Ame v Kimisopa [2019] PGSC 36; SC1809 (26 April 2019)

SC1809

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 2 OF 2019

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:
HENRY TUTUWO AME
Applicant

AND:
BIRE KIMISOPA
First Respondent

AND:
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2019: 18^th March,
: 26^th April

SUPREME COURT - Application to dismiss application for leave to review and application for leave to review

Cases Cited

Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Peter Sharp v. Warwick Andrew (2016) unreported, unnumbered SCA 165/14, delivered 24^th October 2016

Counsel

Mr. I.R. Molloy, for the Applicant
Mr. J. Kolo, for the First Respondent
Mr. L. Okil, for the Second Respondent

26^th April, 2019

1. HARTSHORN J: This is a decision on a contested application for leave to review and an application to dismiss the application for leave to review. The decision the subject of the applications is of the National Court which amongst others, avoided the election for the seat of Goroka Open, and ordered a by-election.

Background

2. The National Court on 7^th February 2019:

a) Rejected the result of the court ordered recount of ballot papers for the Goroka Open electorate seat; and

b) Declared the election of the applicant, Mr. Henry Tutuwo Ame, void and ordered a by-election for the electorate.

Application to dismiss

3. I consider the dismissal application first. The first respondent, Mr. Bire Kimisopa, applies pursuant to Order 5 Rule 37(a) Supreme Court Rules for the application for leave to review to be dismissed as:

a) The affidavit of the applicant filed in support of the application for leave did not annex a copy of the formal order of the National Court contrary to Order 5 Rule 11 Supreme Court Rules;

b) Form 5A Supreme Court Rules was not complied with contrary to Order 5 Rule 10(c) and (f) as:

i) the applicant did not set out the, “Decision” and opted to rephrase only two orders of the decision; and

ii) the brief facts, nature and particulars of the, “Decision” were “lumped” together.

4. The applicant and second respondent oppose the application to dismiss as:

a) The applicant’s supporting affidavit does annex a copy of the National Court orders;

b) It is only necessary to state briefly the particulars of the decision to be reviewed. It is not necessary to set out the decision in full;

c) The applicant has not, “lumped” the brief facts, nature and particulars of the decision together and there has been at least substantial compliance with Order 5 Rules 10(c) and (f) Supreme Court Rules.

Consideration

5. Order 5 Rule 11 Supreme Court Rules provides amongst others, that the affidavit of the applicant shall have annexed a copy of the order of the National Court. The affidavit of the applicant does have as annexure “E” the National Court orders. This ground of the applicant is devoid of any merit.

6. 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; ....”

7. To, “state briefly the particulars of the decision” does not require that the decision be set out in full. This ground is rejected.

8. From a perusal of the application for leave, I am satisfied that the particulars of the decision to be reviewed, the nature of the case, the issues involved and why leave should be given have been stated briefly. I concur with the submissions of the applicant that:

a) The particulars of the National Court decision, and the nature of the case, are each contained under the heading, ‘Leave to Apply for Review”;

b) Form 5A includes separate headings for, “Grounds”, “The issues Involved”, and “Reasons Why Leave Should be Given”. The application for leave adopts these headings;

c) There is no separate heading for, “Nature of the Case”;

d) The applicant has not, “lumped” the brief facts, and nature and particulars of the Decision of the National Court together. The brief statement of the orders of the National Court is quite distinct. The remainder follows logically;

e) There is no, “convolution”. There is no risk of confusing anyone who actually wants to understand what is written.

9. Consequently, the application to dismiss the application for leave to review is dismissed.

Application for Leave - Law

10. 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.”

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

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

12. 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

13. The applicant’s proposed review grounds, supported by the second respondent, include and in essence are that:

a) He was denied the opportunity to be heard. The hearing of the first respondent’s application disputing the result of the recount only concerned jurisdictional issues. Once the court had determined that it had jurisdiction, the applicant and the second respondent should have been given the opportunity to be heard on the facts and on how the jurisdiction should be exercised. They were not given this opportunity however;

b) It is impossible to conclude, as the application judge did, that the inclusion of 775 informal votes affected the result of the recount so as to satisfy s. 218(1) Organic Law and permit an order of avoiding the election;

c) If the application judge was not satisfied with the recount, he should have ordered a further recount in accordance with the Supreme Court decision in Tom Olga v. Paias Wingti (2009) SC1003, and not avoided the election.

14. The first respondent submits amongst others that:

a) Both respondents were served in time with the applications disputing the result of the recount, they had time to prepare a response and they did file written submissions;

b) The application judge did provide a sufficient explanation on how the subject 775 informal ballot papers affected the result of the election;

c) The application judge correctly concluded that he had inherent power to avoid the election.

Consideration

15. In regard to the proposed ground that the applicant was denied the opportunity to be heard, from a perusal of the transcript that is in evidence, the National Court appears to have only heard submissions in regard to jurisdiction. The application judge at lines 7-10, p 12 states that the first hurdle to be overcome is whether he has the power, and that he has to be addressed on that issue. Then at lines 14-16, p 24, the application judge states that he will decide on the issue of whether he has the power and if he does he will have to read the affidavits. The transcript indicates in my view, that all counsel, including counsel for the first respondent, were expecting the application judge to deliver his decision on the jurisdictional issue only. If he found that he had jurisdiction, then there would have been a further hearing to determine the facts, and how the jurisdiction should be exercised.

16. I am satisfied that the applicant has successfully made out that he has a serious issue that he was denied natural justice in that by his counsel, he was not given the opportunity to fully argue the merits of the first respondent’s application disputing the result of the recount. I refer in this regard to the majority decision in Peter Sharp v. Warwick Andrew (2016) unreported, unnumbered SCA 165/14, delivered 24^th October 2016. I am further satisfied that the applicant has demonstrated that he has a serious issue on a point of law to be determined such that if leave is granted the application is likely to succeed.

17. I am also satisfied that the applicant has demonstrated serious issues on points of law to be determined in regard to the other proposed grounds, such that if leave is granted the application is likely to succeed.

18. Consequently, the application for leave to review should be granted.

Orders

19. It is ordered that:

a) The Application of the first respondent filed 14^th March 2019 is dismissed;

b) The first respondent shall pay the costs of the applicant and the second respondent of and incidental to the said Application;

c) The Application for leave for Review is granted;

d) The costs of and incidental to the said Application for Leave shall be costs in the Review.
_____________________________________________________________
Applicant In person with Counsel
Kolo & Associates Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent