Dekena v Kuman [2013] PGSC 23; SC1272 (30 August 2013)

SC1272

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 04 OF 2013

AND

SCREV NO. 06 OF 2013

BETWEEN

DAWA LUCAS DEKENA
Applicant/First Respondent

AND

NICK KOPIA KUMAN
First Respondent/Applicant

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: David J, Sawong & ----Kassman JJ
2013: 2nd May & 30th August

NATIONAL ELECTION – Election Dispute – Trial – Illegal Practices - Illegal Votes- Trial Judge Ordered By- Election - National Elections – Review of National Court decisions – Review of interlocutory ruling – ruling of the “Decision” 5.1 of Election Review Rule.

NATIONAL ELECTION – Review of final decision- Trial judge took into irrelevant matters in final decision.

WORDS AND PHRASE – “Decision”- S.1 Election Petition Review Rules

Held

1. A ruling in a competency hearing is not a final decision; hence an applicant who desires to seek a review of such an interlocutory ruling must seek dispensation in the Supreme Court pursuant to Rule 32 of the Election Petition Review Rules.
   
2. As the applicant in SCRev. 04 of 2013 had not sought such dispensation under Rule 32 of the Election Petition Review Rules the Application for Review is incompetent and is dismissed.
   
3. The trial judge had taken into consideration irrelevant matters in ordering a by election thereby he exercised his discretion wrongly.
   
4. In a case where illegal practices are proved, the trial judge should consider carefully all relevant matters in deciding the outcome of the election petition in the exercise of his discretion.
   
5. As the trial judge had taken into account irrelevant matters in the exercise of his discretion in ordering a by election, the trial judge decision cannot stand.
   

Cases Cited:

Agiwa (1993) SC442
Anthon Yagama v Peter Yama, Steven Bigo and Others (2013) SC1219
Ben Semri (2003) SC723
Jurvie v Oveyara (2008) SC 935
Kalip v Pundari [1998] SC723
Kasap v Yama [1988-1989] PNGLR 1971
Ludwig Shulze [1998] SC572
Moi Ave and Electoral Commission v Charles Maino (2000) PNGLR 157
Olga v Wingti (2008) SC 938
Waranaka v Dusava (2008) SC942
Anton Yagama v. Peter Charles Yama & Ors, SCR 55 of 2012, Unreported and Unnumbered Judgment delivered on 30th May 2013 (Salika, DCJ, David, J and Yagi, J)

Counsel:

Ms G Salika, for the Applicant in SCREV 04 of 2013 & First Respondent in SCREV 04 of 2013
Mr A. Kongri, for the Applicant in SCREV 06 of 2013 & First Respondent in SCREV 04 of 2013
Mr K. Kepau, for the 2nd Respondent in SCREV 04 of 2013 & 2nd & 3rd Respondent in SCREV 06 of 2013.

30th August, 2013

1. BY THE COURT: INTRODUCTION: These are two Supreme Court reviews filed pursuant to section 155 (2)(b) of the Constitution in respect of the decisions of his Honour Acting Justice Kangwia in EP No. 74 of 2012 – Nick Kopia Kuman v Dawa Lucas Dekena, Andrew Trawen and Electoral Commission of Papua New Guinea.

BACKGROUND

2. In the 2012 National General Elections both applicants in these reviews were candidates for the Gumini Open Electorate in the Simbu Province.

3. The applicant in SCREV 04 of 2013, Dawa Lucas Dekena (Mr Dekena) was the incumbent member for that electorate. After the counting of votes following the voting, Mr Dekena was declared as the member for the electorate on the 28th of July 2012.

4. On 04th September 2012 the applicant Nick Kopia Kuman (Mr Kuman) filed a petition challenging Mr Dekena’s election win. The grounds of the petition were bribery, undue influence and illegal practices. The illegal practices allegations centred around two men namely Bepi Kapia and Kaupa Kokia illegally marking the first preference votes for Mr Dekena at Digibe Ward 4 polling place.

