SC2399
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 4 OF 2023

BETWEEN
HENRY JONS AMULI
Applicant

AND
DELILAH PUEKA GORE
Frist Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Makail, J
2023: 2nd March & 25th May

SUPREME COURT – Practice & Procedure – Contested application for leave to review – Leave sought to review final judgment of National Court – Election petition - Constitution – Section 155(2)(b) – Supreme Court Rules – Order 5, rules 9 & 14

SUPREME COURT – Practice & Procedure – Objection to competency – Application for leave to review – Filing of application for leave to review outside business hours of Registry – Rules on business hours of Registry are not obligatory but directory – Effect of – National Court Rules – Order 2, rules 11 & 12 – Supreme Court Rules – Order 2, rule 1(b) & (h) 

SUPREME COURT – Practice & Procedure – Objection to competency – Ground to dismiss proceeding – Failure to deposit security deposit at the time of filing the application for leave to review – Deposit of security deposit made prior to time of filing the application for leave to review – Objection misconceived – Supreme Court Rules – Order 5, rules 13 & 14

  Cases Cited:

Sandy Talita v. Peter Ipatas & Electoral Commission (2016) SC1603
Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1276
Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935
Sir John Thomas Pundari v. Peter Yakos & Electoral Commission (2013) SC1276
Sir John Thomas Pundari v. Peter Yakos & Electoral Commission (2023) SC2345

Counsel:

Mr.  S. Dewe with Mr. D. Dupre, for Applicant 
Mr. D. Kipa, for First Respondent
Mr. A. Pep, for Second Respondent

RULING ON APPLICATION FOR LEAVE TO REVIEW

25th May, 2023

1.	MAKAIL J: This is a contested application for leave to review from a final judgment of the National Court in an election petition pursuant to Section 155(2)(b) of the Constitution and Order 5, rules 9 & 14 (“application for leave”) of the Supreme Court Rules (“SCR”). 

2.	After a contested trial, on 24th January 2023 the National Court upheld the election petition on two instances of bribery and amongst other orders, declared the election of the applicant, absolutely void.  

3.	The first case of bribery was that on 7th July 2022 at Torogota village, Ward 9 in Higaturu LLG, Dennis Porari gave to Elvis Katuho and Kesira Pauline K50.00 and K100.00 respectively and uttered the words “votim candidate blo mi” Henry Amuli.  Elvis Katuho and Kesira Pauline gave evidence in support of this ground.  The National Court accepted their evidence.

4.	The second case of bribery was that on 6th July 2022 at Torogota village, in Higaturu LLG, Dennis Porari gave to K20.00 to Graham Ita and uttered the words “son kaikai na tingim candidate blo mi” Henry Amuli.  Graham Ita did not give evidence.

5.	In both cases, John Siriri gave evidence.  In his affidavit he asserted Dennis Porari was the person who gave cash to him.  Dennis Porari gave evidence for the applicant and categorically denied John Siriri’s claim.  When John Siriri gave evidence, he retracted his previous assertions in his affidavit that the applicant gave food and cash to Dennis Porari and him to give to the electors.   

6.	The trial judge declared John Siriri a hostile witness and ordered that he be detained, to be dealt with, later. 

7.	 I have heard submissions from learned counsel for the parties.  Also, I have read their respective written submissions.  Learned counsel have correctly referred to the relevant principles for grant of leave in their respective submissions.  The first observation I make is, I agree with learned counsel for the first respondent that the grounds for the application for leave a many, lengthy, and convoluted. 

8.	As a result, a reader picking up the application for leave and reading it will, on face value, have great difficulty in identifying the precise issues that the grounds bring up.  An application for leave which pleads many grounds, is lengthy and convoluted can be categorised as being an abuse of process and stands the risk of being struck out for being incompetent. 

9.	It was because of this that learned counsel for the applicant went to great lengths to explain each of the grounds in the application for leave in his submissions and to bring out the precise issues for determination.  

Preliminary Objection to Competency of Application for Leave

(a)	Application for Leave filed outside the Registry Hours of Business

10.	But first, the first respondent objects to the competency of the application for leave on the ground that it was filed outside the Registry hours of business and offends against Order 2, rule 11 of the National Court Rules (“NCR”).   The objection is not based on the application for leave being filed outside the time limitation of 14 days under Order 5, rule 14 of the SCR.

