Kekeno v Undialu [2014] PGSC 63; SC1428 (7 May 2014)

SC1428

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 01 OF 2014

BETWEEN

JOHN KEKENO
Applicant

AND

PHILIP UNDIALU
First Respondent

AND

ELECTORAL COMMISION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Batari, Yagi & Makail, JJ
2014: 03rd July & 2015: 07th May

SUPREME COURT – Election Petition Review – Review of National Court decision – Dismissal of election petition – Election petition incompetent – Constitution – Section 155(2)(b).

SUPREME COURT – Election Petition Review – Competency of Application for Review – Pleading of grounds of review – Application for Review must state briefly but specifically the grounds of review – Grounds of review vague and too general – Grounds fail to specify error made by trial judge – Application for Review incompetent – Dismissal of – Supreme Court Rules, 2012 – Order 5, rule 19(c).

Facts

Each respondent objects to the competency of the application for review on the grounds that the grounds of review are pleaded in too general terms, vague and not specific contrary to the requirements in Order 5, rule 19(c) of the Supreme Court Rules 2012. The objections arise from the application to review the decision of the National Court under section 155(2)(b) of the Constitution. The National Court upheld the respondents' objections to competency and dismissed the petition challenging the election of the first respondent as Member for Koroba-Lake Kopiago as being incompetent.

Held:

1. Pursuant to Order 5, rule 28(f) of the Supreme Court Rules, 2012 and the inherent jurisdiction of the Supreme Court, the Court has jurisdiction to determine whether an application for review is competent at any stage of the court proceedings: Sir Arnold Amet v. Peter Yama [2010] PGSC 46 SC1064 and Dawa Lucas Dekena v. Nick Kopia Kuman [2013] PGSC 23 SC1272 referred to.

2. An application for review of a decision of the National Court on an election petition must state briefly but specifically the grounds relied upon in support of the review: Order 5, rule 19(c) of the Supreme Court Rules, 2012.

3. The grounds of review fail to specify the error made by the trial judge when he upheld the objection to competency and dismissed the election petition. They are too general and vague. This kind of pleading is prohibited by Order 5, rule 19(c) of the Supreme Court Rules, 2012. Each ground is incompetent and is dismissed.

4. Both objections are upheld and application for review is dismissed as being incompetent.

Cases cited:

Sir Arnold Amet v. Peter Yama [2010] PGSC 46 SC1064
Dawa Lucas Dekena v. Nick Kopia Kuman [2013] PGSC 23 SC1272
Sir Barry Holloway v. Aita Ivarato [1998] PNGLR 99
Jimson Sauk v. Don Pomb Polye and Electoral Commission [2004] PGSC 13, SC769
Dick Mune v. Anderson Agiru and Others [1998] PGSC 3, SC590

Counsel:

Mr. Philip Ame, for the Applicant
Mr. Justin Haiara, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY OF REVIEW

07th May, 2015

1. BY THE COURT: There are two objections to competency of the application for review. One by the first respondent filed on 02nd April, 2014 and the second by the second respondent filed on 07th April, 2014. Both objections are contained in the objection book filed on 22nd May, 2014.

2. The objections are made pursuant to Order 5, rule 28(f) of the Supreme Court Rules 2012 and the inherent jurisdiction of the Supreme Court as held by the Supreme Court in cases such as Sir Arnold Amet v. Peter Yama [2010] PGSC 46 SC1064 and followed in Dawa Lucas Dekena v. Nick Kopia Kuman [2013] PGSC 23 SC1272. There is no issue on this point.

3. The only issue which the applicant contends is that the respondents had the opportunity to object to the competency of the review at the hearing of the application for leave to review. They did not. Nonetheless, after a consideration of the grounds, the Court comprising a single judge of the Supreme Court struck out two out of seven grounds and allowed five to proceed further. By their failure to object, the respondents have acquiesced to the review and should not be permitted to re-litigate the objection to competency.

4. As the applicant does not take issue with the view expressed in the Supreme Court cases that the Court has inherent jurisdiction to determine an objection to competency, we reject the applicant's contention that the respondents are not permitted to object to the competency of the application for review. We accept the proposition that the issue of competency may be raised at any stage of the court proceedings. We proceeded on this basis to determine whether the application for review is competent. We also heard the substantive review application and reserved our decision pending the ruling on the objection to competency.

