Powi v Kaku [2021] PGSC 74; SC2147 (31 August 2021)

SC2147

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 03 OF 2021

APPLICATION UNDER SECITION 155 (2) (B) OF THE CONSTITUTION

IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:
WILLIAM POWI
Applicant

AND:
PASTOR BERNARD KAKU
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu J.
2021: 31^st August

APPEAL – Election Petition – Application for leave for judicial review – Application for interim stay – Power of a single Supreme Court judge to order interim stay - Protection of primary right - Constitution, ss. 155 (2) (b); 155 (4) - Supreme Court Rules, 2012, Order 5 rr 6 and 9.

Cases Cited:

Avia Aihi v. The State [1981] PNGLR 81
David Arore v. John Warisan (2008) SC947
Eric Ovake Jurvie v Bony Oveyara (2008) SC935
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Tomokita v Tomuriesa [2018] PGSC 26; SC1684
Viviso Seravo and Electoral Commission v. John Giheno (1998) SC539
Viviso Seravo and Electoral Commission v. John Giheno (1998) SC555

Counsel:

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

31^st August, 2021

1. GAVARA-NANU J: The Applicant applied for leave for judicial review under s. 155 (2) (b) of the Constitution of the Orders given by the National Court on 24 August 2021, in an Election Petition No. 79 of 2017 (Petition) in which the First Respondent was the Petitioner and the Applicant, and the Second Respondent were First and Second Respondents respectively. The application was made under Order 5 r 9 of the Supreme Court Rules 2012 (Rules). The Applicant also applied for an interim stay of the Orders.
   

Background

2. In the Petition, the First Respondent challenged the election of the Applicant as Member and Governor for Southern Highlands Province.
   
3. In its decision, the National Court upheld grounds 4 and 6 out of the 9 grounds of the Petition, and made among others, the following pertinent Orders which stated in summary are:
   
   • (i) To declare that the Applicant was not duly elected at the 2017 general election to the Southern Highlands Provincial seat.
     
   • (ii) To order a recount of ballot papers for 2017 election of the Southern Highlands Provincial seat and a report on the result of the recount to be presented to Court by 5 November, 2021.
     
   • (iii) For the Second Respondent to take steps to conduct a recount of the ballots for the Southern Highlands Provincial seat by 31 August 2021.
     
   • (iv) That the Applicant is suspended with effect from 12 noon on 31 August 2021, on full pay from discharging all powers, functions, duties and responsibilities of the office to which he has not been duly elected, viz Member for Southern Highlands Provincial and other offices he holds by virtue of being the Member for Southern Highlands Provincial, pending the result of the recount.
     
   • (v) The proceeding to return to Court on 2 September, 2021 at 9.30am, for mention and to check compliance with order (iv) and to hear any notice of motion filed by of the parties in the interim.
     
4. The Applicant raised 17 grounds of review. Because of the requirements under Orders (iii), (iv) and (v) above, I gave ex tempore rulings on the applications on 31^st August 2021, before 12 noon, in which I granted leave for judicial review and an interim stay of the National Court Orders. The interim stay of all the National Court Orders was made under Order 5 r 6 of the Rules, and s. 155 (4) of the Constitution to preserve the status quo prior to the National Court Orders being given on 24 August 2021 and to protect the Applicant's right to review the Orders.
   
5. Both applications were contested but only between the Applicant and the First Respondent. The Second Respondent did not oppose the applications.
   

Reasons for decision

6. The ex tempore rulings were given in short compass because of time constraint and the issues were relatively common ground. I now give my full reasons for the ex tempore rulings.
   
7. The main ground of objection by the First Respondent regarding the Applicant’s leave application was, there were no serious issues warranting judicial review and even if leave was granted the review would be unlikely to succeed. Furthermore, the issues raised should have been raised before the primary judge, it is an abuse of process to raise them now. Regarding the Applicant’s application for an interim stay of the National Court Orders, the main ground of objection by the First Respondent was that I as a single Supreme Court judge lacked jurisdiction to order an interim stay of the National Court Orders.
   
8. I am grateful to counsel for their helpful submissions on law relating to the Applicant's applications for leave for judicial review under s. 155 (2) (b) of the Constitution and an interim stay of the National Court Orders. The arguments by counsel on whether a single Supreme Court judge had jurisdiction to grant an interim stay after a grant of leave for judicial review raised an interesting point of law because the case law appears to favour the argument by Mr Diweni of counsel for the First Respondent that only the full three member Supreme Court had jurisdiction to grant the interim stay after the grant of leave. Mr Baniyamai of counsel for the Applicant and Mr Nii of counsel for the Second Respondent both argued that a single Supreme Court judge had jurisdiction to grant an interim stay after leave was granted. Their arguments were by and large based on equity and s.155 (4) of the Constitution.
   
9. Firstly, regarding the application for leave, the principles governing grant of leave for judicial review in election petitions under s. 155 (2) (b) of the Constitution are settled in this jurisdiction. The criteria for grant of leave are whether there is an important point of law to be determined and that it is not without merit and whether there is a gross error as to facts which are clearly apparent or manifested on the face of the evidence before the Court. See, Eric Ovake Jurvie v. Bonny Oveyara (2008) SC935. In that case Injia DCJ, (as he then was) said:
   

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

10. I respectfully agree with the remarks by the learned Deputy Chief Justice. It is important for an applicant to not only show that there is a serious issue for review but that the review has good chance of succeeding. The rationale behind such stringent requirement is based on the dictates of s. 220 of the Organic Law on National and Local Level Government Elections, which states that the decision of the National Court is final and conclusive and is without appeal and shall not be questioned in any other way. Whilst a grant of leave for judicial review under Order 5 r 9 of the Rules is discretionary, the exercise of the discretionary power of the Court must be properly and judicially exercised with great caution. A grant of review by the Court under s. 155 (2) (b) similarly requires higher standard of satisfaction as to the merits of the review. See, Tomokita v. Tomuriesa [2018] PGSC26; SC1684.
    
11. In this case the primary judge was overseas when he delivered the decision of the Court through a video link. The Applicant submitted that this raised a serious jurisdictional issue. The issue was raised in the context of s. 166 (5) of the Constitution, s. 212 (1) of the Organic Law on National and Local Level Government elections and s. 4 (a) of the National Court Act, Chapter 37.
    
12. The Applicant also took issue regarding the National Court Order for the Applicant to be suspended as a Member of Parliament and Governor for Southern Highlands Province pending recount. It was argued that the Order raised a serious issue of law because the Applicant could only cease being a Member of Parliament and Governor for Southern Highlands Province, if he was officially declared as not the duly elected Member and Governor for Southern Highlands Province in the Court ordered recount.
    
13. There were other issues raised in the grounds of review but in my view, these two issues raised serious constitutional and legal issues, which prima facie have good chance of succeeding on review. Thus, in my view the two grounds were sufficient for me to grant leave for judicial review.
    
14. Secondly, regarding the issue of whether I as a single Supreme Court judge had jurisdiction to grant an interim stay of the National Court Orders, the issue has historical background. The issue was considered by Kapi DCJ (as he then was) in Viviso Seravo and Electoral Commission v. John Giheno (1998) SC 539. An application was made before his Honour to stay the National Court orders for a trial in an election petition. In refusing the application the learned Deputy Chief Justice said a single Supreme Court judge lacked jurisdiction to grant an interim stay in an election petition that is under review under the s. 155 (2) (b) of the Constitution. His Honour said a single Supreme Court judge had no power – “either under s. 155 (2) (b) of the Constitution or any other law" to order an interim stay, unlike in the appeal process in which a single Supreme Court judge was specifically empowered under the Supreme Court Act, Chapter No. 37 to grant a stay. The decision was affirmed by the three member Supreme Court in Viviso Seravo and Electoral Commission v. John Giheno (1998) SC555. See, also David Arore v. John Warisan (2008) SC947. The Supreme Court in those cases said s.155 (4) of the Constitution could only be invoked by the full three member Supreme Court for an interim stay order after leave was obtained.
    
15. Notably, both Seravo and Arore were decided before the Rules were made in 2012. In my view the law has changed and Order 5 r 6 of the Supreme Court Rules, 2012 has filled the void in a single Supreme Court judge having jurisdiction to grant an interim stay after a grant of leave for judicial review in election petitions under s. 155 (2) (b) of the Constitution which Kapi DCJ highlighted in 1998 in Seravo. The rule is in these terms:
    

ORDER 5—REVIEW OF NATIONAL COURT

Sub-Division 3. — Interlocutory orders

6. A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.

16. The key words in this rule are - "A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing ....or make any other interlocutory order which seems just, which is not determinative of the issues under review" (emphasis added). The terms of the rule are in my view inclusive of a single Supreme Court judge's power to grant leave for judicial review and an interim stay. In this case, the grant of an interim stay was an interlocutory order, it did not determine the issues for review. The interim stay was ordered in the interest of justice to preserve the status quo pending judicial review of the National Court Orders. The criteria for a single Supreme Court judge having jurisdiction to grant an interim stay under this rule is the grant of leave for judicial review. In other words, leave for judicial review must be granted first by the single Supreme Court judge under Order 5 r 9 of the Rules, in order for the single Supreme Court judge to have jurisdiction under Order 5 r 6 to grant an interim stay. Thus I found that having granted leave for judicial review, I had jurisdiction under this rule and s.155 (4) of the Constitution to grant the Applicant's application for an interim stay of the National Court Orders.
    
17. In my view, under this rule once leave for judicial review was granted the Court apart from the power conferred on it by the rule, also had power under s. 155 (4) of the Constitution to grant the interim stay of the National Court Orders to protect the Applicant's right to review those Orders. In other words, the Applicant was entitled to invoke the powers conferred by Order 5 r 6 and s. 155 (4) of the Constitution on the Court to obtain an interim stay of the National Court Orders. It is important to note that s. 155 (4) of the Constitution could not be invoked on its own, it is not a source of primary jurisdiction of the Court to grant the interim stay application by the Applicant. The jurisdictional power granted by s. 155 (4) of the Constitution is limited to issuing facilitative orders in aid of protecting a primary right conferred by law. See, Viviso Seravo and Electoral Commission v. John Giheno (supra) and David Arore v. John Warisan (supra). See, also Peter Makeng v. Timbers (PNG) Ltd (2008) N3317. In this case the Applicant's right that had to be protected by invoking s. 155 (4) (together with Order 5 r 6 of the Rules) by the grant of the interim stay was the right to seek review of the National Court Orders after obtaining leave under Order 5 r 9 of the Rules. See, also Avia Aihi v. The State [1981] PNGLR 81.
    
18. The Orders of the Court were abridged to take effect forthwith.

__________________________________________________________________
Baniyamai Lawyers: Lawyers for the Applicant
Diwenis Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent