John Kekeno v Philip Undialu and Electoral Commision of Papua New Guinea (2015) SC1428

• Jurisdiction: Papua New Guinea
• Judge: Batari, Yagi & Makail, JJ
• Judgment Date: 07 May 2015
• Court: Supreme Court
• Citation: (2015) SC1428
• Docket Number: SCREV (EP) NO 1 of 2014
• Year: 2015
• Judgement Number: SC1428

Full Title: SCREV (EP) NO 1 of 2014; John Kekeno v Philip Undialu and Electoral Commision of Papua New Guinea (2015) SC1428

Supreme Court: Batari, Yagi & Makail, JJ

Judgment Delivered: 7 May 2015

SC1428

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 01 OF 2014

BETWEEN

JOHN KEKENO

Applicant

AND

PHILIP UNDIALU

First Respondent

AND

ELECTORAL COMMISION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Batari, Yagi & Makail, JJ

2014: 03rd July & 2015: 07th May

SUPREME COURT – Election Petition Review – Review of National Court decision – Dismissal of election petition – Election petition incompetent – Constitution – Section 155(2)(b).

SUPREME COURT – Election Petition Review – Competency of Application for Review – Pleading of grounds of review – Application for Review must state briefly but specifically the grounds of review – Grounds of review vague and too general – Grounds fail to specify error made by trial judge – Application for Review incompetent – Dismissal of – Supreme Court Rules, 2012 – Order 5, rule 19(c).

Facts

Each respondent objects to the competency of the application for review on the grounds that the grounds of review are pleaded in too general terms, vague and not specific contrary to the requirements in Order 5, rule 19(c) of the Supreme Court Rules 2012. The objections arise from the application to review the decision of the National Court under section 155(2)(b) of the Constitution. The National Court upheld the respondents’ objections to competency and dismissed the petition challenging the election of the first respondent as Member for Koroba-Lake Kopiago as being incompetent.

Held:

1. Pursuant to Order 5, rule 28(f) of the Supreme Court Rules, 2012 and the inherent jurisdiction of the Supreme Court, the Court has jurisdiction to determine whether an application for review is competent at any stage of the court proceedings: Sir Arnold Amet v. Peter Yama (2010) SC1064 and Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272 referred to.

2. An application for review of a decision of the National Court on an election petition must state briefly but specifically the grounds relied upon in support of the review: Order 5, rule 19(c) of the Supreme Court Rules, 2012.

3. The grounds of review fail to specify the error made by the trial judge when he upheld the objection to competency and dismissed the election petition. They are too general and vague. This kind of pleading is prohibited by Order 5, rule 19(c) of the Supreme Court Rules, 2012. Each ground is incompetent and is dismissed.

4. Both objections are upheld and application for review is dismissed as being incompetent.

Cases cited:

Sir Arnold Amet v. Peter Yama (2010) SC 1064

Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272

Sir Barry Holloway v. Aita Ivarato [1998] PNGLR 99

Jimson Sauk v. Don Pomb Polye and Electoral Commission (2004) SC769

Dick Mune v. Anderson Agiru and Others (1998) SC590

Counsel:

Mr. Philip Ame, for the Applicant

Mr. Justin Haiara, for the First Respondent

Mr. Ray William, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY OF REVIEW

07th May, 2015

1. BY THE COURT: There are two objections to competency of the application for review. One by the first respondent filed on 02nd April, 2014 and the second by the second respondent filed on 07th April, 2014. Both objections are contained in the objection book filed on 22nd May, 2014.

2. The objections are made pursuant to Order 5, rule 28(f) of the Supreme Court Rules 2012 and the inherent jurisdiction of the Supreme Court as held by the Supreme Court in cases such as Sir Arnold Amet v. Peter Yama (2010) SC1064 and followed in Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272. There is no issue on this point.

3. The only issue which the applicant contends is that the respondents had the opportunity to object to the competency of the review at the hearing of the application for leave to review. They did not. Nonetheless, after a consideration of the grounds, the Court comprising a single judge of the Supreme Court struck out two out of seven grounds and allowed five to proceed further. By their failure to object, the respondents have acquiesced to the review and should not be permitted to re-litigate the objection to competency.

4. As the applicant does not take issue with the view expressed in the Supreme Court cases that the Court has inherent jurisdiction to determine an objection to competency, we reject the applicant’s contention that the respondents are not permitted to object to the competency of the application for review. We accept the proposition that the issue of competency may be raised at any stage of the court proceedings. We proceeded on this basis to determine whether the application for review is competent. We also heard the substantive review application and reserved our decision pending the ruling on the objection to competency.

5. The objections arise from the application to review the decision of the National Court constituted by the learned Deputy Chief Justice Sir Gibbs Salika of 13th February, 2014 under section 155(2)(b) of the Constitution. His Honour upheld the respondents’ objections to competency and dismissed the petition challenging the election of the first respondent as Member for Koroba-Lake Kopiago as being incompetent. His Honour held that the pleading of the grounds was convoluted, too general, vague and confusing, and the petition failed to plead sufficient facts and, pleaded evidence rather than facts contrary to section 208(a) of the Organic Law on National and Local-level Government Elections. (“Organic Law”)

6. Although the respondents have raised five grounds of objection, they come down to one main ground of “general pleadings” with lack of particulars and/ or “specifics”. They are that the grounds of review are pleaded in too general terms, vague and not specific contrary to the requirements in Order 5, rule 19(c) of the Supreme Court Rules. Order 5, rule 19(c) states:

“The application for review shall:-

c) state briefly but specifically the grounds relied upon in support of the review.”

7. There are five grounds of review. We have heard the parties and have considered their respective written submissions. We canvass them in our consideration of the objection.

8. We start with the basic premise that the grounds must be brief but must specify the alleged error made by the trial judge. If the alleged error is in relation to the trial judge’s interpretation of the law, the ground must state the law, interpretation given by the trial judge and the correct view. If the alleged error is in relation to the exercise of discretion by the trial judge, the ground must state the principles relevant to the exercise of discretion and how the trial judge applied the principles in the exercise of his discretion. If the alleged error is in relation to the trial judge’s assessment of the evidence which formed the basis of his findings of fact, the ground must state how the trial judge erred in his assessment of the evidence. If the ground is that the trial judge relied on hearsay evidence to make a certain finding of fact, the ground must state the name of the witness whose evidence is said to be hearsay and how it is hearsay. It is not sufficient to plead that the finding by the trial judge was against the weight of evidence or that the decision was wrong in law because the trial judge misapprehended or misconstrued the law.

9. With those basic principles in mind, we address each ground below.

10. Ground 1 states:

“His Honour erred in law in not taking into account the facts pleaded in all the grounds of the petition and total of those figures which was more that 20,000 votes that affected the winning margin of 8025 votes, the later being the difference between the first respondent and the applicant who was runner up in the elections.”

11. We accept the respondents’ submission that this ground is too general, vague and not specific. It does not specify the facts upon which the petition is grounded and on which the trial judge failed to take into account nor does it point to a specific finding of the trial judge or where the trial judge failed to make the finding. We are reminded that the review is against the decision to dismiss an election petition for failing to comply with section 208(a) of the Organic Law.

12. Section 208(a) states that a petition must set out the facts relied on to invalidate the election or return. The facts disclose the type of ground or grounds a petitioner relies on to invalidate the election or return, bearing in mind that there are different types of grounds and different tests required to prove them. They are bribery, attempted bribery, undue influence, illegal practices and errors or omissions. It is, therefore, incumbent on the applicant to specify which ground or grounds the trial judge struck out because the petition failed to plead sufficient facts or the pleading was vague and too general.

13. We note it is pleaded in this ground that a total of 20,000 votes were affected and the result of...