5. The objections arise from the application to review the decision of the National Court constituted by the learned Deputy Chief Justice Sir Gibbs Salika of 13th February, 2014 under section 155(2)(b) of the Constitution. His Honour upheld the respondents' objections to competency and dismissed the petition challenging the election of the first respondent as Member for Koroba-Lake Kopiago as being incompetent. His Honour held that the pleading of the grounds was convoluted, too general, vague and confusing, and the petition failed to plead sufficient facts and, pleaded evidence rather than facts contrary to section 208(a) of the Organic Law on National and Local-level Government Elections. ("Organic Law")

6. Although the respondents have raised five grounds of objection, they come down to one main ground of "general pleadings" with lack of particulars and/ or "specifics". They are that the grounds of review are pleaded in too general terms, vague and not specific contrary to the requirements in Order 5, rule 19(c) of the Supreme Court Rules. Order 5, rule 19(c) states:

"The application for review shall:-

100. state briefly but specifically the grounds relied upon in support of the review."
     

7. There are five grounds of review. We have heard the parties and have considered their respective written submissions. We canvass them in our consideration of the objection.

8. We start with the basic premise that the grounds must be brief but must specify the alleged error made by the trial judge. If the alleged error is in relation to the trial judge's interpretation of the law, the ground must state the law, interpretation given by the trial judge and the correct view. If the alleged error is in relation to the exercise of discretion by the trial judge, the ground must state the principles relevant to the exercise of discretion and how the trial judge applied the principles in the exercise of his discretion. If the alleged error is in relation to the trial judge's assessment of the evidence which formed the basis of his findings of fact, the ground must state how the trial judge erred in his assessment of the evidence. If the ground is that the trial judge relied on hearsay evidence to make a certain finding of fact, the ground must state the name of the witness whose evidence is said to be hearsay and how it is hearsay. It is not sufficient to plead that the finding by the trial judge was against the weight of evidence or that the decision was wrong in law because the trial judge misapprehended or misconstrued the law.

9. With those basic principles in mind, we address each ground below.

10. Ground 1 states:

"His Honour erred in law in not taking into account the facts pleaded in all the grounds of the petition and total of those figures which was more that 20,000 votes that affected the winning margin of 8025 votes, the later being the difference between the first respondent and the applicant who was runner up in the elections."

11. We accept the respondents' submission that this ground is too general, vague and not specific. It does not specify the facts upon which the petition is grounded and on which the trial judge failed to take into account nor does it point to a specific finding of the trial judge or where the trial judge failed to make the finding. We are reminded that the review is against the decision to dismiss an election petition for failing to comply with section 208(a) of the Organic Law.

12. Section 208(a) states that a petition must set out the facts relied on to invalidate the election or return. The facts disclose the type of ground or grounds a petitioner relies on to invalidate the election or return, bearing in mind that there are different types of grounds and different tests required to prove them. They are bribery, attempted bribery, undue influence, illegal practices and errors or omissions. It is, therefore, incumbent on the applicant to specify which ground or grounds the trial judge struck out because the petition failed to plead sufficient facts or the pleading was vague and too general.

13. We note it is pleaded in this ground that a total of 20,000 votes were affected and the result of the election was likely to be affected because the winning margin was 8,025 votes. That may be so, but as we have pointed out, this ground does not specify the facts in support of the ground to invalidate the election or return and on which the trial judge found to be insufficient or vague and too general. We are satisfied the current state of the pleading does not assist the parties as well as the Court to know how and where the trial judge erred. This ground is incompetent and is dismissed.

14. Ground 2 states:

"His Honour by going through each ground of the petition and striking down each ground of the petition erred in law in that, His Honour went beyond the requirements of section 208 (a) of the Organic Law on National and Local Level Government Election (the Organic Law) and the decision in Sir Barry Holloway v. Aita Ivarato [1998] PNGLR 99."

15. Again, we accept the respondents' submission that this ground is too general and vague, and does not point or refer to a specific finding of the trial judge. We give the same reasons as in ground one above. Further, we agree with the respondents' submission that the first part of the sentence is misleading and misconceived because going through each ground of the petition and striking down the grounds as incompetent was well within the discretion of the trial judge under section 208(a) of the Organic Law and reinforced by decided cases including Sir Barry Holloway v. Aita Ivarato [1998] PNGLR 99.

16. The second part of the sentence is vague and does not point or refer to a specific principle of law which Sir Barry Holloway v. Aita Ivarato stands for and which the trial judge failed to apply. In any case, it is not necessary to cite the case law and its omission is not fatal to the ground of review.

17. But it is necessary to plead how the trial judge applied the principle of law. The dismissal of the election petition was an exercise of the trial judge's discretion under section 208(a) of the Organic Law. As we have observed earlier [paragraph 8], if the alleged error is in relation to the exercise of discretion by the trial judge, the ground must state the principles relevant to the exercise of discretion and how the trial judge applied or misapplied the principles in the exercise of his discretion. This ground does not set out these matters except a vague reference to the trial judge going beyond the requirements of section 208(a) of the Organic Law which, in our view, falls short of the requirement to "state briefly but specifically the grounds relied upon in support of the review" under Order 5, rule 19(c) of the Supreme Court Rules.

18. For these reasons, this ground is incompetent and is dismissed.

19. Ground 3 states:

"The learned Judge erred in not considering the petition which on the face of it provided for sufficient and material facts to proceed to trial."

20. With respect to this ground, again, we accept the respondents' submission that it is too general and not specific. It fails to provide particulars with reference to the specific finding in the judgment where the trial judge erred. For instances, it fails to specify:-

- what sufficient and material facts were pleaded either under section 215 or 218 of the Organic Law or both;

- which of the 36 grounds have sufficient and material facts supporting them,

and which the trial judge failed to uphold and allow to go to trial.
21. This ground is an example of a pleading which Order 5, rule 19(c) prohibits. We also adopt our reasons in relation to ground one [paragraph 10]. For these reasons, we are satisfied that this ground is incompetent and is dismissed.

22. Ground 4 states:

" His Honour erred in law in not considering and making a ruling with respect to Jimson Sauk v. Don Pomb Polye and Electoral Commission [2004] PGSC 13, SC769 which inter alia held that "it is not material to plead who destroyed the ballot papers because this is a matter of evidence which was binding on his Honour sitting as a National Court Judge."

23. Again, the respondents' submission that this ground it too general and not specific is upheld. This ground does not specify the ground or grounds of the election petition which the trial judge failed to uphold and should have allowed to proceed to trial based on the view expressed by the Supreme Court in Jimson Sauk v. Don Pomb Polye and Electoral Commission [2004] PGSC 13, SC769. In that case, the Supreme Court expressed a view that it is not material to plead who destroyed the ballot-papers because that is a matter for evidence. We note that the election petition comprised of some 36 grounds and the trial judge considered each one of them before dismissing them all except one.

24. We assume that the applicant is relying on allegations of illegal practices under section 215 of the Organic Law to invalidate the election or return of the first respondent, and which the trial judge had struck out. If that is so, then this ground does not mention illegal practices. If there are any instances of illegal practices, they are also not pleaded. If pleading each of them would be a tardy exercise, at the least, the grounds must state that the trial judge erred in striking out allegations of illegal practices on the ground that they failed to state the person who destroyed the ballot-papers when it is not a material fact. Specifying the ground in this manner will put the respondents and the Court on notice of the basis of this ground of review.

25. We could be wrong to make the assumption on illegal practice because the trial judge could have also struck out allegations of errors or omissions under section 218 of the Organic Law because they failed to plead the identity of the person. We draw these possible scenarios to make the point that this ground does not specify which grounds of the election petition the trial judge struck out for failing to plead the identity of the person who destroyed the ballot-papers. We are satisfied this ground is too general and vague. It is incompetent and is dismissed.

26. Ground 5 states:

"His Honour erred in law in that he did not consider the principles in Dick Mune v. Anderson Agiru and Others [1998] PGSC 3, SC590 where the Supreme Court held that inter alia that he Petitioner need not plead the law."

27. Finally, we accept the respondents' submission that this ground is too general and not specific as to where and in what context the alleged error was committed. This is a general complaint against the entire decision of the trial judge's decision without any specifics. As we said earlier [paragraphs 16 and 17], it is not necessary to cite the case law and its omission is not fatal to the ground of review but given that the dismissal of the election petition was an exercise of discretion, the grounds must state the principles relevant to the exercise of discretion and how the trial judge applied them to the facts of the case before him.

28. If the principle in Dick Mune v. Anderson Agiru and Others (1998) SC590 is that the petitioner need not plead the law in support of the grounds of the election petition, then this ground lacks specifics or particulars because it does not specifically plead the grounds in the election petition which the trial judge struck out. In so doing, the exercise of discretion was against the principle in Dick Mune v. Anderson Agiru that a petitioner need not plead the law in an election petition. In other words, this ground fails to particularize where in the judgment the trial judge held that these grounds of the election petition must plead the law. We are satisfied this ground is vague and too general. It is incompetent and is dismissed.

29. We conclude that the grounds of review fail to comply with Order 12, rule 19(c). The order is, both objections are upheld. The application for review is dismissed as being incompetent. That being the case, it is not necessary to consider the substantive review application. The applicant shall pay the costs of the proceedings, to be taxed, if not agreed. The security deposit held by the Registrar shall be paid to the respondents in equal portions.

Ruling and orders accordingly.
________________________________________________________________
Ame Lawyers: Lawyer for the Applicant
Haiara's Legal Practice Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent