Numu v Sia [2018] PGSC 102; SC1765 (29 September 2018)

SC1765

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 38 OF 2018

APPLICATION UNDER SECTIN 155(2 (b)
OF THE CONSTITUTION

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

BETWEEN:
PETER NUMU
Applicant

AND:
SIMON BINTAGOR SIA
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2018: 22 August & 5 September

SUPREME COURT – Order 5 Rule 7 and 8of the Supreme Court Rules, read together with Order 5, Rule 39 – meaning thereof – held no requirements prescribed by Order 5, Rule 7 and 8 – Application refused.

Counsel

Mr. A. Kongri, for the Applicant
Mr. T Sirae, for the First Respondent
Mr. W Kaum, for the Second Respondent

Case Cited:

Peter Wararu Waranaka v Gabriel Dusava (2008) SC942
Anton Yagama v Peter Yama, Steven Biko & Ors (2013) SC1219

29 September, 2018

1. DINGAKE J: This is an application for an Order pursuant to Order 5 Rule 39 of the Supreme Court Rules 2012 that the requirement under Rule 7 and 8 of the Rules be dispensed with.
2. The dispensation is sought in order to pave way, if same is granted, for the review of an interlocutory decision of the National Court, in proceedings EP No. 77 of 2017 – Simon Gintagor Sia v Peter Numu & Electoral Commission of Papua New Guinea, made on the 8^th of August, 2018, in which the Court refused to uphold an objection taken by the Applicant (first respondent) on the admissibility of a video footage as evidence by the Petitioner, Simon Bintagor Sia. In effect the Court dismissed the applicant’s objection to admitting video footage as evidence, and instead admitted same.
3. It is common cause that the decision sought to be reviewed is interlocutory in nature.
4. Order 5, Rule 7 defines “Decision” as:
   • "Decision" means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended).
5. Essentially, and quite plainly, the applicant seeks dispensation of the requirements under Rules 7 and 8 of the Rules, concerning the final decision to be dispensed with.
6. Having regard to the above, the question that sharply falls for determination is whether Rules 7 and 8 have any requirement(s) that may be dispensed with by the Court.
7. The applicant submits that he is entitled to proceed in the manner he has done in terms of the authority of Peter Wararu Waranaka v Gabriel Dusava (2008) SC942.
8. The applicant argued, in effect, that the dispensation he seeks is clearly mandated by reading Order 5 Rule 7 and 8 together. The applicant further argues that when Rules 7 and 8 are read together, an applicant is entitled to seek dispensation under Order 5 Rule 39 in so far as reviewing the decision is concerned.
9. Order 5, Rule 39 provides as follows:
   • 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. (emphasis mine)
10. As is manifestly clear from the above quotation, Order 5 Rule 39 provides that the Court or Judge may dispense with any of the requirements of the rules.
11. It seems to me that in order to succeed the applicant must, at the very least, show which requirements of the rules should be dispensed with.
12. In this case the applicant seeks to dispense with the requirements under Rules 7 and 8. However, Order 5 Rule 7 does not prescribe any requirements, but defines meanings of certain words in that section. It does not require anyone to do or comply with anything.
13. Similarly, I have found nothing, in Order 5 Rule 8 that prescribes any requirements capable of being dispensed with. Rule 8 simply says that 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 for an election petition.
14. In my respectful and considered view, it is also important to note that the word ‘decision’ in Rule 8, means “final decision of the National Court” because in terms of Order 7, the word ‘decision’ in this division, meaning Division 2, under which Rule 8 falls, means final decision.
15. It seems plain to me that when considering Order 5 Rules 7 and 8 together, they do not singularly or accumulatively prescribe any requirements.
16. Order 5 Rule 8 reinforces the requirement that the decision subject to an application for review should be a final decision.
17. I have had the pleasure and benefit of reading the judgment of Waranaka v Dusava (2008) SC942 (per Injia DCJ, as he then was) Anton Yagama v Peter Yama, Steven Biko & Ors (2013) SC1219 and Marape v Pokaya (2017) SC1634, (per Hartshorn J) and I do not consider that having regard to the arguments and circumstances of each of those cases it can be said that the decisions are necessarily in conflict.
18. In the case of Waranaka the Court suggested that where an applicant seeks a review of an interlocutory decision in an election petition he must apply for and obtain an order dispensing with the requirement of Rule 1 (now Rule 7 and 8).
19. The decision in Waranaka v Dusava was endorsed by the full bench of the Supreme Court in Yagama v Yama (supra).
20. Having considered the above authorities with extreme care and the submission by the parties hereto, I am of the respectful view that in none of the above decisions, save for the Marapa (supra) decision, was the Court’s attention specifically drawn to the specific wording of Order 5 Rule 7 and 8, namely that Order 5 Rules 7 and 8 do not prescribe any requirements. I find this important difference to distinguish this case to that of Waranaka v Dusava and Yagama v Yama, both cited supra.
21. In view of the above, I find myself in respectful agreement with Hartshorn J’s remarks in the Marape case that in the absence of any Supreme Court decision that specifically considered the argument that Order 5 Rules 7 and 8 do not prescribe any requirements, and the Court arriving at the contrary conclusion, I am constrained to hold that Order 5 Rules 7 and 8 prescribes any requirements capable of being dispensed with as they are no such requirements.
22. In all the circumstances of this case, I find that there is no merit in this application and the application is refused.
23. In the result it is ordered that:
    • (a) The relief sought in paragraph 1 of the applicant’s amended application filed on the 21^st of August, 2018 is refused with costs.

___________________________________________________________
Kongri Lawyers: Lawyers for the Appellant
Sirae & Co Lawyers: Lawyers for the First Respondent
Kimbu & Associate Lawyers: Lawyers for the Second Respondent