Potape v Undialu [2018] PGSC 29; SC1680 (1 June 2018)

SC1680

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 2 OF 2018

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:
FRANCIS M. POTAPE
Applicant

AND:
PHILIP UNDIALU
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Manuhu J, David J & Higgins J
2018 : 01^st May & 01^st June

JUDICIAL REVIEW – election petition – objection to competency – returning officer allegedly failing to declare true result

OBJECTION TO COMPETENCY – inconsistent pleading – not objectionable – review upheld

Alternative pleading explained – not constituted by seeking alternative forms of relief

Cases cited

Ekip v Wimb (2012) PNC 200; N4899
Kikala v Electoral Commission [2013] PGNC 15, [10]

Counsel:

Mr. Paul Othas, for the Applicant
Mr. G. Gileng, for the First Respondent
Mr. M. Ole, for the Second Respondent

1^st June, 2018

1. BY THE COURT: This is an application by Francis M. Potape to Review a decision by Batari J on 24 January 2018 upholding the Respondents’ Objections to Competency of the Applicant’s Election Petition (EP No. 3 of 2017).
   
2. The Petition, dated 16 August 2017, recited the facts relied upon to invalidate the return of the Writ for the Hela Provincial Electorate.
   
3. Those facts recited that the Petitioner and the First Respondent were two of 21 candidates standing in the seat.
   
4. Votes were cast on 4 July 2017 and the counting progressed until the declaration of the poll on 25 July 2018.
   

5. The tally of 1^st preference votes was taken on 15 July 2017. A total of 176,459 votes were admitted into the count. The First Respondent’s tally was 38,221 and the Petitioner 27,005. The exclusion of candidates with the least number of votes, and the distribution of their preferences continued. Given that voters could mark only 3 preferences, some votes became exhausted as the count progressed. The majority required for election was 50% plus one of the remaining valid and unexhausted votes. At exclusion 18, the Petitioner had gained 52,793 votes and the First Respondent 59,095 votes.

6. On 23 July 2018, the final exclusion took place. The preferences of candidate Dr. Hewali Hamiya were distributed. He had tallied 47,918 votes.

7. The Petitioner was allotted 14,642 votes, boosting his tally to 67,435 votes. The First Respondent was allotted 6,741 votes, taking his tally to 65,836 votes. 26,535 votes were exhausted.

8. Those results were posted by the Tally Master and recorded in Form 66B by the Chief Tally Master, Wilson Habe.

9. However, the Provincial Returning Officer did not then declare the result of the poll but instead had some of the officials bundle up and store the votes and ballot boxes. He was reported to have stated that he wished to do a “quality check” and recount.

10. On 24 July 2018, the Petitioner attended the counting place expecting to be declared the winner. Instead he observed that the Tally Board had been burnt.

11. It was reported to him that the Provincial Returning Officer and the First Respondent had attended and taken photographs. The Tally Board had been taken down and set on fire and the Provincial Returning Officer with some other officials had driven away with the ballot boxes.

12. Later the Petitioner was informed that the Provincial Returning Officer had gone to Port Moresby to return the Writ.

13. On 25 July 2017, the Petitioner was informed that the Writ had been returned, declaring that the First Respondent was the successful candidate.

14. The Petitioner complains that the Provincial Returning Officer acted erroneously in failing to declare him the successful candidate and, conversely, erred in declaring the First Respondent to be the successful candidate.

15. The Objection to Competency, as amended, focused on a lack of particulars of the alleged wrongdoing, a failure to allege that the First Respondent was complicit in the wrongdoing and, generally, a failure to identify the relevant witnesses.

16. The balance of the objection points to the fact alleged that the final exclusion was not endorsed by the Provincial Returning Officer, though recorded on a form 66B. In effect, the Petitioner was not aware of the process undertaken by the Provincial Returning Officer in declaring the final result and, hence, the Petition failed to allege any particular failing or wrongdoing leading to the invalidation of the declared result.

17. Batari J, after entertaining submissions from the parties, delivered his decision on 24 January 2018. The essential allegation his Honour identified, was that the Provincial Returning Officer failed, as required by s.175(1)(a) of the Organic Law on National and Local-Level Government Elections (OLNLLGE) to:

“... publicly declare the result of the election and the name of the candidate elected.”

18. Central to the decision was whether the Petition complied with s.208 (OLNLLGE). The provisions allegedly not complied with were ss.208(a) & (b):

“A petition shall –

(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled.”

19. The essence of his Honour’s reasoning is set out by him as follows:

“[16] Counsel for the Petitioner concedes that the grounds of errors and omissions relied on is premised on a presumption that the conduct and validity of polling up to counting or scrutiny are not in question. That, the final results which were tallied and recorded resulted from a perfect trouble-free conduct of elections in which the electors had freely exercised their choice to elect their representative to represent them in Parliament.

[17] That, in my view, is where the real difficulty with this Petition lies. The petitioner alleges errors and omissions on the part of the PRO and a consequential relief that the First Respondent be declared not duly elected. The alleged errors and omissions against the PRO and the relief sought are not based on proven facts. They are based on assumptions of facts that have not been tested and may possibly be tainted with electoral irregularities occasioned by errors or omissions and illegal practice. ”

20. At [24] his Honour stated:

“It is apparent from the reading of the whole of the Petition that the hearing of the alleged failure of the PRO to declare the Petitioner as duly elected and the failure to endorse the Writ to that effect, will stray into an inquiry into the propriety of scrutiny or counting. That is not permissible.”

21. Then at [25]:

“It is also clear that the pleadings are contradictory and confusing. The Petitioner relies on a result of a properly scrutinised counting. At the same time the facts disclose information that shows irregularity in the conduct of counting. The Petitioner cannot have it both ways. This also amounts to alternative pleading which is not allowed in Election Petition proceedings.”

22. This conclusion does not seem to follow from the terms of the Petition. The Petition clearly claims that the true result of the election, following the scrutiny, was that the Petitioner won. It is possible of course that the Provincial Returning Officer conducted some undisclosed and unscrutinised recount as a result of which the First Respondent won the election.

23. The Petitioner is not precluded from alleging, as he does, that such a process, even if undertaken, was irregular. The remedy for that would be a properly conducted re-count. That alternative relief is requested by the Petitioner in paragraph C3 of the Petition.

24. The facts, as pleaded by the Petitioner, are the results of the final exclusion and count with mathematical precision. If those were the results of the final scrutiny then the Petitioner must have been declared the winner.

25. The Respondents contend that the Petitioner has engaged in alternative pleading. This is referred to and explained by Kandakasi J in Ekip v Wimb (2012) PNC 200; N4899.

26. His Honour summarised the effect of the previous decisions as follows:

“[22] From these decisions it is clear that there is a need to carefully weigh the equally important needs of protecting the electoral process from petitioners who come with wild, sensationalist, unmeritorious and unsustainable allegations and a voter’s right to challenge the validity of an election outcome that has not come the correct and proper way on groups (sic – “grounds”) that are properly supported by facts that have merit and are not speculative, sensational and unsustainable. Hence, there is no law against meritorious and sustainable allegations being permitted to challenge election results out of elections that have been improperly conducted and the return of an election unduly returned.”

27. In this case it is clear that the Petitioner was asserting that the Provincial Returning Officer did not declare the true result of the election.

28. That is a serious allegation, supported by evidence from the progress of the count. The evidence discloses alternative results, ie that declared and that which ought to have been declared. That is not alternative pleading. That must also be distinguished from an alternate or additional ground for the same conclusion.

29. Alternative pleading is where the Petitioner alleges conflicting and contradictory grounds for invalidating the election.

30. Makail J clearly explained this in Kikala v Electoral Commission [2013] PGNC 15, [10]. Pleading alternative grounds is permissible unless the alternatives are contradictory and/or confusing.

31. That is not the case here. The applicant claims to have been validly awarded an absolute majority of the unexhausted votes on the final count.

32. The figures, said to be supported by Form 66B, mathematically support that contention.

33. It is true that the process of reasoning whereby the Provincial Returning Officer decided the result inconsistently with the figures last ascertained is not specified. Nor, it follows, is there a pleading of any facts on which he relied to come to his conclusion. However, those are not facts within the knowledge of the Petitioner or his scrutineers. It is not necessary for the Petitioner to plead them. Indeed, until and unless the Provincial Returning Officer explains the result, his process of reasoning and/or the alternate facts on which he might rely can only be a matter for speculation.

34. On the other hand, the Petitioner’s case is clear and unambiguous. It should be tested at trial.

35. It follows that the application for review of Batari J’s decision is upheld and the Petition remitted to the National Court to be heard and determined according to law. The Objection to Competency stands dismissed.

36. The Respondents are to pay the Petitioner’s costs of and incidental to these proceedings.
______________________________________________________________
Paul Othas Lawyers: Lawyers for the Applicant
Posman Kua Aisi Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent