Kobol v Powi [2018] PGSC 51; SC1713 (7 August 2018)

SC1713

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 32 OF 2018

APPLICATION UNDER S. 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:
JOSEPH KOBOL
Applicant

AND:
WILLIAM POWI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2018: 19^th July,
: 7^th August

Application for leave to review

Cases cited:

Dick Mune v. Paul Poto [1997] PNGLR 356
Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Bede Tomokita v. Douglas Tomuriesa (2018) SC1684

Counsel:

Mr. P. Waraniki, for the Applicant
Mr. A. Baniyamai, for the First Respondent
Ms. A. Kimbu, for the Second Respondent

7^th August, 2018

1. HARTSHORN J: This is a decision on a contested application for leave to review the decision of the National Court which dismissed the applicant’s election petition. The application for leave is made pursuant to Order 5 Rule 9 Supreme Court Rules 2012.

Background

2. The first respondent was declared the elected Member of Parliament for the Southern Highlands Province in the 2017 General Elections. The primary judge dismissed the applicant’s election petition after upholding the first respondent’s objection to competency on the ground that the applicant incorrectly specified the relief to which he claimed to be entitled in his election petition contrary to s. 208(b) and s. 212 Organic Law on National and Local-level Government Elections (Organic Law).

Application for Leave - Law

3. The criteria for the exercise of this court’s discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 at [9]. In the view of Injia DCJ (as he then was) at [11]:

“The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed.”

4. I respectfully concur with His Honour’s comments and mention that notwithstanding that an application for leave is provided for under Order 5 Rule 9 Supreme Court Rules 2012, it is the case that s. 220 Organic Law on National and Local-level Government Elections (Organic Law) is in the following terms:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

5. As I stated in Bede Tomokita v. Douglas Tomuriesa (2018) SC1684 at [5], it is in my view, in the context of the intention of the Parliament expressed in this provision, whilst of course, respecting the paramountcy of s.155(2)(b) Constitution, that for an application for leave to review an election petition the, “.... standard of satisfaction must be set rather high”, as stated in the Supreme Court in Waim No. 85 Ltd v. The State (2015) SC1470 at [7] and Poko Kandapaki v. Enga Provincial Government (2015) SC1463 at [8].

This application

6. The applicant’s proposed grounds of review that are set out in his application for leave are in essence that this application for leave to review should be granted as the primary judge fell into error in:

a) Failing to provide sufficient reasons for his decision to dismiss the petition;

b) Following the case of Conrad Haoda v. Aida Ganasi (2013) N5136, and cases that adopted a strict approach;

c) Determining that incorrect relief was sought in the election petition;

d) Dismissing the petition instead of striking out the incorrect relief;

e) His interpretation of s. 208(b), s. 212 and s. 217 Organic Law.

7. The applicant contends that leave should be granted as there are important points of law to be determined, the National Court was not guided by the substantial merits and good conscience of the case and the primary judge fell into error in his consideration of s. 212 and s. 208(b) Organic Law and in striking out the petition.

8. The respondents contend in essence that the application for leave to review should be refused as the applicant has not demonstrated in each of his proposed grounds for view that there are important points of law and/or facts not without merit being raised and that the grounds are likely to succeed.

Consideration

9. Notwithstanding the proposed grounds and other content of the application for leave to review, and the submissions made on behalf of the applicant, which, with due respect to counsel for the applicant, were difficult to follow and comprehend, as the reason for the dismissal of the petition was because of the primary judge’s finding that incorrect relief was specified in the petition, the task of the applicant before this court was to demonstrate how that finding gives rise to a serious issue on a point of law or fact to be determined such that if leave is granted, his application is likely to succeed.

10. In considering whether there has been such a demonstration, regard must be had to whether the primary judge was entitled to make that finding. The dismissal of the petition was made on that finding as s. 212 and s. 208(b) Organic Law were not complied with. Section 208(b) provides that:

“A petition shall –

(b) specify the relief to which the petitioner claims to be entitled;”

11. Section 212(1) Organic Law is relevantly, as follows:

“212. Powers of court.

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

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

(e) .......

(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.”

12. Section 212(1) Organic Law was considered in detail in Dick Mune v. Paul Poto [1997] PNGLR 356. The Court said that:

“We consider that the discretion in s. 212(2) is limited by the phrase all or any of its powers under this section; “all” of its powers are specifically prescribed in s. 212(1)(a) to (k). In our view the discretion lies in the choice of selecting and making any of the orders in order to reach a just and efficient result but there is no discretion to go outside the orders specifically mentioned like vacating an order dismissing the petition.”

“Even for those orders in s. 212, the Court’s discretion is not unlimited.”

(My underlining)

13. No Supreme Court decision that conflicts with Mune v. Poto (supra) was brought to this court’s attention. The decision in Mune v. Poto (supra) is binding upon the primary judge.

14. When the relief that is sought in the petition is considered, it is clear that the relief sought in paragraph 51(A) is not specified in s. 212(1) Organic Law. In the words used in Mune v. Poto (supra), it would be necessary to go outside the orders specifically mentioned in s. 212(1) to find the relief sought in paragraph 51(A). That relief sought, being “A Declaration that the declaration..... was null and void and of no force or effect”, is not an order that is specified in s. 212(1) Organic Law.

15. Further, the relief sought in 51(B) to 51(D) is consequential upon the relief sought in 51(A) being granted by use of the word “and” after each of paragraphs 51(A), (B) and (C). I do not find error in the primary judge’s finding in this regard.

16. Even if the relief sought in 51(B) to (D) is considered on the basis that it is not consequential upon the grant of 51(A), the relief sought in 51(B) to (D) is not relief that is specified in s. 212(1) Organic Law.

17. Consequently, in accordance with Mune v. Poto (supra), I am satisfied that the primary judge was entitled to make the orders that he did. Further, following a consideration of the content of the application for leave to review and the affidavit in support and the written and oral submissions of counsel, I am not satisfied that the applicant has demonstrated that he has a serious issue on a point of law or fact to be determined such that if leave was granted, the application is likely to succeed. Given this it is not necessary to consider the other submissions of counsel.

Orders

18. It is ordered that:

a) The application for leave to review is dismissed;

b) The costs of both respondents of and incidental to this proceeding shall be paid by the applicant.
____________________________________________________________
Waraniki Lawyers: Lawyers for the Applicant
Baniyamai Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent