|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO 13 OF 2018
REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)
PETER CHARLES YAMA
Applicant
V
JERRY SINGIROK
First Respondent
ELECTORAL COMMISSION
Second Respondent
Waigani: Salika CJ, Batari J,
Mogish J, Cannings J, Anis J
2020: 23rd June, 6th August
ELECTIONS –National Parliament – participation of disqualified candidate – whether acceptance by Electoral Commission of nomination of disqualified candidate is a ground on which election can be declared void –Organic Law on National and Local-level Government Elections, s 218– whether petitioner obliged to allege and prove that participation of disqualified candidate affected result of election.
ELECTIONS – candidates – qualifications – Constitution, s 50 (right to vote and stand for public office), s 103 (qualifications for and disqualifications from membership) – whether a person still on parole in relation to sentence for indictable offence is “under sentence” for purposes of s 50(1)(a) and s 103(3)(c)–relationship between Constitution, ss 50(1)(a) and s 103(3)(c) and Constitution s 103(3)(e) – whether s 103(3)(e) has the effect of imposing a lifetime disqualification on a person who has been convicted of an indictable offence.
ELECTIONS – qualifications of candidates – jurisdiction of National Court to determine questions as to qualifications of persons to be or remain a member of the Parliament – Constitution, s 135.
PRACTICE AND PROCEDURE –objection to competency of proceedings made orally and without notice – abuse of process.
The third-placed candidate in an election for the National Parliament disputed, in a petition addressed to the National Court, the validity of the election of the successful candidate on the ground that the second-placed candidate was unlawfully permitted to participate in the election (due to him, despite being on parole, being “under sentence” for an indictable offence of more than nine months, and therefore disqualified under ss 50(1)(a) and 103(3)(c) of the Constitution). The National Court upheld the petition, finding that the second-placed candidate was disqualified under s 103(3)(c), and that his presence in the count up to the final elimination may have affected the order in which other unsuccessful candidates were eliminated and may have allowed other candidates to benefit from his preference votes. The National Court set aside the declaration of the poll and return of the writ, declared that the election was void and ordered a recount, to be conducted on the basis that the disqualified candidate’s first-preference votes would be treated as though he had already been eliminated. The successful candidate, aggrieved by the decision of the National Court, and having been granted leave, applied to the Supreme Court for review under s155(2)(b) of the Constitution of the decision of the National Court. His principal contention was that the National Court erred in law by not requiring the petitioner (the first respondent in the Supreme Court review) to plead and prove under s 218(1) of the Organic Law on National and Local-level Government Elections that the error of the Electoral Commission (the second respondent) in accepting the disqualified candidate’s nomination, affected the result of the election, and that the National Court decided to declare the election void on the basis of conjecture and speculation that participation of the disqualified candidate may have affected the result. Other arguments of the applicant were: that the National Court misconstrued ss 50(1)(a) and 103(3)(c) of the Constitution; that the trial judge had failed to properly deal with an objection to competency of the petition; that the trial judge erred in law by consolidating two petitions against validity of the same election and hearing the petitions together; and that the trial judge erred by not allowing an affidavit into evidence that would have shown that one of the attesting witnesses to the first respondent’s petition had misstated his occupation, rendering the petition a nullity. At the hearing of the application for review, the first respondent (the petitioner in the National Court) objected to the competency of the application on the ground that the form of the application for review was non-compliant with the mandatory requirements of the Supreme Court Rules due to the failure to annex to the application for review, a copy of the judgment or order of the National Court. It was argued that the non-compliant form of the application deprived the Court of jurisdiction, and for this reason the application should be dismissed. As to the merits of the application the first respondent argued that there was ample evidence to demonstrate that the result of the election was affected by the error of the Electoral Commission in allowing a disqualified candidate to contest the election, and that the National Court made no errors in its decision.
Held:
Per Salika CJ, Batari J, Mogish J, Cannings J:
(1) The objection to competency was an abuse of process and was without merit and was dismissed.
(2) The second-placed candidate was disqualified under ss 50(1)(a) and 103(3)(c) of the Constitution as he was, despite being on parole, under sentence of imprisonment for a period of more than nine months.
(3) The Electoral Commission wrongly accepted the second-placed candidate’s nomination, which amounted to an “error ... of an officer” for purposes of s218(1) of the Organic Law, and provided a ground on which the result of the election could potentially have been avoided.
(4) Prior to upholding a petition under s 218(1) the petitioner needs to plead and prove that the error in question did actually (not possibly or probably) affect the final result.
(5) The primary judge erred in law by (a) not requiring the petitioner to prove that the result of the election was affected; and (b) upholding the petition on the basis of conjecture that the result of the election may have been affected by inclusion of the disqualified candidate. The applicant’s principal contention was upheld.
(6) The applicant’s other arguments were without substance.
(7) The application was granted, the orders and declarations of the National Court were quashed and it was declared for the avoidance of doubt that the applicant was the successful candidate. The Electoral Commission was ordered to pay the costs of both the applicant and the first respondent.
Per Salika CJ and Batari J:
(8) The first respondent, or any other candidate, ought to have challenged the qualifications of the second-placed candidate immediately after his nomination had been accepted, invoking the original jurisdiction of the National Court under s 135 of the Constitution, rather than waiting until after the return of the writ to challenge the result via an election petition.
Per Anis J (dissenting):
(9) The application for review was non-compliant with the Supreme Court Rules, the objection to competency was made on good grounds and therefore the application for review ought to be dismissed.
Cases Cited
The following cases are cited in the judgment:
Application by Ben Semri (2003) SC723
Benham Satah v Rabura Mataio (2016) SC1548
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Electoral Commission v Bire Kimisopa (2019) SC1810
Father Louis Ambane & Electoral Commission v Thomas Tumun Sumuno (1998) SC565
In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917
Kevin Masive v Iambakey Okuk [1985] PNGLR 263
Luke Alfred Manase v Don Pomb Polye (2009) N3718
Michael Kandiu v Powes Parkop (2015) SC1597
Nipo Investment Ltd v Nambawan Super Ltd, Luther Sipison, Secretary of Lands and Physical Planning and The State (2017) SC1642
Nominees Niugini Ltd v IPBC (2017) SC1646
Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354
Reipa v Bao [1999] PNGLR 232
Sir Arnold Amet v Peter Charles Yama [2010] 2 PNGLR 87
Supreme Court Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214
The State v James Yali [2005] PNGLR 468
The State v James Yali (2006) N2989
William Hagahuno v Johnson Tuke &Electoral Commission (2020) SC1966
Yali v Yama & Electoral Commission and Singirok v Yama & Electoral Commission (2018) N7145
APPLICATION
This was an application for review under s 155(2)(b) of the Constitution of a decision of the National Court on an election petition.
Counsel
P B Lomai, for the Applicant
B S Lai, for the First Respondent
6th August, 2020
1. SALIKA CJ: This is an application pursuant to s155(2)(b) of the Constitution by Peter Charles Yama for a review of the decision of Higgins J in the National Court, given on 1 March 2018 in proceedings EP No 69 of 2019.
2. The parties in the proceedings were:
Jerry Singirok - petitioner
Peter Charles Yama - first respondent
Electoral Commission - second respondent.
3. Leave for review was granted on 19 March 2018.
FACTS
4. The applicant is the winning candidate in the 2017 General Elections for the seat of Madang Provincial Electorate. Among other candidates who nominated as candidates for the same seat were James Yali, the first runner-up, and Jerry Singirok, the second runner-up.
5. After the declaration of the winner and the return of the Writ for the seat of Madang Provincial Electorate, James Yali and Jerry Singirok each filed separate election petitions challenging the winning candidate’s win. EP No 63 of 2017 was the election petition filed by James Yali while EP 69 of 2017 was the election petition filed by Jerry Singirok.
6. James Yali’s election petition was premised on allegations of irregularities and inconsistencies committed by the Electoral Commission in the conduct of counting and the process involved in the counting of ballot papers.
7. The remedies he sought in his petition included orders of the Court to declare null and void Peter Charles Yama’s election win under the Organic Law on National and Local-level Government Elections and to order a recount.
8. The election petition by Jerry Singirok was premised on allegations of bribery and corruption and/or errors and omissions of the Electoral Commission in allowing James Yali to nominate and contest the seat of Madang Provincial Electorate.
9. Jerry Singirok’s election petition alleged that James Yali was not constitutionally allowed to nominate because he was a convicted felon who was still serving a sentence of more than nine months at the time and as such, was not qualified to be a member of Parliament pursuant to s 103(3)(c) of the Constitution. His nomination to stand for public office in the 2017 General Elections was therefore invalid.
10. Peter Charles Yama in both election petitions filed an objection to competency while the Electoral Commission, who is the second respondent, did not.
11. At the conclusion of submissions on competency, the Court in an extempore decision dismissed the objections raised by the applicant and ruled that sufficient facts were pleaded to constitute grounds to invalidate the election return of the applicant and as such, that he was satisfied that there was compliance with s 208(a) of the Organic Law on National and Local-level Government Elections.
12. Upon dismissal of the competency applications, the trial of the petition of James Yali began. At the close of the case for the petitioner James Yali, a “no-case” submission was made by the respondents but dismissed. The Court directed the respondents to present their respective evidence by affidavit. This was done and after the completion of the trial relating to the petition of James Yali, the Court set a date to hand its decision in the matter of EP No 63 of 2017.
13. The Court proceeded to hear the petition of Jerry Singirok, EP No 69 of 2017. The respondents raised issues on objection to competency. The first respondent sought to adduce fresh evidence to rely on the affidavit of Simon Dunde, but the learned trial judge refused to have the subject affidavit admitted into evidence.
14. Higgins J went on to hear the petition of Jerry Singirok. The trial proceeded to adduce evidence by the tender of affidavits. At the end of the petitioner’s case, a “no-case” submission was made but the learned trial judge dismissed the “no-case” submission. The Court proceeded to obtain the evidence of the respondents and at the end received written submissions and a date for the decision was allocated.
15. The decisions on the two election petitions were delivered on 1 March 2018. His Honour made the following orders:
(i) Yali’s election petition dismissed with costs to the first respondent.
(ii) The second respondent was to bear its own costs.
(iii) Jerry Singirok’s election petition is upheld, the declarations of the poll and return of the Writ is set aside and the election declared void.
(iv) The second respondent is to pay the costs of Jerry Singirok and the first respondent.
(v) There will be a recount of the votes cast and conducted in accordance with these reasons.
16. It is from the decision handed down on 1 March 2018 that the applicant filed this application for review.
PRELIMINARY APPLICATION: OBJECTION TO COMPETENCY
17. The first respondent’s lawyer Mr Lai made an oral application objecting to the competency of the applicant’s application in this matter.The application was made orally at the bar table at the time of the substantive application.
18. Mr Lai submitted that the application for review was defective and therefore incompetent as the applicant did not fully comply with the requirements of Order 5, Rule 19(e) of the Supreme Court Rules in that a copy of the decision or order of the National Court was not attached.
19. I have read Cannings J’s draft decision on this point and agree with him in dismissing the objection to competency for the reasons he advanced, especially as the objection was made orally, without any proper application filed, and the objection is based on outdated and repealed Rules of Court made in 2002. The first respondent’s objection is incompetent for the same sorts of reasons he alleges that the application is incompetent. I therefore dismiss the objection to competency.
GROUNDS
20. The applicant initially stated eleven grounds of review but has abandoned grounds 4(i), 4(iv) and 4(ix). The balance of the grounds for review are reduced to eight. For ease of reference and understanding, I reproduce the remaining grounds:
(i) [Abandoned.]
(ii) There was no evidence from the petitioner Jerry Singirok before the trial judge that the votes from the petitioner Jerry Singirok affected or had the potential to affect or would have affected the result of the election. Despite lack of evidence the trial judge made orders to void the return of the writ and ordered a recount.
(iii) Alternatively, his Honour’s decision to order a recount was not supported by evidence.
(iv) [Abandoned.]
(v) The trial judge misapplied and/or misconstrued ss 50 and 103(3) of the Constitution to hold that James Yali was a member of Parliament when James Yali was in fact not a member of Parliament at the relevant time and therefore s 103(3)(c) does not apply to him.
(vi) Sections 208(a) and 209 of the Organic Law on National and Local-level Government Elections relates to the validity and/or competency of EP 69 of 2017. The trial judge ought to have seriously considered the issues raised in the competency applications and made a formal ruling in his written decision on the matter.
(vii) Alternatively his Honour failed to give reasons in his judgment on the objection to competency even though the competency issues raised in the objection was argued by lawyers for the parties. The failure to give reasons on competency issues have left the parties without remedies or grounds which should they wish to review his Honour’s decision of 1 March 2018. This is an error on the part of the trial judge which should render his decision on competency issues void and the objection sustained and the petition dismissed.
(viii) Alternatively as a matter of law the petitioner has not complied with the mandatory provisions of ss 208(a) and 209 of the Organic Law on National and Local-level Government Elections. The trial judge seems to have failed to address this vital issue, hence the trial judge’s decision is flawed as a question of law. The petition should therefore be dismissed.
(ix) [Abandoned.]
(x) The trial judge erred when he consolidated and heard both petitions together. This was in direct contravention of the order of Justice Colin Makail dated 30 January 2018.
(xi) The petition EP 69 of 2017 was defective by virtue of the fact that the first attesting witness Simon Dunde misled his occupation on the petition that he was a subsistence farmer when in fact he was a police sergeant in New Town in Madang Province. Simon Dunde’s affidavit was crucial to determine requirements as prerequisite to trial under ss 208 and 209 of the Organic Law on National and Local-level Government Elections but was disallowed by the trial judge. His Honour’s failure to allow the affidavit into evidence is an error and undermined the true spirit and essence of ss 208 and 209 of the Organic Law on National and Local-level Government Elections.
21. Before I embark on addressing the review grounds, I make the following observations.
JAMES YALI’S NOMINATION
22. James Yali was convicted on 13 December 2005 on a charge of rape by the National Court in Madang and on 19 January 2006 sentenced to twelve years imprisonment. He appealed the conviction and sentence to the Supreme Court. The Supreme Court dismissed his appeal and confirmed the conviction and sentence by the National Court. This public information and record is not disputed.
23. James Yali was found by Higgins J to be not qualified to be a candidate until his sentence expired on 12 December 2017. The Court further found that James Yali was not capable of being chosen as a member of Parliament before that date. His Honour did consider s 103(3)(e) of the Constitution, relating to disqualification for life, but decided it did not apply in this case.
24. To me, with respect, this was a logical and easy to understand decision for the learned trial judge to arrive at. With respect, I do not see any reason why the same decision could not have been arrived at by the Electoral Commission when the candidacy of James Yali was questioned. James Yali should never have been a candidate.This was all because the Electoral Commissioner and his legal team failed to properly read and apply the correct law, s 50(1)(a) and s 103(3)(c) of the Constitution and the case precedent of Kevin Masive v Iambakey Okuk [1985] PNGLR 263 (Supreme Court decision of Kidu CJ, Pratt J, Bredmeyer J, Amet J and Woods J). As a result of an erroneous decision by the Electoral Commission, a serving criminal was allowed to nominate for public office, making a mockery of and undermining the PNG electoral process.
25. Section 50 (right to vote and stand for public office) and s 103 (qualifications for and disqualifications from membership) of the Constitution say:
50.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
103.
(1) A member of the Parliament must be not less than 25 years of age.
(2) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f) he is otherwise disqualified under this Constitution.
(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until-
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.
(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—
"appeal" includes any form of judicial appeal or judicial review;
"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.
26. With respect, both s 50and s 103of the Constitution cited above clearly spell out the requirements for eligibility to nominate for elections to the National Parliament.
27. While PNG is a free country to exercise one’s freedom and human rights, it must be borne in mind that the freedom and the right to stand for or nominate for public office is not an absolute right. That right is regulated by law, s 50 and s 103 of the Constitution, and is not a simple “walk in the park” so to speak. Sections 50 and 103 of the Constitution quoted above give clear requirements for a person intending to hold elective public office to possess. The provisions of the Constitution give every eligible citizen the right to hold elective public office. That eligible citizen is then given a right to a reasonable opportunity to secure such elective office through the electoral process which must be “genuine, periodic and free”. See Supreme Court RefNo 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214.
28. In this case it is abundantly clear that James Yali did not meet the lawful requirements, thus it is plainly clear that James Yali was not an eligible citizen to be a candidate for election to National Parliament. I have no doubt he is a citizen, but not an eligible one for the reason that he was then a convicted prisoner of the State and still serving his 12-year sentence, even though he was on parole. He was not free then but still serving his 12-year prison term. The combined effect of the actions of the Electoral Commission and James Yali is that they breached s 50(1)(a) and s 103(3)(c) of the Constitution; the Electoral Commission by permitting James Yali to nominate as a candidate and James Yali by nominating.
29. The Electoral Commission needs to put in place a screening mechanism to quarantine every candidate who nominates to contest elections to become Members of Parliament and before commencement of polling as decided by the Supreme Court in Kevin Masive v Okuk & Another [1985] PNGLR 263. That process should be consistent with the Constitutional and Organic law provisions. In this case and cases from the past the Electoral Commission’s attitude has been “wait until after the elections and you can come by way of an election petition”. That lax attitude has a serious flaw as has happened in this case and that is an illegal candidate was allowed to nominate and, as a result, voters’ sacred votes were seriously abused and wasted.
30. The case precedent of Kevin Masive v Iambakey Okuk, which stands for the proposition that the National Court has jurisdiction to determine a person’s qualification to stand as a candidate in an election to the National Parliament after nominations have been declared under the Organic Law on National and Local-level Government Elections s 93 and before the commencement of polling, was never sought to be relied on to disqualify James Yali as a candidate by anyone. Any one of the properly qualified candidates including Jerry Singirok and Peter Yama was at liberty to challenge James Yali’s nomination as a candidate for the Madang Regional Electorate seat, pursuant to s 57 of the Constitution to enforce their right against a candidate not eligible and properly qualified. Sadly, none of the eligible candidates or any eligible voter on the common roll challenged James Yali’s illegal nomination and candidacy.
DEALING WITH THE GROUNDS OF REVIEW
4 (ii). There was no evidence from the Petitioner Jerry Singirok before the trial judge that the votes from Petitioner James Yali affected or had the potential to affect or would have affected the result of the Election.Despite lack of evidence the trial Judge made orders to void the return of writ and ordered a recount.
31. It is not a disputed fact that James Yali was not an eligible candidate to contest the elections in July 2017. There is no contest that James Yali polled 45,806 votes in the primary count. If the elections were run on first-past-the-post basis James Yali would have won the Madang Regional seat from Jerry Singirok who polled second in the primary count with 42,277 votes. Peter Yama was third with 36,019 votes.
32. With the second and third preference votes Peter Yama polled 85,382 votes to win the election, James Yali polled 72,763 votes and Jerry Singirok 61,850 votes.
33. If, right from the beginning, James Yali had been omitted as a candidate for the Madang Regional seat or any seat for that matter, that issue would never have arisen and, as to who would have won, is not known.
34. But James Yali was permitted to contest the election for the Madang Regional seat. There is no way of knowing how the 45,806 primary voters for James Yali would have voted if Yali was excluded from the start.
35. In relation to the second and third preference votes, again there is no way of knowing what the voters’ second and third preferences would have been without James Yali.
36. One thing for me is sure, the results would not be the same, but as to who would have won is not known.
37. The issue in relation to ground 4(ii) is whether there was evidence from Jerry Singirok to warrant an order for a recount on the basis that the votes from James Yali would have affected or had the potential to affect the results of the election.
38. James Yali, with respect, was an illegal candidate as ss 50 and 103 of the Constitution prevented him from being a valid candidate. Those who exercised their right to vote under s 50 of the Constitution for the illegal candidate were robbed of their sacred right to vote meaningfully for a valid candidate. Their votes mean something and must count towards the end result of the election. In this case their votes went to waste because they voted for an illegal candidate. The failure of the Electoral Commissioner to listen to good sound advice on the eligibility of James Yali’s nomination as a candidate, to me, with respect, is a clear breach of his constitutional duty. See Reipa v Bao[1999] PNGLR 232 (Los J, Woods J & Salika J).
39. As is evident from the evidence, James Yali polled 45,806 primary count or first preference votes. Those voters’ votes ultimately became meaningless and ended up as trash. They were a total waste. This is not how the 45,806 voters wanted their sacred votes to end up, or be treated.
40. I agree with the submission by the applicant that there was no evidence before the trial judge either from Jerry Singirok or any voters from the 45,806 voters who voted for James Yali, that had James Yali been omitted as a candidate his first preference vote would have been different and that they would have affected or had the potential to affect the result of the election. Had James Yali’s nomination been refused as it should have been, the voters would obviously have voted for any one of the valid candidates and the result would have been different, but there was no single evidence of that.With respect, the learned trial judge’s decision in that regard was flawed as it is not supported by the evidence and may have been reached on mere speculation only.
41. I would allow this ground of review for those reasons.
GROUND 4 (iii) Alternatively, his Honour’s decision to order for a recount was not supported by evidence.
42. This ground is put in the alternative but is effectively the same ground as in 4(ii). The learned trial judge found that James Yali was an illegal candidate, being a convicted prisoner serving 12 years imprisonment for the charge of rape. With respect, acceptance of his candidature and allowing him to poll votes nullified the entire election for the Madang Provincial Electorate seat. To me, with respect, the election for the seat was a nullity from the moment James Yali nominated and was accepted as a candidate to contest that seat. This is because allowing him to be a candidate was a breach or infringement of the Constitution.
43. Section 135 of the Constitution is a pertinent constitutional provision that can help this Court to address the issue at hand. It reads:
135. Questions as to membership, etc.
The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament; or
(b) the validity of an election to the Parliament.
44. The Supreme Court in Kevin Masive v Iambakey Okuk (supra) was referred the following question:
Once nominations have been declared under s 92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate?
45. The Court (Kidu CJ, Pratt J, Bredmeyer J, Amet J and Woods J) in answering that question held that:
(1) The National Court has jurisdiction to determine a person's qualifications to stand as a candidate in an election to the National Parliament after nominations have been declared under the Organic Law on National Elections, s 92, and before the commencement of polling.
(2) The words "to be" in the Constitution, s 135(a), are to be interpreted as meaning "to become".
(3) The word "election" in the Constitution, s 135(b), is to be interpreted as referring to the declaration of a person to be a successful candidate.
(4) The word "election" in the Organic Law on National Elections, s 206, is to be interpreted as meaning "return" and therefore an election petition can only be filed after the result of an election has been declared.
(5) Because the Constitution, s 50, guarantees a right to a citizen qualified to stand for election, to stand in a genuine election, it follows that a citizen properly qualified may seek, pursuant to the Constitution, s 57, to enforce such a right against a candidate not properly qualified.
46. This important Supreme Court decision which is a reported case is directly on point in relation to the present case before us. The difference between that case and this case is that in Masive v Okuk, Masive challenged Okuk’s candidacy after the nominations closed but before polling commenced relating to the by-election for the Unggai-Bena Open seat in the National Parliament. He exercised his right under s 57 of the Constitution to enforce his rights to challenge Okuk’s candidacy under s 50 and s 103 of the Constitution. In this case James Yali nominated and was permitted to be a candidate for the Madang Regional Seat in the National Parliament. Jerry Singirok who was also a candidate for the same seat challenged Peter Yama’s win for the seat on the basis that James Yali was not a qualified or eligible candidate. It is only now after the elections had been concluded and Peter Charles Yama declared elected that Jerry Singirok challenges James Yali’s candidacy. Under the Masive v Okuk precedent the challenge should have been before polling for the seat began and not after the election. Singirok and others ought to have challenged the candidacy before polling. That did not happen here. Why challenge now after the damage had been occasioned?
47. The Electoral Commission with its team of lawyers failed to assist this Court with that case precedent. Likewise, Jerry Singirok’s lawyer and Peter Yama’s lawyer failed to assist the Court in that regard as well. It is to be noted that the relevant issue relating to eligibility or otherwise of a candidate has been settled by the Supreme Court.
48. The only issue that this Court should address is whether the entire election for the Madang Regional Seat should be declared void, given James Yali’s ineligibility status to stand as a candidate for the Madang Regional Seat, and after all the candidates, including the illegal candidate, had the same opportunity to win.
49. I find great difficulty in accepting that a serious constitutional breach has occurred and then allowing the result to stand. This is a matter where a serious constitutional breach has occurred. On that basis alone it is enough in my respectful view to declare the entire election for that seat void. Perhaps another mode of proceeding to achieve that result is begging.
50. For now, this was an error and I agree with Cannings J, that this was a dubious error, for the reason that the Electoral Commission was advised appropriately by the then Secretary for the Department of Justice and Attorney-General in writing of the fact that James Yali was serving a jail sentence of more than nine months. Not once or twice, but three times. The then Secretary of the said Department was then also the Chairman of the Parole Board which made the decision to release James Yali on parole. His three letters should have been given proper respect and consideration. Yet the said letters of advice did not, for some reason only known to the Electoral Commission, find favour. James Yali a convicted felon still serving his prison term was allowed to be a candidate. In hindsight it was open to the Chairman of the Parole Board to challenge James Yali’s candidacy in Court pursuant to s 57 of the Constitution using the Masive v Okuk case precedent.
51. The Electoral Commission must be the first to have the decision of the Supreme Court in Masive v Okuk around its neck during the election process in future. The eligible candidate and eligible voter must be the second lot of persons to have the decision of the Supreme Court around their necks. This is to ensure no infringement of the Constitution is occasioned in future.
52. Even though he was a convicted felon still serving his prison term did not deter the 45,806 voters to give James Yali their first preference votes. Given that James Yali was a well-known figure and that he was a former Member of Parliament and that, it was public knowledge that he was a convicted felon, yet he still polled strongly and well and ended up being the runner-up to the winning candidate. I am of the view that the exercise of the free will to vote for a candidate of their choice was freely exercised and it was a decision the voters regrettably but consciously took. Moreover, all the other candidates for that seat, and perhaps voters on the common roll enrolled for that seat, did not exercise their rights under s 57 of the Constitution to challenge the illegal nomination of James Yali after the nominations were declared closed but before the polling commenced.
53. My view, with respect, is that even though James Yali was an illegal candidate, no one challenged him. Everyone was willing for all nominated candidates to have an equal or even chance to win. Every candidate knew that there would be only one winner and took their chances. James Yali did not win. Jerry Singirok did not win. The applicant won. Why should the applicant’s win be taken away from him when the opportunity to challenge James Yali’s candidacy was thrown away at the material time?
54. Had James Yali won, my view would be different. I find comfort in the case precedent of Masive v Okuk in that even though there was a serious infringement of the Constitution, all is well in that each of the affected parties threw away the opportunity to challenge James Yali’s candidacy. I will allow the review on this ground as well.
GROUNDS (v), (vi), (vii), (viii), (x) and (xi)
55. I have had the benefit of reading the draft judgment of Cannings J and concur with him that the other grounds relied on by the applicant concerning this application are unmeritorious for the same reasons he advanced.
56. In conclusion, again, I have read the draft decision of Cannings J and I agree, with respect, with the orders he proposes. To put it bluntly, with respect, the significant electoral error was caused by the Electoral Commissioner, who, although was new on the job, had obtained or received proper written legal advice, three times from the then Secretary for the Department of Justice who was also the then Chairman of the Parole Board. The question ought to be asked why the sound advice that James Yali was still a prisoner of the State and was under a sentence of more than nine months was disregarded. In the end it was not fair on the other candidates to contest the seat of Madang Regional Electorate with a serving prisoner and it was not fair on the entire population of Madang Province to have to waste their votes for a person not entitled to nominate and not entitled then to be a Member of Parliament.
57. In the end result, I agree with Cannings J and make the orders proposed by him:
58. BATARI J: The background of this application for judicial review has been set out in the separate draft judgments of Salika CJ and Cannings J. I have also had the advantage of reading the reasoning and with respect, I agree with the proposed orders. I only have this to add.
59. The election process was flawed from the start when the Electoral Commissioner acted against legal advice and in breach of the Constitution to accept the nomination of a candidate who was not qualified to be a member of Parliament under s50(1)(a) and s103(3)(c) of the Constitution. These provisions are as set out in the judgments of Salika CJ and Cannings J.
60. These are standalone constitutional provisions on the basis of which, the qualification of a person desirous of becoming a member of Parliament or to remain a member of Parliament can be challenged pursuant to the inherent powers of the National Court in s 135(a) of the Constitution:
The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament;
(b) the validity of an election to the Parliament. [Underlining mine.]
61. Section 135(a) envisages two situations the jurisdiction of the court can be invoked to challenge the qualification of a person: (i) to stand for election; (ii) to remain a member of Parliament. In the first limb, the question of qualification is open to challenge against any candidate after nomination, during polling, up to declaration of the election results. In the second limb, the challenge to qualification is exclusively against the winning candidate because of the phrase, to remain a member which clearly refers to the winning candidate following declaration of the election result. SeeMasive v Okuk [1985] PNGLR 263 (Kidu CJ, Pratt, Bredmeyer, Amet, Woods JJ).
62. Amet J (as he then was) pertinently stated at p273:
These two jurisdictions are separated and distinguished from that conferred by s 135(b) on "the validity of an election". The two jurisdictions envisaged by s 135(a), as I perceive them are these: first, the jurisdiction to determine a dispute as to the qualifications of a person to become a member of the Parliament can be invoked at any time from nomination to the completion of the casting of votes and the declaration of the results; and secondly, a dispute as to the qualifications of a person to remain a member, it being after the declaration of the result, can be invoked by petition pursuant to s 206 or by reference from the National Parliament under s 3 and s 228 of the Organic Law.
It is significant to note also in the Constitution, s 103(3), the terms, "qualified to be, or to remain", being used in the third major category of grounds for disqualification. It becomes overwhelmingly clear, in my opinion, when s 135(a) and (b) are read with s 103(1), (2) and (3), and with s 206 of the Organic Law, that the qualifications spoken of by s 103 are grounds which do not have to do with the process and procedures of nominations, campaigning, voting, counting of votes, declaration of the election results and the like. Grounds under s 103 are absolute, they do not depend upon the ultimate results of the election, the notion of "real justice", "substantial merits and good conscience of each case".
In contrast, other grounds which may lead to a successful challenge to the validity of the "election", such as illegal practices, bribery, undue influence (Organic Law, s 215) are grounds which are subject to questions as to whether or not election results may have been affected. They are not grounds of disqualification; they relate to the validity of the election.
It is abundantly clear to me that the Constitution has treated grounds of disqualification as distinct from other grounds upon which the validity of an election may be challenged. They are threshold issues which are permitted to be resolved prior to the completion of the election process. Similarly, the question may arise well after the election which may not have anything to do with the validity of the election process. It may be that a sitting member has become disqualified under the Constitution, s 103 (3)(b) or (c), because he has become of unsound mind or has been convicted of an offence and imprisoned for a term of more than nine months.[Emphasis added.]
63. So, s 50(1)(a) and s 103(3)(c) have no general application as stand-alone provisions of the Constitution to challenge the qualification of a losing candidate after the result of the election. The respondent, Jerry Singirok or any of the other candidates or persons with interest for that matter, “forfeited” his right to challenge the qualification of James Yali before the declaration of the election results. As suggested in Masive v Okuk, such challenge cannot be made pursuant to s57 of the Constitution to enforce a constitutional right. Such challenge can only proceed by way of a petition under the Organic Law on National and Local-level Government Elections after the election results. The onus is on the petitioner to show the votes from the losing candidate affected the results. In this case, the respondent had not discharged that onus.
64. On the issue of competency of this application for judicial review, I am in agreement with the views and proposed orders of Justice Cannings. The objection raised by Mr Lai exemplifies a piecemeal approach to the Supreme Court and the parties are best saved the time and resources on. It is a misapplication of the principle in Sir Arnold Amet v Peter Charles Yama [2010]2 PNGLR 87. In that case, the issue of competency was formally raised by way of an application for leave filed and served prior to hearing of the substantive application for judicial review. No such application was made in this case.
65. The principle that the issue of competency can be raised at any stage of the proceedings is not an open-ended or catch-all process. A party who failed to raise the issue of jurisdiction as to form earlier, as in this case, must seek leave of the Court or a Judge to file and argue the issue at the hearing. Raising the issue of competency without prior warning is an abuse of the court process, it is unfair to parties and the Court is denied the opportunity to be aware of the issues before it for determination.
66. Where the issue of competency was not raised before the primary court, the party raising it must seek leave in a formal application to be heard and show exceptional reason.
67. Salika DCJ (as he then was), Batari J and Davani J in Sir Arnold Amet v Peter Charles Yama (supra), in holding that the reviewing court should not refuse to consider an issue of competency because it was not raised in the court below, considered that the issue of competency, more often than not, concerns the validity of the very proceedings before the Court, therefore, allowing an aggrieved party, to raise it, at any stage of the proceedings. But it must be a proper exercise of discretion relying on evidence before the Court, to demonstrate that there are indeed good and sound grounds warranting the hearing of the objection.
68. In Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853 the Supreme Court held:
... an appellate Court should not hear and determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the Court (sic) very exceptional circumstances such as want of jurisdiction. [Emphasis added.]
69. The rationale being that an appellate court is not a court of original jurisdiction; the public interest demands finality of litigation; the need for fairness to a trial judge and the parties themselves; the need for proper and timely management and disposition of cases; the necessity to minimize costs of litigation.
70. I will dismiss the objection for being incompetent, also to protect due process of the court.
70. MOGISH J: I have had the advantage of reading the draft judgments of the Chief Justice and Justice Cannings. I respectfully agree with the orders their Honours have proposed and the reasons given for such orders and I have nothing to add.
71. CANNINGS J: Peter Charles Yama was the successful candidate in the 2017 general election for the Madang Provincial seat. He applies to the Supreme Court under s 155(2)(b) of the Constitution for review of the decision of the National Court (constituted by Justice Higgins) of 1 March 2018 in an election petition brought by the third-placed candidate, Jerry Singirok.
72. The National Court decided to uphold the petition, declare Mr Yama’s election void and order a recount of votes (Yali v Yama & Electoral Commission and Singirok v Yama & Electoral Commission (2018) N7145).
73. Mr Singirok (the first respondent in the current proceedings) had challenged the validity of the election on the ground that the second-placed candidate, James Yali, was disqualified and was unlawfully permitted by the Electoral Commission (the second respondent) to participate in the election. Mr Singirok argued that Mr Yali, who had been convicted of the crime of rape in 2005, was, though he was on parole, still “under sentence of ... imprisonment for a period of more than nine months”, and therefore disqualified from being a candidate under ss 50(1)(a) and 103(3)(c) of the Constitution.
74. The trial judge ruled that Mr Yali was disqualified under s 103(3)(c), and that his presence in the count up to the final elimination may have affected the order in which other unsuccessful candidates were eliminated and may have allowed other candidates to benefit from his preference votes. It was held that it could not be concluded that the inclusion of Mr Yali did not affect the result and that s 218(1) (immaterial errors not to vitiate election) of the Organic Law “is not engaged to so as to save the election”.
75. His Honour set aside the declaration of the poll and return of the writ, declared that the election was void and ordered a recount, to be conducted on the basis that Mr Yali’s first-preference votes would be treated as though he had already been eliminated.
76. Mr Yama subsequently sought and was granted leave to apply to the Supreme Court for review of the decision of the National Court, and the order of the National Court was stayed subject to determination of Mr Yama’s application.
77. It is Mr Yama’s substantive application for review of the decision of the National Court that is now before the Supreme Court.
78. Mr Yama’s principal contention is that the National Court erred in law by not requiring the petitioner, Mr Singirok, to plead and prove under s 218(1) of the Organic Law on National and Local-level Government Elections that the error of the Electoral Commission, in accepting the disqualified candidate’s nomination, affected the result of the election. Mr Yama contends that the trial judge declared the election void on the basis of conjecture that Mr Yali’s participation may have affected the result.
79. Other arguments of Mr Yama are:
GROUNDS OF REVIEW
80. The above outline of Mr Yama’s principal contention and other arguments is my summation of the formal grounds of review, which are stated as follows at paragraph 4 of the application:
(i) [Abandoned.]
(ii) There was no evidence from the petitioner Jerry Singirok before the trial judge that the votes from the petitioner Jerry Singirok affected or had the potential to affect or would have affected the result of the election. Despite lack of evidence the trial judge made orders to void the return of the writ and ordered a recount.
(iii) Alternatively, his Honour’s decision to order a recount was not supported by evidence.
(iv) [Abandoned.]
(v) The trial judge misapplied and/or misconstrued ss 50 and 103(3) of the Constitution to hold that James Yali was a member of Parliament when James Yali was in fact not a member of Parliament at the relevant time and therefore s 103(3)(c) does not apply to him.
(vi) Sections 208(a) and 209 of the Organic Law on National and Local-level Government Elections relates to the validity and/or competency of EP 69 of 2017. The trial judge ought to have seriously considered the issues raised in the competency applications and made a formal ruling in his written decision on the matter.
(vii) Alternatively his Honour failed to give reasons in his judgment on the objection to competency even though the competency issues raised in the objection was argued by lawyers for the parties. The failure to give reasons on competency issues have left the parties without remedies or grounds which should they wish to review his Honour’s decision of 1 March 2018. This is an error on the part of the trial judge which should render his decision on competency issues void and the objection sustained and the petition dismissed.
(viii) Alternatively as a matter of law the petitioner has not complied with the mandatory provisions of ss 208(a) and 209 of the Organic Law on National and Local-level Government Elections. The trial judge seems to have failed to address this vital issue, hence the trial judge’s decision is flawed as a question of law. The petition should therefore be dismissed.
(ix) [Abandoned.]
(x) The trial judge erred when he consolidated and heard both petitions together. This was in direct contravention of the order of Justice Colin Makail dated 30 January 2018.
(xi) The petition EP 69 of 2017 was defective by virtue of the fact that the first attesting witness Simon Dunde misled his occupation on the petition that he was a subsistence farmer when in fact he was a police sergeant in New Town in Madang Province. Simon Dunde’s affidavit was crucial to determine requirements as prerequisite to trial under ss 208 and 209 of the Organic Law on National and Local-level Government Elections but was disallowed by the trial judge. His Honour’s failure to allow the affidavit into evidence is an error and undermined the true spirit and essence of ss 208 and 209 of the Organic Law on National and Local-level Government Elections.
NATIONAL COURT PROCEEDINGS
81. Mr Singirok’s petition, EP 69 of 2017, was heard by Higgins J in Madang in February 2018 together with a separate petition by Mr Yali, EP 63 of 2017. Mr Yali’s petition was based on allegations of bribery.
82. One of the grounds of Mr Singirok’s petition also alleged bribery, but it was abandoned at the trial. The only live ground of challenge in Mr Singirok’s petition was ‘errors and omissions by the second respondent (Electoral Commission)’ in accepting and/or failing to reject the nomination of Mr Yali.
83. The critical issue in each petition became whether Mr Yali was disqualified at the time of the election, in June-July 2017, under ss 50(1)(a) and 103(3)(c) of the Constitution.
84. Section 50 (right to vote and stand for public office) states:
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
85. Section 103 (qualifications for and disqualifications from membership) states:
(1) A member of the Parliament must be not less than 25 years of age.
(2) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f) he is otherwise disqualified under this Constitution.
(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.
(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—
"appeal" includes any form of judicial appeal or judicial review;
"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.
86. The trial judge found that, according to the decision of the National Court in The State v James Yali [2005] PNGLR 468 Mr Yali was convicted of the crime of rape on 13 December 2005, the offence having been committed on 13 October 2004. He was sentenced on 19 January 2006 to 12 years imprisonment, commencing when he was remanded in custody on the date of conviction, 13 December 2005 (The State v James Yali (2006) N2989). He was granted parole on 9 February 2010. He was at conditional liberty until 12 December 2017 when his sentence expired.
87. His Honour held that until his sentence expired Mr Yali was “under sentence of imprisonment for a period exceeding nine months”. When he nominated and at the casting and counting of votes and declaration of the poll, Mr Yali was a person “not qualified to be or remain, a member of the Parliament” by virtue of s 103(3)(c) of the Constitution.
88. His Honour commented that, though the issue had arisen whether Mr Yali was in any event permanently disqualified under s 103(3)(e) of the Constitution, that provision was not brought into operation until 2006, so it did not apply to Mr Yali as he committed the offence that resulted in his prison sentence in 2004.
89. His Honour proceeded to summarily dismiss Mr Yali’s petition on the basis that, not being qualified to stand for the election, he was not qualified to bring a petition.
90. As for Mr Singirok’s petition, the following extract from the judgment demonstrates the process of reasoning which led his Honour to declare the election void:
30. Mr Singirok relies on the presence in the count of the Madang Provincial Electorate of a disqualified candidate, Mr James Yali. For the reasons previously stated, this ground of objection is upheld. The disqualification of certain candidates is contained within the Constitutions 50 and s 103(3)(c) and (e). The last of those provisions did not apply to Mr Yali but, as I have found, s 103(3)(c) did.
31. Given that the 2nd respondent [Electoral Commission] accepted the nomination of Mr Yali, the scrutiny of votes could only have lawfully proceeded by first going to the primary votes for Mr Yali and counting those votes towards the next candidate each elector had specified. If, during the elimination of other candidates, the next vote on the relevant ballot paper was for Mr Yali, that vote would be credited to the next candidate specified by the voter, if that candidate had already been eliminated or if the vote was a third preference, the previous two having been eliminated, the vote would be exhausted.
32. The effect of Mr Yali’s presence in the count up to the final elimination was twofold. First, it may have affected the order in which other unsuccessful candidates were eliminated. Second, it may have allowed a candidate other than Mr Yali, having received preferences from the votes cast for Mr Yali, directly or after further elimination, to add to his or her total tally of votes so as to be still unexcluded at the final elimination. Obviously, if Mr Yama had received more than 50% of the votes cast at the first count it would be irrelevant how many votes were cast for Mr Yali. However, that is far from the case here.
33. The primary count, considering only the top 5 candidates was, according to the records of the 2nd Respondent,
(a) James Yali 45,806 votes
(b) Jerry Singirok 42,277 votes
(c) Peter Yama 36,019 votes
(d) Jim Kas 25,937 votes
(e) RamseyPariwa 20,726 votes.
34. The total of those votes is 170,765.
35. The total number of votes cast was 253,899. Thus 83,134 votes were cast for all of the remaining 26 candidates. The elimination of candidates and the exclusion of exhausted votes led to the penultimate tally:
(a) Peter Yama 85,382 votes
(b) James Yali 72,763 votes
(c) Jerry Singirok 61,850 votes
36. The total of those votes remaining alive was 219,995.
37. Had Mr Yali been then eliminated and his next preferences counted the votes would be then be either for Mr Yama or for Mr. Singirok or be exhausted.
38. It is not possible to allocate numbers to any of those three categories. The difference between Mr Yama and Mr Singirok was 23,632. The votes Mr Yali had attracted whether 1st, 2nd or 3rd preferences was 72,763 as at the final elimination stage. In the primary count he had 45,806. It follows that had Mr Yali been eliminated from the primary count and his next preferences then distributed it could have left Mr Singirok with a winning margin. I acknowledge that the most likely result would be that Mr Yama would be successful but without knowing Mr Yali’s next preferences it cannot be concluded that the result of the ballot would not have been affected by his inclusion in the scrutiny.
39. Thus, s 218(1) is not engaged so as to save the election. The decision to permit Mr Yali to stand was an error that may have affected the result of the election. The appropriate remedy therefore is to declare that MrYali was not qualified to be a candidate until his sentence expired on 12 December 2017. Further he was not capable of being chosen or sitting as a member until after that date. There must be a re-count of the votes cast with votes cast for Mr Yali being treated as though he had already been eliminated.
40. Other issues were raised concerning the conduct of the scrutiny. It is noteworthy that the allegations concerning those irregularities were not challenged by cross-examination. The evidence to contradict those allegations was also unchallenged.
41. In those circumstances, insofar as an allegation is uncontradicted, it must be accepted at face value. If it is contradicted by unchallenged evidence that contradiction must also be accepted at face value. It would follow that the Court may well be unable to make a finding one way or the other on such an issue. The party bearing the onus of proof on such an issue would then have failed to prove it. In some cases the variance may be immaterial. An example of that is the separation of scrutineers away from the count. A witness for Mr Singirok alleged it was 10 metres. A witness for Mr Yama alleged it was 5 metres. Either would seriously impede the ability of a scrutineer to assess the information contained on the voting paper to assess its formality or otherwise. Either separation would, arguably, breach s 151(c) of the OLNLLGE: “All the proceedings of the scrutiny shall be open to the inspection of the scrutineers.”
42. It was also asserted that one of the polling officials had been observed accepting a ride in one of the vehicles of one of the candidates. The official was stood down but returned later in the scrutiny. One polling official deposed that he observed piles of votes being distributed to the wrong candidate.
43. Another asserted that the presiding officer unreasonably rushed the count so that there was a likelihood of error in the count. It may well be that the concatenation of those errors and omissions would require a recount in any event. In the present case the inclusion in the count of a candidate disqualified from being nominated or elected suffices to render the declared result of the election unsafe.
44. The fundamental uncertainty can be illustrated by a simple example. If candidates A, B and C remain in the penultimate count it may be that the next preferences of B would overwhelmingly favour C whereas the next preferences of C would overwhelmingly favour A. Whether B or C is the final candidate to be eliminated is vital to the ultimate result.
45. The flow on effect of the elimination of Mr Yali’s first preference votes at the primary count and thereafter his second preferences if they became live, cannot be readily predicted. It followed that the election must be declared void.
46. It should be emphasized that this result is not the fault of either petitioner. It is that of the Electoral Commission.
ORDERS
(1) Mr Yali is to pay the costs of the 1st Respondent [Mr Yama] to his petition.
(2) The 2nd Respondent [Electoral Commission] to bear its own costs.
(3) Mr Singirok’s petition is upheld; the declaration of the poll and return of the writ set aside and the election declared void.
(4) The 2nd Respondent is to pay the costs of Mr Singirok and the 1st Respondent [Mr Yama].
(5) There will be a recount of the votes cast conducted in accordance with these reasons.
OBJECTION TO COMPETENCY
91. Before addressing Mr Yama’s principal contention and the other grounds of review of the decision of the National Court, I will deal with an objection by Mr Singirok to the competency of Mr Yama’s application for review.
92. The objection was made on behalf of Mr Singirok by his counsel, Mr Lai, at the hearing of the application. It was an oral objection, made during the course of Mr Lai’s submissions. It is based on the argument that the application for review, filed on 29 March 2018 (following the grant of leave on 19 March 2018), fails to meet the mandatory requirements of the Supreme Court Election Petition Review Rules 2002, as the form of the application is defective. Specifically, it is argued that the actual form of the application is not in accordance with form 5B of the 2002 Rules, as it fails to have attached to it a copy of the National Court decision or order that is the subject of the application for review.
Objection refused
93. I refuse the objection to competency for the following reasons.
94. First, it has been made late – extremely late – and without proper notice to the applicant or the Court and contrary to the requirements of the Supreme Court Rules. (I find, based on indications given from the bar table by Mr Lai and Mr Lomai, that Mr Lai wrote to Mr Lomai on the afternoon before the hearing to give notice that he would be raising this issue.) The combined effect of Order 7, Rule 15 and Order 11, Rule 28(a) is that an objection of this nature should have been the subject of a written notice of objection in accordance with form 9, filed and served within 14 days after service of the application for review. The objection was made more than two years late.
95. Secondly, the objection is based on a non-existent law. The Supreme Court Election Petition Review Rules 2002 have been repealed and replaced by the Supreme Court Rules 2012.
96. Thirdly, though it is open to a respondent to raise an objection of this nature at any time in the proceedings, even in cases where the requirements of the Rules have been disregarded, the ground relied on should, in my view, be one that demonstrates unequivocally that the Court has no jurisdiction. The ground relied on here is arguable, that is all. I find that the form used by the applicant is substantially in compliance with the Supreme Court Rules 2012. The deficiency in the form is minor and causes no prejudice to anyone. I reject the ground of objection.
97. Finally, any doubt in my mind about how the objection to competency should be determined is removed by my assessment of the manner in which the objection has been made by Mr Lai. The objection has been made extremely late, virtually without notice in a mischievous and unethical manner. It is high time the Supreme Court calls out these ambushes for what they really are: an abuse of process.
98. We have become obsessed with objections to competency. Any glitch in filling out a form is claimed to be a major issue, affecting the jurisdiction of the court. Too many of these so-called objections are being made and too many are being entertained, in my view. This is a Court of Justice, not a Court of Technicalities. Judges are obliged to give paramount consideration to the dispensation of justice. Not dispensing with justice.
99. Leave for Mr Yama to make the application for review was granted more than two years ago. Multiple directions hearings and status conferences have been conducted and ample opportunity has been given to the first respondent to raise this issue. At least, leave of the Court should have been sought to raise it. It is a gross impertinence to raise an objection to competency in this manner. Mr Lai did not even mention the objection when counsel entered their appearances at the start of the hearing. The only good excuse for such behaviour is that it was a last-minute thought that came to counsel’s mind. An oversight, a genuine one. But that is not what happened here.
100. When making his submissions in support of the objection Mr Lai misled the Court by citing a lengthy passage from the decision of the Supreme Court in Michael Kandiu v Powes Parkop (2015) SC1597, as follows:
13. In Dawa Lucas Dekena v Nick Kopia Kuman (2013) SC1272 per David, Sawong and Kassman JJ dated 30th August, 2013, the Supreme Court held this:
“It is trite that a Competency issue is an issue that can arise at any time during a proceeding. It may be raised by a party or by the Court on its volition at any time. (my emphasis)
14. In saying that, the Court relied on the case Amet v Yama (2010) SC1064, where this principle was emphasized.
15. The Supreme Court in Dawa Lucas Dekena v. Kuman (supra) said further in relation to Rule 36 of the Supreme Court Rules:
“This rule is clear. This rule gives the Supreme Court power to hear any objection to the competency of the Review application at the hearing of the application. There is no rule as to how that objection is to be raised. The objection may be raised by a party or by the Court at the hearing. (Amet v Yama (supra)). One should not confuse this procedure with objections to competency in the ordinary appeal rules.”(my emphasis)
16. Therefore, based in these authorities, it is clear that the position at law is that if an aggrieved respondent wishes to challenge the competency of a review under s 155(2)(b), then he need only do the following;
3. And can be verbally made (Amet v Yama). ...
49. By analogy, the Court has held that the requirement to comply with the rules is not to be trifled with. The Supreme Court case of Vele v Parkop (2008) SC945, in dealing with Vele’s failure to file, serve and move an application within 14 days of the decision sought to be reviewed, said this:
“The purpose of the Election Petition Review Rules is:
b. to closely manage the review process;
50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non-compliance will be fatal to the Review.
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) SC917). 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).
101. Three times in his written submissions, and also in oral submissions, Mr Lai stated that the above passage – clearly in support of his contention that he was doing nothing untoward in raising the objection to competency orally, contrary to the Rules, extremely late and virtually without notice – was from the decision of the Supreme Court (Davani J, Kariko J and Toliken J) in Michael Kandiu v Powes Parkop (2015) SC1597.
102. What Mr Lai failed to say was that he was quoting from the dissenting opinion of Davani J. Her Honour upheld the oral objection to competency and would have dismissed the application for review. Her Honour was in the minority. Kariko J and Toliken J in a joint opinion took the diametrically opposite position: the objection to competency was itself incompetent and it was dismissed. And as for the decision in Dekena v Kuman that Davani J referred to, Kariko J and Toliken J disagreed with it.
103. No indication was given by Mr Lai that he was relying on a dissenting opinion of one Judge to advance the objection to competency. No mention was made of the majority opinion of Kariko J and Toliken J. This Court has been seriously misled by counsel for the first respondent.
104. I refuse the oral objection to competency as being an abuse of process.
MR YAMA’S PRINCIPAL CONTENTION (GROUNDS OF REVIEW (ii) & (iii))
The case for Mr Yama
105. Mr Yama’s principal contention, made on his behalf by Mr Lomai of counsel, is that the National Court erred in law by not requiring the petitioner, Mr Singirok, to plead and prove under s 218(1) of the Organic Law on National and Local-level Government Elections that the error of the Electoral Commission, in accepting the disqualified candidate’s nomination, affected the result of the election. Mr Yama contends that the trial judge declared the election void on the basis of conjecture that Mr Yali’s participation may have affected the result, and that there was no evidence that the votes for Mr Yali affected the result of the election.
Response by Mr Singirok
106. Mr Singirok’s response, made through his counsel, Mr Lai, is to point out that the tally sheets, known as Forms 66A and 66B, were in evidence at the trial, showing the successive elimination of the candidates, and that was ample and uncontradicted evidence that the presence in the election of the disqualified candidate, Mr Yali, had a real effect on the result. It was demonstrated that Mr Singirok was eliminated at the 29th and final elimination, leaving the allocation of his preference votes to decide the outcome between the two remaining candidates, Mr Yama and Mr Yali. Mr Lai submitted that the evidence at the trial, in Forms 66A and 66B, showed that as a result of the 28th elimination, when candidate Ramsey Pariwa was eliminated, the tally was:
Peter Yama 69,126
James Yali 62,329
Jerry Singirok 61,850
107. Mr Yama’s lead over Mr Singirok was at that stage 7,276 votes. Mr Yali was still in the contest at that stage but, Mr Lai submits, he ought not to have been there, and Mr Singirok should not have been eliminated at that point. There were more than enough preference votes of Mr Yali that should have been available for distribution to enable Mr Singirok to surpass the 7,726 difference between himself and Mr Yama. The outcome might have been that Mr Yama would still win but the proper outcome can only be known if, as held by the trial judge, there is a recount of all votes conducted in accordance with the guidelines outlined by his Honour in the judgment.
Determination
108. Mr Yama’s principal contention is twofold.
109. First, that the ground on which Mr Singirok prevailed in the National Court – that the error of the Electoral Commission in accepting Mr Yali’s nomination affected the result of the election – was not adequately pleaded in the petition.
110. Secondly, that the trial judge erred in law by engaging in conjecture that Mr Yali’s participation may have affected the result, and that there was no evidence that the votes for Mr Yali affected the result of the election.
Pleading
111. As to the pleading in the petition, I consider that it could have been drafted with greater clarity but it is not so unclear or vague as to fail to meet the requirements of s 208 of the Organic Law. It adequately sets out Mr Singirok’s case that an error had been committed by the Electoral Commission (accepting Mr Yali’s nomination) for the purposes of s 218 of the Organic Law, which (quoting from the petition) “was likely to affect the final result and did indeed affect the final result of the Madang Provincial Electorate election”.
Did the error affect the result?
112. I agree with the trial judge that Mr Yali was a disqualified candidate. He was disqualified at all material times, including when he nominated to contest the election, under ss 50(1)(a) and 103(3)(c) of the Constitution, as he was “under sentence ... of imprisonment for a period of more than nine months”. (Mr Yali may well also have been disqualified under s 103(3)(e) of the Constitution, and although the trial judge ruled that Mr Yali was not caught by that provision, I think that issue is yet to be fully resolved, and I will make some further remarks on it at the end of this judgment.)
113. The dubious decision of the Electoral Commission to accept Mr Yali’s nomination was clearly an error. I describe the decision as dubious as there was evidence in the National Court that the then Secretary for Justice, Dr Kalinoe, advised the Commission three times in writing that Mr Yali was disqualified and that his nomination should be refused.
114. Acceptance of Mr Yali’s nomination is properly regarded as the “error” of “an officer” and potentially a ground on which the result of the election could be avoided under s 218(1) (immaterial errors not to vitiate election) of the Organic Law.
115. Section 218 states:
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence of error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
116. However, to prove that the error in accepting Mr Yali’s nomination was material, it was incumbent on the petitioner (Mr Singirok) to prove that it affected the result. Not that it could have affected the result, or might have, or that there was a reasonable possibility or probability that it did. What had to be proven is that it did affect the result (Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354, Father Louis Ambane & Electoral Commission v Thomas Tumun Sumuno (1998) SC565, Application by Ben Semri (2003) SC723, Luke Alfred Manase v Don Pomb Polye (2009) N3718).
117. “The result of the election” means who won the election. That is, it must be proven that the error affected the final result: the declaration of the winning candidate.
118. In my view there was insufficient evidence before the National Court on which the conclusion could legitimately be reached that the error of the Electoral Commission in accepting Mr Yali’s nomination affected the result, ie Mr Yama being declared the winning candidate. Indeed the trial judge acknowledged that. His Honour was of the view that the question of whether the Commission’s error (in accepting Mr Yali’s nomination and allowing his participation in the election) affected the result of the election could only be answered by ordering a recount. His Honour stated at paras 38 and 39 of his judgment:
It follows that had Mr Yali been eliminated from the primary count and his next preferences then distributed it could have left Mr Singirok with a winning margin. I acknowledge that the most likely result would be that Mr Yama would be successful but without knowing Mr Yali’s next preferences it cannot be concluded that the result of the ballot would not have been affected by his inclusion in the scrutiny.
Thus, s 218(1) is not engaged so as to save the election. The decision to permit Mr Yali to stand was an error that may have affected the result of the election. [Emphasis added.]
119. His Honour has, with respect, applied a wrong test. He has allowed the result of the election to be avoided by an error, which has not been proven to have affected the result of the election. His Honour has taken the view that the error of the Electoral Commission was a significant error (which clearly it was) that “may have affected the result of the election” and that, without a recount and “without knowing Mr Yali’s next preferences it cannot be concluded that the result of the ballot would not have been affected by his inclusion in the scrutiny”.
120. I agree with those observations: that the Electoral Commission’s error and Mr Yali’s participation “may have affected the result of the election” and that, without a recount, “it cannot be concluded that the result of the ballot would not have been affected by his inclusion in the scrutiny”. However, those observations provided good reasons for refusing Mr Singirok’s petition, not upholding it. They demonstrate that Mr Singirok had failed to discharge the onus of proof, cast upon him as a petitioner relying on s 218(1) of the Organic Law, that the error of the Electoral Commission “did ... affect the result of the election”.
121. Applying the test strictly might be seen as a harsh approach in the circumstances of this case. Mr Singirok was caught in a Catch-22: he could only prove that the error affected the result by obtaining a recount, but he could only obtain a recount by proving that the error affected the result. However, the strict approach is what is required by s 218(1), the purpose of which is to ensure that errors or omissions of the Electoral Commission – even very serious ones such as in this case – only provide a ground for avoiding an election result when it is proven that the error or omission has affected the final result.
122. I think the apparent harshness of what I have called the strict approach to application of s 218(1) can be seen in a clearer light when the dictates of s217 (real justice to be observed) are taken into account. Section 217 states:
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.
123. The learned trial judge could have, indeed should have (as it is cast in mandatory terms), invoked s 217 before declaring the election void. In my view, the substantial merits and good conscience of the case did not require the election result to be avoided as there had been an election, a closely contested one, in which Mr Yali was a prominent candidate. Mr Yali’s criminal record is on the public record, yet he polled strongly. His inclusion in the ballot was a mistake, a serious error, but it happened and he nearly won the election. But he didn’t win. If he had won, it would have been easy for Mr Singirok to prove that the error affected the result as Mr Yali should not have been in the ballot, and the election result would be justly declared void as a matter of course.
124. Mr Yali did not win. Mr Yama won. Mr Singirok did not prove that Mr Yali’s inclusion in the ballot meant that the wrong person won.
\125. It must also be borne in mind that proof of an error that did affect the result of the election under s 218(1) does not automatically render the election void. The election becomes voidable, but not automatically void. This is unlike the situation in which the successful candidate is proven to have committed or attempted to commit bribery or undue influence, in which case s 215(1) (voiding election for illegal practices) would apply.
126. Section 215(1) states:
If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
127. In the present case, though Mr Singirok had proven error on the part of the Electoral Commission, the question of whether that should have led the Court to conclude that the election be declared void, remained a matter of discretion under s 212 (powers of court) of the Organic Law.
128. Section 212 states:
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
Conclusion re Mr Yama’s principal contention
129. I uphold the second limb of Mr Yama’s principal contention. I respectfully consider that the learned trial judge erred in law by not insisting that the petitioner, Mr Singirok, prove that the Electoral Commission’s error in accepting Mr Yali’s nomination affected the result of the election. His Honour upheld the petition on the basis of conjecture that the result of the election may have been affected by the participation of Mr Yali. The applicant’s grounds of review (ii) and (iii) are upheld.
MR YAMA’S OTHER ARGUMENTS (GROUNDS OF REVIEW (v), (vi), (vii), (viii), (x) & (xi))
130. I consider that none of Mr Yama’s other arguments are meritorious and I deal with them summarily as follows:
CONCLUSION
131. I have refused all but two grounds of review, but those two, (ii) and (iii), that have been upheld are sufficient cause for upholding the application for review. They demonstrate, with respect, an error of law by the trial judge as to interpretation and application of s 218(1) of the Organic Law. I would quash the decision of the National Court and order the Electoral Commission, which was guilty of a serious error of law in deciding to accept the nomination of a disqualified candidate, to pay the costs of both Mr Yama and Mr Singirok for both these proceedings and the trial in the National Court.
132. I will also declare for the avoidance of doubt that Mr Yama was the successful candidate. I think this is not only the legally correct outcome of these proceedings but also a fair and just outcome. Justice Higgins commented at paragraph 46 of the judgment that the result of the petition – that the election must be declared void – was not the fault of “either petitioner”, ie Mr Yali or Mr Singirok. To say that it was not the fault of Mr Yali is a questionable proposition, with respect. Perhaps what his Honour meant to say was that it was not the fault of Mr Yama. That would have been a better summation of who was or who was not at fault.
133. The other reasons I think it is a just and fair outcome for Mr Yama to prevail are:
(a) he won the election when all the voters are presumed to have known that one of the candidates, Mr Yali, had a criminal record, but many still voted for him and he was the runner-up;
(b) not one of the candidates – including most notably Mr Singirok who did not cry foul until after the result was declared – objected to Mr Yali’s nomination before the election (as they could have done, invoking the original jurisdiction of the National Court under s 135 of the Constitution) despite it being on the public record that he was still under sentence and despite it being in the public domain that the then Secretary for Justice, Dr Kalinoe, was questioning the legality of Mr Yali’s candidacy;
(c) we are now in year 4 of the country’s five-year election cycle, less than two years remain before the next general election, and there is little time in which to conduct a recount, which would be a difficult and costly exercise to undertake, if it were to be conducted in accordance with the rather complex and not immediately discernible directions of the trial judge (which are found, not in the order of the court, but in his Honour’s written judgment);
(d) a recount would almost inevitably give rise to further litigation and may even give rise to a further and consequential order for a by-election, which would be a further expensive operation to undertake.
134. The 2017 election for the Madang Provincial seat was inherently flawed due to the unlawful participation of Mr Yali. However, the goal set by the Constitution is not to have perfect elections. That goal is unrealistic and unattainable in the present circumstances of the country. The goal set by s 50 of the Constitution is to have “genuine, periodic and free elections”. In my view the 2017 election for Madang Provincial met those requirements. There comes a time when everyone must accept the result and live with it and look forward to the next election. That time is now.
REMARKS
135. The next general election is due in 2022. If Mr Yali wishes to stand again, he will not be disqualified under ss 50(1)(a) or 103(3)(c) of the Constitution by reason of the 12-year sentence that concluded in December 2017. However, he might be disqualified under s 103(3)(e) of the Constitution, which provides:
A person is not qualified to be, or to remain, a member of the Parliament if ... he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms.
136. The trial judge determined that s 103(3)(e) did not apply to Mr Yali as he committed the crime of rape on 13 October 2004, which predated the coming into operation of Constitutional Amendment No 24—Electoral Reforms, which his Honour estimated to be a date in 2006.
137. I think that his Honour’s estimate of the date of commencement of that amending Law might be incorrect. The better view might be that that Law came into operation on the date of its certification by the Speaker, which appears to have been 25 June 2002, which might mean that any person, including Mr Yali, who has committed an indictable offence after 25 June 2002, and is convicted of committing such an offence, is not qualified to be or to remain a member of the Parliament.
138. I do not know of any case other than this one in which the ramifications of s 103(3)(e) have been considered. The effect of its being in s 103(3), alongside s 103(3)(c) – which was not amended when s 103(3)(e) was introduced – needs a thorough examination. If s 103(3)(e) is read as a standalone provision it would appear to have the effect of imposing a lifetime disqualification on a person who has been convicted of an indictable offence if the offence has been committed after a certain date. It is important for the Court to make a clear judicial determination of the date on which Constitutional Amendment No 24—Electoral Reforms commenced operation.
139. These issues would best be resolved, in my view, if one of the authorities entitled to make a Special Reference to the Supreme Court under s 19 (special references to the Supreme Court) of the Constitution were to make an appropriate application. This should be done well before the next general election.
ORDER
140. I would order:
141. ANIS J: This is an election petition review matter (application for review). The application is filed pursuant to s 155(2)(b) of the Constitution. Leave was granted on 19 March 2018.
142. The application for review was heard on 23 June 2020. We reserved our decision to a date to be advised. Parties have been notified and as such, I give my ruling herein.
143. The background of the matter and the grounds of review are sufficiently covered by my brothers Chief Justice Sir Gibbs Salika and Justice Cannings, and I am indebted to them.
PRELIMINARY ISSUE
144. At the hearing, the first respondent raised a jurisdictional issue. Counsel submits that the application for review is defective and that being the case, renders it incompetent and therefore must be dismissed.
145. The basis for this argument is this. The first respondent argues that the applicant has breached the mandatory provision namely Order 5, Rule 19(e) of Supreme Court Rules 2012 (SCR) in that he has failed to correctly complete Form 5B in his application for review. In particular, the first respondent claims that the requirement under paragraph 4 of Form 5B which reads, STATE BRIEFLY THE NATIONAL COURT DECISION AND ATTACH A COPY OF THE DECISION OR ORDER, has not been fully complied with. The first respondent submits that the applicant did not attach a copy of the National Court’s decision or Court Order, to the application for review, but instead and in its place, makes reference to its availability in a separate document, namely, in the affidavit of the applicant. The first respondent submits that to not attach a copy of the National Court’s decision or order to the application for review, is short of full compliance with the mandatory requirements under Order 5, Rule 19(e) and as such, renders the application for review incompetent.
146. Mr Lai was asked whether there was any valid reasons as to why the first respondent had not raised that in a formal application, that is, in a notice of objection to competency. In response, counsel submitted that his client had options as held in the case law, and that his client had preferred to raise or ask the Court to consider the issue in this manner, which he submitted, was permitted in the substantive hearing of the review.
147. The Supreme Court can raise, hear and determine jurisdictional issues, that is, whether it be in a case where an objection to competency application has been filed in compliance with the Supreme Court Rules, or of its own volition. This Court in Michael Kandiu v Powes Parkop (2015) SC1597 explains that when it stated at paragraph 81 of its judgment:
Notwithstanding the dismissal of Mr Parkop’s application, this Court may nevertheless consider the issue of competency as the question of jurisdiction is one that can be raised at any stage of the proceedings; see Sir Arnold Amet v Peter Charles Yama (2010) SC1064. In Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 Kearney DCJ stated the principle as to what is the nature of an objection to competency as: “An objection to competency is really an objection to the jurisdiction of the Court to entertain the point”. The Supreme Court has approved this statement in many subsequent cases including Jeffery Turia v Gabriel Nelson (2008) SC949 and Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056.
148. In Michael Kandiu v Powes Parkop (supra), despite the fact that the Supreme Court had ruled against the competency of the first respondent’s application, it went ahead and considered and deliberated upon the said competence issues for the reasons as I have quoted above. See also the case Nominees Niugini Ltd v IPBC (2017) SC1646.
149. Therefore and in my view, I cannot simply ignore this jurisdictional issue on the basis that no formal application has been filed. We have gone past that stage and are now at the substantive hearing of the review. And in this case, a jurisdictional issue has been raised or brought to our attention by the first respondent. Jurisdictional issues are questions of law and may be addressed quickly by the Court. So if they are brought to the attention of the Supreme Court at the verge of a substantive hearing or at the actual hearing, they should, in my view, be allowed given the Court’s jurisdiction to hear them at any time, which now appears settled in the case law.
150. Moving on, the next question I have is this. Is the claim by the first respondent denied, that is, his claim that a copy of the National Court’s decision or Order was not attached to the application for review? The answer to that is, “no”. Counsel for the applicant acknowledges that in his submissions. And I note that this is confirmed if one peruses the application for review. At page 11 of the Review Book (RB), above line 20, the application for review reads in part:
A copy of the National Court Order is annexed to the affidavit of Peter Charles Yama.
151. I note the submissions by counsel for the applicant. Mr Lomai submits as follows. Firstly, he submits that there is no formal application filed by the first respondent. Secondly, he submits that he did not receive notice of the intended issue until only yesterday at around 2 pm. Thirdly, he submits that there was substantial compliance with the application for review or with Form 5B. Fourthly, Mr Lomai submits that there was no prejudice caused by the said omission. And lastly, Mr Lomai submits that the said rule and Form 5B have been amended and as such there was no error committed.
152. Mr Lai in response submits that the Court has jurisdiction to consider the jurisdictional challenge and that it is properly raised. He submits that his client has opted for this option which was why they had decided against filing a notice of objection to competency of the review, as provided for under the SCR. Counsel also submits that substantial compliance was insufficient; that there has to be full compliance of the SCR and in particular, Order 5, Rule 19(e) and Form 5B. And counsel submits that although there may have been amendments made to the SCR, the requirement under Order 5, Rule 19(e) or the requirement under Form 5B remains, and as such, it must be fully complied with.
153. Order 5, Rule 19 reads:
19. The Application for review shall:-
(a) state that the application lies with leave and state the date on which such leave was granted; and
(b) state whether the whole or part only and what part of the judgment is being reviewed; and
(c) state briefly but specifically the grounds relied upon in support of the review; and
(d) state what judgment, order or relief the applicant seeks in lieu of that decision reviewed; and
(e) be in accordance with Form 5B; and
(f) be signed by the applicant.
154. The next question I have is this, whether such non-compliance is fatal to the application for review.
155. I have had the benefit of considering the case authorities cited and presented in Court. I have also considered the past and recent decisions of this Court in regard to questions of jurisdiction and whether compliances with the SCR is mandatory.
156. In my view, consideration of jurisdiction has nothing to do with exercise of the Court’s discretion. I would argue that once a competency issue or allegation is properly raised by a respondent, and an error is identified, namely, failure to comply with a mandatory requirement(s) under the SCR, the Supreme Court must cease from the matter. The only thing left to do, would be to make a ruling to that effect. If the Court remains and wishes to speak or address matters beyond its jurisdictional finding(s) on the competency issue concerned, it would be acting, in my view, ultra vires. This Court is of course summoned to deal with matters that have been filed and which are before it. Without the primary documents being duly compliant with the SCR or the law such as the Supreme Court Act Chapter No 37, this Court cannot exercise its powers.
157. Let me consider the case law.
158. I find this Court’s ruling in Nipo Investment Ltd v. Nambawan Super Ltd, Luther Sipison, Secretary of Lands and Physical Planning and The State (2017) SC1642 relevant to the propositions that I make above. This Court stated:
8. As the Supreme Court has observed on multiple occasions, an appeal may be incompetent if it does not comply with the requirements of the Supreme Court Act and or the SCR: Haiveta v Wingti [1994] PNGLR 189, Neville v National Executive Council of Papua New Guinea (2015) SC1431 at [22], Papua New Guinea Law Society v Cooper (2016) SC1553 at [5].
9. In this case the material before the Court, both in the affidavit of Mr Shepherd and the application book itself, shows that Order 10, Rule 3(b)(i) and (ii) has not been complied with. The appellant refers to fairness in its submissions. While the strict application of these rules can lead to what may appear to be a harsh result, the need for parties to comply with Rules of Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. This Court has been consistent in finding that breach of Order 10, Rule 3(b)(i) and (ii) is fatal to an appeal. Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC907 and National Capital Ltd v Bakani (2014) SC1392 remain good law, and no reason has been advanced to us to persuade us that we should not follow these authorities. [Underlining is mine.]
159. Also in Benham Satah v Rabura Mataio (2016) SC1548, this Court stated the following:
20. The first and second respondents argue that strict compliance with Order 6, Rule 3(e) is a precondition to the Court exercising jurisdiction. Learned counsel for the first and second respondents, in submissions, has referred the Court to a number of Supreme Court authorities in support of this proposition. Those authorities include SC Ref No 4 of 1987; Re Central Provincial Government & NCDIC [1987] PNGLR 249 and SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, both of which concern special references made under Section 19 of the Constitution. Also there are Special Reference by Morobe Provincial Executive (2010) SC1089, which was a slip rule application, and SC Rev No 76 of 2011; Application by Morobe Provincial Government (2012) SC1190 and Namah v Pato (2013) SC1241.
21. In all these cases the Supreme Court struck out the reference or application in question because it was not signed by the correct person. These cases were ruled incompetent because they were in breach of the Rules, which require strict compliance. ...
But what such an interpretation is asking us to do is to throw over a considerable body of law on this point, which has been decided in a number of Supreme Court cases going back many years, and the Rules of the highest Court in the land. ...
27. The Rules refer to the Constitution, which is the paramount body of law of Papua New Guinea, and should not be lightly construed in a way, so as to create variations with other long established constructions. There should, in my respectful opinion, be no deviation from the Rules in these circumstances. There should be no room for creating exceptions or shades of interpretation in the application of the Rules of the Supreme Court, or for not insisting on strict compliance with the clear words of Order 6, Rule 3(e). [Underlining is mine.]
160. In Electoral Commission v Bire Kimisopa (2019) SC1810, Justice Hartshorn, sitting as a single Judge, stated at paragraphs 7 to 10 as follows:
7. The applicant concedes that the order of the National Court is not annexed to the affidavit of the applicant that supports the application for leave to review. However, the applicant submits that the judgment from the National Court is annexed and that the judgment contains the order of the National Court. Consequently, submits the applicant, the respondents are not prejudiced, there has been substantial compliance with Order 5 Rule 11 and so the application for leave for review is competent.
8. Notwithstanding that in this case only the order and not the judgment and order are not annexed to the supporting affidavit, in Tobias Kulang v William Gogl Onglo (2018) SC1714, Gordon Henry Wesley v Isi Henry Leonard (2018) SC1706 and Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763, only the order was not annexed, in fact situations similar to this case. In these cases the applications for leave were dismissed for failure to comply with Order 5, Rule 11 Supreme Court Rules.
9. As to the submission that there has been substantial compliance with Order 5, Rule 11, as only the order was not annexed and the judgment contains the order, and that a dismissal would be inconsistent with s 155(2)(b) Constitution and the purpose of Order 5, Rule 11 Supreme Court Rules, as I said in Tobias Kulang v William Gogl Onglo (supra) at [19]:
“As to this submission, as a judgment will contain orders made by the judge in the course of making his judgment, this fact was not considered sufficient when the Supreme Court Rules were made otherwise, “order” would not have been included in Order 5, Rule 11. Further, it is necessary to have a copy of the order of the National Court so that, amongst others, the date when the judgment took effect may be ascertained whether on the date of direction by the Court or the date of entry. I am not satisfied that Order 5, Rule 11 Supreme Court Rules has been complied with.”
20. In Michael Kandiu v Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:
“50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non- compliance will be fatal to the Review.
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) SC917). 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).”
10. Further, no application has been made by the applicant pursuant to Order 5, Rule 39 Supreme Court Rules to dispense with the requirement of Order 5, Rule 11 to annex a copy of the order to the supporting affidavit of the applicant. I concur, respectfully, with the following remarks of Dingake J in Wesley v Leonard (supra) at [23]:
“23. Order 5, Rule 11 of the Supreme Court Rules is couched in mandatory terms and ought to be complied with strictly unless excused by the Court on good cause shown.”
161. I would adopt these as my own. With that, I also note that in Michael Kandiu v Powes Parkop (supra), whilst Justice Davani’s decision was in the minority of the bench, her Honour’s views on law concerning mandatory application of the SCR were based on or consistent with past established Supreme Court decisions, like this Court’s decision in Fly River Provincial Executive (2007) SC917.
162. The Supreme Court In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917 stated at paragraph 29, and I quote:
29. It follows that we reject the argument that a breach of Order 4, Rule 1(e) can be remedied by giving a direction to the referrer to get the reference properly signed. The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nit-picking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.
163. In the most recent case, this Court in William Hagahuno v Johnson Tuke &Electoral Commission (2020) SC1966, held, and I quote in part:
(4) Though there is authority for the proposition that an application for review under Constitution, s 155(2)(b) that includes grounds of review without leave to argue them, is incompetent, resulting in the entire proceedings being dismissed, there is another line of authority that supports a less harsh approach and would result in any additional grounds being simply struck out, provided that the jurisdiction of the Court has been engaged by some remaining ground(s) of review, leave to argue which has been granted.
(5) The Supreme Court, not being bound by its own decisions, is entitled, when faced with conflicting lines of authority, to adopt that which is most appropriate to the circumstances of the case and advances the interests of justice.
164. This Court correctly captured the two views that exist in terms of how it views the application of the SCR to the jurisdictional challenges that come before it, for consideration.
165. However, given my view, which regards compliance with Order 5, Rule 19(e) of the SCR as mandatory, I will follow the authorities that I have set out above in my decision. But I will end with this remark that not all the provisions in the SCR are written in mandatory terms.
FINDING ON PRELIMINARY ISSUE
166. I would uphold the competency argument raised by the first respondent. I dismiss the reasons provided by the applicant in his submissions in response based on the reasons and case authorities that have been referred to above in my decision. In regard to Mr Lomai’s claim that the rules and Form have changed, I dismiss it as having no basis. Order 5 Rule 19(e) and Form 5B of the SCR currently remain in force. They have not been amended to the extent that they may be regarded as void.
167. As I have stated earlier, the applicant does not dispute how he has set out paragraph 3(e) in his application for review at page 11 of the Review Book. Under the said paragraph, the applicant sets out the decision of the National Court made on 1 March 2018. The applicant then does not attach a copy of the Order or the decision of the National Court as required under Form 5B, but he states there that, A copy of the National Court Order is annexed to the affidavit of Peter Charles Yama.
168. By so doing, I find that to be in direct breach of the mandatory provisions of the SCR, namely, Order 5 Rule 19(e). The applicant also failed to properly fill out and comply with the requirement under Form 5B. Form 5B is located at page 88 of the SCR. Not attaching a copy of the Court’s decision or Order to the Application for Review, is a mandatory breach.
169. That is not all. To make a reference in the application for review where it is stated that a copy of the Court order is elsewhere, is in itself evidence which goes to show that the applicant was well aware of the requirement, but has decided to make amends to Form 5B in the manner as he did. This to me appears to be a deliberate breach by the applicant. And if that is allowed or permitted, then the immediate questions that come to my mind are these, whether this Court, if not being strict on compliance with the SCR, may be opening up the floodgates, that is, by allowing litigants to dictate (i) what should or should not be included in Court forms or documents and (ii) how a rule or form should be interpreted or filled in, to meet their circumstances; whether the Supreme Court Rules may be stretched under the use or guise of the term substantial compliance; how would the term substantial compliance be defined? Whether this path may only lead to more uncertainties and whether that is good for administration of justice.
170. In conclusion, I find the application for review incompetent for want of form and in breach of Order 5, Rule 19(e) of the Supreme Court Rules. The application for review must therefore fail on this preliminary issue.
COSTS
171. Since no formal application has been filed by the first respondent to address the competency issue, I will order each party to bear their own costs of the application for review.
ORDER
172. I would order as follows:
173. BY THE COURT: It is ordered by majority (Salika CJ, Batari J, Mogish J, Cannings J; Anis J dissenting) that:
________________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Applicant
B S Lai Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2020/72.html