Hagahuno v Tuke [2020] PGSC 58; SC1966 (2 July 2020)

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Waigani: Mogish J, Cannings J,
Manuhu J, Koeget J, Tamate J
2020: 12^th June, 2^nd July

PRACTICE AND PROCEDURE – objection to competency of Constitution, s 155(2)(b) application for review of National Court decision, after leave granted for review – whether the application contained grounds of review beyond the granting of leave – whether inclusion of new ground of review, for which leave to argue had not been granted, taints the whole review, making it incompetent.

The respondent to an application under s 155(2)(b) of the Constitution to review a decision of the National Court on an election petition, objected to the competency of the application, subsequent to leave being granted to make the application, on five grounds: (1) ground of review 5.7 was an entirely new ground, leave to apply for review on that ground had neither been sought nor granted; (2) and (3) leave to argue grounds of review 5.1and 5.2 was not sought or granted; (4) leave to argue grounds 5.3 and the two grounds 5.5 was not sought or granted; and (5) the form of the application for review was non-compliant with the Supreme Court Rules.

Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Hagahuno v Tuke & Electoral Commission (2020) SC1923
Kuman v Digicel (PNG) Ltd (2017) SC1638
Lovika v Malpo (2019) SC1895
Lucas Dekena v Nick Kuman (2018) SC1715
Michael Kandiu v Powes Parkop (2015) SC1597
Papua New Guinea Law Society v David Rickey Cooper (2016) SC1553
Paru Aihi v Moi Avei (2003) SC720
The State v Gaian (2019) SC1879
Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (2012) SC1201

This was an objection to competency of an application for review under s155(2)(b) of the Constitution.

W Hagahuno, the applicant, in person
P Mawa, for the First Respondent
H Nii, for the Second Respondent

1. BY THE COURT: This is a ruling on an objection to competency of an application by William Hagahuno to the Supreme Court under s 155(2)(b) of the Constitution for review of a decision of the National Court in an election petition. The objection is made by the second respondent, the Electoral Commission, and supported by the first respondent, Johnson Tuke, the member for Kainantu Open in the National Parliament.

2. Mr Hagahuno, the applicant, was granted leave by Cannings J, as a Judge of the Supreme Court, to apply for review of the decision of Numapo AJ (as he then was) in EP No 52 of 2017 of 10 December 2019 (Hagahuno v Tuke & Electoral Commission (2020) SC1923).

3. In the decision of 10 December 2019, the National Court upheld objections to competency of Mr Hagahuno’s petition, challenging Mr Tuke’s election as member for Kainantu Open in the 2017 general election, and dismissed the petition. The trial judge held that the petition failed to meet the requirements of s208 (requisites of petition) of the Organic Law on National and Local-Level Government Elections in three respects:

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:

5. On 12 March 2020 Mr Hagahuno filed his application for review, which purported to be in compliance with the granting of leave. The grounds of review are set out in paragraph 5 in the following way:

5.1 – alleged breach of s 208(d) of the Organic Law re one of the attesting witnesses describing his occupation as “self-employed”;

5.3 – bribery re (a) 45 Street, Kainantu Town, (b) Hogu villagers, (c) Kainantu Rugby League Oval, (d) Ino-Onka villagers;

5.5 [note this is the second 5.5, an obvious numbering error that has not been corrected] – particular allegations re Kainantu Rugby League Oval;

6. On 23 April 2020 the Electoral Commission filed a notice of objection to competency, relying on five grounds of objection:

(1): ground of review 5.7 is an entirely new ground, leave to apply for review on that ground was not sought or granted;

(2) and (3): leave to argue grounds of review 5.1 and 5.2 was not sought or granted;

(4): leave to argue grounds 5.3 and the two grounds 5.5 was not sought or granted; and

(5): the form of the application for review is non-compliant with the Supreme Court Rules 2012.

7. Ground 5.7 of the review argues that the trial judge erred in law and fact in ruling that the ground of the petition that alleged that the first respondent paid bribes to Ino-Onka villagers ‘in or about mid-June 2017’ was vague and ambiguous and failed to meet the requirements of s 208(a) of the Organic Law.

8. The respondents argue that this is an entirely new ground of review, not covered by the granting of leave of 28 February 2020, and for this reason alone, the entire application for review should be dismissed as incompetent.

9. Mr Hagahuno concedes the first part of the respondents’ argument, but not the second. He agrees that yes, it is a new ground of review, which he included in the application for review as the argument about the alleged bribery of Ino-Onka villagers was inadvertently omitted from the leave application. The remedy for this error on his part is for him to ask the Court to grant him leave to argue this ground of review, alternatively to strike out the ground of review. It would not be fair, however, for his whole application to be dismissed.

10. We agree that ground 5.7 of the application for review (and also ground 5.3(d), which was the precursor to it) is a new ground, not covered by the leave application. It is too late for it to be included by way of a grant of leave and it should at least be struck out from the application. As to whether this has the consequence that the application is rendered incompetent, we will return to that issue after considering the other grounds of objection.

GROUNDS OF OBJECTION 2 AND 3: LEAVE TO ARGUE GROUNDS OF REVIEW 5.1 AND 5.2 WAS NOT SOUGHT OR GRANTED

11. Ground 5.1 of the review argues that the trial judge erred in law in holding that the term ‘self-employed’ was an inadequate description of one of the attesting witness’s occupation and dismissing the petition on this ground alone. Ground 5.2 of the review argues that his Honour erred in law by adopting the dissenting judgment of Sakora J in Paru Aihi v Moi Avei (2003) SC720, rather than following the majority in that case, whose reasoning would have resulted in a finding that ‘self-employed’ is an adequate description.

12. The respondents argue that although the applicant was granted leave to argue alleged errors of law by the trial judge in dealing with the statement of occupation of the attesting witness, he was granted leave only to argue the points of law in paragraph 3.1 of his application for leave. He has travelled beyond the terms of the granting of leave, and this renders his application incompetent or in the alternative grounds of review 5.1 and 5.2 should be struck out.

13. We consider that grounds of review 5.1 and 5.2 repackage the arguments set out in paragraph 3.1 of the leave application, and are verbose, and read more like a submission than a ground of review (which should succinctly state the legal argument being made and the alleged errors of law of the trial judge, without elaboration and citation of authority). However, the whole of grounds of review 5.1 and 5.2 is devoted to the argument as to how the trial judge erred in law in dismissing the petition on the ground that one of the attesting witnesses had stated his occupation as ‘self-employed’. This is not a new argument or a new ground of review. It is covered by the granting of leave. We refuse grounds of objection Nos 2 and 3.

GROUND OF OBJECTION 4: LEAVE TO ARGUE GROUND 5.3 AND THE TWO GROUNDS 5.5 WAS NOT SOUGHT OR GRANTED

14. Ground 5.3 of the review argues generally that the trial judge erred in law in dismissing the bribery grounds of the petition, in which it was alleged that the first respondent bribed voters in the following categories:

15. The first ground of review 5.5 elaborates on the arguments introduced in ground of review 5.3 in relation to alleged bribery by the first respondent of Hogu villagers.

16. The second ground of review 5.5 elaborates on the arguments introduced in ground of review 5.3 in relation to alleged bribery by the first respondent at Kainantu Rugby League Oval.

17. The respondents argue that although the applicant was granted leave to argue alleged errors of law by the trial judge in dealing with bribery grounds of the petition relating to (a) 45 Street, Kainantu Town, (b) Hogu villagers and (c) Kainantu Rugby League Oval,he was granted leave only to argue the points of law in paragraph 3.2 of his application for leave. He has travelled beyond the terms of the granting of leave, and this renders his application incompetent or in the alternative, grounds of review 5.3 and both grounds 5.5 should be struck out.

18. In support of that approach, Mr Nii, for the Electoral Commission, presented a detailed and elaborate submission pointing out many areas of literal distinction between the leave application and the application for review and many new legal points raised in the application for review that were not mentioned in the leave application.

19. We are not convinced, however, that there is anything genuinely new in the application for review that was not at least foreshadowed in the leave application and therefore was brought within the scope of the grant of leave.

20. We agree that grounds of review 5.3 and both grounds 5.5 repackage the arguments set out in paragraph 3.2 of the leave application, and are verbose, and read more like submissions than grounds of review. However, all of ground of review 5.3 and both grounds 5.5 are devoted to arguments about how the trial judge erred in law in dismissing the petition on the ground that the allegations in the petition were confusing, ambiguous and lacking particularity and that his Honour erred by insisting on an unnecessary level of detail and by requiring the petitioner to specify the precise provisions of the Criminal Code relied on to argue the allegations of bribery.

