Electoral Commission v Kaku [2019] PGSC 80; SC1866 (30 October 2019)

SC1866

PAPUA NEW GUINEA
[IN THE SUPEREME COURT OF JUSTICE]

SCR (EP) No. 4 of 2019

APPLICATION UNDER SECTION 1552(2)(b) OF THE CONSTITUION

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

BETWEEN:
ELECTORAL COMMISSION
Applicant

AND
PASTOR BERNARD KAKU
First Respondent

AND
WILLIAM POWI
Second Respondent

Waigani: Kandakasi DCJ, David J & Anis J
2019: 17 and 30 October

SUPREME COURT REVIEW – Review of decision on an election petition – Constitution s.155(2)(b) –Two objections heard together – Decision only on one of them - No mention, consideration or ruling on the other – No explanation or reasons given - Whether error of law – Section 59 of the Constitution – Whether breach of natural justice – Duties of decision makers – Decision makers obliged to provide reasons for their decisions – Failure to provide reasons – Effect of – Breach of natural justice and decision or lack thereof without good reason – Consequence of.

Cases cited:

Anton Francis Yangama v. Jimi Uguro (2018) SC1682
Conrad Haoda v. Aide Ganasi (2013) N5136
Daniel Bali Tulapi v. Aiya James YapaYagea (2013) N5323
Dawa Lucas Dekena v Nick Kuman (2013) SC1272.
DelbaBiri v Bill Ninkama [1982] PNGLR 342
Electoral Commission of PNG v. Simon J Solo (2015) SC1467.
Ezekiel Anisi v. Tony Aimo (2013) SC1237.
Godfrey Niggints v. Henry Tokam& 2 Ors [1993] PNGLR 66.
Hon Ben Micah MP v. Rigo A Lua (2015) SC1445.
John Boito v. Mehrra Mine Kipefa and Electoral Commission of Papua New Guinea (2018) N7354
Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404.
Mission Asiki v. ManasupeZurenoc&Ors (2005) SC797.
MoiAvei& Electoral Commission v. Charles Maino (2000) PNGLR 157.
Ombudsman Commission v. Peter Yama ( 2004) SC 747.
Peter Waranaka v. Gabriel Dusava (2009) SC980.
Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257.
Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331.
Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064.
SC Review No. 1; Re Recount of vote [1990] PNGLR 441
Umapi Luna Pakomeyu v. James SiaiWamo (2004) N2718
William Powi v. Pastor Bernard Peter Kaku& Electoral Commission (2019) SC1856.

Legislation:

Constitution of Papua New Guinea
Organic Law on National and Local-level Government Elections

Counsel:

Mr H Nii, for the Applicant
Mr R Diweni, for the First Respondent
Mr A Baniyamai, for the Second Respondent

30^th October, 2019

1. KANDAKASI DCJ: I have had the privilege of reading the draft judgment of His Honour Anis J. I agree with the orders His Honour proposes for the reasons he gives. However, given the importance of the issues raised in this review, I will express my own views.

2. The Electoral Commission of Papua New Guinea (Commission) is seeking a review of a decision of the National Court which failed to specifically address and rule on its objection to a competency of a petition (the Objection) against the election victory of the Second Respondent Hon. William Powi (Hon. Powi) out of the 2017 National General Elections. The said petition attracted two different objections. One from the Commission and the other from Hon. Powi. Both petitions were heard together by the National Court. In its decision, the National Court expressly dealt with the objection by Hon. Powi and made no mention of the other objection and proceeded to conduct a trial on the petition. Upon the matter coming to this Court, this Court ordered a stay of the trial pending a determination and conclusion of all proceedings before this Court.

Parties Arguments

3. The Commission with the support of Hon. Powi claims the National Court fell into error and in so doing, denied it, its right to natural justice. It explains that, after having heard its Objection, the Court was duty bound to make a decision on it and give reasons for its decision. Without properly disposing of the Objection, s. 210 of the Organic Law on National and Local-Level Government Elections (the Organic Law) precluded the National Court from mounting the trial. Amongst other reliefs the Commission is seeking, it is arguing for a grant of its application for a dismissal of the petition per its objection or in the alternative, declare a mistrial of the trial in the Court below and order a rehearing of its Objection before a different Judge.

4. In response, Pr. Kaku says the National Court is yet to come to a decision on the Commission’s Objections. Hence, there is no decision for review by this Court. He also points out that, the Commission and Hon. Powi had a duty to draw to the National Court’s attention by way of a slip rule application, raise the issues raised in this Court. Proceeding on that basis, Pr. Kaku argues, since the trial has gone to the point of a no case submission being made and decision on that application reserved, it is too late to revisit the lack of a decision on the Commission’s Objections. As such, this Court should allow the trial to proceed, where the Commission still has the possibility of the petition being dismissed or exercise its right of review if the petition is sustained.

Relevant Issue

5. From the argument of the parties, there are four issues for this Court to determine. These are:

(1) Did the learned trial Judge make a decision on the Commissions Objection?

(2) Whatever is the answer to the first question, did the learned trial judge give any reason for his decision or a lack thereof?

(3) Subject to this Court’s answer to the first two questions, did the National Court deny the Commission its right to natural justice in not specifically considering and making a decision on its Objection before ordering and proceeding with a trial of Pr. Kaku’s petition?

(4) If the answer to issue (3) is in the affirmative, what is the appropriate remedy?

6. Of these issues, I consider the first issue raised especially by Pr. Kaku is critical and determinative of this review. Hence, I propose to deal with that issue first. I will then deal with the remaining issues in the order stated.

Additional Background

7. Before dealing specifically with each of the issues, I consider it important that this Court should understand the complete background to this review. The pertinent part of the relevant background to this case, is in paragraph 2 of this judgment. Additionally, I note that, following a declaration of Hon. Powi as the winner of the Southern Highlands Regional Seat in the 2017 National General Elections, Pr. Kaku filed a petition in the National Court pursuant Organic Law on National and Local-level Government Elections (the Organic Law). As noted, the Commission and Hon. Powi responded to the petition with two separate objections as to the competency of the petition by each of them claiming amongst others, a failure to meet the requirements of s. 208 of the Organic Law. That necessitated a hearing for the purposes of s. 210 of the Organic Law the objections first before any trial on the petition could take place.

8. Indeed, the petition was eventually listed for trial, which commenced on 11^th February 2019. At the commencement of the trial, the National Court first heard all the parties on the two objections. After having reserved its decision on the objections, the National Court delivered its decision on 18^th February 2019. That decision appeared to have only dealt with the objection by Hon. Powi and the National Court omitted from its consideration and decision, the Commission’s Objection. The review application before us arises out of that.

9. On 18^th March 2019, a trial on the petition commenced. Pastor Kaku completed his evidence and closed his case. At the close of Pr. Kaku’s case, the Commission and Hon. Powi made a no case to answer submission. A decision on that got reserved. At that point, the matter came to the Supreme Court. The Supreme Court in the course of dealing with some preliminary issues and interlocutory matters, ordered a stay of the trial in the National Court until conclusion of all proceedings in the Supreme Court. Soon thereafter, this Court heard the parties on the Commission and Hon. Powi’s separate applications for leave for review. The Court refused Hon. Powi’s application but granted the Commission’s application. Following the grant of leave, the matter came before us for hearing of the substantive review application, which we did and reserved our decision. Here now is our decision.

Review

10. At the start of the hearing before us, Counsel for the Commission indicated his client was pursuing only one ground for the review. That ground was its claim of the National Court deny its right to natural justice. Hence, all other grounds pleaded in support of its review application were abandoned.

11. The now reduced single ground for the review reads:

“The learned trial judge erred in law by not affording the Applicant (Second Respondent to the petition), right to a fair hearing in breach of the principles of natural justice and procedural fairness enshrined under section 59 of the Constitution, when, in his written judgment, he –

(a) did not consider all or address the Second Respondent’s Objections to Competency of the petition and the Counsel’s submissions in support thereof and ruled only on the Objections to Competency filed, and moved, by the First Respondent; and

(b) failed to give any reason at all as to why the Second Respondent’s objections and submissions were overlooked or why the Court thought they were not relevant”

Decision on the Commission’s Objection – Issue 1

12. This Court’s judicial review power is available for the review of decisions arrived at by the National Court in election petitions pursuant to s. 155 (2) of the Constitution. Indeed, judicial review is the only recourse available to a party who is aggrieved by a decision of the National Court as the Court of disputed returns out of an election petition, given, the prohibition of appeals by s. 220 of the Organic Law.^[1] Hence, this recourse has been recognized and various reviews have been permitted.

13. However, my limited research has failed to produce any review being permitted in a case where a decision maker as failed to make a decision on a preliminary matter before embarking on a substantive matter as is the case here. Counsel for Pr. Kaku who raised the issue was obliged to assist by drawing the Court’s attention to local or overseas cases on point, but he failed to do so. I do however, recall my own decision in Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718, although it was not in the context of an election petition.

14. In that case, amongst others, the plaintiffs sought to compel the Land Titles Commission (LTC) to hear and determine a customary landownership dispute between competing customary landowning groups. They sought that relief without first going to the LTC. In dismissing that request, I said:

“Surely, no Court can compel the LTC or any other decision maker, to either hear a matter and or make a decision, without the necessary factual and legal basis for the grant of such an order. In other words, there must first be proof of the LTC or any other decision maker failing to hear or make the decision without good reason when properly required to. Without any such foundation, the plaintiffs cannot get the relief they seek.”

