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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE
SC REV (EP) NO 18 OF 2013
IN THE MATTER OF SECTION 155(2)(b) OF THE CONSTITUTION AND THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
RIDDLER DOROBE KIMAVE
Applicant
V
POEVARE TORE, GULF PROVINCIAL ELECTORATE RETURNING OFFICER
First Respondent
ELECTORAL COMMISSION
Second Respondent
ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent
HAVILA KAVO
Fourth Respondent
Waigani: Gavara-Nanu J, Kandakasi J, Cannings J
2013: 16, 20 December
ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(d): need for petition to be attested by two witnesses – whether necessary for witness to attest to veracity of grounds of petition.
ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(a): need to set out facts relied on to invalidate election –ground of errors or omissions by returning officer and counting and election officials: whether necessary to allege that result of election affected.
The National Court upheld an objection to competency of an election petition and dismissed the petition for two reasons. First, it failed to comply with Section 208(d) of the Organic Law on National and Local-level Government Elections (the Organic Law) in that the two witnesses who attested the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. Secondly, it failed to comply with Section 208(a) of the Organic Law in that it did not contain necessary facts, required the court to speculate, was confusing and contradictory and was based on assumptions and speculation.
The petitioner (the applicant) applied to the Supreme Court under Section 155(2)(b) of the Constitution to review the decision of the National Court to uphold the objection to competency and dismiss the petition. He raised eight grounds of review, arguing that the National Court erred in law by: (1) finding that the petition failed to comply with Section 208(d) of the Organic Law; (2) upholding nit-picking objections, contrary to Supreme Court decisions that were binding on the National Court; (3) failing to make findings on all aspects of ground 1 of the petition; (4) rejecting ground 1 of the petition without appreciating that the actions of the returning officer made it physically impossible for the applicant's scrutineers to exercise their rights as scrutineer for a candidate; (5) not addressing the respondents' objections to ground 1 of the petition; (6) dismissing ground 3 of the petition without deciding whether the facts pleaded were relevant and material; (7) dismissing all grounds of the petition without finding whether the dates, persons named and the figures mentioned were facts for the purposes of Section 208(a) of the Organic Law; and (8) not considering each ground of the petition as a whole and stating the effect of each ground. The respondents conceded the first ground of review but defended each of the others and argued that the decision of the National Court to dismiss the petition should not be disturbed.
Held:
(1) The first ground of review was properly conceded by the respondents as the question of whether under Section 208(d) of the Organic Law the two attesting witnesses have to be in a position to testify, confirm, verify or prove the facts underlying the grounds of the petition was recently decided by the Supreme Court in Kikala v Electoral Commission & Mangape (2013) SC1295. The National Court erred by drawing the opposite conclusion and dismissing the entire petition for that reason. Ground 1 of the review was upheld.
(2) Ground 2 was too vague and confusing to warrant consideration. It is not sufficient for an applicant to argue that the National Court engaged in "nit-picking". Ground 2 was dismissed.
(3) It is not necessary for a Judge who is determining an objection to competency of an election petition to, in the Judge's reasons for decision, make mention of every paragraph of every ground in the petition. Ground 3 of the review was confusing and misconceived and was dismissed.
(4) Ground 1 of the petition raised very serious allegations of illegality and impropriety against the returning officer (the first respondent) but despite their seriousness the allegations were unclear and vague and were not linked to breaches of any particular laws. Ground 4 of the review, which attempted to challenge the primary Judge's dismissal of ground 1 of the petition, was equally vague and incoherent. An applicant for review has a duty to draft the application for review in a clear, logical and coherent manner. That duty was not discharged in respect of ground 4 of the review, which was virtually incomprehensible; so despite the seriousness of the allegations in ground 1 of the petition, ground 4 of the review was dismissed.
(5) The primary Judge properly assessed the respondents' objections to competency concerning ground 1 of the petition. Ground 5 of the review was dismissed.
