Kewano v Joseph [2012] PGSC 39; SC1205 (25 October 2012)

SC1205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SC REV. NO. 29 OF 2012

BETWEEN:

HON. DE KEWANO
Applicant

AND:

PASTOR ISAAC JOSEPH
First Respondent

AND:

ANDREW TRAWEN, Electoral Commissioner of PNG
Second Respondent

Waigani: Salika, DCJ
2012:18th, 25th October

SUPREME COURT – Election Petition Review – Section 155(2)(b) of Constitution –Power to review all Judicial Acts of National Court – Rule 1 of Supreme Court Election Petition Review Rules – 'Decision' means a final decision of the National Court – No power to review interlocutory decision of National Court in Election Petition matters - Rule 1 of Supreme Court Election Petition Review Rule cannot be dispensed with.

Cases Cited:

Simon v Kapris (2012) SC1206
Pundari v Neah (2012) SC1207
Waranaka v Dusava (2008) SC 942
Olga v Wingti (2008) SC 938

Counsel:

Mr. Nicholas Tame, for the Applicant
Mr. Paul Mawa, for the First Respondent
Ms Tadabe, for the Second Respondent

25th October, 2012

1. SALIKA DCJ: INTRODUCTION: This is an application for leave for judicial review of the decision of the National Court in Election Petition No. 64 of 2012 between Pastor Isaac Joseph as petitioner and De Kewano and Andrew Trawen as the First and Second Respondents respectively.

2. The decision was delivered by the National Court on 14 September 2012.

3. The applicant seeks leave pursuant to Rule 2 of the Supreme Court Election Petition Review Rules (SCEPRR).

4. Before the leave application, the applicant seeks an order of this Court to dispense with Rule 1 of the SCEPRR.

5. The decision of the National Court on 14 September 2012 was a preliminary or an interlocutory decision, meaning that the substantive issues are or will be dealt with at the appropriate time.

FACTS

6. The Applicant is the Member-elect in the 2012 National Elections for the Mendi Open Seat, Southern Highlands Province.

7. The First Respondent filed an election petition in the National Court (EP No. 64 of 2012) challenging the Applicant's win.

8. The First Respondent was not able to serve the petition on the Applicant within the 14 days time limit under Rule 6 of the National Court Election Petition Rules 2002 (as Amended).

9. Therefore, the First Respondent filed a Notice of Motion on 12th September, 2012, seeking an Order, amongst others, that the Applicant be deemed to have been served with the petition on 2nd September, 2012.

10. In support of the motion two affidavits, one by the First Respondent and one by a Stanley Koa, were sworn and filed on 12th September, 2012, alleging that on Sunday 02nd of September 2012, they went to the PNG Bible Church grounds at North Waigani, spoke to the Applicant and attempted to serve him the petition but he refused to accept it.

11. Based on these affidavits, the Court Ordered that the Applicant was deemed served on 02nd September, 2012.

12. Being aggrieved by this decision of the Court, the Applicant seeks review on the basis that the National Court committed errors of law and exceeded its jurisdiction in making the said decision/order.

JURISDICTION

13. The Supreme Court is given wide powers under s 155 (2) (b) of the Constitution to review all judicial acts of the National Court.

14. Section 220 of the Organic Law on National and Local Level Government however, says that in Election Petition matters the decision of the National Court is final and conclusive and without appeal, and shall not be questioned in anyway.

15. Rule 1 of the SCEPRR says:

1. A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application in the Supreme Court under Section 155 (2)(b) of the Constitution.
   

16. The SCEPRR define "decision" as used in Rule 1, to mean:

"a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 8 of the National Court Election Petitions Rules 2002 (as Amended)"

17. The decision that is sought to be reviewed in this application is not a final decision nor is it a decision that dismissed a petition.

18. It is clear from the rule that a decision that may be reviewed by the Supreme Court is a decision by the National Court that is final and not an interlocutory decision.

19. I have stated in my earlier decisions in John Simon v Gabriel Kapris and John Pundari v Lucas Neah that the Court has no jurisdiction to review interlocutory decisions.

20. The applicant submitted that the Supreme Court has the power to review interlocutory decisions and relied on the decision of the Supreme Court in Waranaka v Dusava (2008) SC 942 wherein the Court said:

"For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought; see r 1 and definition of a "Decision" in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of "decision" I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court's power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r 32 is incompetent: see Olga v Wingti (2008) SC 938".

21. The applicant therefore submitted that, that decision paves the way for the Supreme Court to review interlocutory judgments.

22. I note that the decision of the Supreme Court referred to is a commentary or a suggestion by the Court and therefore in my opinion obiter dictum and as such I am with respect, not bound by that statement.

23. I however, do note from that statement that the Court there did acknowledge the fact that there was no other way around the strict requirement of Rule 1 when it said:

"I do not see any other way around the strict requirements of Rule 1..."

24. In other words the Court was saying, it had no jurisdiction to review interlocutory decision of the National Court in Election Petition matters.

25. The Supreme Court in the Waranaka v Dusava and Olga v Wingti (2008) SC938 went on to rule that because the Applicants did not seek dispensation of Rule 1 of the SCEPRR to review the interlocutory rulings, the applications were dismissed.

26. I have considered the decisions of Waranaka and Olga and have had a closer look at the SCEPRR.

27. I repeat what I said in – Pundari v Neah and others that Rule 1 of the SCEPRR is a jurisdictional clause and there is nothing in that clause to dispense with, without affecting the entire SCEPRR.

28. The moment it is dispensed with, all the other rules become useless and become nugatory and the scheme of the rules will be defeated. With respect it is not a tenable proposition to dispense with the said rule.

29. In my view there is no way the Supreme Court can review an interlocutory decision of the National Court in Election Petition matters.

30. Accordingly I refuse the application for leave to dispense with Rule 1 of SCEPRR and in doing so also refuse leave to review the decision of the National Court given on 14 September 2012.

31. Costs are awarded to the Respondent to this application.

_________________________________

N Tame Lawyers: Lawyer for the Applicant
Mawa Lawyers: Lawyer for the First Respondent
S Tadabe: Lawyer for the Second Respondent