15. It is settled and clear law which is consistent with logic and common sense that all preliminary issues in any proceeding must first be heard and determined before dealing with a substantive matter. This position is so clear that, there is no need to cite any particular authority, suffice only to refer to the large body of case law dealing especially with objections to competency in the case of election petitions before both the National and Supreme Courts. These have been dictated by the provisions of s. 210 which effectively requires all claims of the requirement of ss. 208 and 209 of the Organic Law not being met to be dealt with and determined first before proceeding to hear a petition on its substantive merits.

16. No doubt, in appreciation of that position at law and common sense and logic, the parties first argued the objections filed by both the Commission and Hon. Powi in this case on 11^th February 2019. After having heard the arguments and reserved for its decisions on the objections, the Court came to its decision 6 days later on 18^th February 2019.

17. A close examination of the decision and the transcript of the proceedings in the Court below, I note the following factors are most pertinent:

(1) The petition centred around the Commission’s conduct more than that of Hon. Powi;

(2) The two objections were moved together before the learned trial Judge on 11 February 2019;

(3) The learned trial Judge did not indicate how he proposed to determine the objections;

(4) In the first paragraph of his decision, the learned trial Judge stated in relevant parts:

“Before me, is the First Respondent’s objections to the competency of the Petition for which I am required to rule on and I so do.”

(5) At no stage of his decision, the learned trial Judge neither mentions the Commission and or its objection nor the Commission’s counsel and his submissions on behalf of the Commission;

(6) In the second last paragraph of his decision, the learned trial Judge stated:

“I have considered the submissions by Mr. Baniyamai”

This His Honour did without making any mention of or indicating what he proposed to do with the Commission’s objection and or the Commission’s arguments; and

(7) Finally, immediately after his decision the learned trial Judge proceeded to order a trial of the petition on the grounds that it survived Hon. Powi’s objection.

18. From this it is clear to me with respect that, after having heard the parties, and reserved his decision, the learned trial Judge either deliberately or inadvertently decided to rule only in respect of Hon. Powi’s objection and not that of the Commission. Clearly, His Honour decided against making any decision on the Commissions Objection or alternatively, he decided to dismiss that objection. Either way, that in itself is a decision in my view.

19. I have given consideration to Pr. Kaku’s submissions on this point. Having done so, I have come to the conclusion that, there is no room for his suggestion that the learned trial judge did not come to a decision on the Commission’s Objection which effectively suggests, the learned trial Judge is still reserved on that Objection. That submission is speculative and not credible. For if indeed, the learned trial Judge was reserved on that Objection, he would not have ordered a trial and proceeded with it because of s. 210 of the Organic Law. The fact that he ordered a trial and conducted the trial is more supportive of the suggestion that he decided to dismiss the Commission’s Objection. The only other possible alternative is the suggestion that, the learned trial judge may have forgotten the Commission’s Objection. That, in my humble view, is not a possibility especially when, he heard both of the objections, reserved for only 6 days and come to his decision on the objections. If he reserved for more than a few months or years the forgetting suggestion may be open. That is not the case here.

20. This then takes us to the next question of, what reasons did the learned trial Judge provide for his decision not to make a decision on the Commission’s Objection or reserving on that Objection. That is the subject of the second issue. Accordingly, I will proceed to deal with that issue now.

Did the learned trial Judge provide reasons for his decision – Issue 2

21. Obviously, as a decision maker, the learned trial Judge was obliged to give his reasons for either deciding against the Commission’s Objection or his decision not to make a decision on that Objection. It is settled law that, every decision maker is obliged to give his or her reasons for their decisions. In Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404, I discussed the law in the following terms:

“One of the minimum requirements of the principles of natural justice enshrined in our Constitution under s.59 (2) is the duty to act fairly, and in principle, to be seen to be acting fairly. This is in effect a codification of an old established principle represented by cases like that of R v. Sussex Justice; Ex Parte McCarthy [1942] 1 K.B. 256.

The need to provide good reasons for any decision-maker for a decision he or she makes is an important part of the principles of natural justice. For a failure to give reasons has the potential to form the foundation for a suggestion or suspicion that the decision is without good reason. Lord Denning in General Electric Co. Ltd v. Price Commission [1975] 1 C.R. 1 at 12 made that clear in these terms:

‘If it (the decision maker) gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.’”

22. I then noted that, these principles were adopted and applied with approval in Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331 at 335 and that I re-echoed these principles and applied them in Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (2002) N2257. There I said:

“It is settled law that, a discretion that is vested in a decision-maker in a democratic society such as ours must be exercised on proper consideration as to the relevant facts and the law. There is no such a thing as unfettered discretion. Good reasons must be given for an exercise of discretion. A failure to do so may leave open the floodgate for all sorts of allegations, including allegations that the discretion was exercised for ulterior motives. For examples of authorities on this point, see The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339.”

23. Having regard to these authorities I expressed the principles in other words as follows:

“Providing reasons for decisions made by public authorities is a necessary element of being transparent unless the security of the nation or a statute specifically dictates or provides otherwise. Hence, I do not consider it appropriate that it should be left to the circumstances to dictate whether or not reasons should be provided for every decision by a public authority or tribunal. The reason for this is simple, unless good reasons are provided, a decision by a public authority or tribunal could be perceived as being arrived at unfairly and being actuated by such things as bias, bribery and so on and not necessarily on its merits.”

24. A string of Supreme Court decisions reinforces and reiterates these principles. This line of decisions includes the decision in Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yama (2004) SC 747, Godfrey Niggints v. Henry Tokam& 2 Ors [1993] PNGLR 66 and Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797.

25. In Hon Ben Micah MP v. Rigo A Lua (2015) SC1445, the Supreme Court elaborated on the principles in this way:

“If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (supra) and Mision Asiki v. Manasupe Zurenuoc (2005) SC797. The National Court has applied the same principles, some of the cases were Niggints v. Tokam [1993] PNGLR 66; Yawip v. Commissioner of Police [1995] PNGLR 93; Wena v. Tokam (1997) N1570; Graham Kevi v. Teaching Service Commission Disciplinary Committee [1997] PNGLR 659 and Michael Anis Winmarang v. David Ericho and The State (2006) N3040.”

26. Having regard to these principles, I searched carefully for any reason the learned trial Judge may have given for his decision to either effectively dismiss the Commission’s Objection or not making a decision on that. No reason is evident anywhere in the learned trial Judge’s judgment or elsewhere in the transcript of proceedings. This then takes us to the third issue of, was the Commission’s right to natural justice denied as a result of that.

Was the Commission’s right to natural justice denied? – Issue 3

27. Based on the relevant principles of law as discussed, the record of proceedings, the learned trial Judges reasons for decisions as noted and discussed above, I am of the view that the Commission was denied its right to natural justice. This then leads me to the fourth and remaining issue.

What are the Commission’s remedies? – Issue 4

28. What then is an appropriate remedy for the Commission? As already noted, Pr. Kaku argues that the Commission and Hon. Powi were duty bound to draw the trial Judge’s attention to the fact that he did not specifically and expressly come to a decision on the Commission’s Objection. This they could have done using the slip rule process. This could have given the learned trial Judge the opportunity to correct his oversight or error.

29. I have difficulty accepting Pr. Kaku’s argument for one main and fundamental reason. Section 220 of the Organic Law makes all decision of the National Court on all election petitions final and prohibits any appeal. This is of course, subject to this Court’s review powers under s. 155 (2) (b) of the Constitution. As clarified by this Court’s earlier decision in this matter in William Powi v. Pastor Bernard Peter Kaku & Electoral Commission (2019) SC1856, all decisions of the National Court especially on objections to competencies of election petitions are subject to the review powers of the Supreme Court. That being the case, the National Court has no power to effectively review its own decisions. For this reason, I would dismiss Pr. Kaku’s argument on this point.

30. Having dismissed Pr. Kaku’s argument I turn to submissions of the Commission and Hon. Powi. As earlier noted, the Commission with the support of Hon. Powi is asking for a dismissal of the petition based on the grounds of its objection. In the alternative, it is asking for a declaration of a mistrial of the trial in the Court below and an order for a rehearing of its Objection before a different Judge. I am disinclined to granting the first relief. Strictly speaking, this relief cannot be granted without first considering the merits or demerits of each of the grounds for the Commission’s Objection. The National Court which is the primary decision maker has to first make a decision on merits or otherwise of each of the grounds of the Objection. Unless and until that is done, this Court cannot in the guise of judicial review delve into the substantive merits or otherwise of each of the grounds of the Objection.

31. A relief that can easily be granted is the one asking for a declaration of a mistrial of the trial now stayed before the National Court and order a rehearing of the Commission’s Objection. Such a relief is dictated by s. 210 of the Organic Law as discussed in the foregoing. Simply put, no trial on Pr. Kaku’s petition could be mounted until all objections to its competency has been determined on their merits. As already noted, of the two objections filed in the petition in this case, the learned trial Judge determine only one of them on its merits. The other, either remains to be determined or was determine without the provision of any reason. Hence, until the remaining Objection is determined on its merits, no trial on the petition is legally possible and or permissible. However, a trial was conducted contrary to the provisions of s. 210 of the Organic Law. Accordingly, I would order the trial a mistrial and further order a rehearing and a determination of the Commission’s Objection first. If the petition survives the Objection, only will a trial on the petition be appropriate and could properly and legally proceed.

