Hagahuno v Tuke [2020] PGSC 13; SC1923 (28 February 2020)

SC1923

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 14 OF 2019

WILLIAM HAGAHUNO
Applicant

V

JOHNSON TUKE
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2020: 25^th, 28^th February

ELECTIONS– application for leave to apply for review by Supreme Court of decision of National Court on an election petition – Constitution, Section 155(2)(b) – Supreme Court Rules 2012, Order 5, Rules 8-17.

The applicant sought leave to make an application under s 155(2)(b) of the Constitution to the Supreme Court for review of the dismissal by the National Court of his petition against the first respondent’s election. The National Court had ruled that the petition failed to meet the requirements of: (a) s 208(d) of the Organic Law on National and Local-Level Government Elections in that one of the attesting witnesses inadequately stated his occupation as “self-employed”; (b) s 208(a) of the Organic Law in that the petition, while alleging a breach of s 87 (requisites for nomination) of the Organic Law, made general assertions of electoral irregularities without material and relevant facts; and (c) s 208(a) of the Organic Law in that the petition, while alleging seven instances of bribery for purposes of s 215 of the Organic Law, was confusing, ambiguous and lacking particularity. The applicant argued that the National Court erred in law in upholding the objections to competency in those three respects. The question before a single Judge of the Supreme Court was whether the application for leave should be granted.

Held:

(1) To be granted leave, an applicant must show: (a) in so far as the application relates to a point of law, that it is an important point, which is not without merit; and/or (b) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit.

(2) The application, to the extent that it related to grounds of the petition relating to the attesting witness and bribery allegations, raised questions of law that were important points of law, not without merit. Leave to argue them was granted.

(3) The application, to the extent it related to the ground of the petition about payment of the nomination fee, raised a question of law that was in the circumstances trivial, and without merit. Leave to argue it was refused.

(4) The application for leave was thus partially successful, and the parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Aihi v Avei (2003) SC720
Ganasi v Subam(2013) SC1277
Jurvie v Oveyara (2008) SC935
Kikala v Electoral Commission (2013) SC1295
Kramer v Duban (2013) N5213
Mune v Agiru (1998) SC590
Nomane v Mori (2013) SC1242
Oibotee v Allan (2013) N5155
Puana v Lelang EP No 43 of 2012, 30.01.13, unreported
Puaria v Lera (2013) N5148
Saonu v Dadae (2004) SC763
Sauk v Polye (2004) SC769
Subam v Ganasi (2012) N5078
Wesley v Leonard (2016) SC1477

APPLICATION

This was an application for leave to apply for Supreme Court review of dismissal by the National Court of an election petition.

Counsel:

W Hagahuno, the applicant, in person
P Mawa, for the First Respondent
M Ninkama, for the Second Respondent

28^thFebuary, 2020

1. CANNINGS J: William Hagahuno applies for leave to seek review by the Supreme Court under Section 155(2)(b) of the Constitution of the decision of the National Court to dismiss his election petition, No EP52 of 2017, which challenged the election of first respondent Johnson Tuke as member for Kainantu Open in the 2017 general election.

PETITION

2. The National Court constituted by Numapo AJ on 10 December 2019 upheld objections to competency of the petition raised by the first respondent and the second respondent (the Electoral Commission) and dismissed the petition. His Honour held that the petition failed to meet the requirements of s 208 (requisites of petition) of the Organic Law on National and Local-Level Government Elections in three respects:

(1) the petition failed to comply with s 208(d) in that one of the attesting witnesses inadequately stated his occupation as “self-employed”;

(2) the petition failed to comply with s 208(a) in that, while alleging a breach of s 87 (requisites for nomination) of the Organic Law, it made general assertions of electoral irregularities without material and relevant facts; and

(3) the petition failed to comply with s 208(a) in that, while alleging seven instances of bribery for purposes of s 215 of the Organic Law, it was confusing, ambiguous and lacking particularity, as each allegation of bribery:

• failed to specify what type of bribery had been committed under s 103 of the Criminal Code,
  
• failed to specify what exact words were spoken during commission of each bribery offence,
  
• failed to establish the nexus between the first respondent and those people allegedly bribing voters,
  
• failed to establish a connection between the alleged bribery offences and the first respondent,
  
• failed to plead that money was given to voters in order to induce them to vote for the first respondent,
  
• failed to specify dates on which the bribery offences were committed,
  
• failed to specify how much each person received,
  
• failed to specify names of the persons bribed,
  
• failed to plead that money was given to named persons for the purpose of procuring votes for the first respondent,
  
• confused actual bribery with attempted bribery,
  
• was confusing in its description of places,
  
• made general allegations about receipt of money by groups of people without specifying how much each member of the group received, what their names were and what was said to them when money was given to them, and/or
  
• failed to plead essential facts on the basis of which an unlawful intent or illegal mind could be established.
  

JURISDICTION

3. The Supreme Court has jurisdiction to review National Court decisions on election petitions under Section 155(2)(b) of the Constitution, which states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

4. Leave is required for the Supreme Court to review the decision. Subdivision 5.2.2 (application for leave to apply for review) of the Supreme Court Rules 2012 provides, by Order 5, Rule 16, that the application for leave shall be made before a single Judge of the Supreme Court.

TEST

5. To be granted leave, an applicant must show:

(a) in so far as the application relates to a point of law, it is an important point, which is not without merit; and/or

(b) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit (Jurvie v Oveyara (2008) SC935).

PROPOSED GROUNDS OF REVIEW

6. The applicant argues that the trial judge erred in law in each of the three respects in which the objections to competency were upheld. I will assess each of the three proposed grounds of review in light of the above test.

(1) THE ATTESTING WITNESS GROUND OF THE PETITION

7. The applicant argues in paragraph 3.1 of the application, under the heading “Alleged breach of s 208(d) of the Organic Law – self-employed”, that the trial judge erred in law in finding that the description of the occupation of an attesting witness as “self-employed” is inadequate. The applicant argues that, that, finding is in conflict with dicta of the Supreme Court in Aihi v Avei (2003) SC720 (which by majority supports the proposition that “villager” is an adequate description) and a number of National Court decisions (eg Subam v Ganasi (2012) N5078, Kramer v Duban (2013) N5213, Puaria v Lera (2013) N5148) to the effect that “self-employed” is an adequate description.

8. I note, as pointed out by the respondents, that there are National Court decisions that support the approach of the trial judge (eg Oibotee v Allan (2013) N5155, Puana v Lelang EP No 43 of 2012, 30.01.13, unreported): that the term “self-employed” is a generic expression and not a proper description of an occupation.

9. However, there is no binding Supreme Court decision on this issue. I consider that the applicant has raised an important point of law that is not without merit. I grant leave to the applicant to prosecute as grounds for review the arguments raised under paragraph 3.1 of the application for leave, under the heading “Alleged breach of s 208(d) of the Organic Law – self-employed”.

(2) THE REQUISITES OF NOMINATION GROUND OF THE PETITION

10. The applicant argues in paragraph 3.2 of his application, under the heading “Alleged breach of s 87(1)(c) of the Organic Law – non-compliance with requirements for nomination)”, that the trial judge erred in law in finding that the parts of the petition that alleged that the first respondent was not qualified as a candidate due to his failure to pay the nomination fee of K1,000.00 to the returning officer at the time of delivery of the nomination paper to the returning officer, disclosed no illegality on the part of the returning officer in accepting the first respondent’s nomination on 21 April 2017, and failed to plead material and relevant facts.

11. I am persuaded by the submissions of Mr Mawa for the first respondent and Mr Ninkama for the second respondent that the alleged errors of law committed by the trial judge do not involve any important questions of law, in light of the following considerations:

• the alleged breach of s 87(1)(c) of the Organic Law (constituted by the alleged failure to pay the nomination fee at the time of nomination) could at most be regarded as a formal defect in the nomination, which was neutralised by acceptance of the nomination by the returning officer in accordance with the power and obligation of a returning officer under s 89 of the Organic Law to accept nominations, even those attended by formal defects or errors, if satisfied that the provisions of the Organic Law have been “substantially complied with”; and
  
• the alleged breach of s 87(1)(c) of the Organic Law could alternatively be regarded as an “error” or “omission” by the returning officer for the purposes of s 218 of the Organic Law, in which case it would need to be pleaded that the error or omission affected the result of the election – but there was no such pleading.
  

12. I uphold the submissions of Messrs Mawa and Ninkama that the arguments founded on the alleged breach of s 87(1)(c) have little prospect of succeeding and in that sense are without merit.

13. Therefore, the application for leave, to the extent it relates to the ground of the petition about payment of the nomination fee, raises a question of law that is in the circumstances trivial, and without merit. Leave to argue it is refused.

(3) THE SEVEN INSTANCES OF BRIBERY GROUND OF THE PETITION

14. The applicant argues in paragraph 3.2 of the application, under the heading “Bribery allegations”, that the trial judge erred in law in finding that the allegations were confusing, ambiguous and lacking particularity. The applicant argues that that finding is in conflict with dicta of the Supreme Court in cases such as Mune v Agiru (1998) SC590, Sauk v Polye (2004) SC769, Saonu v Dadae (2004) SC763, Kikala v Electoral Commission (2013) SC1295 and Wesley v Leonard (2016) SC1477, which support the proposition that the level of detail as to facts is not as strict as that imposed by the trial judge and that there is no obligation to state the law.

15. I note, as pointed out by the respondents, that there are Supreme Court decisions that support the strict approach of the trial judge (eg Nomane v Mori (2013) SC1242 and Ganasi v Subam(2013) SC1277).

16. It must be said that there are conflicting lines of Supreme Court authority on the issues of the level of detail as to facts required in a petition, particularly regarding allegations of bribery, undue influence and illegal practices, and whether it is necessary to specify the precise provisions of the Criminal Code relied on to argue allegations of bribery, undue influence or illegal practices.

17. I consider that the applicant has raised important points of law that are not without merit. I grant leave to the applicant to prosecute as grounds for review the arguments raised under paragraph 3.2 of the application for leave, under the heading “Bribery allegations”.

CONCLUSION

18. The leave application has partially succeeded in that leave is granted to prosecute two out of three sets of arguments raised in the application for leave. In these circumstances, and given that the applicant was self-represented, it is appropriate that the parties bear their own costs.

ORDER

(1) The application for leave, under Order 5, Rule 9 of the Supreme Court Rules 2012, to apply for review of the decision of the National Court of 10 December 2019 in EP No 52 of 2017, is:

• (a) granted in respect of proposed grounds of review the subject of paragraphs 3.1 (Alleged breach of s 208(d) of the Organic Law – self-employed) and 3.2 (Bribery allegations); and
  
• (b) refused in respect of proposed grounds of review the subject of paragraph 3.2 (Alleged breach of s 87(1)(c) of the Organic Law – non-compliance with requirements for nomination).
  

(2) The parties shall bear their own costs of the application for leave.

Judgment accordingly.
___________________________________________________________Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent