Application under Section 155 (2)(b) of the Constitution; Anton Yagama v Peter Charles Yama and Steven Biko Returning Officer and Andrew Trawen Electoral Commissioner, Electoral Commission of Papua New Guinea and The Electrical Commission of Papua New Guinea (2013) SC1219

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Manuhu & Kariko JJ
• Judgment Date: 16 February 2013
• Court: Supreme Court
• Citation: (2013) SC1219
• Docket Number: SC Review No. 55 of 2012
• Year: 2013
• Judgement Number: SC1219

Full Title: SC Review No. 55 of 2012; Application under Section 155 (2)(b) of the Constitution; Anton Yagama v Peter Charles Yama and Steven Biko Returning Officer and Andrew Trawen Electoral Commissioner, Electoral Commission of Papua New Guinea and The Electrical Commission of Papua New Guinea (2013) SC1219

Supreme Court: Sakora, Manuhu & Kariko JJ

Judgment Delivered: 16 February 2013

SC 1219

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC Review No. 55 of 2012

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

BETWEEN:

ANTON YAGAMA

Applicant

AND:

PETER CHARLES YAMA

First Respondent

AND:

STEVEN BIKO

Returning Officer

Second Respondent

AND:

ANDREW TRAWEN

Electoral Commissioner, Electoral Commission of Papua New Guinea

Third Respondent

AND:

THE ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

Fourth Respondent

Waigani : Sakora, Manuhu & Kariko JJ

2013: 7 & 16 February

NATIONAL PARLIAMENT – NATIONAL GENERAL ELECTIONS – Petition challenging the election and return in the Usino-Bundi Open parliamentary electorate – Objection to the competency of the Petition – Ruling on the Objection – Trial commenced and continuing – Trial in an advanced stage – Evidence for Petitioner completed – ‘No case submissions’ dismissed – Sections 206, 208, 209, 210 & 214 Organic Law on National and Local-level Government Elections

CONSTITUTION – NATIONAL GENERAL ELECTIONS – PETITION – Judicial Review of the ruling on objection to competency – Leave granted for review - To a party who filed no notice of objection to competency – And no allegations made against such party - Application for stay of trial pending review – Section 155 (2) (b) & (4) Constitution.

CONSTITUTION – Practice & Procedure - Judicial Review – Application for stay of trial pending review – Lack of provision – Power to give ad hoc directions for application for stay – Sections 155 (2) (b) & (4), 185, Constitution.

Cases Cited

The following cases are cited in the judgment:

Moi Avei & Electoral Commission v Charles Maino (Unreported SC 584 of 16 October 1998

Seravo Viviso and Electoral Commission v John Giheno [1998] PGSC 2; SC 555 (21 January 1998)

Arore v Warison [2008] PGSC 30; SC 947 (6 November 2008)

Dick Mune v Paul Poto (Unreported SC 499 of 2006)

Tom Olga v Paias Wingti [2008] PGSC 24; SC 938 (of 17 September 2008)

Waranaka v Dusava (Unreported SC 942 of 2008)

Counsel

Mr P Kuman, for the Applicant

Mr Z Gelu, for the First Respondent

Mr H Nii, for the Second, Third & Fourth Respondent

16 February, 2013

1. BY THE COURT: Introduction: The applicant was the winning candidate in the 2012 National General Elections for the Open Parliamentary seat of Usino-Bundi in the Madang province, formally declared as such on 27 July 2012, pursuant to s 175 (1) of the Organic Law on National and Local-level Government Elections (the Organic Law). The first respondent here, a candidate also in the same election, filed a Petition pursuant to s 206 of the Organic Law challenging the election and return of the applicant.

2. The petition (EP No. 52 of 2012), filed on 29 August 2012 and containing five (5) grounds, alleged various errors and omissions on the part of electoral officials in the conduct of the polls in the electorate. No allegations were made directly against the applicant.

The Objection to Competency of the Petition

3. The second, third and fourth respondents in the Petition had filed on their behalf a Notice of Objection to Competency of the Petition on 2 October 2012. The applicant (first respondent) filed no such challenge to the competency of the Petition.

4. The objection to competency was based on the assertion that the Petition did not plead facts as required under s 208 (a) of the Organic Law, and, therefore, should not be heard by the National Court, contending that, as such, the Petition offended against the mandatory requirements of ss 208 (a) and 210. Similarly, the assertion that the Petition was filed out of time, thereby offending against ss 208 (e) and 210.

5. The objection to competency, originally constituting two (2) grounds, had two (2) new grounds added at the hearing. The Court allowed inclusion and heard respondents on all grounds. The applicant who had filed no Notice of Objection to Competency was thus heard also at the hearing which took place on 12 December 2012. On 14 December 2012, the National Court in Madang held that the Petition “with one exception adequately set out the facts relied on to invalidate the election, including adequately pleading that the result of the election was likely to be or was affected by the illegal practices and errors or omissions pleaded”. The exception was ground (3) of the Petition which was held to be “vague and confusing”, thereby upholding the objection in respect of this ground.

6. The Court, refusing to grant the other objections, ordered grounds 1, 2, 4 and 5 to be tried, setting the matter down for trial on 21 January 2013. Upon an application made before the trial court on 18 January 2013, the trial date was vacated. The matter was listed for mention on 29 January 2013.

7. It would appear that despite the applicant’s request on the return date that an adjournment be granted “to allow parties to deal with the Review proceedings and especially the Applicant’s application for stay, the Court went ahead to set the Petition down for hearing on Thursday 31 January 2013 at 10.00 am”. There was, of course, no order for “stay” in place at the time. An application for leave to apply for review (of the ruling on the competency objection) pursuant to the Supreme Court Election Petition Review Rules (hereinafter, the SCEPRRs) having being filed on 27 December 2012 by the applicant/first respondent, was not heard and determined until 18 January 2013, when leave was granted. And the application for review was not filed until 23 January 2013.

8. However, it appears further that an order for stay was sought pursuant to an Amended Notice of Motion filed on 3 January 2013 (returnable on 31 January 2013) before the Supreme Court (Injia CJ). His Honour’s order and direction dated 31 January 2013 (Annexure “RGO1” to the affidavits of Roger Gileng Otto sworn 1st February 2013), are in the following terms:

1. Order sought in paragraph 6 of the Applicant’s Amended Notice of Motion filed 3 January 2013 is struck (sic) for want of competence.

2. Applicant is at liberty to file for stay citing the relevant jurisdictional provision forthwith and made returnable on Monday 4 February 2013 at 1.30 pm.

9. The order for stay had been sought following the filing of an Application for Leave to have reviewed the decision of the National Court on the objection to competency of the Petition. Leave application was heard and granted by the Supreme Court (Kassman J) on 18 January 2013, following which the formal Application to Review pursuant to Rule 11 of the SCEPRR, was duly filed.

10. It is noted that leave to apply for review, purportedly under Sub-division 1 of the SCEPR Rules 2002, was applied for and granted to a party who had not formally objected to the competency of the Petition (by the filing of a Notice of Objection to Competency). Conversely, the parties that formally raised objections to competency and, thus, were directly affected (vis-a-vis the grounds of the Petition) by the decision did not seek leave to apply for review. In the context of a Notice of Objection to Competency of an election petition, who is a “party aggrieved” as envisaged under Rule 1 (sub-division 1)?

11. In this introductory part of our ruling that identifies the prominent dates in the proceedings so far in respect of the Petition, we note these in the context of the oft-expressed constitutional seriousness and importance of elections to the National Parliament, and challenges to those elections through Petitions such as this, pursuant to s 206 Organic Law, and the need to hear and determine these challenges expeditiously in the obvious public interest. The public interest (and the associated public policy considerations) that the ‘Fathers of the Constitution’, through the Constitutional Planning Committee (CPC), took great pains to explain, emphasise and make recommendations on for inclusion in the Independence Constitution (CPC Report Ch 5, p 13; Ch 16, pp 2 & 3), and as numerous judicial enunciations have stressed over the years, considerable importance is attached to the electoral system. The system, as we all know full well, by which members of parliament are to be chosen in the fair and free exercise of the people’s franchise (s 50 Constitution), so that the highest political forum in the land can be truly representative of the views and interests of our people.

12. It would not be unreasonable to suggest that these sentiments, expressed in many election petitions in the past, would have been guided by the prohibition on appeals put in place under s 220 Organic Law that had been subsequently declared by the Supreme Court to offend against the right of review provided under s 155 (2) (b) Constitution.

The Application for Stay

13....