21. An application for leave for review is required by the Supreme Court Rules, Order 5, Rule 10 to be set out in accordance with form 5A, which provides:

IN THE SUPREME COURT OF JUSTICE	SC REVIEW No. .... 20.... *(Insert Number and Year)*
	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
	A.B. Applicant
	C.D. Respondent

APPLICATION will be made to the Supreme Court, at Waigani at ............... am/pm on the ............ day of ................. 20...., for:

(state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case)

22. While paragraph 2, “Grounds”, would appear at first sight be the natural place in which to plead proposed grounds of review, it is modified by the requirement to “state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case”. The Rules do not actually require an applicant to state the proposed grounds of review in a way that would require them to be reflected literally, as a copy-and-paste, in the application for review, in the event that leave is granted.

23. We consider that this ambiguity in the requirements of the Rules, and form 5A in particular, give an applicant leeway to depart, in the application for review, from the literal wording of the proposed grounds of review. We see no problem in this. It is only when an applicant introduces an entirely new ground of review, that there is a real problem that needs to be addressed.

24. Very little is to be gained by excessive nit-picking over the way in which grounds of review have been pleaded in an application for review, after leave has been granted, and comparing and contrasting the grounds of review with the way in which the arguments were set out in the leave application, and spotting differences in wording and new or different grounds in the application for review,and then arguing that new arguments are being raised, leave for which has not been granted. And then arguing that the whole application for review is incompetent.

25. If we allow respondents to engage the Court in this time-consuming exercise, and if the Court too readily dismisses applications for review on competency grounds, after leave has been granted, we are making a mockery of the review jurisdiction of the Supreme Court under s 155(2)(b) of the Constitution. We are providing scope for another round of interlocutory proceedings and getting further away from allowing grievances about an election to be resolved quickly after an election.

GROUND OF OBJECTION 5: THE FORM OF THE APPLICATION IS NON-COMPLIANT WITH THE RULES

26. The respondents argue that the form of the application for review is non-compliant with the Supreme Court Rules 2012 in that it introduces in the title to the proceedings, extraneous words that are not in the required form, viz:

IN THE SUPREME COURT OF JUSTICE	SC REVIEW No. .... 20.... *(Insert Number and Year)*
	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* [underlining added]**

27. The respondents point out that the underlined, extraneous words are not in form 5B, which is the required form for an application for review, under Order 5, Rule 19(e) of the Supreme Court Rules.

IN THE SUPREME COURT OF JUSTICE	S.C. REV. NO. ... OF 20... (Insert number and year)
	*Review Pursuant to Constitution* Section 155(2)(b) Application by (insert name of party seeking Review)**
	Respondents *(insert name of party seeking Review)*

29. The respondents are correct. The underlined words And in the Matter of Part XVIII of the Organic Law on National and Local-level Government Elections are extraneous to form 5B. There was no need to include them. They should not have been included. The actual form of the application for review is non-compliant with the Rules.

30. Is this a material error? Does this prejudice the respondents? Is the actual form substantially non-compliant with the Rules? Is it an abuse of process? Is this a good reason to dismiss the application? No.

31. Mr Nii cited Kandiu v Parkop (2015) SC1597 as authority for the proposition that strict compliance with the form of an application for review, and nothing less, is necessary. Mr Nii cited the following dicta from that case in support of the strict compliance approach:

50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the Rules are properly complied with bearing in mind that non-compliance will be fatal to the Review.

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).

32. Unfortunately, Mr Nii failed to point out that he was citing a passage from the dissenting judgment of Davani J, who held that substantial compliance with a form was not sufficient and that the application for review was incompetent and should be dismissed. The judges in the majority, Kariko J and Toliken J, did not share her Honour’s opinion on substantial compliance not being good enough, and proceeded to dismiss the objection to competency and ordered the application for review to proceed to hearing.

33. We consider that substantial compliance with form 5B of the Rules is sufficient in cases such as this where the discrepancy between the actual application and the required form is trivial and incapable of causing prejudice to the respondents.

34. We have upheld one of the five grounds of objection to competency: ground 5.7 of the application for review is a new ground, not covered by the leave application. Does that mean that the whole application is incompetent and should be dismissed?

35. If we were to follow Lucas Dekena v Nick Kuman (2018) SC1715 (Kandakasi J, Geita J, Lindsay J) in which an application for review of a decision of the National Court on an objection to competency was dismissed as incompetent as it introduced new grounds of review not covered by the granting of leave, the answer would probably be yes.

36. We appreciate that Dekena v Kuman is a recent decision of the Supreme Court and that it stands as authority for the proposition that a strict approach must be taken in all cases in which an applicant is granted leave to make an application under s 155(2)(b) of the Constitution: applicants must not stray from the boundaries set by the granting of leave. To do so amounts to an abuse of the privilege entailed in the grant of leave and to abuse of process and can be tantamount to contempt of court.

37. That reasoning was replicated in Lovika v Malpo (2019) SC1895 (Kandakasi DCJ, Bona J, Shepherd J) to dismiss an application for review as being incompetent due to the inclusion of grounds of review in respect of which leave had not been granted.

38. We acknowledge that the Court has been led in both those recent cases by Kandakasi DCJ, who has been consistent in what can fairly be described as taking a strict approach to applications for review: the application must be strictly in accordance with the granting of leave and the inclusion of new grounds not covered by the grant of leave renders the application incompetent, and it is summarily dismissed. In taking that strict approach his Honour adopted his dissenting opinion on a similar point of law in the context of notices of appeal in Kuman v Digicel (PNG) Ltd (2017) SC1638.

39. The issue there was whether the inclusion in the notice of appeal of grounds of appeal that required, but did not have, leave (as they involved questions of fact) rendered the appeal incompetent. Kandakasi DCJ ruled that it did and would have dismissed the appeal. The Judges in the majority (Manuhu J and Logan J) ruled otherwise and followed what was then the prevailing authority on objections to competency of appeals: Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221 (Lenalia J, Kawi J, Logan J). That decision adopted a pedigree of reasoning found in decisions of overseas courts, including the High Court of Australia, which is reflected in the following passage from the joint judgment of the Court in Coca Cola Amatil:

An objection under O 7, r 14 of the [Supreme Court Rules] is, materially and as that rule expressly provides, “to the competency of an appeal”, not to the notice of appeal. An appeal will be competent if, having regard to the notice by which the appellant has sought to initiate it, the jurisdiction of the Supreme Court has been invoked. A concession that the notice contained at least one ground by which the court’s jurisdiction was validly invoked is necessarily a concession that the appeal is competent. That remains so even though it may be that other grounds specified in the notice lack merit, including a lack of merit because they seek to raise an issue which the court does not have jurisdiction to entertain. That absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se cannot be over-emphasised.

40. In a number of subsequent cases this Court followed Coca Cola Amatil, including:

41. We are of the view that Coca Cola Amatil remains good law and, to the extent that there are conflicting lines of authority on the question of whether an appeal that has just one proper ground of appeal is competent, we would endorse Coca Cola Amatil as being correct and more authoritative than the alternative line of authority reflected in the dissenting opinion of Kandakasi DCJ in Kuman v Digicel (PNG) Ltd (2017) SC1638, which has been channelled in to the decisions in Lucas Dekena v Nick Kuman (2018) SC1715 and Lovika v Malpo (2019) SC1895.

42. As for the present case, we conclude that the inclusion of the new ground of review 5.7 (re Ino-Onka villagers) does not render the application for review incompetent. The jurisdiction of the Court has been properly engaged by the grounds of review 5.1, 5.2, 5.3, 5.4 and the two grounds 5.5.

43. The Supreme Court, not being bound by its own decisions, is entitled, when faced with conflicting lines of authority, to adopt that which is most appropriate to the circumstances of the case and advances the interests of justice. In this case, leave for review having been granted, and the Court’s jurisdiction having otherwise been engaged, the inclusion of the new ground does not make the application incompetent or result in the proceedings being dismissed. That would be an unfair result.

44. The objection to competency will be dismissed. Costs will follow the event. We will order that the application for review proceed to an expeditious hearing. This is important as the next general election is less than two years away.

________________________________________________________________
Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

Supreme Court of Papua New Guinea

Hagahuno v Tuke [2020] PGSC 58; SC1966 (2 July 2020)