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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO 41 OF 2013
APPLICATION
UNDER SECTION 155(2)(b) OF THE CONSTITUTION
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
KEN FAIRWEATHER
Applicant
V
JERRY SINGIROK
First Respondent
EMILY SIAMOLI, RETURNING OFFICER
Second Respondent
ELECTORAL COMMISSION
Third Respondent
Waigani: Mogish J, Cannings J, Poole J
2013: 31 October, 4 November
ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(a): petition to set out the facts relied on to invalidate the election or return – whether petition alleging illegal practices committed by persons other than the candidate was adequately pleaded – whether necessary to plead law as well as fact.
The National Court refused objections to the competency of an election petition and ordered that the petition proceed to trial. The first respondent to the petition was the successful candidate at the election and applied to the Supreme Court under Section 155(2)(b) of the Constitution to review the decision, arguing that the National Court erred in law by refusing to dismiss the petition, as the petition was incompetent in that it: (1) failed to plead, in respect of alleged acts of bribery or undue influence committed by persons other than the candidate, the matters required to be proven under Section 215(3) of the Organic Law; (2) failed to plead which particular categories of offences of undue influence prescribed by Section 102 of the Criminal Code were allegedly committed; (3) failed to plead which particular categories of offences of bribery prescribed by Section 103 of the Criminal Code were allegedly committed; and therefore (4) failed to comply with the strict requirements of Section 208(a) of the Organic Law: that the petition set out the facts relied on to invalidate the election or return.
Held:
(1) A petition that alleges that bribery or undue influence was committed by a person other than the candidate does not have to plead under Section 215(3) of the Organic Law that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
(2) A petition that alleges that the successful candidate or any other person committed undue influence should plead which particular offence under Section 102 (undue influence) of the Criminal Code was allegedly committed.
(3) A petition that alleges that the successful candidate or any other person committed bribery should plead which particular offence under Section 103 (bribery) of the Criminal Code was allegedly committed.
(4) The facts set out in a petition must be material or relevant facts sufficient to indicate or constitute a ground upon which the election or return can be invalidated. The purpose of Section 208(a) is to require the petitioner to indicate clearly the issues upon which the opposing parties may prepare their cases and to enable the court to be clear about the issues involved (Holloway v Ivarato [1988] PNGLR 99).
(5) Here, as to the grounds alleging that bribery or undue influence was committed by persons other than the candidate, the failure of the petition to plead the two matters prescribed by Section 215(3) of the Organic Law was of no consequence.
(6) The argument that the petition was incompetent due to its failure to plead which particular offences under Section 102 (undue influence) of the Criminal Code were allegedly committed was a new argument that was not raised before the National Court and leave was not sought from or granted by the Supreme Court to argue this point of law, so it could not be relied on even though it arguably raised a challenge to the jurisdiction of the National Court.
(7) The argument that the petition was incompetent due to its failure to plead which particular offences under Section 103 (bribery) of the Criminal Code were allegedly committed was a new argument that was not raised before the National Court and leave was not sought from or granted by the Supreme Court to argue this point of law, so it could not be relied on even though it arguably raised a challenge to the jurisdiction of the National Court.
(8) The applicant failed to show in any other respect the petition failed to comply with the requirements of Section 208(a) or any other provision of the Organic Law or how the primary Judge erred.
(9) The application for review was refused and the decision of the National Court affirmed.
Cases cited
The following cases are cited in the judgment:
Aihi v Isoaimo (2013) SC1276
Amet v Yama (2010) SC1064
Application by Herman Joseph Leahy (2006) SC 855
Benny Diau v Mathew Gubag (2004) SC775
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105
Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788
Fairweather v Singirok SC Rev (EP) No 41 of 2013, 02.08.13 unreported
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Holloway v Ivarato [1988] PNGLR 99
Karo v Kidu [1997] PNGLR 28
MVIT v James Pupune [1993] PNGLR 370
Nomane v Mori (2013) SC1242
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
PNGBC v Jeff Tole (2002) SC694
Robert Kopaol v Philemon Embel (2003) SC727
Singirok v Fairweather EP No 8 of 2012, 15.10.12, unreported
Telikom PNG Ltd v ICCC (2008) SC906
The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Van Der Kreek v Van Der Kreek [1979] PNGLR 185
APPLICATION
This was an application for review of a decision of the National Court to refuse objections to competency of an election petition.
Counsel
G J Sheppard & P Tabuchi, for the applicant
B W Meten, for the first respondent
A Kongri, for the second and third respondents
4th November, 2013
1. BY THE COURT: Ken Fairweather applies for review of the decision of the National Court to refuse objections to the competency of a petition by Jerry Singirok which disputed the validity of Mr Fairweather's election as member for Sumkar Open in the 2012 general election. The National Court, constituted by Justice Gavara-Nanu, refused objections by Mr Fairweather, the Returning Officer and the Electoral Commission. Subject to dismissing one of the grounds of the petition as incompetent his Honour, on 6 June 2013 in EP No 8 of 2012, ordered that the petition proceed to trial.
2. Mr Fairweather's application for review is made under Section 155(2)(b) of the Constitution which confers on the Supreme Court an inherent power to review all judicial acts of the National Court. He seeks an order that would set aside the National Court's order of 6 June 2013 and dismiss Mr Singirok's petition. The application is opposed by Mr Singirok. The Returning Officer and the Electoral Commission neither support nor oppose Mr Fairweather's application.
THE PETITION
3. Mr Singirok's petition, which seeks amongst other things declarations that Mr Fairweather was not duly elected, consists of eight grounds, each alleging various acts of bribery or undue influence:
OBJECTIONS TO COMPETENCY
4. The respondents filed three notices of objection to competency. Two grounds of objection (relating to service of the petition) were dismissed by Makail J in Waigani on 15 October 2012 (Singirok v Fairweather EP No 8 of 2012, 15.10.12, unreported). The remaining grounds were argued before the primary Judge, Gavara-Nanu J, in Madang on 3 June 2013. All respondents to the petition argued that each ground of the petition was defective due to its failure to set out the facts relied on to invalidate the election, and the second and third respondents (the returning officer and the Electoral Commission) argued that the witnesses who attested to the petition insufficiently stated their occupations. Mr Singirok withdrew ground 6 of the petition.
5. The primary Judge in an oral ruling (the transcript of which is before us) on 6 June 2013 dismissed all but one of the grounds of objection. The ground of objection his Honour upheld related to ground 3 of the petition, which was insufficiently pleaded. His Honour ruled that each of grounds 1(a) and 1(b), 2, 4, 5 and 7 of the petition pleaded sufficient facts to support grounds of bribery and undue influence and was competent. Following determination of the objections to competency the status of the grounds of the petition is:
6. Of the remaining grounds of the petition it is useful to categorise them according to whether the alleged act of bribery and undue influence at the centre of each ground was committed by the successful candidate, Mr Fairweather, or by some other person with his knowledge or authority. Thus:
APPLICATION FOR REVIEW
7. Leave to argue the application for review that is now before us was granted by Kassman J, as a single Judge of the Supreme Court, on 2 August 2013 (Fairweather v Singirok SC Rev (EP) No 41 of 2013, 02.08.13 unreported). There are three grounds of review:
GROUND 1 OF THE REVIEW
8. This is the most significant ground of review in that it argues that the primary Judge erred in four distinct ways in his determination of the objections to competency. The applicant's arguments cover all grounds of the petition and our assessment of them will determine the outcome of the other grounds of review. Ground 1 states:
The learned trial Judge erred in law in refusing to dismiss the petition as incompetent when the petition:
(i) failed to plead that the alleged illegal practices committed by persons other than the candidate:
- (a) were likely to affect the result of the election; and
- (b) it is just that the candidate should be declared not to be duly elected or that the election should be declared void;
(ii) failed to plead which particular categories of offences of undue influence, as prescribed by Section 102(a)-(b) of the Criminal Code, that are alleged to have been committed;
(iii) failed to plead which particular categories of offences of bribery, as prescribed by Section 103(a)-(h) of the Criminal Code, that are alleged to have been committed;
(iv) failed to comply with the strict requirements of Section 208(a) of the Organic Law in that the petition failed to set out the facts relied on to invalidate the election or return.
