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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO. 3 AND SCREV (EP) 4 OF 2019
Application under 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
SCREV (EP) 3 OF 2019
BETWEEN:
WILLIAM POWI
Applicant
AND:
PASTOR BERNARD PETER KAKU
First Respondent
AND:
ELECTORAL COMMISSION
Second Respondent
AND
SCREV (EP) 4 OF 2019
BETWEEN:
ELECTORAL COMMISSION
Applicant
AND:
PASTOR BERNARD PETER KAKU
First Respondent
AND:
WILLIAM POWI
Second Respondent
Waigani: Kandakasi DCJ; Mogish & Dingake JJ.
2019: 01st and 30th April
PRACTICE & PROCEDURE – Application for dispensation of requirements of Order 5 Rules 7 and 8 pursuant to Rule 39 of the Supreme Court Rules – Effect of Rules 7 and 8 – No right of review of interlocutory decision –Effect of – Contrary to provisions of s. 155 (2) (b) of the Constitution - Court has power to review all judicial acts of the National Court - No provision for applications for dispensation – Ad hoc directions issued – Application to be in form similar to application for leave for review to be filed together with an Application for leave for review given need to deal with election petitions promptly –Issues raised must be meritorious and likely to succeed - Case made for dispensation – Dispensation granted and application for leave permitted to be progressed to hearing subject to service.
WORDS & PHRASES– “Court” - Under the Supreme Court Act, means the full court of the Supreme Court of Justice - “Judge” refers to a Judge of the Supreme Court of Justice -“dispense” - Meaning of –Means permission to do something forbidden by law or relaxation of the strict requirements of the law for the benefit or advantage of an individual – “requirement” – Means of – Means a “necessity”, “demand”, “specification”, “stipulation”, “want”, “need”, “must”, “essential”, “qualification”, “precondition”, “requisite” or “must have” – Combined meaning of the word “dispense” and “requirement” as used in r. 39 of Order 5 of the Supreme Court Rules means - the Court may exempt or do away with or release or remove any impediment that might be in the way of a party who wishes to invoke the Supreme Court’s review powers under s.155(2)(b) of a decision of the National Court.
These are two Applications by the Honourable William Powi (Hon. Powi) and the Electoral Commission (the EC) seeking a dispensation of the requirements of the O.5, r .7 of the Supreme Court Rules (the Rules) which effectively precludes them from seeking a review of an interlocutory decision of the National Court. The Applications were filed pursuant to O.11, r. 25 of the Rules. The National Court dealt with an election petition by the First Respondent (Pr. Kaku) met by two separate objections to its competency by the Applicants. The learned trial Judge heard the objections together and delivered one judgment. That judgment dealt only with the objection by Hon. Powi and not the one by the EC. The objections raised issues of the petition not been in the form prescribe by the Election Petition Rules (EP Rules) and not pleading facts and the reliefs in the way required by s. 208 of the Organic Law on National and Local Level Government Elections, (Organic Law) which had to be dealt with first because of the provisions of s.210 of the Organic Law. The learned trial Judge applied s.217 of the Organic Law and held that the petition not being in the prescribe form was not fatal, upheld parts of the objection by Hon. Powi and ordered the balance to go to trial and commence hearing on the remaining grounds of the petition.
The Applicants claimed the EC was denied natural justice within the meaning of s. 59 of the Constitution, and the learned trial Judge erred in applying s. 217 of the Organic Law especially when no order either dispensing or waiving the requirements of r.4 and Form 1 ofthe EP Rules was sought and granted, facts forming the foundation for invoking the provisions of s. 142,168(1) and 175(1A) of the Organic Law were not pleaded, the reliefs sought were not properly pleaded and there was no pleading that the actions of the EC officials affected or were likely to affect the results of the election and that it was just and fair that the declaration of Hon. Powi as the winner of the relevant election should be declared null and void. The Applicants claimed the issues they raised were meritorious and needed to be presented to the Supreme Court by way of review of the National Court’s decision. However, they claim they are precluded from taking the matter to the Supreme Court because of the provisions of O.5, r.7 of the Rules, since the decision of the National Court is an interlocutory decision and not a final one. Hence, they are first seeking a dispensation of the requirements of the provisions in question with ad hoc directions to bring their Applications. Conditional on success on those Applications, they sought appropriate orders for them to proceed with applications for leave for review. In response, Pr. Kaku argued that the learned trial Judge fell into no error and that the Applicants Applications are without merit. He also argued that O.11, r.25 of the Rules did not apply as they apply only to appeals and not reviews. On the dispensation application, Pr. Kaku argued that there was no requirement under O.5, r.7 of the Rules to dispense and that the Applicants are prevented by that provision from seeking a review of the National Court’s decision. Based on these submissions he argues for a dismissal of the Applications.
Held:
(a) to use forms similar to applications for leave for review but appropriately modified to show they are applications for dispensation where there exists no valid proceeding on the basis of which dispensation could be sought;
(b) given the need to expeditiously hear and dispose of election petition related cases an application for dispensation must be filed together with an application for leave for review subject to a grant of the application for dispensation being given to enable expedited hearing and disposal;
(c) within the time prescribed by the Rules for review applications; and
(d) meet all the other requirements for applications of leave for review as required.
(b) a lack of pleading both the requirements of the results being affected or likely to be affected and that it is fair and reasonable that the election victory of Hon. Powi should be declared null and void when the Petition is based purely on the errors, omissions and or illegal actions of the Electoral Commission officials, forms meritorious basis for a possible review which have the likelihood of succeeding.
(a) their Applications for dispensation were granted;
(b) the Applications they filed for leave for review were deemed to have been filed pursuant to the ad hoc directions given; and
(c) directed those Applications to be progressed to a hearing.
Cases Cited:
Joel Luma v. John Kali (2014) SC1608
Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuant to Constitution Section 19 by Morobe Provincial
Government for and on behalf of The Morobe Provincial Executive Council (2002) SC 693
Belden Norman Namah v. Rimbink Pato (2016) SC1497
MalipuBalakau v. Torato [1983] PNGLR 242
De Kewano v. Pastor Isaac Joseph and Andrew Trawen (2012) SC1205
Polye v. Manase (2015) SC1339
Marape v. Pokaya and Electoral Commission (2017) SC1634
Sir Julius Chan v. Andrew Trawen (2012) SC1215
John Simon v. Gabriel Kapris, Unpublished judgment of Salika DCJ in SCR 12 of 2012
John Pundari v. Lucan Neah, Unpublished judgment, per Salika DCJ in SCR 30 of 2012
Kewano v. Joseph (2012) SC1205
Schnaubelt v. Chan (2012) SC1204
Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272
Waranaka v. Dusava (2008) SC942
Anthon Yagama v. Peter Yama, Steven Bigo and Others (2013) SC1219
Electoral Commission of PNG v. Simon J Solo (2015) SC1467
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
Michael Bogai Dua v. Noah Kool (2018) SC1676
Gordon Wesley v. Isi Henry Leonard (2015) SC1433
PNG Aviation Services Pty Ltd v. Michael Thomas Somare (2017) SC1590
Re alleged improper borrowing of AUD1.239 Billion Loan (2016) SC1556.
Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677
PNGBC v. Jeff Tole (2002) SC694
Philip Takori v. Simon Yagari (2008) SC905
Air Niugini Ltd v. Agnes Puri Unagi (2007) SC901
Hilary Singat v. Commissioner of Police (2008) SC910
Niugini Mining Ltd v. Joe Bumbandy (2005) SC804
Sandy Talita v. Peter Ipatas (2016) SC1603
Delba Biri v. Bill Ninkama [1982] PNGLR 342
SCR Nos 12 and 12A of 1984; Joe Parakas v. The State [1985] PNGLR 224
Special Reference by the Attorney-General pursuant to Constitution, Section19 (2016) SC1534.
Philip Kikala v. Electoral Commission (2013) SC1295
Ginson Goheyu Saonu v. Bob Dadae (2004) SC763
Jimson Sauk v. Don Pomb Polye (2004) SC769
Steven Pirika Kamma v. John Itanu (2007) N3246
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572
SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent
State of Papua New Guinea (2002) SC689
SC Ref No. 4 of 2017; Special Reference by the Ombudsman Commission of PNG (2019) SC...
Counsel:
Mr. A. Baniyamai, for the Applicant in SCREV (EP) 3 of 2019
Mr. H. Nii, for the Applicant in SCREV (EP) 4 of 2019
Mr. R. Diweni, for the Respondent in both Applications
27th May, 2019
Objection to Competency
“1. The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.”
“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.
26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply.
27. Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to Section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.”
“5. Incidental directions and interim orders.
“(1) Where an appeal is pending before the Supreme Court—
(a) a direction not involving the decision on the appeal; or
(b) an interim order to prevent prejudice to the claims of the parties; or
(c) an order in any proceedings (other than criminal proceedings) for security for costs; or
(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or
(e) an order admitting an appellant to bail,
may be made by a Judge.
(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.
(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.”
“10. Powers that may be exercised by Judge.
(1) Any power of the Supreme Court under this or any other Act—
(a) to give leave to appeal; or
(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or
(c) to admit an appellant to bail,
may be exercised by a Judge in the same manner as it may be exercised by the Court.
(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.”
(Underlining ours)
“The nature of an application under s 5(3) is explained in several decisions of this Court. It is an application to “vary or discharge” an order of a single Judge; it is not a fresh appeal or a review from that decision. The application is interlocutory in nature and made in the context of the existing appeal: National Executive Council & others v Dr Vele Pat Ila’Ava& another, Unreported judgment of the Supreme Court dated 26th February 2014, per Gabi, Sawong& Murray JJ. ToRobert v ToRobert (2011) SC1130, Powi v The State (2006) SC844, National Executive Council & others v Dr Vele Pat Ila’Ava& another (supra). As with all proceedings before the Supreme Court, the matter proceeds by way of a rehearing de novo: see s 6 of the Act.”
“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).”
Substantive Applications
(a) Dispensation under Rule 39
“27. That r.1 [or Rule 7, in the consolidated SC Rules] of the SCEPRR is a jurisdictional clause and there is nothing in that clause to dispense with, without affecting the entire SCEPRR.
28. The moment it is dispensed with, all the other rules become useless and become nugatory and the scheme of the rules will be defeated. With respect it is not a tenable proposition to dispense with the said rule.
29. In my view there is no way the Supreme Court can review an interlocutory decision of the National Court in Election Petition matters.
30. Accordingly, I refuse the application for leave to dispense...”
“I discern from the reasoning in those cases that because the requirement for a decision to be final goes to the very foundation on which the review jurisdiction is exercised under [the Rules], the Court cannot dispense with that particular requirement, a statement of principle that I agree with. But that is a matter which goes to the exercise of the discretion under r 32 and that is a separate matter. Insofar as it concerns jurisdiction, r32 gives a single Judge the jurisdiction to dispense with the requirement of [the Rules] that a decision the subject of the appeal be final.”
“The grant of leave goes to the very foundation upon which the entire review process ... rests. I consider that the definition of the term “decision” in r 1 which defines the term “decision” to mean a final decision is one such rule that if dispensed with, would render the review process ... ineffectual and meaningless. The definition of the term “Decision” rules out any application for leave for review outside the scope of review for reasons that are well founded. Some of those reasons are to be found in a number of recent rulings of single judges of this Court which I referred to earlier.”
“gives effect to the constitutional dictate in the [Organic Law on National and Local-level Government Elections] that a decision in an election petition is final and not subject to appeal or question in any manner. It reinforces the constitutional position that the review jurisdiction of the Supreme Court under s 155 (2)(b) of the Constitution is highly discretionary and is available in limited cases with exceptional circumstances.”
(b) Consideration of the law
“For purpose of future guidance of practitioners and parties, I wish to clarify the correct procedure to be adopted by an applicant in seeking review of a preliminary ruling made in the course of a trial which falls short of determining the entire proceedings on the petition. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Election Petition Rules) states that an objection to competency of the petition must be dealt with in the course of the trial. A ruling on an objection to competency of the petition which does not result in terminating the proceedings on the petition is not a final decision for which leave for review may be sought: see r 1 and definition of a “Decision” in the Petition Review Rules. A single judge of the Supreme Court is bound by r 1 and the definition of “decision”. I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court’s power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling.The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r32 is incompetent: see Olga v Wingti (2008) SC 938.”
(Emphasis added)
“With regard to our exchanges to counsel as to whether or not an interlocutory ruling (such as an objection to competency), maybe subject to review by this court under section 155(2)(b) Constitution, we respectfully agree with and endorse the views expressed by Injia DCJ (as he then was) in Waranaka v Dusava (unreported SC942 of 2008) that the only way by which leave to review can be sought is for an applicant to seek an order under Rule 32 dispensing with a requirements of Rule 1...”.
“the ruling by the trial judge at the competency hearing was interlocutory. It was not a final decision within the meaning of the expression ‘Decision’ prescribed in Rule 1 of the Supreme Court Election Petition Review Rules. The learned Chief Justice does not give any explanation as to how the interlocutory ruling on this aspect, were subsumed into the final decision. The ruling on the competency of the petition was interlocutory in nature. In our view that ruling could not be subsumed into the final decision. The ruling on the competency issue was quite distinct and separate and did not form part of the final decision. The competency hearing of an election petition involves a separate and distinct process, at the end of which a ruling is made. The ruling may uphold the objection in the whole, in which case, an applicant may if he/she so desires seek to review that ruling or decision. Such a decision would become a decision within the meaning of that expression as set out in s.1 of the Rule. In such a case there would be no need to seek dispensation under Rule 32.
(Emphasis supplied)
“...if the ruling is upheld in part, an applicant wishing to seek a review of an interlocutory ruling must seek dispensation under Rule 32 to review that part of the ruling. If the applicant in such a case does not seek dispensation under Rule 32, the review application would be incompetent.”
“With respect, we will follow the decision of the Supreme Court in Anton Yagama v. Peter Charles Yama (supra) where the Court was quite emphatic in stating that a review should be allowed only where there is clear error which has a very high chance of success.
In a nutshell, what this boils down to is that the Supreme Court is not deprived of jurisdiction in any way to deal with all judicial acts of the National Court including interlocutory rulings or decisions in election petition cases by virtue of s. 155(2)(b) of the Constitution.
For these reasons, this Court has jurisdiction to review an interlocutory ruling of the National Court in the subject election petition proceedings.”
(Emphasis supplied)
“When the applications for review came before us ... we upheld an objection to competency in relation to the application for review of the Competency Decision. We ruled that as that decision was not a final decision after the hearing of the petitions or an order dismissing the petitions, the applicants could only seek a review of that decision if dispensation had been granted under Order 5 Rule 39 of the Supreme Court Rules, and such dispensation had not been given. For those propositions, we relied on the cases of Dekena v Kuman (2013) SC1271; Peter WararuWaranaka v Gabriel Dusava (2008) SC942; Olga v Wingti (2008) SC938 and Yagama v Yama &Ors (2013) SC1219.”
(Emphasis supplied)
“18. His Honour’s [Batari J.’s] view was that despite the apparent prohibition in those Rules the Supreme Court had an overriding power derived from Section 155(2)(b) of the Constitution to exercise its discretion to grant leave to review all judicial acts of the National Court, including interlocutory decisions made in the course of hearing an election petition, and could dispense with the requirements of the Rules in order to do so (in particular pursuant to Order 5, Rule 39). His Honour noted that there appeared to be conflicting authority on the issue of whether there was a blanket prohibition against granting leave to review interlocutory decisions or whether leave to review such decisions could be granted through the exercise of discretion in a particular case. His Honour referred to Anton Yagama v Peter Yama (2013) SC1219 and Anton Yagama v Peter Yama SC Rev 55 of 2012, 30.05.13, unreported, as examples of the apparent conflict. His Honour decided that he preferred and followed the approach in the latter case, which meant that leave to review an interlocutory decision could be granted where there was a clear error that had a very high chance of success.
19. We reiterate that we respectfully acknowledge and appreciate Batari J’s approach to the issues of competency and jurisdiction. However, we took a different approach, which is exemplified by the decision in Anton Yagama v Peter Yama (2013) SC1219, which is that the Supreme Court can only review a decision of the National court on an election petition that is not a final decision if the requirements of the Supreme Court Rules are dispensed with.”
(Emphasis supplied)
“14. In regard to the Supreme Court decisions relied upon by the first applicant, Anton Yagama v. Peter Yama (2013) SC1219 Waranaka v. Dusava (2008) SC942; Tom Olga v. Paias Wingti (2008) SC938; and Dawa Dekana v. Nick Kuman (2013) SC1272, notwithstanding that there is acknowledgement that the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules enables only a final decision to be the subject of an application for review and that there is the ability to rely upon Order 5 Rule 39 for dispensation, as far as I am aware, when dispensation with compliance with Order 5 Rule 7 has been granted, the Courts that have granted the dispensation have not had the benefit of the particular argument that this court has considered concerning the specific wording of Order 5 Rules 7 and 39 Supreme Court Rules.
15. In the absence of any Supreme Court decision that has specifically considered this argument or having done so has arrived at a contrary conclusion, I am of the view, as expressed, that Order 5 Rule 39 Supreme Court Rules is not able to be successfully relied upon by the first applicant for dispensation with Order 5 Rule 7 Supreme Court Rules that he seeks. Given this, it is not necessary to consider the other submissions of counsel concerning the remainder of the relief sought.”
“In regard to the application to dispense with Order 5 Rule 8 Supreme Court Rules, it was submitted that by seeking a dispensation of Rule 8 as well as Rule 7, that this enabled this court to grant the dispensations sought.”
(c) Correct procedure for seeking dispensation
“9. Where a person desires to take any stepin proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.”
“185. Lack of procedural provision.
If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”
(d) Appropriate cases for review
“The Court 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.”
(Underlining supplied)
“... O.1 r.7 of the NCRs, compliments s. 155 of the Constitution by giving the Court the power to dispense with a non-compliance of the rules either before or after the need to do so has arisen in the interest of justice. It is now settled law that, the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts.They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed with in the circumstances of a particular case. For more discussion on this see Anthony John Polling -v- Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228 at page 230 and The South Pacific Post Pty Ltd -v- Ephraim Ikenna Maduabuchi Nwokolo[1984] PNGLR 38 at page 46. It should be borne in mind that, the Rules are designed to guide and assist the Courts and the parties to reach a fair, orderly and expeditious resolution of matters before the Courts. Their application was thus intended to be flexible: See Andrew Kimberi of Paulus & Dowa Lawyers -v- The State (Unreported Judgement of the Supreme Court delivered in 1988) SC 545 at page 22.”
(Emphasis supplied)
“The fundamental purpose of the Rules therefore is to enable a proper conduct of trials of disputes. They are not a set of traps designed to prevent an unwary litigant .... That is why there is provision in the Rules (O1.r.7) for a dispensation of a strict compliance of the Rules in the interest of doing justice. They particularly do not and cannot substitute for the substantive law that governs the dispute. After all pleadings are only a means to an end but not an end in themselves: See Gould and Birbeck and Bacon (supra) as quoted and applied in the James Pupune Case...”[2]
“... there is a large body of case authority such as the decision of the Supreme Court in Public Officers Superannuation Fund Board v. Sailas Imanakuan,... which say that, the rules are only a means to an end and not an end in themselves. In other words, the Courts should be looking at doing justice on the merits of the case and not necessarily on the compliance or noncompliance of the rules. However, we are of the view that, that issue can only arise when, a party is properly applying for and does make out a case for a dispensation of the strict compliance of the rules pursuant to O 1 r 7 of the Rules.” (Emphasis supplied)
“We would add here, however, that such dispensation with the requirement [of O.5, r7]should only be granted where the trial judge had clearly erred on the face of the record and that, therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested (s 208 (c) and (d)), and the security for costs had not been deposited (s209) Organic Law, and the petition proceeded to substantive hearing despite these clear breaches.”
(Emphasis supplied)
“The leave process is not a mere formality. Instead, it is a necessary filtering process to allow only meritorious and important points of law or fact to be raised in the highest Court of the land, the Supreme Court. Hence, it is a serious matter in which a party aggrieved by a decision of the National Court pleads for permission to have the decision judicially reviewed by the Supreme Court because he or she is raising a serious question of law or fact which has merit. In election petition cases, s.220 of the Organic Law on Elections specifically prohibits appeals. That being the case, a party can only seek leave of the Supreme Court for review on grounds that would not constitute an appeal but a review as is known in the administrative law area. This is why, in addition to meeting the test of an applicant demonstrating a meritorious and important issue on a point of law or fact to be determined if leave is granted, the application must also demonstrate he or she is likely to succeed. Surely, the leave Court is not determining the merits of the substantive application. Instead, the leave Court should be able to determine the question of leave upon a careful perusal of each proposed ground of review and of any relevant material that may be relied upon by the parties. There is a large body of judgments of the Supreme Court such as the decisions in Anderson Agiru v. Aluago Alfred Kaiabe;...Anthon Yagama v. Peter Charles Yama;... Luke Alfred Manase v. Don Pomb Polye,... to name a few which speak loudly in these terms.”
(Emphasis supplied)
(a) setting out the facts relied on to invalidate an election or an election return; or
(b) specifying the relief, the petitioner is seeking; or
(c) signingof the petition by a candidate at the election in dispute or by a person who was qualified to vote at the election; or
(d) attesting of the petition by two witnesses whose occupations and addresses are stated; or
(e) filing the petition outside 40 days after the declaration of the result of the relevant election; or
(f) depositing with the Registrar of the National Court a sum of K5,000.00 as security for costs.
“Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”
“33. The requirement for strict adherence with the election processes starting with s. 210 of the Organic Law is to protect the importance and integrity of the election process whereby the electors have made their choices in the free exercise of their franchise. The election process must be upheld unless real cause can be shown that the process should be overturned.
34. So, anyone challenging the election result must first overcome the initial strict filtering process under sections 208, 209 and 210 of the Organic Law. The filtering process of objection to competency hearing, necessarily involves the strict application and compliance with those mandatory provisions and the election petition rules.”
“2.1 The Court erred in law in failing to dismiss the petition for non-compliance with Rule 4 and Form 1 of the Election Petition Rules 2017 after agreeing with the First Respondent’s submission that Rule 4 and Form 1 were mandatory and they had to be complied with.
2.2 The Court erred in law by its decision and reasoning that want of form is clearly not a prerequisite under section 208 of the Organic Law and hence the failure of the petitioner to comply with Rule 4 and Form 1 of the Election Petition Rules 2017 is not fatal to the petition. This is contrary to:-
(a) the decision in Mai Dop v Wake Goi – EP 17 of 2017 (Batari, J) (dated 26th January, 2017), Mond Palme v- Fabian Pok (2018) N7214a, Samson Kirilyo –v- Justin Tkatchenko [2017] N7008 (dated 21 November, 2017), Mapun Papol –v- Anthony Temu& Electoral Commission [1981] PNGLR 178, where it was held that the mandatory requirements or regulation and the election petition rules must be complied with.
(b) Section 206 of the Organic Law that provides the basis upon which a voter or losing candidate can challenge the validity of an election through a Petition under section 208 of the said Organic Law and not otherwise. Rule 4 Form 1 of the Election Petition Rules 2017 were enacted to provide a special procedure for such challenges and they mandatorily provide for the form in which a Petition can be filed. Hence Rule 4 and Form 1 of the Election Petition Rules 2017 have to be complied with unless the Rules are dispensed with pursuant to Rules 22 of the Election Petition Rules 2017.
2.3 The Court erred in failing to dismiss the Petition under EP 79 of 2017, which the said Petition was titled in “In the matter of Section 206 of the Organic Law on National & Local Level Government Elections” and hence was a challenge against the validity of section 206 of the said Organic law and not a challenge against the validity of an election which can only be filed through a Petition brought under section 208 of the said Organic Law and Rule 4 and Form 1 of the Election Petition Rules 2017.
2.4 The Court erred in law in applying section 217 of the Organic Law to excuse or avoid the requirement to comply with Rule 4 and Form 1 of the Election Petition Rules 2017, when section 217 is only applicable and relevant in considering the merits of a petition as was decided in DelbaBiri –v- Bill Ninkma [1982] PNGLR 342, Dick Mune –v- Paul Poto [1997] PNGLR 356, and Moi Avei –v- Charles Maino (1998) SC 584.
2.5 The Court erred in law in failing to dismiss the Petition on grounds of noncompliance with Rule 4 and Form 1 of the Election Petition Rules 2017 when:-
(a) There was no application made by the Petitioner in EP 79 of 2017 to dispense with the requirements of Rule 4 and Form 1 of the Election Petition Rules 2017, and;
(b) No orders made by the National Court in EP 79 of 2017 at any time of the proceedings to dispense with the requirements of Rule 4 and Form 1 of the Election Petition Rules 2017.
2.6 The Court erred in law in allowing Grounds Four of the Petition to proceed to trial:
(a) After finding that Ground 7 was a duplication of Ground 4 and electing to allow Ground Four to stand dismissing Ground 7; and
(b) When there are no specific pleadings on the alleged breaches of section 142 and 168(1) of the Organic Law.
2.7 The Court erred in law in allowing Ground Six of the Petition to proceed to trial when this ground was incompetent in that the pleadings failed to particularise the alleged specific breaches of section 175(1A) of the Organic Law.
2.8 The Court erred in law in dismissing the Application’s Grounds of Objections based on specifying incorrect reliefs and as set out under Part B4 at pages 6 to 7 of the Applicant’s Amended Notice of Objections filed in the Petition on 13th December, 2019:-
(a) Without providing sufficient reasons as to the dismissal of this ground, except to say that it raises a technical issue;
(b) When there is no power in the National Court provided for under section 212(1) to grant the reliefs set out in the Petition, under:-
- (i) Paragraphs D1, D2, D3 and D4 of the Petition jointly and at the same time.
- (ii) Paragraphs D1 and D3.
- (iii) Paragraph D4 as it was vague and pleaded in the alternative and contradictory to the Relief sought under Paragraph D3.
(c) When the prayers for reliefs as set out under Paragraphs D2, D3 and D4 of the Petition were dependent on the prayer for Relief under Paragraph D1. As the prayer for Relief under paragraph D1 of the Petition was not a Relief under paragraph D1 of the Petition was not a Relief set out under section 212(1) of the Organic Law, it could not be granted and hence all subsequent reliefs sought under paragraphs D2, D3 and D4, which were depended on the Relief under Paragraph D1 could not be granted either.
2.9 The Court erred in law in applying section 217 of the Organic Law to get around or avoid issues of competency in respect to the Applicant’s grounds of Objections on specifying incorrect reliefs and as set out under Part B4, paragraphs 20, 21, 22 and 23 of the Amended Notice of Objection filed on 13th December, 2018, when section 217 is only applicable when dealing with the merits of a petition in a trial proper.
2.10 The Court erred in law in failing to address and determine any of the Second Respondent’s grounds of Objection to Competency set out in its Notice of Objection to Competency filed on 22nd February, 2018 in the Petition under EP 79 of 2017.
“2.1 The learned trial judge erred in law by not affording the Applicant (Second Respondent to the Petition) right to a fair hearing, in breach of the principles of natural justice and procedural fairness enshrined under section 59 of the Constitution, when, in his written judgement, he –
(a) Did not consider at all or address the Second Respondent’s Objections to Competency of the petition and the counsel’s submissions in support thereof and ruled only on the Objections to Competency filed, and moved, by the First Respondent; and
(b) Failed to give any reason at all as to why the Second Respondent’s objections and submission were overlooked or why the Court thought they were not relevant.
2.2 The learned trial judge erred in law is not considering at all the arguments by the Second Respondent that Ground 4 of the petition was not competent to go to trial in circumstances where –
(a) Ground 4 and Ground 5 of the Petition were expressly pleaded as direct alternatives, or in the alternative to each other, in breach of law. Ground 5 pleaded an alternative scenario that contradicted Ground 4 and in the circumstances both grounds ought to have been struck out together, instead of choosing Ground 4 over Ground 5 to go to trial thereby, in effect, tacitly amending the petition outside 40 days, in breach of law.
(b) Ground 4 and Ground 7 were duplicitous legal grounds, in breach of law. Both grounds essentially pleaded the same set of acts raising the same issue of breach of section 168 of the Organic law by the conduct of PRO Steven Gore Kaupa in not completing the scrutiny. In the circumstances both grounds ought to have been struck out together, instead of choosing Ground 4 over Ground 7 to go to trial thereby, in effect, tacitly amending the petition outside 40 days, in breach of law.
(c) Ground 4 and Ground 2 challenged two (2) different declarations by two (2) different Returning Officers, respectively, in respect of the same election, thereby causing confusion and therefore both of the those grounds ought to have been struck out together, instead of choosing Ground 4 over Ground 2 to go to trial thereby, in effect, tacitly amending the petition outside 40 days, in breach of law.
2.3 The learned trial judge erred in law in not considering at all the arguments by the Second Respondent that Ground 6 of the Petition was not competent to go to trial in circumstances where the facts pleaded (at paragraph J43) referred to a direction by the Electoral Commissioner to PRO Steven Gore Kaupa dated 5 September 2017 while Ground 6 (par 6.4) referred to a direction from Electoral Commissioner to PRO Steven Gore Kaupa dated 8 September 2017, thus Ground 6 was not supported by the pleaded facts and ought to have been struck out.
2.4 The trial judge erred in law when he applied section 217 of the Organic Law to remedy the defects in the petition during the hearing of Objections to Competence, in breach of the mandatory dictates of section 210 of the Organic Law and the long line of Supreme Court authorities since Delba Biri v. Bill Ninkama [1982] PNGLR 342, including the 5 man bench decision of Paru Aihi v. Sir Moi Avei (2003) SC720 and the most recent decision of the Supreme Court on the issue, in Talita v. Ipatas (2016) SC 1603.”
3.1 Whether the Petition filed under EP 79 of 2017 was a valid challenge against an election of the Applicant as the Provincial Member for Southern Highlands, given the fact that it failed to comply with sections 206 and 208 of the Organic law and Rule 4 and Form 1 of the Election Petition Rules 2017.
3.2 Whether the Petition under EP 79 of 2017 was competent to proceed to trial.
3.3 Whether noncompliance with Rule 4 and Form 1 of the Election Petition Rules 2017 was fatal to the Petition.
3.4 Whether Section 217 of the Organic Law can be:-
(a) Utilized and relied upon as a basis to avoid or water down mandatory provision of the Election Petition Rules 2017, in this case, Rule 4 and Form 1 of the said Rules.
(b) Relied upon as the legal basis to avoid competency issues at an Objection to Competency stage.
3.5 Whether the Court erred in law in allowing Grounds Four and Six to trial when the petition was clearly defective and the said grounds failed to sufficiently plead the alleged breaches of section 142(1), 168(1) and 175(1A) of the Organic Law.
3.6 Whether the Petition in EP 79 of 2017, had specified the correct Reliefs he is entitled to by law, especially section 212(1) of the Organic Law, as required by section 208(b) of the Organic Law.
3.7 Whether the Court provided sufficient reasons for dismissing the Applicant’s grounds of Objections pertaining to the correct prayer for Relief set out under Part b4, paragraphs 20, 21, 22 and 23 of the Amended Notice of Objections filed on 13th December 2018.
3.8 Whether the Court dealt with and determined the second Respondent’s Notice of Objection to Competency.
3.9 Whether the Second Respondent was denied natural justice in light of the fact that the National Court Ruling of 18th February, 2018 in EP 79 of 2019, failed to discuss and determine any of the grounds of objections to competency raised by the Second Respondent.”
“3.1 Whether the Second Respondent’s right to a fair hearing and rules of natural justice and procedural fairness enshrined under Section 59 of the Constitution have been breached by the Court in its judgement on objections to competence where the Court ruled only on the objections to competence of the First Respondent, and did not address the Second Respondent’s objections to competency, in circumstances where the Second Respondent had actively participated in the hearing by making extensive submissions in support of its Notice of Objections to Competency?
3.2 Whether the Petition is competent to go to trial in respect of Ground 4 when Ground 5, which is expressly pleaded as an alternative to Ground 4, pleads factual scenarios which are contradictory to Ground 4?
3.3 Whether the Court in not striking out both of the offending grounds (Grounds 4 and 5), and, instead, choosing Ground 4 over Ground 5 to go to trial, in effect, tacitly amended the petition outside 40 days, in breach of law?
3.4 Whether the petition is competent to go to trial in respect of Ground 4 when Ground 7 also pleads the same ground as Ground 4 thus amounts to duplicity and ambiguity in the pleadings?
3.5 Whether the Court in not striking out both offending grounds (Grounds 4 and 7), and, instead, choosing Ground 4 over Ground 7 to go to trial, in effect, tacitly amended the petition outside 40 days, in breach of law?
3.6 Whether the petition is competent to go to trial in respect of Ground 4 which challenges the declaration of results by PRO Steven Gore Kaupa when Grounds 2 challenges a different declaration of results by PRO Jacob Kurap in respect of the same election, thus amounting to duplicity and ambiguity in the pleadings?
3.7 Whether the Court in not striking out both offending grounds (Grounds 4 and 2), and, instead, choosing Ground 4 over Ground 2 to go to trial, in effect, tacitly amended the petition outside 40 days, in breach of law?
3.8 Whether Ground 6 is competent to go to trial in circumstances where the facts pleaded (at paragraph 43) referred to a direction by the Electoral Commissioner to PRO Steven Gore Kaupa dated 5 September 2017 while Ground 6 referred to a direction from the Electoral Commissioner to PRO Steven Gore Kaupa dated 8 September 2017, thus Ground 6 was not supported by the pleaded facts and ought to have been struck out?
3.9 Whether section 217 of the Organic Law is available to the Court to apply it to overlook or remedy the defects in petitions filed in breach of the mandatory requirements of sections 208 of the Organic Law and Rule 4 of the Election Petition Rules 2017 during the hearing of objections to competency?”
Per Hon. Powi
“4.1 It is in the interests of Justice that the Supreme Court reviews the exercise of discretion by the National Court not to dismiss the petition under EP 79 of 2017 when:-
(a) The Petition was wanting in form and contrary to Rule 4 and Form 1 of the Election Petition Rules 2017.
(b) There was no application made by the Petitioner in EP 79 of 2017 to dispense with the requirements of Rule 4, Form 1 of the Election Petition Rules 2017.
(c) There was no Order made by the National Court to dispense with the requirements of Rule 4 and Form 1 of the Election Petition Rules 2017.
(d) The Petition was a challenge against the validity of section 206 of the Organic law as opposed to a challenge against the validity of an election.
4.2 It is in the interests of justice that the Supreme Court reviews the exercise of discretion by the National Court not to dismiss the petition under EP 79 of 2017 for specifying incorrect reliefs contrary to section 208(b) and 212(1) of the Organic Law.
4.3 It is in the interest of justice that the Supreme Court reviews the exercise of discretion by the National Court not to dismiss the petition under EP 79 of 2017, when the Court failed to give sufficient reasons for dismissing the Applicant’s grounds of Objection pertaining to pleading or specifying the correct relief or reliefs and as set out under Part B4 of the Applicant’s Amended Notice of Objections filed on 13th December 2018.
