Kapris v Simon [2013] PGSC 30; SC1247 (25 March 2013)

SC1247

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 2 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:

GABRIEL KAPRIS
Applicant

And:

JOHN SIMON
First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Injia, CJ
2013: 19th & 25th March

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court upholding Objection to Competency of Election Petition –Dismissal of Petition - Application for Leave for Review - Exercise of discretion- Application granted in part - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935

Counsel:

G Manda, for the applicant
R Raka, appearance for the first respondent
J Talopa, for the second respondent

25th March, 2013

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court to uphold an objection to the competency of 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.The first respondent contests the application whilst the second and third respondents took no position on the application.

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. The criteria developed in that case is not in issue. I recap the principles in Jurvie v Oveyara. 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 onus is on the applicant to demonstrate serious errors on important points of law or fact. It is not for this Court to engage in a detailed analysis of the points raised and the material before it in order to determine the merits of those points. That function rests with the full court. At the same time, it is open for this Court to scrutinize the points raised in order to weed out applications that clearly lack merit. This function can be performed from a quick perusal of the material before the Court.

3. By way of background there were two objections to competency of the election petition raising similar grounds of objection which were argued together. Those grounds of objection fell into two categories, those relating to bribery set out in paragraphs 11 and 23 of the petition; and, those relating to undue influence set out in paragraphs 12 and 24 of the petition. It was argued that those pleadings failed to plead or adequately plead the facts supporting those grounds required to be pleaded by s 208 (a) in conjunction with s 215 (1) of the Organic Law. Particulars of facts wanting in those paragraphs were set out in the grounds of objection and argued. The nature of those pleadings in the petition and the question of whether they satisfied the requirements of those provisions were argued at length in the Court below and this is evident from copies of written submissions made by the parties that are placed before me. Much of those arguments were repeated before this Court in an effort to demonstrate whether or not the trial judge erred in making findings of fact and law such that the criteria in Jurvie v Oveyara had been met or not met to warrant grant or refusal of leave for review. There is no need to repeat those arguments here; suffice to embody them in the course of my reasoning in this ruling.

4. I deal with the pleadings in relation to bribery. There are two main points argued under this ground in relation to two findings made by the trial judge. The trial judge found that the pleadings in paragraphs 11 and 23 failed to plead whether the "electors" referred to paragraph 23 were electors from the electorate in question. The trial judge also found that the petition failed to plead the date, time and place when first respondent's agents actually delivered the money to the electors and told them to give their first preference vote to the first respondent.

5. After considering the arguments of counsel in the light of the material before me, I start by affirming a trite and sound principle that relates to how the Court should deal with related factual pleadings in a petition. Various facts in a petition that relate to a ground but are pleaded in separate parts of the petition must be read together and as a whole in order to decide whether the whole of those facts support the particular ground. In the present case, reading paragraphs 11 and 23 in this manner, it is obvious the essence or focus of the allegation in paragraph 11 is bribery committed by the first respondent himself; based on bribery as defined in s 103 of the Criminal Code and read in conjunction with s215 (1) of the Organic Law. But the pleading in paragraph 23 is a mixture of facts relating to bribery committed by the two named agents of the first respondent on the instruction of the first respondent. Section 215 (1) of the Organic Law speaks of bribery committed by the candidate himself. If the Court finds that the candidate committed the act of bribery, the election is declared void. Whether the act of bribery was done directly or indirectly through agents; and whether the result of the election was likely to be affected by the act of bribery are immaterial under s 215 (1). However s 215 (3) makes it clear that an election cannot be voided on account of bribery committed by a person other than the candidate unless the act of bribery was carried out with the candidate's knowledge and authority and such that the result of the election was likely to be affected and it is just that the election should be voided. That is the law under s 215 of the Organic Law to which the offence of bribery in s 103 of the Criminal Code is subject to, and must be read and applied. The law under s215 of the Organic Law is clear and it is trite law.

6. The pleadings in paragraphs 11 and 23 of the petition are not consistent with s 215 (1) because much of those pleadings in paragraph 23 relate to s 215 (3) situation. If the first respondent gave part of the money to the two agents and told them to vote for him, that is not pleaded in paragraph 23 to bring that part of the pleadings within the ambit of s 215 (1) and s 203 of the Criminal Code. If s 215 (3) is the essence and focus of paragraph 23 pleading, and to me, that seems to be the case; then the trial judge was correct in insisting on specific pleading on whether these four electors came from the same electorate in question and the date, time and place the money was actually given to them by the agents. In the circumstances, I am not satisfied that an important point of law has been made out by the applicant. I refuse leave to apply for review in respect of that part of the decision.

7. With regard to the allegation of undue influence, it became obvious during my exchange with counsel for the first respondent that the first respondent had no answer to the case made out by the applicant that the trial judge did not address the pleading in paragraph 24 and simply determined that ground by reference to paragraph 12. It is true that paragraph 12 did not specify if the facts alleged in paragraph 24 fell under s 102 (a) or (b) of the Criminal Code. On the face of s 208 (a) of the Organic Law, the requirement of s 208 (a) is to plead law and not facts; but there is some body of case law that suggest that facts pertaining to a ground and sections of the organic law or other law which relates to that ground, must be clearly pleaded. The question whether the trial judge was correct in insisting on pleading of the specific situation under s 102 (a) or (b) of the Criminal Code remains open for full argument on the merits. It is an important and determinative issue in this application. I am in no position to determine the merits of that issue.

8. I am satisfied though that an important point of law has been raised that there was an error of law, that is not without merit, committed by the trial judge in failing to address the pleading in paragraph 24 as to whether the pleading sufficiently pleaded facts under s102 under either (a) or (b); and, that the review on that ground is likely to succeed. In all the circumstances, I find that only the grounds in the application for leave in relation to undue influence, contained in Part B paragraphs 2.3 and 2.4 and related issues in paragraphs 3.2, 3.3 satisfy the criteria in Jurvie v Oveyara and allow them to proceed to a full hearing. I disallow the balance of the parts relating to bribery contained in Part A (paragraphs 2.1, 2.2) and Part B (paragraphs 3.1 and 3.4).

9. In the application for leave, Part C raises issues of combined bribery and undue influence. They are two distinct criminal offences that attract separate factual pleadings. They were dealt with separately by the trial judges and correctly so. I do not think that ground raises an important point of law.

10. The formal orders of the Court are:

(1) The application for leave is granted, only in relation to the grounds relating to undue influence, contained in Part B paragraphs 2.3 and 2.4 and related issues in paragraphs 3.2 & 3.3, of the application for leave;

(2) Application for leave in relation to bribery under Part A (paragraphs 2.1 & 2.2) and related issues in part B (paragraphs 3.1 & 3.4); and, Part C (paragraph 2.5), is refused.

(3) Cost shall be in the cause.

_________________________________________________________
Greg Manda Lawyers: Lawyer for the Applicant
Posman, Kua & Aisi Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent