Chan v Schnaubelt [2018] PGSC 70; SC1737 (2 November 2018)

SC1737

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO.16 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:
J BYRON CHAN
Applicant

AND:
WALTER SCHNAUBELT
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2018: 13 June, 9 & 23 August

ELECTION PETITION – Judicial review – application for leave to review – discretion principles and grounds errors of law and facts – higher standard of scrutiny applied – Applicant failed the test – application refused.

Cases Cited:

Erie Ovako Jurvie v Bony Oveyara [2008] SC935
Ludwig Patrick Shulze [1998] SC 572
Kelly Kilyali Kalit v John Pundari & Electoral Commission [1998] PGSC39 SC569
Anton Yagama v Peter Charles Yama [2013] SC1244
Dick Mune v Anderson Agiru [1998] SC 590
Philip Kikala v Electoral Commission [2013] PG SC 48 SC 1295
Sandy Talita v Peter Ipatas [2016] SC1603
Ken Fairweather v Jerry Singirok [2013] SC1293
Sir Arnold Amet v Peter Charles Yama [2010] SC1064
Sam Tei Abal v Robert Sandan Ganim [2013] N5676
Ludger Mond v Jeffery Nape & Others [2003] N2318
Daniel Bali Tulapi v Aiya James Yapa Lagea [2013] N5235
Mathias Karani v Yawa Silupa [2003] N2385
Jim Nomane v Wera Mori [2013] SC1242
Aide Ganasi v Sali Subam [2013] SC1277

Counsel:

Mr. Greg Shepherd, for Applicant
Mr. A. Kipa, for First Respondent
Mr. A. Ninkama, for Second Respondent

2 November, 2018

1. DINGAKE J: This is an application for leave to review the decision of the National Court, presided over by the late Justice Foulds made on 16^th May, 2018, in the election proceeding entitled EP No. 7 of 2017; Byron Chan v Walter Schnaubelt and Electoral Commission, in which the Court dismissed the applicant’s election petition on the grounds of incompetency.
2. The material facts for this application are that the applicant filed the above proceedings against the respondents, challenging the election of the first respondent as the Member for the Namatanai Open Seat.
3. The petition was based on alleged grounds of illegal practice and bribery by the first respondent.
4. The application for leave to review is based on wide ranging grounds, specified in the application for review, filed on the 28^th of May, 2018, Document 22, filed of record, all of which I have taken into account and it is not necessary to set them out in any detail.
5. The respective positions of the parties can be crisply summarized. The applicant’s argument is that the National Court fell into error when it held that the applicant did not plead the necessary facts as required by Section 208(a) of the Organic Law on National and Local Level Government Elections and also failed to plead the necessary elements of bribery pursuant to Section 103 of the Criminal Code.
6. The respondents on the other hand argue that the Court was correct to hold as it did, with respect to alleged illegal practices and bribery because, among other things, the applicant failed to plead the number of votes affected by the alleged illegal practices. With respect to allegation or alleged bribery the respondents argue that the applicant failed to plead the relevant subparagraphs of Section 103 that he relies on; and further failed to plead facts that establish or may establish that the alleged acts of bribery were done with the knowledge and authority of the first respondent.
7. The test to be satisfied for granting leave sought is set out in the leading case of Erie Ovako Jurvie v Bony Oveyara (2008) SC935, where Injia DCJ (as he then was) pronounced the position of the law as follows:
   • (4). The criteria for exercise o discretion on leave to review in an election petition matter are two-fold:-
     • - Firstly, 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 Leady (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.
     • - Second, insofar as the application related 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 Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569;

The applicant for leave to review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed.

