Dekena v Kuman [2013] PGSC 27; SC1251 (22 February 2013)

SC1251

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 49 of 2012

In the matter of an Application under s 155 (2) (b) of the Constitution
and in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

DAWA LUCAS DEKENA
Applicant

And:

NICK KOPIA KUMAN
First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

(1) SC Rev. No. 6 of 2012

In the matter of an Application under s 155 (2) (b) of the Constitution
and in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

NICK KOPI KUMAN
Applicant

And:

DAWA LUCAS DEKENA
First Respondent

And:

ANDERW TRAWEN, THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, CJ
2013: 18th & 22nd February

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court Upholding Objection to Competency of Election Petition – Dismissal of Certain Grounds in the Election Petition – Application for Leave for Review - Exercise of Discretion - Application Refused - Supreme Court Election Petition Review Rules, r 1, r 4.

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court Upholding Election Petition – Relief Granted- By-election – Application for Leave for Review - Exercise of Discretion - Application Granted - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935

Counsel:

Ms Salika, for the Applicant in SC Rev 4 of 2013 & first respondent in EP 6 of 2013
Mr Kepo, for the Second respondent in SC Rev 4 of 2013 and second and third respondents in SC Rev 6 of 2013
Mr A Kongri, for the applicant in SC Rev 6 of 2013 and first respondent in SC Rev 4 of 2013

22nd February, 2013

1. INJIA, CJ: These are two contested applications for leave to review decisions of the National Court made in respect of the same election petition. The applications are made pursuant to the provisions of Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002. As they were heard together, I deliver a joint ruling.

2. By way of background information, the applicants Mr Kuman and Mr Dekena whom I refer to by their surnames for purposes of ease of reference, were amongst candidates who stood for the Gumine Open seat in the 2012 National Elections. Mr Dekena won the election scoring 13,288 votes to Mr Kuman who came second with 12,752 votes, a difference of 536 votes. Mr Kuman filed an election petition alleging illegal and improper practices on the part of certain supporters of Mr Dekena and electoral officials; and undue influence and bribery on the part of Mr Dekena and his supporters. At the trial, Mr Dekena objected to the competency of the grounds contained in the petition. The trial judge upheld the objection in part in relation to the allegations of bribery and undue influence and struck out those grounds; and, allowed part the grounds in relation to illegal and improper practices to proceed to trial. Mr Dekena does not seek leave to challenge the findings on illegal practices and grant of relief following those findings. In SC Rev 4 of 2013, Mr Dekena seeks leave to review that part of the decision only in relation to allowing the grounds concerning illegal practices to proceed to trial.

3. After the trial, the judge found that those grounds were proven and granted the relief sought in the form of an order for a by-election. In SC Rev 6 of 2012, Mr Kuman seeks leave to review only that part of the decision which concerns the grant of relief.

4. The case for the parties in each matter was argued on the application of the criteria for grant of leave for review enunciated by this Court in Jurvie v Oveyara (2008) SC 935 to the circumstances of the case at hand. In summary, insofar 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; and, insofar 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. The applicant needs to demonstrate serious issues of law or fact. The exercise at the leave stage is not one involving a detailed examination and consideration of the points raised in the application for to do so would amount to determining the substantive merits of those matters; a function reserved for the full court. What this Court can do however is to make a preliminary assessment of the points raised together with the material provided, scrutinize them and allow only those applications that have clear legal merit to warrant a review by the full Court.

5. Counsel argued the applications at length and made submissions for my consideration. It is not necessary for me to restate those arguments and separately deal with every one of them. It will suffice to incorporate those points argued and my consideration of them in the body of my reasoning.

6. In SC Rev 4 of 2013 the decision the subject of that application is interlocutory in nature. However its character as an interlocutory decision changed when the ruling was absorbed into the final decision such that that interlocutory decision forms part of the final decision within the meaning of the term "decision" in Supreme Court Petition Review Rules. For this reason, I accept submissions on that point of counsel for Mr Dekena and reject submissions of counsel for Mr Kuman.

7. A close scrutiny of the grounds and issues pleaded in the application for leave shows that the only challenge to the decision is the decision to allow those grounds to go to trial. The sum effect of the grounds, issues and reasons why leave should be granted contained in the application for leave and arguments of counsel for Mr Dekena; is that the pleadings failed to meet the requirements of OLNLLGE, s 208 (a); in that the petition failed to state if the result of the election was likely to be affected by the illegal practices and that the applicant be declared not duly elected as required by s 215 (3), or that the election be declared void. The argument is that the trial proceeded on a defective pleading that should have not gone to trial. The trial judge erred in law in holding that the petition complied with OLNLLGE, s 208 (a) and s 215(3).

8. I do not have the benefit of reading the judgment of the trial judge on the objection, as do counsel for the parties. Nonetheless, paragraphs A (5), B (9) and paragraph C (3) appear to provide the answer to the points raised on behalf of Mr Dekena. These paragraphs provide as follows:

"A (5) –The petitioner polled 12,752 votes and the first respondent polled 13,288 votes, a difference of 533 votes."

"B (9) - The total number of ballot papers in the disputed ballot box is 723 inclusive of two (2) informal ballot papers. This is more than the difference of votes between the First Respondent and the Petitioner and therefore, will affect the result of the election, if these ballot papers were not counted."

"C (3) – Alternatively, a declaration that the election of the First Respondent is null and void and a by-election for the Gumine Open Electorate be held".

9. That much said, it is arguable whether the pleading of these matters meet the standard of pleadings required by s 208(a) such that those allegations should not have proceeded to trial in the first place. A clear answer will emerge from a study of the judgment of the trial judge on the competency issue. That judgment is not available before this court. The judgment is contained in the court's record of proceedings or the court transcript and that transcript will no doubt be made available before the full Court at the appropriate time.

10. I also note from the judgment given on the trial that similar points were raised at the trial by Mr Dekena's lawyer and dealt with by the Court. Those issues will obviously arise for consideration by the full Court when the whole judgment comes up for review by the full Court. I am also mindful that I am not deciding on the merits of those points. In the circumstances, I am satisfied that an important point of procedural law has been raised and that it is not without merit.

11. For those brief reasons, I grant leave to review in SC Rev 4 of 2013 to proceed only with the grounds or points raised in the application for leave.

12. In respect of SC Rev 6 of 2013, Mr Kuman takes issue with the grant of relief.

13. The trial judge assessed the evidence presented by the parties and found that at Digebe Ward 4 polling place, Box No 6 was used. That box had 723 ballot papers which were used. Two supporters of Mr Dekena, namely Bepi Kapia and Kaupa Kokia marked the first preference votes for Mr Dekena and gave the ballot papers to electors gathered there to mark their second and third preferences. Electoral officers allowed or condoned this practice. The actions f Messrs Kapia and Kokia and electoral officials constituted illegal practice thereby contravening s 190, s191 (11), s 191(14), s 136, and s 138(a); s 149 and s 153A of OLNLLGE. When the votes from this ballot box were counted, Mr Dekena received 721 first preference votes with 2 informal votes. These votes exceeded the winning margin between the two candidates. Consequently, the result of the election was affected.

14. The trial judge gave various reasons for granting the relief that he granted. Having heard arguments of counsel for Mr Kuman, and forceful arguments I should say, on the issue of whether the judge erred in granting this relief, I am persuaded that important points of law have been raised as to how and why the judge erred in law. There are serious and important points of law that could be determinative of the appropriateness of the relief granted. For instance, whether the whole electorate should be subjected to another election process for the illegal practice committed at one polling place involving several hundred electors only, when the trial judge did not void the entire election, remains to be fully argued and determined. Whether it is open for the trial judge to speculate the outcome of a recount by reference to the votes affected from this one box is another serious issue. Whether issues of fairness to Mr Kuman or unfair advantage to be gained by Mr Dekena in subjecting the election process to a recount is a relevant issue to be considered in deciding on the choice of relief as between a recount and a by election or any other relief, remains to be argued and determined. A decision on these and other issues of law that may be argued are important issues that are not without merit, they raise serious issues of law to be determined and they may as well be likely to succeed in a full review.

15. For these reasons, I am satisfied that the criteria for grant of leave for review under Jurvie v Oveyara have been met. I grant leave to the applicant to proceed only with those points raised in the application.

16. Cost in both applications shall be in the cause of the substantive application for review in each case.
______________________________________________________________
Young & Williams: Lawyer for the Applicant is SC rev 4 of 2013 and first respondent in SC Rev 6 of 2013
Niugini Legal Practice: Lawyer for the Second respondent in SC Rev 4 of 2013 and second and third respondents in SC Rev 6 of 2012
Sirae & Co Lawyers: Lawyer for the applicant in SC Rev 6 of 2013 and first respondent in SC Rev 4 of 2013