Kulang v Onglo [2018] PGSC 52; SC1714 (13 August 2018)

SC1714

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) 31 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:
TOBIAS KULANG

Applicant

AND:
WILLIAM GOGL ONGLO
First Respondent

AND:

ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Hartshorn J
2018: 17^th July
: 13^th August

Application for leave to review

Cases cited:

Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Wari Vele v. Powes Parkop (2008) SC945
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Michael Kandiu v. Powes Parkop (2015) SC1597
Bede Tomokita v. Douglas Tomuriesa (2018) SC1684

Counsel:

Mr. S. Phannaphen, for the Applicant
Mr. C. Gagma, for the First Respondent
Mr. H. Nii, for the Second Respondent

13^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 Kundiawa Gembogl Open Electorate in the 2017 General Elections. The primary judge dismissed the applicant’s election petition after upholding the first and second respondents’ objections to competency for not pleading adequate facts pursuant to s. 208 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 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 review grounds in essence are that:

a) The primary judge misconstrued the election petition. This led to a misapprehension of the election petition resulting in the decision and reasons for the decision of the primary judge being affected;

b) The primary judge erred in dismissing all of the grounds in the election petition for being incompetent.

7. The first respondent submits amongst others, that no important point of law that may have been missed by the primary judge has been raised and there is no serious error of law that would warrant the Supreme Court to intervene or to review. The applicant has not met the high standards required for leave to be granted.

8. The second respondent submits amongst others, that the applicant has failed to establish that the grounds in the application raise serious issues of law that warrant leave to be granted.

Preliminary
Application for dispensation

9. When the application for leave was called for hearing, the applicant objected to any adjournment to permit the respondents to file objections to competency, arguing that the respondents should have filed objections to competency earlier and in any event, the respondents could make submissions on competency in the application for leave to review.

10. The court accepted this submission and proceeded to hear the application for leave. In the submission in reply of counsel for the applicant, an oral application was made for dispensation of the requirements of Order 5 Rule 11 Supreme Court Rules, pursuant to Order 5 Rule 39 Supreme Court Rules.

11. This application for dispensation is refused as it is made too late. The case for the applicants and both respondents had been presented when the oral application was made, and no notice of the dispensation application had been given to the respondents. The applicant had sufficient time to make the application for dispensation earlier in the proceeding but did not. Further, the Supreme Court in the case of Wari Vele v. Powes Parkop (2008) SC945 (Lay, Davani, Hartshorn JJ) at [17] described the Supreme Court Rules concerned with election petition reviews as:

“.... a scheme of rules intended to impose restrictions on the right of review, so as to establish in the shortest possible time, for the benefit of the people of an electorate, the identity of the person entitled to represent the people in and for the term of the Parliament.”

Then at [23] the Court said:

“23. As with all applications made after the first opportunity to establish the appellant or applicant’s rights has been missed, the first issue to be established is why that time limit was missed, a Rule has not been complied with or otherwise why dispensation is required. There has to be some reasonable explanation. The second matter to be explained is the delay, if any, which has occurred between the expiry of the time limit and the making of the application to waive/extend the time limit. Next, it should be established that the relief sought by the applicant will not unduly prejudice the respondent's conduct of his case. Lastly it should be established that the grant of dispensation will enable all of the issues in contention to be promptly put before the Court without further delay.”

12. In this instance, the applicant has failed to satisfy this court as to the requisite factors listed above in its oral application for dispensation.

Competency

13. The respondents submit that the application for leave to review is incompetent as Order 5 Rule 10(c) and (f), and Order 5 Rule 11 Supreme Court Rules have not been complied with. I am satisfied that I have jurisdiction to hear these objections by virtue of Order 5 Rule 37 on my own motion. Further, as mentioned, counsel for the applicant submitted to the court that the respondents could make their submissions as to competency on the hearing of the application for leave to review.

14. The applicant submits that there has been substantial compliance with Order 5 Rules 10 and 11 Supreme Court Rules, that no prejudice has been caused to the respondents and that the objections to competency of the application for leave should be refused.

Order 5 Rules 10(c) and (f)

15. Order 5 Rules 10(c) and (f) provide that:

“An application for leave shall-

(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and .......

(f) be in accordance with Form 5A; ....”

16. Form 5A provides under paragraph 2:

“(state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case)”

17. From a perusal of the application for leave to review, I am satisfied that Order 5 Rule 10(c), Form 5A and therefore Order 5 Rule 10(f) Supreme Court Rules have not been complied with.

Order 5 Rule 11

18. Order 5 Rule 11 is as follows:

“11. The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.”

19. It is conceded by the applicant that the order of the National Court is not annexed to the affidavit in support of the applicant. It is submitted however, that there has been substantial compliance as the primary judge set out the orders that he made in paragraph 109 of his judgment. As to this submission, as a judgment will contain orders made by the judge in the course of making his judgment, this fact was not considered sufficient when the Supreme Court Rules were made otherwise, “order” would not have been included in Order 5 Rule 11. Further, it is necessary to have a copy of the order of the National Court so that, amongst others, the date when the judgment took effect may be ascertained whether on the date of direction by the Court or the date of entry. I am not satisfied that Order 5 Rule 11 Supreme Court Rules has been complied with.

20. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:

“50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).”

21. In accordance with this statement of the Supreme Court, I am satisfied that the respondents have satisfactorily made out their case that the application for leave to review is incompetent for the reasons already mentioned. Given this, it is not necessary to consider the other submissions of counsel.

Orders

22. It is ordered that:

a) The application for leave for review is dismissed;

b) The costs of the respondents’ of and incidental to the application for leave to review shall be paid by the applicant.
_____________________________________________________________
Jefferson Lawyers: Lawyers for the Applicant
Gagma Legal Services: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent