Powi v Kaku [2019] PGSC 16; SC1782 (13 March 2019)

SC1782

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

TWO APPLICATIONS 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 KAKU
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

SCREV(EP) 4 of 2019

BETWEEN:
ELECTORAL COMMISSION
Applicant

AND:
PASTOR BERNARD PETER KAKU
First Respondent

AND:
WILLIAM POWI
Second Respondent

Waigani: Hartshorn J.
2019: 7^th, 13^th March

Applications pursuant to Order 5 Rule 39 Supreme Court Rules 2012

Cases Cited:

Peter Wararu Waranaka v. Gabriel Dusava (2008) SC942
John Pundari v. Lucas Neah (2012) SC1207
John Simon v. Gabriel Kapris (2012) SC1206
Sir Julius Chan v. Andrew Trawen (2012) SC1215
Dei Kewano v. Isaac Joseph (2013) SC1261
Anton Yagama v. Peter Charles Yama (2013) SC1219
Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272
Anton Yagama v. Peter Charles Yama (2013) unreported, unnumbered, 25/5/13
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412
James Marape v. Johnny Phillip Pokaya (2017) SC1634
Peter Wararu Waranaka v. Richard Maru (2018) SC1653
Michael Bogai Dua v. Noah Kool (2018) SC1676
Luke Alfred Manase v. Don Pomb Polye (2018) SC1708
Electoral Commission v. Don Pomb Polye (2018) SC1695

Counsel:

SCREV(EP) 3 of 2019

Mr. A. Baniyamai, for the Applicant
Mr. R. Diweni, for the First Respondent
Mr. H. Nii, for the Second Respondent

SCREV(EP) 4 of 2019

Mr. H. Nii, for the Applicant
Mr. R. Diweni, for the First Respondent
Mr. A. Baniyamai, for the Second Respondent

13^th March, 2019

1. HARTSHORN J: This decision concerns an election petition filed in regard to the result of the Southern Highlands Provincial Electorate in the 2017 General Elections.

2. Two applicants in two proceedings apply for leave to review the interlocutory decision of the National Court made on 18^th February 2019 in EP 79 of 2017 - Pastor Bernard Peter Kaku v. William Powi and the Electoral Commission (interlocutory decision).

3. Both applicants’ now seek pursuant to Order 5 Rule 39 Supreme Court Rules 2012, to dispense with the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules 2012 and that they be granted leave to review the interlocutory decision (dispensation applications).

4. The applicants’ and the second respondents’ support their respective dispensation applications while the first respondent opposes both dispensation applications.

5. The interlocutory decision upheld in part certain objections to competency and also ordered that two grounds in the petition are competent and will progress to trial.

The dispensation applications

6. As to the dispensation applications, the applicants’ submit that dispensation with the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules 2012 is necessary as “Decision” is defined in that Rule to mean, in effect, that only a final decision concerning an Election Petition may be the subject of an application to review. Dispensation of the definition of “Decision” is sought so that the interlocutory decision can be the subject of the applications to review.

7. Reliance is placed upon Order 5 Rule 39 Supreme Court Rules 2012 which is as follows:

“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”

Consideration

8. In previous cases in which I have presided which have concerned whether Order 5 Rule 39 Supreme Court Rules may be successfully relied upon to dispense with the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules, I have determined as a matter of interpretation that Order 5 Rule 39 provides for the dispensation with a requirement of a Rule and not with a Rule per se. As Order 5 Rule 7 does not contain a requirement that has to be complied with, there is no requirement in Order 5 Rule 7 that may be dispensed with (requirement argument): James Marape v. Johnny Phillip Pokaya (2017) SC1634; Peter Wararu Waranaka v. Richard Maru (2018) SC1653; Michael Bogai Dua v. Noah Kool (2018) SC1676 and Luke Alfred Manase v. Don Pomb Polye (2018) SC1708.

9. The applicants’ make submissions on a number of bases why the dispensation that they seek should be granted and why I should depart from the views that I have expressed in the decisions to which I have referred.

10. The applicants’ submit that Salika DCJ (as he then was) has departed from his view that a review does not lie against an interlocutory judgment. His Honour expressed that view in John Pundari v. Lucas Neah (2012) SC1207 and John Simon v. Gabriel Kapris (2012) SC1206, and then expressed a different view in Anton Yagama v. Peter Charles Yama (2013) unreported, unnumbered, 25/5/13.

11. In regard to this purported change of position by Salika DCJ (as he then was), from a perusal of the three cases to which reference is made, it is not evident that the requirement argument was raised or considered.

12. As to the submission that there have been full Supreme Court cases that have held to the effect that an interlocutory ruling may be subject to review if an order under Order 5 Rule 39 dispensing with the requirements of Rule 7 has been granted, cases such as Anton Yagama v. Peter Charles Yama (supra); Anton Yagama v. Peter Charles Yama (2013) SC1219, Peter Wararu Waranaka v. Gabriel Dusava (2008) SC942; Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272 and Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412 - from a perusal of these cases, again the requirement argument was not raised or considered.

13. The applicants’ submit that the word “dispensation” should not be interpreted literally and that the restrictive literal approach to the interpretation of the law has no place in a developing country like Papua New Guinea. These arguments again, with respect, do not address the requirement argument. It is the requirement argument that the applicants’ must satisfy and overcome for the relief that they seek to be successful and not a restrictive definition of “dispensation”.

14. Counsel for the applicant Mr. Powi referred to Sir Julius Chan v. Andrew Trawen (2012) SC1215 and Dei Kewano v. Isaac Joseph (2013) SC1261 in which Injia CJ (as he then was) listed various factors that he was of the view should be considered in the exercise of discretion under Order 5 Rule 39 Supreme Court Rules. Again, the requirement argument was not raised or considered in those cases.

15. It was also submitted that notwithstanding that previous Supreme Courts have not considered the requirement argument, those Courts, in any event have now provided for factors that may be taken into account for the Court to exercise its discretion and grant dispensation in appropriate cases. Therefore, it is submitted, if I understand correctly, this Court should not be confined to the wording of Order 5 Rule 39 Supreme Court Rules. This submission proceeds on the basis that this Court may disregard the Supreme Court Rules in certain circumstances. I reject this submission. The previous Supreme Courts have proceeded on the basis that the Supreme Court Rules have provided the jurisdiction to dispense with the definition of “Decision”. Those Supreme Courts arrived at their decisions without having the benefit of and therefore considering the requirement argument.

16. As to the argument that the Supreme Court Rules must be interpreted and applied in a way which does not impede or restrict this court’s power under s. 155(2) (b) Constitution to review all judicial acts of the National Court, whether interlocutory or final, the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules is clear - it means a final decision. Further, I note the following comments of Dingake J. in Electoral Commission v. Don Pomb Polye (2018) SC1695 at [16]:

“In my mind reliance on Section 155(2)(b) and (c) does not advance the case of the applicant in any significant manner, because there is subsidiary legislation, in the form of Supreme Court Rules, which specifically deals with the practice and procedure for Election Petition Reviews. The Election Petition Reviews are appropriately made under Section 155(2)(b) and (c) dealing with the Supreme Court inherent powers. It stands to reason therefore that an application made in respect of the reviews must comply with the Supreme Court Rules.”

17. In Manase v. Polye (supra) at [11], I stated that all applications made in respect of Election Petition Reviews require compliance with the Supreme Court Rules 2012 and specifically those Rules applicable to Election Petition Reviews in Order 5. In that case and here, there is no application before this court which seeks relief on the basis that the Supreme Court Rules 2012 either do not apply or are not in force or should not be complied with.

18. Lastly, I note that counsel for the applicant the Electoral Commission, submitted that the decision in Marape v. Pokaya (supra) and the decisions that followed that decision are sound in law.

19. Consequently, given all of the above, I am not satisfied that the applicants’ have satisfactorily made out that they are entitled to the relief that they seek.

Orders

SCREV(EP) 3 of 2019

a) The relief sought in paragraph 1.3 of the Application filed 20^th February 2019 of the Applicant William Powi, is refused;

b) The Applicant William Powi, shall pay the costs of the First Respondent Pastor Bernard Kaku of and incidental to the hearing as to paragraph 1.3 of the said Application.

SCREV(EP) 4 of 2019

a) The relief sought in paragraph 1(4) of the Application filed 21^st February 2019 of the Applicant, Electoral Commission, is refused;

b) The Applicant Electoral Commission, shall pay the costs of the First Respondent Pastor Bernard Peter Kaku of and incidental to the hearing as to paragraph 1(4) of the said Application.

_____________________________________________________________

SCREV(EP) 3 of 2019

Baniyamai Lawyers: Lawyers for the Applicant

Diwenis Lawyers: Lawyers for the First Respondent

Harvey Nii Lawyers: Lawyers for the Second Respondent

SCREV(EP) 4 of 2019

Harvey Nii Lawyers: Lawyers for the Applicant

Diwenis Lawyers: Lawyers for the First Respondent

Baniyamai Lawyers: Lawyers for the Second Respondent