Manase v Polye [2019] PGSC 74; SC1854 (4 October 2019)

SC1854

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) 11 of 2019

APPLICATION UNDER SECTION 155 (4) (b) OF THE CONSTITUTION AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
LUKE ALFRED MANASE
Applicant

AND:
DON POMB POLYE
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Salika CJ, Batari & Tamate JJ
2019: 27^th September, 4^th October

SUPREME COURT – Practice and Procedure – Application to Stay – Orders for recount of election result - Stay of proceeding pending determination of review by Supreme Court – Grounds of Stay considered – Reasons for and against grant of stay by parties considered – Consideration of what is necessary to do justice in the circumstances of a particular case – Whether in the circumstances of this case it is in the interest of justice to stay the National Court recount of votes – Stay Application granted – Constitution s. 155 (4) considered and applied.

Cases Cited:
Papua New Guinea Cases

Anton Yagama v Peter Charles Yama (2013) SC 1219
David Arore v John Warisan (2008) SC 947
Electoral Commission v Peter Charles Yama (2014) SC 1381
Erie Ovako Jurvie v Bony Oveyara (2008) SC 935
Green v Green [1976] PNGLR 73
Lawrence Kalinoe v Philip Kereme (2017) SC1631
McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279
Ombudsman Commission v Gabriel Yer (2009) SC1041
Viviso Seravo v John Giheno (1998) SC555
William Duma v James Puk and Electoral Commission (2019) SC1754

Overseas Cases:

Gardner v Jay (1885) 29 Ch 50

Counsel:

Ms C Copland, for the Applicant
Mr M Kipa, for the First Respondent
Mr S Ranewa, for the Second Respondent

4^th October, 2019

1. BY THE COURT: This is an application for stay of the trial of an election petition in the National Court. The trial proceeding is in connection with orders for recount of the election petition result. A similar application for stay of counting is sought by the Electoral Commission in SC Rev (EP) No. 12 of 2019, Application by Electoral Commission v Don Pomb Polye and Luke Alfred Manase. The two applications made pursuant to Constitution s. 155 (4) are contested. The result of this application should also determine the application by the Electoral Commission for a stay.

Background

2. In the 2017 National General Elections, the applicant was declared as the member elect to represent the Kandep Open Electorate in Enga Province. The First Respondent filed a petition disputing the election result. The primary judge upheld the objection to competency in part and the applicant sought leave to apply for judicial review of the interlocutory ruling in SC Rev (EP) No. 36 of 2018, Luke Alfred Manase v Don Pomb Polye & Electoral Commission. A single Judge of the Supreme Court refused dispense with the meaning of “decision” in Order 5 rule 7 of the Supreme Court Rules. The primary court proceeded to hear the petition on the surviving allegations of errors and omission and illegal practices and dismissed a no case submission during the trial process. The Court delivered a final decision on 4^th July, 2019, and ordered a recount. The Applicant then sought leave to review the competency of three decisions in this Court. This Court, per Batari J, heard the leave applications to review the primary Court decision on objection to competency delivered on 5^th July 2018, and the decision on No Case Submission delivered on 9^th November, 2018, and in each case, refused leave. This Court, per the Chief Justice, granted the Applicant leave to review the final decision of 4^th July 2019. The recount deadline was initially two months later extended. Initial preparations for the recount to be conducted at Goroka have started pending the outcome of this application.

This Application.

3. This application is supported by the Second Respondent. The Applicant contends this Court’s power to grant a stay of the trial should be exercised in his favour for the reasons that:

a) He has made the stay application promptly and without delay;

b) Following the grant of leave, he immediately filed the application for review. These actions have created a right before the Supreme Court that is capable of protection pursuant to s. 155 (4) Constitution;

c) The power of the Supreme Court to grant a stay of a trial in the National Court in this case will be in the interests of justice pursuant to s. 155 (4) Constitution;

4. By the grant of leave and the filing of the application for review, the Supreme Court has assumed jurisdiction to determine whether the National Court’s jurisdiction has been properly invoked and whether the National Court should continue to hear the petition. To permit the trial to proceed in such circumstances would interfere with the jurisdiction of the Supreme Court;
   
5. A stay is necessary to preserve the status quo and is for the convenience of all parties. If the review is unsuccessful, this would only result in a delay of time, compared to where substantial costs are likely to be incurred by all parties in conducting a trial for no purpose if a stay is not granted and the review is successful;
   
6. He will suffer prejudice if a stay is not granted.
   

4. The First Respondent submits that a stay should not be granted as:

1. Upon consideration of and balancing the interests of each of the parties, the Applicant does not have a stronger right to be granted the stay;
   
2. He is entitled to the fruits of the competency decision;
   

100. The Applicant’s application for review will not be rendered nugatory if the stay is not granted and he will not suffer any prejudice apart from the costs of trial, and these may be recovered;
     

4. The petition must be disposed of quickly and the preparations for recount at Goroka is in advanced stage;
   
5. The review does not have strong prospects of success;
   
6. A grant of stay is not in the interest of justice.
   

Law

5. All the parties have a common position on the application of Constitution s.155 (4), that the provision vests in this Court the inherent power to grant a stay in respect of National Court proceedings pending a review by this Court. The parties relied on these cases amongst others: Viviso Seravo v John Giheno (1998) SC555; David Arore v John Warisan (2008) SC947; Anton Yagama v Peter Charles Yama (2013) SC1219 and Electoral Commission v Peter Charles Yama (2014) SC1383.

6. In determining whether a stay should be granted, a Court is to have recourse to the wording of Constitution s 155 (4) – whether a stay is “... necessary to do justice in the circumstances of a particular case”. See William Duma v James Puk and Electoral Commission (2019) SC1754.

Consideration

7. The powers of the Court to grant a stay of the trial proceedings under Constitution s. 155 (4) is discretionary with the onus on the Applicant to show why the discretion should be exercised in his favour. The Applicant has to demonstrate that a stay is necessary to do justice in the circumstances of a particular case. The circumstances of each case will determine where the justice of the case lies.

8. In determining whether a stay should be granted, this Court must consider what is necessary to do justice in the circumstances of a particular case. This behoves the Court in exercising its discretion to grant or not to grant a stay, to consider and balance the competing rights of each of the parties: Viviso Seravo v John Giheno (supra). There is no fetter on this Court’s discretion apart from this consideration. We are reminded in this regard of the oft cited statement of Bowen LJ in Gardner v Jay (1885) 29 Ch 50, at 59:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge, why should the Court do so.”

9. This common law principle has been considered and approved in this jurisdiction in numerous cases. See, for example; Green & Co. Pty Ltd (Receiver Appointed) v Roger Britain Green [1976] PNGLR 73; Lawrence Kalinoe v Philip Kereme (2017) SC1631.

10. It is also instructive to refer to the following passage in Ombudsman Commission v Gabriel Yer (2009) SC1041, where Injia CJ (then) was considering a stay application under s.19 Supreme Court Act. In our view, His Honour’s comments are particularly apt to the stay application before this Court:

“The grant or refusal of stay is discretionary. The principles on grant of stay are set out in McHardy v Prosec Security and Communications Ltd (2000) PNGLR 278 (McHardy case). In McHardy, the Court said the starting point is the basic premise that the judgment creditor is entitled to enjoy the fruit of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The Court said the list is not exhaustive. In my view, it is not intended that the discretion should be exercised on all or selected consideration(s). The circumstances of a particular case may warrant greater or less or even no weight at all to be given to a particular consideration(s). It is open to the Supreme Court to expound on those considerations or introduce new considerations as necessitated by the circumstances of the case before it. In a case where a number of considerations are relevant, the Court must take into account the totality of those considerations in order to dispense substantive justice in the circumstances of the case before it. The onus is on the applicant to persuade the Court to exercise its discretion in his or her favour.”

11. In this case, this Court has granted the Applicant leave to seek review of the competency decision. If the review is successful, it will determine the National Court proceedings. The issues of whether leave should have been granted and whether the review has merit are not before this Court.

12. However, from the principles in McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279, this Court will take a cursory view of the likely success of the grounds of the appeal and review as one of those considerations to be taken into account together with other considerations in order to dispense with justice in the circumstances of this case. We have thus formed the view that the Applicant has raised in the grounds for review important points of law to be determined which are not without merit: Erie Ovako Jurvie v Bony Oveyara [2008] SC935.

13. Further, this Court is swayed by the Applicant’s contentions that a stay would preserve the status quo for the convenience of all parties. If a stay is not granted, the trial proceeds and either during the trial or after its conclusion, this Court upholds the review, this would lead to amongst others, unnecessary costs being incurred by all parties, and a significant waste of Court’s time. Too, if the National Court trial proceeds at the same time as the review before this Court, this would lead to quite considerable inconvenience to all parties in them attempting to prosecute the two cases at once in Waigani and in Goroka. Conversely, if an unsuccessful review, will only result in delay of time.

14. In our view, a stay of the trial for the election petition in the National Court is the necessary and required course to take to do justice in the circumstances of this case. We propose to make that order. It is unnecessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

1. Pursuant to s. 155 (4) Constitution, the trial of the election petition, EP No. 73 of 2019 – Don Pomb Polye v Luke Alfred Manase & Electoral Commission of Papua New Guinea, in the National Court is stayed until the determination of the review herein.
   
2. The First Respondent shall pay the costs of the Applicant and the Second Respondent of and incidental to the application for stay of the Applicant filed 23^rd September 2019.

__________________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Fairfax Legal: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent