Jim Nomane v Wera Mori and Electoral Commission (2013) SC1242

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J, Cannings J, Collier J
• Judgment Date: 12 July 2013
• Court: Supreme Court
• Citation: (2013) SC1242
• Docket Number: SCR NO 15 OF 2013
• Year: 2013
• Judgement Number: SC1242

Full Title: SCR NO 15 OF 2013; Jim Nomane v Wera Mori and Electoral Commission (2013) SC1242

Supreme Court: Kandakasi J, Cannings J, Collier J

Judgment Delivered: 12 July 2013

SC1242

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 15 OF 2013

JIM NOMANE

Applicant

V

WERA MORI

First Respondent

ELECTORAL COMMISSION

Second Respondent

Waigani: Kandakasi J, Cannings J, Collier J

2013: 24 June, 12 July

ELECTIONS – objection to competency of petition – purpose of strict compliance with the Organic Law on National and Local-level Government Elections, Section 208(a) – whether necessary to cite full name of Organic Law throughout petition – whether necessary to plead which specific bribery offences in Criminal Code Section 103 have been committed – whether necessary to plead law in addition to facts – Organic Law, Section 208(d): attestation of petition by two witnesses – meaning of “attest”.

The National Court upheld an objection to competency of an election petition and dismissed the petition on a number of grounds including breach of the rule in Browne v Dunn, failure to cite the full name of the Organic Law being relied on and failure to plead with particularity the specific bribery offences under Section 103 of the Criminal Code allegedly committed by the successful candidate. An unsuccessful candidate applied for and was granted leave to review the decision of the National Court under Section 155(2)(b) of the Constitution. This was the hearing of the application.

Held:

(1) The rule in Browne v Dunn is not generally applicable when the National Court is hearing an objection to competency.

(2) It is not necessary for a petition to cite the full name of the Organic Law on National and Local-level Government Elections on every occasion that that Organic Law is referred to in the petition.

(3) If a petition alleges that the successful candidate has committed the offence of bribery under Section 103 of the Criminal Code it is necessary to state which particular offence has been committed and its elements.

(4) Here, five of the 15 grounds of review were upheld but ten were dismissed, the most critical being that which alleged error by the primary Judge in holding that the petition was incompetent for having failed to specify with particularity the specific bribery offences that were committed by the successful candidate.

(5) Ultimately the application for review failed as the applicant failed to demonstrate that the primary Judge’s decision to uphold the objection to competency was wrong.

(6) The application for review was dismissed with costs.

Cases cited

The following cases are cited in the judgment:

Agonia v Karo [1992] PNGLR 463

Aihi v Sir Moi Avei (2003) PGSC 11

Albert Karo v Lady Kidu (1997) N1626

Amet v Yama [2010] PGSC 46

Browne v Dunn (1893) 6 R 67

Ebu v Evara [1983] PNGLR 201

Ekip v Wimb [2012] PNGC 200

Eoe v Maipakai (2013) N5066

Freshfield v Reed (1842) 9 Meeson and Welsby 404, 152 ER 171

Holloway v Ivarato [1988-89] PNGLR 99

In the Matter of the Organic Law on National and Local-Level Government Elections, Karani v Silupa [2003] PGNC 103

Jim Nomane v Wera Mori and Electoral Commissioner of PNG, EP No 69 of 2012, 18.02.13, (unreported)

Kamma v Itanu (No 2) [2008] PGNC 4

Maladina v Abel [2012] PGNC 257

Mune v Agiru [1998] PGSC 3

Palme v Mel [1989] PGNC 30

Peter Isoaimo v Aihi Paru (2012) N4921

Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960

Sapau v Posangat [2013] PGNC 11

Sauk v Polye [2004] PNGLR 23

Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583

The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43

Wenge v Naru [2013] PGNC 32

APPLICATION

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

Counsel

A Manase, for the applicant

J Napu, for the First Respondent

C Lari, for the Second Respondent

12 July, 2013

1. BY THE COURT: This is an application pursuant to Section 155(2)(b) of the Constitution to review the decision of the National Court (Gauli AJ) dated 18 February 2013. In that decision his Honour upheld the first respondent's objection to the competency of the applicant’s Electoral Petition (“Petition”) filed 3 September 2012, and dismissed the Petition in its entirety (Jim Nomane v Wera Mori and Electoral Commissioner of PNG, EP No 69 of 2012, 18.02.13, (unreported)).

2. The applicant and the first respondent were both candidates for the Chuave Open Electorate in the 2012 General Election. Polling commenced in the electorate on 7 July 2012. On 29 July 2012 the Electoral Commission of Papua New Guinea, which is second respondent to this application, declared the first respondent to be the successful candidate.

3. The applicant filed the Petition in the National Court on 3 September 2012, seeking orders that the first respondent's election be declared invalid and that a by-election be called for the Chuave Open Electorate. The Petition alleged that the first respondent had on nine occasions illegally bribed voters in the electorate.

4. The first respondent filed a notice of objection to competency on 11 October 2012.

5. On its own motion the second respondent was joined as a party to the Petition by Order 1 of the National Court dated 14 November 2012. Order 2 of the orders of 14 November 2012 stated that the second respondent would only make submissions on the law and would not file affidavits.

6. On 6 February 2013 the applicant filed a notice of motion seeking to have the trial moved from Kundiawa to Goroka or Lae.

7. The notice of objection to competency was heard by Gauli AJ on 11 and 12 February 2013. At the objection to competency hearing, the applicant only pressed five of the nine alleged “bribery cases”: Nos 3, 5, 6, 8 and 9.

8. On 18 February 2013, Gauli AJ ordered as follows:

(1) The First Respondent’s objection to competency is upheld.

(2) The Petition is dismissed in its entirety.

(3) The Petitioner shall pay the Respondents' costs to be taxed if not agreed.

(4) The security deposit of K5,000.00 held by the Registrar to be released and paid to the Respondents in equal shares.

9. Helpfully at paragraph [70] of his decision his Honour summarised his reasons for finding that Sections 208(a) and (d) of the Organic Law on National and Local-level Government Elections ("the Organic Law") had not been complied with:

1 The Petitioner failed to fully state the name of a particular Organic Law, pursuant of which he was pleading s 215 of the Organic Law.

2 In pleading bribery under s 103 of the Criminal Code Act, the Petitioner failed to plead specific subsections under s 103 [of the Criminal Code which] the First Respondent is alleged to have committed since there are a high range of bribery offences with varying elements to be established under this provision.

3 The Petitioner failed to plead s 102 of the Criminal Code Act in particular to cases where he alleged bribery that involved undue influence.

4 The Petitioner sufficiently pleaded the addresses of the two attesting witnesses but they have not provided sufficient details of their occupation, by failing to name their employers and or their employment addresses.

5 In all five bribery allegations, there is [sic] adequate pleadings of the First Respondent handing out money to specific persons to dish out to the electors in their groups or Wards. However, there are insufficient pleadings as to when and where those persons who received the money from the First Respondent distributed or shared the money to the individual electors.

10. In the circumstances his Honour declined to order that the proceedings be transferred to another Registry.

APPLICATION FOR REVIEW OF DECISION OF GAULI AJ

11. The applicant filed an application for review of the decision of Gauli AJ on 25 March 2013, seeking orders that:

(1) The decision of the National Court of 18 February 2013 be set aside or quashed.

(2) The Petition be restored and paragraphs 7.4, 7.6, 7.7, 7.9 and 7.10 of the Petition proceed to trial before another Judge of the National Court.

(3) Costs of the National Court hearing and this application for review be granted to the applicant.

12. The applicant relies on fifteen grounds of review which can generally be grouped into grounds regarding the sufficiency of the pleadings, attestation of witnesses, and bribery allegations. More particularly, the grounds of review may be summarised as follows:

1 Grounds relevant to Section 208(a) of the Organic Law

· At [21] and [22] the primary Judge erred and misstated the principle in Holloway v Ivarato [1988] PNGLR 99 in finding that the purpose of strict compliance with Section 208 of the Organic Law is to make the opponent party aware of what the other parties are saying against him (ground 5.1).

· At [22] the primary Judge erred in finding that the principles in Browne v Dunn were applicable to proceedings in election petition matters at the...