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Manase v Polye [2008] PGNC 44; N3341 (27 April 2008)

N3341

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 3 of 2007

BETWEEN

LUKE ALFRED MANASE
Petitioner

AND

DON POMB POLYE
First Respondent

ANDREW TRAWEN,
Chief Commissioner, Electoral Commission of Papua New Guinea,
Second Respondent

ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Third Respondent

Mount Hagen: Lay J.
2008: 24, 25 and 27 April

NATIONAL ELECTIONS - Organic Law on National and Local Level Government Elections s.208 (a) and 210 - parts of petition challenging results of elections not pleading facts struck out - whether remaining grounds of petition involve sufficient votes to likely affect the result pursuant to s215 and which would affect the result pursuant to s218 (1) of the Organic Law.

AMENDED PETITION - whether served - effect of non service.

Facts

The Respondents submitted that after the Court's ruling on objection to competency of the petition on the 17 April 2008 the remaining grounds of the petition no longer affected sufficient numbers of votes to go to trial because, (a) the allegation that 5223 votes were wrongly not counted was an error or omission of an electoral official, the Court must be satisfied that it would affect the result of the election, to determine that a recount would be required which could not occur because the Petitioner had not sought that relief; (b) the Court should further rule on the competency of a ground of the Petition not affected by its earlier ruling; (c) of the 5223 votes not counted, 1403 could not be included because they had been the subject of another ground of pleading that the integrity of those boxes was affected by illegal practices; (d) the Court should further rule on the competency of two grounds affected by the ruling of the 17 April 2008; (e) the amended petition adding the Third Respondent as a party had not been served and therefore the Petition should be struck out for non-compliance with Rule 6 of the Election Petition Rules.

Held

1. 1. A court ordered recount to discover if votes not counted would have affected the result pursuant to Section 218 of the Organic Law is not a relief, required to be pleaded pursuant to Section 208(b), it is an enquiry into the facts by the Court;
   
2. 2. The Court should not further consider the competency of a ground not disturbed by the ruling on competency as the Petitioner had no notice such an application would be made;
   
3. 3. The court should not disturb its earlier ruling on competency in respect of grounds where the effect of striking out parts of the grounds had been fully considered at the time of the ruling and nothing new had occurred since the ruling;
   
4. 4. The 1403 votes of the 5223 votes not counted, could be counted as votes affected by grounds of the petition, because the inconsistent pleading in respect of those votes had been struck out;
   
5. 5. There are sufficient votes affected by the remaining grounds of the Petition for the Petition to go to trial;
   
6. 6. The amended petition has not been served on the Second Respondent. The Petition will not be struck out; the Petitioner cannot rely on the amendment.
   

PNG Cases Cited
Dick Mune v Anderson Agiru & ors unreported Supreme Court judgment SC590 of 17 February 1998
In Results of the 1997 National Elections for the Chimbu Regional Electorate; Father Louis Ambane & The Electoral Commission of Papua and New Guinea v Thomas Tumun Sumuno [1998] PGSC 29; SC565 (1998)
Maino v Moi Avei [2000] PGSC 6; SC633 (2000)
James Marabe v Tom Tomiape (2006) SC827
EP 42 of 2007 Moses Murray v Andrew Trawen Electoral Commissioner, Electoral Commission of Papua and New Guinea and Michael Thomas Somare, decision of Sevua J. 10 October 2007
Sir Julius Chan v Ephraim Apelis [1998] PNGLR 408

References
National Court Election Petition Rules
Organic Law on National And Local Level Government Elections

Counsel
P. Mawa, For The Petitioner
P. Dowa, For The First Respondent
R. William, For the Second and Third Respondents

27 April, 2008

1. LAY J.: The Petitioner and the First Respondent were candidates in the National Election 2007 for the seat of Kandep Open. The First Respondent was the successful candidate and the Petitioner contests the validity of that election.
   
