Application under Section 155(2)(B) of the Constitution in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Cannings J, Kariko J
• Judgment Date: 18 November 2013
• Court: Supreme Court
• Citation: (2013) SC1295
• Docket Number: SC REV (EP) NO 11 OF 2013
• Year: 2013
• Judgement Number: SC1295

Full Title: SC REV (EP) NO 11 OF 2013; Application under Section 155(2)(B) of the Constitution in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295

Supreme Court: Salika DCJ, Cannings J, Kariko J

Judgment Delivered: 18 November 2013

SC1295

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 11 OF 2013

APPLICATION

UNDER SECTION 155(2)(b) OF THE CONSTITUTION

IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

PHILIP KIKALA

Applicant

V

ELECTORAL COMMISSION

First Respondent

NIXON KOEKA MANGAPE

Second Respondent

Waigani: Salika DCJ, Cannings J, Kariko J

2013: 30 August, 17 September, 18 November

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 bribery: whether necessary to set out place of bribery; intention of candidate – ground of illegal practices: whether necessary to allege that illegal practices were committed with candidate’s knowledge or authority; result of election likely to be affected – ground of errors or omissions: whether necessary to allege that result of election affected.

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.

The National Court upheld objections to the competency of an election petition and dismissed the petition as it failed to comply with Section 208(a) of the Organic Law on National and Local-level Government Elections in that it pleaded insufficient facts and there was a lack of clarity in the grounds of the petition that alleged bribery by the successful candidate, illegal practices at particular polling places and errors or omissions by the Electoral Commission and it also failed to comply with Section 208(d) of 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. 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 objections to competency and dismiss the petition. He raised eight grounds of review, arguing that the National Court erred in law by finding that: (1) to establish a bribery allegation, it was necessary to plead, in more detail than the bank at which a cheque was cashed, the place at which the act of bribery was committed; (2) the petition failed to adequately plead the intention of the successful candidate in regard to the alleged acts of bribery; (3) the elements of the offence of bribery under Section 103(a)(i) of the Criminal Code were not sufficiently pleaded; (4) the elements of the offence of bribery under Section 103(a)(iii) of the Criminal Code were not sufficiently pleaded; (5) the ground of the petition that alleged illegal practices at 13 polling places was defective in that it was not pleaded that the illegal practices were committed with the knowledge or authority of the successful candidate; (6) it was not necessary to consider whether the ground of the petition that alleged illegal practices at 13 polling places could be regarded as a ground alleging errors or omissions by the Electoral Commission; (7) the ground of the petition that alleged errors or omissions by the Electoral Commission was defective in that it failed to properly plead the winning margin of the successful candidate; (8) 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.

Held:

(1) It was not necessary to state, in more detail than the bank at which cheques were cashed, the places at which the alleged acts of bribery by the successful candidate took place. The facts relied on to invalidate the petition were adequately set out. Ground 1 of the review was upheld.

(2) The petition adequately pleaded the intention of the successful candidate in regard to the alleged acts of bribery. Ground 2 of the review was upheld.

(3) Ground 3 of the review was confusing and misconceived and was dismissed.

(4) Ground 4 of the review was repetitious and was dismissed. However, by virtue of upholding grounds 1 and 2, the applicant established that the National Court erred in two respects in striking out the ground of the petition that alleged that the successful candidate had committed nine acts of bribery.

(5) The ground of the petition which alleged illegal practices at 13 polling places was drafted in such a convoluted and confusing manner that it failed to comply with Section 208(a) of the Organic Law. No error of law was committed by the National Court in striking it out. Ground 5 of the review was dismissed.

(6) The ground of the petition that alleged illegal practices at 13 polling places did not adequately plead errors or omissions by the Electoral Commission. The National Court did not err by deciding that it was not necessary to consider whether that ground of the petition could be regarded as a ground alleging errors or omissions by the Electoral Commission. Ground 6 of the review was dismissed.

(7) The ground of the petition that alleged errors or omissions by the Electoral Commission adequately pleaded the winning margin of the successful candidate. The National Court erred by drawing the opposite conclusion and striking out that ground of the petition. Ground 7 of the review was upheld.

(8) Section 208(d) of the Organic Law does not require the two attesting witnesses to be in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. The National Court erred by drawing the opposite conclusion and dismissing the entire petition for that reason. Ground 8 of the review was upheld.

(9) As four of the eight grounds of review were upheld, the application for review was granted and, the errors of law of the National Court being significant, the decision of the National Court to dismiss the petition was quashed and the petition was with the exception of ground 4 of the petition (illegal practices) reinstated and remitted to the National Court for trial.

Cases cited

The following cases are cited in the judgment:

Abal v Ganim EP 61 of 2012, 16.07.13

Aihi v Avei (2003) SC720

Amet v Yama (2010) SC1064

Bao v Reipa (1998) N1753

Beseoh v Bao (2003) N2348

Ekip v Wimb (2012) N4899

Eoe v Maipakai (2013) N5066

Freshfield v Reed (1842) 9 Meeson and Welsby 404, 152 ER 171

Goheyu Saonu v Bob Dadae (2004) SC763

Holloway v Ivarato [1988] PNGLR 99

Isoaimo v Aihi (2012) N4921

Jimson Sauk v Don Pomb Polye (2004) SC769

Karani v Silupa (2004) N2517

Karo v Kidu [1997] PNGLR 28

Kubak v Trawen (2012) N4992

Manase v Polye (2008) N3341

Manase v Polye (2008) N3534

Mathias Karani v Yawa Silupa & Electoral Commission (2003) N2385

Mune v Agiru (1998) SC590

Niningi v Electoral Commission & Awesa (2013) N5322

Nomane v Mori (2013) SC1242

Oibotee v Allen EP 79 of 2012, 08.04.13, unreported

Peter Charles Yama v Anton Yagama (2012) N4928

Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) N4960

Raymond Agonia v Electoral Commission & Albert Karo [1992] PNGLR 463

Reipa v Bao [1999] PNGLR 232

SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342

Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583

Siaguru v Unagi [1987] PNGLR 372

Steven Pirika Kamma v John Itanu (2007) N3246

Tulapi v Lagea (2013) N5235

Wenge v Naru [2013] PNGC 32

APPLICATION

This was an application for review of a decision of the National Court to uphold objections to competency of an election petition and dismiss the petition.

Counsel

J D Kennedy, for the applicant

H Viyogo, for the first respondent

P Mawa, for the second respondent

18th November, 2013

1. BY THE COURT: Philip Kikala 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 Nixon Koeka Mangape as member for Lagaip-Porgera Open in the 2012 general election. The National Court, constituted by Justice Makail, upheld objections by the Electoral Commission (the first respondent) and Mr Mangape (the second respondent) to the competency of the petition and dismissed the petition in its entirety (Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) N4960).

THE PETITION

2. The petition was based on five grounds:

1 Mr Mangape was not a registered voter and therefore not eligible to be a candidate.

2 Mr...