Application under Section 1552(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on the National Local Level Government Elections; Electoral Commission v Pastor Bernard Kaku and William Powi (2019) SC1866

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kandakasi DCJ, David J & Anis J
• Judgment Date: 30 October 2019
• Citation: (2019) SC1866
• Judgment Number: SC1866
• Year: 2019
• Docket Number: SCR (EP) No 4 of 2019

Full Title: SCR (EP) No 4 of 2019; Application under Section 1552(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on the National Local Level Government Elections; Electoral Commission v Pastor Bernard Kaku and William Powi (2019) SC1866

Supreme Court: Kandakasi DCJ, David J & Anis J

Judgment Delivered: 30 October 2019

SC1866

PAPUA NEW GUINEA

[IN THE SUPEREME COURT OF JUSTICE]

SCR (EP) No. 4 of 2019

APPLICATION UNDER SECTION 1552(2)(b) OF THE CONSTITUION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON THE NATIONAL LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:

ELECTORAL COMMISSION

Applicant

AND

PASTOR BERNARD KAKU

First Respondent

AND

WILLIAM POWI

Second Respondent

Waigani: Kandakasi DCJ, David J & Anis J

2019: 17 and 30 October

SUPREME COURT REVIEW – Review of decision on an election petition – Constitution s.155(2)(b) –Two objections heard together – Decision only on one of them - No mention, consideration or ruling on the other – No explanation or reasons given - Whether error of law – Section 59 of the Constitution – Whether breach of natural justice – Duties of decision makers – Decision makers obliged to provide reasons for their decisions – Failure to provide reasons – Effect of – Breach of natural justice and decision or lack thereof without good reason – Consequence of.

Cases cited:

Anton Francis Yangama v. Jimi Uguro (2018) SC1682

Conrad Haoda v. Aide Ganasi (2013) N5136

Daniel Bali Tulapi v. Aiya James YapaYagea (2013) N5323

Dawa Lucas Dekena v Nick Kuman (2013) SC1272.

DelbaBiri v Bill Ninkama [1982] PNGLR 342

Electoral Commission of PNG v. Simon J Solo (2015) SC1467.

Ezekiel Anisi v. Tony Aimo (2013) SC1237.

Godfrey Niggints v. Henry Tokam& 2 Ors [1993] PNGLR 66.

Hon Ben Micah MP v. Rigo A Lua (2015) SC1445.

John Boito v. Mehrra Mine Kipefa and Electoral Commission of Papua New Guinea (2018) N7354

Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404.

Mission Asiki v. ManasupeZurenoc&Ors (2005) SC797.

MoiAvei& Electoral Commission v. Charles Maino (2000) PNGLR 157.

Ombudsman Commission v. Peter Yama (2004) SC 747.

Peter Waranaka v. Gabriel Dusava (2009) SC980.

Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257.

Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331.

Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064.

SC Review No. 1; Re Recount of vote [1990] PNGLR 441

Umapi Luna Pakomeyu v. James SiaiWamo (2004) N2718

William Powi v. Pastor Bernard Peter Kaku& Electoral Commission (2019) SC1856.

Legislation:

Constitution of Papua New Guinea

Organic Law on National and Local-level Government Elections

Counsel:

Mr H Nii, for the Applicant

Mr R Diweni, for the First Respondent

Mr A Baniyamai, for the Second Respondent

30th October, 2019

1. KANDAKASI DCJ: I have had the privilege of reading the draft judgment of His Honour Anis J. I agree with the orders His Honour proposes for the reasons he gives. However, given the importance of the issues raised in this review, I will express my own views.

2. The Electoral Commission of Papua New Guinea (Commission) is seeking a review of a decision of the National Court which failed to specifically address and rule on its objection to a competency of a petition (the Objection) against the election victory of the Second Respondent Hon. William Powi (Hon. Powi) out of the 2017 National General Elections. The said petition attracted two different objections. One from the Commission and the other from Hon. Powi. Both petitions were heard together by the National Court. In its decision, the National Court expressly dealt with the objection by Hon. Powi and made no mention of the other objection and proceeded to conduct a trial on the petition. Upon the matter coming to this Court, this Court ordered a stay of the trial pending a determination and conclusion of all proceedings before this Court.