(6) The primary Judge decided that ground 3 of the petition was speculative and did not plead sufficient facts and was confusing and contradictory. Those were proper and sufficient reasons for concluding that that ground of the petition did not comply with Section 208(a) of the Organic Law. Ground 6 of the review was dismissed.
(7) The primary Judge decided, in dismissing grounds 1, 2, 3 and 4 of the petition, that each ground was defective in that it did not contain necessary facts, required the court to speculate, was confusing and contradictory or was based on assumptions and speculation. Those were proper and sufficient reasons for concluding that each ground of the petition did not comply with Section 208(a) of the Organic Law. Ground 7 of the review was dismissed.
(8) A Judge who is determining an objection to competency of an election petition should consider each ground of the petition as a whole, rather than considering each sub-ground or paragraph of the petition in isolation. Each ground, considered as a whole, should clearly and succinctly state the facts (not evidence) relied on and, if illegal practices or errors or omissions are alleged, should plead the laws or practices that have been breached and how those breaches affected the result of the election. The primary judge adequately considered each ground of the petition as a whole, despite the difficulties encountered as a result of each ground being unclear, confusing and largely incoherent. Ground 8 of the review was dismissed.
(9) Thus, one of the eight grounds of review was upheld, but dismissal of the other seven left intact the primary judge's conclusion that each of the four grounds of the petition was incompetent. There was no reason to disturb the orders of the National Court. The application for review was dismissed.
(10) The applicant was ordered to pay the costs of the fourth respondent only, as the other respondents provided negligible assistance to the Court in its determination of the application.
Cases cited
The following cases are cited in the judgment:
Amet v Yama (2010) SC1064
Bao v Reipa (1998) N1753
Beseoh v Bao (2003) N2348
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ekip v Wimb (2012) N4899
Holloway v Ivarato [1988] PNGLR 99
Jimson Sauk v Don Pomb Polye (2004) SC769
Kikala v Electoral Commission and Mangape (2013) N4960
Kimave v Tore, Electoral Commission, Trawen & Kavo EP No 58 of 2012, 27.02.13, unreported
Nomane v Mori (2013) SC1242
APPLICATION
This was an application for review of a decision of the National Court to uphold an objection to competency of an election petition and dismiss the petition.
Counsel
P Ame, for the applicant
T Kuma, for the first, second & third respondents
J A Kumbari, for the fourth respondent
20th December, 2013
1. BY THE COURT: Riddler Dorobe Kimave applies for review under Section 155(2)(b) of the Constitution of the decision of the National Court to dismiss his petition which disputed the validity of the election of Havila Kavo as member for Gulf Provincial in the 2012 general election. The National Court, constituted by Justice Murray, upheld objections by the first, second and third respondents to the competency of the petition and dismissed the petition in its entirety (Kimave v Tore, Electoral Commission, Trawen & Kavo EP No 58 of 2012, 27.02.13, unreported).
THE PETITION
2. The petition was based on four grounds:
LAW
3. It is agreed that the question of competency of a petition is to be determined in the light of Sections 208, 209 and 210 of the Organic Law. Section 208 (requisites of petition) states:
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).
4. Section 209 (deposit as security for costs) states:
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.
5. Section 210 (no proceedings unless requisites complied with) states:
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
6. The combined effect of Sections 208, 209 and 210 is that a petition must comply with six separate requirements (five in Section 208 and one in Section 209). If it fails to comply with all of them the petition will be incompetent and the National Court will lack jurisdiction to hear it (Jimson Sauk v Don Pomb Polye (2004) SC769).
THE OBJECTION TO COMPETENCY IN THIS CASE
7. The objection to competency was based on two grounds:
NATIONAL COURT DECISION
8. The primary Judge upheld both grounds of objection. As to the first ground her Honour followed the decision of Makail J in Kikala v Electoral Commission and Mangape (2013) N4960 and the obiter dicta of Kandakasi J in Ekip v Wimb (2012) N4899. Her Honour ruled that the two witnesses who purported to attest the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. Her Honour held that the requirements of Section 208(d) were not complied with and that this rendered the entire petition incompetent.
9. As to the second ground her Honour held that each ground of the petition failed to comply with Section 208(a) of the Organic Law in that it did not contain necessary facts, required the court to speculate, was confusing and contradictory or was based on assumptions and speculation.
GROUNDS OF REVIEW
10. The applicant has been granted leave to argue eight grounds of review, which we quote verbatim as follows:
11. Summarising those grounds, it is argued that the primary Judge erred by:
(1) finding that the petition failed to comply with Section 208(d) of the Organic Law;
(2) upholding nit-picking objections, contrary to Supreme Court decisions that were binding on the National Court;
(3) failing to make findings on all aspects of ground 1 of the petition;
(4) rejecting ground 1 of the petition without appreciating that the actions of the returning officer made it physically impossible for the applicant's scrutineers to exercise their rights as scrutineer for a candidate;
(5) not addressing the respondents' objections raised to ground 1 of the petition;
(6) dismissing ground 3 of the petition without deciding whether the facts pleaded were relevant and material;
(7) dismissing all grounds of the petition without finding whether the dates, persons named and the figures mentioned were facts for the purposes of Section 208(a) of the Organic Law;
(8) not considering each ground of the petition as a whole and stating the effect of each ground.
12. Each ground of review will now be separately addressed. We will repeat the verbatim quote of the ground (including the numerous grammatical errors) at the beginning of our determination of each ground. It is important to do this as we are critical of the drafting of the grounds and our criticisms will best be appreciated when readers of this judgment see the particular ground that we are referring to.
GROUND 1: FINDING THAT THE PETITION FAILED TO COMPLY WITH SECTION 208(d) OF THE ORGANIC LAW
13. This ground states:
Her Honour erred in law in dismissing the Petitioner/Applicants Objections to the Competency of the First, Second and Third Respondents Amended Objection to Competency filed on the 6th February 2013, which were filed purposely to raise the issues of attestation under Section 208(d) which prejudiced the Petitioner who was taken by surprise as the issue of "attestation" in KIKILA -V- NIXON MANGAPE, EP No. 18/2012 (18/01/2013) and EKIP -v- DUMA [2012] N.4899 where both petitions were dismissed for non compliance of Section 208(d) of the Organic Law. [sic]
14. This ground is poorly drafted and difficult to understand. It appears to be arguing that the primary Judge acted unfairly by dismissing the applicant's objection to the competency of the first, second and third respondents' amended objection to competency of the petition. The applicant argues that he was prejudiced because he was taken by surprise when the issue of attestation of the petition was belatedly raised. It also appears to be arguing that her Honour erred in law by following Kikala and Ekip and finding that Section 208(d) was not complied with due to her Honour's finding that neither of the two witnesses who attested the petition was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition.
15. Despite the shortcomings of this ground of review the respondents have sensibly decided to concede it. They have done so in light of the recent decision of the Supreme Court in Kikala v Electoral Commission & Mangape (2013) SC1295, which adopted the obiter dicta of the Supreme Court in Nomane v Mori (2013) SC1242. In Kikala the Supreme Court overturned the trial judge's ruling on this issue. It has now authoritatively been settled that the word "attest" means that the witness is able to affirm the truth or genuineness of the signature of the person who signs the petition. Attestation means simply that the witness is present and sees the petition signed. It is not necessary that the witness be in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. In light of the Supreme Court decision in Kikala it can be seen that, with respect, the learned primary judge erred in law. Ground 1 of the review is upheld.
GROUND 2: UPHOLDING NIT-PICKING OBJECTIONS, CONTRARY TO SUPREME COURT DECISIONS THAT WERE BINDING ON THE NATIONAL COURT
16. This ground states:
Her Honour erred in law in allowing the First, Second and Third Respondents Objection to Competency which were nit-picking from the 3 grounds of the petition contrary to the principles of Review stated in the Supreme Court decision of JIMSON SAUK -V- DON POMB POLYE [2004] SC. 769 and JONATHAN KUMBA -V- KUK KULI & ors [2000] PNGLR 173 which were binding on Her Honour. [sic]
17. This ground is also poorly drafted, vague and confusing. It is more a criticism of the primary judge's reasoning than a ground of review alleging an error of law. The argument appears to be that her Honour allowed the first, second and third respondents to get away with nit-picking by upholding their objection to the grounds of the petition. We have managed to glean from the written and oral submissions of the applicant's counsel, Mr Ame, a submission that the primary Judge erred in law by not following the decision of the Supreme Court in Jimson Sauk v Don Pomb Polye (2004) SC769. In that case the Court urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency:
We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama ... is as aptly described by Hinchliffe J in another election case, Benias Peri v Nane Petrus Thomas EP 73 of 2003 20.04.04 unreported, 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.
This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of his Honour. Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 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.
18. We do not agree that the primary Judge failed to follow Sauk v Polye. The Supreme Court was not saying in Sauk v Polye that the National Court should allow petitions to go to trial if they failed to comply with Section 208(a) of the Organic Law. The requirement to comply with Section 208(a) exists in every case. The requirement is that the petition "set out the facts relied on to invalidate the election or return". This means, according to the Supreme Court's decisions in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99, that:
19. The significance of Sauk v Polye is that the Court was saying that in deciding whether Section 208(a) is complied with the National Court should not allow lawyers to nit-pick, and should not itself engage in nit-picking by upholding trivial complaints about the wording of the pleadings in a petition or by insisting on too much detail in the pleadings.
20. In the present case we fail to see how the primary Judge can be justly criticised of engaging in nit-picking or allowing the lawyers for the respondents to get away with nit-picking. Her Honour used epithets such as "speculative", "confusing" and "contradictory" to describe the content of the four grounds of the petition. Having read and re-read and examined the grounds of the petition, we agree that those epithets are justified. This petition was very poorly drafted. It failed to set out material facts. It included evidence. It did not plead the facts in a clear, concise and coherent manner. It told stories rather than setting out facts and grounds for invalidating the election. And it told the stories in a most confusing and befuddling manner. Ground 2 of the review is dismissed.
GROUND 3: FAILING TO MAKE FINDINGS ON ALL ASPECTS OF GROUND 1 OF THE PETITION
21. This ground states:
Her Honour erred in law in making referenced to paragraph 1.1 to 1.10 of the Petition and to 1.11 to 1.15, which she has not made any finding with respect to paragraphs 4.16 to 1.19 of the Petition. [sic]
22. This ground of review is poorly drafted. It does not make grammatical (or numerical) sense, so it is difficult to see how it can make legal sense. We can, however, with the benefit of Mr Ame's submissions, appreciate the point that is sought to be made.
23. Ground 1 of the petition consisted of 19 paragraphs, numbered 1.1 to 1.19. At paragraph 36 of her written judgment, her Honour stated that she dismissed what she described as grounds 1.1 to 1.10 of the petition "for being incompetent". Then at paragraph 42 she dismissed what she described as grounds 1.11 to 1.15 as they did not contain necessary facts. Mr Ame's submission is that her Honour did not at any stage state that she dismissed grounds 1.16 to 1.19 of the petition: her Honour did not make any findings on those paragraphs.
24. The irony of this submission is that, in making it, Mr Ame is guilty of the very thing that he rails against: nit-picking. He is arguing a technical point, a triviality that has no substance. It is not necessary for a Judge who is determining an objection to competency of an election petition to, in the Judge's reasons for decision, make mention of every paragraph of every ground in the petition and to say that every paragraph is dismissed. Her Honour committed no error of law in the manner in which ground 1 of the petition was dismissed. Ground 3 of the review is dismissed.
