Talita v Ipatas [2014] PGSC 17; SC1333 (7 April 2014)

SC1333

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRev (EP) NO. 45 OF 2013

APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN

SANDY TALITA
Applicant

AND:

PETER IPATAS
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J.
2014: March, 31 & April 7.

ELECTIONS – Application for leave for review – Petition dismissed on basis of incompetency – Adequacy of pleadings – Errors and omissions – Illegal practices.

No case cited.

Counsel:

I. Molloy with G. Purvey, for the Applicant. P. Mawa, for the First Respondent. R. Williams, for the Second Respondent.

7th April, 2014

1. MANUHU, J.: This is an application to seek leave to review the decision of the National Court that dismissed the Applicant's petition EP No. 101 of 2012. The entire petition was dismissed on the basis of incompetency, namely, that the petition was "badly drafted" and did not satisfy the requirements of section 208 (a) and (d) of the Organic Law on the National and Local Level Government Elections (Organic Law).

2. Leave is sought on the following grounds:

• The application for review raises important points of law to be determined which are not without merit.
  
• The application, in so far as it raises questions of fact, relate to gross errors apparent or manifest in the findings of the trial Judge, or on the face of the evidence, is so absurd or incorrect as to result in injustice.
  
• The matters alleged in the petition, if true, disclose serious contraventions of the Organic Law and that there is public interest in having such allegations determined on their merits.
  

3. Competency of a petition is a question of law. In particular, whether pleadings in a petition has complied with the requirements of section 208 of the Organic Law is a question of procedural law. In this case, the precise issue is whether the petition was properly pleaded. This question takes me to the pleadings.

4. The Applicant alleged in paragraphs 5 and 6 of the petition that the Second Respondent, its officers and agents committed errors, omissions and illegal practices in the conduct of the election and scrutiny of the votes which were sufficient to affect the result of the election. Particulars of the allegations are then set out from paragraphs 7 to 101. It is clear that the petition, in the manner it is structured, is to be read as a whole. Thus, paragraphs 5 and 6, where applicable, are to be read with the allegations in the petition.

5. I have had the benefit of perusing the allegations. Rather than cover all of them, I have decided to focus on a few that appear to be substantive, namely, the pleadings on extra votes, pleadings on failure to exclude boxes affected by extra votes, and pleadings on the attestation clause.

6. Pleadings on extra votes are found in paragraphs 42 to 44 where the petition identifies Wards, number of registered voters in each Ward, and the number of extra ballot papers in each Ward. For instance, in paragraph 42 (a), the petition pleads as follows:

"Wakumale Ward had 866 electors on 2012 Electoral Roll, but when the ballot papers were counted at Count 1 there were 869 ballot papers in the box. There was an excess of 3 ballot papers in the ballot box."

7. The petition pleaded similarly for other Wards affected by extra ballot papers.

8. Is there any deficiency in the pleadings? Mr. Williams stated that only registered voters are entitled to vote. This means that the number of ballot papers at counting should never exceed the number of registered voters. These figures speak for themselves in order to show that there was an error. It is not necessary to plead how the extra papers existed. The Applicant is also not required to plead that his scrutineers objected to the affected ballot papers at the time of counting. I am therefore unable to understand the basis for the trial Judge's finding that this allegation was not properly pleaded.

9. According to my count, which may be incorrect, there were 1,312 extra ballot papers in excess of the number of registered voters. This will not affect the result of the election. However, the petition went on to plead that boxes with extra ballot papers should have been excluded because extra ballot papers in them affected the integrity of the ballot boxes. The petition has tables that identify the Electorate, the Ward, the Ward Number, the Count, the electoral official, number of registered voters, number of ballot papers, and number of excess votes. Altogether, the tables show that at least 134,313 votes would be affected. Below is a summary per Electorate:

Lagaip Porgera	-	30,000 (estimated by the Court)
Kandep	-	36,266
Wabag	-	27,350
Wapenamanda	-	40, 697.

10. The First Respondent was declared winner at Count 16 when he had polled 140,512. At the time of the declaration, there were 279,413 ballot papers remaining. These are pleaded in the petition. It is apparent that if boxes affected by extra ballot papers are excluded, the result of the election will be seriously affected. The election could also be declared as a failed election. That is one of the reliefs being sought. Again, I do not see any lack of pleading.

11. It has been stated that the petition did not plead knowledge and authority and that it is just that the election should be declared void. These are elements of section 215 (3) of the Organic Law, which reads:

"(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

12. Section 208 (a) of the Organic Law only requires a petition to " set out the facts relied on to invalidate the election or return..." Section 208 does not state that elements of section 215 should be pleaded. They may be pleaded, where necessary, to compliment the pleadings. In this case, for instance, the effect of the allegations on the result of the election was pleaded. Otherwise, it should not be a mandatory requirement to plead elements of section 215 (3).

13. Section 215, like sections 194 and 195, are prescribed guidelines for Magistrates and Judges. Section 215 (3), in particular, is applicable usually when a trial Judge, having found that there was an illegal practice, has to decide on whether the election should be declared void or not. One of the considerations is that if the winning candidate had no hand in an illegal practice, the trial Judge may still invalidate his election if the result was likely to be affected and it is just to do so.

14. I am therefore unable to identify any lack of pleading in relation to allegations on extra ballot papers and the failure to exclude boxes affected by extra ballot papers.

15. In relation to the attestation clause, I am unable to comprehend lack of pleading in a witness stating that he is a lawyer or an electrician.

16. I am ultimately satisfied that the application for review raises important points of law to be determined which are not without merit. I am also satisfied that the matters alleged in the petition, if true, disclose serious contraventions of the Organic Law and that there is public interest in having such allegations determined on their merits. Therefore, the application for leave is granted.

17. As I stated, I have not dealt with all the pleadings. The trial Judge has dismissed all the allegations as being incompetent. I have found that the application raises important and meritorious issues of law, and that it is in the public interest for the allegations to be determined on their merits. Therefore, I prefer to have the merits of all the pleadings go before the Supreme Court for full and substantive consideration. The decision to quash whole or part of the trial Judge's decision is, in the circumstances, better reserved for the full bench.
__________________________________________________________________

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