5. Mr Dekena and the Electoral Commission filed separate notices of objection to competency of the Petition.

6. The trial of the petition commenced on 10th December 2012. Following the hearing of the objections to competency, the grounds of bribery and undue influence were struck down and the grounds of illegal practices were allowed to proceed to trial. Being aggrieved by the said ruling, Mr Dekena has sought review of the said ruling in SCRev 04 of 2013. Mr Dekena does not challenge the finding on illegal practices and grant of relief following those findings.

7. During the trial the parties called evidence and made submissions in respect of these remaining grounds of the petition. On 15th January 2013 the learned trial judge upheld the petition on the grounds of illegal practices and declared Mr Dekena as not duly elected and ordered a by-election for the Gumine open electorate. Mr Kuman being aggrieved by the final decision has filed SCRev 06 of 2013. Mr Kuman seeks to review only that part of the decision which concerns the grant of relief.

8. We heard both reviews together. Each of the parties have filed written submissions in respect of each of their cases. We have read and considered those submissions. We propose to deal with both reviews under this one ruling. We propose to start with SCRev.04 of 2013.

9. Before proceeding further it is helpful to state the relevant principles governing election related review proceedings in the Supreme Court.

10. Section 220 of the Organic Law on National and Local Level Government elections (the Organic Law) prohibits an aggrieved party in an election petition from appealing a National Court decision which determined the petition. However, the Supreme Court has stated on numerous occasions that, where a party has no right of appeal, such a party may invoke the Supreme Court’s inherent power to review all judicial acts of the National Courts under section 155(2)(b) of the Constitution: see Kasap v Yama [1988-1989] PNGLR 1971.

11. The unanimous decision of the Supreme Court in Moi Avei and Electoral Commission v Charles Maino (2000) PNGLR 157 clarified and stated the difference between an appeal and a review in the following terms.

“It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgement of the issues. If error is found it will deliver the judgement it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.

As Lord Brightman stated in R v Hilingdon London BC, Ex Parte Pulhofer [1986] UKHL 1; [1986] AC 484:

"where ... fact is left to the judgement of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...".

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process.”

12. Those views were fully endorsed and approved by the Supreme Court in Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, where the Court said:

“We endorse these views as a correct statement of law and add that a review should only be granted where there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record.”

13. The inherent power of review of an election petition matter is however available only where the applicant is able to demonstrate an important point of law that is not without merit to be determined. See application of Ludwig Shulze [1998] SC572, Kasap v Yama (supra).

14. Where issues of facts are raised, the Supreme Court has held that there must be gross error clearly apparent or manifested on the face of the evidence before the court would review; Kasap v Yama (Supra); Application of Ludwig Shulze (supra); Kalit v Pundari [1998] SC723; or where on the face of the findings of fact, it is considered so outrageous or absurd so as to result in, injustice; Application by Ben Semri (2003) SC723; and such that a review of the finding of fact is warranted; Jurvie v Oveyara (2008) SC 935.

15. Thus a review is concerned with a decision making process and its integrity but not the decision itself.

16. Both applicants in SC Rev 04 of 2013 and SCRev 06 of 2013 have invoked the Supreme Court’s inherent powers under section 155(2)(b) of the Constitution to review the parts of the decision of the National Court.

SC Rev 04 of 2013: DAWA LUCAS DEKENA v. NICK KOPIA KUMAN & ELECTORAL COMMISSION OF PAPUA NEW GUINEA

17. Being aggrieved by the decision of the National Court, Mr Dekena has filed an application for review of the decision of the learned trial judge after the competency hearing. In other words the applicant, in SCRev 04 of 2013 seeks to review the trial judge’s decision on the competency challenge to the petition. The decision on the competency challenge was handed down on the 12th of December 2012. There the trial judge struck out the grounds of bribery and undue influence but allowed the ground of illegal practices to go to trial. The trial judge held that the ground of illegal practice met the requirements of section 208(a) of the Organic Law in terms of pleading facts.

18. There is only one ground pleaded in the review. It reads:

“The learned judge fell into error, constituting an error of law:

(a) In finding that the ground of illegal practice was “...... adequately pleaded” in the petition when he should have found instead that the petition failed to plead the relevant facts in respect of section 215 of the Organic Law on National and Local Level Government elections 2006 (as amended) thereby failing to comply with the mandatory requirements of section 208 (a), in relation to the allegations of illegal practices, (other than bribery and undue influence) when in fact the petition failed to plead, contrary to section 215(3)(b) of the Organic Law, that:

• (i) The result of the Gumine Open Electorate was likely to have been affected by the illegal practices alleged in the petition; and
  
• (ii) That it was just that the applicant be declared not duly elected or the election be declared void.
  

2. In not dismissing the petition for failing to comply with the requirements of section 208(a) of the Organic Law.
   

19. The applicant claims that the ground of illegal practice did not meet the requirements of section 208(a) of the Organic Law and therefore the trial judge should have struck out those grounds and should not have proceeded to trial on those grounds.

20. A preliminary issue has been raised by Mr Kuman in relation to this particular review application. He has raised the competency of the review application.

21. The issue is whether this particular review application is competent.

22. It has been submitted on behalf of Mr Kuman that a decision on the competency challenge at the National Court in Election Petition is interlocutory if the decision does not terminate the petition. It is submitted that the decision sought to be reviewed in this case stems from a ruling made by the trial judge at the competency stage. That being the case the ruling was interlocutory and the decision now being sought to be reviewed is an interlocutory one because part of the petition was allowed to go to trial. The final decision was handed down after the balance of the petition was tried. Here counsel for Mr Kuman relies on the decision of the then Deputy Chief Justice in Waranaka v Dusava (2008) SC942, Olga v Wingti (2008) SC938 & Anthon Yagama v Peter Yama & Others (2013) SC1219. It is submitted that the applicant in this review application did not follow the procedures set out in the above cases and therefore it is incompetent.

23. On this aspect Ms Salika for Mr Dekena submitted that the submission on the competency of the review is incompetent. She relied on Order 5 Rule 17 and Rule 28(f) of the Supreme Court Rules. It was her submission that there has been no application objecting to the competency of the review by Mr Kuman as envisaged by Rule 36.

24. It is trite that a competency issue is an issue that can arise at anytime during a proceeding. It may be raised by a party or by the court on its own volition at anytime: Amet v. Yama (2010) SC1064.

25. Rule 36 of the Supreme Court Rules 2012 allows for the Supreme Court to hear and determine the competency of an election petition review. It provides:

“36. The Court may hear and determine the application or any objection to competency of the application on the date and time fixed for the hearing or may adjourn the hearing”.

This rule is clear. This Rule gives the Supreme Court power to hear any objection to the competency of the review application at the hearing of the application. There is no rule as to how that objection is to be raised. The objection may be raised by a party or by the Court at the hearing: Amet v. Yama (Supra). One should not confuse this procedure with objections to competency in the ordinary appeal rules.

26. Order 5 Rule 17 has no application to the issue of competency.

27. As to Order 5 Rule 28 (f) this provision refers to matters that a Judge may consider at the directions hearing. In our view this provision does not assist the applicant in this case.

28. In Waranaka v Dusava (supra) the then Deputy Chief Justice sitting as single judge of the Supreme Court said:

“For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought: see r 1 and definition of a "Decision" in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of "decision". I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court’s power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r32 is incompetent: see Olga v Wingti (2008) SC 938.” (emphasis added)

29. The procedure set out in Waranaka’s case has been fully endorsed recently by the full Supreme Court in Anthon Yagama v Peter Yama, Steven Bigo and Others (2013) SC1219. There the Supreme Court said:

“ With regard to our exchanges to counsel as to whether or not an interlocutory ruling (such as an objection to competency), maybe subject to review by this court under section 155(2)(b) Constitution, we respectfully agree with and endorse the views expressed by Injia DCJ (as he then was) in Waranaka v Dusava (unreported SC942 of 2008) that the only way by which leave to review can be sought is for an applicant to seek an order under Rule 32 dispensing with a requirements of Rule 1.........”.

