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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR 52 OF 2012
APPLICATION UNDER SECTION 155 (2)(b) OF THE CONSTITUTION
AND IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
BETWEEN:
PARU AIHI
Applicant
AND:
PETER ISOAIMO
First Respondent
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Kandakasi, Hartshorn &Yagi, JJ.
2013: 26th February
1st October
CRIMINAL LAW – Elections - Petition against election result grounded on bribery – Distribution of cash and cheques at election campaign – Eventual winner of election present at campaign speeches and witnessing distribution of cash and cheques by campaign manager – People attending were electors who had not previously elected the member – Where the funds came from not properly explained – No requirement for recipients to account for monies received – Bribery established – Custom of giving gifts and parties and festivities during election periods – Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.
CUSTOM - Custom of giving gifts and parties and festivities during election periods – Purpose and intent of these is to influence election outcome - Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.
ELECTIONS – Petition grounded on bribery – Distribution of cash and cheques at election campaign – Eventual winner of election present at campaign speeches and witnessing distribution of cash and cheques by campaign manager – People attending were electors who had not previously elected the member – Where the funds came from not properly explained – No requirement for recipients to account for monies received – Bribery established – Custom of giving gifts and parties and festivities during election periods – Inappropriate custom that does not meet the requirements of Schedule 2.1 (2) of the Constitution – Custom outlawed by s. 103 of Criminal Code and s. 215 of the Organic Law on National and Local-level Government Elections.
EVIDENCE – Election Petition – Pleadings and evidence – Court to consider all evidence before it, whether it is hearsay or otherwise inadmissible – Court to be guided by need to do real justice – That includes a consideration of all evidence before the Court.
PRACTICE & PROCEDURE – Election Petition grounded on bribery – Competency of – Issue raised for the first time on review – Issue not raised in the Court below - Conflicting authorities considered – Correct position - An issue not raised in the Court below cannot be raised on review – Principles on departure from previous decision of the Supreme Court considered and applied – Constitution Schedule 2.9 (1).
STATUTORY INTERPRETATON - Bribery - Section 103 of Criminal Code and s.215 of the Organic Law on National and Local-level Government Elections –The term "bribery" not defined - Provisions do provide guidance – Purpose of – Section designed to prohibit improper inducements to persons, to electors, or candidates in an election, by electors or to an elector or other persons and or corrupt practices, with the intention of interfering with the lawful process of an election – Seriousness of offence require wider purposive approach and interpretation - Culture of gifts, parties and festivities during election periods has the main purpose of influencing election outcomes which is prohibited.
Papua New Guinea Cases cited:
Kasap v. Yama [1988-89] PNGLR 197.
Application by Herman Joseph Leahy (2006) SC 855.
Application of Ludwig Patrick Shulze (1998) SC 572.
Malipu Balakau v. Paul Torato [1983] PNGLR 242.
Mune v. Agiru & Ors (1998) SC 590.
Kelly Kalit v John Pundari (1998) SC 569.
Application by Ben Semri (2003) SC 723.
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.
Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853.
Patterson Lowa, & Ors v. Wapula Akipe,& Ors [1991] PNGLR 265; [1992] PNGLR 399.
MVIT v. James Pupune [1993] PNGLR 370.
PNGBC v. Jeff Tole (2002) SC694.
Fly River Provincial Government v. Pioneer Health Services Limited (2003) SC705.
Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788.
Isaac Lupari v. Sir Michael Somare & Ors (2010) SC107.
The Papua Club Inc. v. Nasaum Holdings Limited & Ors (2005) SC812.
Van Der Kreek v. Van Der Kreek [1979] PNGLR 185.
Peter Peipul v. Justice Sheehan Tribunal & 2 Ors (2001) N2096.
Kepa Wanege v. The State (2004) SC702.
Masolyau Piakali v. The State (2004) SC771.
Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970.
Stettin Bay Lumber Company Ltd v S. K. Goh & Ors (2011) SC1096.
Jimmy Ono v. The State (2002) SC698.
Denden Tom & Anor v. The State (2008) SC96.
Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.
Derbyshire v. Tongia [1984] PNGLR 148.
Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628.
The Independent State of Papua New Guinea v. Zachary Gelu (2002) N2322.
Sacred Heart Mission (New Britain) Property Trust v. Nambumutka Simbali on behalf of the Denangi Lineage and The Director of District
Administration (Re Toriu) (1972) FC29.
Steven Isaac Awoda v. The State [1984] PNGLR 165.
Cosmas Kutau Kitawal & Chirstoper Kutau v. The State (2007) SC927.
Telikom PNG Ltd v ICCC (2008) SC906.
Ramu Nico Management (MCC) Ltd v. Farina Siga (2010) SC1056.
Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.
Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.
Vehicles Insurance (PNG) Trust MVIT v. Salio Tabanto [1995] PNGLR 214.
National Executive Council v. Soiat Williams (2005) SC819.
Lavongai Equities Ltd v. Club 21 Ltd (2009) SC1001.
Maino v. Avei [1998] PNGLR 178.
The Application by Ben Semri (2003) SC723.
Application by Ben Semri [Sembri] and SCR No 23 of 2003: Review Pursuant to Constitution Section 155(2) (b) Application by The Electoral
Commission of Papua New Guinea (2003) SC723.
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.
Application by Ben Semri [Sembri] and SCR No 23 of 2003: Review Pursuant to Constitution Section 155(2)(b) Application by The Electoral
Commission of Papua New Guinea (2003) SC723.
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.
Application by The Electoral Commission of Papua New Guinea (2003) SC723;
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.
Assik Tommy Tomscoll v Ben Semri (2003) N2349.
Pirika Kamma v. Itanu, Electoral Commission and Laimo (2008) N3246.
Steven Pirika Kamma v. John Itanu & Others (No 2) (2008) N3261.
Jimson Sauk v. Don Polye (2004) SC769.
Ginson Saonu v. Bob Dade (2004) SC 763.
Benias Peri v. Nane Petrus Thomas & Electoral Commission (Unreported and Unnumbered judgment of 20/4/04), per Hinchcliff J .
Francis Koimanrea & Or v. The Electoral Commission and Paul Tiensten (Unreported & un-numbered judgment of 13/3/03), per Sakora J.
Michael Tenaram Balbal v. The State (2007) SC860.
Telikom PNG Ltd v. Thomas Tulin (2004) SC748.
Alina Sarah Bean v. Ian Maxwell Bean [1980] PNGLR 307.
The State v. Danny Makao (2005) N2996.
The State v. Kiap Bonga [1988-89] PNGLR 360.
The State v. Pablito P. Miguel (2002) N2338.
Kilroy Genia v Dr. Puka Temu & Another [2003] (Unreported and unnumbered National Court decision delivered on 5 March 2003) per Los J.
Steven Pokawin v. Jacob Jumokot [2003],(Unreported and unnumbered decision of the National Court) delivered on 3rd January 2003.
Roger Tongai Palme v. Michael Mel, & Ors (1989) N808.
Thompson v Pokasui (Unreported and unnumbered National Court a decision) delivered in August 1989.
Kaiabe v Makiba (1989) N723.
Powes Parkop v. Wari Vele (No 3) (2007) N3322.
Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463.
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.
Overseas Cases Cited:
Dianne McGrath Fingleton v. The Queen ( 2005) HCA 34.
University of Wollongong v. Metwally (No 2) (1985) 59 ALJR 481.
Counsel:
A. Manase, for the Applicant
F. Griffin, for the First Respondent
C. Lari, for the Second Respondent
1st October, 2013
1. KANDAKASI J: The National Court sitting as the Court of Disputed Returns upheld a petition against the First Respondent, Mr. Paru Aihi, resulting in Mr. Aihi's dismissal as a Member of Parliament representing the Kariku Hiri Electorate following the 2012 National General Elections. That was on one ground of bribery out of two series of allegations of bribery pleaded against him. Being aggrieved by that decision and its consequence on him, Mr. Aihi applies for a review of the decision.
Principles on Review
2. Before proceeding further, I consider it important that, I should remind myself of the principles governing review applications and in particular reviews arising out of election petitions. Section 220 of the Organic Law on National and Local Level Government Elections (the Organic Law) expressly precludes appeals from decisions on election petitions. However, it is now well established in our jurisdiction that the Supreme Court has an inherent power to review all judicial acts of the National Court, which includes decisions arising out of election petitions. This review power is available where there is no right of appeal or review. But this is possible only where there is a meritorious and important point of law to be determined,[1] or there is an apparent or glaring error on the face of the record, which requires correction.[2] Whether a review should be granted is still a matter within the discretion of the Court, which discretion must be exercised on proper principles and proper grounds.[3]
3. What is apparent from the above principles and the relevant authorities on point is this. There are two broad categories under which this Court's review power can be invoked. The first is purely on a point of law and the second concerns a factual question. In respect of a point of law the requirement is for an applicant to establish to the satisfaction of the Court that there is an important point of law to be determined and that it is meritorious. With regard to a factual question, the requirement is for an applicant to establish to the satisfaction of the Court that there is an apparent and or glaring gross error manifested on the face of the record,[4] or that, there is on the face of the record a finding of fact which is considered so outrageous or absurd resulting in injustice[5] warranting a review to correct it.
Present Case: Arguments
4. In support of his application, Mr. Aihi raises a number of grounds and arguments. However they can easily be summarized under two main categories. The first is Mr. Aihi's argument around the issue of competence of the petition against him. The main argument there is that, the pleadings failed to plead each of the essential elements of the series of bribery alleged against him, pursuant to the provisions of s.208 of the Organic Law on Elections. The second category is his argument that the learned trial Judge erred in:
(a) accepting into evidence, evidence which was inconsistent or had no foundation in the pleadings of the petition;
(b) failing to reject evidence for the First Respondent (Peter Isoaimo) when there were inconsistencies in Mr. Isoaimo's witnesses' evidence; and
(c) none of the evidence called by or for Mr Isoaimo established the essential element of an intention to bribe or induce an elector to vote for Mr. Aihi.
5. Mr Isoaimo and the Electoral Commission argue that, the learned trial judge did not fall into any identifiable error that warrants correction on review. Instead, they argue that the learned trial judge was correct in arriving at his decision. Given that, this Court is urged not to disturb the learned trial judge's findings and decision.
Issues for Determination
6. These arguments present the following issues for this Court to consider and determine:
(a) Was Mr. Isoaimo's petition incompetent for failure to plead the essential elements for each of the various grounds of bribery?
(b) Did the learned trial Judge err in admitting into evidence matters not pleaded in the petition?
(c) Did the learned trial Judge err in accepting and acting on inconsistent evidence adduced for and by Mr. Isoaimo?
(d) Was the learned trial Judge correct in finding that Mr. Isoaimo established the essential element of an intention to bribe or induce an elector to vote for Mr. Aihi on the ground of bribery found against Mr. Aihi?
Competency of the Petition
7. The arguments on the issue of competency of the petition centre around a claim that the petition failed to plead the essential elements of the instances of bribery alleged against Mr. Aihi. However, before proceeding any further I note, there are two problems apparent from a perusal of the review book and the transcript of proceedings before the learned trial Judge. The first problem is the fact that, Mr. Aihi did not file any objection to the competency of the petition against him. Only the Electoral Commission did. Secondly, the record does not bear witness to any arguments on the competency of the petition. Instead, the transcript of proceedings before the National Court shows that, at the commencement of the trial, the Electoral Commission sought and was granted leave to withdraw the only objection to the competency of the petition filed against the petition. This necessarily raises the question of whether Mr. Aihi is entitled to raise the issue of the competency of the petition on review without first taking it up in the Court below.
8. Reliance is placed on the decision of this Court in Sir Arnold Amet v. Peter Charles Yama,[6] per Salika, DCJ., Batari and Davani, JJ., to raise arguments against the competence of the petition without first raising the issue in the Court below. That decision in relevant parts said this on the subject:
"27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:
'It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.'
28. The issues raised in this review concern procedural compliance with a provision of the Organic Law and the Criminal Code. The challenge also raises issues of facts pertaining to proof of the material facts. Whether these issues were raised in the court below or not is in our view, immaterial. Now that it is raised, this Court should not shun away from its primary duty to uphold the rule of law where the occasion to do so arises at any stage of the proceedings. The inherent power of the Court carries with it, the onerous responsibility to safeguard its processes and procedures against abuse.
29. The applicant claims in this review that, the respondent had not pleaded or sufficiently pleaded facts supporting 'undue influence' within the meaning of s. 102 (b) of the Code and 'illegal practice' within the meaning of s. 215 (3)(a) of the Organic Law. He further contends the evidence before the Court was void G J2 (sic) of proof of the essential elements of 'undue influence' and 'illegal practice.' These are matters pertinent to serious issues of law that are not without merit."
9. With the greatest respect, I note there are about seven (7) problems with the position the Supreme Court took in that case. The first is this. The decision in Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes,[7] per Kapi, DCJ., Sevua and Kandakasi JJ., from which the above quoted passage comes, concerned an actual abuse of the process of the court. The abuse concerned the issuance of two separate proceedings seeking the same relief. One by an appeal against a tax decision under the relevant Act and another an originating summons issued out of the National Court. The decision in Patterson Lowa, & Ors v. Wapula Akipe,& Ors[8] was cited as a footnote.
10. The decision in Patterson Lowa & Ors case concerned the competency of an appeal to this Court. There the respondent did not file any objection to the competency of the appeal within the required time periods under this Court's Rules. The Court allowed the issue to be raised because it concerned the competence of the very appeal process then before the Court as opposed to this Court having the necessary power to hear and determine appeals from the National Court or the competency of what was before the National Court, which ought to have been raised in the Court below.
11. The decision in Sir Arnold Amet's case did not concern an abuse of the process as was the case in the Bougainville Copper case. It was also not a case that concerned the competence of the process before the Court as was the case in the Patterson Lowa & Ors case. The case however, concerned an issue of competence of an election petition in the National Court. An objection to competency had been filed on grounds other than the ones raised in this Court which was heard and dismissed. Sir Arnold Amet raised fresh and new matters going into the competency of the petition. That was well after a trial and decision on the substantive merits of the case. When that was the case, it called for a careful consideration of the law on point.
12. This leads me to the second problem with the decision in the Sir Arnold Amet's case, which is this. The decision in the Bougainville Copper case, did specifically address the issue of whether a party can raise on appeal an issue it did not first raise in the Court below. Answering the question in the negative this Court reasoned as follows:
"119. A careful perusal of what transpired in the Court below shows that the issues raised by these claims were not fairly raised and put before the trial Judge. They are therefore, raised for the first time before this Court, which BCL is not entitled to do. The reason for this is simple; an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below. An appellate court does not and can not sit as a court of original jurisdiction. Further, there is always the need for finality in litigation. Additionally, fairness to a trial judge and the parties themselves, the need for proper and timely management and disposition of cases and the need to minimize costs of litigation to the parties and the Court, demands that an appellate Court should not hear and determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the Court (sic) very exceptional circumstances such as want of jurisdiction.
(Underlining supplied)
13. The third problem is that the decision in the Sir Arnold Amet's case, did not note that, there is a long list of Supreme Court decisions from MVIT v. James Pupune,[9] per Kapi, DCJ., Jalina, Doherty, JJ., to PNGBC v. Jeff Tole,[10]Amet, CJ., Sheehan and Kandakasi, JJ.; to Fly River Provincial Government v. Pioneer Health Services Limited,[11] Amet, CJ., Sawong and Kandakasi JJ.; to Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v. University of Papua New Guinea,[12] per Injia DCJ, Jalina and Sevua, JJ., which supported the position the Court in fact took in the Bougainville Copper case and ultimately the five (5) member bench decision in Isaac Lupari v. Sir Michael Somare & Ors,[13] per Salika, DCJ., Kandakasi, Batari, Gabi and Hartshorn JJ.
14. In arriving at its decision, the Court in the Bougainville Copper case also noted that, there was a contrary view expressed in The Papua Club Inc. v. Nasaum Holdings Limited & Ors[14], per Los, Davani and Cannings, JJ., which decision relied on a number of earlier decisions of the Court including Van Der Kreek v. Van Der Kreek,[15] per Prentice, CJ., Pritchard and Andrew, JJ., and an Australian High Court decision in Dianne McGrath Fingleton v. The Queen.[16] The Court in the Bougainville Cooper case then observed and said:
"In those cases, the respective Courts held that an appellant can be allowed to raised a legal point and succeed without first raising the issue in the trial court. They neither considered nor discussed any of the reasons we advanced above, which we consider are very important. On a proper consideration of those reasons, we are of the view that the MVIT v. James Pupune line of authorities is correct and appropriate and we endorse them."
(Underling supplied)
15. The fourth problem follows on from the decision in the Sir Arnold Amet's case's failure to note the long list of authorities and what the decision in the Bougainville Case said specifically on the subject as noted in paragraph 12 above. These failures with respect, led the Court in the Sir Arnold Amet's case to also fail to consider what this Court actually said in the Bougainville Copper case and the long list of authorities forming the foundation for that decision.
16. The passage from the Bougainville Copper case, reproduced in paragraph 12 above, was effectively a repeat of what this Court said in the Curtain Brothers' case. There the appellant sought to raise some mainly procedural issues it failed to raise in the Court below. That decision referred to the decision in the James Pupune case and observed:
"The factual situation in that case is different to the present case in that, the defendant in that case did not object to the evidence of economic loss which the plaintiff had not pleaded, but was adducing evidence in relation to. On appeal to the Supreme Court, the Court said that the defendant cannot hark back to the pleadings and submit that economic loss was not pleaded.
It is obvious that in that case, the admission of evidence with no proper basis in the pleadings not having been opposed by the defendant in the trial, the defendant could not therefore raise that issue in the appeal. To our mind, that is trite law. If, for whatever reasons, a party fails to raise a relevant issue at the trial, he is not entitled to raise it on appeal and the appellate Court should be loathe to allowing that issue to be raised before that Court. That is a very sound principle of law in our view and one that both the National and Supreme Courts have applied in a number of cases."
(Underling supplied)
17. This Court in the Curtain Brothers' case went on to refer with approval and commented on the soundness of its earlier decision in the John Etape and my decision in Peter Peipul v. Justice Sheehan Tribunal & 2 Ors[17] and this Court's subsequent decision in the Fly River Provincial Government case as well as the decisions in Kepa Wanege v. The State,[18] per Sevua, Kandakasi and Lenalia JJ. and Masolyau Piakali v. The State,[19] per Sevua, Kandakasi and Lenalia JJ.
18. In an effort to emphasis the importance of the principle this Court in the Curtain Brothers' case reiterated what it said in these terms:
"In the present appeal, we reiterate that the issues, the subject of the grounds of appeal (a), (b) and (c) of the Notice of Appeal could and should have been raised before the trial Judge. The appellants had the right and the opportunity then to raise those issues so that the Court could consider them and furthermore, the respondent could be given the opportunity to address them as well. However as we have adverted to earlier, the appellants had failed to bring these matters up before the trial judge. The Court below therefore did not have the opportunity to consider those matters. The respondent was also not given the opportunity to argue those matters. They are being raised for the first time before the appellate Court."
(Underlining supplied)
19. Ultimately the Court concluded:
"It is our opinion based on the authorities and cases cited here, that the appellants should not be given the opportunity to present their arguments on these issues in this Court when they had the opportunity to do so in the Court below but failed to do so. ...If they fail without good reasons to exercise their rights to utilize the procedures and avenues available to them in the National Court, they cannot come to the Supreme Court and take a 'second bite at the cherry' as it were. It would be unfair to the opposing party and also unfair to the trial judge to criticize the Judge over something that was never put before him."
(Underlining supplied)
20. Earlier on in the Fly River Provincial Government case this Court took the same position. There the Court held that the respondent could not raise at the appellate level an argument that concerned an abuse of the process of the Court. The reasons for that were simple. The respondent did not raise the issue at the trial level. In arriving at that decision, the Court reasoned:
"It is settled law that, unless a party has raised an issue in the court below, he is not at liberty to raise it on appeal. There are many authorities on point. An example of that is Motor Vehicle Insurance (PNG) Trust v. John Etape ... which followed and reaffirmed an earlier decision of the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. James Pupune ... .
In the present case, the PHS had the opportunity to raise this issue in the National Court. It did not make use of that opportunity. Instead it participated in the hearing on the main issues presented. A determination has been made on the issues presented. The FPG is not happy with the decision of the National Court and it has lodged this appeal. In an attempt to defeat the FPG's appeal without a consideration of the merits of the appeal, the PHS is now raising an argument it failed to raise in the Court below. This argument is highly technical and in any event most unfair especially when in fairness it was not raised in the court below.
In any case, we are of the view that the issues raised in the FPG's argument could have been raised as a preliminary point if the parties wished, under the PHS's action. The issues raised by the FPG's action were determinative of the PHS's proceedings. Logically therefore, it could have been a better approach for the parties to have those issues determined first by way of a preliminary issue. Then based on a determination of those issues, the PHS's action could have been determined. Alternatively, it could have formed a part of the defence and therefore one of the issues for trial in the PHS's action. Either way, the issues raised by the FPG could still have been raised.
For these reasons we would dismiss the abuse of process argument."
(Underlining supplied)
21. This Court has been consistently maintaining this position in its subsequent decisions. This includes the decisions in Alfred Alan Daniel v Pak Domoi Ltd,[20] per Injia CJ, Yagi & Makail JJ., and Stettin Bay Lumber Company Ltd v S. K. Goh & Ors,[21] per Kirriwom, Mogish & Hartshorn JJ. More importantly it includes the five (5) member bench decision in the Isaac Lupari case. There in the separate decisions of Gabi and Hartshorn JJ., with whom two other members of the Court Salika DCJ. and Batari J., agreed and myself not giving an opinion, endorsed the James Pupune line of cases. This position has been also maintained even in criminal cases. Cases representing this line of authorities include the decisions in Jimmy Ono v. The State,[22] per Hinchliffe, Sevua, and Kandakasi, JJ.; the Kepa Wanege and Masolyau Piakali cases and the recent decision in Denden Tom & Anor v. The State,[23] per Salika, DCJ., Kandakasi and Gabi, JJ. The last case reiterated the position in these terms:
"The law is very clear that, an appellant cannot raise an issue on appeal for the first time without first raising the issue in the Court below. The Supreme Court in its most recent decision in Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes ... affirmed that principle"
22. This now leads me to the fifth problem with the decision in Sir Arnold Amet's case. The problem is this. The decision in the Denden Tom & Anor case was a decision delivered two years before the decision in the Sir Arnold Amet's case. Obviously, the latter decision marked a departure from the position in the Denden Tom & Anor case. That departure also marked a departure from the long line of authorities, some of which I have referred to above, without giving any reason for that departure.
23. As clearly stipulated in Schedule 2.9 (1) of the Constitution, this Court is not bound by its earlier decisions. However, that does not mean that, the Court can readily and easily depart from its earlier decisions as and when it wants to or feels like. Instead, departures are permissible for good reason and in keeping with the relevant principles governing departures. In this regard, what this Court said in Acting Public Prosecutor vs. Konis Haha,[24] in the context of decisions of the pre-independence full Court is relevant. There the Court said:
"Despite the fact that the Constitution gives decisions of the pre-independence full Court persuasive effect only, the present Supreme Court would only depart from the reasoning of the earlier judgement with the greatest reluctance. Certainty in the law is just as important as reform, and a departure from what has been accepted as legal principle for some time is only warranted where the present Supreme Court has come to a view that the early interpretation was clearly misconceived or that it is inappropriate to the circumstances of the country."
(Underlining supplied)
24. Subsequently, in Derbyshire v. Tongia,[25] the departure issue arose again. The Court addressed the issue in this way:
"It has not been seriously suggested that this Court should reverse or alter in any way the decision of the Supreme Court in Sannga. Quite properly both parties concede that such a course would be most unusual. Mr Molloy has drawn our attention to several very pertinent common law authorities, and this Court itself has already enunciated, on at least two occasions to our knowledge, firstly, that it would only depart from any earlier statement it had made on the law in the most exceptional circumstances and secondly, that such a departure should as a matter of practice, only occur when the Chief Justice is presiding with a bench of four. This rule of practice may of course be affected by whether his Honour the Chief Justice is being asked to reverse one of his own decisions. Obviously for a court consisting of three judges to decide one way last year and a different way this year simply because different judges make up the later court would lead to nothing but chaos. One decision we have in mind is that of Opai Kunangel Amin, ... Kapi Dep. C.J. says as follows:
'Counsel for the Public Prosecutor in his submission questioned the correctness of the decision in Re Joseph Auna ... The case was decided by a five-member Bench in December 1980. With the exception of one member of that Court, this Bench is made up of different judges. As a matter of practice, care should be taken when questioning the decisions of the Supreme Court in such short time with different judges. If this is encouraged then the parties may be led to challenge the decisions of the Supreme Court before a bench composed of different judges in a short period of time. This could lead to a degree of some uncertainty of the principles of law pronounced by the Supreme Court. This is not desirable."
(Underlining supplied)
25. Later in Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission,[26] per Amet CJ., Kapi DCJ., Woods, Los, Sheehan, Sakora and Sevua JJ., the issue also came up. Kapi, DCJ., (as he then was) with whom, Sheehan J., Sakora and Sevua J., (as thet then were), agreed, restated the principles in these terms:
"As a matter of law, this Court is not bound by its own decision ... This Court has previously laid down the circumstances under which it may depart from its own decisions. In this regard I adopt what I said in Titi Christian v. Rabbie Namaliu & The State (a decision of the Supreme Court OS No.2 of 1995, dated 18 July 1996). In a developing jurisdiction such as ours, it is important to bear in mind two competing considerations. On the one hand, it is desirable to provide certainty in the law that is developed by the highest Court in the land. This consideration would support the approach that as far as possible, previous decisions of the Court should be upheld. On the other hand, many of the principles or provisions of the Constitution are being subjected to the scrutiny of the Court for the first time it is desirable to examine these decisions to ensure that they are correct and are based on sound legal reasoning. The Court is at the early stages of developing the law. No Court should simply follow or overturn a previous decision without examining the decisions carefully. There will come a time when it will be decided that the law is settled and therefore it cannot be further corrected by judicial act. It will then be difficult to overturn a previous decision in those circumstances. In the final analysis, the test is, whether, a previous decision is clearly wrong. The court should act to correct a wrong decision ..."
(Underlining supplied)
26. On my part, I had occasion to consider these principles in The Independent State of Papua New Guinea v. Zachary Gelu.[27] I referred to the decision in the Konis Haha case and commented:
"Although that was in the context of binding effects of pre-independence Supreme Court decisions, the principles enunciated there do in my view apply in all cases in which either the National or the Supreme Court is called upon to depart from their earlier decisions. There has to be certainty and consistency in the pronouncement of the law by both the Supreme and the National Courts for a proper guidance of the society in the conduct of their lives and to allow for certainty in the rule of law. It is therefore, necessary for the party asking the Court to depart from its earlier decision to demonstrate a clear case for it. That demonstration must be in terms of the earlier decision clearly misconceiving, mistaking or misinterpreting the law and or a clear demonstration that the principles of law stated in the earlier decision are inappropriate to the prevailing circumstances and needs of the country. Where a party arguing for a departure fails to discharge that onus, the Court should not accept such a request."
(Underlining supplied)
27. A careful consideration of the above authorities makes it clear that:
(a) the Supreme Court is not bound by its own earlier decisions;
(b) but in the interest of providing certainty and consistency in the law for the society's guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;
(c) departures within a short space of time is undesirable and should not be encouraged; and
(d) departures are permissible only in exceptional circumstances where:
- (i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;
- (ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and
- (iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.
28. Allowing myself to be guided by the above principles, I note that the decisions allowing a matter not raised in the trial court to be taken up in the appellate court are those represented by the decision in the Van Der Kreek case. That decision was delivered on 6th July 1979, which in turn endorsed a position taken in the earlier pre-independence decisions in Sacred Heart Mission (New Britain) Property Trust v Nambumutka Simbali on behalf of the Denangi Lineage and The Director of District Administration (Re Toriu)[28], per Frost ACJ, Kelly, Raine JJ. Subsequently, these decisions were followed in the post independence decision in Steven Isaac Awoda v. The State[29], per Kapi DCJ, Pratt, Bredmeyer JJ. The first of these two cases concerned a legal argument not previously presented in the court below, while the second concerned a failure to object to inadmissible evidence at the trial level.
29. Most of these decisions were based on overseas cases. After our country's independence, the courts are duty bound by virtue of the whole scheme under Schedule 2 of the Constitution to first ensure that there are no local authorities on point. After arriving at that decision, the Courts must give consideration to any relevant overseas cases and consider their relevance, appropriateness and the applicability of the principles enunciated in such cases to the prevailing circumstances and needs of the country. Then only if the Court finds that the overseas cases relevant and the principles the cases stand for are appropriate and applicable to the prevailing circumstances and needs of the country, adopt and apply them. Neither the decision in the Van Der Kreek case, nor the above cited cases that followed it, went into any express and deliberate consideration of the appropriateness or suitability and applicability of the principles represented in the overseas cases. Also these decisions did not specifically make a decision in favour of their relevance, appropriateness and applicability to the prevailing circumstances and needs of the country. Instead, these cases went straight into an adoption and application of the overseas cases they relied on.
30. Then after a passage of almost 10 years since the last of the above decisions, namely the decision in the Steven Isaac Awoda case, this Court arrived at its decision in the James Pupune case. That marked a departure from the position led or represented by the Van Der Kreek line of cases. A long list of decisions or authorities representing a significant majority of Judges (both serving and retired or deceased) including the five (5) member bench decision in the Isaac Lupari case considered and deliberated on the issue and decided to effectively approved, endorsed and applied the principle precluding a party from raising an issue not first raised in the lower court, in the various civil and criminal cases that had gone before them. Judges supporting this view includes former Chief Justice, Sir Arnold Amet, former Deputy Chief Justice and late Chief Justice, Sir Mari Kapi, former Deputy Chief Justice and current Chief Justice, Sir Salamo Injia, the current Deputy Chief Justice Gibbs Salika (although he has also gone the other way as did a few other judges without giving any reason) and a significant number of senior Judges. This line of authorities in holding firmly to the principle against a point, issue or argument not first raised at the trial level from being raised on appeal or review give the following reasons:
(a) the fundamental principle of fairness requires all issues concerning any matter before a court must be first presented to the court below before raising it on appeal;
(b) adhering to (a) above enables, the opposing parties to present their arguments on those issues before judgment;
(c) the trial Judge is given the opportunity in fairness to consider the issues on their merits and come to a decision;
(d) The appeals process concerns the errors and omissions of a trial judge and not that of either or both of the parties. Hence, it would be unfair to raise in the appellate court an issue that was not in fairness presented in the court below;
(e) Public policy requires finality in litigation with no allowance for "second bites at the cherry" so to speak;
(f) Better case management requires all related issues be raised and dealt with once in one proceeding in the interest of saving time and money for the parties as well as the courts; and
(g) The appellate court has no original jurisdiction except for a rehearing based on the record of proceedings in the court below and nothing outside that.
31. To the above list I add this. Allowing an issue to be raised in the appellant court without it being first raised and considered in the court below, would deny the right of an aggrieved party his or her right of appeal or seeking a review of the decision on the issue. One might argue that an application under the "slip rule" could take the place of one's right of appeal or review. Unfortunately, that cannot be right, because of the rule's limited application compared to an appeal or review process.
32. Against the above, the line of authorities allowing for issues to be raised for the first time in the appellate or review level is limited to only a few cases as at the time of the decision in the James Pupune case and even well after that decision. Given the passage of time and the long list of authorities with the significant majority of the judges, including the five (5) member bench decision in the Isaac Lupari case, effectively endorsing the departure from the Van Der Kreek line of cases, and the legal position they represent, the law became settled. Indeed, some of the later decisions, including the five (5) member bench decision in the Isaac Lupari case following the departure from Van Der Kreek line of cases, expressly noted and accepted that to be the case.
33. Despite that position, the decision in The Papua Club Inc. case came by, in the same year as the decision in the Curtain Brothers' case and not long after the ones before that decision, effectively over turning the long line of authoritative decisions I noted above. This is how in its entirety the Court in The Papua Club case, treated the subject:
"With respect, we consider that in the Fly River case the court applied the principles in Etape and Pupune rather too broadly. Those cases were concerned with appeals in which points of evidence – as distinct from issues of law – had not been taken at the trial. In such a situation the Supreme Court took the view that the appellant was hard pressed to argue that the trial judge had erred. We do not consider that Etape or Pupune stand for the proposition that a party in an appeal is prevented from raising any issue of law that could have been raised during the court or tribunal below.
The better view is that if a notice of appeal raises a question of law which could not have been cured by evidence at the trial the appellant is not prevented from raising it, even if entirely new issues are involved, provided the court is informed and grants for the question to be argued. We find support for that proposition in decisions of the Supreme Court in Sacred Heart Mission (New Britain) Property Trust v Nambumutka Simbali on behalf of the Denangi Lineage and The Director of District Administration (Re Toriu) (1972) FC29, Frost ACJ, Kelly J, Raine J; Awoda v The State [1984] PNGLR 165, Kapi DCJ, Pratt J, Bredmeyer J; and, of course, Van Der Kreek v Van Der Kreek [1979] PNGLR 185. In the latter, Pritchard J, with whom Prentice CJ and Andrew J agreed, extensively considered the issue and followed the approach taken by the House of Lords in cases such as Connecticut Fire Insurance Co Ltd v Kavanagh [1892] UKLawRpAC 39; [1892] AC 473; Sutherland v Thomson [1905] UKLawRpAC 67; [1906] AC 51; and North Staffordshire Railway Co v Edge [1920] AC 254.
The issue of whether it is proper to allow parties to raise questions of law for the first time in an appeal has recently been ventilated in the High Court of Australia's decision in Dianne McGrath Fingleton v The Queen [2005] HCA 34. The appellant was the Chief Magistrate of Queensland when she was convicted of unlawful retaliation against a witness, a fellow magistrate, and was sentenced to a term of imprisonment. She appealed unsuccessfully to the Queensland Court of Appeal. Then she appealed to the High Court and raised an issue that had never before been raised: that she had a statutory immunity from criminal liability for acts performed in the course of exercising her administrative functions. There had been directions hearings (when it could have been raised by challenging the indictment); two trials (the second one, at which she was convicted, was necessitated after the jury in the first could not reach a verdict); and the appeal to the Court of Appeal. The High Court allowed the point to be raised and unanimously upheld the appeal based on it. Kirby J discussed the issue at length and noted that in both civil and criminal appeals there is no blanket prohibition against allowing parties to raise new points at an appeal. It is a matter for the discretion of the court. It is not a right. The party seeking to agitate the new point must still establish special or exceptional circumstances to warrant its determination. In criminal appeals the court is generally more disposed to allow a party to raise a new argument. In civil appeals the High Court has repeatedly refused leave to parties to propound new points, argued for the first time before it, relying on what has been described as 'the elementary rule of law that a party is bound by the conduct of his or her case' (eg University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481).
We consider that Kirby J's approach to the issue, though developed in the context of the unique constitutional position of the High Court of Australia, is equivalent to the approach that was recognised in Papua New Guinea in Van Der Kreek's case. The approach should again apply now."
34. Six subsequent decisions of this Court, merely cited, applied and or referred to the decision in The Pupua Club case as the authority to allow matters not raised at the trial level to be raised on appeal. The first case is the decision in the Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy[30], per Kapi CJ. (as he then was), Cannings and David JJ. This is what the Court said in that case about the principle:
"... the respondent submitted that some of the arguments raised by the applicant raise new points of law that were not put to the National Court. If that is so, we need to be convinced that it is proper to consider them. The general rule is that leave of an appellate or review court is necessary before it will consider new points of law not raised in the court below and special circumstances must be shown to exist (The Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812; Van Der Kreek v Van Der Kreek [1979] PNGLR 185, Supreme Court, Prentice CJ, Pritchard J, Andrew J; Charles Ombusu v The State [1996] PNGLR 335, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J)."
35. The second case is the decision in the criminal case of Cosmas Kutau Kitawal & Chirstoper Kutau v. The State,[31] per Jalina, Mogish and Cannings JJ. There the Court said this of the issue:
"We point out that the Section 20 issue was not put to the trial judge, so his Honour did not obtain the benefit of argument on it. However, it was an important point of law that should have been addressed. It was set out in the notice of appeal and it does not concern a question of fact only. It was therefore appropriate to allow the point to be argued. There is no hard and fast rule that prevents appellants raising new points of law that were not raised in the National Court (Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812)."
36. The third decision is the one in Telikom PNG Ltd v ICCC.[32] There the majority per Kirriwom and Cannings JJ., treated the issue in this way, while the dissenting decision per Injia DCJ. (as he then was maintained the opposite view):
"... the point about the Appeals Panel not acting as a judicial tribunal was not raised before the primary Judge. That does not mean that Telikom was necessarily prevented from raising it in the Supreme Court. But even if it was included as a ground of appeal in the beginning, they required leave of the Supreme Court to argue it. Telikom has not sought leave to argue the point. This issue was discussed in the Papua Club case, in which the Court departed from the approach taken in Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705 (where the Court held that the appellant cannot raise points of law not raised in the National Court) and followed the approach it took in Van Der Kreek v Van Der Kreek [1979] PNGLR 185 and the approach of the High Court of Australia in Dianne McGrath Fingleton v The Queen [2005] HCA 34 (there is no blanket prohibition against allowing parties to raise new points at an appeal; it is a matter for the discretion of the court but the party seeking to agitate the new point must establish special or exceptional circumstances to warrant its determination). So, in addition to asking for leave to amend the ground of appeal, Telikom should have sought leave to argue the point of law that was not put before the primary Judge."
37. The fourth decision is the one in Ramu Nico Management (MCC) Ltd v. Farina Siga,[33] per Davani, Hartshorn and Sawong JJ. There the Court made the following reference to the Van Der Kreek and Papua Club Inc decisions:
"The Appellants submit that again, this is not a valid objection to competency. It is a matter for the Court hearing the appeal and is not a ground of competency. Secondly, there are authorities of this Court to the effect that on an appeal, the Supreme Court can deal with issues not raised at the court below, Van Der Kreek v. Van Der Kreek [1979] PNGLR 185, Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812."
38. The fifth decision is the one in Comrade Trustee Services Ltd v Arnold Daugle,[34] per Gavara-Nanu, Cannings and Yagi JJ. There the Court said this on the issue:
"Furthermore, this point of law was not raised in the appellant's defence and appears not to have been raised, or at leat not strongly pursued, before the trial judge. The general rule is that an appellant is confined in argument before the Supreme Court to issues of law that were argued before the National Court; and argument on issues that were not before the National Court will only be allowed with the leave of the Supreme Court (Papua Club Inc v Nusuam Holdings Ltd (2005) SC812). Leave was not sought to argue this point of law, so this ground of appeal could not have been upheld."
41. The sixth and final case is of course the decision in the Sir Arnold Amet's case. The relevant part of the decision in that case has already been reproduced in paragraph 8 above, which I need not restate here.
42. With the greatest respect, I see a number of problems with the reasoning in The Papua Club case, and those that followed it. Firstly, the decision in James Pupune's case concerned a case of the appellant failing to object and thereby allowing matters not pleaded to be litigated. After a trial and award of damages for matters not strictly pleaded, the appellant appealed against that part of the judgment. What is important about that decision as was seen and applied by the many cases that followed the James Pupune line of cases is the principle that, any factual or legal issue not raised at the trial level cannot be raised at the appellate or review level. The decision in the Steven Isaac Awoda case referred to as one of the authorities for the position the decision in The Papua Club case took concerned an evidentiary matter as opposed to a legal point. This shows that the decision in The Papua Club case did not carefully consider the import of the decisions it was referring to in support of the position it was taking.
43. Secondly, the decision in The Papua Club case with respect, failed to note that there is long line of cases, which adopted, amplified and applied the decision in the James Pupune case. In so doing, the decision also failed to give any due weight and consideration to the reasons give by that long line of cases as noted in paragraph 30 above. But more importantly that decision failed to demonstrate how the long line of cases led by James Pupune was wrongly arrived at and how those reasons were inappropriate for the prevailing circumstances and needs of the country.
44. Thirdly, if the decision in The Papua Club case noted what it failed to note, it could have noted this. First, a year after the decision in the James Pupune case, this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape[35], per Kapi, DCJ., Brown and Konilio JJ., in a similar setting, endorsed the correctness of the position taken in the James Pupune case and applied it. Secondly, the decision could have noted that, the James Pupune case was again followed in 1995 in Motor Vehicles Insurance (PNG) Trust MVIT v. Salio Tabanto,[36] per Kapi, DCJ., Hinchliffe and Sevua JJ. Thirdly, the decision could have noted that this position was maintained by the decisions in the Jeff Tole; Fly River Provincial Government, Curtain Brothers and the other cases for almost a decade. Finally, the decision, could have noted that there are cases covering both evidentiary and legal issues and the line of authorities precluding a new issue or point from being raised makes no distinction between the two and applies the principle to both. Decisions like the ones in the James Pupune, John Etape and Jeff Tole cases representing evidentiary issues with lack of pleadings issues being raised for the first time on appeal and being precluded. At the same time, there are decisions like the ones in the Fly River Provincial Government, Bougainville Cooper and the Curtain Brothers cases, which concerned legal points or issues being raised for the first time on appeal and being precluded. How this Court in the Curtain Brothers case dealt with the issue as noted in paragraphs 16 - 19 above is demonstrative enough of that.
45. Fourthly and most importantly, I note that the decision in The Papua Club case gives no consideration or makes no mention of the reasons advanced by the James Pupune line of cases. Consequently, the decision failed to demonstrate how the reasons given by the James Pupune line of cases were wrong, inappropriate and not applicable to the prevailing circumstances and needs of the country. In this regard, the decision in The Pupua Club line of cases failed to give any thought or consideration to the principles on which this Court can depart from its earlier decisions. A quick check against the criteria for departing from an earlier decision as set out in paragraph 27 above, shows that those fundamental principles were ignored and not considered at all. The decisions that subsequently followed The Papua Club case also failed to improve on that position and merely decided to follow The Papua Club case, without more.
46. Fifthly, in the same year of the decision in The Papua Club this Court by at least two differently constituted Courts in National Executive Council v. Soiat Williams,[37] per Sevua, and Sawong, Gabi JJ, and the decision in the Curtain Brothers case, appreciating the reasons given in the James Pupune line of cases continued to follow that line of cases. As noted this appreciation and application of the principles continued by many subsequent decisions of this Court, as the one in Lavongai Equities Ltd v. Club 21 Ltd,[38] per Mogish, Yagi, and Ellis, JJ., and the ultimate five member bench decision in the Isaac Lupari case demonstrates.
47. Finally, consequential on its failures as noted above, the decision in The Papua Club case chose to follow an Australian High Court's decision instead of this Court's own authoritative decisions without providing any reasons for that. This clearly went against the grain of the whole scheme of the provisions of Schedule 2 of the Constitution as to the reception and application of overseas decisions. In any case, I note that the Australian cases like the one cited in The Papua Club case, namely University of Wollongong v. Metwally (No 2),[39] which was cited in McGrath Fingleton case, supports the James Pupune line of cases, especially in civil cases.
48. Now returning to the problems with the decision in the Sir Arnold Amet's case, the sixth and final problem with that decision I note is this. Section 217 of the Organic Law on Elections, requires the Court in the interest of doing real justice:
"to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
(Underlining supplied)
49. It is settled law now that, once an election petition has progressed to trial, the provisions of s. 217 comes into operation.[40] Pursuant to this provision, the Courts have allowed themselves for instance to consider all evidence before them, whether admissible or not, or whether hearsay or not, in order to do real justice on the substantive merits of the case. This means in my view that, once a matter has progressed to trial, however that was allowed, the Court must proceed to consider the evidence before it, make the relevant findings of fact and arrive at a decision on the substantive merits of the case. Hence, the technical questions of whether there is foundation in the pleadings or not or whether or not an election petition is incompetent do not apply. This was made abundantly clear in the National Court decision by Amet CJ., in Maino v. Avei, which was endorsed by this Court's decision in the Application by Ben Semri (confirming the approach of Injia J (as he then was) in Assik Tommy Tomscoll v Ben Semri,[41] which I followed in my own decision in the Steven Pirika Kamma v. Itanu, Electoral Commission and Laimo[42] and Steven Pirika Kamma v. John Itanu & Others (No 2).[43]
50. This is understandable, because of the two equally important needs. The first is the need to protect the integrity of the electoral process and its outcome if correctly arrived at. The second is the need to address and resolve any regularity, illegality or improper practice or conduct which unduly influenced an election outcome or compromise the integrity of the election process. This Court's decision in the Jimson Sauk v. Don Polye,[44] per Sakora, Sevua and Gavara-Nanu, JJ., and Ginson Saonu v. Bob Dade (2004) SC 763, per Sevua, Gavara-Nanu, JJ., respectively endorsing the respective National Court decisions in Benias Peri v. Nane Petrus Thomas & Electoral Commission (Unreported and Unnumbered judgment of 20/4/04) and Francis Koimanrea & Or v. The Electoral Commission and Paul Tiensten (Unreported & un-numbered judgment of 13/3/03) highlight this position. What His Honour Sakora J., said in Francis Koimanrea's case is on point. There His Honour said:
"Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and un-remedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.
Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations."
Decision on the Issue of Competence
51. In the final analysis on the issue of whether a matter not raised in the Court below can be allowed on review, I am persuaded to follow the James Pupune line of cases for the reasons that line of cases give as outlined in paragraph 30 above. At the same time, I note that this Court has no choice but to follow the James Pupune line of cases because of the five (5) member bench decision in the Isaac Lupari case, unless and until another 5 member bench Court overturns that decision and line of cases for good reason. Accordingly, I am of the view that, Mr. Aihi is precluded by his own conduct from taking issue with the competency of the petition against him. In fairness the time for him to raise the issue was at the trial level as one of the first preliminary issues before any evidence was called, assessed and a decision arrived at on the substantive merits of the case. That would have given Mr. Isoaimo and the Electoral Commission the opportunity to respond and the learned trial judge to consider and come to a decision on that issue. Indeed, I note that the Electoral Commission filed an objection to the competency of the petition but successfully obtained leave to withdraw it without any objection from Mr. Aihi at the commencement of the trial. For all intents and purpose, all parties therefore took the view that the petition was competent and chose to go to trial on the substantive merits of the petition. Now well after the trial and only after the Court has made findings and eventually decided against him, Mr. Aihi is raising the issue of competence of the petition. This, he cannot do on the basis of the numerous authorities I have laboured to outline and discuss above.
52. In any case, I note the competency issue is academic. This is because as will be seen, one of the two series of the alleged bribery was dismissed. Then of the one series of bribery found established against Mr. Aihi, the pleadings sufficiently covered each of the essential elements of the offence of the alleged bribery.
Second Category of Issues – Admitting, treating and acting on evidence of matters not pleaded
52. I now turn to a consideration of the issues around how the learned trial judge treated the evidence on bribery and his finding on the one series of acts of bribery he found as established against Mr. Aihi. In respect of this category of issues, I note as did the learned trial judge that it is established law in our jurisdiction that, a petition based on bribery must plead the essential elements of the offence of bribery alleged. These include the following:
(a) Date when the offence was committed;
(b) Name of the offender;
(c) Name of the person bribed
(d) The person bribed was an elector; and
(e) The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.
53. A quick perusal of the petition in this case does disclose most of these essential elements in the various allegations for bribery were pleaded. In any case, as I noted already, the learned trial judge dismissed one of the two series of grounds of bribery alleged in the petition. Hence, no utility will be served considering the argument against the decision of the National Court refusing to dismiss the petition on grounds of incompetence in respect of the ground of bribery that was dismissed. In the circumstances, I am of the view that, there is no merit in the application for review on grounds of the petition being incompetent. Accordingly, I would dismiss this part of the review application on this basis apart from the issue of incompetence of the petition.
54. This leaves me to consider the arguments on the admission into evidence certain evidence and acting on them. The starting point for this part of the review application should be s. 217 of the Organic Law, parts of which I already stated in the last of the problems attending the decision in the Sir Arnold Amet's case. However, for the purpose of the remaining parts of the review application, this provision is important and it needs to be restated in full for a proper understanding and application. The provision once again reads:
"217. Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
55. As noted already, this provision has been the subject of many decisions of both the Supreme and National Courts as highlight in my discussion of the last of the problems with the Sir Arnold Amet's case. The provision became a subject for my consideration in my decision in the Steven Pirika Kama case. There the argument was the same as was present before this Court by learned counsel for Mr. Aihi, Mr. Manase, who was also a counsel in that case for the petitioner, Mr. Steven Pirika Kama. I noted in that case what the former Chief Justice, Sir Arnold Amet in Charles Maino case speaking of s. 217 said:
"... it is important to be guided by the general intent and the spirit of Section 217 which injuncts the court to be "guided by the substantial merits and good conscience of its case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. I have adopted a very liberal and purposive interpretation of Section 217 and have in the course of the trial allowed evidence that did not conform to the strict rules of evidence. I consider also that this section could be applied to the manner in which the evidence is assessed and weighed.
I consider also that Section 212(3), read in conjunction with Section 217 empowers the Court to administer "real justice" and to make any of the orders under Section 212(1) on such grounds as the court in its discretion thinks just and sufficient."
56. I also noted that, on appeal from the above decision, the Supreme Court in Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea[45] addressing an argument on the trial judge failing to rule on the admissibility of certain affidavit evidence and proceeding to consider and act on the evidence as he did, the Supreme Court said:
"A procedural issue arises as to whether the Court erred in not ruling upon the admissibility of the four affidavits objected to and proceeding to assess the value and weight of the evidence contained therein. ... All parties in this review appear to agree that the Court did not determine the issue of admissibility separately as a preliminary procedural point. ... We do not consider this issue to be an important and determinative issue in this review, particularly in view of S.217 of the OLNE which provides that the "National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not". The effect of this position then is that the evidence in those affidavits stood unchallenged and were evidence before the Court for the Court to assess their value and weight and make findings of fact. And that is how the Court proceeded to deal with the unchallenged evidence."
(Underlining supplied)
"... the application of these principles have become more and more strict to the point that objections to competencies have become far too highly technical and in some cases purely nit-picking to say the least. In the process, the Courts at the instance of lawyers have effectively built into s. 208 additional requirements in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court to be 'guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.'
The unfortunate end result of this trend and approach has been a ready defeat of many good and meritorious election petitions at the very door steps of justice. That has happened in a number of otherwise clear cases of bribery or illegal practices and errors or omissions and irregularities seriously questioning the integrity of the election process and the eventual outcome of elections. Consequently, ordinary citizens of PNG who are concerned over the integrity of the election process and the duty of the Courts to inquire into any allegations of foul play and remedy them are left to marvel at why and how the Court can prevent a petition getting to a proper hearing and a determination on its "substantial merits". It is this kind of practice which only lawyers and the Courts have become familiar with and can understand that adds to a lack of respect for the integrity of the election process and the Court system because of the system's failure to properly scrutinize the election process when faced with an allegation of illegal practices or, errors or omission or, irregularities and remedy them."
"Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction ... some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.
An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission's discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter."
(Underlining supplied)
Accepting and acting on inconsistent evidence
Was intention to bribe or induce an elector to vote established?
"1. Gave, conferred or procured ... to, on, or for, any person;
2. any property or benefit of any kind;
3.in order to induce any person to endeavour to procure the return of the first respondent at the election or the vote of any elector at the election."
"those facts insufficient to defeat the natural and ordinary inference from the circumstances in which the cash was handed out that the first respondent was attempting to improperly buy votes with cash. I consider that despite what he said to the villagers and despite what he testified in court, the majority of voters at Veifa'a would have seen through the veneer of respectability that the first respondent attempted to maintain..... A reasonable person would have regarded his real intention as being to buy votes with K6,500.00 cash. I am satisfied beyond any reasonable doubt that that was indeed his real intention and that he acted with criminal intent: the first respondent was distributing the cash in order to induce the recipients and the villagers generally to endeavour to procure his return at 2012 general election and to procure the votes of the electors at the election. The third element is satisfied."
"other members of the youth group were not identified in the evidence does not defeat the inference that these were inducements paid to persons who were electors in the sense prescribed by Section 103(a)(iii)."
"The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
(Underlining supplied)
"The criminal intent of an offender has much to do with his state of mind at the time of committing an offence. An offender's intention can be ascertained in either of two ways. The first and perhaps the easiest way is where the offender expresses his or her intent before, during or after the commission of the offence. The second way is by looking at the conduct of the offender, before, during or after the commission of the offence. Numerous decisions of the National Court and Supreme Courts have stated and applied these principles in many of their decisions."
"If such occurrences [bribery] became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):
'Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates is many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late.'"
"The offence of official corruption is a serious one... Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.
I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to avoid prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously."
"Offences of bribery, undue influence and other corrupt practice seem to have become the norm of getting business done, in all areas of business, both in the private sector and more particularly in government. We hear of and read in the daily media and in private conversations in homes, on the streets, in cities and in villages stories of instances of bribery of public officials at all levels of government, but they rarely get exposed and reported to police, and successfully prosecuted. When they do get exposed and successfully prosecuted, and thanks to dedicated and honest officials ..., the Court must treat it seriously and impose a strong punitive and deterrent sentence in the form of custodial sentence, as a warning to other potential offenders. It would not seem right and just that when the very offence involves the use of money by the offender to bribe a public official, he should be allowed to 'pay his way out of jail', with the use of money, whatever the amount of money may be. To allow that to happen sets a dangerous precedent for others to expect the same treatment – that the more affluent members of our community will avoid real punishment by paying money. By real punishment, I am referring to a punitive and deterrent sentence in the form of custodial sentence. A fine or a suspended sentence in my view would not have sufficient punitive and deterrent effect. And speaking of the affluent, both locals and expatriates in our country, their good personal, educational, church, prior good character, guilty plea, remorse and concern over the welfare of their young family, cannot deter imprisonment. These are very attributes, which get him into a position of influence and respect, but they abuse those attributes to engage in corrupt practices. And when they do, such attributes have little or no effect in preventing a custodial sentence. Also these are things which should help him decide against committing the offence in the first place."
"Second difficulty I have with the Petitioner's case on this ground is, as I have already expressed, that I have no evidence before me from any of the recipients of these alleged payments saying that their free exercise of franchise was curtailed or hampered by these showers of generosity and gifts of cash and kind that they felt obliged or had no choice but to vote contrary to their own beliefs and inclinations. There is no such evidence before me."
"107. This case is a good illustration where a candidate giving willingly although the evidence was inconclusive to the needy or groups of people including church groups, youth groups, women groups, different ethnic groups and others on their requests during election time cash and other benefits and for his generosity he is hauled up in court with serious allegations of bribery. Why should it be bribery when the kind gestures are in response to direct requests? Should they amount to bribery, those who received the gifts must be the ones hauled up in court charged with bribery and convicted before their benevolent donor. This is where the mental element of intent or intention is most crucial to be clearly borne out in the evidence, not simply pleaded. Because you cannot really know what was behind the mind of the person who made the donation unless you haul up the receiver who is best placed to say whether the token was to bribe him for his vote or something he needed badly to enhance his living.
108. In fact election time is a time when people from all walks of life reckon it is as a good time for cash and other goodies freely flowing to them including gifts and other things. This is a universal belief or practice all over the world where free elections are held. In some countries it is customary to make gifts during visits to people or heads of certain venues where meetings are held and pay fines imposed for some breaches of custom as put in Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665 where the High Court of Kiribati held that:
'.......for there to be bribery, there must be evidence that voting in the election had been corrupted; it must be shown that relevant payments were requested or made with corrupt motive and that they had identifiable or likely effect upon the election result. The Court said that "the legitimacy of 'mweaka' a small customary payment in money or kind by visitors to the local 'maneaba' or traditional meeting house, defined by the Elections Ordinance in s3 had been recognized by the proviso to s24 of the Ordinance, which distinguished it from bribery where the sole intention was to show respect for the local customs. But the court also went further to warn that custom must not be allowed to be used as a cloak for electoral corruption.'
109. Again, this case from a court of similar jurisdiction in the region, although not binding on the courts here, is expressing a legal statement in respect of a practice that is not uncommon in many traditional societies in Papua New Guinea where chieftainship and kukurai system prevail and held at high regard and esteem."
"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..."
"Without analyzing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election."
(Underlining supplied)
"As the Chief Justice noted in his ruling in the leave application in this matter, the political campaigning period is a period marked with a lot of festivities and activities. It is a time when a lot of customary obligations are met and often time's money and other goods exchange hands. Most of these are to strengthen existing relationships in some cases and in others, creating and entering into new ones. In these settings, leaders are often expected to take the lead, throw up parties and help meet or reimburse expenses incurred by their people or supporters. Care must therefore be exercised to ensure that genuine gifts and meetings of customary obligations with words spoken are considered in their proper context to avoid any misunderstandings and taking matters out of context."
(Underlining supplied)
Decision on Intention and whole review
Decision and Orders of the Court
1. Each of the grounds of the Review and consequently, the whole of the Review are without merit.
2. Accordingly, the whole of the Review is dismissed.
3. The Applicant, Mr. Paru Aihi shall pay all of the Respondents costs.
4. The Security for Costs of K5,000.00 shall be paid forthwith to the Respondents in equal shares in part payment of their respective
costs
______________________________________________
Manase & Co. Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent
[1] See Kasap v. Yama [1988-89] PNGLR 197; Application by Herman Joseph Leahy (2006) SC 855 and Application of Ludwig Patrick Shulze (1998) SC 572, for examples of authorities on point.
[2] See Malipu Balakau v. Paul Torato [1983] PNGLR 242 and Mune v. Agiru & Ors (1998) SC 590 for examples of case on point.
[3] For an example of a case on point, see Application of Ludwig Patrick Schulze (1998) SC 572
[4] Kasap v Yama [1988- 89] PNGLR 81, Kelly Kalit v John Pundari (1998) SC 569
[5] Application by Ben Semri (2003) SC 723.
[6](2010) SC1064.
[7](2007) SC853.
[8] [1991] PNGLR 265; [1992] PNGLR 399.
[9] [1993] PNGLR 370.
[10](2002) SC694.
[11] (2003) SC705.
[12] (2005) SC788.
[13] (2010) SC107.
[14] (2005) SC812.
[15] [1979] PNGLR 185.
[16] (2005) HCA 34.
[17] (2001) N2096.
[18] (2004) SC702.
[19] (2004) SC771.
[20] (2009) SC970.
[21] (2011) SC1096.
[22] (2002) SC698.
[23] (2008) SC967.
[24] [1981] PNGLR 205.
[25] [1984] PNGLR 148.
[26] (1999) SC628.
[27] (2002) N2322.
[28](1972) FC29.
[29] [1984] PNGLR 165.
[30](2006) SC855.
[31] (2007) SC927.
[32] (2008) SC906.
[33] (2010) SC1056.
[34] (2011) SC1105.
[35] [1994] PNGLR 596.
[36] [1995] PNGLR 214.
[37] (2005) SC819.
[38] (2009) SC1001.
[39] (1985) 59 ALJR 481.
[40] See Application by Ben Semri [Sembri] and SCR No 23 of 2003: Review Pursuant to Constitution Section 155(2)(b) Application by The Electoral
Commission of Papua New Guinea (2003) SC723; Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
[41] (2003) N2349).
[42] (2008) N3246.
[43] (2008) N3261.
[44] (2004) SC769
[45] Supra note 6.
[46] (2003) SC723, (per Kapi CJ, Los and Salika JJ).
[47] Steven Pirika Kamma v. John Itanu, Electoral Commission and Michael Laimo (05/12/07) N3246.
[48] (2004) SC769.
[49] (2004) SC 763.
[50] See Denden Tom v. The State (2008) SC967; Michael Tenaram Balbal v. The State (2007) SC860; Telikom PNG Ltd v. Thomas Tulin (2004) SC748 and Alina Sarah Bean v. Ian Maxwell Bean [1980] PNGLR 307.
[51] [1984] PNGLR 378.
[52] [1988-89] PNGLR 360.
[53] (2002) N2338.
[54] [2003], (Unreported and unnumbered National Court decision) delivered on 5th March 2003.
[55] [2003], (Unreported and unnumbered National Court decision) delivered on 3rd January 2003.
[56] (1989) N808.
[57] An Unreported and unnumbered decision delivered in August 1989.
[58] (1989) N723.
[59] (2007) N3322.
[60][1992] PNGLR 463
[61](2009) SC980.
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