SC1715

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) No. 6 OF 2018
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:
LUCAS DEKENA
Applicant

AND:
NICK KUMAN
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi, Geita & Lindsay JJ.
2018:	27th June
20th September

PRACTICE & PROCEDURE – Objection to Competency of application for review against a National Court’s decision in an election petition  – Leave sought and granted for specific questions – Substantive Judicial Review Application based on grounds not in the exact terms in which leave was sought and granted with totally new grounds added without leave  – Effect of – Application for Review without leave and is therefore incompetent -  Objection to Competency upheld and Application for Review dismissed – Section 155 (2) (b) Constitution – Section 220 Organic Law on National and Local-level Elections. 

Cases Cited:

Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638
Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221
Jacob Sanga Kumb v. Dr Nicholas Mann & Anor (2018) SC1710
Paru Aihi v. Peter Isoaimo (2013) SC1276
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
Anthon Yagama v. Peter Charles Yama (2013) SC1282
Luke Alfred Manase v. Don Pomb Polye (2013) SC1280
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Jim Nomane v. Wera Mori and Electoral Commission (2013) SC1242
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Counsel:

Mr. D. Yariyari, for the Applicant
Mr. A. Kongri, for the First Respondent
Mr. H. Nii, for the Second Respondent

20th September, 2018 

1.	BY THE COURT:	The Applicant, is seeking a review under s.155 (2) (b) of the Constitution of a decision of the National Court dismissing his petition against the First Respondent’s election victory for the Gumine Open Seat in the National Parliament.  That followed the National General Elections last year, 2017.  The relevant election results were met with controversy with two writs surfacing and both men turning up on the first sitting of Parliament after the Elections claiming the same seat. Eventually, the First Respondent was recognized as the duly elected member for the relevant seat.

2.	The Applicant petitioned against the First Respondent’s victory. That petition was heard and dismissed by the National Court for being incompetent. Being aggrieved by that decision, the Applicant utilized s. 155 (2) (b) of the Constitution first to seek leave for a review of the National Court’s decision in view of s.220 of the Organic Law on National and Local-level Government Elections (Organic Law on Elections) prohibiting appeals.   Leave was granted following which the Applicant filed the Review Application, now before us. 
 
3.	The Respondents object to the competency of the Review Application. The main ground for the objection is that the Application for Review has been filed without leave of this Court in that:

(a)	Leave was not sought and granted for Ground 1 of the application for review;

(b)	Leave although sought was not granted for Grounds 2 and 3 of the application for review; and

(c)	Grounds 4, 5, and 6 are not consistent with the grounds for which leave was sought and granted.

4.	Ground (b) was effectively abandoned in the Respondents written and oral submissions and instead put the relevant grounds of the objection under ground (c).

Relevant Issues for determination

5.	The main issue for this Court to determine is whether the Application before the Court is incompetent.  An answer to that question is dependent on answers to the following questions:

(1)	Is an applicant in a judicial review application under s. 155 (2) (b) of the Constitution at any liberty to add in his or her application grounds for which leave was not sought and obtained?

(2)	Once leave for judicial review under s. 155 (2) (b) of the Constitution is granted, is an Applicant entitled to include grounds that are not consistent with the grounds for which leave was sought and granted? 

Relevant factual background

6.	These are legal questions. But to appreciate the context in which the issues have arisen, it is necessary to make a quick mention of the relevant facts.  The facts are not in any serious contest.  As already noted, the proceedings arise out of a controversial election outcome which saw both the Applicant and the First Respondent turning up in the first sitting of Parliament claiming the same seat under two different purported writs. Eventually, the First Respondent obtained official recognition and endorsement as the winner of the relevant seat in Parliament.  That resulted in the Applicant filing an election petition against the First Respondent. Unfortunately, that petition got dismissed for being incompetent for failing to meet the requirements of s. 208 of the Organic Law on Elections.  The National Court was of the view that, the Applicant failed to properly plead the factual foundation for his petition.

7.	Being aggrieved by that decision, the Applicant filed an application for leave for Judicial Review on the following grounds:

 “Undue Influence 

2.1	The Learned Judge erred in fact and law in:

a)	Concurring with the First Respondent’s submission at Paragraph 22 of the decision that “from a perusal of the paragraphs of the petition comprising grounds one and two, there are no acts of undue influence properly pleaded or at all... there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud prevented or obstructed in the free exercise of an elector’s  right to vote “ and concluded that “[this appears to reflect a misunderstanding of s.102  of the Criminal Code Act]” when the petition had in fact pleaded two instances of allegations of “undue influence “,  the first one was having occurred at the counting centre (Paragraph 10 to 15 of the Petition) and the second one as having occurred during polling at Biligie Primary School (Paragraphs 23 to 34 of the Petition).

b)	Contradicting himself by ruling that “there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud is prevented or obstructed in the free exercise of an elector’s right to vote. This appears to reflect a misunderstanding of s.102 of the Criminal Code Act” when allegations of “undue influence “pleaded under paragraph 23 to 34 of the Petition on the face of the facts clearly satisfied his own interpretation of s.102 of the Criminal Code Act set out in the ruling.

c)	Not applying his own interpretation of s.102 of the Criminal Code Act to the allegation of “undue influence” pleaded in Paragraph 23 to 34 of the Petition otherwise had he done so he would have made a positive finding on the face of the facts pleaded and allowed it to proceed to trial. 

c)	Failing to address the competency or otherwise of the pleadings of the allegations of “undue influence” pleaded under paragraph 23 to 34 of the petition when he ruled that “ there is only reference to undue influence affecting counting of votes as distinct from whether a person by force or fraud is prevented  or  obstructed in the free exercise of an elector’s right to vote” when  the facts pleaded demonstrated that the First Respondent in person by use of force and threats prevented and obstructed the free exercise of the rights of the whole voting population at Biligie Primary School Ward 8 hence the ballot box for this polling station was set aside during counting.

e)	That his failure to apply his own interpretation of s.102 of the Criminal Code Act to the allegation of “undue influence” pleaded in Paragraph 23 to 34 of the petition affected and compounded his error when he ruled that “to the extent that paragraphs of the petition for grounds one and two are supposed to contain any pleadings on the grounds of undue influence, I find that the requirements of s.208(a) of the Organic Law have not been met. 

Section 215(1) of the Organic Law on National Government and Local Level Government Elections (“Organic Law”)

2.2	The Learned Judge erred in fact and law in:

a)	Failing to address the allegation of “undue influence” pleaded under Paragraphs 23-34 of the Petition pursuant to s.215(1) of the Organic law when he erroneously dismissed the allegations by applying s.215 (3) of the Organic Law; and

b)	Erroneously applied the allegation of “undue influence” pleaded under Paragraphs 23-34 of the Petition to s.215 (3) of the Organic Law when in fact the petition pleaded that this allegation came within the meaning of s.215(1) of the Organic law in that the First Respondent was alleged to have committed the alleged offence of “undue influence” himself; and 

c)	Failing to consider the facts pleaded in paragraphs 23-34 of the Petition which set out the act of “undue of influence” which the First Respondent committed which were within the meaning of s.215 (1) of the Organic law.

Illegal Writ

2.3	The learned Judge erred in fact and law in:

a)	When he dismissed the petition after reaching the wrong conclusion that “ the court is unable to properly determine whether the results of the election was likely to be or was affected” by  placing his entire reliance on a false and unfounded rational that “the petitioner had failed to plead the results on which the First Respondent was declared the winner, either in the facts pleaded in paragraphs one to nine of the petition of (sic) under the three individual grounds” when the petition was fundamentally premised on the basis that the Applicant was the winner of the election and the Applicant’s winning result were pleaded at Paragraphs 4 and 40 of the Petition.

b)	Erroneously finding that the applicant failed to plead the required “winning margin” absolute majority and total number of allowable ballot papers that remained in count after the final exclusion” in contravention of s.208 (a) of the Organic Law when in fact the applicant pleaded the requirements of s.208 of the Organic Law at Paragraph 4 and Paragraph 40 of the Petition stating that the Final Election Result which saw the Applicant secure the absolute majority and be declared the winner by the Second Respondent.

2.4	The learned Judge erred in fact and in law by failing to:

a)	make a determination on whether the allegation of “illegal declaration using an illegal Writ” as pleaded from Paragraphs 36 to 64 of the Petition were competent or otherwise when he dismissed the Petition for being incompetent and when parties addressed that allegation in their respective submissions; and 

b)	provide any reasons for not considering and making a ruling on whether the allegation of “illegal declaration using illegal writ” as pleaded from paragraphs 36 to 64 of the Petition were competent or otherwise when he dismissed the Petition for being incompetent and when parties addressed that allegation in their respective submissions.

2.5	The learned judge erred in fact and in law in dismissing the Petition in whole for being incompetent, costs of and incidental to the Petition to be paid to the Respondents and for the security costs to be shared by the Respondents when:

a)	Allegation of “undue influence” pleaded under Paragraphs 23-34 of the Petition were not determined to be incompetent and still intact which should have been allowed to proceed to trial; and

b)	Allegation of “illegal declaration using an illegal Writ” as pleaded from Paragraphs 36 to 64 of the Petition were not determined to be incompetent and still intact which should have been allowed to proceed to trial.

2.6	The learned Judge erred in fact and law when he failed to make a determination on whether  the allegation of the” illegal declaration and illegal writ”  as pleaded  from paragraphs 36 to 64 of the Petition was competent  or otherwise therefore this ground  was intact and should have been allowed to proceed  to trial to determine the important issue whether the Applicant’s right under s.50 of the Constitution to take up elective public office as a consequence of his election win and declaration and signing of the only valid writ for the Gumine Open Seat was breached.”
 
8.	The Chief Justice, Sir Salamo Injia sitting as a single Judge of the Supreme Court heard and decided to grant the Applicant’s application for leave on the above grounds.  Relevantly, the Chief Justice decided to grant leave in a verbal decision in the following terms:

“So it is my view that an important point of law that is not without merit has been the subject of this in relation to this particular decision and there are serious issues arising that the trial judge erred in dismissing this particular ground as having no basis. That is sufficient for me to grant leave for review. I do not need to deal with the other issues that have been raised before me. Those other issues or grounds that have raised those issues are matter of consequence having granted leave to review the decision based on this particular point as a matter of consequence, the other grounds in the review will (sic) to be allowed to proceed to be argued in the substantive review.”

9.	In his substantive Review Application, the Applicant has pleaded the grounds for the Review in the following terms:

“1.	With regard to the illegal polling at Keru Village, the learned Judge erred in not making any ruling on the effect of non-compliance of Section 43 of the Organic Law. The facts which supported this ground were sufficiently pleaded in paragraphs 10 and 11 of the Petition. The non-compliance of Section 43 of the Organic Law on the National and Local Level Government Elections (Organic Law) had the effect of invalidating all of the votes cast at Keru Village. The National Court erred in the exercise of its jurisdiction or alternatively, in the exercise of its discretion by not considering this ground.

2.	With regard to the act of undue influence at Keru Village, the learned Judge erred by misapplying the law to the ground of undue influence and the facts pleaded to support this ground. The applicant pleaded the acts of undue influence which resulted in admitting the ballot box and votes for Keru Village into scrutiny is not an offence covered by Section 102 of the Criminal Code but is more appropriately covered by Section 215(3) of the Organic Law. The National Court erred in the exercise of its jurisdiction or alternatively, in the exercise of its discretion by misapplying the law to the facts pleaded in support of this ground 

3.	With regard to the act of undue influence at Biligie Village, the learned Judge  erred in his findings that the Applicant did not plead facts that satisfied the requirements  of Section 102 of the Criminal Code and he consequently erred  that the requirement of Section 208(a) of the Organic Law was not met, when the Applicant at Paragraphs 23-35 of the Petition had sufficiently pleaded and identified the First Respondent leading other armed men to commit the act of undue influence  as envisaged by Section 215 (1) of the Organic Law and Section 102 of the Criminal Code. The National Court had no jurisdiction or alternatively erred in the exercise of its discretion by misapplying the law, when the facts pleaded clearly demonstrated that the free exercise of an elector’s right to vote had been denied. 

4.	The learned Judge erred in finding that the Applicant failed to plead the facts on which the First Respondent was declared the winner when in fact the Applicant’s Petition is founded on the premise that at the conclusion of counting of votes and after quality checks, the Applicant was produced as the winner of the Gumine Open Electorate and was duly declared winner by the authorized officials of  the Second Respondent.

5.	The learned Judge erred in his findings by stating the National Court was unable to determine how the election result was affected or is likely to be affected by the illegal practises as the Petitioner  failed to plead “the results on which the First Respondent was declared the winner, either in the facts pleaded in paragraphs one to nine of the petition or under the three individual grounds”, when:

(i)	The facts were sufficiently pleaded in paragraphs of 39 to 41 of the Petition in terms of the results on which the Applicant was declared the winner of the election; and 

(ii)	The facts were sufficiently pleaded at paragraphs of 42 to 46 of the Petition after the Applicant signed the only legally issued Writ in accordance with the Organic Law, which was not disputed by the Respondents’ and accepted by them. The National Court had no jurisdiction or alternatively erred in the exercise of its discretion by not considering the facts pleaded which highlighted the illegal practises that would have invalidated the election result. Those issues are more appropriately a matter for trial.

6.	The learned Judge erred in finding the Petitioner failed to show how the use of an illegal writ to declare the First Respondent would have affected or was likely to affect the election result. The facts were sufficiently pleaded in paragraphs 39 to 65 of the Petition. The National Court had no jurisdiction or alternatively erred in the exercise of its discretion in that the National Court should not have entertained the Respondents submissions as to competency.” 

10.	The Respondents filed objections to the competency of the Review Application.  The main basis for the objections is as set out at paragraph 3 above.

Principles governing objections to competency of proceedings 

11.	Before dealing with the issues before us, we consider it important that we should remind ourselves and allow ourselves to be guided by the relevant principles of law on objections to competency of proceedings before this Court.  In the dissenting judgment in the matter of Michael Kuman & Ors v. Digicel (PNG) Ltd, Kandakasi J., discussed and summed up the relevant principles of law in the following terms:

“3.   Objections to competency of appeals, applications for leave to appeal and references and or other applications or process brought to the Supreme Court is a well-trodden road in Papua New Guinea. The principles governing such objections are well settled. I note as did the Supreme Court in Talibe Hegele v. Tony Kila (2011) SC1124 (per Cannings, David and Sawong JJ), the “law on the scope and purpose of an objection to competency of an appeal was reviewed by the Supreme Court in Turia & McKay v. Nelson (2008) SC949, per Kirriwom, Cannings, Yagi JJ. These have been elaborated and complimented upon by other decisions.  According to these decisions, an objection to competency would properly be in Court if it raises issues that:

(1)	draws the Court’s attention to a question of jurisdiction: See Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v. Gabriel Nelson (supra) and Talibe Hegele v. Tony Kila (supra);

(2)	there are serious threshold issues concerning legality or viability of the appeal: See PNG Forest Authority v. Securamax Ltd (2003) SC717;

(3)	leave has not being sought and obtained separately in cases where some of the grounds of appeal require leave and some do not: See Yakham & The National v. Merriam & Merriam (1997) SC533, per Amet CJ, Kapi DCJ and Los J;

(4)	an application for leave or notice of appeal’s ground is false, misleading or is vague or not adequately stating the nature of the case, the questions involved and the reasons why leave should be given: See PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456, per Batari, David and Makail, JJ; Gigmai Awal v. Salamo Elema [2000] PNGLR 288, per Amet CJ, Kapi DCJ and Sevua J; To validly plead the grounds they must briefly state but:

(a)	specifically make grammatical and legal sense and be intelligible;

(b)	if it is alleged that a judgment is against the evidence or the weight of the evidence, the notice must specify with particularity the ground relied on to demonstrate that; and

(c) 	if it is alleged that the judgment is wrong in law, the notice must specify with particularity the ground relied on to demonstrate the specific reasons why the judgment is alleged to be wrong in law: See Jimmy Lama v. NDB Investments Ltd (2015) SC1423, per Cannings, Collier and Geita JJ;

(5)	an application for leave or notice of appeal has being filed outside the 40 days period allowed by s. 17 of the Supreme Court Act without leave of the Supreme Court: See The State v. John Tuap (2004) SC765, per Sawong, Mogish and Cannings JJ;

(6)	an application for leave includes questions of law or fact not raised in the National Court: See Chief Inspector Robert Kalasim v. Tangane Koglwa (2006) SC828, Kapi CJ, Injia DCJ and Hinchliffe J;

(7)	an applicant for leave does not have sufficient interest in the subject matter of the National Court’s decision that it wishes to appeal against: See Porgera Joint Venture v. Joshua Siapu Yako (2008) SC691, per Kapi CJ, Kirriwom and Lay JJ;

(8)	the notice of appeal raises factual questions for which leave had not been first sought and obtained separately: Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431, per Gavara-Nanu, David and Murray JJ;

(9)	an application for leave has been filed unnecessarily, that is, where the objecting party points out that leave to appeal was not actually required and leave is being sought. Earlier decisions of the Court held this could not be a valid ground to object: See Boyepe Pere v. Emmanuel Ningi (2003) SC711, per Los, Kandakasi and Mogish JJ; Oio Aba v. MVIL (2005) SC779, per Injia DCJ, Sawong and Lay JJ; The State v. John Talu Tekwie (2006) SC843, per Salika, Lay and Gabi JJ. This later changed to make it a valid ground for objection to competency: See Paul Bari v. John Raim (2004) SC768, per Salika, Mogish & Cannings, JJ; Timothy Neville v. IPBC (2012) SC1193, per Salika, DCJ and Batari J. and Rea Joseph v. Manau Sereva (2011) SC1152, five-member bench comprising of Cannings, Manuhu, Gabi, Hartshorn and Yagi JJ;

(10)	the appeal, leave or review or an application or a process before the Court fails to strictly comply with the mandatory procedures and requirements of the Supreme Court Rules: See National Capital Ltd v. Loi Bakanio (2014) SC1392, per Injia CJ, Gavara-Nanu and Kawi JJ; Dr Arnold Kukari v. Don Polye & Ors (2008) SC 907, per Kapi CJ, Gavara-Nanu and Cannings JJ.; Ipili Porgera Investments Ltd v. Bank South Pacific Ltd  (2007) SC1322; Felix Bakani v Rodney Daipo SC659; Haiveta v. Wingti (No.2) [1994] PNGLR 189 and Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112).  Any such defect cannot be fixed by any amendments as the originating process is not properly before the Court. This is not an exercise in the court nitpicking, but is something that goes into the validity of the process: See In the Matter of Section 19 of The Constitution of the Independent State of Papua New Guinea – Reference by Fly River Provincial Executive (Ref. No. 3 of 2006) (2007) SC917; Special Constitutional Reference No. 4 of 1987; Re Central Provincial Government and National Capital District Interim Commission [1987] PNGLR 249 and Special Reference by Morobe Provincial Executive (2010) SC1089.

