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Fairweather v Singirok [2013] PGSC 78; SC1279 (2 August 2013)

SC1279


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC REVIEW (EP) NO. 41 OF 2013


APPLICATION UNDER SECTION 155(2)(B) OF THE CONSTITUTION
AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS


BETWEEN


KEN FAIRWEATHER
Applicant


AND
JERRY SINGIROK
First Respondent


AND
EMILY SIAMOLI, in her capacity as the Returning Officer for the Sumkar Open Electorate
Second Respondent


AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent


Waigani: Kassman, J
2013: 17th July & 2nd August


Cases cited:


Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935
Ephraim Apelis v Sir Julius Chan (1998) SC573
Amet v Yama SC 1064
Nomane v Mori & Electoral Commission SCR No. 15 of 2013
Isoaimo v Aihi (2012) N4921
Anton Yagama v. Peter Charles Yama (2013) SC1219
Yagama V Yama SC Review 55 of 2012
Waranaka v Dusava (Unreported SC 942 of 2008)


Legislation cited:


Order 1 Rule 7 Supreme Court Rules 2012
Order 5 Rules 1 and 32 Supreme Court Rules 2012
Order 5 Rule 8 Supreme Court Rules 2012
Order 5 Rule 16 Supreme Court Rules 2012
Order 5 Division 2 Rules 7 to 48 Supreme Court Rules 2012
Sections 215(1) and (3)(a) (b) Organic Law on National & Local Level Government Elections
Sections 102 and 103 Criminal Code
Section 208(a) Organic Law


Counsel:


Mr Mal M. Varitimos and Mr Philip Tabuchi, for the Applicant
Mr Burnie W. Meten, for the First Respondent
Mr Siminji, for the Second and Third Respondents


DECISION
(Application for Leave)


2nd August, 2013


  1. KASSMAN J; Ken Fairweather ("Fairweather") applies for leave of the Supreme Court to review a decision of the National Court of His Honor Justice Gavara-Nanu made on 6 June 2013 in the matter EP No. 8 of 2012 Jerry Singirok v. Ken Fairweather & Electoral Commission of Papua New Guinea.
  2. In that decision, the National Court dismissed all but one of the objections raised by Fairweather and the Electoral Commission ("EC") to the competency of Jerry Singirok's ("Singirok") petition.
  3. Fairweather now seeks leave to review that decision. The EC supports Fairweather's application for leave but has not filed its own application. Singirok opposes the application for leave.

Jurisdiction as a single judge


  1. The parties agree that I have the jurisdiction to hear and determine this application exercising powers as a single judge of the Supreme Court. Order 5 Rule 16 of the Supreme Court Rules 2012 provides "The application for leave shall be made before a judge." and Order 1 Rule 7 states "Judge" "means a judge of the Supreme Court of Justice".
  2. The Application for Leave to Review was filed on 20 June 2013.

Law and principles applicable on an application for leave to review


  1. Order 5 Division 2 of the Supreme Court Rules 2012, being Rules 7 to 48 inclusive, provide for election petition reviews.
  2. The principles applicable on an application for leave to review are as discussed by the Chief Justice Sir Salamo Injia where, as Deputy Chief Justice at that time, in Erie Ovako Jurvie v. Bony Oveyara and Electoral Commission (2008) SC935, His Honour said;
    1. The grant or refusal of leave for review is discretionary. It is a judicial discretion and it must be exercised on proper principles and proper grounds: Application of Ludwig Patrick Shulze (1998) SC572
    2. The criteria for exercise of discretion on leave for review in an election petition matter are two-fold:-
      1. First, insofar as the application relates to a point of law, the only criteria to be satisfied are that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC855; Application of Ludwig Patrick Shulz (1998) SC572.
      2. Second, insofar as the application relates to facts, there is gross error or clearly apparent or manifested on the face of the evidence before the court: Kasap v Yama [1988-89] PNGLR 81, Application of Ludwig Patrick Shulz (1998) SC572.Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723; and such that a review of the findings of fact is warranted.
    1. The onus is on the applicant to satisfy the relevant criteria for grant of leave. The standard of satisfaction required must be appropriate to the criteria. In my view, in applying the two criteria (or any other criteria that may be developed in the future) to matters of law or fact in a particular case, a strict standard of scrutiny is required to ensure that only application which have points of law and facts which have clear merit proceed to a hearing. In my view, it is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. The test applicable to ordinary appeals to the Supreme Court where the applicant for leave to appeal is required to show an arguable case is inappropriate to leave to review a decision on an election petition. The applicant for leave to review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. The judge of course is not determining the merits of the substantive application and the judge must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria. The judge should be able determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied on by the parties."
  3. I have underlined parts that are the pertinent criteria.

Singirok's petition


  1. There were eight grounds in the petition, all of which are set out in paragraph 8 of the petition. Singirok withdrew Ground 8(6). The National Court dismissed Ground 8(3) as being incompetent and Singirok has not sought review of that decision.
  2. All six remaining grounds in the petition allege bribery and/or undue influence committed by Fairweather and/or other persons with the consent, knowledge and authority of Fairweather.
  3. Three grounds namely Grounds 8(1)(a), 8(2) and 8(7) contain allegations of bribery and undue influence committed by persons other than the candidate Fairweather and with the consent, knowledge and authority of Fairweather.
  4. The other three grounds namely Grounds 8(1)(b), 8(4) and 8(5) contain allegations of bribery and undue influence committed by the candidate Fairweather.
  5. Fairweather argues the National Court erred in refusing to dismiss the six remaining grounds in Singirok's petition as incompetent when they all:
    1. Failed to plead that the illegal practices committed by persons other than the candidate:
      1. Were likely to affect the result of the election; and
      2. It is just that the candidate should be declared not to be duly elected or that the election should be declared void;
    2. Failed to plead which of the particular categories of bribery offences, as prescribed by section 103(a) – (g) of the Criminal Code, are alleged to have been committed.
  6. The petition pleads Fairweather scored 9624 votes and Singirok scored 7004 votes, a winning margin of 2,620 votes. Fairweather argues, that gives further emphasis to the need for the petition to plead that the illegal practice committed by persons other than the candidate were likely to affect the result of the election and it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
  7. Fairweather's argument arises from his interpretation of section 215 of the Organic Law on National & Local Level Government Elections ("OLNLGE") which provides:

"215. Voiding elections for illegal practices


(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 –
  1. On the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
  2. 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."


  1. My interpretation of the relevant parts of this section, that is sections 215(1) and (3), provides for the following:
    1. Where there is a finding, against a successful candidate, of bribery or undue influence or an attempt to commit bribery or undue influence, the successful candidate's election shall be declared void. Section 215(1) is in mandatory terms and the election must be declared void. The preconditions discussed below apply to other circumstances as discussed below and as provided by section 215(3).
    2. Where there is a finding, against a successful candidate, of an illegal practice other than bribery or undue influence or an attempt to commit bribery or undue influence, the successful candidate's election shall be declared void where the following preconditions are present or apply:
      1. where the Court is satisfied that the result of the election was likely to be affected; and
      2. it is just that the candidate should be declared not to be elected; or
      3. the election should be declared void.
    1. Where there is a finding, against a person other than the successful candidate, of bribery or undue influence or an attempt to commit bribery or undue influence, committed with the candidate's knowledge and authority, the successful candidate's election shall be declared void. This is an arguable interpretation by deduction or by implication following the use of the word "without" in section 215(3)(a).
    1. Where there is a finding, against a person other than the successful candidate, of an illegal practice (other than bribery or undue influence or an attempt to commit bribery or undue influence), committed with the candidate's knowledge and authority, the successful candidate's election shall be declared void where the following preconditions are present or apply:
      1. where the Court is satisfied that the result of the election was likely to be affected; and
      2. it is just that the candidate should be declared not to be elected; or
      3. the election should be declared void.
    2. Under section 215(3)(a), an "illegal practice" includes bribery and undue influence where it is committed by a person other than the candidate whereas 215(3)(b) deals with an "illegal practice" other than bribery and undue influence committed by the candidate.
  2. As stated above, in three grounds [namely Grounds 8(1)(b), 8(4) and 8(5)], Singirok alleges bribery or undue influence was committed by the candidate Fairweather. As such, by section 215(1), under these grounds it was not necessary for Singirok to plead the preconditions that the result of the election was likely to be affected and it is just that the candidate should be declared not to be elected or the election should be declared void.
  3. As for other three grounds [namely Grounds 8(1)(a), 8(2) and 8(7)], they contain allegations of bribery and undue influence committed by persons other than the candidate Fairweather but with the consent, knowledge and authority of Fairweather.
    1. Ground 8(1)(a) – bribery or undue influence is alleged to have occurred in the presence of Fairweather and with his consent knowledge and authority.
    2. Ground 8(2) – bribery or undue influence is alleged to have occurred with Fairweather's consent, knowledge and authority.
    1. Ground (7) – bribery or undue influence is alleged to have occurred with Fairweather's consent, knowledge and authority.
  4. So in relation to these grounds of the petition, by section 215(3)(a), it was not necessary for Singirok to plead the preconditions that the result of the election was likely to be affected and it is just that the candidate should be declared not to be elected or the election should be declared void.
  5. I reiterate, following my interpretation of section 215(1) and (3) above, the preconditions were not applicable to the remaining six grounds of Singirok's petition.
  6. Counsel for Fairwearther referred to the decision in Amet v Yama SC 1064 comprising Salika DCJ, Batari and Davani JJ where Supreme Court said the pleading in the petition must be in clear, concise and sufficient terms stating:
    1. The facts giving rise to the illegal practice committed by a person other than the candidate;
    2. Those illegal practices were committed with the full knowledge or authority of the winning candidate;
    1. The illegal practices were likely to affect the election result; and
    1. It is just that the candidate should be declared not to be duly elected or that the election should be declared void.
  7. In that review, the Supreme Court found the petition alleged conduct in the form of statements or derogatory remarks by the candidate Amet and other persons amounted to undue influence. The Supreme Court went on to find the petition did not plead the undue influence on the part of the other persons were made with the knowledge and authority of the winning candidate Amet. In following the decision in Ephraim Apelis v Sir Julius Chan (1998) SC573, the Supreme Court said under section 215(3)(a), the "knowledge" and "authority" of the candidate as to any illegal act or undue influence is an essential element of this ground without which no election can be invalidated.
  8. Here, the petition under review does plead the bribery and undue influence was committed with the knowledge, consent and authority of the candidate Fairweather.
  9. I have however, interpreted section 215(3) to say that by section 215(3)(a), it was not necessary for Singirok to plead the preconditions that the result of the election was likely to be affected and it is just that the candidate should be declared not to be elected or the election should be declared void. This is at odds with Amet v Yama SC 1064 which says the petition must not only plead the illegal practice was committed with the knowledge and authority of the candidate but that such illegal practice was likely to affect the election result and it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
  10. I remind myself that I have formed these views on hearing arguments on the application for leave to review. With respect, it is appropriate that these issues must be fully argued before the Supreme Court.
  11. I now turn to the argument that the petition must also plead the relevant bribery offence under section 103 or undue influence under section 102 of the Criminal Code alleged to have been breached. In Amet v Yama SC 1064, Justice Davani said where allegations of undue influence and bribery are made, as criminal offences, allegations of the misdemeanors must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence and if any element is omitted then the allegation is liable to be struck out.
  12. Recently, the Supreme Court in Nomane v Mori & Electoral Commission SCR No. 15 of 2013 (12 July 2013, Kandakasi, Cannings & Collier JJ), said it is incumbent on a petitioner to identify the relevant statutory provision relied upon. It was held "If a petition alleges that the successful candidate has committed the offence of bribery under section 103 of the Criminal Code it is necessary to state which particular offence has been committed and its elements."
  13. In Isoaimo v Aihi (2012) N4921, Justice Cannings said "Because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a petition must specify what particular bribery offences are alleged to have been committed."
  14. I remind myself of section 208(a) of the Organic Law which specifically states that "A petition shall set out the facts relied on to invalidate the election or return". (Underlining is mine). To require a petitioner to plead the relevant bribery offence under section 103 or undue influence under section 102 of the Criminal Code alleged to have been breached is, with respect, to go beyond the requisites of section 208(a) by requiring the petitioner plead the law as opposed to pleading the facts.
  15. I also remind myself that, in considering the grant of leave for review, I am bound by rulings of the Supreme Court. This ground for review is a seriously arguable point that is appropriate for consideration by the Supreme Court.
  16. I now turn to Singirok's application filed 16 July 2013, a day before the hearing of the application for leave. Singirok argues Fairweather has failed to seek dispensation with the requirement to seek leave to review an interlocutory decision and as such the application for leave should be dismissed.
  17. Singirok argues no application for dispensation is sought by Fairweather in his application for leave to review and " ... the supreme court has been quite emphatic in stating that a review of an interlocutory ruling in an election petition proceeding should only be allowed where there is a clear error which has a very high chance of success" Anton Yagama v. Peter Charles Yama (2013) SC1219.
  18. My first reaction to these arguments was that this amounted to an objection to competency of Fairweather's application for leave to review. Firstly, there is no provision in the review rules of the Supreme Court for a challenge to the competency of an application for leave to review. Further, I am also of the view that such a challenge should go before the Supreme Court for hearing and determination and not before me sitting as a single judge of the Supreme Court. Order 5 Rule 36 provides the Court may hear and determine an Objection to Competency of the application and I interpret that to refer to an application for review as it falls under provisions of the rules that deal with applications for review.
  19. Dispensation from the requirements of Order 5 Rule 8 of the Supreme Court Rules 2012 was in fact sought by Fairweather in an application filed 11 July 2013. It is conceded the decision dealing with the objection to competency of the petition is interlocutory and is not a final decision within the meaning of Order 5 Rule 8.
  20. I have considered the discussion on this by the Supreme Court in the two separate decisions in Yagama v Yama SC Review 55 of 2012 on 16 February 2013 by Sakora, Manuhu and Kariko JJ and on 30 May 2013 by Salika DCJ, David and Yagi JJ. Both courts adopted the views expressed by Injia DCJ (as he then was) in Waranaka v Dusava (Unreported SC 942 of 2008) that the only way by which leave to appeal can be sought is for an applicant to seek an Order under Rule 32, dispensing with the requirement of Rule 1.
  21. Alternatively, Fairweather has also suggested that, instead of making an order for dispensation from the requirements of Order 5, this Court should direct that certain rules of the Supreme Court Rules apply to this review of an interlocutory decision of the National Court hearing the petition. (Underlining is mine). I set out in full the argument of counsel for Fairweather.

"a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended)." (Underlining added).


"If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hod directions to remedy the lack of inadequacy."


"Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a judge for directions."


  1. I agree with and adopt these propositions as being the appropriate course to be taken in the circumstances of this matter. This is consistent with the established view of the Supreme Court that the Supreme Court has inherent powers to review all judicial acts of the National Court including interlocutory decisions in election petition matters.
  2. The formal Orders of the Court are:
    1. Pursuant to Section 185 of the Constitution and order 11 Rule 9 of the Rules of the Supreme Court of Justice 2012 ("Rules") the form of the Application is deemed appropriate and sufficient to bring this application to the Court.
    2. Leave is granted to review the interlocutory judgment of the National Court made on 6 June 2013 in the matter EP No. 8 of 2012: Jerry Singirok v. Ken Fairweather, Emily Siamoli and the Electoral Commission of Papua New Guinea.
    3. Pursuant to section 185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules, the following provisions of Order 5 of the Rules apply to and in the preparation, prosecution and conduct of the application to review of the interlocutory ruling.
  3. The application for review shall be filed within 14 days from today or such further period as authorized under Rule 18 of Order 5 of the Supreme Court Rules 2012
  4. The costs of this application are in the cause.
  5. The time for entry of these orders is abridged.

Judgment accordingly:
___________________________________________________________
Young & Williams: Lawyers for the Appellant
Meten Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second and Third Respondents

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