Application under Section 155 (2) (b) of the Constitution and in the matter of Part XVIII of the Organic law on National and Local-level Government Elections;

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Geita & Lindsay JJ
• Judgment Date: 20 September 2018
• Citation: (2018) SC1715
• Docket Number: SC REV (EP) No 6 of 2018
• Court: Supreme Court
• Year: 2018
• Judgement Number: SC1715

Full Title: SC REV (EP) No 6 of 2018; Application under Section 155 (2) (b) of the Constitution and in the matter of Part XVIII of the Organic law on National and Local-level Government Elections;

Supreme Court: Kandakasi, Geita & Lindsay JJ

Judgment Delivered: 20 September 2018

SC1715

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) No. 6 OF 2018

Application under Section 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:

LUCAS DEKENA

Applicant

AND:

NICK KUMAN

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi, Geita & Lindsay JJ.

2018: 27th June

20th September

PRACTICE & PROCEDURE – Objection to Competency of application for review against a National Court’s decision in an election petition – Leave sought and granted for specific questions – Substantive Judicial Review Application based on grounds not in the exact terms in which leave was sought and granted with totally new grounds added without leave – Effect of – Application for Review without leave and is therefore incompetent - Objection to Competency upheld and Application for Review dismissed – Section 155 (2) (b) Constitution – Section 220 Organic Law on National and Local-level Elections.

Cases Cited:

Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638

Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221

Jacob Sanga Kumb v. Dr Nicholas Mann & Anor (2018) SC1710

Paru Aihi v. Peter Isoaimo (2013) SC1276

Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412

Anthon Yagama v. Peter Charles Yama (2013) SC1282

Luke Alfred Manase v. Don Pomb Polye (2013) SC1280

Delba Biri v. Bill Ninkama [1982] PNGLR 342

Jim Nomane v. Wera Mori and Electoral Commission (2013) SC1242

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Counsel:

Mr. D. Yariyari, for the Applicant

Mr. A. Kongri, for the First Respondent

Mr. H. Nii, for the Second Respondent

20th September, 2018

1. BY THE COURT: The Applicant, is seeking a review under s.155 (2) (b) of the Constitution of a decision of the National Court dismissing his petition against the First Respondent’s election victory for the Gumine Open Seat in the National Parliament. That followed the National General Elections last year, 2017. The relevant election results were met with controversy with two writs surfacing and both men turning up on the first sitting of Parliament after the Elections claiming the same seat. Eventually, the First Respondent was recognized as the duly elected member for the relevant seat.

2. The Applicant petitioned against the First Respondent’s victory. That petition was heard and dismissed by the National Court for being incompetent. Being aggrieved by that decision, the Applicant utilized s. 155 (2) (b) of the Constitution first to seek leave for a review of the National Court’s decision in view of s.220 of the Organic Law on National and Local-level Government Elections (Organic Law on Elections) prohibiting appeals. Leave was granted following which the Applicant filed the Review Application, now before us.

3. The Respondents object to the competency of the Review Application. The main ground for the objection is that the Application for Review has been filed without leave of this Court in that:

(a) Leave was not sought and granted for Ground 1 of the application for review;

(b) Leave although sought was not granted for Grounds 2 and 3 of the application for review; and

(c) Grounds 4, 5, and 6 are not consistent with the grounds for which leave was sought and granted.

4. Ground (b) was effectively abandoned in the Respondents written and oral submissions and instead put the relevant grounds of the objection under ground (c).

Relevant Issues for determination

5. The main issue for this Court to determine is whether the Application before the Court is incompetent. An answer to that question is dependent on answers to the following questions:

(1) Is an applicant in a judicial review application under s. 155 (2) (b) of the Constitution at any liberty to add in his or her application grounds for which leave was not sought and obtained?

(2) Once leave for judicial review under s. 155 (2) (b) of the Constitution is granted, is an Applicant entitled to include grounds that are not consistent with the grounds for which leave was sought and granted?

Relevant factual background

6. These are legal questions. But to appreciate the context in which the issues have arisen, it is necessary to make a quick mention of the relevant facts. The facts are not in any serious contest. As already noted, the proceedings arise out of a controversial election outcome which saw both the Applicant and the First Respondent turning up in the first sitting of Parliament claiming the same seat under two different purported writs. Eventually, the First Respondent obtained official recognition and endorsement as the winner of the relevant seat in Parliament. That resulted in the Applicant filing an election petition against the First Respondent. Unfortunately, that petition got dismissed for being incompetent for failing to meet the requirements of s. 208 of the Organic Law on Elections. The National Court was of the view that, the Applicant failed to properly plead the factual foundation for his petition.

7. Being aggrieved by that decision, the Applicant filed an application for leave for Judicial Review on the following grounds:

“Undue Influence

2.1 The Learned Judge erred in fact and law in:

a) Concurring with the First Respondent’s submission at Paragraph 22 of the decision that “from a perusal of the paragraphs of the petition comprising grounds one and two, there are no acts of undue influence properly pleaded or at all... there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud prevented or obstructed in the free exercise of an elector’s right to vote “ and concluded that “[this appears to reflect a misunderstanding of s.102 of the Criminal Code Act]” when the petition had in fact pleaded two instances of allegations of “undue influence “, the first one was having occurred at the counting centre (Paragraph 10 to 15 of the Petition) and the second one as having occurred during polling at Biligie Primary School (Paragraphs 23 to 34 of the Petition).

b) Contradicting himself by ruling that “there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud is prevented or obstructed in the free exercise of an elector’s right to vote. This appears to reflect a misunderstanding of s.102 of the Criminal Code Act” when allegations of “undue influence “pleaded under paragraph 23 to 34 of the Petition on the face of the facts clearly satisfied his own interpretation of s.102 of the Criminal Code Act set out in the ruling.

c) Not applying his own interpretation of s.102 of the Criminal Code Act to the allegation of “undue influence” pleaded in Paragraph 23 to 34 of the Petition otherwise had he done so he would have made a positive finding on the face of the facts pleaded and allowed it to proceed to trial.

c) Failing to address the competency or otherwise of the pleadings of the allegations of “undue influence” pleaded under paragraph 23 to 34 of the petition when he ruled that “ there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud is prevented or obstructed in the free exercise of an elector’s right to vote” when the facts pleaded demonstrated that the First Respondent in person by use of force and threats prevented and obstructed the free exercise of the rights of the whole voting population at Biligie Primary School Ward 8 hence the ballot box for this polling station was set aside during counting.

e) That his failure to apply his own interpretation of s.102 of the Criminal Code Act to the allegation of “undue influence” pleaded in Paragraph 23 to 34 of the petition affected and compounded his error when he ruled that “to the extent that paragraphs of the petition for grounds one and two are supposed to contain any pleadings on the grounds of undue influence, I find that the requirements of s.208(a) of the Organic Law have not been met.

Section 215(1) of the Organic Law on National Government and Local Level Government Elections (“Organic Law”)

2.2 The Learned Judge erred in fact and law in:

a) Failing to address the allegation of “undue influence” pleaded under Paragraphs 23-34 of the Petition pursuant to s.215(1) of the Organic law when he erroneously dismissed the allegations by applying s.215 (3) of the Organic Law; and

b) Erroneously applied the allegation of “undue influence” pleaded under Paragraphs 23-34 of the Petition to s.215 (3) of the Organic Law when in fact the petition pleaded that this allegation came...