GROUND 4: REJECTING GROUND 1 OF THE PETITION WITHOUT APPRECIATING THAT THE ACTIONS OF THE RETURNING OFFICER MADE IT PHYSICALLY IMPOSSIBLE FOR THE APPLICANT'S SCRUTINEERS TO EXERCISE THEIR RIGHTS AS SCRUTINEER FOR A CANDIDATE
25. This ground states:
Her Honour erred in law in holding in relation to ground 1 of the Petition that the number of Ballot papers being improperly distributed during the elimination and the specific acts amounting to errors and omissions in that the act of warring the scrutineers to stay 5 meters away from the counting place made it impossible for the Petitioner's scrutineers the right to have physically access to physically see for themselves the scrutiny process. [sic]
26. This is another ground of review that does not make grammatical sense. It borders on being incomprehensible. We can, however, with the benefit of Mr Ame's submissions, appreciate the point that is sought to be made.
27. Ground 1 of the petition raised very serious allegations of illegality and impropriety against the returning officer (the first respondent). It was alleged that the returning officer announced before counting of votes (the scrutiny) started, that each candidate's scrutineers had to stay five metres away from the table where the ballot papers were distributed and placed on each candidate's tray; not only that, he announced that no objections or queries would be entertained, that any objections had to be taken to court, and that any scrutineer who argued with a counting official would be removed from the counting centre by fully armed policemen. The argument, we think, that ground 1 of the petition was trying to make is that the returning officer nullified the role of the scrutineers, which meant that they could not perform their role and that therefore the result of the election lacked integrity. And the argument, we think, that ground 4 of the review tries to make is that the primary Judge erred in law by failing to appreciate the seriousness of these allegations.
28. The argument is flawed. Her Honour did not fail to appreciate the seriousness of the allegations. Her Honour simply could not follow them. And neither can we. At paragraph 36 her Honour stated:
I accept that the petition does not state facts alleging irregularities, there are no specific facts relating to the manner of distribution, the allocation of votes amongst the candidates, and most importantly how those were allocated to the fourth respondent thereby affecting the outcome [of the] election.
29. At paragraph 40 her Honour stated:
I am unable to find the necessary facts upon which an allegation of irregularity can be sustained, for instance the court is left to ask questions as what was the process which the Electoral Commission failed to do? How many ballots were affected as a result of these actions? Who was responsible for the failure to comply with those procedures? And did the petitioner's scrutineers raise objections, with the necessary electoral officials? Did they object in writing? Did they complain that the conduct of the scrutiny was not done properly? No such facts are pleaded.
30. We agree with the primary judge. Despite the seriousness of the allegations raised by ground 1 of the petition, they are stated in such a convoluted, unclear and vague manner that they are not capable of being sustained. The allegations are not linked to breaches of any particular laws.
31. Ground 4 of the review is equally vague and incoherent. An applicant for review has a duty to draft the grounds of review in a clear, logical and coherent manner. That duty was not discharged in respect of ground 4 of the review, which, as we stated above, does not make grammatical sense and is virtually incomprehensible. Despite the seriousness of the allegations in ground 1 of the petition, ground 4 of the review must be dismissed.
GROUND 5: NOT ADDRESSING THE RESPONDENTS' OBJECTIONS TO GROUND 1 OF THE PETITION
32. This ground states:
Her Honour erred in law in not assessing the Respondents Objections raised on various grounds for allegations (1) 1.4, (2) 1.5, 1.6, 1.7 and 1.8 (1) (2) (3) and (4), 1.9, (5) 1.10, (6) 1.11, (7) 1.12, 1.4(a), 1.4(b), 1.4(c), 1.5(d), 1.15, 1.16, 1.17, 1.18, 1.19(a) and (b). [sic]
33. We make the same criticism of this ground of review as we did of ground 3 of the review. It is an exercise in nit-picking. The argument appears to be that her Honour erred in law by upholding grounds of objection to competency that were not pursued by the respondents.
