Nomane v Mori [2013] PGSC 28; SC1252 (18 March 2013)

SC1252

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 15 of 2013

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:

JIM NOMANE
Applicant

And:

WERA MORI
First Respondent

And:

ANDREW TRAWEN, THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 12th, 18th March

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding Objection to Competency of Election Petition – Dismissal of Election Petition – 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:

Mr Manase, for the applicant
Mr Napu, for the first respondent
Mr Kepo, for the second respondents

18th March, 2013

1. INJIA, CJ: This is an application for leave to apply for review of the decision of the National Court to dismiss an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002. It is contested by the first respondent. The second respondent supports the first respondent's position.

2. The application falls to be determined on the application of the criteria for grant of leave enunciated by this Court in Jurvie v Oveyara (2008) SC 935 to the circumstances of this case. It is clear to me that there are two important or main issues to be determined. The first is whether the facts required to be pleaded in the petition under s 28(a) of the Organic Law were adequately pleaded such that there are serious and important points of law or fact that arise for determination by the full Court. Those facts relate to the judge's findings with regard to the failure to plead the Organic Law by its full title; that Criminal Code, s 103 (undue influence) should have been pleaded alongside Criminal Code, s 102 ( bribery); and, failure to plead whether the bribery money was received before or after the elector casted his vote. The second is the finding that the petition failed to plead the name of the employer of the two attesting witnesses as part of the pleading their respective occupations in compliance with s 208 (d) of the Organic Law.

3. After hearing arguments of counsel and after considering those arguments given in the light of the material placed before me, I must decide whether the points raised by the applicant raise serious and important points of law or facts that warrant the grant of leave. It is not for me to engage in a detailed analysis of the points raised and the material before me and to determine the merits of those points. That function rests with the full court. At the same time, it is open for me to scrutinize the points raised in order to weed out points that clearly have no merit and this function can be performed from a quick perusal of the material before me.

4. In the case before me, I have no hesitation in concluding that the points satisfy the criteria in Jurvie v Oveyara. I consider that important and serious points of law and facts (in terms of facts pleaded) have been demonstrated by the applicant; that those points raise serious questions as to whether the trial judge was correct in requiring a petition to plead the full title of the Organic Law in respect of every allegation; whether s 103 offence which is a distinct electoral criminal offence is connected with s 102 offence and therefore both ought to be pleaded together; whether it was necessary to further plead the specific time when the bribery money was given to the elector concerned by reference to the time votes were casted; and whether an attesting witness who supplied their description of their employment status in the petition must also plead his or her employer's name and address in order to satisfy the requirement in s 208 (d) to plead his or her occupation. On the face of the express requirements of s 208 (a) and (d), and in the face of case authority, the requirement to plead those matters may appear to be too onerous and superfluous.

5. I am satisfied that the trial judge's findings on these points were determinative of the validity of the petition; that they are not without merit; and that, those points may be likely to succeed. In reaching this conclusion, I uphold submissions of counsel for the applicant on those points.

6. The submissions of counsel for the first respondent go to the merits of those points and can be resurrected at the hearing of the substantive application before the full Court. For that reason, I reject those submissions.

7. There were some heated arguments on the standard of pleadings of the grounds and issues raised in the application for leave but I consider those arguments to be of no material consequence to the fate of the application for leave.

8. For those reasons, I grant the application.

9. The formal orders of the Court are:

(1) The application for leave is granted.

(2) Costs shall be in the cause of the substantive application for review.

________________________________________________
Manase & Co Lawyers: Lawyer for the applicant
Napu & Company Lawyers: Lawyer for the first respondent
Waisi Lawyers: Lawyer for the second respondent