Parties Arguments

3. The Commission with the support of Hon. Powi claims the National Court fell into error and in so doing, denied it, its right to natural justice. It explains that, after having heard its Objection, the Court was duty bound to make a decision on it and give reasons for its decision. Without properly disposing of the Objection, s. 210 of the Organic Law on National and Local-Level Government Elections (the Organic Law) precluded the National Court from mounting the trial. Amongst other reliefs the Commission is seeking, it is arguing for a grant of its application for a dismissal of the petition per its objection or in the alternative, declare a mistrial of the trial in the Court below and order a rehearing of its Objection before a different Judge.

4. In response, Pr. Kaku says the National Court is yet to come to a decision on the Commission’s Objections. Hence, there is no decision for review by this Court. He also points out that, the Commission and Hon. Powi had a duty to draw to the National Court’s attention by way of a slip rule application, raise the issues raised in this Court. Proceeding on that basis, Pr. Kaku argues, since the trial has gone to the point of a no case submission being made and decision on that application reserved, it is too late to revisit the lack of a decision on the Commission’s Objections. As such, this Court should allow the trial to proceed, where the Commission still has the possibility of the petition being dismissed or exercise its right of review if the petition is sustained.

Relevant Issue

5. From the argument of the parties, there are four issues for this Court to determine. These are:

(1) Did the learned trial Judge make a decision on the Commissions Objection?

(2) Whatever is the answer to the first question, did the learned trial judge give any reason for his decision or a lack thereof?

(3) Subject to this Court’s answer to the first two questions, did the National Court deny the Commission its right to natural justice in not specifically considering and making a decision on its Objection before ordering and proceeding with a trial of Pr. Kaku’s petition?

(4) If the answer to issue (3) is in the affirmative, what is the appropriate remedy?

6. Of these issues, I consider the first issue raised especially by Pr. Kaku is critical and determinative of this review. Hence, I propose to deal with that issue first. I will then deal with the remaining issues in the order stated.

Additional Background

7. Before dealing specifically with each of the issues, I consider it important that this Court should understand the complete background to this review. The pertinent part of the relevant background to this case, is in paragraph 2 of this judgment. Additionally, I note that, following a declaration of Hon. Powi as the winner of the Southern Highlands Regional Seat in the 2017 National General Elections, Pr. Kaku filed a petition in the National Court pursuant Organic Law on National and Local-level Government Elections (the Organic Law). As noted, the Commission and Hon. Powi responded to the petition with two separate objections as to the competency of the petition by each of them claiming amongst others, a failure to meet the requirements of s. 208 of the Organic Law. That necessitated a hearing for the purposes of s. 210 of the Organic Law the objections first before any trial on the petition could take place.

8. Indeed, the petition was eventually listed for trial, which commenced on 11th February 2019. At the commencement of the trial, the National Court first heard all the parties on the two objections. After having reserved its decision on the objections, the National Court delivered its decision on 18th February 2019. That decision appeared to have only dealt with the objection by Hon. Powi and the National Court omitted from its consideration and decision, the Commission’s Objection. The review application before us arises out of that.

9. On 18th March 2019, a trial on the petition commenced. Pastor Kaku completed his evidence and closed his case. At the close of Pr. Kaku’s case, the Commission and Hon. Powi made a no case to answer submission. A decision on that got reserved. At that point, the matter came to the Supreme Court. The Supreme Court in the course of dealing with some preliminary issues and interlocutory matters, ordered a stay of the trial in the National Court until conclusion of all proceedings in the Supreme Court. Soon thereafter, this Court heard the parties on the Commission and Hon. Powi’s separate applications for leave for review. The Court refused Hon. Powi’s application but granted the Commission’s application. Following the grant of leave, the matter came before us for hearing of the substantive review application, which we did and reserved our decision. Here now is our decision.

Review

10. At the start of the hearing before us, Counsel for the Commission indicated his client was pursuing only one ground for the review. That ground was its claim of the National...