Yama v Gubag [1998] PGSC 58; [1998] PNGLR 146 (3 April 1998)

[1998] PNGLR 146

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PETER YAMA

V

MATHEW GUBAG; and
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

WAIGANI: KAPI, DCJ; INJIA, SAWONG JJ
30 March and 3 April 1998

Facts

The petitioner lost his seat to the first respondent in the 1997 General Elections. The petitioner sought to declare the election of the first respondent null and void before the Court of Disputed Returns.

On 22 September 1997, the petitioner failed to appear before the court and the court stuck out the petition. On 23 October 1997 the petitioner appeared before another judge and got his petition reinstated.

The second respondent applied to the Supreme Court under s 155(2)(b) of the Constitution to review the decision of the second judge on 23 October 1997 and quash it.

Held

1. Another judge of the National Court has no jurisdiction to reinstate a petition, which has been struck out or dismissed.
   
2. The only recourse for a petitioner in such a case is to apply to the Supreme Court for a review under s 155(2)(b) of the Constitution.
   

Papua New Guinea cases cited

Avia Aihi v The State [1981] PNGLR 81.

Balakau v Torato [1983] PNGLR 242.

Danny Sunu & Ors v The State [1984] PNGLR 305.

Mune v Poto [1996] PNGLR 125.

SCR 5 and 6 [1988-89] PNGLR 197.

Counsel

D Goma, for the applicant.
M N Wilson with G Manda, for the respondent/petitioner.

3 April 1998

BY THE COURT. This is an application by the Electoral Commission of Papua New Guinea for an application for judicial review of the decision of Sheehan, J made on 23 October 1997. The application is brought under s 155(2)(b) of the Constitution.

Background

The relevant background to this application is fairly short. The respondent/petitioner (Yama) was the sitting member for the Sumkar Open Electorate. In the 1997 General Elections he lost his seat to Mr Mathew Gubag. Mr Yama disputed the results of the election by way of E.P. No 31 of 1997 (the Petition).

On 22 September 1997, Woods, J struck out the petition as the petitioner did not appear to prosecute the petition.

On 23 October 1997, an application to set aside the decision of Woods, J was heard by Sheehan, J who set aside the decision of Woods, J and reinstated the petition.

It is this decision of Sheehan, J that is sought to be reviewed. The review is sought on the basis that Sheehan, J had no jurisdiction to hear the application to set aside the order and reinstate the petition.

The issue is whether this Court should exercise its discretionary power under s 155(2)(b) of the Constitution and review the decision of the National Court.

The National Court sitting in its electoral jurisdiction is a creature of statute, created under the Organic Law on National and Local-Level Government Elections. Section 220 of the Organic Law states that a decision of the National Court is final, conclusive and without appeal and shall not be questioned in any way.

Whilst this section precludes any application by way of an appeal to the Supreme Court, the Supreme Court has held that s 155 (2)(b) of the Constitution does give it inherent jurisdiction to review all judicial acts of the National Court. See Avia Aihi v The State [1981] PNGLR 81, Balakau v Torato [1983] PNGLR 242, Danny Sunu & Ors v The State [1984] PNGLR 305 and S.C. Rev. 5 & 6 [1988-89] PNGLR 197.

These authorities establish that, the discretionary power of the Supreme Court to grant a review of a decision of the National Court under s 155(2)(b) of the Constitution should be exercised only where:

(a) there are clear legal grounds meriting a review of the decision, or

(b) there are cogent and convincing reasons or exceptional circumstances; or

(c) it is in the interest of justice that the review be granted.

As we have said earlier, the National Court sitting in its electoral jurisdiction derives its powers from the Organic Law. It is thus, a creature of statute. It follows that one must consider what powers are given to it by the Organic Law.

Section 212 of the Organic Law, sets out some of the powers of the National Court. Section 212 reads:

"POWERS OF COURT.

(1) In relational to any matter under this part the National Court shall sit as an open court and may, amongst other things -

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in extracts from those Rolls and documents; and

(d) order a re-count of ballot papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment.

(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election."

In general Mr Goma's submissions was that there was nothing in either the Organic Law or the Practise Direction (NC 2/97) which empowers a judge of the National Court to hear, determine and set aside and reinstate a decision of another judge of the National Court in relation to election petitions. He submitted that once a decision is made, a party cannot go and make an application before another judge of the National Court to set aside that decision and reinstate that petition. The only answer would be by way of an application for review under s 155(2)(b) of the Constitution.

Mr Wilson’s submissions fall into two basic points. The first is that the provisions of s 212 were wide to encompass the act complained of here. In other words, he submitted that the expression "amongst other things" in s 212 was wide enough to draw an inference, that included the provision, to hear and determine an application to set aside an ex parte order and have the petition reinstated.

We do not accept this submission. We consider that the submissions made by Mr Goma have merit. As we said earlier there is nothing in the Organic Law or the Practise Direction (NC 2/97) for a judge of the National Court to set aside the decision of another judge of the National Court. We consider that the only recourse in such an event as is in the present case, is by way of a s 155(2)(b) application for review.

The second point in Mr Wilson’s submission was that where a National Court sitting in its electoral jurisdiction makes a mistake, then that decision may be set aside or corrected by another National Court. On this aspect he relied heavily on Mune v Poto [1996] PNGLR 125.

We are also of the view that this submission cannot be sustained. The mistake that was considered in Mune v Poto relate to the striking out of the whole petition when the court was entitled to strike out only certain grounds in the petition. In the present case, we do not consider that the decision of Woods J, involved a mistake of the same nature. We are of the view that what Woods, J did cannot be regarded as a mistake which falls within the ambit of Mune v Poto.

In the end result, we are satisfied that the trial judge fell into an error of law. He clearly had no jurisdiction to hear, set aside and reinstate the petition. There is clear legal grounds for reviewing the decision, as we have set out above and therefore, we would quash the decision of Sheehan, J made on 23rd October 1997.

In the circumstance we consider that costs must follow the event.

Our formal orders are that:

• The review is granted and we quash the decision of the National Court made on 23 October 1997, and
  
• We reinstate the order made by Woods, J on 22nd September 1997.
  
• Applicant shall have its costs.
  

Lawyers for the Electoral Commission: Nonggorr & Associates.
Lawyer for the respondent: Warner Shand Lawyers.