4.    It is also clear that, the above list is not exhaustive. It simply shows the types of grounds that would properly be before the Court raising questions of the Court’s jurisdiction to deal with a matter brought before it.  At the same time, it is clear that, following grounds of objection are not proper grounds for taking an objection as to the competency of a matter before the Court:

(1)	That an application for leave to appeal was not served on the respondent: See Gigmai Awal v. Salamo Elema (supra), where the Supreme Court pointed out that the Rules do not require an application for leave to appeal to be served on other parties;

(2)	That the proposed grounds of appeal referred to in an application for leave to appeal, lack merit. This is to say, where an objection raises an argument around the grounds of appeal having any merit or are not likely to succeed is not a proper ground to object because such arguments can only be raised at the hearing of the substantive matter. See The State v. John Talu Tekwie (2006) SC843; and PNG Forest Authority v. Securimax Ltd (2003) SC717.”

12.	His Honour then concluded:  

“…The obvious weight and import of all of these decisions is this.  A notice of appeal, an application for leave to appeal or any application or a process brought before the Supreme Court must strictly meet the requirements of the Supreme Court Act and Supreme Court Rules in order for such a process to be properly before the Court.  A failure to strictly meet these requirements amounts to incompetence by reason of which, the process could be dismissed.”  

13.	As his Honour also noted, the only case that has departed from the above well-established position at law was the decision in Coca Cola Amatil (PNG) Ltd v. Yanda.  In that case, the Court essentially said, as long as there is one ground of appeal that invokes the Courts’ jurisdiction, the notice of appeal could safely proceed to a hearing.    We agree with his Honour saying:

“That judgment with respect, did not consider the long line of cases his Honour referred to.  The long line of cases I referred to and the principles they stand for do two things.  First, they govern the issue of how a process can properly or competently invoke the Supreme Court’s jurisdiction. Having one ground of appeal or a process before the Supreme Court that invokes the jurisdiction of the Court is one critical aspect. The other also critical aspect is the need to come to the Supreme Court in the correct manner and form, at the correct time and by the correct person or parties.  Secondly, they make it clear that, even if a person gets everything right but for one requirement such as the form, timing, not sufficiently and properly pleading a ground, or raising an issue not raised in the Court below, or seeking leave when not required, renders the appeal or the processes before the Court not properly before the Court. Instead, it would be incompetent and could be dismissed on that basis.  The decision in Coca Cola Amatil (PNG) Ltd v. Yanda (supra) does not address these factors and clearly articulate why all the years of making through the various decisions of the Supreme Court must now be abandoned.   Clearly, that decision does not with respect, offer any good reason to depart from the well-trodden road of objections to competencies of appeals and other process before the Supreme Court and in particular, the principles that have been developed and applied throughout the years to the present. In these circumstances, I see no reason to depart from the long-established practice and procedure in our jurisdiction.  The principles they stand for are still sound and are thus relevant and applicable. 

14.	In the recent judgment of this Court in the matter of Jacob Sanga Kumbu v. Dr Nicholas Mann & Anor, his Honour, added that the principles governing a departure from earlier decisions of the Supreme Court are also well settled.   For an authority on point, his Honour referred to the Supreme Court decision in Paru Aihi v. Peter Isoaimo.  There his Honour was one of the three Judges who constituted the Court said the following with the agreement of the other members of the Court:

“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.”

15.	Then after a detailed consideration and discussion of the relevant cases on point especially those discussing and bringing out the relevant principles governing such departures his Honour summarized the principles as follows:

“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 (sic) 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.”

16.	And then concluded:

“These are the relevant and applicable principles of law that apply and governing (sic) any decision to depart from an earlier decision of this Court.   Much care and caution must be exercised with these principles carefully considered and applied. A decision to depart must be arrived at deliberately by applying these principles for consistency, certainty and predictability in the law for the guidance of society.”
17.	The other members of the Court in the Jacob Sanga Kumbu matter, their Honours, Yagi and Bona JJ. fully agreed and endorsed this statement of the principles of law.  We are of the same view.

18.	The case before us is centred around the question of leave to raise all the grounds for review.  Hence, we need to consider and apply the relevant principles specifically on the question of leave before review. The law as discussed in the foregoing is clear.  Leave must be specifically sought in the case of a review application under s. 155 (2) (b) of the Constitution.  This is usually done by a proper application in the proper and correct form clearly setting out the grounds upon which the proposed review application will be perused if leave is granted.  In the exercise of the discretionary power vested in it, the Supreme Court would decide in any of three ways, dismiss the application, grant leave for only part of the grounds proposed for review or grant leave for review on all the proposed grounds.  
  
19.	The leave process is not a mere formality.  Instead, it is a necessary filtering process to allow only meritorious and important points of law or fact to be raised in the highest Court of the land, the Supreme Court.  Hence, it is a serious matter in which a party aggrieved by a decision of the National Court pleads for permission to have the decision judicially reviewed by the Supreme Court because he or she is raising a serious question of law or fact which has merit.  In election petition cases, s.220 of the Organic Law on Elections specifically prohibits appeals. That being the case, a party can only seek leave of the Supreme Court for review on grounds that would not constitute an appeal but a review as is known in the administrative law area.   This is why, in addition to meeting the test of an applicant demonstrating a meritorious and important issue on a point of law or fact to be determined if leave is granted, the application must also demonstrate he or she is likely to succeed.  Surely, the leave Court is not determining the merits of the substantive application. Instead, the leave Court should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties.  There is a large body of judgments of the Supreme Court such as the decisions in Anderson Agiru v. Aluago Alfred Kaiabe; Anthon Yagama v Peter Charles Yama; Luke Alfred Manase v. Don Pomb Polye, to name a few which speak loudly in these terms.

20.	If leave is granted, the applicant would be entitled to proceed to file his or her substantive application.  This must be strictly in accordance with terms upon which leave was granted and most importantly only on the grounds for which leave was first sought and granted.  The decision granting leave for judicial review is not an open license for an applicant to plead grounds of the review as an applicant pleases.  An applicant is under an obligation to plead in his or her substantive review application only the grounds for which leave was sought and specifically granted. Any departure from that would render the review incompetent.  This in our view is most critical in an election petition.  Here is why. Section 220 of the Organic Law on Elections makes a decision of the National Court on an election petition final.  Accordingly, it prohibits appeals. The only way around that is by judicial review under s. 155 (2) (b) of the Constitution. But that is not as of right but with leave of the Supreme Court as required by Order 5, r. 9 of the Supreme Court Rules. 

21.	In the case before us, learned counsel for the Applicant with respect, was not able to assist the Court with any submissions which neither acknowledges the existence of case law on point nor an argument against their application to the present case.  Learned counsel for the Applicant has also failed to assist this Court with submissions on how his client’s case meets the requirements of the law and is therefore competent.

First Issue – Adding grounds for which leave was not sought and obtained

22.	With the relevant background facts and the relevant principles of law on objections to competencies in mind, we turn to a consideration and determination of each of the issues presented, starting with the first issue first. The first issue concerns Grounds 1 which the Respondents point out was not a ground included in the grounds for which leave was sought in the application for leave.  The Applicant whose duty it was to pin point where in his grounds for the leave application this ground is included, failed to do so.   Our perusal of the grounds for the leave application as against Ground 1 of the review application fails to register this ground in the grounds for which leave was sought and granted.  Clearly, therefore the Applicant has included a ground for review without first seeking and securing leave of this Court to include this ground.  Consequently, this renders the Review Application before us incompetent.

Issue 2 – Grounds for review inconsistent with grant of leave

23.	Turning then to the second issue, we note this issue concerns the remaining grounds for review namely, Grounds 2 – 6.  The argument here by the Respondents is that, these grounds are inconsistent with the grounds as were pleaded in the leave application and the subsequent grant of leave.  They vary both in substance and in form or wording and give rise to many questions for example, are these the grounds for which leave was sought and granted, or would leave have been granted if these were the proposed grounds for review.

24.	A close examination and comparing of the proposed grounds in the leave application and the ground for the review clearly marks a departure from the grounds for which leave was sought and granted.  The following is most apparent:

(a)	the form and structure of each of the questions are different;
(b)	the wording of each of the grounds are different;
(c)	the pleadings of each of the grounds in the leave application are more elaborate while the pleadings of the grounds for the review are brief.

25.	These factors make it hard for anyone to say without any difficulty that the grounds as pleaded in the substantive review application are those proposed in the leave application and leave was granted.  It will instead require a careful reading and comparing of each of the grounds in the substantive review as well as those set out in the leave application to determine if they are the same grounds for which leave was sought and granted.

26.	As the Respondents submit, the ideal way to proceed following the grant of leave would have been for the Applicant to import into the grounds for review the grounds as set out in the leave application per verbatim, or word for word. That was the easiest thing to do.  This, the Applicant failed to do. In so doing he effectively introduced totally new grounds for the substantive review application for which, strictly speaking, leave was not sought and granted in the terms of the grounds pleaded in the substantive review application. This renders the application for review incompetent.  This cannot be cured by any amendment or a striking out of each of the offending grounds, which would in any case leave the Review Application without any ground to stand on.

27.	It has been repeatedly emphasised by both the Supreme and National Courts that challenging an election outcome is a serious matter.  Hence, the law through the Organic Law on Elections have laid down requirements which must be strictly met before a petition can be permitted to go to trial. The same seriousness attends a challenge to a decision on an election petition.  A failure to meet the relevant requirements renders a petition or a judicial review incompetent.  There are many cases led by the leading decision of the Supreme Court in Delba Biri v. Bill Ninkama and many cases such as the one in Jim Nomane v. Wera Mori and Electoral Commission and Sir Arnold Amet v. Peter Charles Yama and others which emphasise this point. 

28.	It may well be the case that, the factual background or circumstances leading to an election petition may be serious and does require a close examination of the relevant facts and a decision on its substantive merits both at the trial and if need be, at the judicial review level.  However, this does not automatically entitle a petitioner, or a person aggrieved by a decision of the National Court to come to the highest Court of the land without adherence to the requirements of the law.  An important onus therefore, rests upon a petitioner or an applicant to get their facts and pleadings right and meet all the procedural and substantive law right in order that the jurisdictions of the Courts are properly and correctly invoked.  This is necessary for the rule of law to prevail and ensure order and certainty in the law.  A failure to observe and properly discharge this onus has resulted the dismissal of many otherwise good petitions and in the process more and more warnings have been issued.  A failure to take note and act appropriately by petitioners or applicants in review applications constitutes an invitation for objections by respondents to such process and for the Courts to dismiss the offending petition or review application. This unfortunately will have to be the result in this case for the application for review being incompetent.

Decision and orders of the Court

29.	The foregoing discussions clearly demonstrate that the Applicant did seek the required leave of this Court for review.  The Court did grant him leave but that was for grounds other than those stated in the substantive Review Application.  Consequently, the Applicant has come to this Court without first seeking and securing leave in terms of the grounds pleaded in his application for review.  This renders the Review Application before the Court incompetent and it must therefore be dismissed. Accordingly, we make the following orders:

(1)	The Respondents Objection to Competency of the Review Application is upheld;

(2) 	The Judicial Review Application in this matter is dismissed for being incompetent.

(3)	The decision and orders of His Honour Hartshorn J in EP 59 of 2017 dated 12th February 2018 is affirmed.

(4)	The Applicant shall pay the Respondents’ costs, to be taxed if not agreed.

________________________________________________________________
Kongri Lawyers:		Lawyers for the First Respondent/Objectioner
Harvey Nii Lawyers: 	Lawyers for the Second Respondent/Objectioner
DTY Lawyers: 		Lawyers for the Applicant/Respondent