Application under s155(2)(B) of the Constitution And In The Matter of Part XVIII of the Organic Law on National and Local-level Government Elections; Peter Wararu Waranaka v Gabriel Dusava (2008) SC942

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 25 September 2008
• Docket Number: SC REV. NO. 18 OF 2008
• Citation: (2008) SC942
• Court: Supreme Court
• Year: 2008
• Judgement Number: SC942

Full Title: SC REV. NO. 18 OF 2008; Application under s155(2)(B) of the Constitution And In The Matter of Part XVIII of the Organic Law on National and Local-level Government Elections; Peter Wararu Waranaka v Gabriel Dusava (2008) SC942

Supreme Court: Injia, DCJ

Judgment Delivered: 25 September 2008

SC942

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV. NO. 18 OF 2008

APPLICATION UNDER S 155(2)(B) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL –LEVEL

GOVERNMENT ELECTIONS

BETWEEN:

PETER WARARU WARANAKA

–Applicant-

AND:

GABRIEL DUSAVA

-Respondent-

Waigani: Injia, DCJ

2008: 25th September.

JUDICIAL REVIEW - Section 155 (2)(b) of the Constitution - Decision of National Court on an election petition, upholding Petition on ground of bribery - Leave for review - Application for leave under Div. 1 rr 1-10 of Supreme Court Election Petition Review Rules (as amended)- Challenge to findings of facts and conclusions on mixed fact and law - Exercise of discretion.

PRACTICE AND PROCEDURE- Application for leave to review under s 155(2), Constitution – Review of decision on election petition - Whether preliminary ruling dismissing objection to competency in the course of trial, reviewable on its own – National Court Election Petition Rules 2002 (as amended), r15, Supreme Court Election Petition Review Rules 2002 (as amended), rr 1& 32.

Cases cited:

Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935,

Counsel:

T Sirae, for the applicant

P Alu, for the respondent

24th September, 2008

1. INJIA, DCJ: This is an application for leave to apply for review of the decision of the National Court to uphold an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNLLGE). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002 (as amended) (hereinafter referred to as the “Petition Review Rules)). It is contested by the respondent.

2. The application relates to a decision made by the National Court sitting at Wewak in which the judge upheld the ground in the Petition relating to bribery, declared void the respondent’s election and ordered a by-election. The proposed grounds of review relate to two parts of the decision:

(a) Dismissal of objection to competency of grounds of petition under s 208 (a) of OLNLLGE. The objection was argued on 15th March 2008 as a preliminary issue in the trial and ruling was made on 19th March 2008.

(b) The final decision on the petition made on 23rd April 2008.

3. The application for leave for review was filed within time. The fourteen (14) days prescribed by r 7 was computed to run from 23rd April 2008 and the application for leave was filed on 5 May 2008. The respondent intended to raise an objection before this Court as to the competency of the part of the grounds of review which relate to the judge’s ruling on objection to competency on the basis that the application for leave for review in respect of that ruling was filed out of time. The respondent quiet correctly did not pursue this argument in Court before me.

4. For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought: see r 1 and definition of a “Decision” in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of “decision”. I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court’s power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r 32 is incompetent: see Olga v Wingti (2008) SC 938.

5. In the present case no such application for dispensation is made before me. Therefore I refuse leave in respect of those grounds of review which challenge the trial judge’s dismissal of objection to competency of the petition. They are grounds 1, 2, 3, 4 & 5.

6. The remaining grounds are 6, 7, 8, 9, 10, 11 & 12. They relate to the trial judge’s final decision on the Petition.

7. The principles on grant of leave for judicial review under Div. 1 rr 1-14 of the Petition Review Rules are set out in my decision in Erie Ovako Jurvie v Bony Oveyara & Electoral Commission of Papua New Guinea (2008) SC 935, in the following terms:

“When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-

1. Leave for review is required in respect of a final decision made by the National Court under Part XVIII of OLNLLGE : Division 1 rr 1-10, Supreme Court Election Petition Review Rules 2002, as amended, Trawen v Kama (2008) SC 915.

2. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Schulze (1998) SC 572.

3. The three criteria set out for grant of leave in Aviha Aihi v The State [1981] PNGLR 81, do not apply to grant of leave in respect of leave for review of a decision in an election petition matter.

4. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold: -

. First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patric Shulze (1998) SC 572.

. Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court : Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patric Shulze (1998) SC

572 Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice : Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted.

10. The first, second and third are general principles of application to all cases. The fourth principle lays down criteria for grant of leave which are also of general application to all cases insofar as they are relevant to the circumstances of the particular case. These criteria are by no means exhaustive. The peculiar facts of each case may give rise to new criteria that need to be developed that may be applied to similar cases or of general application to all cases.

11. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave for review of a decision on an election petition. The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The Judge of course is not determining the merits of the substantive application and the Judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The Judge should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.”

8. The background circumstances of the case are these. The trial judge dealt with five allegations of bribery. They were identified as Fact No 2 (bribery of Marcus Paringu), Fact No....