SC1379

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 28 OF 2013

BETWEEN:

ALPHONSE MOROI
Applicant

AND:

KILA HAODA
First Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika DCJ, Batari, Kawi, JJ
2014: 27 March, 9 September

Cases cited: 

Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213
Jimson Sauk -v- Don Polye & Electoral Commission (2004) SC769.
Kopaol v Embel and the Electoral Commission (2004) SC 727
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Rawali v Wingti; Olga v Wingti (2009) SC1033
Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064

Counsel: 

Mr P. Wariniki, for the Applicant 
Mr H. Leahy, for the First Respondent 
Mr L. Okil, for the Electoral Commission

9th September, 2014

1.	BY THE COURT: This is an application for judicial review of a decision of the National Court at Waigani, leave having been granted on 23 April 2013.

Briefs Facts and Issues

2.	The two principal parties, Alphonse Moroi (the applicant) and Kila Haoda (the First Respondent) contested the 2012 Parliamentary election for the Central Province Regional Seat. In an election petition, EP No.67 of 2012, Alphonse Moroi challenged the victory by Kila Haoda on seven alleged acts of bribery.

3.	He withdrew four of those grounds. Two of the remaining grounds charged bribery and the third alleged that Kila Haoda was a candidate at the time he committed the alleged bribery acts.

4.	The First Respondent then contested the competency of the bribery charges, based on the failure to plead the correct date the alleged bribery occurred. He also contested the competency of the third charge on the basis that the bribery occurred prior to his nomination and before he was a candidate.

5.	The trial judge reviewed the evidence and concluded, based on admissions by the Petitioner, the Petition was incompetent. The court further found against Alphonse Moroi that Kila Haoda was not a candidate under s. 215 of the Organic Law on National and Local-Level Government Elections (the Organic Law).

6.	It is apparent on the face of the records that the trial judge found the Petition incompetent following admission of a mistake by Counsel for the Petitioner (now, Applicant) in alleging a wrong date of two bribery charges. The trial judge found the Petition fundamentally flawed and ruled that there can be no lawful evidence to substantiate the bribery charges. His Honour applied the criminal standard of prove beyond reasonable doubt to the evidence in reaching that conclusion.

Review jurisdiction.

7.	Aggrieved by the decision of the court below, Alphonse Moroi has come to this court seeking the remedy of judicial review because he has no right of appeal. 

8.	The review jurisdiction of this Court in relation to election petition cases lies where there is an important point of law to be determined that is not without merit. A review also lies but in a restricted way where issues of fact are raised. On this second leg, the applicant must show a gross error clearly apparent or manifested on the face of the evidence before the court. Or, that a finding of fact is so outrageous or absurd so as to result in injustice. In either of these situations, the error must be such as to warrant a review of the findings of fact: Rawali v Wingti; Olga v Wingti (2009) PGSC 30/ SC10133.

Issues
 
9.	From the grounds for review, the issues can be stated thus;

1)	Did the trial judge err when he considered and determined evidence at the competency challenge?

2)	Did the trial judge err in holding that the First Respondent was not a 'candidate' within the meaning of the term defined by the Organic Law.

Parties Positions

10.	The Applicant's case is that the trial judge committed errors of law and procedure when he made findings of facts and consequently dismissed the petition at the competency proceedings. He contends further that, the trial judge erred in the construction and application of the term 'candidate' in s.215 of the Organic Law, to the fact in issue. 

11.	 The Respondent's case is that the trial judge correctly considered and determined issues of fact in the exercise of his discretion. The dismissal of the Petition at the outset was proper as it failed to plead the correct date. Counsel, Mr Leahy also argued that had the matter proceeded to trial, the petitioner would be time-barred under s. 208 (e) of the Organic Law to change the date in the Petition. In the alternative, the Petition was deficient for failing to plead the relevant statutory provisions in the Criminal Code relating to bribery.

Did the trial judge err when he considered and determined evidence at the competency challenge?

12.	 This issue raises a fundamental question of law which his Honour Injia, CJ in granting the Applicant leave to apply for judicial review put it into perspective as follows:

Whether the trial judge breached s. 217 of the Organic Law when he had regard to admissions that were contained in an affidavit of the petitioner's counsel and on a verbal concession made by counsel for the Petitioner from the bar table during argument, that the date when the alleged bribe took place was incorrectly pleaded in the Petition.

13.	Neither party addressed the pertinent issue of whether, in deciding a question fact at the competency stage, the trial judge was in breach of s. 217 of the Organic Law. Although Mr. Leahy for the First Respondent acknowledged that the grant of leave was limited to this issue and the issue of whether or not his client was a candidate at the time of the alleged bribery, he did not advance any argument on the propriety of his client's objection to competency which in essence, was based on a question of fact.

14.	 The issue of incorrect date arose from the affidavit of Counsel for the Petitioner, Mr Wariniki, filed in support of an application to amend the Petition. During the competency hearing, Counsel also conceded having pleaded an incorrect date on when the bribery acts allegedly occurred.

15.	The pleadings state that Kila Haoda committed two counts of bribery on, "12 June 2012." The Petitioner subsequently filed a Notice of Motion to amend the Petition to plead that the two counts of bribery occurred on the same date in, "May". 

16.	The intended amendment prompted the First Respondent to file for dismissal of the Petition on the basis that the proposed amendment was time-barred under s. 208 (e) of the Organic Law. At the competency hearing, the Petitioner opted to withdraw his application. He also withdrew four grounds of the Petition.

17.	The First Respondent nevertheless, proceeded with his application to dismiss the Petition for want of competence. Relying on the affidavit of Mr Wariniki and his admission from the bar-table, Mr. Leahy submitted that the Petitioner had failed to plead sufficient material facts. Thus, the Petition could not proceed to trial competently on vague or incorrect date of the alleged bribery acts.

18.	What is clear from the minutes of the proceedings is that the trial judge had accepted the Petitioner's withdrawal of his Notice of Motion that sought to amend the Petition in relation to the date pleaded. The trial judge also allowed the Petitioner to withdraw the grounds of the Petition except, the first three alleging bribery.

19.	This is consistent with common practice that parties before the court are responsible for the smooth progress and expeditious disposition of their cases. A party is at liberty to pursue, abandon or withdraw the whole or part of the substantive cause, action or application for interlocutory relief. Where a party exercises one of those options, the court will not intervene unless the course taken is an abuse of the court process, or it will cause inconvenience, or result in prejudice, hardship or injustice to the other party. 

20.	In this case, the court below had quite correctly accepted the withdrawal of the Petitioner's application and abandonment of grounds of the Petition. However, in proceeding to entertain the objection to competency of the Petition, the trial judge, with respect, committed errors of law and procedure on several aspects. 

21.	A competency hearing process in relation to an election petition is concerned with the strict application and compliance with the mandatory provisions of s. 208, 209 and 210 of the Organic Law and the election petition rules. In that process and because issues of facts do not arise, the requirement for real justice to be observed under s. 217 does not apply. See, Kopaol v Embel and the Electoral Commission 2004) SC 727. 

22.	The term, "competent" or the verb, "competency" in relation a cause of action in judicial proceedings is concerned with the original power of the court to deal with the matter in question before the court. It is concerned with the power of the court or judge to entertain a cause or a particular action, claim, dispute, petition or other proceedings: Jimson Sauk -v- Don Pomb Polye & Electoral Commission (2004) SC769. These are commonly issues of law going to the validity of proceedings. The court has the vested power to deal with such jurisdictional issues at any stage of the proceedings.

23.	In Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064 the Supreme Court, affirmed from precedent authorities, that the issue of competency relates to jurisdiction and often concerns the validity of the proceeding. A party may raise this at any stage of the proceedings in dealing with an application for judicial review arising from an election petition and on the question of whether competency of the petition could be argued when it was not raised at the trial.

24.	This proposition has its source in the Court's inherent jurisdiction to control its own procedures and processes against unmeritorious causes and abuse.

25.	In this case, the issue of when the bribery took place was firstly, not properly before the court. It is apparent on the face of the records, that Mr Leahy had based his objection to competency of the three remaining grounds of the Petition entirely on the affidavit by Mr. Wariniki filed in support of a Notice of Motion to amend the dates in the Petition. Counsel also admitted that fact at the competency hearing. It is apparent too, that the Applicant had at that point, withdrawn his application.

26.	It is trite law, that when a party withdraws an application for interim relief in ancillary proceedings, any supporting reason, explanation or assertion of fact in affidavit form or otherwise, also lapses. The evidentiary material no longer survived as formal evidence or evidence in support of any other part or aspect of the proceeding before the court. However, in the context of a court document, it is admissible evidence.

27.	In this case, the affidavit of Mr Wariniki filed in supported of his client's Notice of Motion had lapsed at the time the First Respondent move his application. At that point, the evidence in the affidavit was not formally before the court and it had no further use. It was nevertheless open to either party to produce or call for its admission into evidence.

28.	A party that intends to rely on the evidence must seek leave of the court and show;

a.	Relevance of the material to the proceeding; 
b.	The material will expedite disposition of the case or it will clarify issues to be tried;
c.	It will not cause possible hardship, inconvenience, or prejudice either party;
d.	It will advance the overall interest of justice. 

29.	In all cases, the proper use of admissible evidence is at the substantive hearing on the merits. All materials relevant to the proceedings on record are then, available to either party to produce or called for production. 

30.	It is apparent from the minutes of the proceedings in this case, that the trial judge with respect did not adhere to such fundamental requirement for admission of evidence. 

31.	On the other hand, Mr Leahy misled the court when he proceeded with his client's application contrary to law and procedure. The application based entirely on a factual issue was in itself misconceived and incompetent. The court should only entertain a crucial issue of fact as a competency issue, if the issue is properly before the court and its determination will serve the interest of justice. This brings up the next point in dealing with an important issue of fact as a competency issue. 

32.	Issues of material and relevant fact supporting a charge in an election petition are matters for the trial proper under a specific process governed by s. 217 of the Organic Law. The ascertainment of correct or incorrect date like the First Respondent raised here, does not go to competency of the election petition proceeding. And where the process is governed by substantive law as in this case, the court or a judge has no discretion but to abide by that statutory process. 

33.	The evidence of an incorrect date, the truth or reliability of it is a matter that goes to the merits and substance of the case. The issue of changing or substituting an incorrect date in the pleading is a matter that can only be properly raised and dealt with at the trial where evidence will be called and tested pursuant to the process envisage in s. 217 of the Organic Law. 

34.	It was premature and inappropriate for the trial judge to have dealt with a factual issue at the competency stage. In so doing, the court denied the Applicant the benefit of a fair trial under s. 217 of the Organic Law. Section 217 dictates that the National Court must be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before the court is in accordance with the law of evidence or not.

35.	While granting the leave application, the Chief Justice made these observations which we adopt and restate as follows:

"At the trail issues such as whether the evidence supports the facts pleaded and in the event of an inconsistency between the pleadings and the evidence, how those are to be resolved are matters for the trial, following the procedural guidelines set out in s.217 of the Organic Law. The correctness of the facts pleaded are usually matters for the trial and the trial judge who is considering a formal objection should confine himself to the facts pleaded and determine compliance issues without recourse to the evidence...

I am also satisfied that the trial judge's considerations of the evidence on the correct date of bribery by recourse to the evidence and position of counsel on these facts without proper trial in the face of the clear provision of s.217 of the Organic Law amounted to gross error of fact that should warrant grant of leave for review"

36.	The Supreme Court in, Kopaol v Embel and the Electoral Commission (2004) SC 727 made it clear that s.217 becomes applicable only when the court is determining the merits of the case and all matters connected with the determination of the merits.

37.	Thirdly, when the Petitioner withdrew his application to amend the Petition, the obvious presumption is that the Petition would proceed to trial on the original pleadings. It is apparent on the face of the records then, that sufficient material and relevant facts were pleaded under s. 208 (a) of the Organic Law. The Petition was competent to proceed to trial.

38.	The argument by the respondents is that the admissions of an incorrect date of the alleged bribery incident made the pleading incompetent. The respondents further contended that the Applicant would not successfully amend the Petition because of s. 208 (e) of the Organic Law. 

39.	It is in our view, arguable that the amendment to the Petition by correcting the month is not a substantive amendment that would contravene s. 208 (e) because –

a)	Section 208 (a) does not provide for specific pleading of the date and time of the event though, these are material and relevant fact the other party is entitled to be informed of to prepare his defence;

b)	The proposed amendment was not a new, unrelated matter. The amendment would not result in substantially new ground or allegation. It will not add to but will merely substitute a mistaken fact.

c)	 The proximity of the months of May and June strongly point to a slip or typographical error. The amendment would minor and insignificant. 

d)	The First Respondent was aware of the substance of the bribery allegations and had accepted that the bribery occurred prior to him being a candidate. He would clearly not be prejudiced by the amendment.

e)	Witnesses giving evidence under oath are entitled to correct or explain a prior inconsistent statement or assertion. Their evidence becomes a question of weight. 
 
40.	Fourthly, the trial judge misapplied the law on burden of proof when he decided an issue of fact without a trial and when he applied the criminal standard of proof beyond reasonable doubt. This is apparent from the following excerpt found on page 11 of the Review Application Book:

"This is fundamental. The time to amend the petition has expired. These two charges of bribery as pleaded cannot stand. There can be no lawful evidence to substantiate the charge of bribery as pleaded in grounds or bribery cases 1 and 2 in the petition. I am bound to apply the criminal standard of proof of beyond reasonable doubt. The error is conceded by Moroi and as such these grounds will not stand as there is real doubt as to the facts of the charges of bribery alleged by Moroi in his petition."

41.	The issue of standard of proof is irrelevant to proceedings in objection to competency where the Court is primarily concerned with the strict compliance with the requirements of Sections 208 and 209 because of s, 210 of the Organic Law. In applying the standard of proof, his Honour misapprehended the nature of the proceeding and thereby fell into gross error of law and procedure. 

42.	Furthermore, it is erroneous to assert that the court is bound to apply the criminal standard of proof beyond reasonable doubt in election petition cases. The seminal principle in Neville Bourne v. Manasseh Voeto [1977] PNGLR 298 has been misunderstood on this issue. The Court there stated the standard of proof in election petition trials is –"to the entire satisfaction of the Court". We adopted what Gavara-Nanu J stated in Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213: 

"... I do not think the Court in that case said the standard of proof is beyond reasonable doubt. In any event, the fact that the election petition hearings are not criminal proceedings must naturally mean that the standard of proof in election petitions cannot be the same as the criminal standard of proof."
 
43.	We agree with his Honour, that as in this case, what the Court said in Neville Bourne v. Manasseh Voeto (supra) regarding standard of proof in an election petition has been taken out of its proper context.
 
44.	The trial judge had clearly determined an important issue of fact prematurely and without the proper procedural guidelines under s.217 of the Organic Law. The substantial hearing of evidence at the competency stage was highly irregular and contravened the safeguard and protection the Petitioner is entitled to under s.37 of the Constitution and s. 217 of the Organic Law. 

45.	In joining the arguments on the objection to competency of the Petition, Mr Okil of Counsel for the Electoral Commission argued that the First Respondent was not a candidate at the time of the alleged bribery on 12 May 2012. Mr Okil too, erroneously founded his submissions on the aborted affidavit of Mr Wariniki.

46.	In granting the leave application, Injia, CJ made the following observation on this issue:

The word "candidate" when used generally in the Organic Law means a person who has duly nominated in the correct manner as prescribed under ss. 85 and 86 of the Organic Law. Parts II and XVII of the Organic Law widen the definition of the word candidate to include in addition to a duly nominated candidate, a person who announces himself as a candidate in the three months period before the first day of the polling period. Whether the wider definition of the word candidate can be applied to Part XVIII of the Organic Law such that if the National Court finds that a person has committed bribery under s. 215 (1), his election, if he is a successful candidate, shall be declared void."

47.	This issue rides on those matters raised in the affidavit of Mr Wariniki. For the same reasons that the evidence was improperly considered and determined at the competency stage, the contention by the Second Respondent also failed.

48.	The result is that the application for judicial review by Alphonse Moroi succeeds.

49.	 We make the following orders:

1)	The decision of the National Court on 14 March 2013 dismissing the applicant's petition is quashed.

2)	The petition in EP 67 of 2012 be remitted to the National Court for trial before another judge on the balance of the grounds of the petition in paragraphs B 1 (a), (b) and (c).

3)	 The costs of the leave application and this application be borne by the respondents in equal portions

_____________________________________________________
Wariniki lawyers and Consultants: Lawyers for the Applicant
H.J. Leahy Lawyers: Lawyers for the first Respondent 
Parua Lawyers: Lawyers for the second Respondent