32. Usually, when an appeal or a review is upheld and a matter is to be remitted to the trial Court for retrial or rehearing, that would be before a different Judge. That is necessary to avoid any appearance of bias and partiality or undue influence by any views the Judge whose decision has been successfully appealed or reviewed against might have formed. No case has been made out as to why that usual process should not be followed here. Accordingly, I would order the retrial or rehearing of the Commission’s Objection and if need be the petition before a different Judge.

33. The Commission and Hon. Powi have succeeded on this review application, they are entitled to their costs of both the process before this Court and the trial in the Court below. Those costs could have been avoided had Pr. Kaku and his lawyer appreciated the correct legal and logical position as I sought to elaborate in the foregoing and worked with the Commission and Hon. Powi to have the Commission’s decision also determined first before pressing on for the trial.

34. In the end, I would also make the orders proposed by His Honour Anis J.

35. DAVID J: I have had the privilege of reading the draft judgment of the Honourable Deputy Chief Justice and my brother Anis J. I agree with the outcome their honours propose for the reasons they give.

36. ANIS J: This Supreme Court Review Application (the review) was heard on 17 October 2019. This is my ruling.

Relevant Background

37. The second respondent is the present Governor for Southern Highlands Province. He was declared as such in the 2017 General or National Election of Papua New Guinea. The first respondent has filed, in the National Court, an Election Petition pursuant to the Organic Law on National and Local-level Government Elections (OLNLLGE). Presently, a stay order has been obtained against the National Court proceeding (trial Court).

38. The trial Court had commenced actual hearing of the petition on 18 March 2019 before the stay order was obtained on 20 March 2019. That is, the petitioner had closed its case and the trial Court had adjourned to make a ruling on a no case to answer application that had been made by second respondent. The trial Court is presently at the stage where it would make its decision on the no case applicationand, subject to the outcome, proceed on to hear the respondents’ evidence in response to the petition.

39. Initially, two (2) applications for review were filed before the Supreme Court. One was filed by the applicant which is SCR (EP) No. 4 of 2019, and the other by the second respondent, which was SCR (EP) No. 5 of 2019. Both leave applications returned before a single Judge of the Supreme Court. The Supreme Court refused both applications. Both applicants sought review of the decision before a full Supreme Court bench. The Supreme Court granted the review and reinstated the two applications for leave to review. The applications returned before a single Judge of the Supreme Court, for hearing. On 16 August 2019, leave to review was granted only in relation to proceeding SCR (EP) No. 4 of 2019. Application for leave to review by the second respondent in SCR (EP) No. 5 of 2019 was declined.

Review

40. At the start of this hearing, the counsel for the applicant indicated that the applicant would be relying on only one of its grounds of review, namely, denial of right to natural justice. It is stated as the first ground in the review. We then proceeded to hear the review on that basis, which is, dealing only with the first ground.

41. Ground 1 reads:

1. The learned trial judge erred in law by not affording the Applicant (Second Respondent to the petition), right to a fair hearing in breach of the principles of natural justice and procedural fairness enshrined under section 59 of the Constitution, when, in his written judgment, he –
   

(a) did not consider all or address the Second Respondent’s Objections to Competency of the petition and the Counsel’s submissions in support thereof and ruled only on the Objections to Competency filed, and moved, by the First Respondent; and

(b) failed to give any reason at all as to why the Second Respondent’s objections and submissions were overlooked or why the Court thought they were not relevant.

Objection Hearing

42. The hearing of the petition before the trial Court initially commenced on 11 February 2019. By then, the applicant and the second respondent had two (2) pending notices of objections to the competency of the petition (the two objections). The trial Court heard the two objections, which were contested, on that day, that is, 11 February 2019, and reserved its ruling.

43. On 18 February 2019, the trial Court handed down its ruling. In its ruling, the trial Court appeared to address only the notice of objection to competency of the second respondent. The applicant’s review stems from that assertion; it claims that because the trial Court did not hand down its decision in relation to its notice of objection to competency, that that amounts to a denial of its right to procedural fairness or to natural justice.

Law

44. The law in regard to the purpose of a review Court is settled in this jurisdiction. I note the case authorities cited by counsel on this point. For this purpose, I will refer to the Supreme Court case of Moi Avei and Electoral Commission v Charles Maino (2000) PNGLR 157. The Supreme Court clarified that when it said:

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.

As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986 AC484)

‘where .....fact is left to the judgment of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...’

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s.220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process”.

45. Justice Sheehan, as part of the majority in SC Review No. 1; Re Recount of vote [1990] PNGLR 441 stated:

In this application this Court, well aware that the National Court has been entrusted with the power of decision in the matter of election petitions, will only grant such leave and intervene on review if it is shown that there is an arguable defect in the decision-making process; not an insignificant fault, but one having sufficient importance as a matter of law to warrant the Court entering upon review of a matter intended to be finalised in the National Court. With this in mind it can be seen that judicial review by the Supreme Court is not an automatic next step open to a dissatisfied party to an election petition in the National Court.

Consideration

46. The central issue raised by the parties,is this, whether the trial Court’s objection ruling of 18 February 2019 did not also take into account, address or make a finding, in relation to the applicant’s objection to competency application, and if not, whether that therefore amounts to breach of the applicant’s right to natural justice.

47. I think that it is important to state early here that it is not disputed that the two objections were moved and heard together by the trial Court on 11 February 2019, and also, the fact that the trial Court had reserved its ruling on the applications to a date to be advised. And as I note, the trial Court then handed down its decision 7 days later on 18 February 2019.

48. I have had the benefit of considering in detail the trial Court’s written decision of 18 February 2019. It is located at Tab 19, page 245 of the Review Book (RB). I have also had the benefit of considering in detail the transcript of the proceedings in relation to the hearing of the two objections on 11 February 2019. The said transcript is located at Tab 18 at page 180 of the RB.

49. From these, I observe the following. Firstly, I note that the two objections were moved at the same time or together before the trial Court on 11 February 2019. And at the end of that hearing, and I refer to page 234 of the transcript of the proceedings, I note that the trial Court had not indicated anywhere therein that it would only be delivering its decision in regard to the objection application of the second respondent. I think that that is an important point to mention.

50. I next move onto the decision of the trial Court of 18 February 2019. The very first paragraph of the decision reads, and I quote in part, Before me, is the First Respondent’s objections to the competency of the Petition for which I am required to rule on and I so do. The next significant fact I observe is that at no point in time anywhere in the trial Court’s decision did it make any mention of the counsel for the applicant or of the applicant’s submissions, that is, in relation to applicant’s objection application. The other point I think is also important to note from the said decision is at its conclusion. The trial Court did not mention or indicate anywhere therein that he has reserved his ruling in relation to the objection application of the applicant, to another time.

51. My third and final consideration is this. Immediately after the decision, and I observe from pages 240 to 244 of the RB, the trial Court proceeds to and lists the petition down for pre-trial status conference for 22 February 2019. What followed after that was that the petition was set down and the hearing commenced from the 18^th to the 20^th of March 2019, before it was stayed by the Supreme Court.

Did the Trial Court err?

52. I have considered the submissions of counsel, that is, both oral and written. I do not think that the issue is a difficult one to answer. In my view, this is a clear case where the trial Court had heard the two objections, had reserved its decision, but when the decision was delivered, the trial Court did not address or deliberate upon the objection to competency application of the applicant. There is nothing in the decision or in the transcripts which says that the trial Court has reserved its ruling in relation to the applicant’s objection application. I also note that the conduct of the trial Court thereafter where the matter has proceeded to trial, shows or is additional indication that no such decision is expected or will be forthcoming from the trial Court, after 18 February 2019.

53. The trial Court I note should have but in this case did not consider and make a ruling on the objection application of the applicant. In not doing so and in arriving at the decision as it has done, it would not be unreasonable, in my view, to assume that the trial Court did not fully hear and make a determination in regard to the two objections that had been moved on 11 February 2019.

54. Does that therefore mean that the applicant has been denied its right to natural justice? I refer to section 59 of the Constitution. It states, and I quote:

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

55. The minimum requirement or expectation of the principles of natural justice of course is not just one’s duty to act fairly but to also be seen to act fairly in the discharge of that duty. Having these in mind, I note this. The trial Court, in its decision of 18 February 2019, did not consider together the two objections but instead it only considered the objection of the second respondent and handed down its decision solely based on that (i.e., the second respondent’s notice of objection to competency of the petition). The trial Court had not addressed or dealt with the applicant’s objection on 18 February 2019. The trial Court therefore and in my view, cannot be been seen to have acted fairly in its duty. I also note, as stated above, of the fact that the trial Court had already proceeded to and had partly dealt the substantive petition, that is, without resolving the issue. The said conduct, in my view, may also be regarded as contrary to principle to be seen to act fairly, in the exercise of its duty. It also does not, in my view, conform to the requirements under section 210 of the OLNLLGE. Section 210 states and I quote in part, Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with. Case law has certified this requirement under section 210. It states that compliances (i.e., of section 208 and 209) include disposal of any objection to competency application that is filed against an election petition. See cases: DelbaBiri v Bill Ninkama [1982] PNGLR 342; John Boito v. Mehrra Mine Kipefa and Electoral Commission of Papua New Guinea (2018) N7354; Conrad Haoda v. Aide Ganasi (2013) N5136; Anton Francis Yangama v. Jimi Uguro (2018) SC1682.

56. I note that the relief that were sought in the two objections included dismissal of the petition. As for the applicant, it is contained at paragraph 38(a) of its application, that is, at page 48 of the RB. With one of the objections still pending determination, I ask myself this, which is based on a reasonable man’s point of view, how can the trial Court proceed further to the actual hearing of the petition with a clear or an impartial mind?

57. The applicant, in our view, like any person who has come to Court and who has presented his or her case, is entitled to receive a ruling that is based according to law. Delivering a decision or making a ruling is the core or fundamental function of Courts. To deny that, I must say, amounts to, amongst other things, breach of natural justice. The then Chief Justice Sir Salamo Injia when addressing section 217 of the OLNLLGE in Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5323, discussed the application of natural justice in the context of section 217 by the National Court. His Honour stated at paragraph 10 of his judgment, and I quote in part,

The Court must therefore act on evidence and in accordance with the law. It does not give the Court power to dispense with its duty to do justice according to law, affording natural justice to the parties to have their case to be heard and being given fair and reasonable opportunity to do so, and for the case determined according to law.

(Underlining is mine)

58. I find that relevant for this purpose, and I would adopt that. I would also add this. Natural justice in terms of proceedings that are before a Court or a judicial authority, extends, unless the law does not otherwise permit, to the right to receive or be informed of a ruling or a decision which should show that the Court or the judicial authority has considered the argument(s) or issues that had been raised. I say this strongly and particularly in a Court hearing setting. It is one thing to present one’s case to the Court, which may be regarded as the first leg. And it is another thing or the second leg to actually receive, be informed or be notified of a decision after it is heard by the Court or by the judicial authority. So if a person has presented his or her case but none of what he or she has said was ever considered, covered or captured by the Court in its decision or reasoning, this could, in my view, amount to breach of natural justice. When I look at the present case, I, however, cannot say that the trial Court’s decision of 18 February 2019 was determined in that regard or according to law. This is because the trial Court had only dealt with the second respondent’s objection and not the applicant’s objection, that is, despite having heard them together earlier on 11 February 2019. And the trial Court had proceeded to trial without providing any explanation whatsoever to the applicant of the outcome of its objection application.

59. The first respondent has summarised his arguments against the ground breach of natural justice, in his recent submission which was handed up to the Court on 17 October 2019. Firstly, and under consideration one of his submission, the first respondent submits that the application for review is misconceived because the decision that is the subject of the review has not yet been made by the trial Court. In other words, he submits that there is no decision that is pending which this Court could review in relation to the objection application of the applicant that had been made on 11 February 2019. I find the argument baseless for two reasons. Firstly, I find that the argument should have been raised before the leave Court, or if it had been raised there but the applicant isstill dissatisfied as he appears to be in this case, then he should follow the due process that is available to him. The leave Court in this case I note has heard and has found merit in this review which was why it has referred the matter before this full Supreme Court for hearing. I therefore do not think that this argument is properly raised or at the least, I find that it is raised before the wrong forum. My second reason is this. The trial Court’s decision of 18 February 2019 is its complete ruling in relation to the two objections that were heard on 11 February 2019. To suggest otherwise is misleading and I note that I have explained that above in my judgement. These said, an obvious consideration to note to answer the query is this. If the trial Court is presumed to have reserved its ruling, in relation to the applicant’s objection application, to be delivered at another time, then the trial Court would not have proceeded to partly hear the petition, that is, without first handing down its reserved decision. In this case, the trial Court, as I have stated above, had gone ahead and had partly dealt with the petition.

60. I refer the first respondent’s 2^nd and 11^th considerations. In summary, counsel submits that only the trial Court or the Court of Disputed Returns has the original jurisdiction to consider the applicant’s objections and not this review Court. I find the argument misconceived. I have already covered the role of the Supreme Court that sits as a review Court, above in my judgment. This Court is not reviewing the merits of the applicant’s objection nor the merits of the trial Court’s decision of 18 February 2019, but rather, it is reviewing the decision-making process of the trial Court. In this case, the applicant claims that it was not afforded natural justice in relation to its objection application, that is, after the trial Court had heard the application and had delivered its decision on 18 February 2019.

61. I also refer to first respondent’s 3^rd consideration in his submission. He submits that there was no denial of natural justice as the two objections were heard together; that both the applicant and the second respondent had presented their objections before the trial Court; therefore, he submits that the applicant cannot say that it had been denied natural justice. I find the submission baseless. I note that I have addressed that above in detail in my judgment.

62. I refer to considerations 5, 6, 7 and 8. I note that the first respondent attempts to argue the merits of the objections. I find these arguments baseless as well as misconceived for the reasons I have already stated above in my judgment.

63. I note that consideration 9 is a repeat of first respondent’s arguments under consideration 3. But I will also add this. If a decision of a Court has been pending or a trial has not been completed, one of the relief available where parties may look at and seek is a mistrial. The said relief, if granted may be followed by an order for a re-trial.

64. Finally, I refer to consideration 10. The first respondent alleges that the two objections were quite similar. As such, the first respondent submits that to ask for a rehearing would in fact be to have a second bite at the cherry. I find the argument baseless. Firstly and again, this Court’s role is to review the decision-making process and not the decision itself. In this case, the applicant is not asking this Court to determine the merits of its objection, like what the trial Court had done in relation to the objection application of the second respondent. Rather, the applicant is asking this Court to consider whether the trial Court, by its decision of 18 February 2019, failed to afford the applicant with natural justice. Secondly, we note that the principles of natural justice shall apply regardless of any similarities that may be alleged in relation to the two objections. Having said that, may I make this remark. I would have accepted this argument by the first respondent had the trial Court in its decision indicated that both applications were similar and that on that basis, that it was sufficient for it to make one finding that would apply to both objections. However, nothing of that sort was evident in the transcript or in the actual decision of the Court.

Summary

65. In summary, I will uphold this review application.

66. I find error of law committed by the trial Court in relation to ground 1 of the review. I find that the applicant’s right to natural justice under section 59 of the Constitution was breached when the trial Court did not, in its decision of 18 February 2019, make any findings or rulings in regard to the applicant’s application for objection to competency.

Relief

67. I refer to the relief that is being sought in the applicant’s review. I am inclined to grant relief 1, 2, 4 and 5 with modifications. I am also inclined to make additional or consequential orders as is sought under relief 6 in the review.

68. I am of the view that justice would be better served if mistrials are ordered in relation to, (i), the hearing of the applicant’s objection and, (ii), in relation to the part-heard trial of the petition. I will order that the applicant’s objection and the substantive proceeding are to be dealt with before a different judge.

Cost

69. I note that the applicant is asking for costs of both the Supreme and the National Court proceedings, to be met by the first respondent. In this case, I note that I have not dismissed the substantive petition which is still pending before the National Court. I will refrain from making any substantive orders in relation to the cost of the National Court proceeding, that is, all except in relation to the costs of the two (2) mistrials, and I would refer to and adopt His Honour the Deputy Chief Justice’s reasoning given above on the subject matter.

70. I willtherefore order that costs of this Review and costs of the two (2) mistrials in the Court below, shall follow the event on a party/party basis to be taxed if not agreed.

Formal Orders

71. I make the following orders:

(i) The Review is upheld.

(ii) The Election Petition EP No. 79 of 2017 – Pastor Bernard Peter Kaku v. William Powi& Electoral Commission – is remitted back to the National Court for a rehearing of the Electoral Commission’s Notice of Objection to Competency filed on 22 February 2018, especially as to the competency of the Grounds 4 and 6 of petition, before a judge other than the trial judge.

(iii) The primary Court’s hearing of the Electoral Commission’s Notice of Objection to Competency, which was heard on 11 February 2019 is declared as a mistrial.

(iv) Consequently, the primary Court’s hearing of the petition which commenced on 18 March 2019 but which was stayed pending the outcome of this Review, is also declared as a mistrial, and the petition, if it is to be heard, shall be heard before a judge other than the trial judge.

(v) The Applicant’s security deposit of K5,000.00 for this Review shall be refunded.

(vi) The First Respondent shall pay the Applicant’s cost of the Review and costs of the 2 mistrials in the Court below, on a party/party basis which may be taxed if not agreed.

FINAL ORDERS OF THE COURT

72. Accordingly, this Court makes the follow orders:

(1) This Review is upheld.

(2) The Election Petition EP No. 79 of 2017 – Pastor Bernard Peter Kaku v. William Powi& Electoral Commission – is remitted back to the National Court for a rehearing of the Electoral Commission’s Notice of Objection to Competency filed on 22 February 2018 before a judge other than the trial judge.

(3) The primary Court’s hearing of the Electoral Commission’s Notice of Objection to Competency, which was heard on 11 February 2019 is declared as a mistrial.

(4) The primary Court’s hearing of the petition which commenced on 18 March 2019 but subsequently stayed pending the outcome of this Review, is also declared as a mistrial, and the petition, if it is to be heard, shall be heard before a judge other than the trial judge.

(5) The Applicant’s security deposit of K5,000.00 for this Review shall be refunded.

(6) The First Respondent shall pay the Applicant’s costs of the Review and the National Court proceedings in respect of terms (3) and (4) of these orders, on a party/party basis which may be taxed if not agreed.

______________________________________________________________

Harvey Nii Lawyers: Lawyers for the Applicant
Diwenis Lawyers: Lawyers for the First Respondent
Baniyamai Lawyers: Lawyers for the Second Respondent

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^[1]See Electoral Commission of PNG v. Simon J Solo (2015) SC1467. See also, MoiAvei& Electoral Commission v Charles Maino (2000) PNGLR 157. See also, Peter Waranaka v Gabriel Dusava (2009) SC980; Dawa Lucas Dekena v Nick Kuman (2013) SC1272; Ezekiel Anisi -v- Tony Aimo (2013) SC1237.