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Electoral Commission of Papua New Guinea v Kaku [2023] PGSC 31; SC2388 (5 March 2023)

SC2388


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCREV (EP) 01 OF 2020


APPLICATION UNDER SECTION 155 (2) (b) OF THE CONSTITUTION


AND
IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS


BETWEEN
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant


AND
PASTOR BERNARD PETER KAKU
First Respondent


AND
WILLIAM POWI
Second Respondent


Waigani: Kandakasi DCJ, Mogish and Shepherd JJ
2020: 29th October
2021: 05th March


JUDICIAL REVIEW – Review of decision of National Court sitting as Court of Disputed Returns – Decision subject of review concerns competency of petition - Proper pleadings – Relevant law and approach – Change in – No retrospective effect – earlier law applies – Pleading without particulars, contradictory and confusing – Trial Judge to apply liberal approach – No error.


JUDGMENT & ORDERS - Earlier decision on same petition but on a different objection disturbed in any manner or form – Effect of – Parties and Court bound

Facts


Following grant of leave for review, the applicant applied for a review of a decision of the National Court sitting as the Court of Disputed Returns under the Organic Law on National and Local–level Government Elections (Organic Law). The applicant with the support of the second respondent claimed the learned trial Judge erred in not dismissing an election petition filed by the first respondent against the second respondent for failure to meet the mandatory requirements under s. 208 of the Organic Law. It was contended that the first respondent had failed to properly and clearly plead the grounds for the petition and that the petition contained alternative or contradictory pleadings. The applicant and the second respondent also argued that the learned trial Judge was obliged but failed to adopt and apply the strict approach per Delba Biri v. Bill Ninkama [1992] PNGLR 342 and its corresponding line of cases when considering the objections, and that this resulted in a saving of 2 out of 9 grounds of the petition instead of a strike-out of all of the grounds of the petition for being incompetent. In response, the first respondent claimed his petition met the requirements under s.208 of the Organic Law with proper, clear and consistent pleadings of the grounds relied upon to overturn the second respondent’s election. The first respondent also argued that an earlier decision by Manuhu J in February 2019 on an objection to competency against the same petition filed by the second respondent resulted in a dismissal of all but 2 grounds of the petition, was binding on the parties and the Court, and as such it was irrelevant and unnecessary for the parties and the lower Court to review grounds which had already been considered and which had been struck out again, especially when the second respondent had failed in his attempt to have the decision of Manuhu J reviewed by the Supreme Court.


Held:


  1. Whilst appeals against a decision of the National Court on an election petition are prohibited by s. 220 of the Organic Law on National and Local-level Government Election (Organic Law), such decisions are reviewable under s. 155 (2) (b) of the Constitution.
  2. A review under s. 155 (2) (b) of the Constitution, not being an appeal, is only concerned with the decision-making process and not the substantive merits of a case.
  3. Unless a decision of the National Court is set aside or quashed or otherwise disturbed on proper appeal or review, the decision is binding on the parties and the Court.
  4. In this case, the earlier decision by Manuhu J, which was not disturbed in any manner, remains binding on the parties and the Court, and as such the grounds struck out by that decision were not open for reconsideration.
  5. The strict approach applied to election petitions as led by the decision in Delba Biri v. Bill Ninkama [1992] PNGLR 342 and its corresponding line of cases was revisited and replaced by the liberal approach following the dictates of s. 217 of the Organic Law initially by the decision in Paru Aihi v. Moi Avei (2003) SC720, followed by the decisions in Jimson Sauk v. Don Pomb Polye (2004) SC769, Ginson Soanu v. Bob Dadae (2004) SC763 and Philip Kikala v. Electoral Commissioner (2013) SC1295, which cases were recently affirmed by the decision in William Hagahuno v. Johnson Tuke & Anor (2020) SC2018.
  6. Although the decision in Hagahuno v. Tuke cannot have any retrospective effective, the decision merely reaffirmed the liberal approach to s. 217 of the Organic Law which already existed.
  7. The learned trial Judge was correct in taking a liberal approach and did not fall into identifiable error when she decided to strike out grounds of the petition which had been abandoned or that were duplicitous and no error of law occurred when her Honour refused to strike out other grounds in the petition which had minor inconsistencies with the facts pleaded, since what matters in an election petition for the purposes of s. 208 (a) of the Organic Law is to state the facts and not necessarily the grounds.
  8. Accordingly, the review was dismissed with costs and with orders to expedite the petition to trial on the surviving grounds.

Cases Cited:


Delba Biri v. Bill Ninkama [1992] PNGLR 342.
Jimson Sauk v. Don Pomb Polye (2004) SC769
Philip Kikala v. Electoral Commissioner (2013) SC1295
Burns Philp v. Rose Kekedo [1988-89] PNGLR 122
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No 2) [1982] PNGLR 44
Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138
Malipu Balakau v. Paul Torato [1983] PNGLR 242
SC Review No. 5 of 1988: Kasap and Yama [1988-89] PNGLR 197
SC Review No 8 of 1992: Application by Toffamo Simang Mionzing [1992] PNGLR 122
Electoral Commission of PNG v. Pastor Bernard Peter Kaku & William Powi (2020) SC1950
Ginson Soanu v. Bob Dadae (2004) SC 763
Paru Aihi v. Moi Avei (2003) SC720
William Hagahuno v. Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018
EP 73 of 2003 Benias Peri v. Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004)
Francis Koimanrea and Anor v. The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/2003)
Dr Bob Tawa Danaya v. Ati Wobiro (2013) SC1292
Sandy Talita v. Peter Ipatas (2016) SC1603
Mathias Ijape v. Biri Kimisopa (2003) N2344
Ludger Mond v. Jeffery Nape (2003) N2318
Peter Wararu Waranaka v. Richard Maru (2018) N7346
Steven Pirika Kamma v. John Itanu (2007) N3246
Kala Rawali v.Paias Wingti and Tom Olga v. Paias Wingti (2009) SC1033
Michael Sapau v.Parkop Posangat (2013) SC1256
William Powi v. Bernard Peter Kaku (2019) SC1856
Fairweather v. Singirok (2013) SC1293
Polem Enterprises v. Attorney General (2008) SC911
Philp Takori v. Simon Yagari & Ors (2008) SC 905
Bluewater International Ltd v. Roy Mumu (2019) SC1798
Kerry Lero v. Philip Stagg (2006) N3950
Tulapi v. Luta [2000] PNGLR 20
Tulapi v. Lagea (2013) N5235
Ekip v. Wimb & Duma.(2012) N4899
Kopaol v. Embel (2003) SC727
Agonia v. Karo [1992] PNGLR 463
Kimave v. Tore (2013) SC1303


Counsel:


Mr. H. Nii, for the Applicant
Mr. R. Diweni, for the First Respondent
Mr. A. Baniyamai, for the Second Respondent


05th March, 2021


1. BY THE COURT: Before the Court is a substantive review application filed by the Electoral Commission of Papua New Guinea (EC) against a decision of the National Court sitting as the Court of Disputed Returns under the Organic Law on National and Local-level Elections (Organic Law) following grant of leave.


Parties’ Arguments


  1. The applicant, the EC, is supported by the second respondent, the Honourable William Powi (Hon. Powi) and reference to the applicant or the EC in the course of this judgment includes reference to the Hon. Powi unless indicated to the contrary. The applicant claims the learned trial Judge (Berrigan J) erred in not dismissing the petition of the first respondent, Pastor Bernard Peter Kaku (Pr. Kaku). The EC contends that the petition failed to meet the requirement to strictly, clearly and consistently plead the facts as required by s. 208 of the Organic Law and as elaborated and enunciated by the decision in Delba Biri v. Bill Ninkama [1992] PNGLR 342, per Kidu CJ, Kapi DCJ and Andrew J.
  2. In response, Pr. Kaku points to his submissions before the learned trial Judge. In his written submissions in response to the objections, Pr. Kaku expressly indicated that he would not pursue (effectively abandon) the grounds that were struck out by Manuhu J in February 2019 (the Manuhu J decision), which decision is binding on all parties and the Court, especially when this Court decided against attempts for a review of that decision by Hon. Powi. Consequently Pr. Kaku argues again before us that, except only for the surviving grounds, namely grounds 4 and 6 of the petition, the other grounds do not exist.[1] Proceeding on that basis, Pr. Kaku’s learned counsel raised in the opening of his submissions at the hearing before us that the Court should only examine the surviving grounds of the petition. Further, Pr. Kaku as petitioner in his submission served before the trial conducted by the learned trial Judge also stated that he was defending the only two surviving grounds 4 and 6 as per the Manuhu J decision, and that all submissions against the other grounds in the petition were irrelevant and unnecessary.

