.

Section 217 was considered extensively in Biri v Ninkama [1982] PNGLR 342 where the Supreme Court held:

"It is quite clear to us the s 217 of the Organic Law is only relevant when the National Court determines that merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only".

I would add that it is a section that could well have been invoked before the trial judge. Nonetheless, his treatment of the affidavits – whether described as a ‘a failure to rule on admissibility’ or ‘a dismissal for want of procedural probity’ or even an acceptance of the affidavits as evidence in the trial – may nonetheless be said to constitute a determination in terms of s 217 of the merits of that evidence. In other words, whether it was a finding of fact or procedure, it is a finding by the National Court within jurisdiction and a finding not open to review by this Court unless it were shown that the National Court was not being "guided by the substantial merits "and good conscience of the case". That is, that it was unreasonable in judicial review terms ‘Wednesbury’ unreasonable. There was no complaint of such a breach.

The Supreme Court in its earlier decision (Maino v Avei SC584) clearly states that while inferior courts or tribunals including the National Court remain subject to Supreme Court supervision by way of review such supervision does not mean interference, intervention or substitution of its own views on matters of procedure or discretion within jurisdiction.

It must be acknowledged too that it was incorrect to say, "this issue (was not) an important determinative issue in this review".

Upon reconsideration, it was. This Court’s finding in regard to the affidavits did in fact constitute a major issue determinative of the petition itself. Without this Court’s finding of uncontested evidence of further systematic irregularities before and during the recount which compounded those occurring before it, there could be no conclusion under s 218 of the OLNE that overall the combined effect or error and omissions, irregularities, by electoral officials did effect the election result.

Turning to the second issue, the National Court has by s 212 of the OLNE a wide charter of powers to determine the validity or otherwise of an election. These powers of course must be exercised judicially and it is in respect of such judicial decisions that the Supreme Courts powers of review under s 155(2)(b) of the Constitution may be invoked. But the powers under s 212 are nonetheless subject to the specifics of s 215 regarding illegal practices and s 218 as to (inter alia) errors or omissions by electoral officials.

Section 218 provides that an election shall not be avoided unless it is shown that proven errors or omissions did effect the election result. Ambane and Electoral Commission of PNG v Thomas Tumun [Tumon] Sumuno (1998) unreported SC559. When this Court rules (at 17) that:

"in the present case we conclude that the Court erred in the exercise of its discretion under s 218(1) in not voiding the election and ordering a by-election, in the face of proven substantial irregularities systematically committed by Electoral Officials in the original count which justified an order for re-count and continued in succession before and during the re-count".

At that point this Court was of the view that a direct link had been established between officials irregularities committed by electoral officials prior to the order for re-count effecting the integrity of the ballots and to irregularities during the re-count, a link in terms of s 21 of the OLNE which did effect the result of the election. It was on that basis we held the petition should upheld and a by-election ordered.

This Court is of the view that where the integrity of some critical phase of the electoral process is clearly shown to have broken down, the validity of an election result may be determined on that basis. Each case will depend on its particular facts, but it must always be borne in mind that s 218 requires that there be shown a factual link between proven errors or omissions and the election result, not simply an opinion or speculation.

But as the applicant has shown, the trial of the petition disclosed no tampering with ballots or the casting of ballots; the purpose of the recount was to test whether irregularities by electoral officials in counting or recording those ballots might have effected the election result. The petitioner’s application for review challenged the trial courts findings on the re-count, and its dismissal of claimed irregularities set out in four affidavits.

Thus when this Court on review, itself made findings of fact both by reversing the trial courts rejection of those affidavits and by assessing the merits of that evidence itself and then determining the election result it was addressing the question reserved for and, decided by the National Court. It was not addressing the Petitioners challenge raised on review. It was therefore answering the wrong question.

It must be acknowledged too. As Counsel for the respondent pointed out, the determination of the learned trial Judge that was "even if they (allegations of irregularities on the recount) were to have been proven, they would not result in the original count figures not being able to be tested or challenged". Simply put the order for recount would have failed in its purpose and the original count would stand unless and until the National Court made any further order. This was not adverted to in our decision.

Finally, there is merit in the contention of the first respondent that in drawing conclusions of fact this Court was encroaching on an appellate jurisdiction of a matter of review.

In all the circumstances I am of the view that the respondent has made out its contention that the Court had proceeded on misapprehensions as to fact and law on matters that could lead to justice miscarrying. Therefore in accordance with the duty of this Court to do justice and its power to correct any errors arising in its judgement, the decision of this Court of 9 May 2000 must be revised by reconsideration of the application on review.

As has been shown before us that was essentially a challenge to the consideration of and finding in respect of four affidavits after the recount ordered by the National Court of 6 May 1998.

As we said in our decision of 9 May (at page 13):

"The important issue is whether the irregularities established by the evidence contained in the affidavits, support the finding by the trial judge that the said errors and omissions did not affect the result of the election. Counsel for the respondents, Mr. Shepard and Prof. Nonggorr submit that the evidence at the highest amounted to nothing more than mere suspicion and speculation that the votes may have been tampered with to the detriment of the petitioner. They submit the totality of the new evidence fail to show that the result of the re-count was actually affected. Mr. Kassman for the petitioner submits that the uncontested evidence from those four affidavits established that the integrity of the ballot boxes re-counted were in serious question as a result of the conduct of electoral officials and the vote tally on re-count cannot be trusted as a valid re-count and the election should be declared void and a new election should be ordered."

That issue has been argued then and again in this application to clarify all misapprehensions of law and fact. Counsel for the applicant in seeking relief submitted that since the Organic Law provides that it is the National Court that is to make findings of fact in election matters that the affidavit evidence produced after recount be remitted to that court and tested properly.

But that Court has already done that. It rejected them as evidence. In our view the decision of the trail Court discloses no error calling for any intervention by this Court in its supervisory jurisdiction.

Therefore, while in the ordinary course of review this Court would send an issue decided outside jurisdiction back to the authorized tribunal for reconsideration, where that tribunal, as here has already decided that issue or where (again as here) there could only be but one outcome, it is proper for this Court to pronounce that decision itself.

The revised decision of this Court on review therefore is that the decision of the National Court rejecting the affidavit evidence filed past recount is upheld as a decision within jurisdiction. The decision of the National Court to dismiss the petition is likewise confirmed.

INJIA J. This is an application by the Electoral Commission of Papua New Guinea ("The Commission"), for this Court to reconsider and correct what it describes as certain perceived mistakes in our decision in SCR No. 8/99 Sir Charles Maino v Moi Avei and the Electoral Commission of Papua New Guinea (2000) unreported SC633 of Los, Sheehan & Injia JJ dated 9 May 2000. The majority comprising of Los, J and myself, Sheehan, J dissenting, in our joint judgement ruled that the application of the present respondent ("Sir Charles Maino") under s 155(2)(b) of the Constitution is granted, that the election for the Kairuku-Hiri Open Electorate in the 1997 general election is declared invalid and that a by-election be held. The application is supported by Mr. Moi Avei.

The application is made under what is now established as the "slip-rule" principle. Those principles are canvassed by Kapi DCJ in Sir Julius Chan v Ephraim Apelis (No. 2) & the Electoral Commission of Papua New Guinea [1999] PNGLR 187, where His Honour concluded that the Supreme Court has jurisdiction to re-open its decision to correct a mistake in appropriate cases including where the Supreme Court has exercised its discretion under s 155(2)(b) of the Constitution. The principles applicable are those canvassed by Mason CJ in the Australian High Court case of Autodesk Inc v Dyason (No. 2) [1993] HCA 6; 176 CLR 300 at 302, the pertinent passage of which is quoted at pages 5-6 of the judgement in the Chan case. By way of emphasis, I recite the following passage from Mason CJ.

"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional steps of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgement, it has proceeded on a misapprehension as to the facts or the law. As this Court is final court of appeal there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgement. However it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this apprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide, a backdoor method by which unsuccessful litigants can seek to re-argue their case".

In the application filed on 31 May 2000, the applicant sets out six (6) grounds of perceived mistakes in the judgement and these are –

(a) in referring to and taking into account evidence and other material relating to grounds that were dismissed by the National Court and that were not challenged by the applicant in the review and, in so doing the court exceeded its jurisdiction;

(b) the ruling that the four (4) affidavits produced by the applicant were not challenged by the respondents when they were in fact challenged;

(c) by operation of s 217 of the Organic Law on National and Local-Level Government Elections, the four (4) affidavits should either be excluded or that these affidavits be referred back to the National Court to be properly tested;

(d) the four (4) affidavits, if admitted, do not support the findings of fact made by the Court;

(e) The Court misconstrued and therefore misapplied the decision in Mune v Agiru & Electoral Commission concerning the law applicable to recount of votes; and

(f) The Court misapprehended the purpose of s 217 of the Organic Law on National and Local-Level Government Elections and its misapplication produced grave injustice to the respondents.

At the hearing, the applicant conceded suggestion from the Court that ground (e) above was misconceived because the judgement of Andrew J. in Mune v Agiru referred to on this ground as to the court misunderstanding the purpose of a recount, was not the judgement referred to in our judgement.

In respect to the remaining five (5) grounds, the applicant advanced two basic arguments. First, it is submitted for the applicant that this Court exceeded its jurisdiction when it relied on the irregularities established in the National Court which justified an order for a re-count because they "were not the subject of the application (for review) by the petitioner".

Alternatively, it is submitted that this Court misapprehended the nature of the proven irregularities which necessitated a re-count because those adverse findings of irregularities related to secondary documents used during the counting of votes and not the primary documents such as the ballot paper.

Second, it is submitted that the Court misapprehended the purpose of OLNLGE, s 217 in that the four affidavit materials filed by Sir Charles and considered by the National Court and which were relied upon by this Supreme Court were done in breach of the principles of natural justice and more specifically, not done in accordance with the substantial merits and good conscience of the case as required by s 217. He submits the use of the affidavits were objected to in the National Court and also in the Supreme Court and the applicant was not given an opportunity to test the affidavits either by cross-examination or by providing refuting evidence. He submits this Court erred when it said the affidavits evidence were "uncontested".

