SC2477

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 50 OF 2023 (IECMS) 
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

BETWEEN:
PETER NAMEA ISOAIMO
Applicant

V

PARU AIHI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Anis J
2023: 16th August, 23rd October

APPLICATION FOR LEAVE TO REVIEW – s.155(2)(b) – Constitution – no right of appeal to challenge a decision of the National Court on election petition decisions – s.220 – Organic Law on National and Local-level Government Elections – whether leave should be granted – consideration – exercise of discretion

Cases Cited:
Avia Aihi v The State [1981] PNGLR 81
Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345
Eric Ovake v. Bony Oveyara (2008) SC935
Application by Herman Joseph Leahy (2006) SC855
Application of Ludwig Patrick Shulze (1998) SC572
Kasap v Yama [1988-89] PNGLR 81
Kelly Kalit v John Pundari [1998] SC569
Application by Ben Semri (2003) SC723
Powi v. Kaku (2022) SC2290
Tulapi v. Luta [2000] PNGLR 120
Fairweather v. Singirok (2013) SC1293

Counsel:
G. J. Sheppard with G. Kult, for the Applicant
D. Kipa, for the First Respondent
W. Pep, for the Second Respondent

RULING

23rd October, 2023

1.	ANIS J:  I heard the applicant’s application for leave to review (filed 13 July 2023) on 18 August 2023 (Leave Application).  The Leave Application was contested.

2.	This is my ruling.

BRIEF BACKGROUND

3.	The applicant and the First Respondent were contestants in the 2022 General Elections for the Kairuku Open Electorate in the Central Province.  The applicant was later declared as member elect for Kairuku Open on 30 July 2022.  On 7 September 2022, the first respondent filed an election petition, that is, EP 35 of 2022, Paru Aihi v Peter Namea Isoaimo and Electoral Commission (EP 35/Petition).  On 29 June 2023, the National Court upheld a ground in the Petition, namely, bribery (ground 2) and made the following orders (Decision):

1.	The petition is upheld.

2.	The election of the First Respondent is declared void.

3.	The Second Respondent shall conduct a by-election for the Kairuku Open Electorate pursuant to s 212(3) of the Organic Law.

4.	The First Respondent shall pay the Petitioner’s costs on a party-party basis to be taxed if not agreed.

5.	The Petitioner’s security deposit shall be refunded.

APPEAL NOT AS OF RIGHT

4.	The Petitioner is aggrieved and intends to review the Decision thus files this Leave Application, that is, for leave to review.

5.	Case law appears settled on what criteria to apply when a court is considering an application for leave to review such as this.

6.	Section 220 of the Organic Law on National and Local-level Government Elections (ONLLGE) states, A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.  This section eliminates the rights of parties in election petition matters to appeal directly to the Supreme Court whether it be against an interlocutory or final decision of the National Court.

7.	However, s.155(2)(b) of the Constitution makes it possible for one to seek review against a decision of the National Court that arise out of an election petition that is filed under PART XVIII. – DISPUTED ELECTIONS, RETURNS, ETC. of the OLNLLGE.  It reads, The Supreme Court … has an inherent power to review all judicial acts of the National Court.  The genesis of s.155 (2) (b) is to be found in Avia Aihi v The State [1981] PNGLR 81.  Moving on, Division 2, Order 5 of the Supreme Court Rules 2012 as amended (SCR) sets out the appeal process and requirements for election petition matters.  Rule 9 in particular states that, An application for an election petition review in respect of a decision referred to under Rule 8 lies to the Court with leave only.  

8.	The criteria for the grant of leave to review of this nature are summarised by Hartshorn J in the case of Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345.  His Honour adopted and restated the 2 criteria that were applied by Injia DCJ, as he then was, in Eric Ovako v. Bonny Oveyara (2008) SC 935.  His Honour also added an additional criteria.  I summarise them herein as follows:

(a)	First, insofar as the application relates to a point of law, the only criteria to be satisfied is that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.

(b)	Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted; or

(c)	in any event (or regardless), whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

9.	I must say that I find a submission that was made by the second respondent in regard to the application of criteria (c) to be valid.  Let me elaborate.  The additional criteria that was proposed and applied by Hartshorn J in Sir John Pundari (supra) was made premised on a scenario where the applicant therein had applied for leave to review an election petition decision of the National Court that was made at an interlocutory stage whereby the trial Judge had refused to dismiss the proceeding.  The scenario in the present matter is different in that the applicant is appealing or seeking leave to review the final decision of the National Court in EP 35.  The applicant herein has no other options that are available to him unlike in Sir John Pundari where the applicant therein still had the right or opportunity to defend himself in the National Court even after when his application to dismiss the petition was dismissed.  The Leave Application herein is the applicant’s final option that is available to him as far as Court processes are concerned.  Thus, and given the seriousness and the special nature of the matter, that is, where the applicant is challenging an election result as well as is asserting his rights under the Constitution and the OLNLLGE to hold public office as a member of parliament, the Court should exercise caution and consider whether it is at all necessary that an applicant need to show an exceptional circumstance or whether an applicant should only and that it is sufficient for an application to, establish criteria (a) and (b) to the satisfaction of the leave Court.

PROPOSED REVIEW GROUNDS

10.	The applicant intends to raise 6 grounds for review.  I restate them in part as follows: 

(a)	At page [2] of the Decision, the Trial Judge fell into an errors of mixed fact and law when she upheld allegation 2 of the Petition and found that Marcel Makuri committed the offence of bribery contrary to section 103 (1)(iii) of the Criminal Code and that it was done with the knowledge and authority of the Applicant for the purpose of section 215(1) and 3 (a) of the Organic Law on National and Local Level Government Elections (“Organic Law”); and that the First Respondent is deemed to have committed the offence, having done an act for the purpose of aiding Marcel Makuri to commit the offence pursuant to section 7 (b) of the Criminal Code, and aided Marcel Makuri to commit the office pursuant to section 7(c) of the Criminal Code, …

(b)	At [130] of the Decision, the Trial Judge fell into an error of mixed fact and law in finding, that on 8 May 2022, the Applicant announced at a public gathering of several villages at Delena that he would deliver a dinghy to the Marehau Fishing Groups and that on 20 June 2022, the Applicant conducted a rally at Delena Village at which Marcel’s wife said publicly to the First Respondent: “I thank you, Honorable Member, for giving us, me and my husband, the dingy. On behalf of Delena people, we would like to thank you for the purchase. You will have the numbers during the voting”, …

(c)	At [132] of the Decision, the Trial Judge fell into an error of mixed fact and law in finding, against the weight of the evidence, that Marcel Makuri orchestrated the delivery of the boat to Delena Village on 13 June 2022 with the intention of inducing the electors among his clansmen, their families and other villagers present on that day, to vote for the First Respondent, whether by giving the First Respondent their first, second or third preference, …

(d)	At [147] & [148] of the Decision, the Trial Judge erred in mixed fact and law in finding, that the act of bribery by Marcel Makuri contrary to section 103(a)(iii) of the Criminal Code was done with the knowledge and authority of the Applicant for the purposes of section 215 (1) and (3)(a) of the Organic Law …

(e)	At [155] & [155] (sic) of the Decision, the Trial Judge erred in mixed fact and law in finding that section 215(3)(a) extends the circumstances in which an election will be automatically voided from those where the candidate might strictly be found to “commit” an offence of bribery pursuant to the strict requirements of section 7 of the Criminal Code to those where the offence is committed with the candidate “knowledge or authority” and that the evidence also establishes that the First Respondent committed bribery contrary to section 103 (a)(iii) applying section 7 of the Criminal Code, in particular section 7 (b) and (c), …

(f)	At [180(3)] of the Decision, the Trial Judge erred in Law in Ordering that the Second Respondent shall conduct a by-election pursuant to section 212(3) of the Organic Law, …

CONSIDERATION - LEAVE

11.	In considering the Leave Application, I note the submissions of the parties.  I note that the second respondent supports the application whilst the first respondent opposes it. 

12.	The decision of the trial Judge in EP 35 is attached to the affidavit of the applicant filed 13 July 2023.  It is marked under annexure PNI – 2.  Of the 4 grounds that were raised in the Petition, the trial Judge upheld ground 2 where the Court held, and I quote in part:

3.	On Allegation No 2, the evidence established that Marchel Makuri committed the offence of bribery, contrary to s 103(a)(iii) of the Criminal Code; and that this was done with the knowledge and authority of the First Respondent for the purpose of s 215(1) and 3(a) of the Organic Law; and that the First Respondent is deemed to have committed the offence, having done an act for the purpose of aiding Marcel Makuri to commit the offence pursuant to s 7(b) of the Criminal Code, and aided Marcel Makuri to commit the offence pursuant to s 7(c) of the Criminal Code.

4.	Accordingly, the election of the First Respondent at the 2022 National General Election is declared void.

13.	I have had the benefit of reading the said decision.  I have also had the benefit of considering the proposed grounds of review of the findings of the trial Judge.  I note that the proposed grounds of review raise questions of mixed fact and law as opposed to separate error(s) of law and of fact.  And so, I ask myself this.  Do the proposed grounds of review raise important points of mixed fact and law?  And also, whether this is an exceptional case or matter which shows substantial manifestation of injustice if leave is not granted or whether a review is warranted in the interest of justice.

14.	I will assess these considerations together.  In my view, I find, premised on the proposed grounds of review, that the applicant has established these requirements where I should exercise my discretion and grant leave for review.  The main considerations I take into account are as follows:

•	The grounds suggest important points of law that the review Court should consider, that is, in regard to the National Court’s wide discretion that is bestowed upon it under s.217 of the OLNLLGE as opposed to the mandatory requirement for strict compliance when pleading allegations or grounds of petition as required under s.208(a) of the OLNLLG; whether an exercise of power under s.217 to expound on allegations not expressly pleaded may be regarded as appropriate application of discretion under s.217 to override the pleading requirements under s.208; whether expounding on a pleading by a trial Judge exercising discretion under s.217 may be regarded as amending a petition thus in breach of the requirements of the court rules or the ONLLGE; relevant cases include Powi v. Kaku (2022) SC2290 and Tulapi v. Luta [2000] PNGLR 120.

•	Should the Court draw a distinction between campaign fundings, funds and items purchased for use by a candidate for his or her campaign programmes or activities during or before the campaign period, as opposed to monies, goods, items or things that are purchased that may be deemed illegal or in breach of the OLNLLGE or the Criminal Code; should there be a distinction, or should they all fall under one umbrella for the Court to consider?  Is that distinction vital?

•	Whether the trial Judge’s findings on the allegation of bribery breaches the requirements under s.215(1) and (3) of the OLNLLGE; case: Fairweather v. Singirok (2013) SC1293.

•	Whether s.212(3) of the OLNLLGE is a source of jurisdiction to order a by-election.

SUMMARY

15.	In summary, I am minded to and will grant the Leave Application.

COST

16.	An order for cost is discretionary.  Cost will follow the event against the first respondent on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

17.	I make the following orders:

1.	Leave is granted to the Applicant to apply for review against part of the written decision of the National Court, delivered on 29 June 2023 in EP 35 of 2022 – Paru Aihi v Peter Namea Isoaimo and the Electoral Commission.

2.	The applicant shall file his review within 14 days from today, and further, the applicant shall observe other requirements including service under sub-division 5 of Division 2 of Order 5 of the Supreme Court Rules as amended. 

3.	The first respondent shall pay the applicant’s costs of the application on a party/party basis to be taxed if not agreed.
________________________________________________________________
Young & Williams:	Lawyers for the Applicant
Wang Dee:	Lawyers for the First Respondent 
Harvey Nii:	Lawyers for the Second Respondent