2. The Respondents made application pursuant to Section 210 of the Organic Law on National And Local Level Government Elections ("the organic law") with over 120 objections to the competency of the Petition. The court gave its ruling on those objections on 14 April 2008. The parties asked for time to consider the effect of the ruling and on 23 April 2008 the court received submissions from all of the parties on whether or not there still remained a viable petition after various paragraphs had been struck out of the petition by the ruling on objections to competency.
   
3. On the 7 April 2008 when the matter was first called I asked counsel whether the court was dealing with the original petition filed or the amended petition filed. The First Respondent's counsel informed the court he knew nothing about the amended petition. Subsequently the First Respondent made application that the petition be struck out, or alternatively that the Petitioner not be permitted to rely on the Amended Petition by reason of its failure to serve the Amended Petition on the First Respondent. That application was also heard on 23 April 2008.
   
4. This ruling relates then to both the issue of whether there is still sufficient grounds in the petition, if proven, likely to affect the results of the election pursuant to Section 215 of the organic law or which would have affected the results of the election pursuant to Section 218 of the organic law; and the issue of whether any order should be made in favour of the First Respondent pursuant to its application outlined at [3].
   

Whether There Is a Viable Petition

5. Having considered the arguments of the parties the issues to be determined on the question of whether there remains a viable petition are:
   
   1. how many votes are affected by the grounds remaining in the petition;
      
   2. can all of those votes be grouped together and treated in the same way or should those alleging illegal practices pursuant to Section 215 of the organic law be treated as potential evidence of matters by which "the result of the election was likely to be affected" and those grounds alleging errors and omissions be treated as is matters which potentially "did (not) affect the results of the election" pursuant to Section 218 in respect of which further enquiry would be required by way of the recount were appropriate;
      
   100. if a recount is required to determine whether votes affected by errors or omissions would have affected the results of the election, is it necessary that the Petitioner have sought specific relief of a recount, or can the court order a recount pursuant to Section 212 of the organic law even though such relief has not been sought by the Petitioner.
        
   4. should the court on the application of the First Respondent revisit paragraphs of the Petition to further determine their competency after parts of those paragraphs were struck out pursuant to the ruling on competency. If yes, what is the result of that further examination;
      
   5. is there still a viable petition?
      
6. It is important to emphasise that this ruling is still only dealing with the form of the petition, no evidence has been taken, and the sole question is are there sufficient grounds remaining in the petition, which if proven, would establish illegal practices affecting sufficient votes that are likely to affect the results of the election pursuant to Section 215 or errors and omissions involving sufficient votes which would have affected the result pursuant to Sections 218 of the organic law.
   

The Number of Votes Affected by the Grounds Remaining in the Petition

7. Each of the parties has submitted a table setting out their version of the number of votes affected by the remaining grounds in the petition. I have found that I cannot completely agree with any of them because I do not consider that they follow faithfully the pleaded grounds in the petition. In my view the following table demonstrates the number of votes affected by the remaining grounds:
   

Whether All Grounds of the Petition Can Be Treated As Likely to Affect the Results of the Election.

8. Section 215 of the organic law provides that the results of an election can be voided as a consequence of illegal practices if "the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void". An error or omission by an officer is not an illegal practice unless it is also an illegal practice specified in the organic law or a criminal offence under the Criminal Code. Breach of statutory duty is not an illegal practice: Dick Mune v Anderson Agiru & ors unreported Supreme Court judgment SC 590 of 17 February 1998. Therefore the appropriate test where breaches of statutory duty is involved is not the test of whether the results of the election are likely to have been affected as provided in Section 215. Allegations of errors or omissions must be given separate consideration against the test in Section 218 of whether they would affect the results of the election, as discussed in the following paragraph.
   

Whether an Order for a Recount Is Required to Be Pleaded When the Recount Is Solely to Determine Whether the Results of the Election Would Have Been Affected.

9. Ground E of the Petition alleges that 5223 votes contained in 8 ballot boxes were not counted by reason of error of the Returning Officer excluding them for an unlawful reason. The Second and Third Respondents submit that because this is not an allegation of an illegal practice, but an allegation of an error or omission of electoral officials, the Court must be satisfied that the result would be affected pursuant to the wording of Section 218(1) of the organic law. That provision is as follows:
   

"(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."

10. In the case of In Results of the 1997 National Elections for the Chimbu Regional Electorate; Father Louis Ambane & The Electoral Commission of Papua and New Guinea v Thomas Tumun Sumuno [1998] PGSC 29; SC 565 (1998), Amet CJ, Kapi DCJ at and Los J., by error of the electoral officials insufficient ballot boxes were provided and ballot papers were placed in patrol boxes. The Returning Officer correctly excluded the patrol boxes from the count, the boxes not being official approved boxes, according to law. The Court held that (a) not providing sufficient ballot boxes was an error on the part of the electoral officials; (b) the proper test under Section 21 8(1) with respect to errors or omissions of electoral officials is whether the results would have been affected, not whether the result is likely to have been affected, cf. the words of Section 215. The Court further held that where the means are available to count the votes not included in the original count, a recount should be ordered. This recount is not for the purpose of declaring the result afresh; but just for the purpose of discovering whether, if those votes had been included, the results would have been affected.
    
11. When a petitioner seeks a recount as relief pursuant to Section 208(b) of the organic law, he does so for the purpose of having the results of the election declared afresh and for the petitioner to be declared duly elected if the recount favours him or to void the election result. Such a recount can only include formal votes properly cast and not excluded for proper reasons by the Returning Officer.
    
12. When the Court orders a recount to discover whether votes not counted would have affected the result, votes can be included in the count, which have been excluded from the original count whether or not that exclusion was pursuant to a lawful decision of the Returning Officer. As for example in the Ambane Case where the properly excluded votes in the patrol boxes were counted.
    
13. I conclude that a recount ordered solely for the purpose of discovering whether votes excluded would have affected the result is not a relief which the petitioner must plead pursuant to Section 208 (b). Such a recount is simply part of the process of examining the evidence undertaken by the Court for the purpose of arriving at its conclusion of whether or not the petitioner is entitled to the relief he has claimed. The recount is itself not a "relief". I reject the Second and Third respondents contention that to obtain a recount for the purpose of discovering whether the results would have been affected, relief by way of recount must be pleaded, because such a recount is not relief. If the relief of a recount is pleaded and granted it may attract an order for costs in favour of the Petitioner not otherwise available at that stage of the trial: Maino v Moi Avei [2000] PGSC 6; SC 633 (2000) per Los and Injia J. J.
    
14. It must follow that the ground involving the 5223 votes must go to trial to determine whether or not there was an error on the part of electoral officials which would justify the court in ordering a recount to determine whether those votes would have affected the result. Accordingly, for the sole purpose of determining whether there remain sufficient grounds affecting sufficient votes to allow the petition to go to trial, the 5223 votes must be included with all of the other votes alleged to be affected by other grounds of the petition to determine whether if the grounds were all proven the result would be affected.
    
15. Submissions were made that two of the polling places which make up the group of ballot boxes totalling 5223 votes were Maru, 646 votes and Lumbipaka, 757 votes. Allegations at Petition paragraph B3 (c) in respect of Maru and Lumbipaka had been places at which no polling took place or the ballots were unlawfully marked, have been struck out. The Respondents submissions speak of the petitioner's "evidence" showing that the votes in these boxes should not be counted as not showing the integrity of the boxes. There is no evidence. No evidence has been taken. The most that can be said for this point is that it was inconsistent to plead at paragraph B3 (c) that the contents of the two boxes had been stuffed and were affected by illegal practices and then to plead at paragraph E5 and E8 that those boxes ought to have been counted by the Returning Officer. Now that there is no inconsistent pleading because paragraph B 3(c) has been struck out the point of inconsistency cannot be made.
    
16. As I said in the ruling of the 17 April 2008 at [169] the ground raised by the Petitioner in relation to counting is that the listed ballot boxes were rejected for an unlawful reason. If at trial the Respondents can show that boxes were not counted for lawful reasons, then the Respondents will succeed on those issues. That however is not a matter of pleading; it does not go to the form of the petition. It goes to the merits of the grounds pleaded which cannot be tested until evidence is called.
    
17. Of course, the Petitioner may consider his position with respect to these two boxes. If he is aware that evidence can be called to demonstrate that the Returning Officer had good grounds to believe that the ballot papers in them were not lawfully cast or that the ballot boxes were tampered with and integrity of the ballot papers in them were compromised and that the Returning Officer could lawfully exclude them in accordance with the provisions of Section 153A of the organic law, then there would seem little point in continuing to press that those boxes ought to have been counted. I am sure the ramifications will not be lost on the Petitioner, particularly as I demonstrate at [24] that the margin between total affected votes and the winning margin is less than 1700. If it is established by evidence that the 1403 votes were properly excluded; then if on a recount of the remainder of the uncounted votes more than 270 are found to be for the First Respondent the winning margin would exceed the number of votes affected. I arrive at that conclusion by the following calculation:
    

18. Of course the fact that the votes affected by illegalities, errors and omissions do not exceed the winning margin may not be determinative of the issue of whether the election should be voided. As the majority said in Maino v Moi Avei [2000] PGSC 6; SC633 (2000):
    

"... it is imperative that the Court should determine this issue in accordance with the 'substantial merits and good conscience of each case' as mandated by OLNE, s.217. In a case where the integrity of the vote cast in an election is not in issue and it becomes only a matter of votes in figures, as in Ambane's case, then the issue may be appropriately determined with reference to the number of votes which affected the result of the election. In a case where the integrity of the whole or some critical phase of the electoral process in an election is in question, such as in the present case, then the issue is more appropriate to determine, without reference to the number of votes affected. The question then becomes whether in all the circumstances the results of the election was arrived at through an electoral process, which was fair, open and democratic, and such that he can be reasonably concluded that the "results of the election" as a whole was in fact affected".

20. However, these issues do not arise before this Court for final determination until evidence is called. I therefore reject the submission that these votes, totalling 1403, cannot be counted in the number of ballot papers affected by the grounds of the Petition for the purpose of determining whether or not there is a viable petition.
    

Should the Court Further Revisit Questions and Competency with Respect to Remaining Paragraphs

21. The Respondents have submitted that I should revisit some of the grounds of the Petition where my ruling of the 17 April 2008 has struck out paragraphs, for the purpose of determining whether those grounds are still viable. The direction I gave in the ruling at [171] was "... to consider the effect of the ruling which I have made, and thereafter to make submissions to the court on whether or not there remains in the petition sufficient grounds, which if proven, would affect the result of the election". I therefore consider that it is open to the parties to make further submissions in respect of those grounds which have been altered by reason of my earlier ruling.
    
22. The Second Respondent makes further submissions with respect to Para 1, 2, and 3. The relevant paragraph B1 (e) was not affected in any way by my ruling of the 17 April 2008. Therefore the Petitioner could not be on any notice from the wording of my direction, that any of the parties would be making further submissions with respect to this paragraph. The Second Respondent has not placed the Petitioner on notice. In my opinion it would be completely unfair to the Petitioner to entertain further submissions on a ground in respect of which he could have no reason to believe there was to be an application to vary the court's earlier order. I note the Second Respondent's submission with respect to the case of James Marabe v Tom Tomiape (2006) SC 827, Hinchcliffe, Batari and Cannings J. J., where that case is cited as authority for the proposition that a judge can dismiss a particular ground on the basis of incompetence even after the Court has already made a ruling allowing the petition to go to trial. However, a study of that case shows that it approved the practice of dismissing a ground after the evidence called has failed to prove it. I do not regard it as authority for the proposition that a judge can or should rule twice on issues of competence before hearing the evidence. I declined to consider the submission.
    
23. The Respondents also seek to revisit the grounds related to Muyen, paragraph B2(g) of the Petition. What remains of this paragraph is an allegation that a fight broke out and there was no polling. And 476 persons were deprived of a vote. In my ruling of 17 April 2008 at [129] I held that an illegality, a general denial of a citizen's right to vote pursuant to Section 50 of the Constitution, was demonstrated by the facts pleaded. There is nothing new in the submissions put to me now and I make no change to my earlier ruling.
    
24. For the same reasons I reject the Respondents submissions and I make no change to my earlier ruling on Kokas 2 Polling Place.
    
25. I accept the Second Respondents submission that where the Petition challenges the integrity of a ballot box which was counted, in addition to counting those votes as votes affected, votes obtained by the Petitioner from that box should be removed from the Petitioner's total to arrive at an adjusted winning margin for the purpose of determining whether the grounds affect sufficient votes. The Second Respondent submits and I accept 275 votes for the Petitioner are involved. Deducting 275 votes from the Petitioner's total gives a revised winning margin of 18,946 (21,820 -2874).
    

Whether or Not Sufficient Grounds Remain in the Petition to Go to Trial

26. For the purpose of determining if sufficient Grounds remain in the Petition to go to trial, the number of votes affected by allegations in the grounds of illegal practices and the number of votes affected by allegations of errors or omissions can be aggregated because the difference in the way they are treated at trial goes to merits. When those votes are aggregated one arrives at the total of 20, 618 votes as demonstrated in the table at [7]. The First Respondent won the election by a margin of 18,671 votes at the first count, it being unnecessary to go to the preferences. For these purposes at [24] I have adjusted the margin to 18,946. Therefore if all of the grounds pleading illegal practices are fully proven, the errors in respect of insufficiency of ballot papers and early closing of the polls are proven, an error on the part of the Returning Officer is proven with respect to exclusion of the 5223 votes and a recount of those votes allocates 3551 of those votes to candidates other than the First respondent, the combination of votes likely to affect the result and votes which would affect the result, would exceed the winning margin.
    
27. In my view, because the result of the election was determined at the first count and there was no need to go to the preferences, the issue of preferences is irrelevant for the purpose of determining the question at hand.
    
28. I therefore conclude that there are sufficient grounds remaining in the Petition for the Petition to go to trial.
    

Service of the Petition

29. The First Respondent asserts that he was never served with the amended Petition and claims an order that the Petition be struck out on the basis of failure of the Petitioner to comply with the requirements of Rule 6 of the National Court Election Petition Rules alternately that the amended petition be dismissed.
    
30. The only difference between the original petition and the amended petition is the inclusion in the named parties in the amended petition of the Electoral Commission as Third Respondent.
    
31. The evidence for the First Respondent is that he was never personally served with the amended Petition that his lawyer was served with the Petition but not the amended Petition. As a consequence the First Respondent's documents do not bear the name of the Electoral Commission as Third Respondent.
    
32. The evidence for the Petitioner is that the amended petition was served on the lawyer for the First Respondent and on the First Respondent by serving on his personal staff members who went to collect the document from the police officer given responsibility to serve it.
    
33. Neither the Petitioner nor the First Respondent chose to cross examine the other party's witnesses, although the First Respondent gave notice requiring Miss Sally Tadabe, a lawyer in the Petitioner's firm, for cross-examination. Ms Tadabe attended in Mount Hagen from Port Moresby for the purpose of cross-examination. The First Respondent withdrew the requirement to cross-examine Ms Tadabe and gave an undertaking to the Court to pay the costs of her attendance. What those costs entail has been reserved for order at the completion of the case.
    
34. Having considered all of the evidence I prefer the evidence of the First respondent for the following reasons:
    
    1. Ms Tadabe in her affidavit said she was at particular pains to get things right, she consulted with Mr Manase and was informed that she need only serve the amended petition and not the original petition on Mr Dowa, lawyer for the First Respondent when he called at the office. Because the amended petition was not available she later took it out to the airport for the convenience of Mr Dowa;
       
    2. However, notwithstanding that Ms Tadabe alleges being so particular to serve the amended petition, the covering letter delivering the documents refers to "the petition" and not the amending petition;
       
    100. on the 7th of September Ms Tadabe swore an affidavit of service. That affidavit of service says that Ms Tadabe served "the petition", not the "amended petition". In fact the affidavit was very particularised in specifying that what was served was "petition dated and filed 23rd of August 2007" which are the same words employed in the covering letter. The amended petition was filed 24 August 2007;
         
    4. Ms Tadabe explains all these discrepancies as oversights or errors on her part;
       
    5. 10 days after the service of the documents on Mr Dowa, which took place on the 31 August 2007 Mr Dowa's firm entered an appearance for the First Respondent, the back sheet of which shows only the First and Second Respondents;
       
    6. taking all those matters into account, on the balance of probabilities I consider that the affidavit which Ms Tadabe swore on 7 September 2007, only seven days after service of the documents, is more likely to be accurate than the affidavit she has now sworn some eight months later explaining away the inconvenient discrepancy in the earlier affidavit. If as Ms Tadabe claims, the fact that there was a petition and an amended petition was uppermost in her mind, it seems most unlikely to me that she would overlook twice, and particularly when she was making an oath as to the truth of the document, that the reference was to the petition and not the amended petition. And I think that view is reinforced by the fact that on the back sheet of the entry of appearance filed by the First Respondent there is no reference to the Third Respondent. And yet if I accept Ms Tadabe's recent version, Mr Dowa was never in possession of the original petition. The amended petition had the addition of the Third Respondent underlined in red and the words "amended petition" underlined in red on the back sheet. If that was the only document in Mr Dowa's possession it seems to me improbable that reference to the Third Respondent would be omitted from the back sheet of the First Respondent's appearance. I conclude that it is fairly safe to draw the conclusion the amended petition was not the petition served on Mr Dowa.
       
35. Constable Michael Lingeno gave evidence that after a fruitless search for the First Respondent and after talking to him through an intermediary at the First Respondent's residence he made an arrangement by telephone with the First Respondent that the First Respondent's staff would be sent to collect the documents, which is what happened. No evidence is given of whether the policeman knew Mr Polye and how he was sure the intermediary was in fact passing the First Respondent's instructions, nor how he was sure that it was the First Respondent to whom he spoke on the telephone. The signature of the person allegedly receiving service on behalf of the First Respondent is illegible and the policeman gives no identification of that person.
    
36. Rules 7 of the National Court Election Petition Rules is in the following terms:

Mode of Service

(1) Service under this Rule may be effected by:

( a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approved.

37. It can be seen at once that the service affected by Constable Lingeno was not service in accordance with Rule 7. It was not personal service. It was not service by leaving the documents with a person apparently over the age of 18 years at the First Respondent's residence, although that method of service was clearly available, and the court had made no order for any other form of service. Service is not to be affected in accordance with any method that the First Respondent devices. It is a matter for the Petitioner to ensure that service is affected in accordance with the law. Rule 8 requires an affidavit of service to be filed within 14 days of service. No affidavit of service was ever filed in respect of the service by Constable Lingeno, I draw the conclusion that the Petitioner abandoned that "service". Nothing is going to be gained by attempting to rely on the service now, which was not in accordance with the rules and the facts of which contained no assurance that the document reached the First Respondent.
    
38. Where an election petition is not served at all the Court may exercise its discretion pursuant to Rule 18 to dismiss the petition: EP 42 of 2007 Moses Murray v Andrew Trawen Electoral Commissioner, Electoral Commission of Papua and New Guinea and Michael Thomas Somare, decision of Sevua J. 10 October 2007. However, where the failure is to serve amendments but not the original document, the failure of service only has the effect of preventing the Petitioner from relying upon the amendments: Sir Julius Chan v Ephraim Apelis [1998] PNGLR 408, Injia J.
    
39. I find on the balance of probabilities that the First Respondent was not served within the meaning of the Rules with the amended petition. The Petitioner therefore may not rely upon the amendment.
    
40. ORDERS:
    
    1. the Petition as amended by the ruling of the Court on the 14th revised 17 April 2008 shall go to trial;
       
    2. the Petitioner may not rely upon the amendment to the Petition filed 24 August 2007;
       
    100. Costs reserved.
         

_______________________________

Steeles Lawyers: Lawyers for the Petitioner
Paulus M. Dowa Lawyers: Lawyers for the First Respondent
Nonggorr and Associates Lawyers: Lawyers for the Second and Third Respondents