Argument (i)
9. It is argued that each of the grounds of the petition (Nos 1(a), 2 and 7) that allege bribery or undue influence was committed by a person other than Mr Fairweather is defective in that it fails to plead the matters that are required by Section 215(3) of the Organic Law to be proven if the election is to be declared void on such grounds. To appreciate the argument it is useful to set out the whole of Section 215 (voiding election for illegal practices), which states:
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
10. Mr Sheppard, for Mr Fairweather, submitted that each of the grounds 1(a), 2 and 7 of the petition failed to plead the two matters that must be proven, given the nature of the allegations in those grounds, under Section 215(3)(a), ie:
11. Mr Sheppard submitted that the failure to plead those essential matters amounted to a failure to set out the material facts to invalidate the petition, which means that each of grounds 1(a), 2 and 7 of the petition failed to comply with Section 208(a) (requisites of petition) of the Organic Law, which states:
A petition shall ... set out the facts relied on to invalidate the election or return.
12. He further submitted that by force of Section 210 of the Organic Law – "proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with" – each of grounds 1(a), 2 and 7 of the petition should not be heard and should be dismissed. He submits that the primary Judge erred in law by not addressing these grounds of objection and not endorsing them as proper bases on which to dismiss each of grounds 1(a), 2 and 7 of the petition.
13. We make three observations before determining the thrust of the argument. First, it is undisputed that each of grounds 1(a), 2 and 7 of the petition:
14. For example, ground 1(a) states:
On 21 May 2012, between 1.30 pm and 2.00 pm, at Matugar village, in the Sumgilbar LLG area, in the presence of the first respondent and more than 200 people, a majority of whom were members of the Matugar Fishing Group, the first respondent's officer, namely one Martin Hannibal, did with the consent, knowledge and authority of the first respondent, give to Mr Saleo Sili, Chairman of the Matugar Fishing Group, a Department of Finance Sumkar District Treasury cheque No 1646 in the sum of K15,000.00 made payable to Matugar Fishing Group, with the intention of influencing, soliciting and or inducing votes from the recipients and electors of Matugar village who were members of the said fishing group and who were also present there. The said Mr Saleo Sili and most of the other members of the Matugar Fishing Group including persons such as Rudolf Raward and Michael Barui, are voters and or persons eligible to vote in the electorate and that this payment of the cheque was made with the intention to influence, solicit and or induce Mr Saleo Sili, Mr Rudolf Raward, Mr Michael Barui and others who are members of the Fishing Group to vote for the first respondent.
15. Secondly, this argument was put in general terms to the primary Judge amongst other grounds spread over the three notices of objection to competency filed by the respondents to the petition. However, it was not as clearly articulated as it is in ground 1 of the application for review or in Mr Sheppard's submission. For example, the second and third respondents' notice of objection to competency included this objection to ground 1(a) of the petition:
As this allegation relates to alleged illegal practices committed by other persons on behalf of the first respondent, with his knowledge and consent, for the purposes of Section 215(3)(a) of the Organic Law the allegation does not plead the number of voters or votes affected to determine whether the result of the election was likely to be affected by the alleged illegal practice. This pleading should be struck down.
16. The objection did not complain about a failure to plead that it is "just that the candidate should be declared not to be duly elected or that the election should be declared void". The argument that is now clearly before us was not very well articulated at all before the primary Judge and it is unsurprising that his Honour found it unnecessary to deal with it. The other interesting thing is that the argument, poorly developed as it was, was put by the second and third respondents – not by Mr Fairweather. Yet it is now Mr Fairweather who is running with the argument, and submitting that his Honour erred by not addressing it, while the second and third respondents have adopted a neutral position, in effect abandoning their own argument. We are nevertheless prepared to consider the argument. It raises a significant point of law and despite its poor articulation we have decided that we should not label it as a new point of law not raised before the National Court.
17. Thirdly there is recent authority in support of the argument provided by the decision of the Supreme Court in Amet v Yama (2010) SC1064, particularly in the judgment of Davani J (less so in the joint judgment of Salika DCJ and Batari J) where her Honour held at paras 117 and 118:
The following are the material and relevant facts that must be pleaded to fully satisfy the requirements and the grounds in s 215(3)(a) of the [Organic Law]:
(a) The Petitioner must state the facts giving rise to the illegal practice committed by a person other than the candidate.
(b) The Petitioner must plead expressly that those illegal practices were committed with the full knowledge and authority of the winning candidate.
In relation to s 215(3)(b) of the [Organic Law], the following are the material and relevant facts that must be pleaded:
(a) The Petitioner must plead that the illegal practice or conduct by the winning candidate was likely to affect the election results and show that. To do that, it is necessary to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.
(b) And a further requirement is that the pleading must also include that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. If it was pleaded, then evidence can be led to support the pleadings.
18. We are not of course bound by previous decisions of the Supreme Court but they are persuasive authority, particularly in the case of recent decisions, such as Amet v Yama. Having said that, we do not consider that the joint judgment of Salika DCJ and Batari J contains dicta that squarely support the argument now before us.
19. With those observations in mind we now state the issue raised by argument (i) of ground 1 of the application for review in these terms:
➢ the result of the election was likely to be affected by the illegal practice allegedly committed by the person (other than the candidate); and
➢ it is just that the candidate should be declared not to be duly elected or that the election should be declared void?
20. The answer is no. The argument advanced by Mr Sheppard is not consistent with the wording of Section 215(3)(a), which deals with the situation in which it is alleged that an illegal practice, including bribery or undue influence, is committed by a person other than the candidate without the candidate's knowledge or authority. A proper construction of the whole of Section 215 will result from appreciation of the fact that it is dealing with six scenarios in which there are three variables:
21. The six scenarios, in decreasing order of seriousness, are:
22. Scenario B is the scenario that is being alleged by grounds 1(a), 2 and 7 of the petition. It is a scenario that is not expressly included in either Sections 215(3)(a) or (b) of the Organic Law. It follows, in our view, that the two matters set out at the end of Section 215(3) do not apply to it. Mr Sheppard suggested that this would be an absurd interpretation of Section 215(3) as it would amount to reading in to Section 215 matters that are not expressly provided for. We do not agree. Interpreting the requirements of scenario B in the above manner is entirely consistent with the scheme of Section 215, which encompasses six separate scenarios and treats as the most serious the actual or attempted commission of an offence of bribery or undue influence by a candidate. The next most serious scenario is where such an offence is actually or attempted to be committed by some other person with the candidate's knowledge or authority.
23. This way of interpreting Section 215 is not new. In Karo v Kidu [1997] PNGLR 28 Injia J, as he then was, held:
The effect of Section 215(1) & (3) is as follows. An election will be voided for illegal practices of bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candidate. In such case, it is not necessary for the petitioner to show that the result of the election was likely to be affected. Likewise, under s 215(3)(a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate, in which case, it is also not necessary for the petitioner to show the likelihood of the election being affected. An election may be declared void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the knowledge or other authority of the winning candidate provided the Court is satisfied that the result of the election was likely to be affected. [Emphasis added.]
24. We consider that that is the correct way of interpreting Section 215, subject to our noting that it is also not necessary, in the situation described by his Honour, which accords with what we have described as scenario B, for the petitioner to show that it is "just" that the candidate be declared not to be duly elected etc. We adopt the reasoning of Sir Salamo Injia in Karo v Kidu and decline to follow the different approach that appears to be been taken in Amet v Yama, which we respectfully consider is not consistent with the words or intention of Section 215.
25. We therefore reject argument (i) of the first ground of review. We find that the learned primary Judge made no error of law in refusing to dismiss, for failure to comply with Section 215(3) of the Organic Law, grounds 1(a), 2 and 7 of the petition.
Argument (ii)
26. This is an argument directed at all grounds of the petition (other than those withdrawn or dismissed by the primary Judge) in so far as each of them raises an allegation that the criminal offence of undue influence has been committed, in some cases by Mr Fairweather (Nos 1(b), 4 and 5), in other cases by other persons with Mr Fairweather's knowledge or authority (Nos 1(a), 2 and 7).
27. Mr Sheppard submitted that each of those grounds fails to plead which specific undue influence offences were allegedly committed. It is settled law that the reference in Section 215 of the Organic Law to a person committing "undue influence" is a reference to one of the offences of undue influence created by Section 102 (undue influence) of the Criminal Code, which states:
A person who—
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector —
(i) in order to induce him to vote or refrain from voting at an election; or
(ii) on account of his having voted or refrained from voting at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
28. It is clear – and this is not contested by Mr Singirok's counsel, Mr Meten – that a petitioner has the burden of proving according to the criminal standard of proof of beyond reasonable doubt that one of those offences was committed by the successful candidate (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980).
29. Mr Sheppard's submission is that not only must an offence be proven, but before the allegation goes to trial it must be pleaded, and it can only be properly pleaded if the particular offence alleged to have been committed is referred to in the petition. Though this argument would appear to run contrary to a line of authority suggesting that it is not necessary to plead the law underlying a ground of a petition, as distinct from the facts, it is supported by the very recent decision of the Supreme Court (Kandakasi J, Cannings J, Collier J) in Nomane v Mori (2013) SC1242.
30. In Nomane v Mori the Court, in a unanimous decision, addressed the question of whether it is necessary to plead the law, in the following terms:
While in Mune v Agiru [[1998] PGSC 3] the majority of the Supreme Court took the view that it was not necessary to specifically plead legislative sections upon which the petitioner relied, it is also clear that in more recent times in cases such as Amet v Yama [2010] PGSC 46 the Supreme Court has taken a stricter approach to pleading. ...
In our view the more recent articulation of the strict obligations of petitioners to comply with the requirements of Section 208 (and Section 209), imposed by Section 210, and explained in cases including Amet v Yama, represents the law.
In considering whether an electoral petition has strictly complied with Section 208, it is incumbent on the Court to be reasonable in that consideration. ...
However, this does not relieve a petitioner from the strict obligation imposed by Sections 208 and 210 to plead all material facts. In our view, and consistent with the findings of the Supreme Court in Amet v Yama, it is incumbent on a petitioner to identify the relevant statutory provision relied upon.
31. Mr Meten was unable to present any convincing argument that Nomane v Muni was wrongly decided but he did present a profound argument that, if accepted, will have the same result: that the rule in Nomane v Muni should not be followed and applied here. Mr Meten pointed out that in the three notices of objection and in the hearing before the primary Judge none of the respondents objected to the competency of the petition on the ground that the petition failed to plead the specific undue influence offences alleged to have been committed. This is a new point of law not raised in the Court below and it should not be allowed to be relied on now, he asserted. Besides that, the decision in Nomane v Muni was handed down on 12 July 2013, a month after the primary Judge's decision of 6 June 2013. Nomane v Muni is a recent development in the law. It does not represent the state of the law as it existed in June 2013. Nor does it represent the state of the law at the time that the petition was filed, on 17 August 2012, Mr Meten submitted.
32. Mr Sheppard conceded that the argument was not put before the primary Judge but submitted that that was of no consequence as the argument was raising a question going to the jurisdiction of the Court. As it was a jurisdictional argument it could be raised at any time, even though it was not before the National Court, and the decision in Amet v Yama is authority in support of that proposition. Further, Mr Sheppard asserted, due notice of Mr Fairweather's intention to rely on this argument was given through it being included in his application for leave to seek review. Mr Meten has conceded that he raised the issue of the argument not being aired before the National Court in the leave hearing before Kassman J, and his Honour proceeded to grant leave for review, so the argument has been properly included in the application for review. There is no unfairness to Mr Singirok, so the argument must be determined by the Court, which should follow Nomane v Muni, a decision less than four months old and in line with the strict approach to pleading provided for by Amet v Yama, a decision which pre-dated by two years the date of filing of the petition.