4.. Further and in the alternative, Pr. Kaku argues that the learned trial Judge made no error in arriving at her decision by taking a liberal approach, which was encouraged by a number of decisions including the decisions in Jimson Sauk v Don Pomb Polye (2004) SC769, per Sakora, Sevua and Gavara–Nanu, JJ and


Philip Kikala v. Electoral Commissioner (2013) SC1295, per Salika DCJ (as he then was), Cannings and Kariko JJ.


Relevant Issues


5. From the parties’ arguments, the following issues are presented:


(1) Were the parties and the learned trial Judge at liberty to reconsider the competence of the grounds of the petition that were struck out by the Manuhu J decision?

(2) Subject to the answer to the first issue, was the learned trial Judge obliged to adopt and apply the strict approach per Biri v. Ninkama and its corresponding line of authorities?

(c) Subject to the answers to the first two issues, did the petition fail to meet the requirements of s. 208 of the Organic Law?


Relevant background and facts


  1. The background giving rise to these issues is straight-forward but it is one with a long history of litigation. On 02nd November 2017 Pr. Kaku filed a petition challenging the return of Hon. Powi as Governor of Southern Highlands Province. Both the EC and Hon. Powi filed separate notices objecting to the competency of the petition. Directions were issued for the conduct of the proceedings. Included in the directions was a direction for the filing and serving of affidavits within a specified time frame. Pr. Kaku did not comply. That caused Hon. Powi to apply for a dismissal of the petition, which was heard and refused on 21st February 2018 by Makail J. His Honour then extended time for Pr. Kaku to comply with the relevant order. Hon. Powi sought leave of the Supreme Court for a review of the decision. On 22nd November 2018, the Supreme Court (Yagi, Kariko and Polume JJ) heard and refused the application. Six days later on 28th November 2018, Hon. Powi filed an application claiming a slip in the ruling of the Supreme Court. That application remains pending.
  2. Subsequently the substantive matter went to a directions hearing and was listed for trial before Manuhu J. The trial commenced on 18th February 2019 before his Honour, who heard both the EC and Hon. Powi’s notices of objection to the competency of the petition. His Honour decided to strike out seven of the nine grounds of the petition. The two remaining grounds were those pleaded in grounds 4 and 6 of the petition. His Honour ordered a trial on those grounds commencing on 18th March 2019.
  3. However, when handing down his decision, his Honour dealt only with Hon. Powi’s objection to competency and did not in any way deal with that of the EC. Both Hon. Powi and the EC filed two separate applications under references SCRev (EP) 3 of 2019 and SCRev 4 of 2019 respectively, both of which sought leave of the Supreme Court to review the Manuhu J decision. Since the decision they sought to be reviewed was not a final decision in the petition, the applicants also sought to dispense with the requirement that only final decisions can be reviewed. Justice Hartshorn heard the “dispensation” applications and refused them. He held that there was no “requirement” to be dispensed with. The applicants then separately filed applications for review (or appeal) against Hartshorn J’s decision to the full Court.
  4. While the review applications were pending, the trial on the petition commenced on 18th March 2019 before Manuhu J. The following day, on 19th March 2019, Pr. Kaku closed his case. A no case submission was then made by the EC and Hon. Powi the same day. The trial judge reserved his decision on that submission to 20th March 2019 at 1:30pm.
  5. At 9.30 am on 20th March 2019 the Supreme Court review proceedings, SCRev (EP) 3 and 4 of 2019 went before the Supreme Court (Kandakasi, DCJ, Mogish and Dingake JJ). The Court raised with all parties the appropriateness of the proceedings in the different Courts being concurrently litigated. After having heard the parties, the Supreme Court decided to stay the proceedings in the National Court in due recognition and upholding of the hierarchy of the Courts and to avoid any possible conflicting outcomes, duplication of costs and depletion of the resources of the parties and the Court. The Court also proceeded to hear the review applications for dispensation and eventually granted them. That allowed the applicants to proceed with their leave applications.
  6. The substantive leave applications went before the Chief Justice Sir Gibbs Salika on 16th July 2019. On 16th August 2019 his Honour handed down his decision refusing leave for Hon. Powi’s application under SCRev (EP) No. 3 of 2019 but granting the EC’s application for leave in SCRev 4 of 2019. Eventually the Supreme Court (Kandakasi DCJ, David and Anis JJ) heard the EC’s review application and upheld it. Consequential on that decision, the Court ordered a rehearing of the EC’s objections before another judge. The rehearing took place before Berrigan J in the National Court on 11th March 2020. Her Honour first conducted a hearing of the objection to competency by the EC. On 03rd April 2020 Her Honour delivered her decision via Cannings J. The effect of her decision was the same as the Manuhu J decision. Her Honour decided to strike out seven of the nine grounds of the petition and upheld two grounds, grounds 4 and 6, as competent to go to trial. The EC, being aggrieved by that decision, sought dispensation and leave to proceed with a substantive review of her Honour’s decision, which application was granted by the Supreme Court (Kandakasi DCJ) on 11th June 2020.
  7. Pursuant to the leave granted, the EC filed its substantive review application on 15th June 2020. The application was listed for hearing on 29th October 2020, at which time we heard the application and reserved our decision.

Relevant Law on Review Applications


  1. We first remind ourselves of the law governing review of decisions on election petitions by the National Court. By reason of s. 220 of the Organic Law, appeals against such decisions are prohibited. However, reviews filed pursuant to s. 155 (2) (b) of the Constitution are possible. It is settled law that a review, not being an appeal, is limited only to the decision-making process and not the merits or the demerits of the decision itself: Burns Philp v. Rose Kekedo [1988-89] PNGLR 122, per Kapi DCJ, Amet and Cory JJ. The leading decisions generally on review are the twin decisions in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No 2) [1982] PNGLR 44, per Kidu CJ, Kearney DCJ, Greville–Smith, Andrew and Kapi JJ, which make it clear that an applicant must make out a case and the Court must find on the merits of the application that the applicant has demonstrated “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”. An insightful discussion of the relevant principles is found in those cases by Deputy Chief Justice Kearney.
  2. Subsequent decisions of both the National and Supreme Courts have followed those principles. The decision in Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138, per Kapi DCJ, Bredmeyer and Amet JJ, set out the applicable case law up to that point and concluded that the discretionary power of the Court should be exercised only where:
  3. The decision in Malipu Balakau v Paul Torato [1983] PNGLR 242, per the majority Kidu CJ and Andrew J, held that the review avenue under s. 155 (2) (b) of the Constitution is available and that s. 220 of the Organic Law, insofar as it purports to prohibit the review power of the Supreme Court “in any way”, is in conflict with s. 155 (2) (b) of the Constitution and is therefore invalid. That paved the way for judicial review of decisions of the National Court on election petitions. Subsequent decisions, such as the decision in SC Review No. 5 of 1988: Kasap and Yama [1988-89] PNGLR 197, per Kidu CJ, Kapi DCJ and Woods J, confirms that position. Later decisions as in SC Review No 8 of 1992; Application by Toffamo Simang Mionzing [1992] PNGLR 122, per Kidu CJ, Konilio, Sheehan, Brown and Salika JJ, have reaffirmed this position of the law and have held that an applicant in an election matter need only show that the ground relied upon satisfies the criteria set out in PNG v. Colbert (supra) as noted above.

Issue 1 - Were the parties and the learned trial Judge at liberty to reconsider the competence of the grounds of the petition that were struck out by the Manuhu J decision?


  1. With these principles in mind, we now turn to a consideration of the first issue. As noted, there was only one petition against Hon. Powi’s election arising out of the 2017 National General Elections. That petition attracted two separate objections to competency; one filed by Hon. Powi and the other by the EC. Both objections were heard at the same time by His Honour Manuhu J. As noted, his Honour decided to strike out all but two of the grounds of the petition. The grounds spared were grounds 4 and 6. This was based on Hon. Powi’s objection. Aggrieved by that decision, both the EC and Hon. Powi applied for a review of the Manuhu J decision. The application by Hon. Powi was denied whereas the application by the EC was allowed, mainly on the ground of denial of natural justice. The denial of natural justice was in his Honour’s decision not to make any ruling on the EC’s objection after having heard it.
  2. After a successful review, the EC’s objection to Pr. Kaku’s petition eventually went before Her Honour Berrigan J for rehearing. At the commencement of the trial, the petition had changed. The result of the Manuhu J decision and orders was that all of the grounds of the petition were struck out except for grounds 4 and 6. Hence, Pr. Kaku correctly indicated at the commencement of the trial that it was irrelevant and unnecessary for the parties and the trial Court to reconsider the already struck-out grounds. Instead, as Pr. Kaku properly submitted, the parties and the trial Court should solely focus on grounds 4 and 6 as being the only surviving grounds of the petition.
  3. We have not been assisted with any submissions from the EC or Hon. Powi as to what their submissions were in the Court below. Similarly, the EC and Hon. Powi have failed to assist this Court with any submissions on this point. As they have done in the Court below, it seems the EC and Hon. Powi wish this Court to proceed in total disregard of the effect of the Manuhu J decision on the petition.
  4. Relevantly, the learned trial Judge, when deciding to review the whole petition despite the Manuhu J decision, stated at paragraphs 5 to 9 of her decision as follows:

“5. I ruled that this Court was bound to hear the entirety of the Electoral

Commission’s notice of objection to competency for the following reasons.

Firstly, even assuming that the notices of objection of each of the First and Second Respondents were in similar terms, they remain separate and distinct. Secondly, the decision of the National Court on the First Respondent’s notice of objection to competency whilst arguably persuasive on similar issues is not binding on me. Thirdly and critically, the Supreme Court ruling in my view is very clear and is binding on me.


6. The Supreme Court found that, in breach of its right to natural justice, there was no hearing and no decision by the National Court on the Electoral Commission’s objection to competency. At [30] and [31] Kandakasi DCJ said:


“Having dismissed Pr. Kaku’s argument I turn to submissions of the Commission and Hon. Powi. As earlier noted, the Commission with the support of Hon. Powi is asking for a dismissal of the petition based on the grounds of its objection. In the alternative, it is asking for a declaration of a mistrial of the trial in the Court below and an order for a rehearing of its Objection before a different Judge. I am disinclined to granting the first relief. Strictly speaking, this relief cannot be granted without first considering the merits or demerits of each of the grounds for the Commission’s Objection. The National Court which is the primary decision maker has to first make a decision on merits or otherwise of each of the grounds of the Objection. Unless and until that is done, this Court cannot in the guise of judicial review delve into the substantive merits or otherwise of each of the grounds of the Objection.

A relief that can easily be granted is the one asking for a declaration of a mistrial of the trial now stayed before the National Court and order a rehearing of the Commission’s Objection. Such a relief is dictated by s. 210 of the Organic Law as discussed in the foregoing. Simply put, no trial on Pr. Kaku’s petition could be mounted until all objections to its competency had been determined on their merits. As already noted, of the two objections filed in the petition in this case, the learned trial Judge determined only one of them on its merits. The other, either remains to be determined or was determined without the provision of any reason. Hence, until the remaining Objection is determined on its merits, no trial on the petition is legally possible and or permissible. However, a trial was conducted contrary to the provisions of s.210 of the Organic Law. Accordingly, I would order the trial a mistrial and further order a rehearing and a determination of the Commission’s Objection first. If the petition survives the Objection, only will a trial on the petition be appropriate and could properly and legally proceed.” (emphasis mine):


  1. Similarly, at [64] Anis J said, and here I emphasise that he specifically considered the submission by the Petitioner that the objections to competency were similar:

“Finally, I refer to consideration 10. The first respondent alleges that the two objections were quite similar. As such, the first respondent submits that to ask for a rehearing would in fact be to have a second bite at the cherry. I find the argument baseless. Firstly and again, this Court’s role is to review the decision-making process and not the decision itself. In this case, the applicant is not asking this Court to determine the merits of its objection, like what the trial Court had done in relation to the objection application of the second respondent. Rather, the applicant is asking this Court to consider whether the trial Court, by its decision of 18 February 2019, failed to afford the applicant with natural justice. Secondly, we note that the principles of natural justice shall apply regardless of any similarities that may be alleged in relation to the two objections. Having said that, may I make this remark. I would have accepted this argument by the first respondent had the trial Court in its decision indicated that both applications were similar and that on that basis, that it was sufficient for it to make one finding that would apply to both objections. However, nothing of that sort was evident in the transcript or in the actual decision of the Court.” (emphasis added)

  1. Moreover, the Supreme Court at [72] unanimously upheld the review, declared the hearing of the Electoral Commission’s objection to competency on 11 February 2019 a mistrial and remitted the matter back to the National Court for rehearing. There is no ambiguity in those orders.
  1. Whilst it is not in dispute that the decision of the learned National Court judge on the First Respondent’s objection to competency remains on foot, that is a separate matter from that now before me. Accordingly, I proceeded to hear submissions on all grounds of the Electoral Commission’s notice of objection to competency.”
  2. We accept that this Court declared the trial before Manuhu J a mistrial for the reasons the Court gave. That was clearly in the context of a successful review application by the EC against no decision on its objection to the competency of the petition after it was heard on its merits. This Court on hearing and determining an application by Hon. Powi seeking leave for a review against the Manuhu J decision dealing with his objections, refused that application. Hence, insofar as the decision on Hon. Powi’s objection was concerned, it remained undisturbed following the refusal of the application for leave for review. Given that, the parties and the Court were duty bound to consider the effect of the Manuhu J decision on the petition, particularly when the decision in question struck out all but two grounds of the petition. That meant that only the two surviving grounds 4 and 6 remained to be dealt with.
  3. Instead of focusing on the remaining two grounds, it seems that at the behest of the EC and Hon. Powi, the parties and the Court reconsidered all of the grounds of the petition but this time on the basis of the EC’s objection to competency. With the greatest of respect, this was in total disregard of the Manuhu J decision. To the extent that the Manuhu J decision remained undisturbed, in our view an issue estoppel had arisen. The law on issue estoppel is very clear. The doctrine of issue estoppel is part of the doctrine of res judicata. These are well known concepts in our jurisdiction with a large body of case law. Kandakasi DCJ discussed the law on point in his decision in the related proceedings for this case, now published as Electoral Commission of PNG v. Pastor Bernard Peter Kaku & William Powi (2020) SC1950, at paragraphs 63–71, which need not be repeated here, save only to quote a statement of the principles in these terms:

“In short, the doctrine says where an action has been brought or an issue has been raised and judgment has been entered in that action or the issue, no other proceeding may be subsequently brought and maintained on the same cause of action or issue.”


