SCREV (EP) NO 2 of 2014; In the Matter of Application under s155(2)(B) of the Constitution and in the Matter of Part XVIII of the Organic Law on National and Local - level Government Elections; Between Michael Kandiu (Applicant) and Hon. Powes Parkop ( First Respondent) and Cyril Retau (Second Respondent) and Ricky Fugunto (Third Respondent) and Electoral Commission of Papaua New Guinea (Fourth Respondent) (2015) SC1437

• Jurisdiction: Papua New Guinea
• Judge: Makail, Kariko & Toliken, JJ
• Judgment Date: 23 June 2015
• Citation: (2015) SC1437
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1437

Full Title: SCREV (EP) NO 2 of 2014; In the Matter of Application under s155(2)(B) of the Constitution and in the Matter of Part XVIII of the Organic Law on National and Local - level Government Elections; Between Michael Kandiu (Applicant) and Hon. Powes Parkop ( First Respondent) and Cyril Retau (Second Respondent) and Ricky Fugunto (Third Respondent) and Electoral Commission of Papaua New Guinea (Fourth Respondent) (2015) SC1437

Supreme Court: Makail, Kariko & Toliken, JJ

Judgment Delivered: 23 June 2015

SC1437

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 02 OF 2014

IN THE MATTER OF APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND

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

BETWEEN

MICHAEL KANDIU

Applicant

AND

HON. POWES PARKOP

First Respondent

AND

CYRIL RETAU

Second Respondent

AND

RICKY FUGUNTO

Third Respondent

AND

ELECTORAL COMMISSION OF PAPAUA NEW GUINEA

Fourth Respondent

Waigani: Makail, Kariko & Toliken, JJ

2015: 30th April & 23rd June

SUPREME COURT – Election Petition Review – Review of National Court decision – Dismissal of petition – Petition found to be incompetent – Failure to plead facts – Pleading of grounds of petition – Requirement to plead facts constituting grounds to invalidate election or return – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Elections – Section 208(a).

Cases cited:

Kaspa v. Yama [1988-89] PNGLR 197

Application of Ludwig Patrick Schulze (1988) SC578

Application by Herman Joseph Leahy (2006) SC855

Jim Nomane v. Wera Mori (2013) SC1242

Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1267

Amet v. Yama (2010) SC1025

Aide Ganasi v. Sali Subam (2013) SC1277

Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295

Barry Holloway v. Aita Ivarato [1988] PNGLR 99

Albert Karo v. Lady Carol Kidu [1997] PNGLR 28

Dick Mune v. Anderson Agiru (1998) SC590

Sir Peter Lus v. Gabriel Kapris (2003) N2326

Mathais Karani v. Yawa Silupa (2003) N2385

Koimanrea v. Sumunda (2003) N2427

Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286

Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275

Pila Ninigi v. Electoral Commission & Francis Awesa (2013) N5322

Philemon Embel v. Pesab Jeffrey Komal & Electoral Commission (2015) N5947

Counsel:

Mr. P. W. Korowi, for the Applicant

Mr. T. Dawidi, for the First Respondent

Mr. M. Kuma, for the Second, Third and Fourth Respondents

JUDGMENT

23rd June, 2015

1. BY THE COURT: Mr. Michael Kandiu was one of the unsuccessful candidates for the National Capital District Regional seat in the 2012 General Election. He came third to the first respondent, The Honourable Mr. Powes Parkop in the race. On 14th September 2012, he filed a petition in EP No 104 of 2012 in the National Court disputing the election of Mr. Parkop. Mr. Parkop and the other respondents objected to the petition on the ground that it was incompetent because it failed to meet the requirement under section 208(a) of the Organic Law on National and Local-level Government Elections. (“Organic Law”). Section 208(a) states that a petition shall set out the facts relied on to invalidate the election or return.

National Court Decision

2. On 07th March 2014, the National Court upheld the objection and dismissed the petition on the ground that it was incompetent. The primary judge found that it failed to meet the requirement in section 208(a) of the Organic Law in that, it failed to plead sufficient material facts constituting the grounds to invalidate the election or return of Mr. Parkop. His Honour also found that the pleading was vague and lacked clarity.

Grounds of Review

3. Mr. Kandiu seeks to review that decision and findings of the Court pursuant to section 155(2)(b) of the Constitution. He relies on 35 grounds. Grounds 1 to 11 relate to the striking out of grounds of bribery. Grounds 12 to 16 relate to the striking out of the grounds of illegal practices. The grounds of errors or omissions that were struck out are from Grounds 17 to 30. Grounds 31 to 35 relate to the striking out of allegations of undue influence.

4. In the National Court, Mr. Kandiu alleged two cases of bribery, six cases of illegal practice, six cases of errors or omissions and two cases of undue influence. Before us, he abandoned the grounds of review concerning illegal practice Case 1, Case 3 and Case 5 and the grounds of review concerning errors or omissions Case 3. He also abandoned all the grounds of review relating to the cases of undue influence. These grounds are, therefore, not considered in this decision.

Principles of Review

5. In our consideration of the review, we are guided by two basic principles of law laid down in the cases of Kaspa v. Yama [1988-89] PNGLR 197; Application of Ludwig Patrick Schulze (1988) SC578; Application by Herman Joseph Leahy (2006) SC855 and subsequently adopted and applied in Jim Nomane v. Wera Mori (2013) SC1242 and Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1267. They are:

· In so far as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit.

· In so far as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice and such a review of the finding of fact is warranted.

6. Mr. Kandiu’s main ground of review is that the primary judge erred when he found that the petition did not plead sufficient material facts constituting the grounds to invalidate the election or return of Mr. Parkop and that the pleading of the grounds was vague and too general. We make the point that the dismissal of the petition by the primary judge on the ground that it failed to comply with section 208(a) of the Organic Law was an exercise of discretion. This is because before the National Court can begin its inquiry into an election dispute under section 210 of the Organic Law, it must be satisfied that the petition meets the requirements of sections 208 and 209 of the Organic Law. The pertinent provision under consideration is section 208(a) of the Organic Law.

7. The question of a petition meeting the requirement in section 208(a) of the Organic Law is purely one of law because the inquiry is confine to a consideration of the pleading in the petition. It does not involve a consideration of evidence. That aspect only comes into consideration when the petition is found to be competent. Our consideration of the review is, therefore, based on the first principle, that is, whether the applicant has shown that there is an important point of law to be determined and that it is not without merit.

Bribery

8. Where a petitioner relies on bribery to invalidate an election or return, the petition must set out facts constituting its elements: Amet v. Yama (2010) SC1025; Nomane v. Mori (supra) and Aide Ganasi v. Sali Subam (2013) SC1277. This is because bribery is an offence under section 103 of the Criminal Code. Section 103 states:

“103. Bribery.

A person who —

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind —

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an...