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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV. (EP) NO.49 OF 2013
Application under s.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:
PILA NINIGI
Applicant
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent
AND:
FRANCIS KONGO AWESA
Second Respondent
Kokopo: Lenalia, J.
2013: 25th October
2014: 9th April
SUPREME COURT REVIEW – Application for Leave to Review – Section 155 (2)(b) of the Constitution
SUPREME JUDICIAL REVIEW – Application for Leave to Review decision of dismissing the election petition on grounds relating to objection to competency
Cases Cited:
Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99
Delba Biri v Bill Ginbogl Ninkama & Ors [1982] PNGLR 342
Robert Kopaol v Philemon Embel (2003) SC 727
Application by Herman Joseph Leahy (2006) SC855
Application by Ludwig Patrick Shulze (1998) SC572
Melchior Kasap v Peter Yama [1988-1989] PNGLR 81
Kelly Kalit v John Pundari (1998) SC569
Eric Ovaka Jurvie v Oveiara (2008) SC935
Moi Avaei & Anor v Charles Maino [2000] PNGLR 153,
Gibson Saonu v Bob Dadae (2004) SC763
Jim Nomane v David Anggo (No.1) (2003) N2496
Steven Kama v John Itanu & Ors (2007) N3246
Tulapi v Lagea & Ors (2013) N4934
Dick Mune v Anderson Agiru (1998) CS590
Sir Pita Lus v Gabriel Kapris (2003) N2326
Francis Komanrea v Alois Sumunda (2003) N2421
Mathias Karani v Yawa Silupa (2003) N2385
Sandy Talita v Peter Ipatas & The Electoral Commission of PNG. (16 .7.2013) N5333.
Ludger Mond v Jeffrey Nape & The Electoral Commission of PNG (2013) N2318
James Yoka Ekip & Simon Sanangke v Gordon Wimb, Electoral Commission of PNG & William Duma (2012) N4899
Counsel:
J. Kennedy, for the Applicant
C. Lari, for the First Respondent
A. Ninkama, for the Second Respondent
9th April, 2014
4. From that decision, the Applicant then filed this application for leave to review on 22nd August 2013. What is before the Court now is the Application for Leave to Review. The Applicant has come by way of application for leave for review is because under the Organic Law on National and Local-Level Government Elections s.220, there is no right of appeal.
5. There are four main grounds set out in the applicant's application. Those grounds say the trial Judge erred in law and fact and misapprehended and misapplied the law to what was pleaded in the petition. Part of the pleadings in the application for leave say that the Judge conducted a "mini trial" when interpreting provisions of the Organic Law on National and Local-Level Government Elections.
6. On arguing this application, Mr. Kennedy of counsel for the Applicant argued in terms of their amended-written submission saying the application for leave to review has meritorious grounds for the decision to be reviewed. Ms. Lari and Mr. Ninkama for the First and Second Respondents argued against the application saying the trial Judge did not procedurally err in reaching the decision on his findings.
7. The issue is should this Court grant leave to the applicant to review the decision by the trial Judge. This Court is sitting as a single Judge pursuant to the Election Petition Review Rules hearing this application for leave to review the decision of the primary Court dismissing the election petition on the basis of it being incompetent.
8. On election related cases on review, the various Supreme Court Benches on numerous occasions have held that though s.220 of the Organic Law on National and Local-Level Government Elections prohibits appeals however, a person aggrieved by a decision of a primary court may apply under s.155 (2(b) of the Constitution to review such decision. The grant of leave is discretionary. It is a judicial discretion and it must be exercised on proper principles and on proper grounds.
9. In Robert Kopaol-v-Philemon Embel (2003) SC 727, the Supreme Court set out guiding principles as to what needs to be proved in order to grant an application for leave to review. The Court there said:
"The tests that have emerged from these authorities for this court's inherent power to review all judicial acts of the National Court under s.155(2)(b) of the Constitution are:
(a) that there is no right of appeal or there is no other way of coming to the Supreme Court; and
(b) that there is an important point of law to be determined by the Supreme Court; and
(c) that the application is not without merit;
(d) that there must be gross error clearly apparent on the face of the evidence before the court."
Grounds of review
10. For purposes of fully understanding the nature of the application for leave to review, I quote the grounds relied on by the Applicant Mr. Pila Ninigi. The grounds are set out in as follows:
"(a) Decision, paragraphs 24 to 28: In relation to the ground of petition concerning the alleged errors committed by the Electoral Commission in recognizing the declaration of Francis Kongo Awesa-
(i) the learned judge erred in law when he misdirected his mind to the issue of whether a "critical point" (paragraph 28) or meritorious issues had been made out warranting trial instead of deliberating on the issue of whether or not material and sufficient facts had been pleaded in accordance with Section 208(a) of the Organic Law on National and Local-Level Government Elections (hereinafter referred to as "the Organic Law") to support that particular ground;
(ii) the learned trial judge erred procedurally by conducting a mini trial where he applied the law to the facts as pleaded and reached a conclusion in law when it was not open for him to do so.
(b).Decision, paragraphs 35 to 38: In relation to the facts pleaded under paragraphs 41 of the petition concerning the breach of Section 153A(4) of the Organic Law by Francis Akol –
(i) the learned trial judge in holding at paragraph 36 that "[i]n order for this Court to review the RO's decision to reject or admit a ballot box..." erred in fact and was under a misapprehension as to the subject matter for review because under paragraph 41 of the petition, the Petitioner was not seeking to review the decision of the Acting Returning Officer, rather he was seeking to review the direct defiance of a standing decision of the Acting Returning Officer to exclude boxes for Lumbi and Yaria;
(ii) the learned trial judge erred in fact and in law when he held in effect that because the Assistant Returning Officer's decision was being challenged (when it was not), the facts in relation to Section 153A of the Organic Law had to be pleaded.
(iii) the learned trial judge fell into error in law and in fact and acted ultra virus its powers contrary to Section 153A(4) of the Organic Law when he insisted on pleading of procedural requirements in circumstances where the issue under paragraph 41 of the Petition relates to jurisdiction and authority of Assistant Returning Officer Francis Akol to admit for scrutiny the Ballot Box for Lumbi and Yarai.
(iv) the learned trial judge fell into error in making two contradictory findings concerning the pleadings implicating Francis Akol when at paragraph 20 he held that "[t]here is no question that the allegations concerning the actions of ARO Francis Akol and Commissioner Jim Andrews and other counting officials that assisted Mr. Akol amounts to irregularities, errors and omissions under s.218" but at paragraphs 35 to 38 of the decision he found that sufficient facts had not been pleaded.
(v) the learned trial judge fell into error when he introduced a new ground of objection to competency not raised by the Respondents and further misdirected and contradicted himself as to the clarity and sufficiency of the pleadings under paragraph 41 in circumstances where the Respondents understood the allegation raised therein and did not take issue with the want of pleading of the procedure under Section 153A of the Organic Law and Section 90 of the Electoral Law (National & Local-Level Governments Elections) Regulations 2007 and where his honour held at paragraph 20 that "[t]here is no question that allegations concerning the actions of ARO Francis Akol and Commissioner Jim Andrews and other counting officials that assisted Mr. Akol amounts to irregularities, errors and omissions under s.218." His Honour ought to have applied section 218 of the Organic Law to the facts pleaded in paragraphs 41 of the Petition when these facts pleaded:
- (a) errors and omissions by officers of the First Respondent;
- (b) that the result was affected by those errors and omissions and
- (c) are material facts for the requirement of section 218 and section 208(a) of the Organic Law.
