In the matter of an Application under s155(2)(b) of the Constitution and in Re Part XVIII of the Organic Law on National and Local Level Government Elections; Gabriel Kapris v John Simon and The Electoral Commission of Papua New Guinea (2013) SC1247

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 25 March 2013
• Court: Supreme Court
• Citation: (2013) SC1247
• Docket Number: SC Rev. No. 2 of 2013
• Year: 2013
• Judgement Number: SC1247

Full Title: SC Rev. No. 2 of 2013; In the matter of an Application under s155(2)(b) of the Constitution and in Re Part XVIII of the Organic Law on National and Local Level Government Elections; Gabriel Kapris v John Simon and The Electoral Commission of Papua New Guinea (2013) SC1247

Supreme Court: Injia, CJ

Judgment Delivered: 25 March 2013

SC1247

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 2 of 2013

In the matter of an Application under s 155 (2) (b) of the Constitution

And in re Part XVIII of the Organic Law on National and Local Level

Government Elections

Between:

GABRIEL KAPRIS

Applicant

And:

JOHN SIMON

First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Injia, CJ

2013: 19th & 25th March

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding Objection to Competency of Election Petition –Dismissal of Petition - Application for Leave for Review - Exercise of discretion- Application granted in part - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935

Counsel:

G Manda, for the applicant

R Raka, appearance for the first respondent

J Talopa, for the second respondent

25th March, 2013

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court to uphold an objection to the competency of an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002.The first respondent contests the application whilst the second and third respondents took no position on the application.

2. The application falls to be determined on the application of the criteria for grant of leave enunciated by this Court in Jurvie v Oveyara (2008) SC 935 to the circumstances of this case. The criteria developed in that case is not in issue. I recap the principles in Jurvie v Oveyara. 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; and, 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 or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice. The onus is on the applicant to demonstrate serious errors on important points of law or fact. It is not for this Court to engage in a detailed analysis of the points raised and the material before it in order to determine the merits of those points. That function rests with the full court. At the same time, it is open for this Court to scrutinize the points raised in order to weed out applications that clearly lack merit. This function can be performed from a quick perusal of the material before the Court.

3. By way of background there were two objections to competency of the election petition raising similar grounds of objection which were argued together. Those grounds of objection fell into two categories, those relating to bribery set out in paragraphs 11 and 23 of the petition; and, those relating to undue influence set out in paragraphs 12 and 24 of the petition. It was argued that those pleadings failed to plead or adequately plead the facts supporting those grounds required to be pleaded by s 208 (a) in conjunction with s 215 (1) of the Organic Law. Particulars of facts wanting in those paragraphs were set out in the grounds of objection and argued. The nature of those pleadings in the petition and the question of whether they satisfied the requirements of those provisions were argued at length in the Court below and this is evident from copies of written submissions made by the parties that are placed before me. Much of those arguments were repeated before this Court in an effort to demonstrate whether or not the trial judge erred in making findings of fact and law such that the criteria in Jurvie v Oveyara had been met or not met to warrant grant or refusal of leave for review. There is no need to repeat those arguments here; suffice to embody them in the course of my reasoning in this ruling.

4. I deal with the pleadings in relation to bribery. There are two main points argued under this ground in relation to two findings made by the trial judge. The trial judge found that the pleadings in paragraphs 11 and 23 failed to plead whether the “electors” referred to paragraph 23 were electors from the electorate in question. The trial judge also found that the petition failed to plead the date, time and place when first respondent’s agents actually delivered the money to the electors and told them to give their first preference vote to the first respondent.

5. After considering the arguments of counsel in the light of the material before me, I start by affirming a trite and sound principle that relates to how the Court should deal with related factual pleadings in a petition. Various facts in a petition that relate to a ground but are pleaded in separate parts of the petition must be read together and as a whole in order to decide whether the whole of those facts support the particular ground. In the present case, reading paragraphs 11 and 23 in this manner, it is obvious the essence or focus of the allegation in paragraph 11 is bribery committed by the first respondent himself; based on bribery as defined...