8. The onus is on the applicant to satisfy the above criteria (Ludwig Patrick Shulze (supra); Kelly Kilyali Kalit v John Pundari & Electoral Commission (1998) (PGSC 39; SC 569).
9. The threshold for scrutiny in an application for leave to review is admittedly an onerous one. In the case of Anton Yagama v Peter Charles Yama (2013) SC1244, the Court alluded to higher standard of scrutiny in the following terms:
   • “The standard of scrutiny in assessing the leave application in election petition reviews is higher than the usual considerations in ordinary cases of administrative reviews or where the applicant has no right of appeal or has lost that right. This is evident from the precondition to show an apparent error of law or fact on the face of the record. If the error is a question of law, it must be a serious and important point of law that is not without merit. If factual error is alleged, it must be shown to be ‘a gross error clearly apparent or manifested on the face of the evidence.’ Or the exercise of discretion was excessive or the decision is ‘so outrageous or absurd so as to result in injustice.’ This high onus was recently restated in obiter dicta by the Supreme Court in, Anton Yagama v Peter Charles Yama, Steven Biko, Andrew Trawen and the Electoral Commission (2013) SCR 55of 2012 (unnumbered), that such a review should only be allowed where, “there is a clear error which has a very high chance of success.”
10. With respect to the construction/interpretation that the trial judge attached to alleged violation of Section 113(1) (b), it seems to me that the learned trial Judge was correct in holding that the Organic Law does not prohibit an elector from folding his ballot paper in any particular shape, nor does it impose any obligations on a candidate.
11. Section 113(1) (b) bears quoting in full. It provides that:
    • 113. Interfering with secrecy at elections.
    • (1) Subject to Subsection (2), a person who—
      • (b) being a person required by law to discharge duties at an election at which the voting is by ballot—attempts to ascertain or discover, or aids in ascertaining or discovering, the candidate for whom the vote of any person is given at the election, except in the case of a person voting openly; or
12. On plain and literal meaning the above section applies to “a person required by law to discharge duties at an election ...”. There is nothing in that text or elsewhere to suggest that the section could conceivably apply to the first respondent as a candidate.
13. The Organic Law on National and Local Level Government Elections impose duties on officers such as Returning Officers, Assistant Returning Officers and Presiding Officers.
14. There was, in my mind, no basis to conclude, as the applicant suggests that the first respondent engaged in an illegal practice in breach of Section 113 of the Criminal Code, and Section 138 (b) of the Organic Law.
    
15. The applicant’s argument that the trial judge erred in ignoring the authorities of the Supreme Court in the cases of Dick Mune v Anderson Agiru (1998) SC 590, and Philip Kikala v Electoral Commission (2013) PG SC 48; SC 1295, in particular, is without merit as the two cases do not in any way contradict the reasoning and findings of the learned trial judge.
16. I have read the above cases with extreme care. The two cases are authority for the proposition that it is necessary to plead relevant facts that constitute a ground or grounds upon which an election petition is based. The two cases do not suggest, in any way, that it is not necessary to plead specific figures that may be material in determining whether the results of an election could have been affected by an alleged illegal practice.
17. It is a logical and a sound principle, as enunciated in many cases, that a petitioner alleging illegal practice should plead and show that the results of the election was likely to be affected by the alleged illegal practice (see Sandy Talita v Peter Ipatas [2016] SC1603; Ken Fairweather v Jerry Singirok [2013] SC1293; Sir Arnold Amet v Peter Charles Yama [2010] SC1064; Sam Tei Abal v Robert Sandan Ganim (2013) N5676 [2013] N5676; Ludger Mond v Jeffery Nape & Others [2003] N2318.
18. In an election petition one often, not always, ignores pleading and showing relevant numbers that could, if not unduly denied, have possibly tilted the balance in favour of the losing candidate, at his peril.
    
19. Put differently, an election petitioner, to the extent necessary and relevant, is required to plead the facts and figures that may be affected by an alleged illegal practice, as contemplated by Section 215(3) (b) of the Organic Law.
20. Section 215 (3) (b) of the Organic Law provides that:
    • “(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) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
    • 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.”
21. In the case Daniel Bali Tulapi v Aiya James Yapa Lagea [2013] N5235, at paragraph 25, Injia CJ perceptively observed that:
    • “25. In exceptional cases, the result of an election being affected or likely to be affected may be determined primarily by reference to conduct that may bring into question the integrity of the entire election process for a particular electorate, in which case reference to specific vote numbers affected may be undesirable. For instance, electoral officers commit systemic and gross errors , omissions and irregularities that raise serious questions concerning the integrity of substantial number of votes cast at an election: Maino v Avei (2002) SC 633. Even then the number of votes affected that are vitiated by those errors and omissions or irregularities should be pleaded to demonstrate that the whole or substantial number of eligible voters or votes for an electorate were vitiated by those errors such that the entire election for that particular electorate was not genuine. It would be extremely difficult for anyone to speak in terms of the result of an election been affected without any reference to numbers of eligible voters or votes at all.”
      
22. In the case of Mathias Karani v Yawa Silupa [2003] N2385, that Court put its finger in the pulse of the matter when it pronounced that:
    • “In so far as petition grounded on illegal practises or errors or omissions founded for instance on ss. 215 or 218 of the Organic Law the principles are fairly well settled. For instance if the petition is grounded upon illegal practices, (other than bribery or undue influence) under s. 215, then the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practises must plead material facts to show the following:
    • (a) The illegal practise;
    • (b) The illegal practise was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority;
    • (c ) The result is likely to be affected by the illegal practise;
    • (d) It would be just that the candidate should be declared not duly elected or the election be declared void;

Failure to plead any material facts supporting any of the elements under s 215 would offend s. 208(a) and would therefore be fatal to the petition. See Paul Kamod v Stanley Pil [1983] (Unreported and Unnumbered Judgement of National Court; Sir Pita Lus v Gabriel Kapris (2003) Unreported judgement N 2326, Eddie Saweni v Patrick Pruaitch (March 2003) (Unreported and Unnumbered Judgement).”

23. I have found nothing meritorious, judged in the context of the requisite test, outlined earlier, to suggest that there is merit in the ground relating to alleged illegal practises committed by the first respondent.
24. I turn now to consider to grounds related to bribery.
25. The applicant alleges that the trial judge erred in law when he held that the pleadings did not plead the elements of bribery under Section 103 of the Criminal Code, when, such sufficient elements are pleaded at paragraph 4 of the petition.
26. I have had regard to paragraph 4 of the Petition and the submissions of the parties hereto. I am satisfied this ground ought to fail if only for the reason that nowhere is it suggested that the alleged acts of bribery committed by the agents of the first respondents were committed with the first respondent’s knowledge and authority as required by Section 215(3) (a) of the Organic Law.
27. I have had regard to the reasoning of the learned trial judge when he held that the pleadings did not adequately plead the elements of the bribery offence. In my mind, the learned trial judge was correct to hold that the applicant should have specified what particular bribery offences were alleged to have been committed given that Section 103 contains a number of elements or combination of elements relating to bribery (Jim Nomane v Wera Mori [2013] SC1242.
28. In the case of Aide Ganasi v Sali Subam [2013] SC1277, the Supreme Court stated;
    • “In Election Petition hearings where an allegation of bribery is made, the Petitioner must firstly plead the relevant sub paragraph(s) of s.103 that he relies on. Depending on the sub-paragraph that he relies on, the various elements pleaded therein must be proved by credible evidence to establish the essential elements of the offence of bribery.”
29. Having regard to all the circumstances of this case, the applicant has failed to establish that there is a meritorious point of Law to be determined and that in so far as the application relates to facts, there is a gross error clearly apparent or manifest on the face of the evidence before Court.
30. In the result leave is refused for the reasons stated above.
31. The Orders of the Court are:
    
    • (1) The application for leave to review is refused.
    • (2) Costs of the application are awarded to the respondents.

___________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant

Fairfax Legal Services: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent