Dawa Lucas Dekena v Nick Kopia Kuman and The Electoral Commission of Papua New Guinea (2013) SC1272

• Jurisdiction: Papua New Guinea
• Judge: David J, Sawong & Kassman JJ
• Judgment Date: 30 August 2013
• Court: Supreme Court
• Citation: (2013) SC1272
• Docket Number: SCREV NO. 04 OF 2013 and SCREV NO. 06 OF 2013
• Year: 2013
• Judgement Number: SC1272

Full Title: SCREV NO. 04 OF 2013 and SCREV NO. 06 OF 2013; Dawa Lucas Dekena v Nick Kopia Kuman and The Electoral Commission of Papua New Guinea (2013) SC1272

Supreme Court: David J, Sawong & Kassman JJ

Judgment Delivered: 30 August 2013

SC1272

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 04 OF 2013

AND

SCREV NO. 06 OF 2013

BETWEEN

DAWA LUCAS DEKENA

Applicant/First Respondent

AND

NICK KOPIA KUMAN

First Respondent/Applicant

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: David J, Sawong & ----Kassman JJ

2013: 2nd May & 30th August

NATIONAL ELECTION – Election Dispute – Trial – Illegal Practices - Illegal Votes- Trial Judge Ordered By- Election - National Elections – Review of National Court decisions – Review of interlocutory ruling – ruling of the “Decision” 5.1 of Election Review Rule.

NATIONAL ELECTION – Review of final decision- Trial judge took into irrelevant matters in final decision.

WORDS AND PHRASE – “Decision”- S.1 Election Petition Review Rules

Held

1. A ruling in a competency hearing is not a final decision; hence an applicant who desires to seek a review of such an interlocutory ruling must seek dispensation in the Supreme Court pursuant to Rule 32 of the Election Petition Review Rules.

2. As the applicant in SCRev. 04 of 2013 had not sought such dispensation under Rule 32 of the Election Petition Review Rules the Application for Review is incompetent and is dismissed.

3. The trial judge had taken into consideration irrelevant matters in ordering a by election thereby he exercised his discretion wrongly.

4. In a case where illegal practices are proved, the trial judge should consider carefully all relevant matters in deciding the outcome of the election petition in the exercise of his discretion.

5. As the trial judge had taken into account irrelevant matters in the exercise of his discretion in ordering a by election, the trial judge decision cannot stand.

Cases Cited:

Agiwa (1993) SC442

Anthon Yagama v Peter Yama, Steven Bigo and Others (2013) SC1219

Ben Semri (2003) SC723

Jurvie v Oveyara (2008) SC 935

Kalip v Pundari [1998] SC723

Kasap v Yama [1988-1989] PNGLR 1971

Ludwig Shulze [1998] SC572

Moi Ave and Electoral Commission v Charles Maino (2000) PNGLR 157

Olga v Wingti (2008) SC 938

Waranaka v Dusava (2008) SC942

Anton Yagama v. Peter Charles Yama & Ors, SCR 55 of 2012, Unreported and Unnumbered Judgment delivered on 30th May 2013 (Salika, DCJ, David, J and Yagi, J)

Counsel:

Ms G Salika, for the Applicant in SCREV 04 of 2013 & First Respondent in SCREV 04 of 2013

Mr A. Kongri, for the Applicant in SCREV 06 of 2013 & First Respondent in SCREV 04 of 2013

Mr K. Kepau, for the 2nd Respondent in SCREV 04 of 2013 & 2nd & 3rd Respondent in SCREV 06 of 2013.

30th August, 2013

1. BY THE COURT: INTRODUCTION: These are two Supreme Court reviews filed pursuant to section 155 (2)(b) of the Constitution in respect of the decisions of his Honour Acting Justice Kangwia in EP No. 74 of 2012 – Nick Kopia Kuman v Dawa Lucas Dekena, Andrew Trawen and Electoral Commission of Papua New Guinea.

BACKGROUND

2. In the 2012 National General Elections both applicants in these reviews were candidates for the Gumini Open Electorate in the Simbu Province.

3. The applicant in SCREV 04 of 2013, Dawa Lucas Dekena (Mr Dekena) was the incumbent member for that electorate. After the counting of votes following the voting, Mr Dekena was declared as the member for the electorate on the 28th of July 2012.

4. On 04th September 2012 the applicant Nick Kopia Kuman (Mr Kuman) filed a petition challenging Mr Dekena’s election win. The grounds of the petition were bribery, undue influence and illegal practices. The illegal practices allegations centred around two men namely Bepi Kapia and Kaupa Kokia illegally marking the first preference votes for Mr Dekena at Digibe Ward 4 polling place.

5. Mr Dekena and the Electoral Commission filed separate notices of objection to competency of the Petition.

6. The trial of the petition commenced on 10th December 2012. Following the hearing of the objections to competency, the grounds of bribery and undue influence were struck down and the grounds of illegal practices were allowed to proceed to trial. Being aggrieved by the said ruling, Mr Dekena has sought review of the said ruling in SCRev 04 of 2013. Mr Dekena does not challenge the finding on illegal practices and grant of relief following those findings.

7. During the trial the parties called evidence and made submissions in respect of these remaining grounds of the petition. On 15th January 2013 the learned trial judge upheld the petition on the grounds of illegal practices and declared Mr Dekena as not duly elected and ordered a by-election for the Gumine open electorate. Mr Kuman being aggrieved by the final decision has filed SCRev 06 of 2013. Mr Kuman seeks to review only that part of the decision which concerns the grant of relief.

8. We heard both reviews together. Each of the parties have filed written submissions in respect of each of their cases. We have read and considered those submissions. We propose to deal with both reviews under this one ruling. We propose to start with SCRev.04 of 2013.

9. Before proceeding further it is helpful to state the relevant principles governing election related review proceedings in the Supreme Court.

10. Section 220 of the Organic Law on National and Local Level Government elections (the Organic Law) prohibits an aggrieved party in an election petition from appealing a National Court decision which determined the petition. However, the Supreme Court has stated on numerous occasions that, where a party has no right of appeal, such a party may invoke the Supreme Court’s inherent power to review all judicial acts of the National Courts under section 155(2)(b) of the Constitution: see Kasap v Yama [1988-1989] PNGLR 1971.

11. The unanimous decision of the Supreme Court in Moi Avei and Electoral Commission v Charles Maino (2000) PNGLR 157 clarified and stated the difference between an appeal and a review in the following terms.

“It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgement of the issues. If error is found it will deliver the judgement it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.

As Lord Brightman stated in R v Hilingdon London BC, Ex Parte Pulhofer [1986] AC 484:

"where ... fact is left to the judgement of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...".

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process.”

12. Those views were fully endorsed and approved by the Supreme Court in Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, where the Court said:

“We endorse these views as a correct statement of law and add that a review should only be granted where there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record.”

13. The inherent power of review of an election petition...