(vi) the learned trial judge fell into error in law and in fact in shifting the onus of proof to the Petitioner to prove that the decision of the Acting Returning officer Steven Tipora requirements of Section 153A of the Organic Law when the facts pleaded in paragraph 41of the Petition pleaded that:
(a) a decision was made by the Acting Returning Officer Steven Tipora under Section 153A(1) of the Organic Law; and
(b) the Petitioner was not an aggrieved party to the decision and the general rules that he who alleges must prove.
(c) Decision, paragraphs 40 to 56: In relation to the ground of the Petition (paragraphs 35 and 44 of the Petition) concerning the alleged bribery of electoral officials by Francis Awesa, the trial judge (having found that three out of the four elements of bribery were pleaded) in relation to the element of intention-
(i) erred in law and in fact holding at paragraph 48 and 51that the corrupt payments would ordinarily be concealed from the public but if allegedly done in the public with the intent expressly stated, such pleading would be incredible and the Court may reject such a pleading unless other relevant facts clearly demonstrate criminal intent when establishing criminal intent is a matter of evidence at trial;
(ii) erred in law in holding at paragraphs 48, 53 and 55 that the pleading lacks "credibility" and "believably" and is therefore incompetent when His Honour ought to have applied section 103(a)(iii) of the Criminal Code to the facts pleaded in paragraphs 35 and 44 of the Petition, and these facts pleaded intention in the circumstances where the cash payments of K20,000.00.
(iii)various named electoral officials and security personals in charge of the scrutiny to declare the Second Respondent as a member elect.
(iv) fell into error of law at paragraph 53 wrongly applying the finding in Parkop-v-Vele (No.3) (2007) N3322 that "if mens rea were to be imputed, there must be clear evidence to support such conclusion" in his deliberations of whether sufficient facts had been pleaded supporting the last element of bribery when the Court in Parkop-v-Vele was deliberating on the evidence supporting bribery which was adduced at trial as opposed to dealing with a competency objection;
(v) erred in law at paragraph 54 in finding that "mens rea in this pleadings is lacking of if expressly or inferentially stated, they lack credibility" when such a finding can only be made after the evidence is received and considered.
(vi) erred in law at paragraph 54 in holding that "the story... of a candidate walking straight into the counting room in full view of the public and counting officials and expressly and openly making the commitment and his son distributing the money in public removes any suggestion of mens rea" when such a finding can only be made after the evidence is received and considered.
(vii) erred in law at paragraph 55 in holding that "[i]n the present case, as much the pleadings tell of an extraordinary story, the story is in capable of belief" when such a finding can only be made after the evidence is received and considered.
(viii)the learned judge erred procedurally by conducting a mini trial where he made findings on the facts as pleaded and reached a conclusion at paragraphs 53, 54 and 55 of his decision that the facts as pleaded are incapable of belief and lack credibility when it was not open for him to do so.
(ix)the learned trial judge erred in law and breached the principles of natural justice contrary to Section 59(2) of the Constitution of the Independent State of Papua New Guinea in circumstances where he found in paragraphs 53, 54 and 55 of his decision the facts as pleaded are incapable of belief and lack credibility and consequently denied the Petitioner the right to be heard on his allegations when he should have allowed the Petitioner to proof his allegation and that the general rule is that he who alleges must prove.
(d).Decision, paras. 57-58: In relation to the grounds of the Petition (paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 42(a)(ii) and 42(b)(ii) of the Petition concerning the allegations in respect of voters in Lumbi and Yaria who were denied their right to vote:
(i) the learned trial judge erred in law and breached the principles of natural justice contrary to Section 59(2) of the Constitution of the Independent State of Papua New Guinea in failing to address them as separate grounds rather than using a wholesome approach when it was clear from the Petition that specific grounds were being pursued by these facts but where not objected and in any event it was pleaded clearly how the result of the election was affected when read holistically.
(ii) the learned trial judge erred in law and breached the principles of natural justice contrary to Section 59(2) of the Constitution of the Independent State of Papua New Guinea in failing to give any adequate reasons or any reasons at all and further failed to consider submission by the counsel for the Petitioner in circumstances where His Honour ought to have applied section 218 of the Organic Law to the facts pleaded in paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 42(a)(ii) and 42(b)(ii) of the Petition when these facts pleaded:-
- (a) errors and omissions by officers of the First Respondent;
(b). that the result was affected by those errors and omissions and
(c). are material facts for the requirement of section 218 and section 208(a) of the Organic Law.
(iii) the learned trial judge fell into error in making two contradictory findings concerning the pleading when at pargraph 21 he held that;
"..the votes from Lumbi and Yaria boxes are critical to producing a winner in the election as between the Mr. Ninigi and Mr. Awesa", and at paragraph 22 he held that;
"[t]he pleadings in the petition clearly shows significance of the Lumbi and Yaria votes. Those were first preference votes scored by Mr. Awesa; they were not affected by the elimination process because Mr. Awesa and Mr. Ninigi petitioner led the count from the end of the primary count to the end of the elimination process, depending on whether or not the votes from Lumbi and Yaria were included in the count."
But at paragraph 58 of the decision he found that sufficient facts had not been pleaded to show how the result of the election was affected."
11. The issue really is whether the trial Judge erred in law and facts as the reasons set out above when dismissing the Petition. Mr. Kennedy counsel representing the Applicant ended his submission by saying that the grounds for review on his client application demonstrates a prima facie and convincing legal grounds and an arguable case warranting his client grant of leave for review.
12. The amended Petition Review Rules of 2002 in Division 1 Sub-division 1 Rules 1 to 10 provide:
"Application for Leave to apply for Review
13. As I earlier said, grant of leave is discretionary and it is a judicial discretion and it must be exercised on proper principles and on proper grounds. The Petition Review Rules do not provide for how the discretion is to be exercised or the relevant considerations to be taken into account in determining the question of leave. However, the principles on application for leave to review have been stated in many case law authorities both by the Supreme Court and National Court. I thank the counsels representing the parties for making helpful submissions to assist the Court determine the issues raised on the application.
14. On the first ground the applicant through his counsel say that, the His Honour the trial Judge misdirected his mind on the issue of whether meritorious issues had been made out warranting trial instead of deliberating on the issues of whether or not sufficient facts had been pleaded in the Petition in accordance with s. 208(a) of the Organic Law. The applicant refers to paragraph 28 of the judgment of the primary Court. Section 208 of the Organic Law sets out the prerequisites for what needs to be pleaded in the petition. This proviso states:
"208. Requisites of petition
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court in Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
15. I am of the view that when His Honour made the point about "critical and determinative point" on whether the decision by the Returning Officer to either admit or reject the ballot boxes at Lumbi and Yaria, he was referring to what was needed to be plead in the election petition. It is my view that, it was in the discretion of the trial Judge to refer to what the requirements of s.208 (a) and s.209 of the Organic Law are as those provisions have been put in mandatory terms and of course, bearing in mind s.210 of the Organic Law which provides that where there is no compliance with s.208 & 209 of that law, there is no EP proceedings.
16. Note here the wording of Section 210 of the Organic Law. That provision states:
"No Proceedings unless Requisites complied with
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."
17. The Supreme Court's authoritative decision in Delba Biri v Bill Ginbogl Ninkama & Ors [1982] PNGLR 342 on the discussion of law in relation to s.208 lays down the law on preliminary challenges to election petitions. But the decision in the above case as well emphasizes the mandatory nature of the requirements under s.208. At page 345 of that case, the Court expressed itself in the following terms:
"An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."
18. On the issue of what should be contained in the pleadings of an election petition, the Supreme Court in Sir Barry Holloway-v-Aita Ivarato and Electoral Commissioner [1988] PNGLR 99 said at page 101:
"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s.208(a) of the Organic Law is to set out the facts which constitutes the grounds upon which an election or return may be declared invalid. Setting out grounds without more facts does not satisfy the requirements s.208 (a) of the Organic Law. The facts set out under s.208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which would constitute a ground or grounds upon which an election or return may be invalidated."
19. From paragraphs 24 to 28 of decision, it is clear that the trial Judge discussed issues in relation to the duly appointed Returning Officer. On the objection to the competency of the petition, it was alleged that one, Mr. Pue was the duly appointed by the First Respondent as the Returning Officer and that he remained so up until the declaration was made on 23rd July 2012, and that Mr. Kundapen was not duly appointed.
20. If the objection to competency was made against insufficient pleadings, the trial Judge discussed the position in law in relation to s.19 (1) on appointment of Returning Officers of the Organic Law, s.22 and s.175 which give wide powers to the Electoral Commissioner to make decisions and make directions to ensure the election processes is conducted in efficient manner and done expeditiously.
21. According to the case law authorities cited above, the facts plead in the petition should indicate and clearly set the grounds upon which a petitioner relies on. Section 208 (a) of the Organic Law stipulates that all relevant and material particulars of facts must be given or pleaded. That is, a petition must not only allege grounds but must set out the relevant and material facts supporting that ground or grounds for that matter.
22. Following His Honour's discussion of law in the judgment from various paragraphs referred to on the application before me, this Court finds that the primary Court was discussing very essential issues which the Organic Law requires to be pleaded in an election petition. On addressing the Court on this application, Counsel for the Applicant argued that the application for review involves essential issues of law as to the proper application statutory provisions governing conduct of general elections. Counsel referred to those provisions such as sections 168(4), 215(3) (b), 217, 218 and said the trial judge erred in the application of such provisions to the factual pleadings and the evidence that was called in the competency hearing before his Honour.
23. Part of his submission is that, the grounds raised in their application are arguable issues in that they are serious issues of both facts and law to be tried which the trial Judge misapplied and misapprehended the law in relation to the pleadings of the Petition at the preliminary hearing on the challenge to the competency of the Petition. There is reference made to the trial Judge that he conducted a "mini-trial", the Court below had to inquire into the pleadings and find out if there was material facts pleaded pursuant to s.208 (a) of the Organic Law. At page 10 of the judgment, paragraph 38, the trial Judge said:
"For the foregoing reasons, I find Petition grounds 40-44 inclusive that relate to the disputed ballot boxes and votes contained therein, fail to comply with s.208 (a) in conjunction with OLNE, s.155A, Regulations, s.90 and OLNE s.218. They are struck out for that reason."
24. I am of the view that the first ground seeking leave for review must be refused.
25. The second ground (b) (i) to (vi) on this application for leave to review relates to paragraphs 35 to 38 of the judgment. This
ground alleges various errors which again raised issues of the trial Judge misapprehension of facts and law. Reading part of the
judgment on the competency issue from paragraphs 29 to 38 His Honour the trial Judge discussed the law of how to admit or reject
ballot boxes and what needs to be pleaded as required pursuant to s.208 (a) of the Organic Law.
26. The trial Judge correctly addressed the law on pleadings and what a petition is required to plead. An applicant in an application for leave to review must show that such application relates to an important point of law to be determined and it must not be without merits: Application by Herman Joseph Leahy (2006) SC855, Application by Ludwig Patrick Shulze (1998) SC572.
27. The cases of Melchior Kasap v Peter Yama [1988-1989] PNGLR 81 that of Kelly Kalit v John Pundari (1998) SC569 and the one I have just referred to that of Application by Herman Joseph Leahy (2006) SC855, these cases and others not cited of referred to on this judgment establish that applications of this nature should show that there has been gross error clearly manifested on the face of records and evidence before the reviewing Court.
28. Further in the earlier case of Moi Avaei & Anor v Charles Maino [2000] PNGLR 153, the Court in that case said that, a review is not the same as an appeal. I remind myself, the application seeking leave for review is not a review in itself. In Eric Ovaka Jurvie v Oveiara (2008) SC935, Injia, DCJ (as he then was) discussed relevant principles in review of election petitions. The Court there said at paragraph 9:
"When the principles relevant to election petition reviews developed in various cases including the cases referred to in Herman Leahy case and leave provisions in the Petition Review Rules are distilled into some basic principles or criteria, four main principles emerge, and these are:-
- 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) SC 855; Application of Ludwig Patrick Schulze (1998) SC 572.
- Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Schulze (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) SC 723; and such that a review of the finding of fact is warranted."
29. Mr. Kennedy of counsel for the Applicant referred to a volume of case law authorities and referred to the OLNLLGE saying that the right to dispute an election petition is given by statutes and that s.208 gives no power to the Court to dispense with the requirements of that provision, but not even with s.217 of the OLNLLGE as this section enjoins the Courts not to be guided by technical rules of evidence.
30. Counsel referred to the liberal approach developed in election related cases such as Gibson Saonu v Bob Dadae (2004) SC763, Jim Nomane v David Anggo (No.1) (2003) N2496, Steven Kama v John Itanu & Ors (2007) N3246 and argued that the Courts entertaining lawyers on the issue of s.208 of the OLNLLGE are nit-picking defeating the purpose of s.222 which is intended that petitioners themselves file petitions rather than resorting to legal services of lawyers.
31. Part of the Applicant's argument on ground (b) which alleges various errors one of which is that, the trial Judge fell into error in law and in fact and acted ultra virus its powers contrary to Section 153A(4) of the Organic Law when he insisted on pleading of procedural requirements in circumstances when the issue raised in relation to paragraph 41 of the Election Petition related to jurisdiction and authority of Assistant Returning Officer Francis Akol to admit for scrutiny of the Ballot Box for Lumbi and Yarai.
32. When the trial Judge was discussing the law on what should have been pleaded on the E.P, I am of the view that the Court was merely expressing the concern that if the matter went for trial proper past the objection to competency status, it would not have been successful because, s.208 (a) of the OLNLLGE had not been complied with.
33. On ground (c), of the application for leave to review again contains various grounds from (i) – (ix) attack the findings by the trial Court on the issue of allegations of bribery. The trial Judge discussed the need to plead material facts which should go towards substantiating essential elements of s.103 (a) (iii) of the Criminal Code. His Honour explained in paragraph 45 of the judgement what was lacking to be pleaded in the petition where the Judge said:
"Mr. Awesa takes issue with what he says is lack pleadings of material facts supporting the essential elements of bribery. Those include failure to plead Mr. Kundapen's role in the election process in terms of his authority to make a declaration on the election results, no mention by name of RO or electoral official who were actually paid the money, no mentions of RO corruptly receiving the payment, no mention of the expressed purpose of the payment whether to named RO or election official to make the declaration of the second respondent as the winner; no names of the other persons whom Mr. Awesa instructed to declare him as the winner; and in the case of the role played by Mr. Richard Awesa, there is no pleading as to the requirements that the result of the election was likely to be affected s.215 (3)."
34. The trial Judge cited the case of Tulapi v Lagea & Ors (2013) N4934 wherein the Court in that case discussed the identity of the four elements of bribery. Any money given in the eyes of public may have not been done with any criminal intention. The Courts both the National and Supreme Court have consistently said that the Court of Disputed Returns is duty bound to strictly comply with the mandatory requirements set out under s. 208(a) to (e) and s.209 to see if they comply with those mandatory requirements.
35. Failure to comply with any of the mandatory requirements in s.208 has resulted in either parts of allegations in a petition or the whole petition being struck out: Dick Mune-v-Anderson Agiru, Dick Mune-v-Anderson Agiru, Sir Pita Lus-v-Gabriel Kapris, Francis Komanrea-v-Alois Sumunda, Mathias Karani-v-Yawa Silupa (supra). (See also EP. No.101 of 2012 – Sandy Talita v Peter Ipatas & The Electoral Commission of PNG. (16 .7.2013) N5333.
36. The basis of the Respondents counsel's submissions argument is that, abundant case law authorities say that allegations on illegal practices must be clearly pleaded to avoid ambiguity and confusion. (See Ludger Mond-v-Jeffrey Nape & The Electoral Commission of PNG (2013) N2318, see also James Yoka Ekip & Simon Sanangke-v-Gordon Wimb, Electoral Commission of PNG & William Duma (2012) N4899.
37. It is my opinion, when the trial Judge was discussing the law from paragraphs 40 t0 56 on the judgment, His Honour was dealing with one of the serious issues on election petitions namely bribery which needs clear pleadings of primary material facts and what is required to be pleaded and the reason or reasons for any promises that was made during the polling. This process protects what I may refer to as "fishing for evidence". Where pleadings relate to persons, their names should be pleaded. This was what the trial Judge was concern with. This Court also refuse to grant leave for grounds (b) (i) to (vi) of the application for leave to review.
38. Grounds (d) (i) to (iii) say that the trial Judge erred in law and breached principles of natural justice contrary to s.59 (2) of the Constitution because the trial Court failed to addressed grounds of the applicant's election petition "separately rather than using a wholesome approach" when it was evident from pleadings in the Petition that certain grounds pursued by facts pleaded were not objected to. In my view this point of the applicant's contention is incompetent since Courts are empowered to uphold the law in all aspects.
39. I have the view that in Election Petitions, where there is an objection to competency, it is may be like the District Court Committal processes regarding committal proceedings on indictable offences pursuant to PART VI s. 93 to 103 of the District Court Act. In that Court, the Committal Court the magistrate assumes the role of "fact finding mission" in the committal process. He or she does that from examination of all evidence that has been filed by police informants through police prosecutors. If the magistrate is satisfied that there is evidence to commit the offender to stand trial in the National Court, the offender is committed to stand trial or sentence pursuant to ss.95 and 103 of the District Courts Act.
40. The objection to competency would be much similar to the committal processes. In fact the trial Judge said at page 16 of the judgment that he found what the applicant pleaded in the grounds of the Petition called for careful consideration of all evidence and facts in order to decide if what was pleaded raised material facts and given the objection to competency, it was incumbent upon the trial Court to consider s.208 (a) of the OLNLLGE because if there is no compliance with that provision, s.210 of the Orgaanic Law, clearly states that E.P proceedings cannot proceed to trial.
41. The trial Judge concluded at paragraph 56 of the judgment that, paragraph 35 and 44 of the Election Petition did not comply with the mandatory requirements of s.208 (a) when read in conjunction with s.215 (1) or (3) and the fourth element of s.303 (a) (iii) of the Criminal Code.
42. Having discussed what I have said on the status of the application for leave for review, I must ask myself the questions put in the volume of case law authorities which have been referred to by counsels in their submissions and the ones I have cited and quoted certain passages from, is there or are there important points or issues of law which were not properly addressed and decided which must be determined by the Supreme Court, if this application for leave to review goes past this stage, or does the current application for leave for review has any merits and if so, were there gross error or errors which must be apparent on the face of the evidence that was called before the trial Judge.
43. With respect, I must answer the above questions in the negative and the Court must refuse the whole application for leave to review.
44. The Court orders the Applicant shall pay costs incurred by the First and Second Respondents to be taxed if they do not agree.
The Court further orders that the security deposit shall be shared between the two respondents and taken as part payment of the total
costs.
_______________________________________________________________
Jema Lawyers: Lawyer for the Applicant
Niugini Legal Practice: Lawyer for the First Respondent
Paraka Lawyers: Lawyer for the Second Respondent
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