Nunue v Kimisopa [2013] PGSC 24; SC1248 (18 February 2013)

SC1248

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 51 of 2012

In the matter of an Application under s 155 (2) (b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

TOM NUNUE
Applicant

And:

BIRE KIMISOPA
First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 6, 18 February

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding Objection to Competency of Election Petition – Election Petition dismissed– Application for Leave for Review - Exercise of Discretion- Application refused - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Bony Oveyara (2008) SC 935

Counsel:

C Copland, for the applicant
P Mawa, for the first respondent
C Lari, for the second respondent

18th February, 2013

1. INJIA, CJ: This is a contested application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002.

2. The applicant was a candidate for the Goroka Open Seat in the 2012 National Elections. He came second with 11,759 votes to the first respondent who scored 11,825 votes to win the election; a difference of 32 votes. The applicant challenged the result of the election by way of a petition. At the trial of the petition, the first respondent objected to the competency of the petition which the trial judge upheld. In dismissing the petition, the trial judge found that the grounds pleaded in the petition failed to comply with the mandatory requirements of OLNLLGE), s 208 (a) in that the petition failed to plead the necessary and sufficient facts constituting those grounds.

3. At the heart of the dispute was the manner in which polling was conducted at Kosayufa Community School by Polling Team No 67. It was alleged in the petition that the first respondent's supporters colluded with another candidate (John Aaron) and his supporters, to give Mr Aaron K1,000 in to refund of his nomination fee; and in return, they would receive 200 ballot papers from that ballot box which they would mark first preference to Mr Aaron and second preference to the first respondent. The remaining ballot papers would be marked similarly with the third preference marked according to their own choice. On the day of the polling, Mr Aaron's supporters, John West and 6 others, in collaboration with supporters of the first respondent, marked the ballot papers accordingly and handed over the ballot papers to the presiding officer who signed them. In the end the electors did not cast their votes in accordance with the provisions of s 136, 137 and 139 of OLNLGE. When the Box was called for counting, the Electoral Commission officers should have excluded this box from the counting but did not do so. Also at the counting, the total ballot papers from this box was 2,737; 11 ballot papers short of the total ballot papers (2,748) supplied to Team 67.

4. In the application, the applicant raises eight (8) grounds which he says raises important points of law and facts to warrant grant of leave for review.

5. There is no question as to application of the principles and criteria for grant of leave enunciated by this Court in Jurvie v Bonny Oveyara (2008) SC 935 to the circumstances of the case at hand. By way of reminder I reproduce the main principles:

"The criteria for exercise of discretion on leave for review in an election petition matter are two-fold:

- First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.

- Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted."

6. In expounding the test the Court said in Jurvie that an applicant must demonstrate that he or she has a serious and important issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge is not determining the merits of the substantive application and the Judge must avoid engaging in a detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.

7. I deal with the main points raised and argued in this application. My findings on those arguments are embodied in the body of my reasoning in respect of each point.

8. First, the trial judge failed to consider the grounds in the petition as a whole. When considered in this manner, the trial judge would have found that sufficient facts were pleaded with regard to the illegal practices committed by the supporters of the first respondent at Kosayufa Polling Place. The persons involved, the part played by each one of them, the total ballot papers and how those votes affected the result of the election were all pleaded. The trial judge erred in law in not making those findings. This is an important point of law that has merit.

9. I agree with Ms Copland of counsel for the applicant that a petition pleaded in a manner as was done in this case required the grounds to be considered as a whole, because the allegations centered around a specific polling place, ballot box, polling team officials and electors; in other words, a series of activities forming a single chain of events that led to a specific outcome. I have read the judgment of his honor the trial judge and find no suggestion of the grounds in the petition being considered in a piece meal and isolated manner. They were dealt with as a whole. I find no important point of law that raises serious issues as to the approach adopted by the trial judge.

10. With regard to the other aspect of this point, I have read the pertinent parts of the trial judge's judgment and note that his honor was concerned with the sufficiency of the facts pleaded; for instance, the petition failed to plead the personal particulars such as the name, age, sex and address of the supporters of the first respondent referred to; the total number of ballot papers from Kosayufa polling place affected, and the votes scored by the first respondent and the other candidates from this polling place.

