William Hagahuno v Johnson Tuke and the Electoral Commission of Papua New Guinea (2020) SC1966

• Jurisdiction: Papua New Guinea
• Judge: Mogish J, Cannings J, Manuhu J, Koeget J, Tamate J
• Judgment Date: 02 July 2020
• Court: Supreme Court
• Citation: (2020) SC1966
• Docket Number: SC REV (EP) No 14 of 2019
• Year: 2020
• Judgement Number: SC1966

Full Title: SC REV (EP) No 14 of 2019; William Hagahuno v Johnson Tuke and the Electoral Commission of Papua New Guinea (2020) SC1966

Supreme Court: Mogish J, Cannings J, Manuhu J, Koeget J, Tamate J

Judgment Delivered: 2 July 2020

SC1966

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 14 OF 2019

WILLIAM HAGAHUNO

Applicant

V

JOHNSON TUKE

First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Mogish J, Cannings J,

Manuhu J, Koeget J, Tamate J

2020: 12th June, 2nd July

PRACTICE AND PROCEDURE – objection to competency of Constitution, s 155(2)(b) application for review of National Court decision, after leave granted for review – whether the application contained grounds of review beyond the granting of leave – whether inclusion of new ground of review, for which leave to argue had not been granted, taints the whole review, making it incompetent.

The respondent to an application under s 155(2)(b) of the Constitution to review a decision of the National Court on an election petition, objected to the competency of the application, subsequent to leave being granted to make the application, on five grounds: (1) ground of review 5.7 was an entirely new ground, leave to apply for review on that ground had neither been sought nor granted; (2) and (3) leave to argue grounds of review 5.1and 5.2 was not sought or granted; (4) leave to argue grounds 5.3 and the two grounds 5.5 was not sought or granted; and (5) the form of the application for review was non-compliant with the Supreme Court Rules.

Held:

(1) Ground of review 5.7 was an entirely new ground, which was not mentioned when the Court granted leave.

(2) The other grounds of review objected to (5.1, 5.2, 5.3 and the two numbered 5.5) were included in the grant of leave. Though there was a literal departure from the wording used in the application for leave, the substance of the arguments underlying these grounds of review had been relied on when leave to argue them was given.

(3) The form of the application for review is non-compliant with the Rules, but not in a material or prejudicial respect.

(4) Though there is authority for the proposition that an application for review under Constitution, s 155(2)(b) that includes grounds of review without leave to argue them, is incompetent, resulting in the entire proceedings being dismissed, there is another line of authority that supports a less harsh approach and would result in any additional grounds being simply struck out, provided that the jurisdiction of the Court has been engaged by some remaining ground(s) of review, leave to argue which has been granted.

(5) The Supreme Court, not being bound by its own decisions, is entitled, when faced with conflicting lines of authority, to adopt that which is most appropriate to the circumstances of the case and advances the interests of justice.

(6) In this case, leave for review having been granted, and the Court’s jurisdiction having otherwise been engaged, the inclusion of the new ground does not make the application incompetent and does not result in the proceedings being dismissed. That would be an unfair result.

(7) Objection to competency dismissed, with costs.

Cases Cited

The following cases are cited in the judgment:

Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221

Hagahuno v Tuke & Electoral Commission (2020) SC1923

Kuman v Digicel (PNG) Ltd (2017) SC1638

Lovika v Malpo (2019) SC1895

Lucas Dekena v Nick Kuman (2018) SC1715

Michael Kandiu v Powes Parkop (2015) SC1597

Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553

Paru Aihi v Moi Avei (2003) SC720

The State v Gaian (2019) SC1879

Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201

OBJECTION

This was an objection to competency of an application for review under s155(2)(b) of the Constitution.

Counsel

W Hagahuno, the applicant, in person

P Mawa, for the First Respondent

H Nii, for the Second Respondent

2nd July, 2020

1. BY THE COURT: This is a ruling on an objection to competency of an application by William Hagahuno to the Supreme Court under s 155(2)(b) of the Constitution for review of a decision of the National Court in an election petition. The objection is made by the second respondent, the Electoral Commission, and supported by the first respondent, Johnson Tuke, the member for Kainantu Open in the National Parliament.

2. Mr Hagahuno, the applicant, was granted leave by Cannings J, as a Judge of the Supreme Court, to apply for review of the decision of Numapo AJ (as he then was) in EP No 52 of 2017 of 10 December 2019 (Hagahuno v Tuke & Electoral Commission (2020) SC1923).

NATIONAL COURT DECISION: 10 DECEMBER 2019

3. In the decision of 10 December 2019, the National Court upheld objections to competency of Mr Hagahuno’s petition, challenging Mr Tuke’s election as member for Kainantu Open in the 2017 general election, and dismissed the petition. The trial judge held that the petition failed to meet the requirements of s208 (requisites of petition) of the Organic Law on National and Local-Level Government Elections in three respects:

(1) the petition failed to comply with s 208(d) in that one of the attesting witnesses inadequately stated his occupation as “self-employed”;

(2) the petition failed to comply with s 208(a) in that, while alleging a breach of s 87 (requisites for nomination) of the Organic Law, it made general assertions of electoral irregularities without material and relevant facts; and

(3) the petition failed to comply with s 208(a) in that, while alleging seven instances of bribery for purposes of s 215 of the Organic Law, it was confusing, ambiguous and lacking particularity.

GRANTING OF LEAVE: 28 FEBRUARY 2020

4. Leave was granted in the following terms:

The application for leave, under Order 5, Rule 9 of the Supreme Court Rules 2012, to apply for review of the decision of the National Court of 10 December 2019 in EP No 52 of 2017, is:

(a) granted in respect of proposed grounds of review the subject of paragraphs 3.1 (Alleged breach of s 208(d) of the Organic Law – self-employed) and 3.2 (Bribery allegations); and

(b) refused in respect of proposed grounds of review the subject of paragraph 3.2 (Alleged breach of s 87(1)(c) of the Organic Law – non-compliance with requirements for nomination).

APPLICATION FOR REVIEW: 12 MARCH 2020

5. On 12 March 2020 Mr Hagahuno filed his application for review, which purported to be in compliance with the granting of leave. The grounds of review are set out in paragraph 5 in the following way:

5.1 – alleged breach of s 208(d) of the Organic Law re one of the attesting witnesses describing his occupation as “self-employed”;

5.2 – breach of Schedule 2.9(1) of the Constitution and ultra vires;

5.3 – bribery re (a) 45 Street, Kainantu Town, (b) Hogu villagers, (c) Kainantu Rugby League Oval, (d) Ino-Onka villagers;

5.4 –particular allegations re 45 Street, Kainantu Town;

5.5 – particular allegations re Hogu villagers;

5.5 [note this is the second 5.5, an obvious numbering error that has not been corrected] – particular allegations re Kainantu Rugby League Oval;

5.7 – particular allegations re Ino-Onka villagers.

OBJECTION TO COMPETENCY: 23 APRIL 2020

6. On 23 April 2020 the Electoral Commission filed a notice of objection to competency, relying on five grounds of objection:

(1): ground of review 5.7 is an entirely new ground, leave to apply for review on that ground was not sought or granted;

(2) and (3): leave to argue grounds of review 5.1 and 5.2 was not sought or granted;

(4): leave to argue grounds 5.3 and the two grounds 5.5 was not sought or granted; and

(5): the form of the application for review is non-compliant with the Supreme Court Rules 2012.

We address each ground of objection in turn.

GROUND OF OBJECTION 1: GROUND OF REVIEW 5.7 IS AN ENTIRELY NEW GROUND

7. Ground 5.7 of the review argues that the trial judge erred in law and fact in ruling that the ground of the petition that alleged that the first respondent paid bribes to Ino-Onka villagers ‘in or about mid-June 2017’ was vague and ambiguous and failed to meet the requirements of s 208(a) of the Organic Law.

8. The respondents argue that this is an entirely new ground of review, not covered by the granting of leave of 28 February 2020, and for this reason alone, the entire application for review should be dismissed as incompetent.

9. Mr Hagahuno concedes the first part of the respondents’ argument, but not the second. He agrees that yes, it is a new ground of review, which he included in the application for review as the argument about the alleged bribery of Ino-Onka villagers was inadvertently omitted from the leave application. The remedy for this error on his part is for him to ask the Court to grant him leave to argue this ground of review, alternatively to strike out the ground of review. It would not be fair,...