The applicant placed before us an affidavit of Chris Oasora sworn on 13 June 2000 in order to demonstrate that if the applicant had been given the opportunity to contest the four affidavits filed by Sir Charles, they would have refuted that evidence.

Mr. G. Shepherd, counsel for Moi Avei joins Dr. Nonggorr in his submissions.

Mr. Kassman counsel for Sir Charles, submits that none of the grounds set out in the application show there was a slip in the judgement in the areas relied upon by the applicant. He submits all these matters were properly considered by the Supreme Court and judgement rendered. He submits the applicant is merely re-agitating arguments already made in the review and property considered by this Court. He objected to the use of the affidavit of Chris Oasora in this review because that evidence was not before the Supreme Court in the review.

After carefully considering these submissions, I am of the firm view that this application is clearly without merit. First, although I appreciate the applicant’s effort to demonstrate the other side of the story contained in the four affidavits filed in the National Court by Sir Charles, (through the affidavit of Mr. Oasora) this affidavit was not sought to be filed for use in the Supreme Court review. The use of fresh affidavits in a review is discouraged by the Supreme Court: Chan v Apela (supra) per Kapi DCJ, at p 8; and the same is even more so in an application under the slip-rule principle.

Secondly, the argument that this Court exceeded its jurisdiction when it relied on the proven irregularities which necessitated an order for re-count by the National Court ignores the essence of the wide inherent review jurisdiction of the Supreme Court under Constitution s 155(2)(b), to inform itself of any unchallenged findings of the fact made by the National Court which have direct relevance to the issues in a review.

Thirdly, in relation to OLNE s 217, the focus of the applicant’s arguments is on the application of s 217 to the respondent’s detriment when it comes to the use of the four affidavits filed by Sir Charles Maino. But these four affidavits were "uncontested" before the National Court in the sense that the applicant did not insist on cross-examining the deponents and no other evidence was placed before the National Court to refute them. Although the applicants objected to the use of the affidavits in the National Court, they failed to follow through their objection to seek a ruling from the National Court as to their admission or exclusion, and instead were comfortable with their submissions that the affidavits contained speculative and suspicious material which the National Court could not accept. And that is the way the National Court treated the affidavits and considered the evidence in those affidavits. The applicants accepted this position taken by the National Court and did not contest the point by way of a cross-review. And that is how in the review, we came to consider the evidence in those affidavits. For the respondent to argue now, under the guise of the "slip-rule" principle that the National Court "should and natural justice requires that the respondent must be given an opportunity to consider and either cross-examine or bring refuting evidence" is to say the least, wishful thinking. Indeed, in the present application, the applicant confirms this position it took in the National Court when it submits that because "the National Court did not accept the evidence and therefore this (opportunity to test and either cross-examine or bring refuting evidence) might not have been considered necessary."

It is now argued before us that "if the Supreme Court is to accept the evidence, fairness and good conscience requires that the respondents be given the opportunity to contest the evidence and produce the evidence in response". However, in my view, no such opportunity was sought at the hearing of the review, which led to the judgement under re-consideration. This also is yet another instance of wishful thinking.

Fourthly, as to the nature of the irregularities, the argument that the documents under consideration were not primary but secondary documents has no proper legal basis. The ONLE, s 218 "entitled immaterial errors not to vitiate elections" deals with materials, errors and omissions committed by electoral officials in the whole election process, which affected the result of an election. That section does not make a distinction between primary documents or secondary documents used in an election. In the review, this Court was concerned with the protection of the sanctity or integrity of the whole electoral process in the light of questionable conduct of electoral officials. This point is clearly stated at p. 14 –15 of our judgement. The arguments raised now before us are a repeat of arguments, which this Court already considered and decided upon.

Finally, the thrust of the applicant’s arguments now are founded on a technical and legalistic approach to the issue of the admissibility and consideration of the evidence in the National Court and the Supreme Court, and calls for a strict scrutiny of the kinds of documents used by electoral officials in the election process. Such an approach is contrary to the clear provisions of OLNE s 217. Further, the phrases "substantial merits" "equity" and "good conscience" connotes wide discretion in the National Court to receive and admit any evidence in whatever manner, and evidence in whatever form and content and consider the evidence as it seems fit. Therefore it cannot be said that the National Court made a mistake in admitting these documents and using them. Equally so, the Supreme Court on review has inherent discretion to consider the evidence considered by the National Court and form a correct view of the evidence in accordance with the principles laid down by the Supreme Court in many election petition cases. This point is stated clearly at pages 14-16 of our judgement. To argue that the Supreme Court should not have considered the same evidence and formed a certain view is, to say the least, mischievous.

For these reasons, I would dismiss this application with costs to the respondents on a party-party basis.

The court decision (by majority) is that the decision of the National Court dismissing the petition be confirmed.

Lawyer for the appellant: Kassman Lawyers.
Lawyer for the first respondent: Shepherd Lawyers.
Lawyer for the second respondent: Nonggorr Lawyers.