Haiara v Marape [2019] PGSC 60; SC1830 (3 July 2019)

SC1830

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 41 OF 2018

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
JUSTIN ALUJA HAIARA

Applicant

AND:
JAMES MARAPE
First Respondent

AND:

ELECTORAL COMMISSION

OF PNG

Second Respondent

Waigani: Hartshorn J
2019: 12^th April
: 3^rd July

Application for leave to review

Cases Cited:

Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Waim No. 85 Ltd v. The State (2015) SC1470
Jimmy Lama v. NDB Investments Ltd (2015) SC1423
PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456
Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Bede Tomokita v. Douglas Tomuriesa (2018) SC1684
Joseph Kobol v. William Powi (2018) SC1713
Tobias Kulang v. William Onglo (2018) SC1714
Henry Ame v. Bire Kimisopa (2019) SC1809

Counsel:

Mr. P. Harry, for the Applicant
Mr. R. Leo, for the First Respondent
Mr. S. Ranewa, for the Second Respondent

3^rd July, 2019

1. HARTSHORN J: This is a decision on a contested application for leave to review “part” of the decision of the National Court which dismissed the applicant’s election petition. The application for leave is made pursuant to Order 5 Rule 9 Supreme Court Rules 2012.

Background

2. The first respondent was declared the elected Member of Parliament for the Tari-Pori Open Electorate in the 2017 General Elections. The primary judge dismissed the applicant’s election petition after upholding the first respondent’s objection to competency. The primary judge found that the applicant had not pleaded the correct name of the first respondent in the petition and so the Court did not have jurisdiction to hear the proceeding.

Application for Leave - Law

3. The criteria for the exercise of this court’s discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 at [9]. In the view of Injia DCJ (as he then was) at [11]:

“The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed.”

4. I respectfully concur with His Honour’s comments and mention that notwithstanding that an application for leave is provided for under Order 5 Rule 9 Supreme Court Rules 2012, it is the case that s. 220 Organic Law is in the following terms:

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

5. As I stated in Bede Tomokita v. Douglas Tomuriesa (2018) SC1684 at [5]; Joseph Kobol v. William Powi (2018) SC1713 at [5]; Tobias Kulang v. William Onglo (2018) SC1714 at [5] and Henry Ame v. Bire Kimisopa (2019) SC1809 at [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

6. The applicant submits in essence that the primary judge committed:

a) An error of law and fact in applying the principles of certain cases which were delivered before the inclusion of s. 64(2) Organic Law and which had no factual similarities to this case;

b) An error of law and fact in not accepting the applicant’s submissions that the first respondent is adequately identified for the purposes of defending the allegations against him;

c) A gross error of law by finding that by spelling, “Marape” as “Marabe”, the applicant contravened s. 210 Organic Law in that it was tantamount to non-compliance with s. 208 and 209 Organic Law.

7. The respondents submit that amongst others;

a) That the grounds relied upon for leave to review our vague and ambiguous, broadly framed and too general, do not specify with particularity and demonstrate the specific reasons why the judgment is alleged to be wrong in law and fact and do not say how the primary judge made any alleged error;

b) No important or gross error is demonstrated;

c) The primary judge did not fall into error as a wrong name, mis-description or wrong spelling of either the first respondent or the petitioner goes to the substance of the petition and there must be strict and full compliance with all of the requirements under the Organic Law and Rules in order for a petitioner’s grievances to be heard; which the applicant did not adhere to in this instance.

Consideration

8. First, the application for leave seeks to review part of the subject decision. The particular part of the subject decision sought to be reviewed is not clear. Whether it is the part of the decision which is purportedly covered by the grounds or whether it is part of the decision which is the subject of the orders, or both, is not specified. As none of the parties raised the point I will proceed on the basis that it is both.

9. It is common ground as I understand, that in the petition, the first respondent was named James Marabe. The first respondent is named on the common roll as James Marape and since his birth has had the name James Marape. He is nominated in the name James Marape and was enrolled as an elector as James Marape. He also signed the writ after his declaration as James Marape.

10. From a perusal of the grounds, there is merit in the submission of the respondents that the grounds do not specify with particularity and demonstrate the specific reasons why the decision of the primary judge is alleged to be wrong in law and/or fact and how the primary judge is alleged to have fallen into error. This should be otherwise. I refer in this regard to Jimmy Lama v. NDB Investments Ltd (2015) SC1423 and PK Investments Ltd v. Mobil Oil New Guinea Ltd (2015) SC1456.

11. Specifically in regard to the first ground (a), that the primary judge fell into error by applying the principles of certain cases delivered before an amendment to the Organic Law added s. 64(2) Organic Law in 2006, s. 64(2) is as follows:

“(2)Where a person who is entitled to do so nominates for an electorate and his name is not already on a Roll for the electorate he nominates, on the acceptance of his nomination for the electorate, the person shall be deemed to be on the Roll and he shall so nominate and vote in the electorate.”

12. As referred to earlier, it is common ground that the first respondent was named on the common roll for the electorate to which he nominated and so s. 64(2) does not apply. Consequently, if the primary judge did apply principles from cases delivered before the said amendment, it does not necessarily follow that he fell into error in so doing.

13. In regard to the first ground (b), that the primary judge fell into error in applying principles enunciated in certain cases that bear no factual similarities to the current case, in [70] of the primary judge’s decision, which the applicant has reproduced in his ground of appeal, the primary judge refers to the proposition in electoral law which the three subject cases demonstrate and then logically proceeds to the next proposition which is a corollary of the former. This later proposition that when a person standing for public office is declared duly elected, that person can only be sued in an election petition under the same name as was used by that person to nominate for election to public office, is a sound proposition as amongst others, if a petition is successful, the incumbent Member of Parliament can only be removed under the name by which he was elected. I am not satisfied that it has been shown that the primary judge fell into error in fact or law as is alleged.

14. In regard to the second ground, this concerns and reproduces [71]. The ground states that the primary judge committed an error of fact and law in not accepting the applicant’s submissions that the first respondent is adequately identified the purposes of defending the allegations against him. It is not stated how the primary judge fell into error in not accepting the submission of the applicant. As referred to, this ground is vague and too general and does not properly and adequately particularise or specify.

15. As to the last ground, it also concerns and reproduces [71]. Again the ground is vague or too general and does not properly and adequately particularise or specify. There is no clear indication of how the primary judge is alleged to have fallen into error.

16. Given the above, it has not been shown in my view that the primary judge fell into error. Further, it has not been demonstrated by the applicant that if leave was granted as sought, or that the applicant has a serious issue on a point of law or fact to be determined such that if leave is granted the application for review would be likely to succeed. Given the above it is not necessary to consider the other submissions of counsel.

Orders

17. It is ordered that:

a) The application for leave to review is dismissed;

b) The costs of both respondents of and incidental to this proceeding shall be paid by the applicant.
_____________________________________________________________
Harry Lawyers: Lawyers for the Applicant
Leo Lawyers: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent