Soloma v Waigavara [2014] PGSC 72; SC1350 (5 June 2014)

SC1350

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 04 OF 2014

REVIEW PURSUANT TO SECTION 155(2) (b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN

SAKI HACKY SOLOMA
Applicant

AND

ISSAC WAIGAVARA
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2014: 03rd & 05th June

SUPREME COURT – ELECTION PETITION – PRACTICE & PROCEDURE - Application to dismiss application for leave to review – Review of National Court decision – Dismissal of petition – Grounds of Failure to serve and move application for leave within 14 days – Effect of – Dispensation of requirements of service and hearing of application – Constitution – s. 155(2)(b) – Supreme Court Rules – O 5, rr 14, 15 & 39.

Facts

The first respondent supported by the second respondent applied to dismiss the application for leave to review the decision of the National Court dismissing the applicant's petition following a trial. The respondents based their application on the applicant's failure to serve and move the application for leave within 14 days of the decision of the National Court pursuant to O 5, rr. 14 and 15 of the Supreme Court Rules. In response, the applicant applied to dispense with the requirement to serve and move the application for leave pursuant to O 5, r 39 of the Supreme Court Rules. He claimed that he had served the application for leave and supporting affidavit on the respondents, although outside the time limit of 14 days and sought an order that service had been effected and that he be allowed to move the application for leave outside the time limit of 14 days.

Held:

1. An application for leave to review must be filed, served and heard within 14 days of the date of decision of the National Court pursuant to O 5, r. 14 of the Supreme Court Rules 2012. Where an applicant runs out of time to comply with any or all the requirements of O 5, r. 14, he or she may apply to extend time to comply with any or all of them within that 14 days.

2. A failure to comply with any or all of the requirements under O 5, r. 14 of the Supreme Court Rules 2012 and no extension of time granted to comply with them within the same 14 days renders the application for leave to review incompetent and liable to be dismissed.

3. Pursuant to O 5, r. 39 of the Supreme Court Rules 2012 the Court has power to dispense with the requirements of the Rules before or after the occasion for compliance arises. The power to dispense is discretionary and the applicant must provide a reasonable explanation for the default, where there is delay, reasonable explanation for the delay, show that the relief sought will not unduly prejudice the respondents and the grant of dispensation will enable all issues in contention to be promptly brought before the Court without further delay: Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945 applied.

4. In this case, given that an election petition review is a serious matter, that the applicant's explanation for the default was unreasonable and unsatisfactory and that the grant of dispensation will unduly prejudice the respondents, the applicant failed to establish a case for dispensation of the requirements of O 5, rr. 14 and 15 of the Supreme Court Rules 2012.

5. The application for dispensation was dismissed, the application to dismiss was upheld and the application for leave to review was dismissed with costs.

Cases cited:

Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945

Counsel:

Mr J Napu, for Applicant
Mr P Mawa, for First Respondent
Mr K Kepo, for Second Respondent

RULING

05th June, 2014

1. MAKAIL, J: The first respondent supported by the second respondent applied to dismiss the application for leave to review the decision of the National Court dismissing the applicant's petition following a trial. The respondents based their application on the applicant's failure to serve and move the application for leave within 14 days of the decision of the National Court pursuant to O 5, rr. 14 and 15 of the Supreme Court Rules.

2. In response to this application, the applicant applied to dispense with the requirement to serve and move the application for leave pursuant to O 5, r 39 of the Supreme Court Rules. He claimed that he had served the application for leave and supporting affidavit on the respondents, although outside 14 days and sought an order that service had been effected and that he be allowed to move the application for leave outside the time limit of 14 days.

3. O 5, r 14 states:

"14. The application for leave shall be filed, served and heard within 14 days of the decision sought to be reviewed or within such time as extended by the Judge, upon application heard within that 14 days period." (Underlining is mine).

4. O 5, r. 15 states:

"15. The application for leave and supporting affidavit shall be served personally on the respondents, not later than 3 days before the application is made, and an affidavit of service shall be filed within that 3 day period."

5. On 03rd April 2014, the decision of the National Court delivered its decision. The time limit of 14 days expired on 17th April 2014. There is no issue in relation to the filing of the application for leave. It was filed on 17th April, which was the 14th day. The issue is in relation to the service and hearing of the application for leave. The essence of the respondents' submission is that although the applicant filed the application for leave within time, he failed to serve and move it within time, and that even if he served the application for leave and supporting affidavit on the respondents, he failed to move the application within 3 days of service and file an affidavit of service within that 3 day period, thus he is in default of O 5, rr. 14 and 15. The effect of this is that, the application for leave is incompetent and should be dismissed.

6. Their submission proceeds on the premise that an election petition or an election petition review is a serious matter and the applicant has an onerous burden in prosecuting it expeditiously. This requires and includes diligence and care in complying with the requirements of the Supreme Court Rules. The other reason is that in the context of an election petition review, the law is that the decision of the National Court is final and is not open to appeal: s. 220 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). Thus, the decision of the National Court brings to an end the election dispute and parties must accept the decision. There must be finality to litigation. Where a party who is aggrieved by the decision seeks to review it, a higher standard of diligence and care in prosecuting the review is required.

7. In this case, by failing to comply with the requirements of O 5, rr. 14 and 15, the applicant has failed to diligently prosecute the application for leave and the Court must dismiss the whole proceedings for these reasons. This Court has no power to dispense with the requirements of O 5, rr. 14 and 15 because these requirements are not mere procedural requirements but significant jurisdictional requirements as they provide the procedure by which the applicant may invoke the jurisdiction of the Supreme Court to review the decision of the National Court. Such requirements cannot be dispensed with once a default has occurred and if the applicant seeks to rely on the Court's power under O 5, r. 39, it is inapplicable.

8. If the Court finds otherwise, the discretion should not be exercised in favour of the applicant because his explanation for the default is unreasonable and unsatisfactory. Further, after the time limit of 14 days had expired, he did not immediately apply for dispensation. It was only after the first respondent filed the application to dismiss that he filed the application for dispensation. This was a "knee-jerk" reaction and further evidence of the applicant's lack of diligence and disregard of the seriousness of an election petition review.

9. In opposing the application to dismiss, the applicant submitted that he has complied with one of the requirements and that is filing of the application for leave within 14 days. The outstanding matters which are service and hearing of the application for leave can be attended to and the default can be remedied or overcome by the Court exercising its power under O 5, r. 39 to dispense with these requirements. For this, he moved his application to dispense with the requirements of service and hearing on the basis that he has effected service, although it was outside the time limit of 14 days and given that service has been effected, that he be given leave to move the application outside the time limit of 14 days.

10. Relying on the Supreme Court decision of Wari Vele v. Powes Parkop & Electoral Commission (2008) SC945, he further submitted that the power to dispense with the requirements of the Supreme Court Rules is discretionary and the onus is on an applicant to firstly provide a reasonable explanation for the default, secondly, where there is delay, a reasonable explanation for the delay and thirdly, show that there is an arguable case.

11. In this case, he explained that after the decision of the National Court, he had exhausted all his funds and had to travel to Okapa in the Eastern Highlands Province to arrange for additional funds to pay for the costs of the review. When he returned to Port Moresby and instructed his lawyers to file the application for leave, he had one day left before the time limit of 14 days was to expire. In his haste to file the application, he wrongly paid the filing fee of K750.00 and security deposit of K5, 000.00 to the Department of Finance instead of the Registrar's Trust Account. As a result, the Registry staff rejected the documents and advised him to have the funds transferred to the Registrar's Trust Account. By the time he was able to do that, it was late to effect service and move the application.

12. He also explained that he was unable to serve the application for leave and supporting affidavits on the first respondent because the first respondent was overseas at that time, on Government business with the Attorney-General Hon. Kerenga Kua. This added to his dilemma. Added to this, the 14th day (17th April) fell on Holy Thursday, a day before the Easter weekend, thus the Court rose for vacation until 22nd April and he could not move the application.

13. He submitted that the proposed grounds of review raised important points of law which are not trivial and without merit. One of the proposed grounds is that, the trial judge dismissed the petition by holding that the Election Manager was authorised to change the polling location. He will contend at the substantive hearing that the decision is wrong because firstly, the Election Manager has no power to change the polling location, such power is vested in the Returning Officer and secondly, there was no justification for the decision to change the polling location. If dispensation of the Rules is granted, these are some of the issues that will be brought before the Court for determination. Further, the grant of dispensation will not unduly prejudice the respondents because these are the same issues raised and argued in the National Court and parties are well aware of them.

14. The submission by the respondents that the law is that the decision of the National Court is final and is not open to appeal is correct: see s. 220 of the Organic Law on Elections. Where the National Court makes a decision either in favour of the petitioner or the respondents, it brings to an end the election dispute and parties must accept the decision. The right to review is not a licence for a party who is aggrieved by the decision to invoke as and when he or she pleases. It does not work that way. There is a process to follow and there are certain requirements to meet before it becomes available. A higher standard of diligence and care in prosecuting the review is required because the first requirement is to seek leave and to do that, there is a process. The procedure is prescribed in O 5, particularly r. 14. The applicant must file, serve and move the application for leave within 14 days of the decision. If he runs out of time, he must make an application to extend time to comply with these requirements and also make the application within the time limit of 14 days.

15. The Judges of the Supreme Court who promulgated the Supreme Court Rules in 2012 and in particular, the rule under consideration had in mind the need to bring to a close an election dispute within a reasonable time. That is why they have fixed a time limit of 14 days for an aggrieved party to challenge the decision of the National Court and to do that, the applicant must file, serve and move the application for leave within 14 days. If the applicant does not comply with any or all these matters within 14 days, he is out of time and that is the end of the matter. In order to prevent this from happening, the applicant must apply to extend time to comply with any or all of these requirements but must do so within the time limit of 14 days. Again, if he does not, he is out of time and that is the end of the matter.

16. This was the reasoning of the Supreme Court in Wari Vele's case (supra). The decision in that case was made in 2008 before the current Supreme Court Rules (2012) came into force and was based on O 5, r. 7 of the Supreme Court Election Petition Review Rules which formed part of the Supreme Court Rules. It states:

"14. The Application for Leave shall be made within 14 days of the decision sought to be reviewed or within such further time as extended by the court upon application made within that 14 day period."
(Underlining is mine).

17. Two matters of significance worthy of mentioning here are; first, as that rule required the application for extension of time to be made to the "court", Mr Vele made the application before the full Court. Secondly, there was a debate in relation to the word "made". There was the argument that it meant that the application for leave was to be filed within 14 days but need not be heard within 14 days. There was the opposing argument that it meant that the application for leave must be filed, served and heard within 14 days. The latter was upheld by the Court. Following that, when the Judges reviewed and promulgated the Supreme Court Rules in 2012, they decided to express with clarity the procedure for obtaining leave by amending that rule and included the words "filed, served and heard". This is now reflected in O 5, r. 14. The same rule also provides that the application for leave shall be made to a judge and not the "court".

18. The Court went on to consider Mr Vele's submission to dispense with the requirements under O 5, r. 7 by invoking O 5, r. 32 of the Supreme Court Petition Review Rules and held that Mr Vele failed to establish a case for dispensation.

19. In this case, I consider that an application for leave to review must be filed, served and heard within 14 days of the decision of the National Court pursuant to O 5, r. 14 of the Supreme Court Rules, 2012. Where an applicant runs out of time to comply with any or all of the requirements of O 5, r. 14, he or she may apply to extend time to comply with any or all of them within that 14 days. I further consider that a failure to comply with any or all of the requirements under O 5, r. 14 of the Supreme Court Rules, 2012 and no extension of time granted to comply with them within the same 14 days renders the application for leave to review incompetent and liable to be dismissed.

20. I accept the respondents' submission to the extent that given that O 5, r. 14 gives an applicant an opportunity to apply for extension of time and such application must be also be made with the 14 days. But I do not accept their submission that the Court's power under O 5, r. 39 does not apply to remedy any default in the compliance with the requirements of O 5, rr. 14 and 15. O 5, r. 39 states:

"39. The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law."

21. I consider that pursuant to O 5, r. 39, the Court has power to dispense with the requirements of the Rules before or after the occasion for compliance arises. The power to dispense is discretionary and I apply the principles stated in Wari Vele's case (supra) here, they being the applicant must provide a reasonable explanation for the default, where there is delay, reasonable explanation for the delay show that the relief sought will not unduly prejudice the respondents and the grant of dispensation will enable all issues in contention to be promptly brought before the Court without further delay.

22. For this reason, I am satisfied that I have the discretion to dispense with the Rules and the question is whether the applicant has made out a case for dispensation. The starting point is that the respondents as the successful parties in the National Court proceedings are entitled to the fruits of the judgment. In the context of an election petition where the successful party is the member-elect, the benefit of the judgment should be given to him or her because the majority of the voters in his or her electorate have voted for him or her. Given the serious nature of such challenge and that there must be finality to litigation, the onus is on the applicant to show by evidence why he allowed the default to occur in the first place and the explanation must be reasonable and satisfactory.

23. To this, it is said that these days, contesting an election is an expensive exercise. Time and money is spent on the election itself and additional time and money is spent where an election petition is filed. Thus, a prudent candidate or prudent petitioner for that matter would have a contingency plan in place in the event that the petition is dismissed. If he desires to review the decision, he would have some funds saved to meet the costs of the review. In this case, the applicant did not and as a result, had no money. While he was organising additional funds, the 14 days was about to expire. I am not satisfied that lack of or no funds is a reasonable and satisfactory explanation for the default.

24. There are practical difficulties associated with an application of this nature in terms of locating and serving the application and supporting affidavit(s) on the first respondent and the applicant should have been well aware of them, especially where there is a tight time-frame of 14 days to work within and should have put more effort and planning when contemplating a review. He should have immediately after the decision instructed his lawyers to file the application, so that he may be able to serve it on the first respondent within time. He made no mention of attempts being made to locate the first respondent within 14 days except to say that he found out that the first respondent had gone overseas on a Government business trip at that time. This is exactly what I mean when I say that there are practical difficulties associated with an application of this nature. I am not satisfied that this is a reasonable and satisfactory explanation for the default.

25. The payment of filing fee and security deposit to a wrong account is simply an unforgiveable mistake. It surprises me that the applicant paid these monies into a wrong account and claims that he did not know that he was to pay them into the Registrar's Trust Account. He was the petitioner in the National Court proceedings and would have paid the National Court filing fee and security deposit into the Registrar's Trust Account when he lodged the petition and would have known the correct account. Given this, I do not believe his explanation and reject it.

26. The 14 day period is a very tight time-frame and the applicant should have been aware that the 14th day would fall on 17th April which was Holy Thursday and this would have caused him to have his lawyers' file, serve and move the application before that date or on that date. I am not satisfied that the explanation is reasonable and satisfactory. As to the whether the application for leave discloses an arguable case based on the proposed grounds of review, the applicant may have an arguable case as contended but it is only one aspect of the case and must be considered with other considerations. The main concern here is the conduct of the applicant. In my view the way he has conduct this case leaves a lot to be desired and it supports the respondents' case that he has not been diligent. It weighs heavily against the exercise of discretion in his favour.

27. What did he do to remedy the default after he ran out of time? I have to agree with the respondents' submission that even after the time limit of 14 days had expired, he did not immediately apply for dispensation. It was only after the first respondent filed the application to dismiss that he filed the application for dispensation. He filed his application on 20th May 2014, a week after the first respondent had filed the application to dismiss on 13th May 2014 and almost a month after the 14 day period had expired. In my view, there has been a delay of one month and one week and he has not explained why he failed to file the application promptly. I also accept the respondents' submission that the filing of the application for dispensation was a "knee-jerk" reaction and further evidence of the applicant's lack of diligence and disregard of the seriousness of an election petition review.

28. Contrary to the applicant's submission, I am of the further view that the granting of the relief sought will unduly prejudice the respondents. They will be subjected to further litigation where time and money will be further expanded to defend the application for leave. Furthermore, the issues between the parties have been resolved by the National Court and at the end of the day, the majority of the voters in the Okapa electorate have spoken through the secret ballot as to who should represent them in and during the term of Parliament. The first respondent as the successful candidate and having successfully defended the election petition in the National Court must be given the benefit of the judgment and it has not been satisfactory shown why this Court should deny him that benefit and allow a second round of litigation.

29. The end result is, I am not satisfied that the applicant has made out a case for dispensation of the requirements of O 5, rr. 14 and 15 of the Supreme Court Rules. On the other hand, I am satisfied that the respondent have made out a case for the dismissal of the application for leave to review the decision of the National Court of 03rd April 2014.

30. The orders of the Court are:

1. The applicant's application for dispensation of the requirements of O 5, rr. 14 and 15 of the Supreme Court Rules is dismissed.

2. The first respondent's application to dismiss the application for leave to review the decision of the National Court of 03rd April 2014 is upheld.

3. The application for leave to review is dismissed.

4. The applicant shall pay the respondents' costs of the proceedings, to be taxed, if not agreed.

5. The security deposit of K5, 000.00 held by the Registrar shall be released and apportioned equally between the respondents as part payment of their costs

_______________________________________________________________
Napu & Associates Lawyers: Lawyers for Applicant
Mawa Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent