N6684
                                            PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]
	
EP. NO. 14 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE 2012 NATIONAL ELECTION FOR KANDEP OPEN ELECTORATE

BETWEEN:
LUKE ALFRED MANASE
Petitioner

AND:
DON POMB POLYE
First Respondent

AND:
THE ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Goroka: Yagi J
2017: 13th & 23rd March

ELECTION PETITION – Supreme Court ordered recount – National Court ordered to make a declaration after the recount -.new or fresh allegation of errors and omission – genuine mistake in entry of figures on Forms 66A and 66B – threshold issue of jurisdiction - whether the National Court has jurisdiction to entertain fresh allegation – no jurisdiction vested in National Court to inquire into fresh or new allegations following a Supreme Court ordered recount.

Cases Cited:
Delb Biri v Bill Ninkama [1982] PNGLR 99
Mathias Ijape v Electoral Commission of Papua New Guinea (2002) N2437
Peter Charles Yama v Anton Yagama (2013) N5354	
Paias Wingti v Kala Rawali (2010) N3982
Re Maino v Avei and Electoral Commission (2000) SC633
SCR 1 of 1999 Re Recount of Votes [1990] PNGLR 441
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Sir Barry Holloway v Aita Ivarato [1988] PNGLR 342	
Trawen v Wingti (2009) SC1003
	
Counsel:

C. Copland, for the Petitioner
D. Piam, for the First Respondent
R. William, for the Second Respondent

RULING

23rd March, 2017

1.	YAGI J: On 2 May 2016, I, sitting as a National Court pursuant to s. 206 of the Organic Law on National and Local-Level Government Elections (Organic Law) delivered a final decision following a trial on a petition by the petitioner challenging the election or return of the first respondent following the 2012 National General Elections. The petition was successful in part where I upheld one of the four grounds in the petition and ordered, amongst others, that the 5 ballot boxes that were set aside by the Returning Officer during the scrutiny process be counted and a declaration of the winner be made by the Returning Officer within 30 days.

2.	After the decision the petitioner and first respondent filed separate reviews in the Supreme Court (SC Review (EP) No. 1 of 2016 and SC Review (EP) No. 2 of 2016). Both reviews were later consolidated and heard by the Supreme Court. The Supreme Court delivered its judgment on the reviews on 6 September 2016. I have not seen a copy of the Supreme Court judgment. However, the orders arising from the judgment are in the following terms:

1.	Both applications for review are upheld in part as is demonstrated by the outcomes for each of the summarised grounds.

2.	Order 1 of the National Court made on 2 May 2016 in EP No. 14 of 2012 is quashed and set aside.

3.	Order 2 of the National Court made on 2 May 2016 in EP No. 14 of 2012 is varied in that there be a recount of all ballot boxes for the whole Kandep Open electorate which must include ballot papers in the five excluded ballot boxes from Lugutenges No. 1, Kombros No. 1, Kambia No. 1, Maru and Imipiaka.

4.	Order 3 of the National Court made on 2 May 2016 is quashed and set aside.

5.	The Electoral Commission is directed and ordered to conduct a recount of all ballot papers for the whole Kandep Open electorate which must include ballot papers in the five contentious ballot boxes from Lungutenges No. 1, Kombros No. 1, Kambia No. 1, Maru and Imipiaka at Wabag within thirty days from today and the laws applying to scrutiny of votes shall apply.

6.	The results of the recount be presented to the National Court for a declaration of the winner.

7.	For the avoidance of doubt, Hon Don Pomb Polye will remain in office as the Member for Kandep Open Electorate pending the outcome of the recount.

8.	Parties bear their own costs.

9.	Security for costs posted by Hon Don Pomb Polye and Luke Alfred Manase in accordance with the Supreme Court Rules shall be refunded to each of them forthwith.