11.	There is no dispute as to what Order 2, rule 11 says.   It says that the Registry shall be open to the public for business every day of the year except Saturdays, Sundays, and Court holidays.  As to time, it shall be open from 8:00 am to 12:00 noon and 1:00 pm to 3:30 pm.   However, according to Order 2, rule 12, it may be opened outside the days and time fixed on request by a party to the Registrar and on payment of a fee of K5.00 for the party to conduct a transaction.   

12.     In terms of evidence to support this objection, according to the filing fee receipt of payment tendered in the affidavit of search of Thirsco Airi filed 21st February 2023, the date and time indicated on this document is 6th February 2023 and 4:16 pm.  The applicant takes no issue with this as being the date and time of filing of the application for leave.   Given that there are no expressed rules on business hours of the Supreme Court Registry, the rules on business hours of the Registry in the NCR may be adopted in the SCR pursuant to Order 2 rule 1 (b) & (h) of SCR.

13.	It is on this premise that the objection is taken up.   Order 2, rules 11 and 12 are to be read in their context.  In their context, they are not obligatory and are not fatal to the application for leave in the sense that if they are being breached, they do not render the application for leave incompetent and liable to dismissal.  On the other hand, they are directory because they inform parties of the business hours of the Registry. 

14.	This is the reason for distinguishing this case from a case where a provision of a statute or rule of the Court fixes a time limitation for doing an act, for example, 40-day time limitation to file an election petition under Section 208 (e) of the Organic Law on National and Local Level Government Elections. (“Organic Law”).  In the latter case, Section 208(e) is obligatory, and failure to comply with it will attract sanctions, for example, dismissal of the proceeding.  

15.	This case is not one where the first respondent is seeking to dismiss the application for leave from being filed outside the time-limitation period of 14 days under Order 5, rule 14 of the SCR.  It is a case where the application for leave was filed outside the business hours of the Registry and that no request was made to the Registrar to open the Registry outside the business hours for the applicant to file it.  

16.	In such a case and given the construction of Order 2, rules 11 and 12 of the NCR, the failure to comply with the business hours of the Registry does not render the application for leave, irregular and incompetent.  This ground of objection must fail.

(b)	Failure to deposit the Security Deposit at the time of filing the Application for Leave

17.	The second ground of objection is based on the applicant’s failure to deposit the security deposit at the time of filing the application for leave contrary to Order 5, rule 13 of SCR.  Order 5, rule 13 states:

“At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.”

18.	There is no dispute that the application for leave was filed on 6th February 2023 and the security deposit in the sum of K5,000.00 was deposited into the Registrar’s Trust Account on 25th January 2023.  The time limitation to file an application for leave to review expired on 7th February 2023.

19.	Learned counsel for the applicant relying on the case of Paru Aihi v. Peter Isoaimo (2014) N5691 and upheld by the Supreme Court in Paru Aihi v. Peter Isoaimo (2015) SC1598, submits that according to Order 5, rule 13, the act of filing the application for leave and deposit of the security deposit into the Registrar’s Trust Account must occur at the same time.  If not, the application for leave will be incompetent.  

 20.	In this case, the security deposit was deposited into the Registrar’s Trust Account prior to the filing of the application for leave.  Thus, the application for leave was filed in breach of Order 5, rule 13 and is, incompetent.  However, Order 5, rule 13 has been misconstrued by the applicant.  Similarly, the Paru Aihi cases have been taken out of context.  This is not a case where the applicant filed the application for leave without the security deposit.  

21.	What is important is that the security deposit was deposited into the Registrar’s Trust Account on 25th January 2023 and that was well within the time limitation of 14 days for filing of an application for leave under Order 5, rule 14.  

22.	The deposit of the security for costs paved the way for the applicant to lodge the application for leave for filing and Registrar having being satisfied that on the date of filing the application for leave, the applicant has deposited the security for costs into the Trust Account accepted the filing of the application for leave.  This ground of objection has no merit and is dismissed.

Proposed Grounds of Review

23.	There are twenty proposed grounds in the application for leave.  Many of them have sub-grounds.  This is not an ideal example of an application for leave to review that the Court is given to adjudicate on and the best way to deal with the many grounds is to address them together where they raise a common issue.  

Proposed Grounds 2.3.1 to 2.3.10

24.	There are total of nine proposed grounds.  While the proposed grounds are many and convoluted and bring up multiple issues, on a preliminary assessment of these grounds they lead to a common issue of whether the first respondent established the elements of the offence of bribery.  

25.	The applicant took up other issues such as an incorrect reference to Section 103(1)(a)(i) and (d) of the Criminal Code which learned counsel submits does not exists, but this is a trivial issue because it does not change the substance of the charge.  Further, to consider this issue in detail is to promote the notion of nit-picking.  At the end of the day, the trial judge quoted Section 103(a)(i) and (iii) and (d) at [17] of the judgment and it is quite clear that anyone reading Section 103 will quickly identify that the correct reference to the offence of bribery under consideration is Section 103(a)(i) and (iii) and (d).    

26.	It was put on behalf of the applicant that in a case where bribery is committed by a person other than the candidate with the knowledge or authority of the candidate, it is an additional requirement under Section 215(3) of the Organic Law for the petitioner to plead and prove that as a result of bribery, the election result or return was affected and that it is just that the election should be declared void. 

27.	Learned counsel relies on the statement by the Supreme Court in Sandy Talita v. Peter Ipatas & Electoral Commission (2016) SC1603 that “Besides, the Applicant failed to plead the two essential elements of s. 215 (3) of the Organic Law which requires the petitioner to allege and prove the illegal practice is such that the election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void”. However, it has been taken out of context.  

28.	The statement that it is necessary to plead that the “…..election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void applies to an allegation of illegal practice under Section 215(3) of the Organic Law.  The Supreme Court was reinforcing the principle that to prove the allegation of illegal practice the petitioner must first plead the relevant facts to sustain the allegation and it is necessary to include the allegations that “election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void”.  

29.	For bribery, while it is an illegal practice, it is also a criminal offence under Section 103 of the Criminal Code and its elements are set out in Sub-section (a)(i) and (iii).  They must be pleaded and proved.  I note that the trial judge ably outlined the elements of bribery in the judgment and was satisfied that the evidence established each of the elements on the requisite standard of proof, this being to the entire satisfaction of the Court: see Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1276.

30.	These proposed grounds do not raise an important point of law that is not without merit or that there is a gross error as to the fact that is clearly apparent or manifested on the face of the evidence: Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935, or that substantial injustice is manifested from these proposed grounds such that it is an exceptional case and in the interest of justice merits a review: Sir John Thomas Pundari v. Peter Yakos & Electoral Commission (2013) SC1276.

31.	I also agree and adopt the statement of principle in the most recent case of Sir John Thomas Pundari v. Peter Yakos & Electoral Commission (2023) SC2345
where Hartshorn J referred to Section 220 of the Organic Law and observed that “to permit a case where exceptional circumstances have not been established to be granted leave, renders the latter part of the wording of s. 220 Organic Law otiose and is to ignore the fair, liberal and clear meaning of section 220 and is to ignore the intention of Parliament as expressed in section 220.”  

32.	There is nothing exceptional about these proposed grounds and I am not satisfied that the applicant has established that exceptional circumstances for leave to be granted to review the decision of the trial judge on these proposed grounds.

Proposed Grounds 2.3.11, 2.3.12 and 2.3.14

33.	There are total of three proposed grounds.  Again, while the proposed grounds are many and convoluted and bring up multiple issues, on a preliminary assessment of these grounds they lead to a common issue of whether the trial judge erred in accepting the evidence of the witnesses of the first respondent. 

34.	The recurring theme of these proposed grounds is the contention by learned counsel for the applicant that the trial judge’s findings were inconsistent, baseless and contradictory to the evidence of the applicant’s witnesses. However, my reading of the judgment by the trial judge shows that the trial judge accepted the evidence of the first respondent’s witnesses because they outlined in detail the events leading up to the commission of the offence of bribery.  At the same time, the trial judge acknowledged that there were few consistencies in the evidence of Elvis but were minor and overall, did not taint the credibility of his evidence.  As for the Pauline, the trial judge found her to be an impressive witness.  

35.	If the trial judge found the first respondent’s witnesses as being credible, it was open to rely on their evidence to make appropriate findings of fact as opposed to the applicant’s witnesses whose evidence was not only lacking in substance or moreover, a recent invention but demeanour wise, the trial judge found, wanting.  