11. I agree with counsel for the applicant that requiring a petitioner to plead more particulars than is necessary to establish the identity of the person would be unnecessary and superfluous. It is sufficient to plead a person's name and village of origin. In the present case, two key player's names and their Council Ward and Polling Place were pleaded (John Aaron and John West) and those were sufficient. However their role were intricately linked to the supporters of the first respondent and Mr Aaron's supporters whose identities were not disclosed. This was a material deficiency which failed to lend any substance to the pleadings concerning the roles played by John Aaron and John West. This deficiency in conjunction with the failure to specify the number of votes from this Kosayufa box affected at polling and at the counting and a clear pleading as to how the result was likely to be affected by reference to the number of votes from the Kosayufa box, are material deficiencies that rendered the pleading of those grounds inadequate to warrant a trial.

12. Third, the trial judge erred in finding that the petition failed to plead how many votes were affected and how those votes were likely to affect the result of the election, because these were adequately pleaded.

13. I note the winning margin is small. It is not difficult to ascertain how marked ballot papers from one ballot box would contribute to achieving an election outcome when the winning margin is small. But under the LPV system, the number of marked valid ballot papers in a particular box and its distribution by preferences at the counting is critical to demonstrating how the votes from particular ballot box was likely to affect the election result. I agree with the trial Judge the lack of pleading of the number of valid votes affected from this particular box is a material deficiency in the pleading of essential facts. I find no important point of law or fact raised in respect of this point.

14. Fourth, the trial judge erred in finding that it was not pleaded that the first respondent had knowledge or had authorized those activities of his supports because the petitioner did not raise any allegations against the first respondent or did not raise any allegations in the petition that the first respondent had knowledge and/or authorized those illegal activities.

15. It is true that there were no allegations made against the first respondent; but against his supporters. What is alleged is the collusion between the supporters of the first respondent and another candidate and his supporters. The allegations fall squarely under s 215 (3) (a), for which pleading that the illegal practices were carried out with the candidate's knowledge and authority, is essential. None was pleaded in this case. The trial judge was correct in coming to the conclusion he did on this point. No important and serious point of law or fact arises here.

16. Fifth, the trial judge erred in law in finding that the applicant failed to dispute the Kosayufa Box at the counting based on the same allegations.

17. There was no question that the Kosayufa box was not disputed at the count and as such this fact was not pleaded in the petition. The trial judge found that this was not pleaded, as is the normal course of things, when here is dispute over the legality of votes contained therein. It is submitted whether the box was disputed or not is irrelevant for purpose of s 208(a); and it does not prevent a Petitioner from raising those grounds in a petition.

18. I accept Ms Copland's argument that a candidate's failure to engage his scrutineers to dispute the box, the counting is not a bar to raising the same allegations in petition. However, the failure to dispute a box at the earliest opportunity utilizing the administrative avenue provided in the OLNLLGE to resolve the matter is a relevant matter for the exercise of discretion in an election petition matter when its competency is challenged under s 208 (a). This is particularly so when the allegations also concern the conduct of polling officials engaged at the polling place in question. Pleading facts to show why the box was not disputed is a relevant matter if such allegations are to proceed to trial; hence that fact ought to be pleaded in a petition. I find the trial judge exercised his discretion on this point properly. No important and serious point of law or fact arises for consideration by the full Court.

19. Other points including procedural points raised by counsel for the parties are minor and of little or no consequence to the outcome of the petition and require specific consideration.

20. In the circumstances, I am not persuaded that the application satisfy the criteria in Jurvie v Oveyara.

21. For the foregoing reasons, the application for leave is dismissed with costs to the respondents, to be agreed, if not, to be taxed. The security for costs deposit held in the Registrar's Trust Account shall be expended to meet such costs.

______________________________________________________
Young & Williams: Lawyer for the Applicant
Mawa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice Lawyers: Lawyer for the Second Respondent