  1. We iterate that the focus should only have been on the remaining grounds 4 and 6 of the petition, as was argued for by Pr. Kaku. To have considered the other grounds struck out by the Manuhu J decision would have been necessary only if those other grounds were completely different from those raised by Hon. Powi and had been considered by his Honour Manuhu J. The EC and Hon. Powi have not responded at all or made no submissions in response to that of Pr. Kuku, nor have they demonstrated in any manner that the grounds for the EC’s objection were different to those raised by Hon. Powi. In the absence of any such indication, in our respectful view what the parties and the lower Court did in effect was a review of that which had already done before Manuhu J on Hon. Powi’s objection. That could happen only in this Court on a successful review against the Manuhu J decision and not otherwise.
  2. There was a grave danger in the parties and the trial Court proceeding in the way they appear to have proceeded, despite the clear submissions of Pr. Kaku. The danger was in the reverse side of the EC and Hon. Powi’s submissions and or approach. If the learned trial Judge had arrived at a decision and outcome which was different and conflicted with that of the Manuhu J decision, we would certainly have had an untenable position with two conflicting decisions on the same petition. Fortunately, the decision of the learned trial Judge came to the same decision as the Manuhu J decision, which avoided such potential risk from materialising.

Answer to the question in issue 1


  1. For these reasons we are of the respectful view that the parties and the learned trial Judge were not at any liberty to reconsider the grounds that had already been struck out by the Manuhu J decision and orders. They were duty bound to focus only on the surviving grounds, namely grounds 4 and 6 of the petition, especially when this Court per the Chief Justice refused Hon. Powi leave to seek a review of the Manuhu J decision based on Hon. Powi’s objections. A rehearing on the surviving grounds would have been possible only if the grounds or arguments raised against those grounds were not raised in Hon. Powi’s objection to competency of the petition and only raised in the EC’s objection.

Issue 2 - Was the learned trial Judge obliged to adopt and apply the strict approach per Biri v. Ninkama and its corresponding line of authorities?


  1. We now turn to a consideration of the second issue. The issue is, was the learned trial Judge obliged to adopt and apply the strict approach when considering election petitions per Biri v. Ninkama and its corresponding line of cases?
  2. The present case concerns compliance with the requirements under s. 208 because of s. 210 as well as the application of s. 217 of the Organic Law. These provisions read:

“208. Requisites of petition.


A petition shall—

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

...

210. No proceedings unless requisites complied with.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

...

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”


  1. There is a very long list of Supreme and the National Court judgments as to the application of these provisions in election petitions. These judgments concern the interpretation and application of these provisions, but more particularly s. 208 because of the requirements of s. 210. One line of judgments led by the then leading case of Biri v. Ninkama stands for a strict approach. On the other hand, a number of other decisions led by the decision in Paru Aihi v. Moi Avei (2003) SC720, per Amet CJ, Los, Sakora, Injia and Sawong JJ, as recently approved and affirmed by the 5-member Supreme Court decision in William Hagahuno v. Johnson Tuke & Anor (2020) SC2018, stand for a liberal approach.
  2. The strict approach stands for the proposition that in order for a petition to meet the requirements of s. 208 and therefore qualify to proceed to trial, a petition must:
  3. Many petitions have been dismissed by decisions of the Courts for a failure to meet these strict requirements. In so doing, those decisions failed to allow an application of the provisions of s. 217 of the Organic Law at directions hearings and at the competency challenge stages. The Supreme Court in its two decisions in Jimson Sauk v. Don Pomb Polye {2004] SC769 and Ginson Soanu v Bob Dadae (2004) SC763 spoke against that strict approach.
  4. Both decisions effectively expressed the same sentiment. They spoke against too much lawyering by lawyers whose involvement in electoral petition proceedings is expressly not permitted as of right by s. 222 of the Organic Law. The decisions speak in particular against lawyers raising too many technical arguments and undertaking nitpicking exercises resulting in a ready dismissal of competent petitions which should otherwise have been allowed to go to trial. Reference to what this Court said in Sauk v. Polye demonstrates the point the Court was making. There the Court considered and endorsed the observations of Hinchliffe J. in his unreported judgment in EP 73 of 2003 Benias Peri v. Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) in this way:

“We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, when commenting on another National Court decision that had been relied on and referred to him:

‘With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s. 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately, we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases, whether justice was ever done or not will never be known because the case was never heard.”

(underlining ours)


  1. After unreservedly agreeing with and endorsing those sentiments and concerns of Hinchliffe J, the Court added:

“Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on s.208, s.209 and s.210 Organic Law, supra, or s.50 and s.103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter.”

(underling ours)


  1. The Court in Sauk v. Polye went on to add by quoting with approval Sakora J’s comments in Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03), where his Honour said:

“Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be, considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.


Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . .”

(underlining ours)


  1. Thereafter, the Court in Sauk v. Polye added:

“The Constitutional burden of organizing the machinery of an election, and particularly the poll and the count, rest, as has been repeatedly noted and emphasized over the years, entirely on the Electoral Commission (see, ss 126 and 127 Constitution, and s 5 Organic Law). Under the Organic Law, legal regulations and restrictions are provided to ensure as far as possible that election campaigns are fairly conducted. Bribery, treating and undue influence in the nature of duress are corrupt practices. Thus, to take such unmeritorious challenges to the competency of an election petition to their ludicrous extent, to countenance such challenges would mean that genuine legal/Constitutional challenges based on either the mandatory requisites under Organic Law (ss 208, 209 and 210) or the express limitation imposed by the Constitution (ss 50 (1) (a) and (b), and 103) would be stopped in their tracks, as it were, and irregularly elected candidates would assume office and perform or discharge public duties. Similarly, if a successful candidate were allowed to assume office when a petition against his election were attended by serious allegations of voting irregularities such as double or multiple voting, voting by unregistered voters, or by aliens, minors and convicted persons.

There is definitely, in our opinion, too much lawyering in the electoral process! There is too much unwelcome interference and influence by meddlesome legal eagles. The courts have a duty to be wary of these, and be ever mindful of the public interest that ought to operate both ways in election petitions. Because of the current climate of unnecessary and unmeritorious objections and challenges to election petitions, we must note that the election petitions in the late 1970s and early 1980s were never attended by the long drawn-out, interlocutory challenges and reviews upon reviews. These were straight-forward affairs that were dealt with by individual judges on circuits and disposed of speedily, both any preliminary issues as to Constitutional qualifications or otherwise, and the substantive allegations pursuant to the Organic Law.

Then in the 1990s the courts threw open their doors to all manner of applications and challenges. These quickly developed into what came to be described as objections to competency. Meritorious or not, everyone was heard, again and again on some invented grounds. We would respectfully describe the conduct of the election petitions then as an unmitigated disaster, though the eventual judicial determinations were conclusive of the issues and cannot be impeached here. So much so that these disastrous experiments of the 1990s led to the felt need to instill some order to the conduct and determination of election petitions.”

(underlining ours)

  1. The above decisions came after the 5-member Supreme Court decision in Paru Aihi v Moi Avei by the majority comprising Amet CJ, Los, Injia and Sawong JJ in the interpretation of the word “occupation” as used in the context of s. 208(d) of the Organic Law. The Court gave a broader and more liberal meaning reflective of the country’s realities to that word. They held that the word “occupation”:

“...simply means one’s trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one’s occupation. It cannot mean one’s place of origin such as Western Highlanders or New Irelander; a linguistic group such as Motuan or Engan; national status such as citizen or non-citizen, and racial origin such as Chinese or African and so on.”

  1. After defining the word “occupation” in that way, the Court went on to consider the word “villager”, which was used to describe the occupation of the attesting witness in that case. The Court noted:

“The word “villager” has an ordinary meaning to which resort to learned anthropological texts, legal treaties and English dictionaries to ascertain its meaning is unnecessary. Any ordinary Papua New Guinean will tell you what this word “villager” means or entails. To us, a villager is a person who comes from or lives in the village and does all the things a villager living in the village would do to make a living – gardening, fishing, hunting, raising animals, planting cash crops, or simply lazing away and using his wits to make a living off his relatives, etc. He is not engaged in any paid employment as those living in towns and cities. The Courts too have had no difficulty in accepting this word “villager” to refer to a person who lives in a village and is engaged in all these kinds of activities to make a living...

In our view, it is unrealistic to refer to a villager person by reference to any one particular trade or activity he engages in for his survival. For instance, on the one day, a person may mend the fence around his house, then go to the garden to plant or harvest crops, then go fishing, then attend to the pigs, then attend to his cash crops like coffee garden and so on. He may not be able to complete all these tasks in the one day and so he leaves some to the next day or the next week. The villager is the master of his own time and activity. So does every other villager who just about engages in the same kind of activity. It is unrealistic and impractical to introduce some artificial demarcations between a villager’s main activity and minor activities, his usual and unusual activities, or activities which occupy most of his time and which activities don’t; in order to define his precise occupation in the village.”

  1. Some ten years later in 2013 this fair large and liberal interpretation of the word “occupation” as used in s. 208 (d) of the Organic Law was applied by this Court in Dr Bob Tawa Danaya v. Ati Wobiro (2013) SC1292 where the Court said:

“...the learned primary judge actually found that the statement “Second Secretary to the office of the former Governor Western Province” would have been a sufficient description – if it were a correct description – of the witness’s occupation as it was a statement of what he did for a living. So his Honour did not fall into error in his assessment of the sufficiency of the description.”

  1. Despite these decisions, subsequent other decisions of this Court have continued to hold that Biri v. Ninkama was still good law and have followed it without exception. The decision in Sandy Talita v Peter Ipatas (2016) SC1603, per Batari, David and Bona JJ, is an example of a case on point. This has caused Judges sitting in the National Court to adopt and apply either the strict or liberal approach and some have employed both approaches. The president of this Court for example has in the National Court adopted and applied both the strict approach, as represented by his decisions in Mathias Ijape v. Biri Kimisopa (2003) N2344; Ludger Mond v. Jeffery Nape (2003) 2318 and Peter Wararu Waranaka v. Richard Maru (2018) N7346, and the liberal approach, as represented by his decision in Steven Pirika Kamma v. John Itanu (2007) N3246.
  2. At the same time, given the problems associated with adopting and applying the strict approach, there have been calls for a revisit of Biri v. Ninkama. These calls have been supported and headed by the Supreme Court. An example of a decision on point is Kala Rawali v. Paias Wingti and Tom Olga v. Paias Wingti (2009) SC1033, per Injia CJ. There the Court noted the need for a revisit of the decision in Biri v. Ninkama in this way:

“In Sauk v Polye (2004) SC 769, the Supreme Court advocated a more liberal and flexible reading and application of s 217. This was contrasted with the more literal and strict reading and application of provisions of the Organic Law including s 217 by the Courts in previous cases including the celebrated case of Biri v Ninkama [1982] PNGLR 342. The facts of the present case provide an opportune time to revisit these cases and set the proper principles for the interpretation and application of provisions of the Organic Law dealing the hearing and determination of election petitions and any post judgment hearing conducted by the Court following completion or otherwise of a Court–ordered recount of votes.”

  1. Four years later in 2013, this Court in its decision in Kikala v. Electoral Commission had a real revisit of the decision in Biri v. Ninkama, particularly in relation to the interpretation given to s. 217 of the Organic Law. There the Court observed, correctly in our view, at paragraph 19:

“For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:

‘It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.’ ”

  1. The Court in Kikala v. Electoral Commission was of the view that the time had come after the passage of 31 years since the decision in Biri v. Ninkama “to take a fresh approach to Section 217.” The Court then went on to state:

“We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.”


  1. As the Court noted, that fresh approach was set in motion by the decision in Saonu v. Dadae when it observed:

“With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.”

  1. This was strengthened by the decision in Sauk v. Polye, which “urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency.” The Court in Kikala v. Electoral Commission cited from Sauk v. Polye what we have quoted and reproduced in the earlier part of this judgment. The Court in Kikala v Electoral Commission then noted:

“... in more recent times the National Court has in some cases taken Section 217 into account when determining objections to competency, eg Steven Pirika Kamma v. John Itanu (2007) N3246 (Kandakasi J) and Peter Charles Yama v. Anton Yagama (2012) N4928 (Cannings J).”

  1. In Michael Sapau v. Parkop Posangat (2013) SC1256, per Inji CJ, this Court made it clear that s. 217 of the Organic Law is applicable during the various stages of case management from directions hearings through to the ultimate trial of an election petition. There, His Honour said:

“In election petition disputes, Section 217 and s212 (1) of the Organic Law give wide discretion to the judge to actively manage an election petition until its disposition. Such discretion and the active involvement of the judge in the management of an election dispute is essential to achieve a fair and prompt disposition of the real and important factual and legal issues in a case; and in the process, ensuring that the Court process is not abused or used as another forum for disgruntled candidates to air their political grievances or exact political vengeance on their political opponents.”

  1. Prior to Kikala v. Electoral Commission this Court in its decisions in Saonu v. Dadae and Sauk v. Polye had, as already noted, emphasised the need for flexibility when the Courts deal with an election petition, rather than adopting a strict approach given, among others, the provisions of s. 217 of the Organic Law. In William Powi v. Bernard Peter Kaku (2019) SC1856, the President of this Court, when rejecting an argument of the applicant, pointed out, with the agreement of the other members Mogish and Dingake JJ, that “the law has now changed as represented by the decision in Philip Kikala v. Electoral Commission...” His Honour then quoted the relevant part of the judgment in Kikala v. Electoral Commission and went on to observe:

“80. As the Court itself noted, it was not alone in taking that position. The Courts earlier decisions in Ginson Goheyu Saonu v. Bob Dadae (2004) SC763 and Jimson Sauk v. Don Pomb Polye (2004) SC769, had earlier taken that position. Since then, a number of National Court decisions, including my own decision followed that line of authority. My decision on point is the decision in the case of Steven Pirika Kamma v. John Itanu (2007) N3246.


81. These decisions represent the current position of the law. Hence, the

Applicant’s arguments against the application of s. 217 is without merit and is not likely to succeed.”


  1. The much called-for revisit of Biri v. Ninkama eventually came through the 5-member decision in Hagahuno v. Tuke (supra). The Court unanimously revisited Biri v. Ninkama and for good reasons given, opted for the liberal approach. The headnote to the judgment gives a summary of the Court’s decision in the following terms:

“1. In deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their ‘fair and liberal meaning’, and this applies in particular to s 217 of the Organic Law on National and Local-Level Government Elections, which dictates that 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’.


2. Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the country.”


  1. For the purposes of this review, we accept the submissions of learned counsel for the parties that the decision in Hagahuno v. Tuke does not and cannot have retrospective application: see Fairweather v. Singirok (2013) SC1293, per Mogish, Cannings and Poole JJ and Polem Enterprises v. Attorney General (2008) SC911, per Kirriwom, Cannings and Manuhu JJ. However, we note at the same time that the decision in Hagahuno v. Tuke was only reaffirming that which already existed. The 5-member Supreme Court decision in Paru Aihi v. Moi Avei and the later decisions in Danaya v. Ati Wobiro, Saonu v. Bob Dadae, Sauk v. Polye and Kikala v. Electoral Commission were already dictating the liberal approach.
  2. In this regard, we note and remind ourselves that one of us (Kandakasi DCJ) has taken the liberal approach. This was in the case of Kamma v. Itanu & Ors (supra). Applying the liberal approach, based among others on s. 217 of the Organic Law, His Honour allowed the petitioner to withdraw a particular part of his pleading to remove a contradiction. The decision in Kikala v. Electoral Commission approved the decision in Kamma v. Itanu. The decision in in Hagahuno v. Tuke effectively did likewise.
  3. In the event of conflicts in case authority in the highest Court of the land, one usually looks to the Supreme Court’s latest decision on point and the number of judges constituting the Court. As demonstrated above, the liberal approach meets these requirements. The learned trial Judge and the parties were bound by the 5-member Supreme Court decision in Paru Aihi v. Moi Avei, the then latest decision on point at the relevant time being the decision in Kikala v. Electoral Commission.

Answer to the question in issue 2


  1. The foregoing consideration clearly dictates an answer in the negative to the question in issue 2. That is to say, the learned trial Judge was not obliged to adopt and apply the strict approach per the Biri v. Ninkama line of corresponding cases. Her Honour was instead obliged to adopt and apply the liberal approach. That is what she has done. The EC and Hon. Powi confirm this in their submission. They submit that, despite the learned trial Judge having decided to adopt and apply the strict approach, her Honour in fact applied the liberal approach. Stating what approach the learned trial Judge was intending to take and what approach she actually took are two different things. Between the two, what matters is what her Honour actually did. In the decisions her Honour actually made, she applied the liberal approach, as she was required to do as a matter of law. There cannot be any error in that.

Issue 3 - Did the petition fail to meet the requirements of s. 208 of the Organic Law?


  1. We now turn to a consideration of the third issue. The question here is, did the petition meet the requirements of s. 208 of the Organic Law. This question will have to be considered and answered having regard to the fact that the Manuhu J decision remains undisturbed. For completeness, we consider each of the grounds of the review and the arguments for and against each ground.

Grounds of Review


51. The EC has pleaded a total of 15 grounds set out as grounds 5(A)(1)–5(A)(15) for its review application. Consistent with the parties’ submissions, some of these grounds can be dealt with together. We adopt that approach and deal firstly with grounds 1–5.


Grounds 1 - 5


  1. Grounds 1-5 of the Review essentially allege that the learned trial Judge erred in permitting and or finding that Grounds 1-3 of the Petition were withdrawn when in fact there was no formal application for such withdrawal and when the petitioner did not actually withdraw these grounds of his petition but chose not to pursue those grounds. That, the EC argues, denied the EC its right to natural justice. The denial of natural justice was in the EC not being given the opportunity to present its arguments against any such withdrawal. If the EC had been given the opportunity, it would have argued that when grounds 1–3 are read together with grounds 4, 5 and 7 of the petition, that would have clearly shown contradictions, confusion and duplicitous pleadings. That in turn would have formed the basis for a strike-out of grounds 1–3, 4–5 and 7 of the petition.
  2. The EC goes on to argue that the effect of the learned trial Judge granting Pr. Kaku leave to withdraw grounds 1–3 of his petition amounted to an amendment, which is prohibited by Biri v. Ninkama and its line of cases.
  3. There are several problems attending these submissions. Firstly, as noted under the first issue, grounds 1–5 of the petition were already struck out by the Manuhu J decision. Those grounds therefore did not exist to form any basis for any application and the learned trial Judge to strike out. Then as noted under issue 1 above, the EC and Hon. Powi led the Court below into an exercise that ignored the effect of the Manuhu J decision. That was clearly improper and a course not open to them. It was completely unnecessary and a waste of time of the Court below and of this Court’s time, and clearly an unnecessary lawyering, something spoken against by the decisions in Saonu v. Bob Dadae, Sauk v. Polye and many others.
  4. Secondly, as is submitted by learned counsel for Pr. Kaku, the petitioner did not seek leave of the Court below to withdraw grounds 1–3 of his petition. Instead, he chose expressly to abandon those grounds because of the Manuhu J decision which struck out those grounds of the petition, the Manuhu J decision not being disturbed at all. What the learned trial Judge decided to do with those grounds confirms an abandonment as opposed to Pr. Kaku seeking leave to withdraw them. The learned trial Judge decided to strike out grounds 1-3 of the petition on the basis of Pr. Kaku abandoning them. The following extract from the learned trial Judge’s decision confirms this:

“Further to his submissions filed 6 March 2020, grounds 1, 2 and 3 of the petition were abandoned by the petitioner at the hearing of competency and are struck out accordingly.”


  1. Hence, in a clear and deliberate judgment the learned trial Judge decided to strike out those grounds because the petitioner abandoned them. The argument that her Honour granted the petitioner leave to withdraw grounds 1-3 of his petition is obviously misconceived and is flawed. Consequently, it cannot be sustained.
  2. Thirdly, both the EC and Hon. Powi could at best expect either a strike-out of all or some of the grounds of the petition. The decision in respect of grounds 1–3 was a decision to re-strike out those grounds. The decision obviously went in their favour. Their complaint however is that the learned trial Judge did not give them the result in the way they wanted. They effectively wanted to have grounds 1–3 of the petition reinstated after the Manuhu J decision struck them out so that they could then argue there was a conflict or contradiction between those pleadings and grounds 4-5 and 7 of the petition. This was clearly a highly technical argument, which is expressly excluded by s. 217 of the Organic

Law as was confirmed by this Court’s decisions in Paru Aihi v. Moi Avei, Danaya v. Ati Wobiro, Saonu v. Bob Dadae, Sauk v. Polye and Kikala v. Electoral Commission which all dictated the liberal approach. The EC and Hon. Powi’s submissions also run contrary to the decision in Kamma v. Itanu, which was subsequently endorsed by the decisions of this Court in Kikala v. Electoral Commission and Hagahuno v. Tuke. In Kamma v Itanu the Court granted the petitioner leave to withdraw a contradictory or offending pleading in an election petition in order to do justice to the substantive merits of the case.


  1. For these reasons, grounds 1–5 of the review application cannot be sustained and are dismissed.

Ground 6


  1. This ground concerns ground 4 of the petition which was spared by both the Manuhu J and Berrigan J decisions. The EC’s contention is that facts pleaded in ground 4 of the petition could not be sustained and therefore ought to have been struck out. The basis for that contention is that at paragraph 52 of the petition Pr. Kaku pleaded that provincial returning officer (PRO) Steven Gore Kaupa made his declaration based on tally calculations ascertained by former PRO Jacob Kurap as at 28 July 2017. The figures referred to under paragraph 52 of the petition were the results relied on by PRO Steven Gore Kaupa at the time of declaration of results and were pleaded at paragraph 15 of the petition. Pursuant to paragraph 52 of the petition, one would ordinarily have expected the figures pleaded in ground 4 to be the tally board figures as at 28 July 2017 and as pleaded in the table under paragraph 15. Instead of doing that, ground 4 of the petition pleaded a different set of figures, which were not consistent with the base facts pleaded under paragraphs 15 and 52. The submission by the EC is that the figures pleaded at ground 4 of the petition were not supported by, or were not consistent with, the base facts.
  2. Reliance by the EC is placed on the following passage from Holloway v. Ivarato [1988] PNGLR 99, per Kapi DCJ, Los and Hinchliffe JJ, in support of its submissions:

“The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.”


  1. There are several problems attending this ground and submissions. The first problem is in understanding the effect of the decision in Holloway v. Ivarato and its application to the case at hand. What matters is the need to plead facts. That is all that s. 208 of the Organic Law requires. If the facts stated are clear as is submitted by the EC’s submissions, the problem attending what is pleaded in ground 4 of the petition is only a technical point which in turn is caught by s. 217 of the Organic Law, which obliges the National Court to 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.”


  1. Here the learned trial Judge gave serious consideration to what was pleaded. Her Honour was satisfied that the facts were sufficiently pleaded. She found no confusion or contradiction. She then held that the facts relied upon were “expressed in a sufficiently clear, concise and coherent way”.[2] We find no error in that. Further, if there were inconsistencies between the facts and the ground based on the facts, the facts from which the ground is derived should prevail.
  2. Secondly, following on from the first problem, is the argument that what is pleaded is not sustainable. This kind of submission is familiar in ordinary civil cases. An argument in these terms is often left for resolution at the trial. Usually, despite specific requirements in the National Court Rules such as O.8 generally and O.8, rr.29-36, it is well settled law in civil cases that a party should not be driven from the judgment seat except in the clearest of cases, where for instance, no cause of action known to law is disclosed. Given that, the Courts have always sought to do justice on the substantive merits in each case and to allow each party to have their day in Court: see Philip Takori v. Simon Yagari & Ors (2008) SC 905, per Kirriwom, Gavara-Nanu and Kandakasi JJ; Bluewater International Ltd v. Roy Mumu (2019) SC1798, per Kandakasi DCJ, Pitpit and Dingake JJ; and Kerry Lero v. Philip Stagg (2006) N3950, per Kandakasi J. These cases reflect the liberal approach to the process of pleading as prescribed by the various Rules of Court. When it comes to election petitions, by virtue of s. 217 of the Organic Law, following the liberal approach, technical arguments are excluded and the Court is instead to be “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities”. Here the EC, with the support of Hon. Powi, is trying to have a short cut to a question that must be raised and answered at trial. This cannot be allowed at the objection to competency stage.
  3. Thirdly, the learned trial Judge noted that the arguments suggesting contradictions and so forth concerning the pleadings at paragraphs 15, 51 and 52 were not part of the EC’s objections. These arguments were raised during submissions. Her Honour noted this in her decision which appears at page 318 of the Review Book. As Kandakasi J observed in Kamma v. Itanu, objection to competency of a petition is a technical issue. That being the case, respondents to election petitions who raise objections must ensure that they meet all technical requirements themselves. In keeping with this principle, the EC was obliged to ensure the basis for its objections were pleaded in its objections. Its failure to do so took their arguments outside the proper basis for the objections which went before the learned trial Judge. The EC and Hon. Powi do not address this issue in their submissions. In the circumstances, they are precluded from now raising this ground on review.
  4. Finally, the Manuhu J decision determined that ground 4 of the petition was competent. The Berrigan J decision did likewise. The observations we made in respect of the effect of the Manuhu J decision apply equally to the ground of the review that is under consideration here.
  5. For these reasons we also dismiss ground 6 of the review.

Ground 7


  1. This leads us to ground 7 of the review. This ground concerns ground 7 of the petition. The learned trial Judge struck out this ground. Her Honour reasoned that ground 7 was a repetition of ground 4 relying on the same facts. Having allowed ground 4 of the petition to stand, she decided to strike out ground 7.
  2. The EC argues that the learned trial Judge erred in law in coming to that decision without giving adequate reasons corresponding to the EC’s submissions. Also, the EC submits her Honour should have struck out both grounds 4 and 7 because these grounds were duplicitous of each other. The same facts and the same legal issues were pleaded and raised, which was an alleged breach of s. 168(1) of the Organic Law. The EC argues that in these circumstances it was not the duty of the Court to determine which of the offending grounds should remain and which of them should be struck out. However, at the same time the EC accepts that the Court does have power to strike out or dismiss petitions in their entirety or in part under s.212(1)(i) of the Organic Law. The EC then submits that this power has to be exercised on proper application being made before the Court by either of the parties. The EC submits that in the present case there was no application for withdrawal of ground 7 by the petitioner and that the EC had argued before her Honour for both grounds 4 and 7 to be struck out, and not for ground 7 on its own.
  3. Further, the EC argues before us that when the learned trial Judge on her own volition exercised the powers of the National Court under s.212(1)(i) of the Organic Law, her Honour effectively permitted the Court to “assist” the petitioner’s allegedly hopeless case by making it look acceptable at the expense of injustice to the other parties, especially when the petitioner did not ask for the relief granted. Additionally, the EC takes issue with the learned trial Judge’s reliance on Kikala v. Electoral Commission as authority for the proposition that pursuant to s.212(1)(i) of the Organic Law the Court can dismiss one or more grounds without dismissing the entire petition. In so doing, the EC argues that Kikala v Electoral Commission is distinguishable on the facts. The EC points out that in that case, the grounds of the petition which were dismissed had pleaded bribery and illegal practices.

The grounds of illegal practices were dismissed for inadequacy in the pleadings. The EC submits that this is not the same as the present case because there was no pleading of the relevant facts. At the same time however, the EC’s own submissions at paragraph 5:44 (i) (a) acknowledge that “Here, there are two equally properly pleaded grounds of the Petition that repeated each other.”


  1. The EC argues that it was erroneous for the learned trial Judge to strike out one of the offending grounds because this amounted to an amendment to the petition, which is prohibited after the lapse of the 40 days’ time limit under s. 208 (e) of the Organic Law according to Biri v Ninkama and the line of cases following it, including Tulapi v Luta [2000] PNGLR 20. Further, the EC argues that the learned trial Judge’s decision was unreasonable in the Wednesbury sense. The ECs says the unreasonableness is that although the learned trial Judge correctly cautioned herself, her Honour then unreasonably chose to strike out only ground 7 rather than both grounds 4 and 7 of the petition.
  2. As with the earlier grounds of this review application, there are number of problems with the EC’s arguments. The first is the effect of the Manuhu J decision. His Honour in a deliberate judgment came to a decision which also resulted in a strike-out of ground 7 of the petition. Consequently, as we have noted with the other grounds also struck out, no ground 7 existed for the parties to argue over or for the learned trial Judge to concern herself with. With the Manuhu J decision standing undisturbed, ground 7 of the petition was, with respect, not open for reconsideration and cannot be the subject of an objection.
  3. Secondly, the EC in its submission admits that both grounds 4 and 7 were competent grounds as stated at paragraph 5:44 (i) of its submissions. The only problem between these two pleadings, submits the EC, was that one was a repeat of the other. Clearly this is a technical issue which is excluded by s. 217 of the Organic Law. We repeat our discussion at paragraph 57 under the third issue attending the applicants’ arguments in respect of review grounds 1–5. On the basis of that discussion we are of the view that the learned trial Judge had the necessary power under s. 212 (1) (i) of the Organic Law and the decisions in Paru Aihi v. Moi Avei, Danaya v. Ati Wobiro, Saonu v. Bob Dadae, Sauk v. Polye, Kikala v. Electoral Commission and Kamma v. Itanu to strike out one of the two repeated pleadings.
  4. Thirdly, as we observed under grounds 1–5 and 6 of this review, Pr. Kaku did not seek a withdrawal of either ground 4 or ground 7 of the petition. At the commencement of the trial, Pr. Kaku correctly indicated that the Manuhu J decision struck out all the grounds of his petition except grounds 4 and 6. Pr. Kaku was therefore only defending the surviving grounds. As the petitioner, in view of the Manuhu J decision, Pr. Kaku was not at liberty to resurrect grounds of his petition which had already been struck out and which therefore did not exist. Hence, it was proper that Pr. Kaku did not seek any withdrawal or strike-out of ground 7 of his petition. The submissions by the EC proceeded in total disregard of the Manuhu J decision. The EC should not have been permitted to do so but the EC wrongly managed to reagitate before her Honour the same arguments they put before Manuhu J in this regard.
  5. For these reasons we dismiss ground 7 of the review application.

Grounds 8 - 11


  1. The EC decided to deal with grounds 9–10 of the review under ground 11. Accordingly, we deal with these grounds together.
  2. Under ground 11, the EC contends that the learned trial Judge relied on the decision in Potape v. Undialu (2018) SC1680 and Kikala v. Electoral Commission to hold that the pleading of alternative grounds is permissible as long as those grounds are not contradictory or confusing. However, the EC argues that in her Honour’s application of the law, she erred in failing to strike out ground 4 of the petition because:
  3. The EC submits that grounds 4 and 5 of the petition were expressly pleaded in the alternative to each other. The EC argues that ground 5 pleaded an alternative scenario which contradicted the facts pleaded at ground 4. The EC submits that in these circumstances both grounds should have been struck out together, instead of the Court choosing ground 4 over ground 5 and allowing ground 4 to proceed to trial. The EC says that the effect of this was to tacitly amend the petition outside the 40-day period stipulated by s.208(e) of the Organic Law.
  4. Grounds 4 and 5 of the petition read:

“Ground Four


(a) Newly appointed PRO Steven Gore Kaupa failed to complete and determine the result of the SHP Electorate by scrutiny and irregularly and prematurely declared the First Respondent thereby breaching Sections 142 and 168(1) of the Organic Law.

