Application under s155(2)(B) of the Constitution in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Ken Fairweather v Jerry Singirok and Emily Siamoli, Returning Officer and Electoral Commission (2013) SC1293

• Jurisdiction: Papua New Guinea
• Judge: Mogish J, Cannings J, Poole J
• Judgment Date: 04 November 2013
• Court: Supreme Court
• Citation: (2013) SC1293
• Docket Number: SC REV (EP) NO 41 OF 2013
• Year: 2013
• Judgement Number: SC1293

Full Title: SC REV (EP) NO 41 OF 2013; Application under s155(2)(B) of the Constitution in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Ken Fairweather v Jerry Singirok and Emily Siamoli, Returning Officer and Electoral Commission (2013) SC1293

Supreme Court: Mogish J, Cannings J, Poole J

Judgment Delivered: 4 November 2013

SC1293

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 41 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

KEN FAIRWEATHER

Applicant

V

JERRY SINGIROK

First Respondent

EMILY SIAMOLI, RETURNING OFFICER

Second Respondent

ELECTORAL COMMISSION

Third Respondent

Waigani: Mogish J, Cannings J, Poole J

2013: 31 October, 4 November

ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(a): petition to set out the facts relied on to invalidate the election or return – whether petition alleging illegal practices committed by persons other than the candidate was adequately pleaded – whether necessary to plead law as well as fact.

The National Court refused objections to the competency of an election petition and ordered that the petition proceed to trial. The first respondent to the petition was the successful candidate at the election and applied to the Supreme Court under Section 155(2)(b) of the Constitution to review the decision, arguing that the National Court erred in law by refusing to dismiss the petition, as the petition was incompetent in that it: (1) failed to plead, in respect of alleged acts of bribery or undue influence committed by persons other than the candidate, the matters required to be proven under Section 215(3) of the Organic Law; (2) failed to plead which particular categories of offences of undue influence prescribed by Section 102 of the Criminal Code were allegedly committed; (3) failed to plead which particular categories of offences of bribery prescribed by Section 103 of the Criminal Code were allegedly committed; and therefore (4) failed to comply with the strict requirements of Section 208(a) of the Organic Law: that the petition set out the facts relied on to invalidate the election or return.

Held:

(1) A petition that alleges that bribery or undue influence was committed by a person other than the candidate does not have to plead under Section 215(3) of the Organic Law that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

(2) A petition that alleges that the successful candidate or any other person committed undue influence should plead which particular offence under Section 102 (undue influence) of the Criminal Code was allegedly committed.

(3) A petition that alleges that the successful candidate or any other person committed bribery should plead which particular offence under Section 103 (bribery) of the Criminal Code was allegedly committed.

(4) The facts set out in a petition must be material or relevant facts sufficient to indicate or constitute a ground upon which the election or return can be invalidated. The purpose of Section 208(a) is to require the petitioner to indicate clearly the issues upon which the opposing parties may prepare their cases and to enable the court to be clear about the issues involved (Holloway v Ivarato [1988] PNGLR 99).

(5) Here, as to the grounds alleging that bribery or undue influence was committed by persons other than the candidate, the failure of the petition to plead the two matters prescribed by Section 215(3) of the Organic Law was of no consequence.

(6) The argument that the petition was incompetent due to its failure to plead which particular offences under Section 102 (undue influence) of the Criminal Code were allegedly committed was a new argument that was not raised before the National Court and leave was not sought from or granted by the Supreme Court to argue this point of law, so it could not be relied on even though it arguably raised a challenge to the jurisdiction of the National Court.

(7) The argument that the petition was incompetent due to its failure to plead which particular offences under Section 103 (bribery) of the Criminal Code were allegedly committed was a new argument that was not raised before the National Court and leave was not sought from or granted by the Supreme Court to argue this point of law, so it could not be relied on even though it arguably raised a challenge to the jurisdiction of the National Court.

(8) The applicant failed to show in any other respect the petition failed to comply with the requirements of Section 208(a) or any other provision of the Organic Law or how the primary Judge erred.

(9) The application for review was refused and the decision of the National Court affirmed.

Cases cited

The following cases are cited in the judgment:

Aihi v Isoaimo (2013) SC1276

Amet v Yama (2010) SC1064

Application by Herman Joseph Leahy (2006) SC 855

Benny Diau v Mathew Gubag (2004) SC775

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105

Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788

Fairweather v Singirok SC Rev (EP) No 41 of 2013, 02.08.13 unreported

Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705

Holloway v Ivarato [1988] PNGLR 99

Karo v Kidu [1997] PNGLR 28

MVIT v James Pupune [1993] PNGLR 370

Nomane v Mori (2013) SC1242

Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

PNGBC v Jeff Tole (2002) SC694

Robert Kopaol v Philemon Embel (2003) SC727

Singirok v Fairweather EP No 8 of 2012, 15.10.12, unreported

Telikom PNG Ltd v ICCC (2008) SC906

The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

APPLICATION

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

Counsel

G J Sheppard & P Tabuchi, for the applicant

B W Meten, for the first respondent

A Kongri, for the second and third respondents

4th November, 2013

1. BY THE COURT: Ken Fairweather applies for review of the decision of the National Court to refuse objections to the competency of a petition by Jerry Singirok which disputed the validity of Mr Fairweather’s election as member for Sumkar Open in the 2012 general election. The National Court, constituted by Justice Gavara-Nanu, refused objections by Mr Fairweather, the Returning Officer and the Electoral Commission. Subject to dismissing one of the grounds of the petition as incompetent his Honour, on 6 June 2013 in EP No 8 of 2012, ordered that the petition proceed to trial.

2. Mr Fairweather’s application for review is made under Section 155(2)(b) of the Constitution which confers on the Supreme Court an inherent power to review all judicial acts of the National Court. He seeks an order that would set aside the National Court’s order of 6 June 2013 and dismiss Mr Singirok’s petition. The application is opposed by Mr Singirok. The Returning Officer and the Electoral Commission neither support nor oppose Mr Fairweather’s application.

THE PETITION

3. Mr Singirok’s petition, which seeks amongst other things declarations that Mr Fairweather was not duly elected, consists of eight grounds, each alleging various acts of bribery or undue influence:

· ground 1(a): bribery and undue influence committed by another person with Mr Fairweather’s consent, knowledge and authority: K15,000.00 at Matugar on 21 May 2012;

· ground 1(b): bribery and undue influence committed by Mr Fairweather: K15,000.00 at Matugar on 21 May 2012;

· ground 2: bribery and undue influence committed by another person with Mr Fairweather’s consent, knowledge and authority: 5,000-litre water tank and four bags of cement at Did on 24 May 2012;

· ground 3: bribery and undue influence committed by another person with Mr Fairweather’s consent, knowledge and authority: K490.00 at Boroman on 4 June 2012;

· ground 4: bribery and undue influence committed by Mr Fairweather: rice, sugar and other goods and K110.00 cash at Basken on 13 June 2012;

· ground 5: bribery and undue influence committed by Mr Fairweather: New Holland tractor at Dangsai on 20 June 2012;

· ground 6: bribery and undue influence committed by Mr Fairweather: K300.00 at Dangsai on 20 June 2012;

· ground 7: bribery and undue influence committed by another person with Mr Fairweather’s consent, knowledge and authority: stockfeed and hardware items at Garum on 29 June 2012.

OBJECTIONS TO COMPETENCY

4. The respondents filed three notices of objection to competency. Two grounds of objection (relating to service of the petition) were...