Moroi v Haoda [2013] PGSC 34; SC1257 (26 April 2013)

SC1257

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 28 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:

ALPHONSE MOROI
Applicant

And:

KILA HAODA
First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Injia, CJ
2013: 26th April

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 - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Biri v Ninkama [1982] PNGLR 342
Jurvie v Oveyara (2008) SC 935
Polye v Sauk (2004) SC769

Counsel:

Mr Wariniki, for the applicant
Mr Leahy, for the first respondent
Mr Okil, for the second respondent

26th April, 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 competency and dismissing 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 the Supreme Court Rules 2012. The respondents contest the application.

2. By way of case background, the applicant was a candidate in the election for the Central Provincial Seat in the 2012 National Elections which was won by the first respondent. The applicant challenged the election result by way of a petition raising seven allegations of bribery. Four of those allegations were withdrawn. The first respondent objected to the competency of the remaining three allegations, citing failure to comply with the requirements of s 208 (a) of the Organic Law to plead facts or sufficient facts supporting the ground. The trial judge upheld the objection and dismissed the entire petition.

3. In this application, the applicant raises various grounds in which he claims the trial judge erred in law and or fact. I list them under seven categories as follows:

(1) Used repealed provisions of Organic Law: Grounds 2.1 (a),(b),(d) & (e); 2.2, 2.7, 3.1, 3.4(d), 3.5 (a) & (e);

(2) Adopted a very restrictive approach: Grounds 2.1 (c), (d), (f) & (g); 3.5(c ) & (d);

(3) Bias: Grounds 2.3, 2.4, 2.5, 2.6,2.8, 2.9, 3.0, 3.1, 3.3 (b) & (c), 3.5(b) & (f), 3.6(a),(b), (d) (e),(f),(g) & (h);

(4) Failed to consider relevant statutory provisions: Constitution, s 59, s 155(4), Organic Law, s 212 (3) & (4); Criminal Code, s 103 and s 235: Grounds 2.6, 2.7, 3.3(d)(e);

(5) Erred in construing and applying provisions of Organic Law and the Criminal Code: Ground 3.2(a), 3.4(c ), 3.5 (d);

(6) Erred when sufficient facts were pleaded: Grounds 3.2, 3.5(a), 3.7: and

(7) Erred in considering evidence or not considering relevant evidence: Grounds 3.3(a), (b), (c), (d), & (e); 3.4(a),(b) & (c ), 3.5 (a) 3.6(c ).

4. 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. The criteria developed in that case is not in issue. To recap those principles, 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 issues of law or fact. It is not for this Court constituted by a single judge of the Supreme Court, to engage in a detailed analysis of the points raised and the material before it and to determine the merits of those points. That function rests with the full court. That said, it is equally open to this Court to scrutinize the points raised in the application in order to weed out applications that clearly lack legal merit and this function can be performed from a quick perusal and consideration of the material before the Court.

5. Detailed arguments were made before me by counsel for the parties in relation to whether the judge erred in making those findings and whether they raise serious and important point of law or fact issues to warrant grant of leave to review. My consideration of those submissions and determination of those matters are embodied in my reasoning and conclusions.

6. I deal with five main points raised in the application. Firstly, with regard to the repealed Organic Law, I reaffirm the view I expressed during argument that this ground is clearly without merit. The Organic Law enacted in 1975 and subsequently amended on several occasions including the latest amendments made in 2006 have been consolidated which is now in use. That is the same law that the trial judge in the present matter used. It has never been argued, as done in this case, that because there were no savings provisions in the repealing legislation when the Organic Law was repealed in 1997, the Organic Law in its current form is not in force and cannot be applied. I find this submission to be a novel one, one that does not raise an important point of law and clearly one without legal merit.

7. Secondly with regard to the approach adopted by the trial judge, there appears to be two standards of scrutiny of election petitions adopted by judges of the National Court: the strict scrutiny approach and the flexible or liberal approach. The Supreme Court constituted by different judges also seem to have its share of differences of opinion as the correct approach. There are those judges or Courts that tend to favor the strict scrutiny approach and those that favor a more flexible approach: Biri v Ninkama [1982] PNGLR 342 cf Polye v Sauk (2004) SC769. In such situation, a trial judge is at liberty to adopt the approach that he or she prefers will dispose of the petition in a just manner. No error of law can be imputed to the judge if that judge chooses to adopt one of several approaches established by case law, that are competing but of equal force and authority. The grounds in the application for leave pertaining to this category also lack clear legal merit.

8. Thirdly, with regard to bias, counsel for the applicants submitted the trial judge was related to the first respondent by marriage and for this reason he had favored the first respondent in the manner in which he dealt with the case. The applicant also referred to another election petition matter presided over by the same judge in which his honor disqualified himself from dealing with the matter, suggesting a similar approach was not adopted in the present matter. It is argued serious issues of apprehension of bias are raised in the application and leave should be granted to determine the merits of those issues. Counsel for the respondents submit that this point was not raised before the trial judge and it is not open for it to be raised in this Court. It is submitted in response that the information regarding the judge's marriage ties with the first respondent was not known then and were discovered after the case was completed and therefore, the applicant should be allowed to raise them in the review.

9. I am of the view that the evidentiary matters referred to and the matters set out in the application show the alleged connection between the judge and the first respondent goes back for some time. The applicant or his agents would have known of this fact prior to or during the course of the trial and raised them before the trial judge. That did not happen. Further the judge's handling of another election petition raising issues of possible bias is unrelated to the present case. Clearly, the case for bias that was pieced together after the case seem to be highly speculative of a possible apprehension of bias. The matters raised under this category, though raising an important point of law, clearly lack legal merit.

10. Fourthly, the grounds pleaded under category four are too vaguely pleaded and scattered throughout the application and it is difficult to ascertain the precise nature of the case for review under those provisions severally or collectively. On the whole they raise no important point of law or fact for consideration by the full Court.

11. Fifthly, the remaining three categories are related and I deal with them together. In relation to bribery allegation 1 & 2, the trial judge found that the applicant incorrectly stated the date the acts of bribery took place as 12 June 2012; the correct date was 12 May 2012, a point conceded by counsel for the petitioner from the bar table during argument. As the petition could not be amended after the 40 day period had lapsed, this was a fundamental error that raised real doubts as to the facts of the charges of bribery. The judge found allegation 1 & 2 failed to state the facts relied upon to invalidate the petition and therefore, those grounds were struck out.

12. I accept submissions of counsel for the applicant that the trial judge may have erred in prematurely determining an important issue of fact that could be properly resolved at the trial. At the trial issues such as whether the evidence supports the facts pleaded and in the event of an inconsistency between the pleadings and the evidence, how those are to be resolved are matters for the trial, following the procedural guidelines set out in s 217 of the Organic Law. The correctness of the facts pleaded are usually matters for the trial and the trial judge who is considering a formal objection should confine himself to the facts pleaded and determine compliance issues without recourse to the evidence. I am satisfied that an important and serious of point of law that is not without merit has been demonstrated by the applicant on this point. I am also satisfied that the trial judge's consideration of the evidence on the correct date of the bribery by recourse to the evidence and position of counsel on those facts without proper trial in the face of the clear provisions of s 217 of the Organic Law amounted to a gross error of fact that should warrant grant of leave for review.

13. In respect of bribery allegations 3, the trial judge found that the acts of bribery were committed by the first respondent when he was not a candidate within the meaning of that term as defined in the Organic Law. I also accept submissions of counsel for the applicant that on the face of the word "a person" appearing in s 103 of the Criminal Code, it is open to argument whether that term should be broadly interpreted to include a person who is not a candidate as defined in the Organic Law. I understand the weight in the argument for the respondents that s 103 of the Criminal Code ought to be read in conjunction with s 215 (1) of the Organic Law, and when so read, a person in s 103 of the Criminal Code can only mean a candidate as defined in the Organic Law. This is a tenable argument. However I am in position to assess and determine the merits of that point. That function rests with the full Court. In the circumstances, I am satisfied that an important point of law that is not without merit has been demonstrated.

14. Having reached the foregoing conclusions it is unnecessary to deal with other points of lesser importance raised and argued before me.

15. In all the circumstances, I find the application satisfies the criteria in Jurvie v Oveyara and grant leave for review.

16. The formal orders of the Court are:

(1) The application for leave is granted but only in relation to the points that have been determined in this application to have clear legal merit on points of law or fact.

(2) Costs of this application shall be in the cause. _________________________________________

Wariniki Lawyers: Lawyer for the Applicant
H L Leahy Lawyers: Lawyer for the First Respondent
Parua Lawyers: Lawyer for the Second Respondent