30. Those three decisions are consistent. However, in this case, the learned Chief Justice said, in his decision on grant of leave that the interlocutory ruling on this aspect at the competency hearing was subsumed in the final decision.

31. We are unable to agree with that conclusion for a number of reasons. First is that the ruling by the trial judge at the competency hearing was interlocutory. It was not a final decision within the meaning of the expression “Decision” prescribed in Rule 1 of the Supreme Court Election Petition Review Rules.

32. Secondly the learned Chief Justice does not give any explanation as to how the interlocutory ruling on this aspect, were subsumed into the final decision. The ruling on the competency of the petition was interlocutory in nature. In our view that ruling could not be subsumed into the final decision. The ruling on the competency issue was quite distinct and separate and did not form part of the final decision. The competency hearing of an election petition involves a separate and distinct process, at the end of which a ruling is made. The ruling may uphold the objection in the whole, in which case, an applicant may if he/she so desires seek to review that ruling or decision. Such a decision would become a decision within the meaning of that expression as set out in s.1 of the Rule. In such a case there would be no need to seek dispensation under Rule 32.

33. On the other hand, if the ruling is upheld in part, an applicant wishing to seek a review of an interlocutory ruling must seek dispensation under Rule 32 to review that part of the ruling. If the applicant in such a case does not seek dispensation under Rule 32, the review application would be incompetent.

34. In Anton Yagama v. Peter Charles Yama & Ors, SCR 55 of 2012, Unreported and Unnumbered Judgment delivered on 30th May 2013 (Salika, DCJ, David, J and Yagi, J) the issue of whether the Supreme Court has jurisdiction to review a decision arising from an objection to competency of an election petition was raised and argued. The Court in unanimously following the decision of the Supreme Court in Anton Yagama v. Peter Charles Yama, Steven Bigo & Ors (supra) went on to say:

7.“ With respect, we will follow the decision of the Supreme Court in Anton Yagama v. Peter Charles Yama (supra) where the Court was quite emphatic in stating that a review should be allowed only where there is clear error which has a very high chance of success.

8. In a nutshell, what this boils down to is that the Supreme Court is not deprived of jurisdiction in any way to deal with all judicial acts of the National Court including interlocutory rulings or decisions in election petition cases by virtue of s. 155(2)(b) of the Constitution.

9. For these reasons, this Court has jurisdiction to review an interlocutory ruling of the National Court in the subject election petition proceedings.”

35. Having considered the submissions that have been advanced and the authorities relied on, we accept the submissions for Mr. Kuman. The decision that has been sought to be reviewed in this particular review application is a decision on the competency challenge which was an interlocutory decision. If a party is not happy with an interlocutory decision, as in this case, he is entitled to review the decision. The proper procedure to be followed in such a case is set out in the Waranka case and as subsequently approved by the full Supreme Court in Yagama v Yama (supra).

36. The applicant had not applied for relief under Rule 32 of the Supreme Court Rules. The applicant had not sought an order under Rule 32 dispensing with the requirements of Rule 1 as he was seeking to review an interlocutory ruling.

37. In the present case the review application SCRev 04 of 2013 is incompetent in that it did not comply with the requirements as set out in the Waranaka case and the Yama case. For those reasons we would dismiss this review as being incompetent.

38. In view of the ruling on competency, it is not necessary to consider the merits of the review.

SCREV (EP) 06 of 2013: NICK KOPIA KUMAN v. DAWA LUCAS DEKENA & ELECTORAL COMMISSION OF PAPUA NEW GUINEA

39. The applicant in this review application sought leave to review part of the trial judge’s final decision where the trial judge ordered a by-election. Leave was granted by the Chief Justice on the 22nd February 2013.

40. There are two grounds of review. These are set out in grounds 5.1 and 5.2 of the review.

41. Ground 5.1 of the review which is founded on errors of fact and law relates to certain finding of facts made by the trial judge in respect of the conduct of polling at Digibe Ward 4. It is alleged that the learned trial judge “erred in law and in fact in the exercise of his discretion by taking into account irrelevant considerations and declared the first respondent not duly elected and ordered a by-election to be held for the Gumine Open Electorate instead of ordering a recount of all the votes for the Gumine Open Electorate excluding the 723 votes from Digibe Ward 4 polling place and declaring the winner after the recount which relief the applicant had asked for in the petition.

42. In Ground 5.2 the applicant alleges that the learned trial judge took into account irrelevant considerations which influenced His Honour in not ordering a recount of all the votes for Gumine Open Electorate excluding the 723 votes from Digibe Ward 4 polling place and making a declaration after the recount. The applicant then lists a number of highly irrelevant considerations.

43. We deal with these two grounds together as we consider that they are related and overlap each other. Before we deal with the submission, it is necessary to state what the trial judge said which gave rise to these two grounds. These maybe found at pages 26-28 of His Honours written decision.

44. The applicant submits that after the learned trial judge made findings of fact and concluded that 723 first preference votes including two informal votes had been illegally marked by Messers Bepi Kapia and Kaupa Kogia at Degibe Ward 4 polling place was likely to affect the result of the election but when considering the relief to be granted the learned trial judge erred in law and in fact in the exercise of his discretion and to take into account irrelevant considerations.

45. It was submitted that the most appropriate relief was for a recount excluding the illegally marked ballot papers for a number of reasons. First, Mr Kuman’s primary relief was for a recount of votes excluding the illegally marked votes from Digibe Ward 4.

46. Secondly, all the first preference votes from that ward were illegally marked for Mr Dekena and as these were illegally marked these ought to have been excluded.

47. Thirdly the 723 illegal votes marked at Digibe Ward 4 were only a fraction of the total votes for the electorate and it would be unfair and unjust to subject the majority of voters who had voted properly to be subjected to a by-election.

48. Fourthly it would have been less costly to conduct a recount than a by-election.

49. It was further submitted for Mr Kuman that illegally marked votes can be excluded from a recount. Here reliance is placed upon a decision of Kandakasi, J in Pirika Kama v Laimo (2008) N3261, and the Supreme Court decision in Trawen v Wingti (2007) SC1003.

50. The respondents submit that the learned trial judge did not err in fact or in law in the exercise of his discretion declaring the election for Gumine Open Electorate void and ordering a by-election. They submit that the decision was arrived at after the learned trial judge considered all the evidence that was given at the trial. They submit that the learned trial judge did not take into account any irrelevant consideration in arriving at the decision in the exercise of his discretion.

51. The submissions advanced raise two issues. The first is whether illegally marked votes should be included or excluded from counting or on a recount. In Pirika Kama v Michael Laimo (2008) N3261, Kandakasi, J held that illegally marked votes can be excluded on a recount. There were allegations of illegal polling at a particular polling place and there were also errors or omissions at the counting. The trial judge found as a fact that indeed there was an illegal polling and errors and omissions committed at the counting centre. He found that this illegal polling and errors in counting affected or was likely to affect the results of the election. He therefore declared that the election of Mr. Laimo was null and void and ordered a recount. His Honour said at p.20:

“Then what is the appropriate remedy. In his prayer for relief, Mr Kama claims amongst others a declaration of the election of Honourable Laimo null and void and a declaration that he is the winner of the election or a recount of the votes. I consider a recount of the votes is a fair remedy given that, there has been a failure on the part of the electoral commission to properly account for the votes and count them at the counting. This is in addition to not satisfactorily answering the case made out for the second polling at Ibirai as being illegal and the votes coming from there tainting the counting and the eventual outcome. The fairest thing to do in all circumstances is to carefully go through the votes again this time under proper supervision and scrutiny to the exclusion of the votes coming in from the illegal or compromised polling at Ibirai and declare a winner based on the recount.”....

51. Section 217 of the Organic Law provides a guide to the National Court in dealing with an election petition during a trial. It reads:

“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 law of evidence or not”.

52. This provision has been interpreted and applied in many cases, by the National Court and Supreme Courts. See for example Kama Pirika v Laimo (supra); SC Rev No 1 of 1990 – Application by Electoral Commission [1990] PNGLR 441, Application by Ben Semri (2003) Sc 723; Trawen v Wingti (2009) SC 1003.

53. In Trawen v Wingti (2009) SC1003 the Supreme Court when addressing s.217, Organic Law said this:

“.This provision has been applied in many different situations to find a way around section 208, 209 and 210 OLNLLGE. In SC Review No 1 of 1990 –Application By Electoral Commission [1990] PNGLR 441 the Supreme Court by majority held the view that and thereafter in subsequent cases cited by counsel including Application By Ben Semri [2003] SC723.

34. The test of 'substantial merits and good conscience' cannot be used to oust or reject an equally effective and less costly method of finding a solution to the dispute like in this case where an order for another recount or re-check is in order. We agree with and endorse the majority decision of the Supreme Court in SC Review No. 1 of 1990 – Application By Electoral Commission (supra) where the Supreme Court expressed as per the head note:

"(1) Where a recount of votes is ordered on the hearing of an election petition, all ballot papers, including votes under s 118, are subject to scrutiny, and the court may satisfy itself of the result of the recount in any way it may deem just, 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" as provided for in s 194 of the Provincial Government Elections Act (Ch No 56).

54. We are of the respectful opinion that the trial judge in exercising his discretionary powers under s.217, fell into errors in taking into account irrelevant matters. The dispute between the parties is all about 723 ballot papers. These were all illegally marked for Mr. Dekena. All the votes from other polling places in the Gumine electorate were not tainted. The illegal ballot papers were only a fraction of the voting population for the electorate.

55. The principle relief sought by Mr. Kuman was a recount. In our view, in all the circumstances a recount would have been a less costly and effective solution. A recount of the votes, excluding the 723 illegal ballot papers would have found a winner the majority of the voters had preferred.

56. For those reasons we would uphold the application in SC REV 06 of 2013 Nick Kopia Kuman and Dawa Lucas Dekena and the Electoral Commission of Papua New Guinea.

57. We make the following orders:

(a) The Application in SC REV 04 of 2013; Dawa Lucas Dekena v. Nick Kopia Kuman and Electoral Commission of Papua New Guinea is dismissed.

(b) The application in SC REV 06 of 2013; Nick Kopia Kuman v. Dawa Lucas Dekena and Electoral Commission of Papua New Guinea is upheld.

(c) The decision of the trial judge to order a by election for the Gumine Open Electorate is quashed and set aside.

(d) The Electoral Commission of PNG is directed and ordered to conduct a recount of all the votes for Gumine Open Electorate, excluding the 723 illegal votes from Digibe Ward 4 polling place within thirty (30) days from today.

(e) That the recount results be presented to the National Court for a declaration of the winner.

(f) Mr. Dawa Lucas Dekena and the Electoral Commission of Papua New Guinea shall pay the costs of Mr. Nick Kopia Kuman for both Applications for Review to be agreed, if not to be taxed.

_____________________________________________________

Young & Williams: Lawyers for the Applicant in SCRev 4
Sirae & Company Lawyers: Lawyers for the Applicant in SC Rev 6
Niugini Legal Practice: Lawyers for the Second Respondent