Duma v Puk [2019] PGSC 57; SC1817 (27 June 2019)

SC1817

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) No. 43 of 2018

BETWEEN:
WILLIAM DUMA
Applicant

AND:
JAMES PUK
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Collier, Pitpit and Auka JJ
2019: 3 May, 27 June

ELECTIONS – petitions –objection to competency – non-compliance with the Election Petition Rules 2017 – whether the Court has the power to exercise discretion to refuse to dismiss petition – whether the petition was compliant with s 208 of the Organic Law – whether a dispensation decision can be overturned in judgment

Cases Cited:
Papua New Guinea Cases

Aihi v Isoaimo (2014) N5691
Amet v Yama (2010) SC 1064
Avei v Electoral Commission and Charles Maino (1998) SC584
Baindu v Yopiyopi (2019) SC1763
Baira v Genia and Electoral Commission (1998) SC579
Basa v Dadae (2013) N4991
Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342
Dekena v Kuman (2018) SC1715
Dion v Konga (2018) N7210
Electoral Commission of Papua New Guinea v Solo (2015) SC1467
Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99
In re Fly River Provincial Executive (2007) SC917
In re Re-election of the Governor General (2010) SC1089
Kandiu v Parkop (2015) SC1437
Kandiu v Parkop (2015) SC1597
Kumbakor v Sungi (2012) N5002
Leonard v Wesley (2014) N6552
Madang Timbers Ltd v Kambori (2009) SC1000
Mai Dop v Wake Goi (unreported, Batari J, 26 January 2018)
Mune v Agiru, Kaiulo and Electoral Commission (1998) SC590
Palme v Pok (2018) N7214
Papol v Temo and Electoral Commission [1981] PNGLR 178
PNG Ports Corporation Ltd v Kennedy (2017) N7040
Powi v Kaku (2018) SC1743
Puk v Duma (2018) N7538
Review Pursuant to Constitution Section 155(2)(b); Application by Ben Semri (2003) SC723
Review Pursuant to Constitution Section 155(2(b); Application by Herman Joseph Leahy (2006) SC855
SCR No 1 of 1990; Re Recount of Votes [1990] PNGLR 441
Siaguru v Unagi and the Electoral Commission [1987] PNGLR 372
Somare v Nen (2018) SC1722
Talita v Ipatas (2016) SC1603
Tulapi v Lagea (2013) N5235

Overseas Cases

R v Hillingdon London BC ex p Pulhofer [1986] UKHL 1; (1986) AC 484
Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 TLR 273
Ithaca Election Petition; Webb v. Hanlon [1939] QSR 90

Legislation Cited:

Constitution of the Independent State of Papua New Guineas 155(2(b)
Organic Law on National and Local-level Government Elections
Election Petition Rules 2017
Electoral Law (National Elections) Regulations 2007
Supreme Court Rules 2012

Counsel:

H Nii, for the Applicant
L A Jurth, for First Respondent
J Kolo, for the Second Respondent

JUDGMENT

27^th June, 2019

1. BY THE COURT: Before the Court is an application by the Hon. William Duma MP (the applicant) to review a decision of the National Court of Justice of 30 October 2018, in respect of an electoral petition (EP No. 25 of 2017; James Puk v William Duma & Patilias Gamato, Electoral Commissioner of Papua New Guinea) (the petition). In that decision the Court refused to dismiss the petition on the Objection to Competency moved by the respondents to the petition. Materially, the primary Judge found that:
   • the petition was non-compliant with the Election Petition Rules 2017 (EP Rules) but nonetheless in the exercise of discretion refused to dismiss the petition on that basis, and
   • although grounds 1-6 of the petition should be struck out for not pleading facts, ground 7 of the petition should go to trial.

2. The effect of s220 of the Organic Law on National and Local-level Government Elections (Organic Law) is that a decision of the National Court in respect of an election petition is final and conclusive, and shall not be questioned in any way including by way of appeal. However the review jurisdiction of the Supreme Court is available under s 155(2)(b) of the Constitution: Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy(2006) SC855. The process of review was explained by the Supreme Court in Avei v Electoral Commission and Charles Maino(1998) SC584:

It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions. This can be noted in s. 155(6) of the Constitution which speaks of them as alternatives.
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 it’s own judgement of the issues. If error is found it will deliver the judgment 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 Hillingdon London BC. ex. P. Pulhofer (1986AC 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 authorised 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: SC Review No. 1 of 1990, Application by Electoral Commission [1990] PNGLR 441. (Emphasis added.)

3. These statements of principle have been accepted in more recent Supreme Court decisions including Powi v Kaku(2018) SC1743 at [22]-[23], Talita v Ipatas (2016) SC1603 at [4]-[5] and in particular Electoral Commission of Papua New Guinea v Solo(2015) SC1467 at [11]-[13].We similarly affirm and adopt them.

4. Leave to apply for review was granted on 21 December 2018, and on 7 January 2019 the Supreme Court ordered a stay of the trial of the petition pending the determination of this review.

BACKGROUND

5. On 21 July 2017 the applicant was declared as the winner of the Hagen Open seat following the 2017 National elections. Thirteen candidates contested the election for the Hagen Open seat. At the time of declaration of results the applicant polled 29,280 votes, above the absolute majority of 28,426 votes on first preference votes. The first respondent (the petitioner) was the runner up, and polled 7,430 votes.

6. The petitioner filed the petition on 30 August 2017.

7. The seven grounds on which the petitioner relied were summarised by the primary Judge as “not numbered in a straightforward way”.

8. His Honour identified as grounds of the petition “Grounds 1 to 5: Illegal practices”, and noted that these grounds were set out in part B of the petition, headed “ILLEGAL PRACTICES COMMITTED BY THE FIRST RESPONDENT’S SUPPORTERS AND AGENTS AND SERVANTS OF THE SECOND RESPONDENT”. His Honour continued:

The grounds are introduced by this statement:

The petitioner alleges that the first respondent and/or supporters as well as polling officials being agents and servants of the second respondent have contravened Sections 130 to 139 inclusive and 178 (1)(f), (g) and (h), 190 and 191 (8), (9), (10) and (14) of the Organic Law on National and Local-level Government Elections (herein referred to as the “Organic Law”) and Sections 102, 109, 110 and 111 of the Criminal Code Act (“the Code”) in that:

Each of the five grounds then alleges that there were illegal practices committed at a particular polling place by the first respondent’s supporters and by agents and servants of the second respondent, resulting in no polling actually taking place, yet the returning officer counted the first preference votes illegally cast for the first respondent, resulting in the first respondent being allocated the vast majority of first preference votes at the five polling places, contained in nine ballot boxes, yielding the first respondent a total of 14,695 votes. It is further alleged that these illegal practices resulted in the polling process at each of the five polling places being “hijacked by agents and servants of the first respondent and second respondent and this was all carried out within the knowledge and authority of the first respondent” and that the result of the election was likely to be affected within the meaning of Section 215(3) of the Organic Law.
The precise descriptions given in the petition to grounds 1 to 5, are as follows:

[Ground 1:] “B1(a) Kerebug Ward 4 (Urban)(a)(i) Illegal Practice No 1 – Kerebug Ward 4 (Urban): Technical College Polling Place, Kerebug Village” (pages 4 to 5 and 6 to 7 of the petition)
[Ground 2:] “B1(a) Kerebug Ward 4 (Urban)(a)(1) Illegal Practice No 2 – Kerebug Ward 4 (Urban): Housing Commission Polling Place, Kerebug Village (pages 5 to 7 of the petition)
[Ground 3:] “B1(b) Gomis (b) Illegal Practice No 2 [sic] – Gomis: Team 194” (pages 7 to 9 of the petition)
[Ground 4:] “B1(c) Koglamp Ward 8, (c) Illegal Practices No 3 – Koglamp Ward 8 – Hagen Rural LLG” (pages 9 to 12 of the petition).
[Ground 5:] “B(d) Kilam Ward No 33 (d) Illegal Practices No 4 – Kilam Ward No 33” (pages 12 to 13 of the petition).

9. His Honour then identified two further grounds of the petition, namely “Grounds 6 and 7: errors and omissions”, noting that these grounds were set out in part C of the petition, headed “ERRORS AND OMISSIONS BY AGENTS AND SERVANTS OF THE SECOND RESPONDENT” (pages 13 to 26 of the petition). His Honour continued:

Ground 6 alleges that the returning officer committed serious errors of omissions by “not carrying out proper scrutiny of ballot boxes where illegal practices occurred”, resulting in 14,695 ballot papers (which gave the first preference vote to the first respondent) affected by illegal practices (the same ballot papers the subject of grounds 1 to 5) being counted. Ground 6 concludes (after setting out the details of the allegations) by stating:

11. Consequently by allowing these 14,695 ballot papers to be counted... and not complying with the procedures outlined in Section 90 of the Regulations and Sections 151(c), 153A, 154 of the Organic Law, the returning officer committed an error and omission within the meaning of Section 218 of the Organic Law.
12. 14,695 ballot papers were affected by this error or omission by the returning officer being a servant of the second respondent. The winning margin is 854 ballots and consequently the results of the election are likely to be affected and will be affected by the error or omission.

The precise description given in the petition to this ground is:

[Ground 6:] “C(i) Not Carrying Out Proper Scrutiny of Ballot Boxes where Illegal Practices Occurred” (pages 13 to 21 of the petition).

Ground 7 alleges that the returning officer committed serious errors or omissions by “not admitting 28 ballot boxes for scrutiny”, resulting in 18,803 lawfully cast ballot papers not being counted. Ground 7 concludes (after setting out the details of the allegations) by stating:

36. Consequently 18,803 votes have not been counted from these polling places without valid reasons by the returning officer and the result of the elections are likely to be affected.
37. The winning margin is 854 ballot papers. 18,803 ballot papers were not counted when the 28 ballot papers were unilaterally set aside in contravention of Sections 151(c), 153A, 154 of the Organic Law, and Section 89 of the Regulations. The results of the election as a consequence of this error and omission will and is likely to affect the results of the election for Hagen Open Electorate within the meaning of Section 218 of the Organic Law.

The precise description given in the petition to this ground is as follows:

[Ground 7:] “C(ii) Particulars of error or omission in not admitting twenty-eight (28) ballot boxes for scrutiny” (pages 21 to 26 of the petition).

10. Before his Honour both the applicant and the second respondent (the objectors) objected to the competency of the petition. His Honour observed that the overarching objection was that the petition did not meet the requirements of s 208 (requisites of petition) of the Organic Law, which stated:

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; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

11. As his Honour noted, the objectors relied almost entirely on s208(a) and argued that the petition did not sufficiently set out the facts relied on to invalidate the election.

12. His Honour then noted that the grounds of objection to competency of the petition fell into the following four categories:

(1) General objection to the form and content of the petition, in particular that the petition was non-compliant with the form prescribed by the EP Rules and was not signed by the petitioner in accordance with s 208(c) of the Organic Law.
(2) Specific objections to each of grounds 1 to 5 of the petition, relating to claims of vagueness and convolution, and failure to properly plead. (In summary his Honour found that all sub-grounds of this objection were sustained, resulting in grounds 1 to 5 of the petition being struck out).
(3) Specific objections to ground 6 of the petition, relating to claims of failure to particularise, properly plead, vagueness and duplicity. (In summary his Honour found that the objections based on failure to particularise and vagueness were sustained, resulting in ground 6 of the petition being struck out).
(4) Specific objections to ground 7 of the petition.

13. In light of the application for review currently before this Court which focuses on the general objection to the form and content of the petition, and ground 7 of the petition, it is appropriate to examine these particular issues, and his Honour’s findings, in detail.

THE FORM AND CONTENT OF THE PETITION – OBJECTIONS AND FINDINGS OF HIS HONOUR

14. His Honour noted the arguments of the petitioners that the petition was non-compliant with the EP Rules in four respects:

(a) It did not set out the facts and grounds separately;
(b) The word “PETITION” did not appear in the designated area;
(c) The second respondent to the petition was incorrectly named;
(d) It did not specify whether the petitioner was a candidate or a person qualified to vote at the election.

15. His Honour then set out Form 1 as found in Schedule 2 to the EP Rules, comparing it with the actual petition filed, and concluded that the arguments of the respondents about non-compliance were valid, in particular:

• The clear requirement of Form 1 is that facts and grounds should be stated separately, however the petition conflates the two and is therefore non-compliant with the EP Rules.
• Form 1 requires the word “PETITION” to appear below the file reference, and above words describing the proceeding and parties, however in the petition the word “PETITION” appeared below the words describing the proceeding and parties. His Honour noted that the word “PETITION” in the petition was therefore in the wrong place, and therefore the petition was non-compliant with the EP Rules.
• Form 1 requires that the second respondent be named as “ELECTORAL COMMISSION”, consistently with Rule No 3 (respondents) of the EP Rules. However, the petition actually named the second respondent as “PATILIAS GAMATO, Electoral Commissioner of Papua New Guinea”, which was clearly erroneous.
• In the petition the petitioner signed himself as “JAMES PUK, Petitioner on 30 August 2017 at Section 32, Allotment 17 Varahe Road, Gordons, National Capital District”, whereas he should have stated that he was a candidate at the election in dispute and/or a person who was qualified to vote at the election. To that extent the petition was non-compliant, although his Honour noted that in other parts of the petition the petitioner made it clear that he was a candidate.

16. Accordingly his Honour upheld the objectors’ contention that the petition was non-compliant with the EP Rules, but then considered whether this meant that the petition was incompetent and should be dismissed. His Honour continued:

According to the decision of Pitpit J in Palme v Pok (2018) N7214 the answer would be yes. In that case his Honour found that the actual petition filed was non-compliant with Form 1 of the 2017 Rules in three respects:

the word “PETITION” was in the wrong place;
it contained matters under the heading “RELEVANT BACKGROUND FACTS” that were not prescribed or allowed;
The petitioner failed to state or disclose when signing the petition that he was a candidate in the election in dispute or a person who was qualified to vote at the election, in accordance with Section 208(c) of the Organic Law.

His Honour held that the combined effect of the non-compliance was that the petition was incompetent, not properly before the court and had to be dismissed:

32. I find that when combined, these various instances of failure or non-compliance collectively amounts to such a degree that bring it beyond the exercise of any judicial discretionary parlance except the preclusion in s 210 of the Organic Law. This being the conclusion of this court, I accordingly uphold the objection to competency of ground number 1 of the First Respondent and as this ground being the foundational thresholdground, I would order the dismissal of the entire Petition accordingly.
33. The effect of the decision of the court is that there being no petition properly before this court in accordance with the law, it is therefore not necessary to consider the remaining grounds of the objections to Competency by the Respondents.

17. His Honour continued:

I am not bound to adopt his Honour’s reasoning as it was expressed in a decision of the National Court. However I have considered it closely, of course, and if I took that approach here the whole petition would be dismissed. But I respectfully disagree with that approach. I don’t think that it should be a simple matter of identifying a non-compliant petition and concluding that it is incompetent and ought to be dismissed. If a petition is non-compliant, the nature and extent of the non-compliance should be examined in order to make a proper assessment of whether it is fair and just that the petition ought to be dismissed. I think there should be, and is, an element of discretion involved, at least in the case of a non-compliant form, for these reasons:

the form and content of the petition are not part of the bundle of requirements set out by Section 208 of the Organic Law;
strict compliance with Form 1 is not essential, substantial compliance is sufficient;
though the form and content of the petition fails in four respects to comply with the prescribed form and content, the form and content are substantially compliant with Form 1;
the instances of non-compliance cannot reasonably be regarded as causing material prejudice to the respondents;
as the instances of non-compliance are non-compliance with the Rules, they are capable of being dispensed with under Rule No 22 (relief from Rules) of the Rules, which states:

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.

18. His Honour concluded that the petition’s non-compliance with the EP Rules was not a matter rendering the petition incompetent, and therefore wholly refused this objection to the petition.

GROUND 7 OF THE PETITION, OBJECTIONS AND FINDINGS OF HIS HONOUR

19. Ground 7 “C (ii) PARTICULARS OF ERROR OR OMISSION IN NOT ADMITTING TWENTY-EIGHT (28) BALLOT BOXES FOR SCRUTINY” commenced at p 21 of the petition. Materially the ground asserted:

13. Count No. 69 of Ballot Box No EC- 012997 from the Kik/Maip, Ward 6 commenced on Thursday 20 July 2017 at 10.00am in the presence of Mr Jim Walgem – scrutineer for candidate Benjamin Ketegu, James Kunjil – scrutineer for candidate James Puk, Mr Moses J Timb – scrutineer for candidate Lukcee Luke Mathew and counting officials and security personnel.
14. Count No. 70 was then followed by count No. 71 of the Ballot Box No. EC-013022 from the Baisu Ward 31 which commenced at midday. After the completion of that count at 2.00pm, the Returning Officer announced the suspension of counting for that day – Thursday 20 July 2017.
15. On Friday 21 July 2017, Mr Jim Walgem – scrutineer for candidate Benjamin Ketegu, James Kunjil – scrutineer for candidate James Puk, Mr Moses J Timb – scrutineer for candidate Lukcee Luke Mathew and counting officials and security personnel had assembled at the Kiminiga Police Barracks at 8.00AMto begin the process of assembling for the purposes of counting.
16. At 10.00am on 21 July 2017, all those present inthe Hagen Open counting room were advised by the Returning Officer that counting for Hagen Open was again suspended for the day. No reasons were provided by Returning Officer when making the announcement as to why counting had been suspended.
17. On Saturday 22 July 2017, Mr Jim Walgem – scrutineer for candidate Benjamin Ketegu, Mr James Kunjil – scrutineer for candidate James Puk, Mr Moses J Timb – scrutineer for candidate Lukcee Luke Mathew, other scrutineers and counting officials and security personnel had assembled at the Kiminiga Police Barracks at 8.00am to begin the process of assembling for the purposes of counting.
18. From 8.00am – 10.00am no ballot boxes had been brought into the counting centre for counting and at around 10AM the Returning Officer Mr Paul Goimba – and his Assistant Returning Officer Mr Andrew Kerowa – walked into the Hagen Open counting centre with the First Respondent and then proceeded to make the announcement that he would be making the declaration of the [sic] Mr William Duma the First Respondent as Member Elect for Hagen Open.
19. Mr Jim Walgem, scrutineer for candidate Benjamin Ketegu, Mr James Kunjil, scrutineer for candidate James Puk, Mr Moses J Timb, scrutineer for candidate Lukcee Luke Mathew, other scrutineers then immediately began to question the Returning Officer as to the remaining twenty-eight (28) ballot boxes that had not been admitted to scrutiny for counting.
20. The Returning Officer advised all those in the counting room that he had declared all ballot papers within those 28 ballot boxes yet to be admitted for scrutiny as informal saying that they had been “tampered” with and therefore was setting them all aside.
21. Mr Jim Walgem, scrutineer for candidate Benjamin Ketegu, Mr James Kunjil, scrutineer for candidate James Puk, Mr Moses J Timb, scrutineer for candidate Lukcee Luke Mathew, other scrutineers demanded the Returning Officers bring the purported “tempered” [sic] ballot boxes to the counting centre and demonstrate how they were tampered with. The Returning Officer refused.
22. The First Respondent Mr William Duma then walked into the counting centre at approximately 1.00pm and at approximately 2.00pm was declared as Member elect for Hagen Open Electorate by Returning OfficerPaul Goemba and signed the Writ for Hagen Open Electorate in the presence of those mentioned above.

20. Paragraph 23 of the petition referred to the details of the “28 ballot boxes which never admitted for scrutiny and unilaterally set aside by the Returning Officer”. There followed a table setting out the number of each ballot box, and referable to each ballot box, the ward, the team, and the number of ballot papers contained in each ballot box. The petition stated that 18,803 ballots were affected.

21. The petition continued:

24. The Returning Officer and his Assistant Returning Officer as being the ‘Officers to Conduct Scrutiny’ in accordance with Section 149 of the Organic Law; failed to carry out proper scrutiny of the 28 ballot boxes as required by Sections 151(c), 153A, 154 of the Organic Law and Section 89 of the Electoral Law (National Elections) Regulations 2007 (hereinafter referred to as “the Regulations”) which provides that in relation to the 28 ballot boxes unilaterally set aside the Returning Officer should have:-

(i) Received each of the 28 ballot boxes into scrutiny in the counting centre in the presence of the scrutineers and all other persons authorised to be in the counting centre in an order determined by the respective RO or ARO; then
(ii) The RO or ARO should have identified and confirmed the respective ballot box as that being the one used at polling at the respective polling place by confirming the seals and locks are intact and receiving the confirmation from the respective Presiding Officer of how polling was conducted on the day of polling; then
(iii) Taken objections to admit to count – if any – from the respective scrutineers representing their respective candidates in the counting centre; then
(iv) If the RO or ARO decide to accept the objections of the scrutineer, then the ballot box and the ballot papers contained therein will be declared informal and set aside, however if the objections are not accepted then the ballot box and ballot papers therein are admitted to count; then
(v) The RO or ARO should have opened the ballot box and removed the ballot papers; then
(vi) Identify any informal votes, rejecting them for count and arrange those that have been unrejected against the respective names of their candidates by placing them in separate trays or parcels all those in which first preference is indicated for the same candidate; then
(vii) The counting officials are to count the first preference vote from the unrejected ballot papers; then
(viii) The first preference votes are to be recorded on the progressive tally form – 66A form which is in full display of all those present and is also recorded by all those present; then
(ix) A separate parcel for informal votes is to be kept and to be kept in a box containing informal votes and the number of informal votes from that ballot box is to be recorded; then
(x) This process should have then been repeated with each of the 28 ballot boxes unilaterally set aside; then
(xi) After dealing with all of the 28 ballot boxes unilaterally set aside in the manner described in sub-paragraphs (i)-(x); the RO is to facilitate for the tallying of the first preference vote recorded to each candidate; then
(xii) The RO or ARO should have gone through each ballot box holding ballot papers for each candidate and re-checked the ballot papers and figures recorded and correct any mistakes made and then tally the first preference votes recorded to each candidate again; then
(xiii) The RO or ARO then should have determined from the re-check if a candidate had reached absolute majority – 50% + 1 of the allowable ballot papers in count and if no one had; then proceeded to the elimination process.

22. Importantly, the petitioner then pleaded:

25. Polling for the said 28 boxes were conducted properly and in accordance with the Law and there were no possible grounds giving rise to their dispute.

No.	Witness to Proper Polling	Capacity	Voting Start	Voting Finished	Incidents
1	AURO MARK	Presiding Officer	11.30am	12.30pm	None
2	SADRICK HIMUPE	Presiding Officer	11.30am	3.00pm	None
3	PATRICK GAMMING	Presiding Officer	11.30am	1.30pm	None
4	ALE KIKU	Assistant Presiding Officer	11.30am	2.00pm	None
5	GABRIEL YAK	Assistant Presiding Officer	10.00am	4.00pm	None
6	SAMSON PET OW	Polling Clerk	10.30am	4.00pm	None
7	ELIJAH KAWA	Presiding Officer	11.00am	4.00pm	None
8	MATHIAS WERA	Scrutineer for James Puk	12.30pm	5.00pm	None
9	JOSHUA KILA	Scrutineer for James Puk	9.00am	3.00pm	None
10	THOMAS BULDI	Scrutineer for James Puk	10.00am	2.00pm	None
11	BENJAMIN KUNDI	Scrutineer for David Yak	10.00am	4.00pm	None
12	MATTHEW KILTS	Scrutineer for David Yak	10.00am	4.00pm	None
13	STEVEN YAK	Scrutineer for David Yak	10.00am	4.00pm	None
14	KEVIN TIRIMBI	Scrutineer for James Puk	10.30am	11.30am	None
15	SIMON NAMBA	Scrutineer for James Puk	10.30am	4.30pm	None
16	SAMUEL WILLIE	Scrutineer for James Puk	10.30am	4.30pm	None
17	JIM KURI	Scrutineer for James Puk	10.00am	5.00pm	None
18	ARNOLD AIP	Scrutineer for James Puk	10.00am	5.00pm	None
19	STANLEY BATA	Scrutineer for James Puk	9.00am	5.00pm	None
20	COUNCILOR ONDA KIAP	Scrutineer for James Puk	9.00am	5.00pm	None
21	WIN TEMBA	Scrutineer for James Puk	10.00am	4.00pm	Nonw
22	FRANCIS RAY	Scrutineer for Steven Karuput	12.30pm	4.00pm	Disturbance
23	SENT TEPI	Scrutineer for James Puk	10.30am	5.00pm	None
24	PAUL MALT	Scrutineer for James Puk	10.30am	5.00pm	None
25	AMOS OLIK	Scrutineer for David Yak	9.30am	3.00pm	None
26	ELIS NIGINTS	Scrutineer for James Puk	10.00am	4.00pm	None
27	MATHEW RAKA	Scrutineer for James Puk	10.00am	4.00pm	None
28	LAS RALDA	Scrutineer for James Puk	10.00am	4.00pm	None

26. None of the Presiding Officers, Auro Mark, Sadrick Himupe, Patrick Gamming and Elijah Kawa, or of the Assistant Presiding Officers, Ale Kiku, Gabriel Yak were ever consulted or requested by the Returning Officer Paul Goemba as to whether polling for their respected [sic] locations had proceeded lawfully or not.
27. Mr Alex Bulda was the scrutineer for Provincial Returning Candidate – Mr Steven Kulifrom the commencement for count of the Western Highlands Regional Seat until the declaration of Hon. Paias Wingti as Governor.
28. Mr Alex Bulda witnessed that the Regional Ballot boxes for which the correlating twenty-eight (28) ballot boxes were set aside in the Hagen Open counting room were all cleared to count for the Regional Seat Counting Room. The clearance could only have lawfully come from or been given by the Returning Officer Mr Paul Goemba.
29. Following the declaration the candidates for the Hagen Open Electorate being Mr David Yak, Mr James Puk, Mr Benjamin Ketegu, Mr James Yoka Ekip, Mr Luke Mathew, Mr Steven Karapua, Mr Andrew Newman, Raymond Biwa and Mr Peterson Dowa by a letter dated 22 July 2017, petitioned the Electoral Commissioner of Papua New Guinea to invoke his powers under Section 19(7) of the Organic Law.
30. They asked the Electoral Commissioner to direct the Returning Officer to count the 28 ballot boxes unilaterally set aside and go through the proper process of scrutiny in line as set out in paragraph 24 of this Petition and in accordance with the scrutiny procedures as set out in Sections 151(c), 153A, 154 of the Organic Law and Section 89 of the Regulations.
31. The Electoral Commissioner irrespective of the letter of Petition accepted the Writ for Hagen Open Electorate and that Mr William Duma was duly elected.
32. Consequently, as a result of the errors and omissions of the Electoral Commission and his agents and servants – the Returning Officer and the Assistant Returning Officer – of not carrying out proper scrutiny of the 28 ballot boxes in contravention of Section 151(c), 153A, 154 of the Organic Law and Section 89 of the Regulations, 18,803 ballot papers were not counted.
33. The total of eligible voters for the Hagen Open Electorate in the 2017 National General Elections was 83,551 eligible voters and the total number of ballot papers issued for the 2017 National General Election was 83,551 ballot papers.
34. Approximately 6,562 ballot papers were burnt by the burning of the eight (8) ballot boxes that were deemed tampered with on 12 July 2017, prior to the commencement of the first count.
35. Had the 28 ballot boxes being [sic] included in count the total allowable ballot papers would have been approximately 75,650 (56,851 + 18,803 / 2 = 37,827 + 1) bringing the absolute majority to 37,826 votes.
36. Consequently, 18,803 votes have not been counted from these polling places without valid reasons by the Returning Officer and the result of the elections are likely to be affected.
37. The winning margin is 854 ballot papers, 18,803 ballot papers were not counted when the 28 ballot boxes were unilaterally set aside in contravention of Sections 151(c), 153A, 154 of the Organic Law and Section 89 of the Regulations. The results of the election as a consequence of this error and omission will and is likely to affect the results of the election for Hagen Open Electorate within the meaning of Section 218 of the Organic Law.
38. Hence, the result is likely to be affected when considering the votes effected [sic] by illegal practices which is 14,695 and by official irregularities hereabove at 18,803 given atotal of 33,498 votes affected and the winning margin is 854 votes.
39. Thus the result of the official irregularities and or the illegal practices the results of the election will in fact be affected or is likely to be affected.

23. His Honour observed that the objection to ground 7 of the petition was that it failed to adequately set out the facts relied on to invalidate the election, thereby contravening s208(a) of the Organic Law. His Honour further noted that four sub-grounds of objection were raised, namely:

(a) failing to plead necessary facts to support the allegation that polling at the polling place alleged to have generated 18,803 lawfully cast ballots, in 28 ballot boxes, had been conducted properly;
(b) failing to connect alleged facts to particular alleged errors or omissions;
(c) failing to allege that all presiding officers responsible for the 28 ballot boxes were not consulted prior to the returning officer’s decision not to admit the contents of any of those ballot boxes to scrutiny; and
(d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions (as required by Section 218).

24. In relation to sub-ground (a) his Honour summarised the arguments of the objectors as:

the description of the ballot boxes in terms of the ballot box numbers, the polling places, the polling team numbers and the number of ballot papers contained in each ballot box is confusing and contradictory as it does not correspond with the “base facts”;
there are parts of this ground (in particular paragraph 23, pages 23-24 of the petition) that plead propositions of law, which demonstrate only what the petitioner believes should have happened; and
the two tables (the first providing description of ballot box numbers, polling places, polling team numbers and number of ballot papers contained in each ballot box, the second giving the names of purported witnesses to proper polling, the capacity in which he was a witness, the time of polling and whether there were any “incidents”) are vague and not clearly connected and will leave the respondents and the court guessing as to what the connection is between the two tables, as was the case in Kumbakor v Sungi (2012) N5002 (in which a petition was dismissed as the court was left to speculate and guess by scrolling through the petition without explanation as to how the tables were to be read and understood).

25. His Honour observed that he was not persuaded by any of these arguments in circumstances where:

• The description of ballot boxes was not confusing, the details were specific and the connection between the two tables was obvious.
• Legal documents (including election petitions) can be improved if the drafter is given more time, and the Court must be mindful that petitions must be drafted, settled and filed quickly after the election.
• The Court should be slow to allow the respondents to “play dumb”, and pretend, on the pretext that the petition is confusing and convoluted, that they do not understand the factual allegations made by the petitioner.

26. In relation to sub-ground (b) his Honour summarised the objectors’ arguments as:

... that the petition’s manner of “lumped up” pleading and especially the use of the two tables meant that no specific errors or omissions were pleaded. They rely on the decision of the Supreme Court in Kandiu v Parkop (2015) SC1437, in which the Court was not impressed by the use of tables to explain the alleged errors and omissions of polling officials...

27. However his Honour rejected this sub-ground, on the basis that the tables in this ground of the petition did not make it difficult to appreciate the alleged errors or omissions, as unlike in Kandiu the alleged errors did not occur at different places and different times, and they were not of different types. His Honour observed that the alleged errors or omissions were made at one place (the counting centre) by one person (the returning officer) on one occasion, 22 July 2017, the day of declaration of the poll.

28. In relation to sub-ground (c) his Honour summarised the applicants argument as that:

• insufficient facts were given as to which presiding officers were not consulted by the returning officer prior to his decision to reject the 28 ballot boxes;
• the petition only expressly alleged that seven named presiding officers were not consulted, which gives rise to the inference that the 21 others were in fact consulted; and
• the ballot boxes pertaining to the polling places for which they were responsible were rejected on proper grounds after consultation.

29. His Honour rejected this argument on the basis that the kernel of ground 7 was clear, namely that proper polling took place at 28 polling places, which yielded 18,803 votes from 28 ballot boxes, which were rejected by the returning officer unlawfully and without good reason, and that by rejecting those boxes and those votes he made errors or omissions. His Honour also considered that the question of how many of the presiding officers were or were not consulted by the returning officer was a matter of evidence.

30. In relation to sub-ground (d) his Honour summarised the objectors’ argument as being that the petitioner had failed to plead, as required by s 218(1) of the Organic Law, how the result of the election was affected by the alleged errors and omissions. His Honour rejected this argument on the basis that [36] and [37] of the petition constituted an adequate allegation of fact in relation to the effect on the election of the alleged errors and omissions.

31. Accordingly his Honour found that ground 7 of the petition was substantiated, and that the petition would proceed to trial on that ground. His Honour also ordered that the parties bear their own costs as none had fully succeeded.

RELEVANT ISSUES

32. In their application to review, filed on 21 December 2018, the objectors relied on two sets of grounds of review, relating to the findings of his Honour concerning non-compliance with the EP Rules, and ground 7 of the petition. At the hearing the issues before the Court were condensed to the following:

(1) Was the petition incompetent, and did his Honour err in permitting it to proceed to trial (see in particular ground A(6)) and
(2) Did his Honour err in upholding ground 7 of the petition and holding that it was competently pleaded (grounds B(7)-(12)).

33. We note grounds A(1)-(5) of the application however the oral submissions of Counsel at the hearing focused on the other grounds of review, in particular the exercise of his Honour’s purported discretion. We will return to these grounds if necessary later in the judgment.

WAS THE PETITION INCOMPETENT?

34. The starting point for examination of this issue is the relevant provisions of the Organic Law on National and Local-level Government Elections (Organic Law), which provide as follows:

208. REQUISITES OF PETITION.
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; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
209. DEPOSIT AS SECURITY FOR COSTS.
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.
210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

35. All parties before us accept that strict compliance with the provisions of s 208 of the Organic Law is mandatory, and that a failure to so comply is fatal to the competency of an election petition. We note that this has been the law since the enactment of the Organic Law, as explained for example by the Supreme Court in Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342. In that case Kidu CJ, Kapi DCJ and Andrew J stated as follows:

Proceedings shall not be had on a petition unless the requirements of s. 208 and s. 209 are complied with.
In a petition dated 16th July, 1982, and filed in the Registry of the National Court pursuant to s. 208 of the Organic Law on National Elections the petitioner has disputed the validity of the election of the first-named respondent as member for the electorate of Gumine Open. That result had been declared on 28th June, 1982.
There is no dispute that the petition does not contain the occupations of the attesting witnesses as required by s. 208(d) of the Organic Law.
In Mapun Papol v. Antony Temo and The Electoral Commission [1981] P.N.G.L.R. 178, the National Court had cause to consider whether compliance with an equivalent section to s. 208 (i.e. s. 184 of the Provincial Government (Electoral Provisions) Regulations 1977) was mandatory or not. In that case the petition did not contain the signatures of attesting witnesses. The court there found that the equivalent to s. 210 meant that unless the requirements of the equivalent of s. 208 and s. 209 were complied with, there could be no proceedings in the National Court as a matter of law. The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with.
It may be said that the requirement that a witness’s occupation must be stated is not important or that it is not suitable to the circumstances of the country. But the method of disputing an election given by s. 206 and s. 208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra)).
Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210.
Section 217 of the Organic Law on National Elections is as follows:

217. REAL JUSTICE TO BE OBSERVED
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 the law of evidence or not.

This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v. Antony Temo (supra) and we are in agreement with what was said there, namely (at p. 180):

“However, in my view, this provision is not applicable in considering the preliminary point raised here. This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss. 184 and 185 equivalent to ss. 208 and 209 of the Organic Law of the Regulation (as applied). This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit. To read s. 193 of the Regulation [identical to s. 217 of the Organic Law] as applicable to this preliminary point is to bring it in conflict with the intentions of s. 186 [s. 210 of the Organic Law]. These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statutes that an Act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another; see Maxwell on the Interpretation of Statutes (12th ed. 1969), Ch. 9 ‘Construction to Avoid Collision with Other Provisions’. Sections 186 [s. 210 Organic Law] and 193 [s. 217 Organic Law] deal with different subject matters.”

It is quite clear to us that s. 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only: See Ithaca Election Petition; Webb v. Hanlon [1939] Q.S.R. 90.
Mr. Sam submitted on the strength of s. 217 of the Organic Law that it is sufficient that s. 208 is substantially complied with. If the legislature intended that substantial compliance was sufficient it would have said so in the provisions. Substantial compliance is intended for other matters in the Organic Law. As an illustration, s. 86 sets out the requisites of nomination as candidate. There is a clear intention by the Parliament that substantial compliance with the requisites would be satisfactory. This intention is clearly expressed in s. 88. In our view, the absence of a similar provision. In relation to requisites for a petition shows the contrary intended that every one of the requisites must be complied with strictly.
We would answer Question 1 as follows:

Question 1
An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.

(Emphasis added.)

36. These principles have been affirmed in subsequent cases including Amet v Yama (2010) SC1064 and Dekena v Kuman(2018) SC1715.

37. Form 1 to Schedule 2 of the EP Rules is not specifically contained in s 208 of the Organic Law. Questions arise as to whether the contents of the Form can be said to be part of “the requirements of Sections 208 and 209” which must be complied with for the purposes of s 210 of the Organic Law in circumstances where his Honour specifically found that the petition did not comply with that Form (or the EP Rules), and further whether other findings of his Honour concerning non-compliance similarly meant that the petition contravened s 208. It is helpful at this point to turn to the submissions of the parties in respect of this issue.

Submissions of the parties

38. In summary the applicant submitted:

• Rule 4 states that the petition shall be in accordance with Form 1.
• The Form 1 template separates the Facts and the Grounds, requiring the Facts and Grounds to be pleaded separately. In this case the petitioner lumped the Facts and Grounds together and pleaded them under a single heading “THE FACTS &THE GROUNDS”. The primary Judge agreed that the Facts and Grounds were not pleaded separately and therefore the petition was non-compliant with the EP Rules.
• There is authority that it is a requirement of s 208 that the facts must be set out, and that the Facts and Grounds in a petition are two separate things and must be pleaded as such. It follows that the separation of Facts and Grounds by Form 1 of the EP Rules is foreshadowed by s208(a) of the Organic Law and cannot be dispensed with under r 22.
• Insofar as the petition failed to nominate the Electoral Commission as the second respondent in the petition, the petition contravened r 3 of the EP Rules. His Honour found that the naming of the second respondent in this case was clearly erroneous. In light of this finding, the Court ought to have dismissed the petition.
• The signature panel in Form 1 of the EP Rules requires the petitioner to make a supplemental statement beside his signature stating that he was either a candidate at the election in dispute, or a person who was qualified to vote in the election. His Honour agreed that the signature panel did not have the supplemental statement declaring the capacity of the petitioner and that in this respect the petition was non-compliant with the EP Rules. The supplemental statement was a direct import of s208(c) of the Organic Law, and could not be dispensed with under r22 of the EP Rules. The finding of the primary Judge that the description of the petitioner as a candidate was pleaded elsewhere in the petition could not be relied on.
• Even if the Court had power to dispense with the EP Rules, it exercised its discretion on 24 October 2018 when his Honour formally refused the petitioner’s application for dispensation. It was a miscarriage of justice for the Court to revisit the issue of dispensation on its own volition.
• His Honour erred in finding that the form and content of the petition were not part of the bundle of requirements under the Organic Law. The EP Rules are an extension of the Organic Law to provide procedures for objections to competency under s 210 of the EP Rules. There is authority that the EP Rules must be strictly complied with because they regulate the conduct of election petition proceedings : Patrick Basa v Bob Dadae (2013) N4991 at [24], Pok v Palme (2018) N7214 at [27], Mai Dop v Wake Goi (ureported, Batari J, 26 January 2018 at [25])
• The use of the word “shall” denotes a mandatory application of the provision of the EP Rules, including Form 1.

39. The first respondent submitted, in summary:

• In relation to the alleged failure of the petition to separate facts from grounds,
  • (a) The objector’s ground of review is confusing because it fails to make clear which of three alleged errors (ie favouring substantial compliance over strict compliance, finding that non-compliance as to form had no material effect on petition, and absence of discretion under r 22 of the EP Rules) constituted the error of law complained of, and whether each were to be considered individually or collectively;
  • (b) The ground of review has no merit because, inter alia, it fails to challenge the procedure adopted and fails to show the findings made were not open to the primary Judge;
  • (c) The ground does not show how findings were not open. As long as a petition complies with ss 208 and 209 the Court must allow the petition to proceed to hearing.
  • (d) The Court should not add additional requirements outside the express requirements of ss 208 and 209 – the sections should be read as they are without additional words, phrases or meanings.
  • (e) Questions of form should not stand in the way of substance.
  • (f) Whether the respondents were prejudiced in the defence of the petition by failure to comply with form, was a relevant factor.
  • (g) Rule 22 of the EP Rules made it clear that the Court can dispense with a requirement of the EP Rules unless it is a requirement of the Organic Law. It follows that there is a clear demarcation between requirements of the EP Rules and requirements of the Organic Law.
  • (h) Instances of non-compliance with the rules are not part of the bundle of requirements under s 208 of the Organic Law.
  • (i) To the extent that the primary Judge found that substantial compliance with Form 1 was not essential, his Honour was entitled to rely on s 217 of the Organic Law : Dion v Konga(2018) N7210.
• The first respondent repeated and relied on these submissions in respect of other aspects of alleged non-compliance of the petition.
• In relation to the applicant’s claim concerning error in exercise of discretion in failing to dismiss the proceedings, the petitioner also submitted that the ground failed to state the law on proper exercise of discretion and how the trial Judge misapplied the principles in the exercise of discretion.

40. The Electoral Commission submitted, in summary:

• The EP Rules are derived from the Organic Law and must be complied with in respect of election petitions
• Once the primary Judge had refused the application of the petitioner to dispense with the EP Rules it was not possible to revisit that decision on the Court’s own initiative without hearing the parties
• The primary Judge did not have discretion to dispense with mandatory requirements under the Organic Law, including the statement by the petitioner as to whether he was a candidate or a voter

Consideration

41. The starting point in consideration of this aspect of the case is that it is common ground that the petition in question was not in accordance with Form 1 of Schedule 2 to the EP Rules. His Honour so found at various points of the primary judgment, and ultimately at [36] where his Honour stated:

I uphold the respondents’ contention that the petition is non-compliant with the Rules in the four respects contended for...

42. In our view, at this point his Honour erred as a matter of law in not striking out the petition as incompetent. We so find for the following reasons.

43. First, r 4 of the EP Rules is phrased in mandatory terms. According to that rule, the petition shall be in accordance with Form 1, not “substantially” in accordance with Form 1. It is not in dispute that the petition was not in accordance with Form 1.

44. In Kandiu v Parkop (2015) SC1597 the Supreme Court examined the provisions of O 5,r 19 of the Supreme Court Rules2012 which relevantly provided:

9. The Application for Review shall;

(a) state that the Application lies with leave and states the date on which leave was granted; and
...

45. In commenting on this provision, Davani J observed:

40. Order 5 Rule19 (a) is in mandatory terms, that the application must state the date when such leave was granted. It is not acceptable, that a lawyer having allowed the defect to remain on the application, then comes before a Court of law, in this case the Supreme Court, and informs it that the date on the Application is a typographical error. That is unacceptable.

46. Her Honour then continued:

41. There have been many cases in this jurisdiction which were dismissed for parties’ failure to comply with the requirements of the Organic Law on National and Local Level Government Elections (‘Organic Law’) and the Election Petition Rules 2002 as amended (‘EP Rules’).
42. One such case is Paru Aihi v. Peter Naime Isoaimo and Electoral Commission of Papua New Guinea (2014) N5691. This was a case where the Petitioner had failed to pay the security for costs in the correct account.
43. In that case, the Petitioner’s submissions were that he did pay K5,000.00 security deposit, however he paid it at a place other than the National Court Registrar’s account at the nominated bank. When the Petitioner presented at the Waigani National Court Registry to file the Petition, the receipt was rejected by the Registry Staff because the K5,000 was paid into a wrong account. The relevant provision on security for costs is Rule 5 of the EP rules which states that the deposit shall be paid at the Registry at the time of filing (5) (2)) and that the evidence of the payment shall be immediately forwarded to the Registrar after payment is paid into the National Court Registrar’s Trust Account (PNGBC – Account No – 202/006/551) (Rule 5 (3)) (my emphasis).
44. Indeed, those provisions are mandatory, which was why the Registrar refused to accept the receipt because the deposit of K5,000.00 was paid into a wrong account.

47. Her Honour subsequently said:

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive (2010) SC1089).

48. As recently as Baindu v Yopiyopi(2019) SC1763 at [9], Hartshorn J reiterated the mandatory effect of the word “shall”.

49. Second, the suggestion by the petitioner that substantial compliance with provisions of the EP Rules is sufficient compliance, is consistent with neither the language of the EP Rules nor with the statutory and historical context in which the EP Rules were promulgated. In considering the importance or otherwise, of strict compliance with the EP Rules, and the fact that they were made pursuant to the Organic Law to facilitate the process of making petitions, it is relevant to have regard to that context and the purpose of the EP Rules as well as the language used: Somare v Nen(2018) SC1722 at [28]; PNG Ports Corporation Ltd v Kennedy(2017) N7040 at [83].

