Dumarinu v Akoita [2018] PGSC 91; SC1748 (12 November 2018)

SC1748

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 26 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:
FATHER SIMON DUMARINU
Applicant

AND:
SAM AKOITA
First Respondent

AND:
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2018: 23^rd August,
: 12^th November

Application for leave to review

Cases cited:

Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153

Counsel:

Mr. G. Sheppard and Mr. P Tabuchi, for the Applicant
Mr. J. Sirigoi, for the First Respondent
Mr. A. Kongri, for the Second Respondent

12^th November, 2018

1. HARTSHORN J: This is a decision on a contested application for leave to review the decision of the National Court which dismissed an application for amongst others, a court ordered recount of votes to be recounted.

Background

2. The applicant was declared the elected Member of Parliament for the Central Bougainville Open Electorate, in the 2017 National Elections. The first respondent was the runner-up. The first respondent’s election petition was permitted to proceed to trial on one ground only. Following the trial of the election petition, the primary judge ordered a recount of the votes. The recount took place with the first respondent very narrowly obtaining more votes than the applicant. The applicant filed a notice of motion applying for amongst others, the recount of votes to be recounted. The primary judge dismissed that notice of motion. It is that decision (motion dismissal) in respect of which leave to review is sought.

Preliminary

3. The applicant relies upon s. 155(2)(b) Constitution for leave to review the motion dismissal. The Supreme Court Rules, Order 5 Rule 8 and 9, provide for an election petition review and that leave is required. That is in respect of a decision of the National Court in an election petition brought under Part XVIII, Organic Law on National and Local-Level Government Elections. Order 5 Rule 7 Supreme Court Rules provides that:

“Unless expressly stated otherwise in this division:-

“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).”

4. The motion dismissal is not a final decision of the National Court made after the hearing of an election petition and it is not an order dismissing a petition. It therefore does not fall within the definition of “Decision”. Consequently, it is not a decision in respect of which an application for an election petition review may be filed or in respect of which leave may be sought.

5. Further, it is also not a final decision as it does not finally determine the matter in the National Court and it does not finally dispose of the rights or issues of and between the disputing parties: Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153.

6. Consequently, as it is not a final decision it is not a “Decision” in respect of which an election petition review may be filed under Order 5 Rule 8 Supreme Court Rules or in respect of which leave may be sought.

7. Similarly, the competency or jurisdictional issue that the applicant did not include in his application for leave to review, concerning inadequate pleading of the ground permitted to proceed to trial, concerns a decision that does not come within the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules.

8. Moreover, the applicant has not obtained a dispensation with the requirements of the Supreme Court Rules to permit him to be able to apply for leave to review a decision that does not fall within “Decision” in Order 5 Rule 7 Supreme Court Rules. He has “not done any act required to be done by or under the rules of this division” in Order 5 Rule 37(a) Supreme Court Rules. Consequently, a Judge may on his own motion order that the application for leave be dismissed.

9. This application for leave to review should be dismissed. Given the above it is not necessary to consider the other submissions of counsel.

Orders

10. It is ordered that:

a) The application for leave for review is dismissed;

b) The costs of both respondents of and incidental to this proceeding shall be paid by the applicant.
____________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Sirigoi Lawyers: Lawyers for the First Respondent
Kongri Lawyers: Lawyers for the Second Respondent