Ground Five


(b) Alternatively, PRO Steven Gore Kaupa failed to publicly declare the results of the SHP Electorate and the name of the First Respondent as required by Section 175(1)(a) of the Organic Law.”
  1. The EC relies in this regard on Tulapi v Lagea (2013) N5235 per Injia CJ, Ekip v. Wimb & Duma (2012) N4899 per Kandakasi J; Holloway v Ivarato, Kopaol v. Embel (2003) SC727 per Sawong J, Kirriwom and Batari JJ approving Sheehan, J in Agonia v Karo [1992] PNGLR 463, Kimave v. Tore (2013) SC1303, per Gavara-Nanu, Kandakasi and Cannings JJ, and submit that the law requires petitions to be coherent, clear and complete and they must avoid ambiguity, confusion and alternative pleadings, They must not be duplicitous. These pleadings in the petition, the EC submits, offended substantive law. Further, the EC submits, not only were ground 4 and ground 5 of the petition expressly pleaded in the alternative to each other, the scenarios presented by each ground contradicted each other and or were confusing.
  2. A number of difficulties attend these grounds of the review and the arguments pressed by the EC. The first is the fact that the EC’s challenge is levelled against the pleading of the grounds and not the factual basis on which the grounds were premised. As Pr. Kaku submits, the applicant has raised this objection out of proper context. The EC and Hon. Powi have not referred us to any pleading of the relevant facts, as opposed to grounds in the alternative, in a manner which was contradictory and confusing. A set of facts may give rise to more than one ground for an election petition. In such a case, a petitioner will be entitled to plead each of the grounds separately or as alternative grounds. This is what Pr. Kaku has done here. An upholding of the EC’s arguments would unnecessarily add an additional requirement to s. 208 (a) despite the injunction in s. 217 of the Organic Law that the National Court is to be guided, when dealing with an election petition, by the substantial merits of the case and good conscience without regard to legal forms and technicalities.
  3. Secondly, as noted in respect of the other grounds of the application, the EC has not considered the effect of the Manuhu J decision. We repeat the observations and comments we have made under the grounds considered earlier. In short, the Manuhu J decision, as already noted, struck out ground 5. Hence there was no ground 5 extant for the parties to argue over or for the learned trial Judge to concern herself with. Fortunately, her Honour came to the same decision as Manuhu J with the result that she also decided to strike out ground 5 of the petition.
  4. Thirdly, the decision of the learned trial Judge not to strike out ground 4 of the petition but ground 7 is the subject of grounds 6 and 7 of the review. We have dealt with those objections of the EC already. In the absence of any proper request and more so in the absence of any reasonable foundation laid for a revisit of the decision of the learned trial Judge in respect of those grounds, the decision of her Honour in this regard must stand.
  5. For these reasons, we dismiss grounds 8–11 of the review.

Grounds 11 - 14


  1. This leads us to grounds 11–14 of the review. These grounds concern the learned trial Judge’s refusal to strike out ground 6 of the petition.
  2. Ground 6 of the petition concerned a possible breach of section 175(1A) of the Organic Law. This provision states:

“175(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result: –


(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.”
  1. According to the EC’s submissions, the facts pleaded in support of this ground allege that the power to make a declaration under special circumstances lies with the Electoral Commissioner. Ground 6 pleaded that the Electoral Commissioner did not withdraw his direction given to PRO Steven Gore Kaupa on 08th September 2017 so PRO Kaup did not have power to declare the results.
  2. The objection raised by the EC during the hearing was that the alleged direction pleaded under this ground was ambiguous in that it contradicted the background facts. The EC pointed out that the facts pleaded at paragraph 43 of the petition stated 05th September 2017 was the date the EC gave a direction to PRO Kaupa. That was the only direction pleaded. There was no pleading of any other direction. The contention by the respondents in seeking to have the petition dismissed by the trial Court was that the date of the EC’s direction referred to in ground 6 as 08th September 2017 was not supported by the base facts. Further, it was submitted that the pleading of correct dates was critical, especially if the direction was going to be a basis for a ground of the petition. The pleading of the two different dates, one in the base facts and the other in ground 6, meant that there were two different directions on two different dates. For the purposes of informing the Court and the respondents to prepare their case, the correct date of the EC’s direction was required to be pleaded. Before us the EC points out that only one paragraph, paragraph 6.4 under petition ground 6, pleaded facts. The other supporting paragraphs at best pleaded the law or the procedure. In these circumstances, argues the EC, ground 6 should have been struck out for being ambiguous and contradictory to the facts pleaded elsewhere in the petition.
  3. Her Honour considered this objection at paragraph 63 of her decision. She did not find the pleadings of facts confusing. There was only one direction given and that direction was not complied with. In that context the learned trial Judge found that “the specific date of the direction by the Commissioner is not material”. That finding, submits the EC, demonstrates that the learned trial Judge fell into error because the finding was not supported by the pleadings.
  4. We have difficulty accepting the EC’s submission, as supported by those of Hon. Powi, for a number of reasons. Firstly, the finding the learned trial Judge came to on this issue was open to her. For all intents and purposes, only one direction was issued by the EC and that direction not having been complied with was pleaded. There was no pleading that spoke of two different directions at two different dates in order to cause any confusion. As we noted earlier in the context of the other grounds of the review, what matters in an election petition is the facts pleaded and not the grounds drawn from or based on those facts. Obviously, if any fact stated in a ground drawn from any pleaded facts contradicts a statement in a ground, that which is stated in the ground will have to give way to the facts pleaded in a ground in place of those stated in the facts. These are minor errors and omissions which can be ignored or cured by amendment by virtue of ss. 217 and s. 212 (1) (i) of the Organic Law. We adopt without repeating ourselves our earlier discussion on the meaning and effect of these provisions here.
  5. Secondly, we also adopt our consideration as to the effect of the Manuhu J decision on the petition. Again, the EC and Hon. Powi made no submissions in respect of that decision and its effect.
  6. For these reasons we also dismiss grounds 11–14 of the review.


Ground 15


  1. We now turn to the remaining ground of review, namely ground 15. By this ground, the EC claims the learned trial Judge erred in referring the petition for hearing on the two surviving grounds 4 and 6 back to the Judge Administrator of Election Petitions Track with a view to having the matter transferred to Manuhu J for continuation of trial. Responding, to that submission, Pr. Kaku says the learned trial Judge did not make any such order. Her Honour only decided to refer the matter back to the Judge Administrator of the Election Petitions Track for further directions for trial.
  2. This controversy can easily be resolved by reference to what the learned trial Judge order actually ordered. The relevant part of her Honour’s orders is order number 6. That order reads:

“6. The petition is referred to the Judge Administrator Election Petition Track for directions.”


  1. This order is very clear and it does not leave room for any suggestion in the way the EC has framed its review ground 6 and the way counsel for the EC argued before this Court.

This is at best mischievous on the part of the EC as it seeks to add to the learned trial Judge’s orders an element she did not include. Consequently we find there is no merit in this ground of the review. Accordingly, we dismiss this ground.


End Result of the Application


  1. Ultimately, we have decided to dismiss all grounds of the application for review. That leaves the application with no ground to stand upon. Overall, we find the EC has not made out a case for review in that it has failed to demonstrate to our satisfaction that:
  2. Accordingly, we make the following orders with a view to expediting the petition to trial in view of the next National General Elections fast approaching:

________________________________________________________________

Harvey Nii Lawyers: Lawyer for the Applicant

Diweni Lawyers: Lawyer for the First Respondent
Baniyamai Lawyers: Lawyer for the Second Respondent

[1] See page 62 paragraphs 23 of the Review Book.
[2] See page 319, paragraphs 18-20 of the review book.


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