33. We are not persuaded by Mr Sheppard's submissions that it would be fair or proper to allow a new point of law not raised in the National Court and primarily based on a decision of the Supreme Court delivered a month after the National Court hearing and decision, to be relied on by Mr Fairweather. The Supreme Court takes a strict approach when a party appealing against or seeking review of a decision of the National Court wishes to raise a new point of law not raised in the National Court. In fact it can be said to take two approaches as there are conflicting lines of authority as to how the Supreme Court should deal with such a situation. Both are strict approaches: one could be described as strict, and the other very strict.
34. The strict approach says that a party can raise in the Supreme Court a point of law not put before the National Court, but only if it seeks and obtains the leave of the Supreme Court to do so, this being the approach taken in cases such as Van Der Kreek v Van Der Kreek [1979] PNGLR 185, The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC 855, Telikom PNG Ltd v ICCC (2008) SC906 and Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.
35. The very strict approach is the one that says that under no circumstances can a party raise in the Supreme Court a point of law not put before the National Court, this being the approach taken in cases such as MVIT v James Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (2002) SC694, Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.
36. Very recently, on 1 October 2013, Justice Kandakasi presented a comprehensive exegesis of the different approaches in his judgment in the Supreme Court's decision in Aihi v Isoaimo (2013) SC1276. The other Judges, Hartshorn J and Yagi J, delivered separate judgments, all dismissing an application for review of a decision of the National Court that upheld an election petition and declared that the election of the applicant was void under Section 215(1) of the Organic Law as the applicant had committed bribery. Kandakasi J propounded vigorously the view that what we have described as the strict approach is wrong in law and that it is essential that the Supreme Court maintains the very strict approach. We do not propose to here embark on a dissertation as to which of the two approaches is preferable. We mention Kandakasi J's judgment largely for the purpose of demonstrating how very difficult it is for an applicant to get the Supreme Court to entertain an argument that was not put before the National Court.
37. We propose at this juncture, with great respect to the views of our brother Kandakasi J expressed so eruditely in Aihi v Isoaimo, to take what we have labelled as the strict approach; which will in any event lead to the same result as the very strict approach. We ask a simple question: has leave been granted to argue this new point of law, which was not put before the National Court? The answer is no. Leave was not sought. The granting of leave for review by Kassman J cannot be regarded as the granting of leave to argue this new point of law. His Honour only addressed the question of whether the proposed grounds of review were arguable. A single Judge granting leave for review lacks the capacity to grant leave to an applicant to argue a point of law not put before the National Court. Leave would have to be granted by the Full Court of the Supreme Court.
38. The fact that leave has not been expressly granted to Mr Fairweather to raise this new point of law means that it should not, and will not, be considered. That it is a point of law that appears to go to the jurisdiction of the National Court is not something that persuades us that it should be entertained. It would not be right to consider granting leave in some sort of retrospective way. And frankly it is not so compelling an argument – even though it is supported by recent Supreme Court authority – that it can be regarded as a straightforward and uncontroversial challenge to the jurisdiction of the National Court. We must say we have some misgivings about the way that the Court in Amet v Yama approached the task of finding, during proceedings in the Supreme Court, that a petition was incompetent even though the trial of the petition had concluded and the issue of whether the petition was competent was not squarely before the National Court or the Supreme Court.
39. Be that as it may we are persuaded by the submissions of Mr Meten that it would be quite unfair and contrary to the principles of natural justice to uphold an argument that would render a petition incompetent when the argument was never put to the court below, which meant that the primary Judge had no opportunity to consider it. It seems contrary to common sense to suggest that a Judge erred in not upholding an argument that was never put to him. And we find ourselves unable to conclude for present purposes that Mr Meten was wrong in submitting that the petition was filed, and the decision of the learned primary Judge was made, in accordance with the law as it existed on those respective dates. Nomane v Muni arguably is new law, which should not be applied retrospectively. All of this convinces us that argument (ii) is not properly before the Court. It is dismissed.
