Yagama v Yama [2013] PGSC 2; SC1219 (16 February 2013)

SC 1219

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Review No. 55 of 2012

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

BETWEEN:

ANTON YAGAMA
Applicant

AND:

PETER CHARLES YAMA
First Respondent

AND:

STEVEN BIKO
Returning Officer
Second Respondent

AND:

ANDREW TRAWEN
Electoral Commissioner, Electoral Commission of Papua New Guinea
Third Respondent

AND:

THE ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani : Sakora, Manuhu & Kariko JJ
2013: 7 & 16 February

NATIONAL PARLIAMENT – NATIONAL GENERAL ELECTIONS – Petition challenging the election and return in the Usino-Bundi Open parliamentary electorate – Objection to the competency of the Petition – Ruling on the Objection – Trial commenced and continuing – Trial in an advanced stage – Evidence for Petitioner completed – 'No case submissions' dismissed – Sections 206, 208, 209, 210 & 214 Organic Law on National and Local-level Government Elections

CONSTITUTION – NATIONAL GENERAL ELECTIONS – PETITION – Judicial Review of the ruling on objection to competency – Leave granted for review - To a party who filed no notice of objection to competency – And no allegations made against such party - Application for stay of trial pending review – Section 155 (2) (b) & (4) Constitution.

CONSTITUTION – Practice & Procedure - Judicial Review – Application for stay of trial pending review – Lack of provision – Power to give ad hoc directions for application for stay – Sections 155 (2) (b) & (4), 185, Constitution.

Cases Cited

The following cases are cited in the judgment:

Moi Avei & Electoral Commission v Charles Maino (Unreported SC 584 of 16 October 1998
Seravo Viviso and Electoral Commission v John Giheno [1998] PGSC 2; SC 555 (21 January 1998)
Arore v Warison [2008] PGSC 30; SC 947 (6 November 2008)
Dick Mune v Paul Poto (Unreported SC 499 of 2006)
Tom Olga v Paias Wingti [2008] PGSC 24; SC 938 (of 17 September 2008)
Waranaka v Dusava (Unreported SC 942 of 2008)

Counsel

Mr P Kuman, for the Applicant
Mr Z Gelu, for the First Respondent
Mr H Nii, for the Second, Third & Fourth Respondent

16 February, 2013

1. BY THE COURT: Introduction: The applicant was the winning candidate in the 2012 National General Elections for the Open Parliamentary seat of Usino-Bundi in the Madang province, formally declared as such on 27 July 2012, pursuant to s 175 (1) of the Organic Law on National and Local-level Government Elections (the Organic Law). The first respondent here, a candidate also in the same election, filed a Petition pursuant to s 206 of the Organic Law challenging the election and return of the applicant.

2. The petition (EP No. 52 of 2012), filed on 29 August 2012 and containing five (5) grounds, alleged various errors and omissions on the part of electoral officials in the conduct of the polls in the electorate. No allegations were made directly against the applicant.

The Objection to Competency of the Petition

3. The second, third and fourth respondents in the Petition had filed on their behalf a Notice of Objection to Competency of the Petition on 2 October 2012. The applicant (first respondent) filed no such challenge to the competency of the Petition.

4. The objection to competency was based on the assertion that the Petition did not plead facts as required under s 208 (a) of the Organic Law, and, therefore, should not be heard by the National Court, contending that, as such, the Petition offended against the mandatory requirements of ss 208 (a) and 210. Similarly, the assertion that the Petition was filed out of time, thereby offending against ss 208 (e) and 210.

5. The objection to competency, originally constituting two (2) grounds, had two (2) new grounds added at the hearing. The Court allowed inclusion and heard respondents on all grounds. The applicant who had filed no Notice of Objection to Competency was thus heard also at the hearing which took place on 12 December 2012. On 14 December 2012, the National Court in Madang held that the Petition "with one exception adequately set out the facts relied on to invalidate the election, including adequately pleading that the result of the election was likely to be or was affected by the illegal practices and errors or omissions pleaded". The exception was ground (3) of the Petition which was held to be "vague and confusing", thereby upholding the objection in respect of this ground.

6. The Court, refusing to grant the other objections, ordered grounds 1, 2, 4 and 5 to be tried, setting the matter down for trial on 21 January 2013. Upon an application made before the trial court on 18 January 2013, the trial date was vacated. The matter was listed for mention on 29 January 2013.

7. It would appear that despite the applicant's request on the return date that an adjournment be granted "to allow parties to deal with the Review proceedings and especially the Applicant's application for stay, the Court went ahead to set the Petition down for hearing on Thursday 31 January 2013 at 10.00 am". There was, of course, no order for "stay" in place at the time. An application for leave to apply for review (of the ruling on the competency objection) pursuant to the Supreme Court Election Petition Review Rules (hereinafter, the SCEPRRs) having being filed on 27 December 2012 by the applicant/first respondent, was not heard and determined until 18 January 2013, when leave was granted. And the application for review was not filed until 23 January 2013.

8. However, it appears further that an order for stay was sought pursuant to an Amended Notice of Motion filed on 3 January 2013 (returnable on 31 January 2013) before the Supreme Court (Injia CJ). His Honour's order and direction dated 31 January 2013 (Annexure "RGO1" to the affidavits of Roger Gileng Otto sworn 1st February 2013), are in the following terms:

1. Order sought in paragraph 6 of the Applicant's Amended Notice of Motion filed 3 January 2013 is struck (sic) for want of competence.
   
2. Applicant is at liberty to file for stay citing the relevant jurisdictional provision forthwith and made returnable on Monday 4 February 2013 at 1.30 pm.
   

9. The order for stay had been sought following the filing of an Application for Leave to have reviewed the decision of the National Court on the objection to competency of the Petition. Leave application was heard and granted by the Supreme Court (Kassman J) on 18 January 2013, following which the formal Application to Review pursuant to Rule 11 of the SCEPRR, was duly filed.

10. It is noted that leave to apply for review, purportedly under Sub-division 1 of the SCEPR Rules 2002, was applied for and granted to a party who had not formally objected to the competency of the Petition (by the filing of a Notice of Objection to Competency). Conversely, the parties that formally raised objections to competency and, thus, were directly affected (vis-a-vis the grounds of the Petition) by the decision did not seek leave to apply for review. In the context of a Notice of Objection to Competency of an election petition, who is a "party aggrieved" as envisaged under Rule 1 (sub-division 1)?

11. In this introductory part of our ruling that identifies the prominent dates in the proceedings so far in respect of the Petition, we note these in the context of the oft-expressed constitutional seriousness and importance of elections to the National Parliament, and challenges to those elections through Petitions such as this, pursuant to s 206 Organic Law, and the need to hear and determine these challenges expeditiously in the obvious public interest. The public interest (and the associated public policy considerations) that the 'Fathers of the Constitution', through the Constitutional Planning Committee (CPC), took great pains to explain, emphasise and make recommendations on for inclusion in the Independence Constitution (CPC Report Ch 5, p 13; Ch 16, pp 2 & 3), and as numerous judicial enunciations have stressed over the years, considerable importance is attached to the electoral system. The system, as we all know full well, by which members of parliament are to be chosen in the fair and free exercise of the people's franchise (s 50 Constitution), so that the highest political forum in the land can be truly representative of the views and interests of our people.

12. It would not be unreasonable to suggest that these sentiments, expressed in many election petitions in the past, would have been guided by the prohibition on appeals put in place under s 220 Organic Law that had been subsequently declared by the Supreme Court to offend against the right of review provided under s 155 (2) (b) Constitution.

The Application for Stay

13. We note that no specific provisions can be found in the SCEPRRs vesting jurisdiction in this Court (either the full Bench or a single judge of it) to "stay" proceedings pending a review under s 155 (2) (b) of the Constitution.

14. We respectfully note that this absence or lacuna in a specific provision for the manner in which a decision from which a review has been filed may be stayed, was properly acknowledged by an earlier Supreme Court in the case of Dick Mune v Paul Poto (Unreported SC 499 of 1996) where the court was "quite prepared to exercise our discretion under the inherent jurisdiction of the Court under s 155 (2) (b) and s 155 (4) of the Constitution".

15. It is instructive to note that in that case judicial review proceedings had already been filed, and the trial of the Petition had not formally commenced. Thus, the court granted stay, firstly, by making ad hoc direction in relation to procedure, pursuant to s 185 Constitution, and, secondly, by relying on s 155 (2) (b) and (4) Constitution in respect of invoking jurisdiction.

16. This absence of provisions for stay in respect of pending reviews can be contrasted with ss 5 (1) & 19 of the Supreme Court Act in respect of appeals, where the power to grant stay pending appeal, is a matter of discretion vested in both the full Supreme Court and a single judge of the Court.

17. Thus, in relation specifically to election petitions and applications for judicial review under s 155(2) (b) Constitution, it was the view of Kapi DCJ (as he then was) in Viviso Seravo & Electoral Commission v John Giheno (Unreported SC 539 of 15 January 1998), that a single judge of the Supreme Court had no jurisdiction to entertain an application for stay.

18. It is instructive to reproduce hereunder what his Honour said:

In the circumstances I cannot exercise the power of the Supreme Court as a single judge. Consequently I cannot deal with this application. The application should be set down for hearing before the full Supreme Court.

19. The full Supreme Court endorsed this view when it heard the application for stay and granted it, which decision is referred to and relied on in the applicant's submissions here: Viviso Seravo & Electoral Commission v John Giheno (Unreported, SC 555 of 1998).

20. The application for stay here is moved pursuant to a Notice of Motion filed 1st February 2013. The Notice of Motion pleads that the application is "pursuant to Section 155 (2) (b) and Section 155 (4) of the Constitution and the Viviso Seravo v Giheno (1988) SC 555 (sic) and Arore v Warisan (2008) SC 947 (sic) the National Court proceedings in EP No. 52 of 2012, Peter Charles Yama v Anton Yagama, Steven Biko, Andrew Trawen and Electoral Commission be stayed pending determination of the review of the National Court's ruling of 14 December 2012".

21. The first point to make regarding the purported invoking of jurisdiction under paragraph (1) of the Notice of Motion (supra) is that it is riddled with careless and inattentive citation of the case authorities (the Seravo case is cited incompletely and the year is wrongly cited as 10 years earlier). Secondly, case authorities should not be cited in the body of a Notice of Motion where only the invoking of jurisdictional basis and the reliefs (orders) sought should be recited and pleaded.

22. The third point to make is that s 155 (2) (b) Constitution does not vest in this Court the power to grant stay pending review of a decision of the National Court in an election petition. Nor do the SCEPRRs 2002.

23. What s 155(2) (b) Constitution vests in this Court is the "inherent power to review all judicial acts of the National Court, and (c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other Law".

24. As was held in the case of Arore v Warisan [2008] PGSC 30; SC 947 of 6 November 2008, a full bench of the Supreme Court has jurisdiction under Section 155 (4) of the Constitution to grant a stay of National Court orders on an election petition or to make other interim orders, pending determination of a review under Constitution, Section 155 (2) (b), of the National Court orders.

25. The concluding part of s 155 (4) Constitution, would apply to an application for stay such as here, where no specific provision is made for it either in the Constitution itself or any other Law, or, indeed, under the SCEPRRs. The provision is reproduced hereunder in the following way:

. . . and such other orders as are necessary to do justice in the circumstances of a particular case.

26. We would respectfully adopt the ruling on jurisdiction regarding stay applications in election petition review proceedings as expressed in Arore v Warison (supra) as being the correct principle.

27. In respect of the making or giving of ad hoc directions under s 185 Constitution, we would respectfully adopt the view expressed in the earlier Supreme Court case of Dick Mune v Paul Poto (supra).

Applicant's case

28. Counsel for the 2nd, 3rd and 4th respondents handed up written submissions that basically support the applicant's case here. Both Mr Kuman and Mr Nii properly discuss the principles on the test to be applied in granting or refusing to grant stay in the way sought here, as well as the burden of satisfying the court that this is a proper case to exercise discretion in favour of grant. All the cases cited in this hearing agree on these principles, and we are guided by these.