34. The argument has no merit. The grounds of objecting to the competency of the petition were properly put before the primary Judge. They were matters going to the jurisdiction of the National Court. They were serious matters and there is Supreme Court authority in the decision in Amet v Yama (2010) SC1064 that such matters can be raised at any stage; and they can be raised by the National Court itself, on its own initiative. We consider that the primary Judge properly assessed the respondents' objections to competency concerning ground 1 of the petition. Ground 5 of the review is dismissed.
GROUND 6: DISMISSING GROUND 3 OF THE PETITION WITHOUT DECIDING WHETHER THE FACTS PLEADED WERE RELEVANT AND MATERIAL
35. This ground states:
Her Honour in dismissing ground 3 of the Election Petition erred in law in not deciding as to whether the facts pleaded on grounds are relevant and material facts for the purpose of Section 208 (a) and in the case of AITA IVARATO -V- BARRY HOLLOWAY case. [sic]
36. The primary Judge decided that ground 3 of the petition was speculative and did not plead sufficient facts and was confusing and contradictory. Ground 6 of the review argues that, in making that assessment of ground 3 of the petition, her Honour did not decide whether the facts pleaded in it were relevant and material facts. To test that proposition we quote ground 3 of the petition verbatim. It stated:
3. ERRORS AND OMISSIONS BY THE FIRST RESPONDENT AND COUNTING OFFICIALS
3.1 On the 26th July 2012 at 6.30 pm at the Catholic Hall at Kerema town in the Gulf Province, during the exclusion process, the final three candidates for the Gulf Provincial Electorate figures stood as follows:
- Havila Kavo – 12,841
- Riddler Kimave – 11,974
- Elijah Timothy – 11,515
36,330
3.2 Elijah Timothy polled 7,364 first preferential votes and gained 4,151 votes second preferential votes from the eliminated candidates which was for distribution between Riddler Kimave and Havila Kavo to ascertain the duly elected member for the Gulf Provincial Electorate upon reaching the absolute majority of 18,165 plus 1 or lesser depending on the allowed ballot papers counted from Elijah Timothy's 11,515 votes.
3.3 On the 26th July 2012 at 6.30 pm, Gulf Provincial Electorate candidate Elijah Timothy's 11,515 votes were poured out on the sorting table at the Catholic Hall at Kerema, 119 votes were counted for Riddler Kimave and placed in his tray and 537 votes were counted for Havila Kavo and placed in his tray when Taibu Kairi a Counting official who is an in-law of the said Havila Kavo found amongst the Gulf Provincial candidate Elijah Timothy's ballot papers 69 ballot papers with all first preferential votes marked for Riddler Kimave and held them up and alerted the First Respondent, the counting officials, the scrutineers and the Policemen in the counting room.
3.4 The Petitioner's scrutineer Jeffery Imi as well as other candidate's scrutineers asked how this came about and the First Respondent angrily shouted at Taibu Kairi in English language saying, "You did the wrong thing, these ballot papers are not supposed to be here" and he ruled them informal and placed all the 69 ballot papers in the exhausted ballot papers box. At that time Jeffery Imi the scrutineers's for the Petitioner shouted in the English language "No, these 69 ballot papers have to be included in Riddler Kimave's progressive tally and that there should be a recount of all ballot papers as there is clear foul play"
3.5 The First Respondent angrily replied to Petitioner's scrutineer Jeffery Imi and said "No, these 69 ballot papers are informal" and that he will immediately suspend the distribution of Elijah Timothy's votes. He instructed the counting officials to put all of Elijah Timothy's live ballot papers including the 119 on the petitioner's tray and 537 votes in Havila Kavo's tray away in one big carton with all the other ballot papers for Elijah Timothy and have it sealed with a sticky tape which they did and left the box containing Elijah Timothy's said live ballot papers in the Kerema counting centre for Electoral Commission's lawyer to make a decision on the 27th of July or 28th July 2012 whenever the lawyer would come to Kerema. According to the manner in which Elijah Timothy's ballot papers were distributed between the Petitioner and Havila Kavo, there were no exhausted ballot papers thrown in the exhausted box except the said 69 First Preferential votes for the Petitioner.
