Application for Review by Benny Diau; Benny Diau v Mathew Gubag and The Electoral Commission of Papua New Guinea (2004) SC775

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ Los J Gavara–Nanu J
• Judgment Date: 17 December 2004
• Court: Supreme Court
• Citation: (2004) SC775
• Docket Number: SRC No 19 of 2003
• Year: 2004
• Judgement Number: SC775

Full Title: SRC No 19 of 2003; Application for Review by Benny Diau; Benny Diau v Mathew Gubag and The Electoral Commission of Papua New Guinea (2004) SC775

Supreme Court: Kapi CJ, Los J, Gavara–Nanu J

Judgment Delivered: 17 December 2004

SC775

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCR NO 19 OF 2003

APPLICATION FOR REVIEW BY

BENNY DIAU

Applicant

AND

MATHEW GUBAG

First Respondent

AND

ELECTORAL COMMISSION OF PNG

Second Respondent

Waigani : Kapi, CJ

Los, J

Gavara Nanu, J

2003 : 15th July

2004 : 29 August, 17th December

Judicial Review – Section 155 (2) (b) of the Constitution – Incompetency

of grounds of Petition under s 208 (a) of the Organic Law on National and Local Level Government Elections considered.

Election Petition Trial – Jurisdiction to stop a trial – Where evidence does not disclose an essential ground for invalidating the election result considered.

Cases cited

Peter Yama-v-Mathew Gubag (1998) SC 547,

Re Central Banking (Foreign Exchange & Gold) (1987) PNGLR 433.

Holloway v. Ivarato (1988) PNGLR 99.

Re Berrill’s petition and Boothby (1978) 19 ALR 254.

Raymond Agonia v. Albert Karo & Electoral Commission (1992) PNGLR 463 at 469.

Ben Micah v Ian Ling-Stucky (Unreported Judgment of the National Court, N1790).

Desmond Baira v Kilroy Genia (Unreported Judgment of the Supreme court, SC579).

B Meten, for Applicant

D Stevens, for First Respondent

A Kongri, for Second Respondent

17th December 2004

BY THE COURT: The application is to review two decisions by Salika J made on 4th March 2003 and 7th March 2003 respectively. These decisions relate to an election petition challenging the election of Mathew Gubag, First Respondent, as member for the Sumkar Open Electorate in the year 2002 National Elections.

The decision of the 4th March relate to the challenge to the competency of the petition made by the two Respondents and the decision of the 7th March 2003 relate to the substantive decision by the judge following a no case to answer submission. That is, the petition was dismissed on the ground that there was no case to answer.

The review powers of the Supreme Court under section 155(2)b of the Constitution have been well accepted by the parties except as to when it should be exercised is addressed in the light of the facts and circumstances of each case. That is, the discretionary power to review under s.155(2)b of the Constitution must be exercised only where a) there are clear legal grounds meriting a review of the decision; b) there are cogent and convincing reasons on exceptional circumstances, and c) it is in the interest of justice that the review be granted.

Some cases cited for example to assist the court in invoking the jurisdiction were Peter Yama-v-Mathew Gubag (1998) SC 547, Re Central Banking (Foreign Exchange & Gold) (19 87) PNGLR 433.

To challenge a decision on an election petition there is no provision for an appeal and so an aggrieved person may only go up to the Supreme Court through review process under section 155 (2) of the Constitution. This may suffice. But to further convince the Court that the applicant is not a busy body, it must be shown that there is an issue (or are issues) to be tried or reviewed.

The following grounds of review were agreed to by the parties at direction hearing on 22nd may 2003 –

(1) That the learned trial judge erred in law in holding the grounds 2, 4,5, 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16 of the Applicant’s Election Petition failed to comply with section 208(a) of the OLNE in that the petition did not set out sufficient facts in compliance with section 208(a) of the OLNE;

(2) That the learned trial Judge erred in law and facts in holding that the First Respondent had no case to answer in relation to Grounds 1, 3 and 11 of the Applicant’s Election Petition after the Applicant and his witnesses gave evidence in that the evidence of the Applicant and his witnesses together with the Agreed Statements of Facts that was before the learned trial Judge clearly established a prima facie case against the First Respondent for which the First Respondent had to call evidence to answer.

(3) That the learned trial Judge erred in law in holding that the First Respondent had no case to answer on grounds 1, 3 and 11 of the Applicant’s Election Petition after the learned trial Judge ruled on the objection to Competency of the Petition on the 4th March 2003 that the said grounds 1, 3 and 11 of the Applicant’s Election Petition were competent to proceed to trial.

(4) That the learned trial Judge erred in law in holding that Rule 15 of the Election Petition Rules gives the learned Trial Judge the power to hold that a Respondent has no case to answer after a Petitioner has called his witnesses who gave evidence before the Court.

(5) That the learned trial Judge erred in law and in fact in holding that a person bribed had to be an elector in that pursuant to section 103(a)(iii) of the Criminal Code any person can be bribed including an elector.

(6) That the Learned Trial Judge erred in law and in fact in holding that the First Respondent had no case to answer in relation to grounds 1, 3 and 11 of the Petition in that the applicant’s evidence together with the Agreed Statement of Facts that were before the Trial Judge established that the First Respondent had committed the offence of bribery and that the Trial Judge should have ordered any one of the relief sought by the Applicant in the Applicant’s Election Petition.

The orders sought were-

(a) orders of 4th March 2003 dismissing grounds 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16 and 15 be quashed;

(b) likewise the orders of 7th March dismissing grounds 1, 3 and 11 be quashed; and

(c) the dismissed grounds be reinstated and proceed to trial

We address the review on competency issues first.

Ground 2. That on or about the 17th June 2002, at Dorokatum Village, the First Respondent did give a bribe of K1,000.00 to Sam Gawar with the intention that the cheque will be applied to induce members of the Kaviak Sports Club to vote for the First Respondent contrary to Section 215 of the Organic law on National and Local level Government Elections and Section 103(d) of the Criminal Code.

This ground was objected to by the Electoral Commission (the Commission) on the ground that sufficient facts have not been pleaded as required. The trial judge accepted the objection. In so far as ground 2 is concerned we are of the view that the learned review judge did not make any mistake in having this ground struck out. On this ground, despite an attempt was made under ‘facts’ to state some detail, it clearly failed. The trial judge said this was intended to claim bribery under section 103(d) of the Criminal Code. But it was not pleaded who it was intended to be bribed. From the drafting, Sam Gawa was to be a vehicle only. But no recipients were named. Whether they were registered voters was not pleaded. The relevant early case law beginning with Holloway v. Ivarato (1988) PNGLR 99 and others that is very strict on this point. This early case made some comparative analysis on the Courts views in different countries. The case referred to was Re Berrill’s petition and Boothby (1978 19 ALR 254 and the provision of Commonwealth Electoral Act. This was to help in thinking process as to what is meant by “Facts”. At the end, the Court came to the view as summarized in the headnotes which is:

“The Facts which must be set out under s 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issue involved”.

On these principles we find therefore, the trial judge did not err in holding this pleading to be incompetent and striking it out.

Ground 4. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to Bill Biol with the intention that the cheque will be applied to induce members of the Dorokatum Sports Club to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

This paragraph was dismissed on the same basis as in ground 2. The K1,000 was given to Bill Biol to give or use in a way to induce members of the sports club to vote for the candidate. While it would not take too much to know that this was a bribe and was commission of a criminal offence, a petitioner is required to be more precise in so far as election or voting was concerned. The pleading did not name any members of the club and whether they were registered voters. Bribery is a serious offence but here the persons who received the money might not be an elector. Hence it would be an irrelevant act for the purpose of the specific election at the place and time. We do not consider therefore that the learned trial judge made any error in striking this paragraph out.

Ground 5. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give bribe of K500.00 to a Chris Marsil for and on behalf of the Kinim Sports Club with the intention to induce and the other members of the Kinim Sports Club who were electors for a Member for Sumkar Open Electorate to vote for the First Respondent in...