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Ganasi v Subam [2013] PGSC 32; SC1255 (25 March 2013)

SC1255

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. No. 19 of 2013

In the matter of an Application under s 155 (2) (b) of the Constitution
And in re Part XVIII of the Organic Law on National and Local Level
Government Elections

Between:

AIDE GANASI
Applicant

And:

SALI SUBAM
Respondent

Waigani: Injia, CJ
2013: 19th, 25th March

JUDICIAL REVIEW – Constitution, s 155 (2)(b) – Decision of National Court Upholding Election Petition, voided election & ordered By-Election - Application for Leave for Review - Exercise of Discretion- Application Granted - Supreme Court Election Petition Review Rules, r 1, r 4.

Cases cited:

Jurvie v Oveyara (2008) SC 935
Vaira v Genia (1998) SC579
Arore v Warisan (2008) SC 1030

Counsel:

G Tupa, for the applicant
F Furigi, for the respondent

25th March, 2013

1. INJIA, CJ: This is an application for leave to apply for review of a decision of the National Court to uphold an election petition filed under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The application is made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules 2002. The respondent contests the application.

2. By way of background, the applicant came third in the election for the South Fly Open Electorate in the 2012 National Elections. The respondent won the election with 3,489 votes with the respondent coming third with 3,033 votes, a difference of 456 votes between them. The respondent challenged the election in an election petition that raised facts to support several allegations of bribery. After the Court dismissed an objection to competency of the petition, two allegations of bribery were tried. The trial judge found the allegations proven, upheld the petition, voided the election and ordered a by- election.

3. In this application, the applicant challenges the trial judge's preliminary ruling to reject an objection to competency of the petition, the trial judges' decision to dismiss a no case submission on the two bribery allegations that were tried and the trial judge's final decision on the two allegations of bribery. Counsel for the parties made submissions on those matters, which I have considered in the light of the material placed before me. Those submissions and my deliberation on them are embodied in my reasoning.

4. The criteria for grant of leave is set out in Jurvie v Oveyara (2008) SC 935. I recap those principles. The application must have clear legal merit to advance to a hearing before the full Court. Where 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. Where the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice. The onus is on the applicant to demonstrate serious or important points of law or fact. It is not for this Court to engage in a detailed examination and analysis of the points raised and the material before it in order to determine the merits of those points. That function rests with the full court. At the same time, it is open for this Court to scrutinize the points raised in order to weed out applications that clearly lack merit. This function can be performed from a quick perusal of the matters set out in the application and material before the Court.

5. There are seven grounds relied upon which are set out in the application for leave. Ground 1 relates to the ruling on objection to competency. The applicant disputed the petitioner's failure to name the Electoral Commission as a respondent in the petition and the sufficiency of the attesting witnesses' address as falling short of the requirement in s 208 (d) of the Organic Law. It was argued that the addresses stated in the petition were not real and but fictional. I am satisfied that because the allegations in the petition did not concern the Electoral Commission, the omission of the Commission as a party in the petition was proper. I am also satisfied, as did the trial judge, that both witnesses' address in the form of their village address and Daru town address stated in the petition were sufficient for purpose of s 208 (d). I reject submissions of counsel for the applicant on this point. These grounds clearly do not raise an important point of law or fact for consideration by the full Court.

6. The second and third grounds are related and they concern the trial judge's decision to dismiss a no case submission made at the close of the petitioner's evidence. The no case submission was based on what the applicant described as lack of evidence supporting the witnesses' assertion in their respective affidavits that they were eligible voters and they voted in the election; and that the Common Roll for the electorate was not produced in evidence by the petitioner to support the assertion.

7. The procedure for a no case submission is not provided for in the National Court Election Petition Rules 2002. It has been imported into the practice and procedure in petition trials as a result of the Supreme Court ruling in Vaira v Genia (1998) SC579, Arore v Warisan (2008) SC 1030. No question arises in this application as to the procedural propriety of this procedure and I will let the matter rest there.

8. The trial judge found those matters were not put to the witnesses in cross-examination under the rule in Browne v Dunn and therefore could not form the basis of a no case submission. The applicant argues that that rule of evidence in Browne v Dunn was applied too strictly by the trial judge to find against the applicant and therefore there occurred an error of law or fact. I accept Mr Furigi's submission that those are matters of discretion for the trial judge and no important and serious error of law or gross error of fact has been demonstrated to this court.

9. Grounds four, five, six, seven, eight and nine of the application are related and they can be dealt with together. They concern the trial judge's findings of fact and application of the law to those facts, to the two allegations of bribery set out in paragraphs 16 and 17 of the petition. Two main points arise for consideration. First, the allegations in paragraphs 16 & 17 of the petition were that " respondent and his campaign team" or " the respondent in the company of his campaign team" gave K180 to Bazu Buai and K300 to Gudu Sub at separate times and locations with the intention to induce them to vote for him. The essence of these allegations were that the applicant himself gave the money witnessed by his campaign team. The allegations squarely fell under the wording of s 215 (1) of the Organic Law and not subsection (3) of that Section. Section 215 (1) speaks of bribery committed by the candidate himself. If the Court finds that the candidate committed the act of bribery, irrespective of the number of persons bribed and the amount or value of goods or property given, the election is declared void. Whether the act of bribery was done directly or indirectly through agents; and whether the result of the election was likely to be affected by the act of bribery are immaterial under s 215 (1). Under s 215 (3), an election cannot be voided on account of bribery committed by a person other than the candidate unless the act of bribery was carried out with the candidate's knowledge and authority such that the result of the election was likely to be affected and it is just that the election should be voided. That is the law under s 215 of the Organic Law; it is clear and trite.

10. The trial judge found and concluded that the respondent himself gave the money to those persons. The trial judge applied s 215 (3) of the Organic Law to find and conclude that as a result of the bribery committed by the respondent, the result of the election was likely to be affected and that it is just and fair that the election should be declared void. I accept Mr Tupa's submission that the trial judge got himself mixed up with s 215 (1) and s 215 (3) situations and ended up misapplying s 215 (3)(a) to the facts.

11. I am satisfied an important point of law that is not without merit that is likely to succeed has been demonstrated.

12. Secondly, the two witnesses who gave evidence for the petitioner emphatically stated in their evidence that although they received the money, the money was for the purpose of emergency relief assistance that was being carried out in the area, and as community or church leaders, they received the money. Their only concern was with regard to the timing of the money; that it was given during the campaign period. In effect they denied the money was bribery money. The respondent did not contest this evidence by his own evidence. I accept Mr Tupa's submission that notwithstanding lack of disputing evidence from the respondent, the petitioner carried the onus of proof of providing credible evidence. In the light of the denial by these two witnesses who gave evidence in support of the petitioner, a finding that the money was bribery money borders on absurdity. I am satisfied that an important and serious point of fact has been demonstrated.

13. My conclusions on those points of law and fact are sufficient to warrant grant of leave in accordance with the principles and criteria laid down in Jurvie v Oveyara. Having reached this conclusion, it is unnecessary to deal with other points raised in the application.

14. The formal orders are:

(1) Leave in relation to Grounds 1 & 2 of the application is refused.
(2) The application for leave is granted in respect of Grounds 2 – 9 of the application.
(3) Costs shall be in the cause

_________________________________________
Twivey Lawyers: Lawyer for the Applicant
Furigi Lawyers: Lawyer for the Respondent