Yagama v Uguro [2018] PGSC 24; SC1682 (29 June 2018)

SC1682

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 12 OF 2018

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:
ANTON FRANCIS YAGAMA
Applicant

AND:
JIMMY UGURO
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn, Higgins & Frank, JJ
2018: 20^th February & 29^th June

JUDICIAL REVIEW – Election Petition – whether Objections to Competency may be re-raised – substance of objection not previously addressed – court not functus officio

SUFFICIENCY OF PETITION – ss. 208, 215, 218 Organic Law on National and Local-Level Government Elections

BRIBERY/UNDUE INFLUENCE – allegations insufficient for the purposes of s. 208 Organic Law – no allegation successful candidate knew of or authorised alleged offending conduct – Petition rightly dismissed

Cases Cited:
Papua New Guinea Cases

Amet v Yama [2010] PGSC 46; SC 1064
Chan v The Ombudsman Commission [1999] SC 607; PGSC 22
Kubak v Trawen [2013] PGSC 26; SC 1250

Overseas Case

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

COUNSEL:

Mr. P. Kuman, for the Applicant
Mr. H. Masiria, for the First Respondent
Mr. W. Kaum, for the Second Respondent

29^th June, 2018

1. BY THE COURT: This is the hearing of an application to review two decisions of the National Court (Toliken, J) made on 20^th and 27^th February 2018 in EP No. 70 of 2017. The Petitioner is Anton Francis Yagama. The first Respondent and declared successful candidate is Jimmy Uguro. The second Respondent is the Electoral Commission of Papua New Guinea.
   
2. The Petitioner is the former member for Usino Bundi Open Electorate in Madang Province. At the National Election, the first Respondent was declared elected. Polling took place from 1 July 2017 deferred from 24 June 2017. The declaration of the poll took place on Monday 31 July 2017. The first Respondent had obtained 8, 291 votes. The absolute majority was 7, 858. The Petitioner was runner up with 7, 425 votes.
   
3. On 7 September 2017 the Petitioner filed the abovementioned Petition. No issue is taken with any formality in relation to it.
   
4. A number of the grounds relied upon to invalidate the return of the electoral writ have been abandoned. However, the hearing of the Petition proceeded before Toliken J, scheduled for 12 February 2018.
   

5. Objections to Competency of the Petition were filed by the Respondents. On 15 February 2018, Toliken J dismissed those objections on technical grounds.

6. The first ground of the Petition was titled “Alleged Bribery # 1”.

7. The allegation was that on 22 June 2017, a few days before polling was to begin, Mr. Bennedy Kukuty, “a strong supporter and campaign coordinator for the first Respondent” gave cash to various named electors saying (in Tok Pisin):

“this is for the scrutineers to buy betelnut and smoke during voting time. This money is from the boss Jimmy Uguro. Don’t forget to vote [for] him”.

8. It was not alleged that the first Respondent was present on that occasion nor that he was aware of and/or authorised the giving of the cash or the making of that statement to the named electors.

9. As at 20 February 2018, when Toliken J delivered his ruling, the Petitioner had abandoned the allegation noted as “Bribery # 2”. The first Respondent had then raised the objection to competency referred to in the dismissed Notice of Objection. The Petitioner opposed the grant of leave to raise it claiming the Court was “functus officio” and that application was, therefore, an abuse of process.

10. Toliken J dismissed that submission on the basis that the objection sought to be raised had not been dealt with on its merits. It was not raised with him that such an objection was an interlocutory matter and that, at that point, no final order had been made on the Petition. However, his Honour did point out that interlocutory rulings are open to reconsideration (Chan v The Ombudsman Commission [1999] SC 607; PGSC 22). Following Kubak v Trawen [2013] PGSC 26; SC 1250, his Honour ruled that an Objection to Competency, going to jurisdiction, could be raised at any time before a final decision is made. That is, as his Honour noted, by reason of s. 210 of the Organic Law^[1] which forbids a hearing upon a Petition that is not compliant with ss. 208 & 209 thereof.

11. The Objection to Competency was then heard and ruled upon by His Honour on 27 February 2018. The Bribery # 1 allegation was objected to on the ground that there was no allegation that it was done with the full “knowledge and authority” of the first Respondent. The allegation of “undue influence” was in relation to comments by the first Respondent disparaging the Petitioner and, allegedly, being false, misleading and malicious.

12. His Honour noted the decision of Amet v Yama [2010] PGSC 46; SC 1064 which held that it was mandatory for a petition to plead all material facts relevant to constitute the ground for the relief sought.

13. Fundamental to that process is s. 215 of the Organic Law. That section provides:

“(1) If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

However that is subject to Subsection (3)

(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void –

(a) On the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or
(b) [not relevant]

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.”

14. Although it is in a civil proceeding, an allegation of bribery or undue influence engages ss. 102 and 103 of the Criminal Code Act 1974. In practical terms, as decided in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that will ordinarily require proof of the truth of the accusation on the criminal standard, that is, beyond reasonable doubt.

15. His Honour further acknowledged the direction given by s. 217 of the Organic Law. That is:

“The National Court shall be guided by the substantial merits and good conscience in 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.”

16. That does not render the Briginshaw standard inapplicable. Nor does it relieve a Petitioner of the obligation to plead sufficient material facts, which, if proved, would constitute the proscribed illegal practice.

17. In the case of this Petition, his Honour ruled: [51]

“Hence, having failed to plead that the act of bribery allegedly committed by Bennedy Kukuty was done with the knowledge or authority of the 1^st Respondent as envisaged by section 215(3)(a) of the Organic Law, I rule, therefore, that this ground is incompetent.”

18. His Honour further found that the allegations of undue influence failed sufficiently to particularise material relevant facts to establish that accusation. That finding is not challenged on this review.

19. The Petition was dismissed with costs, releasing the security deposit to be shared by the Respondents towards those costs.

20. On the hearing of this appeal, Mr. Kuman reiterated the submissions which had failed before Toliken J.

21. As to the first of those submissions, namely that his Honour was precluded from adjudicating on the fresh objection to Competency advanced by the Respondents, we are satisfied that the question of competency was open to his Honour to entertain for the reason he advanced.

22. The second submission challenged his Honour’s finding that “knowledge and authority” was an essential allegation which was not pleaded. We agree with his Honour that it was an essential element of the allegation of bribery that the proscribed activity was undertaken by Mr. Bennedy Kukuty with the knowledge and authority of the first Respondent. It was insufficient for that purpose to allege that he was a “strong supporter of” and/or “a campaign coordinator for” the first Respondent. It is not to be inferred from those facts that the first Respondent knew of or authorised the illegal practice allegedly perpetrated by Mr. Kukuty.

23. In those circumstances, his Honour’s decision is not attended by any doubt, we uphold his decision. The Petition stands dismissed accordingly.

24. Costs will follow the event and the security deposit lodged by the Petitioner is to be released and applied as ordered by Toliken, J.
___________________________________________________________
Kuman Lawyers: Lawyers for the Appellant
Fairfax Legal: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent

---

^[1] “Organic Law” is a reference to the Organic Law on National and Local-Level Government Elections