29. The proper test for grant of stay, if jurisdiction has been properly invoked, is as stated in Arore v Warison (supra): The test to apply is whether the making of the stay or other interim order is necessary to do justice in the circumstances of the particular case. This test was of course first enunciated in the Viviso Seravo case (supra), which, whilst stating that the jurisdiction for stay is to be found in the inherent power of the Supreme Court under s. 155 (2) (b), which we respectfully differ from, borrowed the concluding words of s 155 (4), without making specific mention of the provision.

30. The onus is on the applicant for stay to demonstrate to the satisfaction of the court that the grant of stay is necessary to do justice in the circumstances of a particular case.

31. It is the applicant's case (supported by the 2nd, 3rd and 4th respondents) that, firstly, the objection to competency and its refusal raise serious issues of law in relation directly to the exercise of jurisdiction by the National Court over the allegations in the Petition. As such, the trial should not be continued, to its conclusion whereby the hearing and determination of these issues of jurisdiction in the Review would be prejudiced. The applicant characterizes the commencement of the hearing of the Petition and its continuation as "pre-empting" the outcome of the Review proceedings.

32. It is contended in this respect that whilst grant of stay will only cause delay in the trial only, the people of Usino-Bundi will not be without representation in Parliament.

The Petitioner's case

33. Mr Gelu of counsel for the Petitioner in objecting to the grant of a stay order, and noting that the application for stay is before this Court pursuant to the two (2) orders of his Honour the Chief Justice dated 31 January 2013, submits that the applicant at time of commencement of the trial has not complied with the direction regarding citation of the jurisdictional basis for this application. Counsel refers to the citation of ss 155 (2) (b) and 155 (4) Constitution and the inclusion of case law as lack of proper pleading as envisaged in the learned Chief Justice's orders, and that the Notice of Motion is thereby rendered defective. It should, therefore, be dismissed with costs, it is argued. Counsel relies on Rule 18 (particularly sub-r (ii) of National Court Election Petition Rules (the NCEPRs) (Amended) 2002: Summary Determination.

34. It is also the petitioner's case that the scheme of the NCEP Rules (Amended) 2002, is such that because of the seriousness of the electoral process and petitions challenge the integrity of the electoral process, a petition should be heard and determined expeditiously. In this respect counsel for the petitioner refers to and relies on Rule 15 of the Rules. This provision under this Rule, headed "Hearing" is in the following language:

The Court shall deal with the petition and any challenge as to the competency of it at the hearing. (underlining ours).

35. In any case, it is submitted, the applicant has not discharged the onus which is on him to demonstrate that stay under the circumstances of this case is necessary to do justice, as envisaged under s 155 (4) Constitution. Mr Gelu submits that what the applicant contends in relation to discharging his onus is merely that, as the sitting member of parliament, his interest would not be protected (and, thus, would be prejudiced) if stay were not granted and the trial continued. And counsel submits this is not sufficient discharge of the applicant's onus.

36. In relation to the cases referred to and relied on in support of the application, Mr Gelu submits that those cases are all distinguishable from this case, on the facts. In Arore v Warisan (supra) the trial on the Petition had been conducted and completed, and review sought were in respect of final orders. The Viviso v Giheno case (supra) was in respect of an application for stay when the trial of the Petition had not commenced.

General Comments

37. All counsel acknowledged that the trial of the Petition was into its second week when this application came before us. It was further confirmed by counsel that by the time the application came before us, the petitioner had completed calling his evidence, and the trial had been adjourned to Monday 18th this month when the respondents are required to call their respective evidence. It has to be noted in this respect that the hearing was adjourned following the rejection of 'no case to answer' submissions by the respondents at the close of the petitioner's case.

38. During the course of the hearing, we sought the assistance of all counsel in relation to some preliminary issues of jurisdiction, proper parties (to or for review), and whether or not what seems to have been an interlocutory ruling in respect of objection(s) to competency of the Petition ought to have been the subject of a Supreme Court Review under s 155 (2) (b) Constitution, under the SCEPRR. In this respect there is also the associated question as to whether or not the requirements for leave under Sub-division 1(Rules 1 to 10 inclusive) apply to review of a ruling on competency, more particularly in the light of provisions such as those found under Rules 1 (a party aggrieved); 10 (decision on leave final and shall not be subject to further review); 31 (filing of an application for review does not stay enforcement).