3.	On 13 March 2017 the parties involved in the petition appeared before me sitting as the National Court pursuant to the Supreme Court order number 6. That order specifically directed that “[t]he results of the recount be presented to the National Court for a declaration of a winner.”

4.	At the hearing, apart from receiving the result of the recount, this Court was informed that two applications have been filed and are pending hearing by the Court. The first is the application filed by the petitioner on 14 December 2016. The second is the application by the first respondent filed on 16 January 2017. The first respondent has also filed objections with regards to certain affidavits filed by the petitioner. The applications filed are in the form of notice of motion.

5.	The petitioner’s notice of motion seeks a number of orders and these are:

1.	Pursuant to s.212(1)(f) of the Organic Law on National and Local–Level Government Elections a declaration that Don Pomb Polye was not duly elected as member for Kandep Open Electorate.

2.	Pursuant to s.218(1), s.212(1)(h), and s.212(3) of the Organic Law on National and Local–Level Government Elections the Kandep Open Elections 2012 is declared void.

3.	Costs of the proceedings to the Petitioner to be paid by the Second Respondent on solicitor client basis.

4.	Any other orders the court deems fit.

6.	The first respondent’s motion seeks orders for the result of the recount to be accepted, that a formal declaration be made and for dismissal of the application by the petitioner. Specifically the orders sought are in these terms:

1.	Declaring that the recount of ballots of Kandep Open as ordered by the Supreme Court on 06th September 2016 in proceedings SCR (EP) No. 1 and 2 of 2016 was completed on 07th October 2016.

2.	Declaring that the First Respondent reached absolute majority of votes from the recount as concluded on 07th October 2016 and contained in the Tally Sheet Form 66B as required by term 6 of the Supreme Court orders made on 06th September 2016 and in the exercise of its powers under section 212(1)(d)(i) of the National and Local Level Government Elections (“the Organic Law”).

3.	Declaring that Don Pomb Polye, the First Respondent be confirmed as the Member for Kandep Open Electorate as required by terms 6 of the Supreme Court Orders of 06th September 2016 in the exercise of its powers under section 212(1)(d) & (3) of the Organic Law based on the result of the recount as concluded on 07th October 2016.

4.	That the Petitioner’s Notice of Motion filed 14th December 2016 be dismissed on the following grounds:

(a)	Of lack of invoking or stating the precise jurisdiction of the National Court to summarily determine a Petition or related actions.

(b)	Of the application being filed in abuse of the Court process and contrary to Section 206 of the Organic Law.

5.	That the Petition filed on 22nd August 2012 by the Petitioner be dismissed pursuant to section 212(i) of the Organic Law.

6.	That the Second Respondent pays the costs of this application.

7.	Such other or further orders the Court deems fit to do justice in the circumstances of the case.

7.	The parties were invited at the outset to address the Court on the threshold issue of jurisdiction as to whether the Court has jurisdiction to entertain the competing applications. The parties made submissions (both oral and written) on that issue and also went on to address on the substantive merits of the competing applications. For the purpose of deciding the issues raised by the parties the threshold issue will be the first to be decided and depending on the outcome the Court will turn to the merits of the competing applications. This is the position the parties agree.

Relevant Background Facts

8.	It is necessary to state the relevant facts giving rise to the competing applications and the need to consider the threshold question of jurisdiction. These facts are not disputed. 

9.	On 6 September 2016 the Supreme Court ordered, amongst others, for a recount of all of the ballot papers for Kandep Open Electorate.

10.	The recount was conducted at the Wabag Primary School, Wabag, Enga Province. It commenced on 1 October and concluded on 7 October 2016. The counting and scrutiny of the ballot papers proceeded and ended without incident or controversy. During the recount the figures were progressively tallied and entered onto the official Tally Sheets namely Forms 66A and 66B. At the end of the primary count no candidate was able to muster the absolute majority of the votes. The recounting therefore went into the elimination process. At end of exclusion count No. 34 the Returning Officer appointed for the conduct of the recount announced publicly that a candidate had scored the absolute majority, that is, 50% plus 1 of the votes counted. At that point the counting ceased and everyone present at the counting centre agreed and accepted that a candidate had scored the absolute majority of votes. Those present included the counting officials, candidates and the scrutineers of candidates. The Returning Officer then went through a process of verification or purity check and finalised the Forms 66A and 66B ready for presentation to the National Court for a formal declaration to be made pursuant to the Supreme Court order of 6 September 2016.

11.	On 1 November 2016 the Returning Officer, Mr. Alwyn Jimmy, filed an affidavit in the National Court revealing errors made in relation to the manner in which the absolute majority figure was reached on 7 October 2016. The essence of his affidavit is that due to the error in calculating the absolute majority of votes none of the candidate still running had in fact reached the absolute majority figure and therefore the recount will have to continue until a candidate reached the absolute majority of votes. This error was detected about 10 days after the end of recount. 

12.	However, the dilemma and frustrating thing is that certain criminal elements had broke open the container which contained the remaining two ballot boxes and removed them. These boxes containing ballot papers cannot be located or found and hence it is not possible to continue with the recount. The consequence is that it is impossible under the circumstances for a candidate to reach the absolute majority of the votes.

Threshold Issue - Whether the National Court has jurisdiction or power to hear the applications 

13.	The petitioner submits the National Court is vested with jurisdiction in that it has the discretion to investigate and determine any issue following a recount and that a precedent is set in the case Paias Wingti v Kala Rawali (2010) N3982. It is submitted that case stands for the proposition that a party has a right to challenge the result of a recount. The petitioner also relies on a statement made by the Supreme Court in SCR 1 of 1999 Re Recount of Votes [1990] PNGLR 441 where it was said:

“Where a recount of votes is ordered on the hearing of an election petition, all ballot papers, including votes under s 118, are subject to scrutiny, and the court may satisfy itself of the result of the recount in any way it may deem just, guided by the “substantial merits and good conscience of each case without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not” as provided for in s 194 of the Provincial Government Elections Act (Ch No 56)”. 

14.	The petitioner further relies on the following statement in summary by the Supreme Court in Trawen v Wingti (2009) SC1003 found at paragraph 40 of the judgement:

“In summary we are of the view that the trial judge was correct in allowing the parties to make further representations upon presentation of the Returning Officer’s Report of the Recount”.

15.	In this case the petitioner says that there is clear evidence that no candidate had scored the absolute majority, and, coupled with the fact that the final result cannot be lawfully ascertained because of the loss of the remaining ballot papers, the election for Kandep Open must be deemed to have failed and the first respondent is not duly elected and therefore the election should be declared absolutely void. Counsel submits the jurisdiction of the National Court is also preserved by the Supreme Court order of 6 September 2016.

16.	The first respondent made a contrary submission. Counsel for the first respondent submits the National Court has no jurisdiction. Counsel relies particularly on paragraphs 21, 22 and 23 of the judgment of the Supreme Court in the Trawen v Wingti case (supra). There the Supreme Court said:

18.	We disagree with His Honour’s choice of the two options. In election petition cases, interest of justice is not only determinative factor that must be guide and dictate to the court as to the final outcome of a petition trial. Going to elections and choosing a representative by the constituents of a leader to represent them in Parliament is not about doing justice to anyone. It is about choosing a leader that the majority wants.

19.	In this case, the majority choice was clear from the declaration of the results following the scrutiny of the votes in 2007 when Tom Olga polled 141,286 votes and Paias Wingti scored 137,981, a difference of 3,305 votes which result was challenged. Following the court ordered recount in 2008 the result was Tom Olga scored 140,246, a reduction of 1040 votes and Paias Wingti scored 139,242 votes, an increase of 1,261 votes. Tom Olga still led the tally at close of recount albeit with reduced margin but still maintained the lead, although not a commanding lead. But the issue at trial was not whether Tom Olga had the required percentage vote to be declared the winner. He was declared the winner after all the allowable ballots were counted and he was the leader of the two competing candidates and by law the one with the majority of the votes must win. This race was designed to find a winner by a comfortable margin.

20.	If there was any ground for the trial judge to declare the election null and void, that ought to have been his decision on 14 March 2008, but he expressed no such view in his judgment on the petition. However, to declare the election null and void after receiving new evidence of foul-play in the court-ordered recount which is only concerned with counting or re-checking of the votes and no more is going beyond the realm of fair trial and speedy disposition of the case without undue suspension of the majority wish being realised. There is legitimate grievance when the original petition is circumvented by subsequent events that lead the National Court to an outcome based on new facts not pleaded in the petition. It does not render sections 208, 209 and 210 superfluous and meaningless.

17.	The second respondent’s submission essentially compliments and supports the submission by the first respondent.

Analysis and Reasons for Decision

18.	It is trite that the jurisdiction of the National Court in dealing with an election petition emanating from a National Election (s. 2 of the Organic Law) is special and exclusive. It is special because it concerns with one of the special rights of citizens guaranteed by the Constitution being the right to vote and stand for public office (Constitution, s. 50): see Mathias Ijape v Electoral Commission of Papua New Guinea (2002) N2437. It is exclusive because the Organic Law says that only the National Court has jurisdiction to hear and determine an election petition. This is expressly provided by s. 206 of the Organic Law. It states -
206.	Method of disputing returns.
The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

19.	The Organic Law also provides that a decision of the National Court is final, conclusive and cannot be appealed against or questioned in any way (see s. 220 of the Organic Law).

20.	A petition challenging an election or return must comply with the mandatory requisites prescribed by law. These requisites are set out in ss. 208 and 209 of the Organic Law. This is the imperative of the law and is expressly stated by s. 210 of the Organic Law in these terms -

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.

21.	It is now settled law in terms of election petition cases that a petition which fails to comply with the requirements of ss. 208 and 209 of the Organic Law will be deemed incompetent and must be dismissed even in circumstances where allegation itself may have substantial merit: Delba Biri v Bill Ninkama [1982] PNGLR 99, Sir Barry Holloway v Aita Ivarato [1988] PNGLR 342 and Sir Arnold Amet v Peter Charles Yama (2010) SC1064.

22.	On 22 August 2012, a petition challenging the election or return in respect to Kandep Open Electorate during the 2012 National General Election was filed in the National Court by the petitioner. The petition was registered as EP No. 14 of 2012. The petition raised 4 grounds in which it sought to invalidate the election or return. These grounds allege errors and omission against the Electoral Commission, its servants, agents and officers. One of the grounds included an allegation of illegal practice. Briefly they relate to – 

•	appointment of the Returning Officer
•	alteration of figures on the manual Tally Sheet
•	failure to count votes cast in 5 ballot boxes
•	extra ballot papers

23.	The competency of the petition was challenged by the respondents. The respondents contend that the petition was incompetent and therefore it should be dismissed because it did not comply with the mandatory requisites of s. 208 of the Organic Law. The National Court upheld the incompetency argument in part and dismissed the allegation relating to illegal practice, however, ruled that the rest of the grounds relating to errors and omissions in the petition were competent and should proceed to trial.

24.	A full trial on the 4 remaining grounds of errors and omissions was conducted by the National Court and a final decision was delivered, as I said, on 2 May 2016. 

25.	The effect of the decision on 2 May 2016 is that there is no ground or issue relating to errors and omissions in the petition that is pending before the National Court. In other words, all issues and matters generated by the petition in EP No. 14 of 2012 have been fully and effectually determined and hence all rights of the parties had been extinguished. There is no further live issue pending. All issues are dead and buried. The National Court had exhausted its mandate or jurisdiction when the final decision was delivered on 2 May 2016. It no longer retained any jurisdiction in respect to the petition. It has become “functus officio”. 

26.	It therefore follows that the Supreme Court then assumed jurisdiction under s. 155(2)(b) of the Constitution when leave for review was granted to the petitioner and the first respondent. The National Court was therefore dispossessed of any power or jurisdiction.

27.	I now turn to consider few of the cases which were referred to in submissions that are relevant to the threshold issue.

28.	In Re Maino v Avei and Electoral Commission (2000) SC633, the National Court conducted a trial of a petition alleging illegal practices, irregularities error and omissions against the Electoral Commission. The National Court found sufficient evidence supporting the allegations and ordered for a recount. The Court ordered that the result of the recount be submitted to the Court for a final judgment on the whole petition. The recount did not change the result of the election, however, new and further allegations of errors and omissions surfaced. Before the results of the recount was presented to the National Court, the petitioner filed 4 affidavits alleging that the ballot papers had been tampered with and the result of the recount was suspect due to the fresh allegations of illegal practices, irregularities errors and omissions. The National Court dismissed the allegations as “suspicious and speculations” and proceeded to confirm the result of the recount after determining that despite the significant discrepancies and irregularities during the recount these were insufficient to affect the ultimate result of the election. The petitioner successfully sought a review in the Supreme Court. The Supreme Court by majority held, amongst others, that the National Court erred in not voiding the result of the election in circumstances where there was substantial irregularities systematically perpetrated by the electoral officials both before and during the recount. The issue of whether the National Court had jurisdiction to hear fresh allegations concerning the discrepancies and irregularities during the recount did not arise and was not considered by the Supreme Court.

29.	In Trawen v Wingti (supra) case, the National Court, after conducting a trial of a election petition based, amongst others, on irregularities errors and omissions by electoral officials made an order for a recount. The recount did not produce any significant result. However, there were serious anomalies reported and found by the National Court during a hearing following the recount. On the basis of the fresh anomalies the National Court declared the election absolutely void. Mr. Olga, the sitting member and a respondent to the petition sought a review in the Supreme Court of the National Court decision voiding the election. Several issues arose in the review for determination. One of the issues was whether the National Court had jurisdiction to hear new or fresh allegations of anomalies that arose during the recount. The Supreme Court answered the question in the negative in terms of paragraph 23 which is referred to earlier. In my view, the Supreme Court, in effect, is saying that any new or fresh allegation that arises during a court ordered recount, as a matter of law (per ss. 208, 209 and 210 of the Organic Law), must satisfy the mandatory requisites before jurisdiction can be conferred upon a National Court.

30.	In the case Peter Charles Yama v Anton Yagama (supra), a recount was ordered by the National Court following a trial of an election petition. The result of the recount was presented to the National Court. At the hearing to accept or reject the result of the recount the petitioner filed an application by way of a notice of motion seeking orders for the result of the recount to be rejected and that he be declared duly elected. He relied on new evidence of tampering of ballot papers during the recount. The Court held, amongst others, that there is no abuse of process by the petitioner in filing a notice of motion and relying on new evidence. The Court also, in citing the reasoning by the Supreme Court in Trawen v Wingti (supra), further held that the National Court is not precluded by law from conducting a further inquiry in ascertaining the whether the result of the recount should be accepted.

31.	It would appear on a review of the above cases that where a election petition proceeding is pending before the National Court and that a final decision is yet to be made on a court ordered recount, it may be permissible as a matter of proper and regular practice for the National Court in the exercise of its discretion to exercise its powers consistent with the powers given to it by the Organic Law.

32.	The submission by the petitioner that this Court has jurisdiction after the court ordered recount in this case, with respect, is in my considered opinion, misconceived. The decision of the National Court (per Cannings J) in Paias Wingti v Tom Olga (supra) can clearly be distinguished on facts. In that case the National Court ordered for a recount but still reserving or retaining its ancillary powers to the extent that the result of the recount to be presented back to the Court for ratification at a hearing. There the National Court did not completely and fully exhaust the powers vested in it. On reviewing the National Court decision the Supreme Court in SC1003 (supra) in the main overruled the National Court decision particularly with respect to the order declaring the election void which was based on new facts. However, the Supreme Court acknowledged that in the circumstances of that case, the final order resulted from a continuing process. At the same time the Supreme Court made a pertinent statement in relation to findings of new facts that were not part of the petition following a court ordered recount. In paragraph 23 of its judgment, which Mr. Polye’s counsel referred to and I earlier quoted, the Supreme Court appears to state firmly that new findings of facts arising from a court ordered recount is not a proper and justifiable ground to void an election because that would effectively circumvent or defeat the strict requirements of ss. 208, 209 and 210 of the Organic Law.

33.	In this case the facts are fundamentally different. The court process in the National Court had been completely extinguished. There is nothing pending before it and hence there is no jurisdiction. A final decision was given on 2 May 2016. Although a recount of 5 contentious ballot boxes was part of the orders made; this order was subject of a review in the Supreme Court and was varied. In my respectful opinion there is no further jurisdiction vested in me sitting as a National Court to make further inquiry into the petition other than to give effect to the Supreme Court order. To deal with the fresh evidence would tantamount to circumventing the requirements of ss. 208 and 209 of the Organic Law. I therefore accept the submission by the respondents in that regard. In my view the parties, in so far as it relates to the competing applications, are before a wrong forum. 

34.	I am therefore of the firm view that the National Court has no power or jurisdiction to hear the competing applications. In my view the proper forum is the Supreme Court. 

35.	I further note that the orders sought by Mr. Manase are substantive in nature and therefore presents two fundamental issues for consideration. Firstly, whether a substantive relief can be granted based on an interlocutory process, and secondly, whether orders sought can be granted without compliance with ss. 208 and 209 of the Organic Law. I have already decided that the National Court has no jurisdiction to entertain the competing interlocutory applications and for that reason it is unnecessary to deal further with them.

36.	The facts deposed to by the Returning Officer, Mr. Alwyn Jimmy, seem to suggest a genuine mistake. Everyone appeared to accept the fact that Mr. Polye had scored the absolute majority of votes. After exclusion count No. 34, Mr. Polye was clearly the majority choice. He scored 22,860 votes. The next contender was Mr. Manase with 15,365 votes. The progressive scores as from the elimination counts showed that both Mr. Manase and Mr. Polye were consistently collecting preferential votes. It appears the trend has been set and would most probably continue for both candidates. The Supreme Court in Trawen v Wingti (supra) made it plain that election is all about majority choice. There is no evidence that any of the parties is responsible for the loss of the ballot boxes and therefore in my view none of the parties stand to benefit or gain from the unfortunate loss. Be that as it may the duty of this Court is merely to make a declaration. 

37.	The result of the Supreme Court ordered recount presented on 13 May 2017 by the Electoral Commission by way of original Forms 66A and 66B disclosed that at the end of elimination count number 34 the result stood as follows –

	Don Pomb Polye			-	22,860
	Alfred Manase			-	15,365
	Sakias Yamala Tamao		-	  5,715
	Bee Yanz Pepo			-	  5,229
	Total Allowable Ballot Papers	-	45,001
	Absolute Majority of Votes	-	22,501

38.	Pursuant to the Supreme Court order of 6 September 2016 and the report by the Electoral Commission this Court declares Don Pomb Polye as the winner of the election in respect of Kandep Open Electorate arising from the 2012 National General Election.

39.	As there is no other expressed power granted by the Supreme Court there will be no order made as to cost in this matter.

Ruled and declaration made accordingly,
__________________________________________________________________
Lawyers Simpson:  Lawyer for the Petitioner			
Paulus M. Dowa Lawyers:  Lawyer for the First Respondent		
Niugini Practice Legal:       Lawyer for the Second Respondent