Argument (iii)
40. This argument is the twin of argument (ii). The argument is, like (ii), directed at each of the grounds of the petition (other than the two withdrawn or dismissed by the primary Judge) as each of them raises an allegation that the criminal offence of bribery has been committed, in some cases by Mr Fairweather (Nos 1(b), 4 and 5), in other cases by other persons with Mr Fairweather's knowledge or authority (Nos 1(a), 2 and 7).
41. Mr Sheppard submitted that each of those grounds fails to plead which specific bribery offences were allegedly committed. It is settled law that the reference in Section 215 of the Organic Law to a person committing "bribery" is a reference to one of the offences of bribery created by Section 103 (bribery) of the Criminal Code, which states:
A person who—
(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
42. Mr Sheppard submitted that not only must a bribery offence be proven, but before the allegation goes to trial it must be pleaded, and it can only be properly pleaded if the particular offence alleged to have been committed is referred to in the petition. As with argument (ii) he relies on the very recent decision of the Supreme Court (Kandakasi J, Cannings J, Collier J) in Nomane v Mori (2013) SC1242 in support of the proposition that the failure to specify which particular bribery offences have been committed is a fundamental flaw in the petition, which amounts to a failure to comply with Section 208(a), which means that the petition cannot perforce of Section 210 be considered; it must be dismissed and the primary Judge erred by not dismissing it for that reason.
43. We reject the argument for the same reason we rejected argument (ii): it is a new point of law not raised before the National Court and leave has not been granted by the Supreme Court for it to be argued. Argument (iii) is dismissed.
Argument (iv)
44. This is a very general argument that the petition failed to comply with the strict requirements of Section 208(a) of the Organic Law because it "failed to set out the facts relied on to invalidate the election or return". The application for review gives no particulars of what sort of facts the petition failed to set out. Mr Sheppard's submissions did not shed light on what sort of facts were missing or lacked particulars.
45. We note that each of the grounds of the petition appears to cite names, places, dates and amounts of money and describe the property at the centre of each allegation in some detail. The primary Judge ruled that there were, except in regard to ground 3 of the petition, sufficient facts alleged to support the grounds of bribery and undue influence. Mr Fairweather has been unable, through argument (iv), to prove that the primary Judge erred. Argument (iv) is dismissed.
Conclusion re ground 1 of the review
46. The whole of ground 1 is dismissed.
GROUND 2 OF THE REVIEW
47. This ground is directed at each of the grounds of the petition that allege bribery or undue influence that was committed by a person other than Mr Fairweather. It is argued that the primary Judge erred in law in relation to each of grounds 1(a), 2 and 7 of the petition by finding that each of those grounds pleaded sufficient material facts to support the allegations of bribery and undue influence, when his Honour ought instead to have found that each of the grounds failed to comply with Section 208(a) of the Organic Law, in that it:
48. All of these arguments have been raised in ground 1 of the review. We have considered them and found them to be without merit. The whole of ground 2 is dismissed.
GROUND 3 OF THE REVIEW
49. This ground is directed at each of the grounds of the petition that allege bribery or undue influence that was committed by Mr Fairweather. It is argued that the primary Judge erred in law in relation to each of grounds 1(b), 4 and 5 of the petition by finding that each of those grounds pleaded sufficient material facts to support the allegations of bribery and undue influence, when his Honour ought instead to have found that each of the grounds failed to comply with Section 208(a) of the Organic Law, in that it:
50. All of these arguments have been raised in ground 1 of the review. We have considered them and found them to be without merit. The whole of ground 3 is dismissed.
CONCLUSION
51. All three grounds of review have been dismissed. It follows that the application for review will be refused, the order of the National Court will be affirmed and the petition will proceed to trial. Costs will follow the event.
ORDER
(1) The application under Section 155(2)(b) of the Constitution for review of the decision of the National Court of 6 June 2013 in EP No 8 of 2012 is refused.
(2) The order of the National Court is affirmed.
(3) The applicant shall pay the first respondent's costs of the application on a party-party basis which shall if not agreed be taxed.
(4) The second and third respondents shall bear their own costs.
Judgment accordingly.
____________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Meten Lawyers: Lawyers for the First Respondent
Kongri Lawyers: Lawyers for the Second & Third Respondents
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