4.4 It is in the interests of justice that the Supreme Court reviews the exercise of discretion by the National Court to allow grounds four and six of the Petition to proceed to trial when the petition under EP 79 of 2017:-
(a) Failed to comply with Rule 4 and Form 1 of the Election Petition Rules 2017.
(b) Failed to sufficient plead the alleged breaches of sections 142, 168(1) and 175(1A) of the Organic Law.
(c) Failed to specify the correct reliefs that the petitioners was entitled to under section 212(1) of the Organic Law.
(d) When the Second Respondent’s submission on its Notice of Objections including those on Grounds Four and Six were not considered by the National Court and no mention of them has been made in the Ruling of 18th February, 2019 in EP 79 of 2017.”
Per the EC
“4.1 Leave is required because Section 220 of the Organic Law prohibits a further appeal of the National Court decision on an election petition, as such an application for review under section 155(2)(b) of the Constitution is only possible with leave, sought pursuant to Order 5, Division 2, Subdivision 2 of the Supreme Court Rules 2012.
4.2 There are important points of law to be determined by the Supreme Court as raised hereinabove.
4.3 The application is not made without merit as injustice has been served to the Applicant by the unfair treatment given it by the Court in its ruling in not considering at all its Notice of Objections to Competency and the submissions filed and read in support thereof.
4.4 The decision of the National Court has obvious errors on record both as to findings of facts and the application of the law and requires correction.
4.5 The Supreme Court has jurisdiction to review and overturn findings of a trial judge including decision on competency on the basis that an incompetent ground or petition should not be allowed to go to trial and it is the role of the Supreme Court to uphold such; Review Pursuant to Constitution Section 155(2)(b): Kopaol v. Embel (2003) SC 727.”
No decision on the EC of PNG’s objection to competency of the Petition
“59. Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”
“Section 59 does not create any constitutional rights of the nature contained in Div 3 of Pt III of the Constitution, that is, rights such as the right to life (s35), MRDC v. The Ombudsman Commission (supra) liberty of the person (s 42) etc, but it does two very important things. In subsection (1) thereof it makes provision as to where to find or look for the principles of natural justice, namely, in the underlying law. Subsection (2) is a direction to authorities such as the courts that it is a minimum requirement of natural justice to be fair and to be seen to be acting fairly. So the courts are required by s 59 to in fact practice fairness in their judicial deliberations. But the section does not lay down the criteria for fairness but leaves such matters to the statutes and the underlying law.”
72. Recently, in the Special Reference by the Attorney-General pursuant to Constitution, Section19 (2016) SC1534, the Supreme Court[4]summed up the effect of other decisions on point in these terms:
“Other cases have now made it clear that this section grants a right to be heard. That right is fundamental and one which must be accorded by every public decision maker before making a decision that finally affects the rights and interests of another person. They also say that, this right includes a duty imposed on all public decision makers to give reasons for their decision. Cases on point include: Ombudsman Commission v. Peter Yama;...CL Toulik v. Andy Kuek ... and New Britain Palm Oil Limited v. Vitus Sukuramu....These principles are an integral part of the underlying law of Papua New Guinea.... This right is available for and applies to judicial and administrative decisions only...”
(Emphasis supplied)
73. In the present case, the learned trial Judge’s decision deals only with the objection to competency by Hon. Powi. Having heard all the parties on the EC’s objection to the competency of the Petition, the learned trial Judge was obliged to come to a decision on that objection and give reasons for it. This with respect, his Honour failed to do and is apparent on the face of the record with no contest on that point amongst the parties. Consequently, the EC was denied natural justice as provided for and elaborated by the many decisions of this Court and the National Court. The effect of that failure is also obvious. An issue on the competency of the petition of none compliance of the provisions of ss. 208, remained to be dealt with and resolvedfirst before progressing the Petition to trial. As already noted, s.210 of the Organic Law became applicable with the effect of precluding any trial of the petition until the competency or the issue of none compliance of the provisions of s. 208 was first resolved. Given that, we had no hesitation in ordering a stay of the trial and the National Court proceedings until the matters in this Court are fully dealt with and disposed of and more so the issues of none compliance raised by Hon. Powi and the EC.
Petition not in prescribed form and the use of s. 217 of the Organic Law
74. The next issue I turn to is the issue of the Petition not being in the prescribe form with no dispensation being sought and granted. Rule 4 of the Election Petition Rules 2017 (EP Rules) requires election petitions to be filed in form 1. The form has been simplified to avoid complications parties and lawyers came up with leading to all sorts of objections and arguments prior to the enactment of those Rules. All that a petitioner has to do, with or without his or her lawyer assisting is, fill in the blanks and the parts they have to complete. There is no need for any party to come up with a different form and hence complicate matters.
75. Creating and adding words or deleting what is already in the prescribed form, Form 1,when not authorised by the form itself or the Rules, takes a petition outside the prescribed form. That has the effect of rendering the petition incompetent. Proceeding on that basis, a number of petitions have been dismissed. The decision in Mond Palme v. Fabian Pok (2018) N7214 is an example of a case on point. Another case on point is the unreported and unnumberedSupreme Court decision in SC Review (EP) No 1 of 2018, between Mai Dop v. Wake Goi, decision delivered on 1st March 2018. There, an election petition was dismissed on the basis that it did not comply with Form 1 as provided for in the schedule to the EP Rules. The attestation provisions in the petition was different to what is in Form 1. The Court had held:
“For election petitions, the general feel and common emphasis is strict compliance and with the provisions of the Organic Law on National and Local –Level Government Elections and the National Court Election Petition Rules and the Supreme Court Election Petition Review Rules. It has been said many times over, a challenge to an election result or return is such a serious matter that the Petitioner must in essence be efficient in his or her approach and compliance to ensure his or her petition is properly drafted, filed and prosecuted. An intending petitioner has that onerous burden in filing and prosecuting his or her petition. Failure to comply may result in the summary dismissal of the petition, unless good cause is shown for the exercise of Judicial discretion to extend time or waive the rule”.
76. In this case, the Petitioner Pr. Kaku added the words:
“IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS”.
77. This in my view rendered the Petition not in the prescribed form, Form 1 of the EP Rules. Unless this departure from the prescribed form was rectified by a successful application for either dispensation of the strict compliance of the requirement of r.4 and Form 1 of the EP Rules or for leave to proceed in that form, the Petition remained irregular and incompetent. Pastor Kaku, as the petitioner was under an obligation to seek leave and secure either a dispensation or leave from the Court to proceed in a form that did not strictly accord with the prescribed form. If he was not aware of the irregularity, he could have through his counsel sought such dispensation in response to the objection to competency on that basis. That should have happened upon being served with the objections to competencies or at their hearing.
78. There is no serious contest that Pr. Kaku did not apply for a waiver or dispensation of the requirements of r. 4 and Form 1. The learned trial Judge used s. 217 of the Organic Law to come to the conclusion that the issue on the form was not fatal. His Honour was of the view that the Rules of the Court did not enjoy the same status as the provisions of s. 208 of the Organic Law, for any none compliance of the requirements under s. 208 to be fatal. The learned trial Judge was of the view that, s. 217 applied. Section 217 stipulates:
“217. Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”
79. The Applicants argue that s.217 does not come into operation until a petition has gone past the objection to competency stage and into trial. That was the position of the law earlier on. However, the law has now changed as represented by the decision in Philip Kikala v. Electoral Commission (2013) SC1295. There the Court said:
“19. For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; DelbaBiri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:
‘It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.’
20. With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.”
80. As the Court itself noted, it was not alone in taking that position. The Courts earlier decisions in Ginson Goheyu Saonu v. Bob Dadae (2004) SC763 and Jimson Sauk v. Don Pomb Polye (2004) SC769, had earlier taken that position. Since then, a number of National Court decisions, including my own decision followed that line of authority. My decision on point the decision in the case of Steven Pirika Kamma v. John Itanu (2007) N3246.
81. These decisions represent the current position of the law. Hence, the Applicant’s arguments against the application of s. 217 is without merit and is not likely to succeed.However, this does not remedy the fact that no formal application was made and the Court made no order to either waive or dispense with strict compliance of the EP Rules. To that extend, there is an impediment that needs to be cleared before any further step on the defective Petition can be taken. This is an issue that can be resolved by the Supreme Court’s review powers under s. 155 (2) (b). Hence, this provides one reason for the Applications for dispensation to be granted so the Applicants can take this and the other issues to this Court through the judicial review process and have them corrected.
Petition not correctly pleading facts and reliefs sought
82. This leads us to the next issue of the Petition not correctly pleading the facts forming the basis for the petition and reliefs sought, which are the subjects of issues 3 and 4. The statutory foundation or requirement for a petitioner to plead the facts and the reliefs sought in his or her petition is s. 208 (a) and (b) as well as ss.212 and 215 of the Organic Law.Section 208 (a) and (b) stipulate as follows:
“208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; an
(b) specify the relief to which the petitioner claims to be entitled.”
83. The next provision, s. 212 then adds by pointing out the kinds of reliefs the Court hearing an election petition can grant. Thatprovision in relevant parts reads:
“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—
(a) ...
(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...”
...
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.”
84. Section 215 further elaborates in cases where elections are to be voided as follows:
“215. Voiding election for illegal practices.
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) ....
(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”
85. In the Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572, per Kapi DCJ., (as he then was), with whom Sheehan J., and Injia J., (as he then was), correctly noted:
“The law relating to pleading the facts for purposes of s 208 (a) is settled and the requirement is that a petitioner must plead the material facts which gives rise to a ground. The pleading of the ground itself is not sufficient. Facts giving rise to the ground must be pleaded (see Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99). ...”
86. The recent decision of the Supreme Court in Sandy Talita v. Peter Ipatas (supra), added clarity to the law for an election petition based on s. 215 of the Organic Law. There the Court held:
“55. Besides, the Applicant failed to plead the two essential elements of s. 215 (3) of the Organic Law which requires the petitioner to allege and prove the illegal practice is such that the election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void.”[5]
87. On the question of properly pleading the relief sought, the law is not as clearly settled as the law on pleading the facts for the purposes of s. 208 (a). The Supreme Court, in the case of the Ludwig Patrick Shulze (supra) case noted that position in these terms:
“In respect of pleading the relief, the review raises an important point of law. As I have indicated before, there is a difference of opinion as to the requirement of pleading the particular relief. I do not find it necessary to decide this point in the present case. The grounds of review relating to bribery and undue influence which raise the issue of pleading invalidity of the election under s 215 of the Organic Law have been struck down and I have confirmed the decision of the National Court. In the circumstances, the point of law relating to pleading of this particular relief does not arise. It is therefore not necessary to address the issue.
However, before living the subject I should point out that as there is a difference of opinion on this point, the next time this issue arises, it should be referred to a panel with a bigger bench to determine the issue once and for all.
88. It is not clear to me if the law regarding pleading the relief has been settled as contemplated in the decision of this Court in the Ludwig Patrick Shulze’s case. None of the counsel appearing before us assisted with any clear submissions on any such decision on point. What is clear though is that, there still appears to be divided views on what is the correct way to plead a relief in election petitions.Pleading a relief clearly is an important part of election petitions and the law needs to be properly settled. In that respect,I am of the view that, this case presents an excellent opportunity for this Court comprising of 5 or 7 members to settle the law. Hence, this one more reason which warrants a grant of the Applicants Applications.
89. Turning specifically to the pleadings in this case, I note the Petition was based purely on errors, omissions or illegal practices of Electoral Commission officials which attracted the application of s. 215 of the Organic Law. The Petition also alleged a breach of ss.142, 168(1) and 175(1A) of the Organic Law. The Petition is long and pleads a lot of facts. From the pleadings it is clear that this was one of the most troubled elections. Provincial Returning officers were appointed and revoke three times, there were numerous interruptions to the scrutiny and counting of votes process with venues shifted between places and more than one declaration. The pleadings allege errors, omissions and illegal practices committed by Electoral Commission officials in the scrutiny, counting and declaration of the winner of the election. On the final count, Hon. Powi secured 105,840 votes, while Pr. Kaku secure 35, 268 votes, giving a huge difference of 70,572 votes difference.There is no pleading as to how the final outcome of the election was affected and that it is just that the winning candidate Hon. Powi be declared not duly elected or the whole election be nullified. Such a pleading, in my view, should be both in the body of the Petition and also in the prayer for relief.
90. Section 142 of the Organic Law provides for postal voting, while s. 168 (1) provides for an ascertainment of the first preferential votes through scrutiny. Whilst s.168 (1) appear to be correctly used by Pr. Kaku given his pleadings in the petition, there appears to be no basis to invoke s. 142. No foundation is laid in the pleadings. Clearly therefore no facts as required by s. 208 (a) is pleaded for including s. 142 in the Petition.
91. Turning to s.175 (1A), I note, this provision concerns declaration of results. In particular it reads:
“(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result:—
(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and
(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.”
92. I note that the conjunctive “and” is used between subsection 1A (a) and (b). That means, subsection 1A(a) cannot be read on its own or to the exclusion of subsection 1A (b). Further, I note that the phrase “special circumstances” also appears in s. 81(2) and (3) of the Organic Law. That provision was the subject of constitutional reference SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689. There the Court held:
“It is our opinion that the questions as framed do not so much focus on the power and discretion that s 97 the Court provides to declare failure of election, as asking the Court to prescribe and even circumscribe the circumstances in which that power may be exercised. We do not consider that an appropriate course for the Court to take. Although such determination could and may in future be the subject of a National Court petition or review, it is not for this Court to set the circumstances in which the Electoral Commission can or cannot determine that an election has failed. Such would intrude on a power given solely to the Electoral Commission. It would also turn to put limits on the openness of the section.”
93. This Court in its most recent decision in SC Ref No. 4 of 2017; Special Reference by the Ombudsman Commission of PNG (2019) SC1814reaffirm the decision in the Francis Damem Reference. As could be seen, from these decisions, the Supreme Court was reluctant to prescribe the factors that would constitute “special circumstances”. At the same time the Court contemplated the issue being raisedin the National Court in an election petition appropriately. A petitioner could validly raise the issue if he or she points out in his or her pleadings the kinds of factors that would amount to “special circumstances” and what circumstances would not constitute special circumstances. Applying that to the case at hand, Pr. Kaku had the obligation to demonstrate in his pleadings how the circumstances attending this particular election were not “special circumstances”and the Electoral Commissioner was not entitled to make the decisions he made, ultimately resulting in the declaration of Hon. Powi as the winning candidate. Our quick perusal of the Petition does not appear to disclose any such pleading.
94. Having regard to the above observations, I am of the view that, there appears to be basis for the Applicants raising the issue under consideration.
Summary and Decision
95. In the end I find that there is merit in each of the issues raised by the Applicants. I also find that some of the issues are important and are likely to succeed. The issues raised are issues that must be considered and determined by this Court before there can be any trial on the Petition given the provisions of s. 210 of the Organic Law. However, theApplicants are precluded by the provisions of O.5, r.7, with its definition of the word “Decision” when read together with the provisions of r.8. This is the case because the decision they are seeking to review was out of an interlocutory decision and not a final one.I do not agree with the single Judge’s decision that the provision in question does nothing more than merely provide a definition and is not capable of dispensation. Instead it precludes reviews against interlocutory decisions of the National Court in election petitions. As I have already discussed, this Court has the power to dispense with any part of the Rules in order to do justice. That power can be exercised only when a case is made for any such dispensation.
96. In the present case, Iam persuaded that the Applicants have made a case for this Court to dispense with the requirements of O.5, r.7 of the Rules to enable them to file their respective Applications for leave for review of the decision of the learned trial Judge delivered on 18th February 2019.Iam also mindful of the fact that, these proceedings are out of an election petition and therefore they need to be dealt with expeditiously.
97. Accordingly, I would order a dispensation of the requirements of O.5, r.7 of the Rules. Then given the need for prompt hearing and disposal of election petition cases, I would order further that, the Applications for Leave that have been filed by the Applicants be deemed to have been filed following the dispensation and direct all the parties to take all steps necessary to progress the Applications to a hearing without delay. Finally, I would order costs to follow the event against the First Respondent in both of the Applications to be taxed, if not agreed.
98. Accordingly, I would make the following orders:
(1) Pursuant to Order 5, Rule 39 of the Supreme Court Rules, the requirements to seek a review of only final decisions of the National Court after hearing of an election petition per Order 5, Rule 7 & 8 of the Supreme Court Rules is dispensed with for both Applicants.
(2) The Applications in Honourable William Powi and the Electoral Commission’s Application for Leave respectively filed on 20thand 21stFebruary 2019 are deemed to have been filed after the dispensation of the requirements of O.5, r.7 of the Rules and are properly before this Court.
(3) The Applicants in both Applications are given 14 days from today to serve their respective Applications for Leave and the supporting Affidavits on the Respondent if not already done.
(4) The Application for Leave to Review be fixed for hearing soon upon service of the said Applications and the supporting Affidavits on the Respondents and the meeting of other requirements for the hearing of an Application for leave.
(5) The stay of the National Court proceedings pending a determination of the Applicants’ Applications shall continue until the Applications are fully determined.
(6) The First Respondent in both Applications shall pay the costs of the Applicants and the Second Respondent in SCREV (EP) 3 of 2019, to be taxed, if not agreed.
100. MOGISH J: I have had the privilege of reading the draft judgments of their Honours, Kandakasi DCJ., and Dingake J., and I am in complete agreement with orders they propose for the reasons they have given. I have nothing further to add.
101. DINGAKE J: This is a brief concurring judgment necessitated by the need to explain my different approach to Order 5 Rule 7, in this case, compared to my earlier decisions sitting as a single Judge of the Supreme Court on an issue similar to the present one, the only difference being that in those previous cases not much was made of S.155 2(b) of the Constitution in argument before me.
102. The decisive question that sharply falls for determination in these Applications is whether Order 5 Rule 7 and or as read with Rule 8, contains any requirements capable of being dispensed by the Court pursuant to Order 5 Rule 39 of the Supreme Court Rules 2012.
103. The facts of this matter are adequately and correctly set out by my brother Kandakasi DCJ. Essentially, the applicants, unsuccessfully sought, before Hartshorn J, sitting as a single Judge of the Supreme Court, pursuant to Order 5 Rule 39 of the Supreme Court Rules 2012, to dispense with the definition of “Decision” in Order 5 Rule 7, Supreme Court Rules 2012 and prayed that they be granted leave to file applications for Leave to Review the interlocutory decision of the National Court per Manuhu J made on the 18th of February, 2019, under EP No. 79 of 2017 – Pastor Bernard Kaku v William Powi & Electoral Commission.
104. In that interlocutory decision, the National Court refused to dismiss the entire petition for being incompetent, and allowed grounds four and six to proceed to trial.
105. In refusing leave Hartshorn J held that the application should fail because there are no requirements to be dispensed with in terms of Order 5 Rule 7. As indicated above, I have similarly held so in the past.
106. When this matter was argued before us the illumination of the superiority and essence of the injunction in S.155 2(b) relative to the provisions of Order 5 Rule 7 loomed larger and brighter than in the previous cases, that I dealt with before.
107. Section 155 2(b) of the Constitution bears quoting in full:
“155. The National Judicial System.
(2) The Supreme Court—
(b) has an inherent power to review all judicial acts of the National Court; and” (emphasis mine).
108. Having regard to the above, whilst I agree with Hartshorn J that ex facie, Order 5 Rule 7 does not contain any express requirements to be dispensed with, I do agree that the definition of ‘Decision’ in Order 5 Rule 7 implies, logically and in effect a requirement to seek a review of only a final decision of the National Court, and that to this extent, only, it violates the injunction contained in S.155 2(b) of the Constitution, earlier quoted, and consequently, a dispensation as prayed ought to be granted.
109. I have therefore concluded that although the Supreme Court Rules, 2012, prescribes the practice and procedure for election petition rules pursuant to s.155 2(b), Order 5 Rule 7 has the effect of barring a review of an interlocutory decision, offends against the injunction in Section 155 2(b), which gives the Supreme Court the authority to review ‘all’ decisions of the National Court. It is trite learning that subsidiary legislation (in the form of rules) cannot contradict or override a constitutional provision either expressly or by necessary implication.
110. In the result the Applications ought to succeed in terms of the relief captured by my brother Kandakasi DCJ.
Decision of the Court
111. BY THE COURT: We adopt and repeat the summary of our reasons for decision as set out in paragraph 95 – 97 and make the orders as set out
in paragraph 98 of Kandakasi DCJ’s judgment.
________________________________________________________________
Baniyamai Lawyers: Lawyers for the Applicant in SCREV (EP) 3 of 2019
Diweni Lawyers: Lawyers for the First Respondents in both Applications
Harvey Nii Lawyers: Lawyers for the Applicant in SCREV (EP) 4 of 2019 and Second Respondent in SCREV (EP) 3 of 2019
[1]
[2]Per Kandakasi J (as he then was) with whom Sheehan J., agreed.
[3] Per Kandakasi J., (as he then was) with Geita and Lindsay JJ., agreeing.
[4]Kandakasi J. (as he then was) with who Salika DCJ. (as he then was) and Kassman J agreed.
[5]See also Phillip Kikala v. Nixon Mangape & Electoral Commission (2013) SC1295
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