Philip v Makiba [2018] PGSC 63; SC1725 (1 November 2018)

SC1725

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 25 OF 2018

TUKUYAWINI PETER PHILIP
Applicant

V

MANASSEH MAKIBA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J, Makail J, Neill J
2018: 29 October, 1 November

PRACTICE AND PROCEDURE – objection to competency of application for review of decision of National Court to dismiss an election petition – whether the application stated the grounds relied upon in support of the review, as required by Order 5, Rule 19(c) Supreme Court Rules 2012 – whether the application raised issues not raised in the National Court.

A respondent to a Supreme Court review application filed a notice of objection to competency of the application. The application was for review of a decision of the National Court to dismiss an election petition on competency grounds. The objection to competency was based on two grounds: (1) the application for review failed to state briefly but specifically the grounds relied upon in support of the review, as required by Order 5, Rule 19(c) of the Supreme Court Rules 2012; and (2) the application for review raised legal issues that were not argued before or considered by the primary Judge, which could not be relied on in the Supreme Court.

Held:

(1) None of the three purported grounds of review alleged error by the trial judge, so none of them was a ground of review. Not only was there a breach of the requirement of Order 5, Rule 19(c) that the grounds be stated ‘briefly but specifically’, there were no grounds at all. Ground of objection 1 was sustained.

(2) Ground of objection 2 was not a proper ground of objection. It was raising an issue that does not go to the jurisdiction of the Court. Ground 2 was dismissed.

(3) Ground of objection 1 was a sufficient basis on which to uphold the objection to competency. The application for review was dismissed for being incompetent. Costs followed the event.

Cases cited

The following cases are cited in the judgment:

Kekeno v Undialu (2015) SC1428
Philip v Makiba and Electoral Commission (2018) N7299

OBJECTION

This was an objection to competency of an application for review of a decision of the National Court, dismissing an election petition.

Counsel

J Haiara, for the Applicant
M Nale & L Evore, for the First Respondent
L Okil, for the Second Respondent

1 November, 2018

1. BY THE COURT: The first respondent, Manasseh Makiba, objects to the competency of an application for an election petition review filed by the applicant, Tukuyawini Peter Philip.

2. The application for review relates to the decision of the National Court, constituted by Nablu J, dismissing an election petition by the applicant that challenged the election of the first respondent as member for Komo-Magarima in the 2017 general election. Justice Nablu’s decision was delivered at Waigani on 11 April 2018 in EP No 8 of 2017. Her Honour dismissed the petition upon upholding an objection to competency of the petition, which was based on the ground that the two attesting witnesses had stated their addresses incorrectly (Philip v Makiba and Electoral Commission (2018) N7299).

3. On 16 July 2018 Chief Justice Injia, sitting as a single Judge of the Supreme Court, granted the applicant leave, under Order 5, Rule 9 of the Supreme Court Rules 2012, to file the application for review.

4. On 20 July 2018 the applicant filed the application for review of Nablu J’s decision. It is that application that is the subject of the objection to competency.

5. On 6 August 2018 the first respondent filed a notice of objection to competency of the application, then on 13 September 2018, with leave, filed an amended notice of objection to competency. It is the amended notice of objection to competency, filed under Order 11, Rule 28(a) and Order 7, Rule 15 of the Supreme Court Rules 2012, that we are now determining.

GROUNDS OF OBJECTION

6. There are two:

(1) the application for review failed to state briefly but specifically the grounds relied upon in support of the review, as required by Order 5, Rule 19(c) of the Supreme Court Rules 2012; and

(2) the application for review raised legal issues that were not argued before or considered by the primary Judge, which could not be relied on in the Supreme Court.

GROUND 1: FAILURE TO STATE GROUNDS

7. The first respondent, supported by the second respondent, the Electoral Commission, argues that the application for review fails to meet the requirements of a valid application for review prescribed by Order 5, Rule 19 of the Supreme Court Rules 2012, which states:

The application for review shall:-

(a) state that the application lies with leave and state the date on which such leave was granted; and

(b) state whether the whole or part only and what part of the judgment is being reviewed; and

(c) state briefly but specifically the grounds relied upon in support of the review; and

(d) state what judgment, order or relief the applicant seeks in lieu of that decision reviewed; and

(e) be in accordance with Form 5B; and

(f) be signed by the applicant.

8. In particular the argument is that the application for review fails to “state briefly but specifically the grounds relied upon in support of the review”, as required by Rule 19(c).

9. To test the argument we refer to part 5 of the application for review, which states:

GROUNDS

The applicant raised 6 inter-related issues of which leave was granted only on 3.2 and 3.3 which were allowed to proceed to review. The two grounds stated believe are these two issues which are the grounds of review as allowed by the Chief Justice when granting leave to review on 13^th July 2018. [sic]

The first issue (3.2) which constitutes the first ground of review is “(3.2) whether Section 208(d) of the Organic Law on National and Local-level Government Elections is sufficiently and adequately complied with when two attesting witnesses have given their names, their occupations, their addresses and signed the petition”.

The second issue is “(3.3) whether the learned judge empowered by Section 208(d) of the Organic Law to enquire into the varsity of an attesting witnesses “addresses”, “signatures”, “names” and “occupations” by calling evidence”. [sic]

10. The respondents argue that what is stated above are not grounds at all, but a statement of issues likely to arise at the hearing of the application for review. The respondents rely on the decision of the Supreme Court (Batari J, Yagi J, Makail J) in Kekeno v Undialu (2015) SC1428, to explain what needs to be included in a ground of review for it to be a proper ground, and comply with Rule 19(c).

11. In Kekeno v Undialu an objection to competency of an election petition review was upheld on the basis that the application for review failed to state the grounds relied on in support of the review as required by Order 5, Rule 19(c). The Court held:

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.

12. We endorse those statements of principle and by way of emphasis, restate them as follows:

• A ground of review must be brief and 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, the 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 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 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.
  

13. The first of the above points is critical: for a statement to be a ground of review it must allege error. Without an allegation of error by the trial judge – error of fact or error of law or some other legally recognisable error – there is no ground of review.

14. When Mr Haiara, for the applicant, responded to the respondents’ submissions, he could not and did not make any effective response.

15. In this case none of the three statements under the heading “GROUNDS” alleges error. Paragraph 5.1 is simply an explanation of how the applicant was granted leave to argue two out of six issues. It is not a ground of review. Paragraph 5.2 simply sets out an issue likely to arise at the hearing of the review. We agree with the respondents’ submission that statement of an issue is not the same thing as a ground of review. Likewise with paragraph 5.3. It states (using poor grammar, we must note) an issue likely to arise at the hearing of the review. It is not a ground of review.

16. As none of the three purported grounds allege error by the trial judge, none of them is a ground of review. So not only has there been a breach of the requirement of Rule 19(c) that the grounds be stated ‘briefly but specifically’, there are no grounds at all.

17. We uphold the first ground of objection to competency. We find that, without any grounds, there is no application for review properly before the Court. This is a matter going to the jurisdiction of the Court, which has not been properly invoked. For this reason alone the entire application for review must be dismissed.

GROUND 2: RAISING ISSUES NOT RAISED IN THE NATIONAL COURT

18. This is not a proper ground of objection. It is raising an issue that does not go to the jurisdiction of the Court. It is a submission that could have been made to the Court in the event that the application for review were proceeding to hearing. But it is not. Ground 2 is dismissed.

CONCLUSION

19. We uphold the first ground of objection and dismiss the second. Upholding the first ground means that the application for review will be dismissed.

ORDER

(1) The objection to competency is upheld.

(2) The whole of the proceedings, SC Rev (EP) No 25 of 2018, is dismissed.

(3) The applicant shall pay the respondents’ costs of the proceedings on a party-party basis, which shall, if not agreed be taxed.

Judgment accordingly.
________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Applicant
Jema Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent