SC641

PAPUA NEW GUINEA

[In The Supreme Court of Justice]

SCR 80 of 1998

BETWEEN:

JONATHAN KUMBA
Applicant

AND:

KUK KULI
First Respondent

AND:

RUBEN KAIULO, ELECTORAL COMMISISONER
OF PAPUA NEW GINEA
Second Respondent

SCR 83 of 1998

BETWEEN:

KUK KULI
Applicant

AND:

JONATHAN KUMBA
First Respondent

AND:

ELECTORAL COMMISSIONER
Second Respondent

Waigani:	Kapi DCJ., Sheehan J., Kirriwom J.
26th August 1998, 8th June 2000

Judicial Review under s 155 (2) (b) of the Constitution – nature and scope of judicial review in election cases discussed.

National Parliament – Election Petition – Pleading of facts under s 208 (a) of the Organic Law on National and Local Level Government Elections discussed.

Counsel:
P. Dowa for Mr Jonothan Kumba
K. Naru for Mr Kuk Kuli
J. Kongri for the Electoral Commission

8th June 2000

Kapi DCJ: After the result of the 1997 general elections in respect of the Anglip-South Waghi Electorate, Jonathan Kumba, a losing candidate (hereinafter referred to as the applicant), filed a petition against the result ( EP No. 9 of 1997).

Mr Kuk Kuli, the winning candidate (hereinafter referred to as the first respondent) and the Electoral Commission (hereinafter referred to as the second respondent), filed application to dismiss the petition on the basis that the petition did not plead facts contrary to s 208 (a) of the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law). After hearing the application, the National Court struck out paragraphs 5.9, 5.10, 5.11, 6, 7, 8, 11, 12 and refused to strike out the balance of the petition.

The applicant and the first respondent filed separate reviews against the decision. 

The applicant in (SCR 80 of 1998) seeks to quash the decision of the trial Judge and to restore the paragraphs that have been struck out.

The first respondent filed a separate review (SCR 83 of 1998) and he seeks to quash the decision of the trial judge with the effect of striking out the remaining paragraphs of the petition. 

The second respondent has not formally filed a review but supports the decision of the trial judge in SCR 80 of 1998 and supports the submissions put by the first respondent in respect of SCR 83 of 1998.

These two reviews were listed together for hearing before us. While the reviews seek to review the same decision and raise issues of pleading, they raise separate and distinct issues of pleading and need not be heard jointly. We decided to deal with the reviews separately one after the other.

SCR NO. 80 of 1998

Counsel for the first respondent filed an application on the competency of this review on the basis that the applicant did not personally sign the application for judicial review. However, he abandoned the competency issue by agreement of the parties and that the applicant who was present in Court agreed through his counsel to sign the application. This has been complied with.

The law relating to review of a decision of the National Court with respect to election matters is now well settled. In the Application by Ludwig Patrick Shulze (Unreported judgment of the Supreme Court dated 9th October 1998, SC572), the Supreme Court reviewed the authorities. In that case, I set out the general principles at pages 3-4 of the judgment. So far as election matters are concerned, at page 4, I stated:

"In election matters, the Organic Law, s 220 prohibits any appeal from a decision of National Court. In SC Review No. 5 of 1988: Kasap and Yama [1988-89] PNGLR 197 the Supreme Court held that this provision effectively prohibits any ground of appeal that may be brought under the provisions of Supreme Court Act. The intention is clear that certain matters cannot be appealed. However, the right of judicial review under s 155 (2) (b) of the Constitution is not affected. The Court held that where there is a prohibition against an appeal, an applicant does not have to satisfy the requirement for leave. This was subsequently approved in SC Review of 1992: Application by Mionzing [1992] PNGLR 122. An applicant in an election matter need only to show that the ground relied upon satisfy the criteria set out in PNG v Colbert (supra)."

In the same case, Injia J. at page 9 summarized the law as follows:

"Review of such decision of the National Court under s 155 (2) (b) should only be granted in the most exceptional of cases on an important point of law which clearly has merit or on points of evidence where there is a gross error clearly manifested on the face of the record."

In applying the principles to issues of pleadings, I stated at page 5:

"The law relating to pleading the facts for purposes of s 208 (a) is settled and the requirement is that a petitioner must plead the material facts which gives rise to a ground. The pleading of the ground itself is not sufficient. Facts giving rise to the ground must be pleaded (see Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99). There is no suggestion in the present case that the trial judge did not apply the law correctly. I cannot find any ground which satisfies the criteria upon which the Court may exercise its discretion in favour of the applicant"

In the present case, there is no question of any misapprehension of the law as set out in Holloway’s Case (supra). The grounds of review relate to whether or not the petition pleaded the facts which gives rise to the ground alleged in accordance with s 208 (a) of the Organic Law. The proper test in the circumstances is; whether, the trial judge made an error where some substantial injustice is manifest?

The nature of the grounds of review relied upon by the applicant in the present case may be summarized as follows. So far as paragraphs that have been struck out, counsel for the applicant submits that the trial judge made a gross error in that the petition clearly pleads the facts to support the grounds in accordance with s 208 (a) of the Organic Law. 

Counsel for the respondents support the judgment of the National Court in that while the relevant paragraphs plead facts, they are couched in general terms and therefore are unambiguous.

Paragraph 5.9, 5.10, 5.11

It is necessary to examine the whole of paragraph 5 of the petition. This paragraph begins with the introductory part:

"It is alleged that in the late evening of Sunday 15th June 1997 at about 12.00 pm before the polling at Aviamp No. 1, the First Respondent and his agents, servants and supporters, engaged in the following acts of undue influence and threats committed against the 437 enrolled eligible voters for the 1997 National Elections in the Anglimp-South Waghi Electorate with the knowledge, approval and authority of the First Respondent contrary to Section 215 of the Organic Law on National and Local-level Government Elections Act 1997 and Section 102 of the Criminal Code Act Chapter No. 262."

No complaints have been raised about this particular part of the pleading. This paragraph is concerned with the ground of undue influence pursuant to s 215 of the Organic Law and s 102 of the Criminal Code. Paragraph 5.1 – 5.11 sets out the particulars of the acts of undue influence. The trial judge found that paragraph 5.1 – 5.8 did not offend s 208 (a) of the Organic Law. 

However, the trial judge struck out paragraphs 5.9 – 5.11. These paragraphs are pleaded in the following terms:

"(9)	Kupasl Konga in the company of Michael Emi Mond Simon Ol, Epi Doa, John Tombil, Simon Bras, and Jaruka Aviamp and about 30 – 50 others, all supporters of the First Respondent succeeded in threatening a total 437 eligible voters whole names and full particulars are as listed in Schedule No 1 of this Petition that unless they voted for the First Respondent they would come back and kill them, rape women, destroy their properties and chase them out of their land.

(10)	In fear of their lives, properties, and family interests,  the said 437 people from Aviamp No. 1 and Kugmi villages voted for the First Respondent instead of the Petitioner against their will contrary to Section 102 of the Criminal Code and Section 50 of the Constitution.

(11)	As a result, about 437 people did not exercise their constitutional rights to vote for the Petitioner and if they had exercised their rights, it would have affected the outcome of the elections and therefore the election of the First Respondent should be declared null and void."

The trial judge gave the following reasons for striking out the pleadings:

"However, as to paragraphs 5.9, 5.10, 5.11, they are too general, referring to 437 eligible voters being threatened. I do not think one can expand the threat too far to affect those not named in specific acts of threats or undue influence. I therefore strike those allegations contained in sub-paragraphs 5.9, 5.10, 5.11 of this allegation."

These paragraphs have to be read and taken together with the rest of paragraph 5 and in particular the introductory part. The effect of the whole of the paragraph is that on Sunday 15th June 1997 at about 12.00 pm, Kupal Konga in the company of Michael Emi Mond, Simon Ol, Epi Doa, John Tombil, Simon Bras, and Jaruka Aviamp and about 30 – 50 people threatened 437 people whose names are listed in the schedule were threatened that if they do not vote for the first respondent, they would be killed, raped, property destroyed and chased out of their land. The people in fear of their lives voted for the first respondent and therefore did not exercise their rights to vote freely.

I find that the pleading in the whole of paragraph 5 sufficiently pleads facts in support of the ground of undue influence. Whether or not these allegations or the ground will succeed at the trial is another matter. It is clear that the whole of paragraph 5 pleads facts to support the ground of undue influence. I find that the trial judge made an error on the face of the pleadings.

Paragraph 6 & 7

These two paragraphs may be considered together as one follows the other. I have examined the paragraphs and they again plead undue influence on a particular day at a particular place and set out the acts of undue influence. The paragraphs also plead the number of people whose votes were affected. I find that the petition pleads facts to support the ground of undue influence. I find that the trial judge made an error on the face of the pleadings.

Paragraph 8

I have examined this paragraph and again it pleads a specific act of undue influence and then sets out the details of the facts to support the allegation. I find that the trial judge also made an error on the face of the pleadings.

Paragraphs 11

This paragraph pleads irregularities and gross negligence committed by the second respondent, its agents and servants. It then pleads the particulars of the irregularities and gross negligence. This in my view is in compliance with s 208 (a) of the Organic Law. The trial judge appears to have struck out this paragraph on the basis that it is a duplication of the allegations in paragraphs 9 and 10 of the petition. I find this conclusion difficult to appreciate. The allegations in paragraphs 9 and 10 relate to acts of undue influence by the first respondent, his agents and servants. The allegations in paragraph 11 relate to irregularities and gross negligence by the second respondents, agents and servants. They do not deal with the same issue. In my view the trial judge misapprehended the true nature of the pleadings in these paragraphs.

Paragraph 12

The trial judge also struck out this paragraph on the basis that it was a duplication of paragraphs 9, 10 and 11 of the petition. Paragraph 12 pleads the issue of illegal practice by the second respondent, agent and servants. This is different from the allegations pleaded in paragraphs 9, 10 and 11. I find that the trial judge misapprehended the nature of this pleading. He fell into error.

Conclusion
I find that the pleadings clearly comply with s 208 (a) of the Organic Law and the grounds ought to go to trial. I am satisfied that the striking out of paragraphs resulted in substantial injustice to the applicant and I would in the exercise of my discretion quash the decision of the trial judge under s 155 (2) (b) of the Constitution and restore the paragraphs that were struck out.

SCR 83 of 1998

The first respondent seeks to strike out the remaining grounds of the petition. I have examined all the grounds of review and essentially they all allege that the trial judge fell into error in that the pleadings did not plead clearly and precisely the various facts. I have also examined the relevant paragraphs in the petition and I am not convinced that the grounds of review raised come within the principles that govern judicial review under s 155 (2) ( b) of the Constitution.

I have reached the conclusion that the petition pleads the facts in accordance with s 208 (a) of the Organic Law. The respondents should be able to prepare their trial on the facts pleaded. Whether or not there is sufficient pleading is a conclusion reached on the pleadings. These are matters which could have been the subject of appeal under the Supreme Court Act. However, these matters are clearly prohibited by s 220 of the Organic Law. If no facts were pleaded at all to support the grounds relied upon in the petition, that would be an error capable of being reviewed under s 155 (2) (b) of the Constitution. The pleadings in the present case do not fall under this category. 

I would like to point out a procedural matter which has affected the speedy trial of the petition. This may be taken into account in future petitions. It appears that the National Court has allowed a matter of pleading to be taken in a piece meal manner which has resulted in the petition not proceeding to trial. The issues which have arisen in these reviews are matters which could have become clearer had the trial proceeded. I have found in these two reviews that there are enough facts pleaded for all parties to proceed to trial. It is important to bear in mind s 217 of the Organic Law which directs the Court to be guided by the substantial merits and good conscience of each case to determine the substantive or real issues without resorting to technical matters. This is subject to the limited area of pleading the facts required by s 208 (a) of the Organic Law.

It goes without saying that counsel for all parties should now make appointment with the Chief Justice to fix the petition for trial.

Sheehan J: 	I agree with the Deputy Chief Justice and I have nothing further to add.

Kirriwom J:	 I agree with the Deputy Chief Justice and I have nothing further to add.
_________________________________________________________________
Lawyers for the Applicant			:	Paulus Dowa Lawyers
Lawyers for the 1st Respondent		:	Carter Newell Lawyers
Lawyers for the 2nd Respondent		:	Nonggor & Associates