36.	It appears that the applicant is unable to correct the damage done by his witnesses at trial and has taken up a further issue in these proposed grounds in relation to whether the trial judge erred in failing to make an expressed finding that the persons who received cash from Dennis were electors.  Learned counsel for the applicant did not refer in his submissions to where parties addressed the issue of elector at trial or at final submissions and I am unable to follow this line of contention.  

39.	In the absence of a clear statement by the applicant that he disputed the standing of Elvis Katuho and Kesira Pauline as being electors at trial, the evidence from Elvis and Kesira Pauline which the trial judge accepted at [33] of the judgment was that, they “……testified that they were supporters of the Petitioner, however because of the money they received from Dennis and what he told them, they cast their 1st vote to the First Respondent, and their 2nd vote to the Petitioner.”

40.	Moreover, at [46] of the judgment, there is a clear finding by the trial judge that Elvis and Kesira Pauline voted, that is, “…….they complied and gave their 1st Preferential Vote to the First Respondent, and their 2nd to their candidate who is the Petitioner…….”. If there was any issue as to whether or not they were electors, apart from their sworn evidence that they were electors, they also produced common roll of their respective wards in their respective affidavits which shows their names on them.  Refer to their respective affidavits for further verification.

41.	In addition to there being no important point of law that is not without merit being identified in these proposed grounds, there is nothing exceptional about them.  I am not satisfied that the applicant has established a case of exceptional circumstances for leave to be granted to review the decision of the trial judge on these proposed grounds.

Proposed Grounds 2.3.13, 2.3.15, 2.3.16 to 2.3.20

42.	These proposed grounds bring up multiple issues but will be considered together because they lead to a common issue of whether the trial judge erred in relying on the evidence of John Siriri who was declared a hostile witness at trial.

43.	Learned counsel have outlined in their respective submissions why these proposed grounds should be allowed or not.  The two instances of bribery were said to be committed by a person other than the applicant with the applicant’s knowledge or authority pursuant to Section 215(3) of the Organic Law.  To establish each instance of bribery, it is necessary for the first respondent as the petitioner to adduce evidence from a witness to connect or link the candidate to the person who was alleged to be acting with the knowledge or authority of the candidate.

44.	In this case, Dennis was identified as the person who gave cash to Elvis, Kasira Pauline and Graham Ita and was the connection or link between the applicant and the persons who received the cash.  However, he denied the allegation.  To fill in the missing link was John Siriri.  But he was declared a hostile witness.  The question which arises is whether it was open to the trial judge to rely on the evidence of a hostile witness.  In my view, this question raises an important point of law that is not without merit.  

45.	To rely on the evidence of a hostile witness and make adverse findings against the applicant, it is arguable that the trial judge committed a gross error as to the fact, such error is clearly manifested on the face of the evidence.  I am satisfied that these proposed grounds demonstrate that this is an exceptional case which warrants the intervention of the Supreme Court under Section 155(2)(b) of the Constitution. 

Conclusion

46.	In summary, proposed Grounds 2.3.1 to 2.3.12 and 2.3.14 will be refused and proposed Grounds 2.3.13, 2.3.15, 2.3.16 to 2.3.20 will be allowed to go to a full hearing for the reasons given.

Order

47.	The terms of the final order of the Court are as follows:

1.	The application for leave to review filed on 6th February 2023 is upheld in part. 

2.	The applicant’s application for leave to review the decision of the National Court of 24th January 2023 based on proposed Grounds 2.3.1 to 2.3.12 and 2.3.14 is refused.
	
3.	The applicant’s application for leave to review the decision of the National Court of 24th January 2023 based on proposed Grounds 2.3.13, 2.3.15, 2.3.16 to 2.3.20 is granted.

4.	The applicant shall file an application for review based on proposed Grounds 2.3.13, 2.3.15, 2.3.16 to 2.3.20 within 14 days of this Order forthwith.	

	5.	The costs of the application shall be in the proceedings.	

	6.	Time shall be abridged.	

________________________________________________________________
Jema Lawyers: Lawyers for Applicant
Wang Dee Lawyers: Lawyers for First Respondent 
Harvey Nii Lawyers: Lawyers for Second Respondent