Kandiu v Parkop [2018] PGSC 78; SC1719 (28 September 2018)

SC1719

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 33 OF 2018

IN THE MATTER OF APPLICATION UNDER SECTION 155 (2) (b) OF THE NATIONAL CONSTITUTION

AND
IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
MICHAEL KANDIU
Applicant

AND:
HON. POWES PARKOP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2018: 28 June, 13 & 24 July

Counsel:

Mr. Philemon Wass Korowi, for the Applicant
Mr.T Diwieni, for the First Respondent
Mr. E Koroua, for the Second Respondent

Cases Cited:

Robert Kopaol v Philemon Embel [2003] SC727
Ludwig Patrick Shulze [1998] SC572 (9 September 1998)
Kelly Kilyali Kalit v John Pundari & Electoral Commission [1998] PGSC 39 SC569

28 September, 2018

1. DINGAKE J: This is an application for leave to review the decision of the National Court dismissing the applicant’s petition disputing the election and return of the first respondent.
2. The first respondent was declared winner and duly elected on 28^th of July, 2018, of the National Capital District Seat. The applicant was the runner – up who petitioned the Court, alleging a number of irregularities, set out in the judgment of Higgins J. dated the 15^th of June, 2018.
3. On the 15^th of June, 2018, the National Court upheld the first respondent objection to competency by striking out all the grounds of the petition and dismissed the petition.
4. The applicant being unhappy with the decision of the National Court has raised eleven (11) grounds for leave to review, which relate to alleged errors of law allegedly committed by the National Court.
5. It is trite learning that the grant or refusal of leave for review is discretionary. It is judicial discretion that must be exercised on proper principles and grounds.
6. In order to succeed the applicant, must satisfy the Court on two matters, namely, that there is an important point of law to be determined and that it is not without merit, and that in so far as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court.
7. In the case of Robert Kopaol v Philemon Embel [2003] SC727, the Supreme Court, expressed the position of the law in the following terms:

“The tests that have emerged from these authorities for this court’s inherent power to review all judicial acts of the National Court under s. 155 (2) (b) of the Constitution are -

(a) That there is no right of appeal or there is no other way of coming to the Supreme Court;
(b) That there is an important point of law to be determined by the Supreme Court;
(c) That the application is not without merit; and
(d) That there must be gross error clearly apparent on the face of the evidence before the Court.”

8. The onus is on the applicant to satisfy the criteria for the granting of leave outlined above (Application by Ludwig Patrick Shulze [1998] SC572 (9 September 1998); Kelly Kilyali Kalit v John Pundari & Electoral Commission [1998] PGSC 39 SC569 (7 October 1998).
9. In considering whether the applicant in this case has met the requirements set out above, I remind myself that an application for leave to review does not attract the same attention as the substantive application and that I must avoid engaging in detailed discussion and consideration of the merits of the case under any of the criteria.
10. I state for avoidance of doubt that I have read, understood and considered the eleven grounds upon which the application is based, and it is unnecessary to outline and discuss them individually.
11. Considered individually and circumstantively, the grounds relied upon in this application; seem to suggest that the National Court in dismissing the petition as being incompetent under Sections 208, 209 and 210 of the Organic Law on National and Local Level Government Elections (OLN and LLGE) raises clear and meritorious errors of law, as well as serious issues of facts or mixed law and facts.
12. The applicant’s grounds 1, 2 and 3 seem to take issue with the National Court’s findings at paragraph 37 of the judgment in which the Court observed that the absence of officials referred to in Sections 147, 151 and 154 of Organic Law could explain some of the alleged breaches but was not causative of an erroneous result being declared. The National Court pointed out that although it is alleged that 19,727 votes were admitted without scrutiny, there is no allegation that any particular vote or votes were erroneously counted or allocated. I am not satisfied that there is any important meritorious point of law to be determined in so far as grounds 1, 2 and 3 are concerned, and there is nothing to suggest that there is a gross error clearly apparent or manifested on the face of the evidence before the Court.
13. I find no merit at all in ground four (4) and five (5) of the applicant proposed grounds. The learned judge did not err, in law in stating what in my mind is correct, that it is the facts that underpin the petition that are material and not the name of the official. The Court below adequately addressed the alleged breaches of mandatory procedures regarding scrutiny under Sections 147, 151 and 154 of the Organic Law on National and Local Level Government Elections, at the instance of the second respondent. The approach of the Court to the absence of officials referred to in Sections 147, 151 and 154 of the Organic Law cannot be faulted.
14. In my mind the National Court was correct in characterizing the complaint at paragraph 54, as relating to “proper scrutiny” a phrase elastic enough to include “lack of proper scrutiny” as preferred by the applicant or his legal representatives. Besides, even, if ‘proper scrutiny’ as used by the learned judge did not encapsulate ‘lack of proper scrutiny’, this would not satisfy the two-fold requirement I alluded to earlier, that would entitle the applicant to succeed.
15. The applicant’s complaint (ground seven (7)) relating to the “relevant” and “material” figures of votes surrounding the allegation of discrepancies resulting in the change in figures to ascertain the “absolute majority” and prematurely securing the return and declaration of the first respondent as winner, is remotely connected to the requirement that in order to succeed in an application of this nature the applicant must demonstrate that there is a meritorious point of law to be determined or gross error manifested on the face of the evidence before the Court.
16. Similarly, it seems to me that the learned judge’s conclusion at paragraph 55 was fully justified having regard to the evidence before him. There is no gross error of fact manifested on the face of the evidence before the Court.
17. I have agonized long and hard with respect to ground nine (9) of the applicant with respect to the approach of the Court in dealing with the matter of “absolute majority”, and whilst such an approach may be subject to credible criticism, which, I need not decide upon, what is of critical importance is whether such a complaint satisfied any of the criteria or tests enunciated above. In my mind there is no basis to so conclude.
18. Ground ten (10) and eleven (11) raise complaints relating to the conclusion of the learned judge, but failed to link the complaints to the requisite test or criteria. It seems to me that on the evidence, the learned judge was entitled to conclude as he did that the facts and figures and other evidence pleaded in the petition were unlikely to adversely affect the results as declared and thereby confirming the first respondent as the winner.
19. In all the circumstances of this case, there is no meritorious point of law or gross error apparent or manifested on the face of the evidence before the Court.
20. In the result the application is without merit and it is dismissed with costs.
    

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Korowi Lawyers: Lawyers for the Applicant
Diweni Lawyers: Lawyers for the First Respondent
Kimbu & Associate Lawyers: Lawyers for the Second Respondent