39. Perhaps these are questions that ought properly to be considered in a substantive review under s 155 (2) (b) Constitution rather than in an application for stay. This court is hampered in this respect by the fact that leave to apply for review had already been granted, from which decision an application for stay seemed to be as a matter of course.

40. We note, however, that the grant of leave to review has not been challenged, and this may be due to the prohibition put in place under Rule 10 of the SCEPRR, which is in the following terms:

10. A decision to grant or a refusal to grant leave is final and shall not be subject to further review.

41. This prohibition, located in the Rules, must surely offend against the Constitutional right to review provided by s 155 (2) (b) Constitution, on the same sensible basis upon which such a prohibition, located, not in the Rules but in a Constitutional Law, the Organic Law, was declared to similarly offend: we speak of s 220.

42. In relation to the issue of what should or should not be a "party aggrieved" in the language of Rule 1 SCEPRR, this Court acknowledges that an elected member following a national general elections such as the one for the Open Parliamentary seat of Usino-Bundi that is under challenge pursuant to the Petition always has an interest in the outcome of a challenge. In this respect, we endorse the view expressed by Injia DCJ (as he then was) in Tom Olga v Paias Wingti [2008] PGSC 24; SC 938 (17 September 2008) that the applicant (the winning candidate in the election) was an 'aggrieved person' on the basis that:

He was named as a party in the Petition and is entitled to bring this application because his election as the provincial member for Western Highlands Province is directly affected by the order for recount. The result of the recount, if it favours the First Respondent, will affect his election. Therefore I am satisfied that the applicant is an aggrieved person within the meaning of r 1 of the Petition Review Rules.

43. With regard to our exchanges with counsel as to whether or not an interlocutory ruling (such as on an objection to competency), may be subject to review by this Court under s 155 (2) (b) Constitution, we respectfully agree with and endorse the view expressed by Injia DCJ (as he then was) in Waranaka v Dusava (Unreported SC 942 of 2008) that the only way by which leave to review can be sought is for an applicant to seek an order under Rule 32, dispensing with the requirement of Rule 1, as was done here.

44. We would add here, however, that such dispensation with the requirement should only be granted where the trial judge had clearly erred on the face of the record and that, therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested (s 208 (c) and (d)), and the security for costs had not been deposited (s 209) Organic Law, and the petition proceeded to substantive hearing despite these clear breaches.

45. While the Supreme Court in Viviso Seravo v John Giheno and Arore v Warisan (supra) settled the law as to the jurisdiction of a full Supreme Court to entertain an application for stay pursuant to s 155 (4) Constitution, neither case provides the procedure for seeking such an order. Unlike the provisions for appeals in the Supreme Court Act and the Supreme Court Rules in respect of these, no such procedure is provided for under the SCEPRR. This, we respectfully suggest, is the very situation envisaged by s 185 (Lack of procedural provision) Constitution. Whilst the learned Chief Justice's order of 31 January 2013 (supra) made no specific mention of s 185, the effect of paragraph (2) of that Order would appear to be an ad hoc direction as envisaged under s 185.

46. Thus, we are satisfied that this application is properly before us.

Conclusion

1. We refuse to dismiss the application pursuant to SCEPRRs, Rule 30 (Dismissal, etc. of Application), as urged upon us by counsel for the Petitioner, because we conclude that this application is properly before us, for the reasons in the foregoing discussion.
   
2. The applicant has not satisfied us that a grant of stay is necessary to do justice in the circumstances of this case, as required of him to.
   
3. The trial of the Petition, as adverted to above, and as fully acknowledged by all parties through their respective counsel, is well advanced, and will be into its third week of evidence if resumed as anticipated on Monday 18 February 2013.
   
4. The refusal of stay will not prejudice the respondents, including the applicant in respect of their rights and interests when the trial of the Petition continues to its logical conclusion according to law.
   
5. The respondents will have ample opportunities to, if need be, protect their respective rights and interests at the trial itself and at a subsequent review, where necessary, according to law.
   
6. This application for stay should, therefore, be refused with costs against all Respondents in the Petition.
   

We make orders accordingly.

____________________________________________________________
Kuman Lawyers: Lawyers for the Applicant
Nikiuma Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second, Third & Fourth Respondents