3.6 At 7.30 pm on the 26th July 2012 at the Kerema Catholic Hall for the Gulf Provincial counting place was locked when everyone vacated the counting place because all the exhausted ballot papers box for the Gulf Provincial Electorate including the carton with Elijah timothy's live votes were kept in that place for completion of the exclusion of Elijah Timothy's ballot papers. After the counting was suspended, there was no further counting of Elijah Timothy's votes on the whole of 26th July 2012 the whole of 27th July 2012. There was no counting of Elizah Timothy's ballot papers for the whole of the 28th July 2012.
3.7 It is clear that if 8 + 69 i.e. 77 First Preferential ballot papers, were added to the Petitioner's First Preferential Ballot papers in the progressive tally First Preferential votes would have been 1,361 before adding on other candidates Second and Third Preferential votes would have been 7,777 Preferential votes.
3.8 Besides those errors and omissions to reject the Petitioner's 77 ballot papers as informal, and placing them in the "exhausted box" the Petitioner was denied the opportunity to obtain Second and Third Preferential votes from;
- (1) the informal ballot papers of 7,977 consisting of First, Second and Third Preferential votes.
- (2) the 4,500 First, Second and Third Preferential ballot papers excluded from counting in Ballot Box 37 for the Kerema Open Electorate.
- (3) 8 of the Petitioner's ballot paper misplaced and ruled informal.
- (4) Second and Third Preferential votes from 292 Peter Kake not included in scrutiny.
- (5) 156 ballot papers with the Second and Third Preferential votes for Sepoe Karavas found in amongst Roy Steven Koaru's votes for the Gulf Provincial Electorate.
3.9 If the votes were counted, it would have raised the Petitioner's figures and would have been boosted by Elijah Timothy's Second and Third Preferential Ballot papers which remain uncounted to this day.
3.10 The errors and omissions show that a total of 13,002 ballot papers were affected which plainly affected the results of the election.
3.11 Havila Kavo could not have obtained 537 votes from Elijah Timothy's Second and Third Preferential votes because on the 26th July 2012 119 plus Havila Kavo's 537 votes of Elijah Timothy's votes were retrieved from both Havila Kavo and Riddler Kimave's trays and put back into a single box which is yet to be counted. Hence, the correct figures as after the 42 elimination was 12,841 and Riddle Kimave on 11,974. [sic]
37. Ground 3 was the shortest of the four grounds of the petition. It is typical of all of them. It is difficult to read, poorly drafted, hard to comprehend. Amongst its verbiage are serious allegations of illegality and impropriety. But it is not the job of the Court, and nor is it the job of the respondents to a petition, to restate or rework the grounds of the petition and try to put in plain language what is virtually incomprehensible.
38. The learned primary Judge's description of ground 3 of the petition as being speculative and not pleading sufficient facts and being confusing and contradictory was mild, and polite, criticism. Her Honour gave proper and sufficient reasons for concluding that that ground of the petition did not comply with Section 208(a) of the Organic Law. Ground 6 of the review is dismissed.
GROUND 7: DISMISSING ALL GROUNDS OF THE PETITION WITHOUT FINDING WHETHER THE DATES, PERSONS NAMED AND THE FIGURES MENTIONED WERE FACTS FOR THE PURPOSES OF SECTION 208(a) OF THE ORGANIC LAW
39. This ground states:
Her Honour erred in law and in dismissing grounds 1, 2, 3 and 4 of the Petition made no finding as to whether the dates, the persons named there, the figures mentioned these the time the errors and omissions were facts for the purpose of Section 208(a) of the Organic Law. [sic]
40. We are satisfied that the primary Judge, in dismissing grounds 1, 2, 3 and 4 of the petition, decided that each ground was defective in that it did not contain necessary facts, required the court to speculate, was confusing and contradictory or was based on assumptions and speculation. Those were proper and sufficient reasons for concluding that each ground of the petition did not comply with Section 208(a) of the Organic Law. Ground 7 of the review is dismissed.
GROUND 8: NOT CONSIDERING EACH GROUND OF THE PETITION AS A WHOLE AND STATING THE EFFECT OF EACH GROUND
41. This ground states:
Her Honour erred in law in not considering each ground of the Petition as a whole and stating the effect of each ground.
42. We consider that a Judge who is determining an objection to competency of an election petition should consider each ground of the petition as a whole, rather than considering each sub-ground or paragraph of the petition in isolation. Each ground, considered as a whole, should clearly and succinctly state the facts (not evidence) relied on and, if illegal practices or errors or omissions are alleged, should plead the laws or practices that have been breached and how those breaches affected the result of the election (Nomane v Mori (2013) SC1242, Bao v Reipa (1998) N1753).
43. We find that the primary judge adequately considered each ground of the petition as a whole, despite the difficulties encountered as a result of each ground being unclear, confusing and largely incoherent. Ground 8 of the review is dismissed.
CONCLUSION
44. Our determination of the grounds of review is summarised as follows:
| Ground | Content | Determination |
| 1 | Finding that the petition failed to comply with Section 208(d) of the Organic Law | Upheld |
| 2 | Upholding nit-picking objections, contrary to Supreme Court decisions that were binding on the National Court | Dismissed |
| 3 | Failing to make findings on all aspects of ground 1 of the petition | Dismissed |
| 4 | Rejecting ground 1 of the petition without appreciating that the actions of the returning officer made it physically impossible for
the applicant's scrutineers to exercise their rights as scrutineer for a candidate | Dismissed |
| 5 | Not addressing the respondents' objections raised to ground 1 of the petition | Dismissed |
| 6 | Dismissing ground 3 of the petition without deciding whether the facts pleaded were relevant and material | Dismissed |
| 7 | Dismissing all grounds of the petition without finding whether the dates, persons named and the figures mentioned were facts for the
purposes of Section 208(a) of the Organic Law | Dismissed |
| 8 | Not considering each ground of the petition as a whole and stating the effect of each ground | Dismissed |
45. Only one ground of review has been upheld. Our dismissal of the remaining grounds of review means that the learned primary Judge's dismissal of each of the four grounds of the petition must be left intact. There is no reason to disturb the decision of the National Court that the petition is dismissed. The application for review must be dismissed.
COSTS
46. Costs of the review would normally follow the event: the unsuccessful applicant would pay the costs of all the respondents. But in this case the first, second and third respondents provided little or no assistance to the Court, and the applicant will not be required to meet their costs. Their lawyer, Mr Kuma, made a last-minute and unsuccessful application for an adjournment on spurious grounds including some sort of breakdown in communication in the office of his firm. Mr Kuma was totally unprepared. This was very unprofessional and the Electoral Commission, a constitutional institution, deserves much better.
47. Perhaps the time has come for the Electoral Commission to appoint its own Counsel and to establish an Office of Counsel within the institution (in the same way as, for example, the Ombudsman Commission has done for many years) staffed by committed and competent lawyers who are experts in this very specialised area of constitutional law. This would perhaps be a cost-effective measure and enhance the prospect of the Electoral Commission, and the Courts, being assisted in the expeditious resolution of the many election-related matters that take up so much of the Courts' time.
ORDER
(1) The application under Section 155(2)(b) of the Constitution for review of the decision of the National Court of 27 February 2013 in EP No 58 of 2012 is dismissed.
(2) The order of the National Court, dismissing EP No 58 of 2012, for failing to comply with Section 208(a) of the Organic Law on National and Local-level Government Elections, is affirmed.
(3) The applicant shall pay the costs of the application to the fourth respondent on a party-party basis which shall if not agreed be taxed.
(4) The first, second and third respondents shall bear their own costs.
Judgment accordingly.
___________________________________________________________
Ame Lawyers: Lawyers for the Applicant
Kimbu & Associates: Lawyers for the First, Second & Third Respondents
Kumbari Lawyers: Lawyers for the Fourth Respondent
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