50. The EP Rules regulate the practice and procedure relating to election petition proceedings, having been promulgated by Judges of the National Court in accordance with s 184 of the Constitution and s 212(2) of the Organic Law. It is apparent from r 22 of the EP Rules that not all Rules are “a requirement” of the Organic Law, however as is also apparent from the terms of r 22 some Rules are. (We note, of course, that Rule 22 does not give effect to the requirements of the Organic Law, and indeed anything in the EP Rules which was inconsistent with the Organic Law would itself be invalid.)

51. As is further apparent from an examination of the EP Rules, they establish a framework prescribing the proper process whereby an election petition is brought to the National Court, and provide guidance to all parties as to that process. While the EP Rules are not part of the Organic Law, they nonetheless complement it in respect of petitions in the National Court, and are part of the legislative scheme whereby a challenge to an election result can be made. Read against this background, the prescribed steps in the EP Rules referable to the preparation of a petition set out (to paraphrase comments of the Supreme Court in another context):

... a detailed procedure the effect of which would be lost if it was held not to be mandatory.
(Madang Timbers Ltd v Kambori [2009] SC1000 at [38])

52. Historically, as is made clear by such cases as Kandiu v Parkop, the Court has taken a strict approach to compliance with provisions of the EP Rules. This is not to derogate from the primacy of the Organic Law over the EP Rules in accordance with the hierarchy established by s 9 of the Constitution. However the approach historically taken by the Courts in relation to compliance with the EP Rules is not surprising given the context in which they have been promulgated, as well as the extreme seriousness of circumstances attendant on the filing of election petitions and challenges to the electoral process, as explained in such cases as Biri v Ninkama. In our view it is appropriate to give effect to the EP Rules in the context of their promulgation pursuant to the Organic Law and in light of the strict approach to compliance with petition requirements. More recently in Palme v Pok (2018) N7214 Pitpit J observed:

24. The Rule also, had to be accorded its substance and purposes. The Rules were to ensure and give effect to the special rights of the citizens to freely choose their leaders. The leader has been identified and elected by the majority of the voters. The decision of the majority is being challenged by one person or even thousands, but he or she who wishes to challenge the decision of the majority now has the special right to do so through the petition process. He or she must comply with all the requirements. The process of choosing a leader is a very expensive exercise in this country. For, this and the fact that the decision of the majority is being challenged and all other considerations, the petitioner is required to strictly comply with all the requirements under law (Organic Law) and the Rules in order for his or her grievances to be heard.
25. Section 217 has correctly been accorded its place by the Supreme Court in Biri v Ninkama [1982] PNGLR 342, strict compliance with ss.208, 209 and the complimentary provisions of the law be it, the Organic Law or the Rules. Objectives of the Rules to ensure Standard practices must continue to be pursued until it becomes embedded, to be distracted by sentimental speculations and sway to the liberal approach in the application of S.217 in this particular instance is counter impossible.

53. Further, in relation to the absence of an attestation clause of a witness compliant with Form 1, Batari J in Mai Dop v Wake Goi said:

24. The new form, as is with other rules in the Election Petition Rules, 2017 expressed in mandatory terms, exists for compliance. Rules are promulgated not to decorate pages and shelves. Rules of practice authorized under legislative and constitutional laws exist to guide and safeguard law enforcement and court processes against tardiness and abuse, frivolous and vexatious causes. Rules also exist to augment judicial governance and promote efficient and speedy disposition of cases. Compliance is desirable to give meaning to and enhance the purpose for which the rules exist to serve.
25. For election petitions, the general feel and common emphasis is strict compliance with provisions of the Organic Law on National and Local-Level Government Elections and the National Court Election Petition Rules and the Supreme Court Election Petition Review Rules. It has been said many times over, a challenge to an election result or return is such a serious matter that the petitioner must in essence be efficient in his or her approach and compliances to ensure his or her petition is properly drafted, filed and prosecuted. An intending petitioner has that onerous burden in filing and prosecuting his or her petition. Failure to comply may result in the summary dismissal of the petition, unless good cause is shown for exercise of judicial discretion to extend time or waive compliance.

54. Third, it is clear from r 22 of the EP Rules that the National Court has power to dispense with compliance with some, although not all, of the EP Rules. In accordance with the legislative hierarchy established by s 9 of the Constitution, the Court cannot dispense with compliance with those EP Rules which are a requirement of the Organic Law. We will turn to such provisions shortly. However the fact that r 22 allows the Court to dispense with any of the requirements of the EP Rules suggests that, unless such dispensation is granted, all parties are required to comply with them.

55. Fourth, we again note the decision of the primary Judge to refuse the petitioner dispensation to comply with the EP Rules. More than that – the petitioner specifically sought dispensation to comply with r 4 and Form 1 of the EP Rules insofar as it is a requirement to:

(a) name the Second Respondent as the “ELECTORAL COMMISSION”; and
(b) insert the word “PETITION” in the designated space; and
(c) set out the Facts and Grounds of the Petition separately.

56. We note that, in respect of the failure to name the second respondent as the “ELECTORAL COMMISSION”, the petitioner also contravened r 3 of the EP Rules. No application for dispensation from that rule is, however, apparent.

57. The refusal of his Honour during the course of the hearing to dispense with the requirements of the EP Rules was expressed in the following terms:

I refuse the application to dispense with the requirement of the rules at this stage at least, as I consider that the issues as to the apparent noncompliance of the actual petition with the form of the petition required by the rules is something that goes to the competency of the petition in that it is an issue that needs proper consideration and proper consideration of those issues can, in my view, only be heard and determined by hearing and determining notices of objection which raise these issues. I do not think my ruling to refuse the application at this stage is of prejudice to either the petitioner or the respondents. I do not consider that it is an abuse of process for the petitioner to have filed this motion and I do not think it should be held against the petitioner that this is a late application.
I appreciate the tactical reasons as counsel indicated that motion has been filed out of an abundance of caution. I appreciate the tactical reasons for filing the motion...
And I am hearing in particular from the respondents that – and also from the petitioner in submissions on his behalf that there are recent cases that have addressed these very issues of noncompliance with the form of the petition required by the rules. So as I indicated earlier, I consider that these sorts of issues can only be properly even fully ventilated at the hearing of the objections to competency. So for all of those reasons, I order in response to the petitioner’s notice of motion filed 28 September 2018: (1) the application for dispensation with the requirements of the rules is refused; and (2) costs shall be in the cause.

58. In the reasons given for this ruling his Honour took the view that:

• The issues raised by the petitioner went to the competency of the petition, which would require more detailed consideration by his Honour after hearing the objections; and
• The refusal of the application for dispensation would not prejudice either petitioner or respondent at that stage.

59. We respectfully have difficulty following this reasoning. If the issues in respect of which the petitioner sought dispensation went to the competency of the petition itself, then presumably any rulings in respect of dispensation would be irrelevant on the basis that matters going to competency could not be dispensed with. On the other hand, if there was a prospect that his Honour could properly exercise his discretion in favour of the petitioner and their apparent want of compliance with the EP Rules at a later stage, and that this would also have an effect on the competency of the petition, it is curious that his Honour did not defer determination of the application for dispensation until further argument had been made.

60. As matters transpired, his Honour refused dispensation of the requirements of the EP Rules in respect of the matters the subject of the petitioner’s application. The effects of this ruling were that:

• Irrespective of arguments going to the requirements of the Organic Law, the petitioner had failed to comply with the EP Rules including r 4;
• The present applicant had a final ruling in his favour in respect of the application for dispensation brought by the petitioner. The present applicant was entitled to rely on that ruling; and
• In circumstances where neither party sought to revisit that ruling, it was binding on both parties.

61. The fact that his Honour took the view that the ruling would not prejudice either the petitioner or the present applicant is irrelevant if, as happened, the effect of the ruling actually did prejudice either party.

62. The approach of his Honour in the primary judgment was to, effectively, undo the ruling he had made in relation to the application for dispensation, without notice to either party. Indeed we note that his Honour in the primary judgment justified his findings concerning the competency of the petition by reference to r 22 and his view that he retained an ongoing power to dispense with the EP Rules in that case (notwithstanding his earlier ruling on this precise point).

63. Further, we note that his Honour determined that the Court would not dispense with the EP Rules – which provided, for example, in respect of r 4 that the petitioner was required to comply – but subsequently in the primary judgment found that such failure of compliance was not critical having regard to the nature and extent of the non-compliance.

64. In our view this process of reasoning is fundamentally flawed.

65. Fifth, and in any event, even if his Honour had made a ruling in favour of the petitioner pursuant to r 22 it is in our view likely that this ruling would have been made in error. This is because the petition exhibited a fatal flaw in contravention of s 208(a) of the Organic Law, and could not be remedied by dispensation pursuant to r 22, namely the failure of the petition to separately plead facts and grounds. His Honour clearly found that the petition failed to separately plead facts and grounds (and indeed struck out grounds 1-6 of the petition for reasons including failure to plead facts). A mixture of facts and grounds on which the petitioner relies is not “facts” as required by s 208(a). In Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99 the following question was referred to the Supreme Court :

What is the meaning of “facts” under s 208(a) of the Organic Law?

66. In that case Kapi DCJ explained:

This case was followed by Bredmeyer J in Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372.
The English position is also discussed by Bredmeyer J in the above named case. The English position may be summarised in the rules set out in the judgment of Bredmeyer J (at 374):

“the petition must state ‘the grounds on which the relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved.’ ”

Section 212(1)(f), (h) and (i) of the Organic Law gives the National Court power to invalidate an election or return. Section 212(2) of the Organic Law gives the National Court a wide discretion upon which an election or return may be invalidated. In terms of the section, the National Court may exercise the power “on such grounds as the Court in its discretion thinks just and sufficient”. Section 212(3) of the Organic Law specifically provides for the ground of illegal practices.
The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
(Emphasis added.)

67. These principles were subsequently applied in Mune v Agiru (1998) SC590 and Tulapi v Lagea (2013) N5235.

68. The applicant in this case submits that separating the facts from the grounds is not a matter of compliance with the form – it is a matter of substance insofar as concerns the competency of the petition and compliance with s 208(a) of the Organic Law. We agree.

69. In this context we also note the submission of the applicant that the petition was incompetent as contravening s 208(c) because the petitioner did not state in the signature panel his qualification as a candidate or voter. While the failure of the petitioner to include a supplemental statement in the signature panel that he was a candidate or a voter clearly did not comply with Form 1 and therefore r 4 of the EP Rules, is not necessary for us to make any conclusive findings in respect of this issue as to whether there was also a contravention of s 208(c). Section 208(c) requires that the petition be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election. The relevant qualification of the person signing the petition should be evident on the face of the petition. We also note, however, that s 208(c) can be contrasted with s 208(d), which requires that the occupations and addresses of two witnesses to the election petition are stated. The fact that there is no equivalent requirement of “statement” in s 208(c) suggests that, strictly, it is not necessary that the person’s qualification as a candidate or voter be stated in the signature panel. On the other hand, the contravention of r 4 by the absence of proper statement in the signature panel of qualification of the person signing the petition creates the other issues of competency already discussed.

70. Finally we reject the submission of the petitioner that his Honour was empowered by s 217 of the Organic Law to exercise a discretion to permit the petition to go to trial. Section 217 provides:

217. REAL JUSTICE TO BE OBSERVED.
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 the law of evidence or not.

71. Section 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits: SCR No 1 of 1990; Re Recount of Votes [1990] PNGLR 441 per Kapi DCJ, Leonard v Wesley (2014) N6552 at [18]. An example of the potential operation of s 217 was given by Kapi DCJ in Baira v Genia and Electoral Commission (1998) SC579:

In the circumstances, whether, or not, a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election

72. Similarly in Review Pursuant to Constitution Section 155(2)(b); Application by Ben Semri (2003) SC723, the Supreme Court observed as follows:

Counsel for the Applicants objected to this paragraph at the trial on the basis that the relevant facts to which these evidence relate to were not pleaded in the grounds of the Petition. They contended that paragraph was not relevant as those facts were not pleaded. In addition, they submitted that it was also unfair to the Applicants for the Petitioner to be permitted to introduce such evidence, because they were not given notice of the relevant facts in the Petition.
This issue raises the technical rules of evidence and the trial judge ruled in the following terms:
...

In my view, s.217 provides the answer to the respondents objection and submissions. After the Petition passed the competency test under s. 210, the rules of procedure and evidence have not changed. Procedural issues as to pleading of facts in a Petition, pleading of evidence in a Petition and so on become irrelevant after the hearing. Likewise, technical evidentiary issues such as whether or not the evidence sought to be introduced by the Petitioner pertains to facts pleaded in the Petition on the grounds of unfairness to the respondents, become irrelevant at the trial. The guiding principle is whether the evidence sought to be introduced is relevant or material to the substantive merits or issues before the court. The evidentiary matter of how many completed ballot papers were contained in ballot box 0056 and the votes from the box scored by each candidate are relevant and material to the substantive issue of whether the error or omission alleged in the Petition; which is admitted by the respondent; that is, this ballot box did not have affixed to it inner and outer seals at the time it was delivered by the electoral officials for counting purposes did affect the result of the election. In terms of unfairness, and "real justice" or to use the words of s 217, "substantial justice and good conscience," it would not prejudice any party for such evidence to be allowed, because such evidence or information is a matter of public knowledge disclosed publicly at the time of counting that box, and it is known to all the parties in this case. Even of neither party were prepared to call this evidence, this court, in the exercise of its power conferred by s. 212 (1) (b), (c) and (e) can call that evidence itself or require the parties to call that evidence. For this trial would be incomplete and material issues as or agreed between the parties to the result of the election being affected, would not be completely resolved, without this evidence.
For these reasons, I overrule the respondent’s objection and permit the Petitioner to call such evidence or adduce it in cross-examination of the respondent’s witnesses."

We agree entirely with the ruling of the trial judge and we would dismiss this ground of review.

73. In this case the primary Judge was concerned only with whether the petition should go to trial. At trial, s 217 of the Organic Law would be relevant in respect of the assessment of evidence. It is not relevant in determining whether the petition is competent.

74. It follows that the petition was incompetent, and there was no room for his Honour to exercise a discretion to permit any aspect of it to go to trial.

75. Accordingly, the review is allowed. In the circumstances it is unnecessary for us to examine the other grounds of review, including those concerning ground 7.

THE SUPREME COURT ORDERS THAT:

1. The review be upheld.
2. The decision and orders of the National Court of Justice dated 30 October 2018 on the objections to competency be quashed.
3. Electoral Petition EP 25 of 2017 James Puk v William Duma & Patilias Gamato, Electoral Commissioner of Papua New Guinea be dismissed as incompetent.
4. The security deposit of K5,000.00 be refunded to the Applicant.
5. The First Respondent pay the Applicant and the Second Respondent’s costs of the Review, to be taxed if not otherwise agreed.

_________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant
Mel & Henry Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent