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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV (EP) NO. 11 OF 2019
APPLICATION 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
BETWEEN:
LUKE ALFRED MANASE
Applicant
AND:
DON POMB POLYE
First Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Gavara-Nanu J
2021: 3rd & 8th February
ELECTION PETITION – Practice & Procedure - Leave to make a slip rule application - Supreme Court Rules, 2012; Order 11 r 32 (1), (2) and (3) - Nature & purpose of a slip rule application – Relevant principles of a slip rule application.
ELECTION PETITION – Practice & Procedure – Organic Law on National and Local Level Government Elections – s. 217 – Good conscience and substantial merits – ss. 211 and 222; Requirements for leave for legal representation – ss. 207 and 212; National Court - Special powers – s. 208; Requisites for a competent election petition – Requirement to plead facts relied on to invalidate the election or return.
ELECTION PETITION – Practice & Procedure – Scheme of the Organic Law on National and Local Level Government Elections – Election petition proceedings - Clear legislative intent - Speedy and less technical proceedings – Proof of standard lower than criminal standard – Public interest – Finality to litigation.
ELECTION PETITION – Practice & Procedure – Election petition proceedings - Governed and regulated by an Organic Law - Special proceedings – Not civil proceedings – Interlocutory applications – Piece meal dealings – Nit-picking issues – Inordinate delays – Abuse of process.
Cases Cited:
Papua New Guinean Cases
Brian Kramer v.Nixon Duban and Andrew Trawen, Electoral Commissioner of Papua New Guinea (No.2) (2013) N5213
Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342
Hagahuno v. Tuke and Electoral Commission [2020] SC2018
Holloway v. Ivarato [1988] PNGLR 99
Luke Alfred Manase v. Don Pomb Polye & Electoral Commission of Papua New Guinea (2019) SC1907
James Marabe v. Tom Tomiape (No.2) (2007) SC856
James Yoka Ekip and Simon Sangaki v. Electoral Commission and William Duma (2012) N4899
Jamie Maxton Graham v. Electoral Commissioner of Papua New Guinea (2013) N5134
Luke Tai v. ANZ Banking Group (PNG) Ltd (2018) SC1681
Michael Wilson v. Clement Kuburam (2016) SC1489
Neville Bourne v. Manase Voeto [1974] PNGLR 298
Polye v. Sauk and Electoral Commission (1999) SC643
Re; Nomination of Governor General; Application by Sir Pato Kakaraya (No.2) (2004) SC752
Reference Pursuant to s.18 (2) – Re Jurisdiction of The Leadership Tribunal (2019) SC1852
Sam Bob Auwi v. James Donald (2017) N7062
Steven Pirika Kama v. John Itanu and Ors (2006) N3246
Titi Christian v. Rabbie Namaliu (1996) SC1583
William Nakin v. Lauta Atoi (2013) N5218
William Duma v. James Puk (2019) SC1817
Other Cases
Autodesk Inc. Dyson (No.2) (1993) 67 CLR 270
Hunter v, Chief Constable of West Midlans Police and Others [1982] AC529
Counsel:
C. Copland with E. Kulai, for the Applicant
M. Kipa, for the First Respondent
S. Ranewa, for the Second Respondent
8th February, 2021
1. GAVARA-NANU J: The applicant makes this application pursuant to Order 11 r 32 (3) of the Supreme Court Rules 2012 (Rules), seeking leave to make a slip rule application under Order 11 r 32 (1) of the Rules. If leave is granted, the Supreme Court will re-open and review its decision which was given on 21 December, 2020. See, Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (2019) SC1907.
2. The applicant also seeks an order that pursuant to Order 11 r 9 of the Rules and s. 185 of the Constitution, upon grant of leave, this application be treated as the slip rule application under Order 11 r (2) of the Rules.
3. The decision the applicant is challenging was given by the Supreme Court comprising Kirriwom J, Gavara-Nanu and Batari JJ. That decision dismissed the applicant's application made under s. 155 (2) (b) of the Constitution seeking review of the decision of the National Court in EP No. 73 of 2017, given on 4 July, 2019, in which the primary judge ordered a recount of the votes for the Kandep Open Electorate, Enga Province (the recount). The Supreme Court affirmed the decision of the National Court.
Application for leave
4. In seeking leave, the applicant claims the Supreme Court slipped in affirming the decision of the National Court and in making additional orders. It is claimed that the Supreme Court lacked jurisdiction to make the additional orders, thus the additional orders are ultra virus.
5. The additional orders the Supreme Court made are numbered 3 to 9 of its Orders which are in these terms:
"3. Electoral Commission of Papua New Guinea shall forthwith take every step to conduct and complete recount of the votes as previously ordered within one month of this order, and not later than one month.
7. The applicant also claims that orders relating to costs could only be made by the National Court because, on 4 July, 2019, it reserved its decision on costs. The applicant claims the Supreme Court fell into error when it ordered costs against him and the Electoral Commission.
8. The applicant further claims the Supreme Court slipped by not giving the parties an opportunity on 11 and 12 September, 2020 to make submissions on two interlocutory rulings made by the National Court on an Objection to Competency and a No Case application, on 5 July, 2018 and 9 November, 2018, after the final decision was given on 4 July, 2019.
9. The applicant also claims the Supreme Court slipped by not recalling the parties to address it on the principles enunciated by a five-member Supreme Court in Hagahuno v. Tuke and Electoral Commission [2020] SC2018, which was delivered after the applicant’s application for review was heard.
10. Finally, although this claim appears to repeat the claims in paragraph 9 of the Orders, the applicant claims the Supreme Court slipped in not recalling the parties to address it on the two interlocutory rulings of the National Court on Competency and No Case and the principles enunciated in Hagahuno v. Tuke and Electoral Commission (supra) before making its decision.
11. The applicant relies on two affidavits, one is by him sworn on 31 December, 2020 and the other is by Ms. Emily Kulai, sworn on 20 January, 2021. It is convenient to comment on the two affidavits at this juncture. Regarding the applicant’s affidavit, I find the matters deposed to either raise issues which have already been raised and determined or completely new issues. The affidavit therefore offends against the accepted principles for a grant of a slip rule application. As to the affidavit by Ms. Kulai, I find the matters deposed to either have little or no relevance at all to this application, they relate more to the application filed by the second respondent for an extension of time to conduct the recount ordered by the Supreme Court. Thus, the two affidavits are of no real assistance to the applicant.
Submissions
12. In support of the applicant’s application for leave, Ms. Copland of counsel for the applicant submitted that the Supreme Court slipped in two respects. The first alleged slip is regarding the additional orders it made after it affirmed the decision of the National Court for a recount. It was submitted that the Supreme Court lacked jurisdiction to make the additional orders because the orders could only be made by the National Court. It was also submitted that the Supreme Court lacked jurisdiction to make additional orders regarding costs because the National Court on 4 July, 2019, reserved its decision on costs. The second alleged slip is regarding the Supreme Court not recalling the parties to address it on the principles enunciated by the five-member Supreme Court in Hagahuno v. Tuke and Electoral Commission (supra) on 2 October, 2020, given that submissions by counsel in the substantive application for review were made on 11 and 12 September, 2020. It was submitted that the Supreme Court breached s. 59 of the Constitution by not giving that opportunity to the parties. It was further submitted that had the parties been availed of the opportunity, the Supreme Court would have addressed the erroneous view expressed by the primary judge at page 54 of his decision in which his Honour accepted a ground of review based on errors and omissions by the electoral officials under s. 217 of the Organic Law on National and Local-Level Government Elections (OLNLGE), without expressly making a finding that the result of the election was affected, as required under s. 218 of the OLNLGE. These claims relate to the National Court rulings on applicant’s interlocutory applications based on Competency and No Case.
13. Mr. Kipa of counsel for the first respondent in responding to the submissions by Ms. Copland submitted that the application lacks merit. It was submitted that the application is mala fide and is made in bad faith. The Court was strongly urged to dismiss the application. It was submitted that the applicant has raised issues which are either fresh or have already been raised and determined by the Supreme Court and are therefore res judicata thus the processes of the court are being used improperly and purposely to further delay the recount ordered by this Court. The application is therefore an abuse of process.
14. Mr. Kipa submitted the Supreme Court had inherent power under s. 155 (2) (b) and (4) of the Constitution to make the additional orders, including orders regarding costs. He submitted that applicant’s application for review under s. 155 (2) (b) was to review the whole decision of the National Court, which constituted the action of the National Court. Thus, it was within the inherent power of the Supreme Court to review all the orders of the National Court including orders relating to Competency, No Case, and costs. Although no orders were made by the National Court regarding costs, it was within the inherent power of the Supreme Court to make the orders. It was submitted that had it been left to the National Court to make further orders, it would have caused more uncertainty and further unnecessary delays in bringing the petition to finality.
15. Regarding the second alleged slip which is claimed to have occurred when the Supreme Court failed to recall the parties to address it on principles enunciated in Hagahuno. Mr. Kipa submitted that the Supreme Court was entitled to adopt and follow any decision of the National Court or the Supreme Court or overseas cases which it considered relevant to the issues that were before it. In exercising this power, the Court did not need to ask parties to address it on such cases. It was submitted that the applicant had misconceived the law and is guilty of nit-picking and deliberately raising more unnecessary issues to delay the conduct of the recount.
Consideration
16. The third respondent took no position in this application, which is not surprising because he has already taken steps to conduct the recount ordered by this Court. In those circumstances, had the third respondent supported this application, it would have amounted to improper use of the court processes and therefore an abuse of process. See, Michel Wilson v. Clement Kuburam (2016) SC1489.
17. Before leave can be granted for a slip rule application, the applicant must show glaring errors or misapprehension of law or facts by the Supreme Court in its decision and that there is clear miscarriage of justice manifested in the decision which affects him. The applicant must also show that he has strong chance of succeeding in his slip rule application.
18. The principles which should guide the Court in deciding leave are settled in this jurisdiction. As a matter of basic principle, any error in the decision of the Supreme Court which affects the applicant should be corrected. But such error or misapprehension of law or fact should be clear and glaring. The following broad principles should guide the Court in deciding leave. First, the error is glaring and is clearly manifested in the decision. Second, the error is serious and it relates to a critical issue. Third, the error affects the applicant directly. Fourth, the error is not the making of the applicant. Fifth, the applicant is not seeking to re-hash arguments which had already been raised and determined by a court of competent jurisdiction. Sixth, the applicant is not seeking to raise new issues. Seventh, the error has resulted in the miscarriage of justice. See, Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752; James Marabe v. Tom Tomape (No.2) (2007) SC856 and Luke Tai v. ANZ Banking Group (PNG) Ltd (2018) SC1681. See also, Autodesk Inc. Dyson (No.2) (1993) 67 CLR 270 at 320, per Mason CJ.
19. The need for the applicant to show glaring errors or misapprehension of the law or facts which affect him and which are clearly manifested in the decision of the Supreme Court are fundamental principles for a grant of leave for a slip rule application. This requirement was stated broadly by the Supreme Court in James Marabe v. Tom Tomiape (No.2) (supra) in this way:
"This is the extra principle that we believe encapsulates the principles recognised in Kakaraya’s case. What the applicant must alert the court to is an obvious error or mistake – something that stands out like nothing else. A clear and manifest error of law or fact – not something that is merely arguable – on a critical issue. The applicant must also show that if the error were not made the result of the case would have been different". (my underlining).
20. The apparent inordinate delay in the finality to litigation in this case has been raised by the first respondent as a critical issue and the Court has the duty to address the issue as a matter of public interest. The issue is relevant for determination because it is tied to the claim by the first respondent that this application is mala fide and lacks merit, and that its real purpose is to further delay the Court ordered recount. This issue is also relevant to the fact that the decisions of both the National Court and the Supreme Court were in favour of the first respondent, thus entitling him to have the recount conducted as quickly as possible. Therefore, any further unnecessary and protracted delay in the recount being conducted is likely to result in justice being denied to the first respondent.
Reasons for decision
21. Having considered the material before the Court, I find that the applicant has failed to discharge the onus placed on him to satisfy the tests for a grant of leave for a slip rule application.
22. Regarding the first alleged slip, I accept arguments by Mr. Kipa that applicant having invoked s. 155 (2) (b) of the Constitution for the Supreme Court to review the decision of the National Court, the Supreme Court had inherent power under s. 155 (2) (b) and (4) of the Constitution to make such additional orders it considered appropriate including orders regarding costs. See, Re; Nomination of Governor General - Application by Sir Pato Kakaraya (No.2) (supra).
23. As to the second alleged slip, I also accept Mr. Kipa’s argument that the Supreme Court was entitled to its own views on the issues raised before it and in so doing, it had power to adopt and apply any principle of law it considered relevant to the issues, including those pronounced by both the National Court and the Supreme Court. The Supreme Court was also entitled to rely on and adopt foreign judgments if they were relevant. I also find that issues raised by the applicant are either fresh issues or are same issues which have already been determined by the Court.
24. In any slip rule application, time is of the essence and any issue raised regarding delay is critical because the application challenges a decision that has already been made by a court of competent jurisdiction in favour of the respondent. In an election petition, time is even more critical especially where the decision of the primary court or the Court of Disputed Returns had already been affirmed by the Supreme Court as in this case. The demand by public interest in such situations is even stronger for litigation be brought to finality as quickly as possible. See, Polye v. Sauk and Electoral Commission (1999) SC643. In stressing this principle, in Luke Tai v. ANZ Banking Group (PNG) Ltd (supra), the Court said:
"Public interest in the finality of litigation will preclude all, except a clear slip or error which would warrant the case to be reopened".
25. In that case, the Court was echoing what the Supreme Court said in Wallbank v.Minife and The Independent State of Papua New Guinea [1994] PNGLR 78, where the Supreme Court went further and said that public interest in the finality to litigation also required that power of the Court to re-open its decision for a re-hearing should be exercised with greater caution.
26. In my view, issue of delay in an election petition proceeding as in this case, is always related directly to how issues are litigated by the parties under OLNLGE. There are key provisions of the OLNLGE which essentially set out the practice and procedure for election petition proceedings. These provisions should provide guidance to the courts in conducting election petition proceedings, including reviews under s. 155 (2) (b) of the Constitution. It is important to bear in mind that ordinary Rules of court do not apply to election petitions for the basic reason that election petitions are governed and regulated by the OLNLGE and the rules made under the OLNLGE. See, Jamie Maxton Graham v. Electoral Commissioner of Papua New Guinea (2013) N5134; William Nakin v. Lauta Atoi (2013) 5218 and Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342.
27. It is relevant to note that this petition has been litigated both in the National Court and the Supreme Court over several years
and by now the total period of litigation spans almost the entire life of the current Parliament of 5 years.
28. In this case, delay is prima facie extra-ordinarily inordinate and has even impacted the ability of the courts to properly administer justice. Any further unnecessary
delay will only perpetuate the delay in conducting the recount by the second respondent, thus a further denial of fair hearing to
the first respondent.
Scheme of the OLNLGE
29. In my view, the clear intent of the OLNLGE as reflected quite clearly by the key provisions is that election petitions be dealt with expeditiously. This is the scheme of the OLNLGE.
30. Central to this scheme is s.217, which is the governing provision as it provides in mandatory terms that election petitions be decided without regard to legal forms or technicalities or whether the evidence before the National Court is in accordance with the law of evidence or not. Furthermore, the National Court or the Court of Disputed Returns is to be guided by the substantial merits and good conscience of each case. Section 217 is reproduced for ease of reference:
217. Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
31. As the heading of s. 217 states, the National Court must be guided by the requirements of s. 217 in order to observe “real justice” in an election petition proceeding. It follows that the National Court would fail to observe “real justice” if it did not comply with the mandatory requirements of s. 217. In my considered opinion, these are fundamental requirements for a valid and competent election petition but they are constantly ignored by the parties to election petition proceedings and their lawyers. The courts also appear to overlook or ignore these requirements which they are mandated to comply-with in order to observe “real justice”. The requirements constitute the key difference between an election petition proceeding which is conducted under the OLNLGE and an ordinary civil proceeding which is conducted under the ordinary Rules of court. Unlike the former, the latter involves strict application of the law of evidence, legal forms and principles of pleading.
32. In my view, s. 217 essentially prescribes the practice and procedure for election petition proceedings. Its aim is to facilitate expeditious disposal of election petitions, without strict application of legal forms or technicalities and rules of evidence and pleading.
33. There are other key provisions of the OLNLGE which are relative to s.217. These provisions are aimed at facilitating the clear legislative intent behind s. 217. The provisions are canvassed below.
34. Section 222 provides in mandatory terms that appearance by lawyers to represent parties in an election petition must be either with the consent of all the parties or by leave of the National Court. Section 222 is in these terms:
222. Counsel or solicitor.
(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel appear on behalf of a party.
35. Similarly, pursuant to s. 211 of the OLNLGE, the Electoral Commission has to seek leave of the Court to enter appearance in an election petition as a respondent and to have legal representation. Section 211 is in these terms:
211. Right of returning officer to be represented.
The Electoral Commission may, by leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition.
36. Section 207 confers special jurisdiction on the National Court to hear election petitions and other related matters. Section 207 is in these terms:
207. Jurisdiction of National Court exercisable by single Judge.
The jurisdiction of the National Court in relation to any matter under this Part may be exercise by a single Judge.
37. Section 212 confers special powers on the National Court to deal with election petitions and related proceedings. Section 212 is in these terms:
212. Powers of court.
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
38. The requisites of an election petition for its competency are set out in s. 208 which is in these terms:
208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
39. The only other requisite for a competent election petition is the payment of K5,000.00 by the petitioner as a deposit for security for costs with the Registrar of the National Court as required under s.209.
40. Section 210 provides that an election petition shall not be heard unless the requirements of ss.208 and 209 are complied with. Compliance with these provisions is a condition precedent to instituting a valid and competent election petition. See, William Duma v. James Puk (2019) SC1817.
41. Consistent with the requirements and the scheme of s. 217, the requirements of s. 208 (a) can in my opinion be met by the petitioner narrating (pleading) his story (facts) in the petition. The narrated facts should support the grounds for the petition. This would involve giving a story of the relevant facts relied upon by the petitioner in support of the grounds of the petition, which if proved would avoid the result of the election or the return. This process in my view accords with the standard of proof in election petitions, which is proof by cogent and strong compelling evidence. See, Neville Breumer v. Manasseh Vecto [1977] PNGLR 298 and Brian Kramer v. Nixon Duban (No. 2) (2013) N5213. The ordinary rules of pleading should not apply in how relevant facts are given (pleaded) in an election petition. See, Brian Kramer v. Nixon Duban (No. 2) (supra); Holloway v. Ivarato [1988] PNGLR 99; Steven Pirika Kamma v. John Itanu & Ors (2006) N3246; James Yoka Ekip & Simon Sangaki v. Electoral Commission & William Duma (2012) N4899 and Bryan Kramer v. Nixon Phillip Duban & Andrew Trawen, Electoral Commissioner of Papua New Guinea (No.2) (supra).
42. The illegal practices prescribed under s.178 can still be criminally prosecuted separately with usual requirement that every element of the offence constituting the illegal practice under ss. 178 (4), 215 (2) and 216 (a) (iii), (iv) and (b) be proved. The standard of proof is the criminal standard.
43. Similarly, under s. 218, any offence committed by the electoral officials can be criminally prosecuted separately with all relevant
elements of the offence to be proved. But for the purposes of s.218 of the OLNLGE, such an offence would become relevant if it affected the result of the election. Thus, what is of the essence under s. 218 is the
effect the actions of the electoral officials (which constitute the offence) would have on the result of the election, not whether
the actions of the electoral officials were criminal in nature or constituted a criminal offence.
44. Notably, s. 220 provides that the decision of the National Court is final and conclusive and shall not be questioned in any way.
In practice of course, this requirement is not adhered to because the losing parties still invoke s. 155 (2) (b) of the Constitution to review the National Court decisions. But the provision in my view clearly reflects the scheme of the OLNLGE which is for the Courts to dispose of the election petitions expeditiously guided by the dictates of s. 217. Likewise, if a decision
in an election petition is sought to be reviewed under s. 155 (2) (b) of the Constitution the review must require much higher standard of satisfaction as to the merits of the review application. Regarding leave for judicial
review sought pursuant to Order 5 r 9 of the Supreme Court Rules 2012, the grant of leave should depend on the applicant showing that there is a serious issue to be reviewed and that the review had
good chance of succeeding. These two tests should be met before leave is granted. Failure to meet these tests should result in the
application being dismissed summarily for being frivolous and vexatious and an abuse of process.
45. The question of “substantial merits and good conscience” under s. 217 will vary from case to case depending on the facts and circumstances of a particular case. The National Court has wide powers when deciding this issue, including exercise of discretion whether to dismiss a proceeding.
46. The provisions of the OLNLGE highlighted above are constitutional requirements prescribed under an Organic Law, thus they must be accorded due regard and strict compliance. See, ss. 9, 11, 12, 13, 14, 15 and Scheme 1.2 of the Constitution. See, Reference Pursuant to s. 18 (2) – Re Jurisdiction of the Leadership Tribunal (2019) SC1852; Titi Christian v. Rabbie Namaliu (1996) SC1583 and Sam Bob Auwi v. James Donald (2017) N7062.
47. Pursuant to the scheme of the OLNLGE, election petitions and Supreme Court applications brought under s. 155 (2) (b) of the Constitution to review decisions of a primary court should be dealt with expeditiously with minimum delay. The parties should not be allowed to abuse the processes of the court with unnecessary and unmeritorious applications which would only cause unnecessary delays in the finality to litigation. The processes of the court include those processes prescribed under the OLNLGE. See. Michael Wilson v. Clement Kuburam (supra). The responsibility to expedite the finality to litigation in an election petition falls largely on the parties, but more so on the lawyers representing the parties as officers of the Court. Their duty to the Court is paramount and must take precedence over their duty to their clients.
48. In my view, the major impediment to proper application of the processes under the OLNLGE especially those prescribed under s. 217 is how the election petitions are played out by the parties and their lawyers with strict application of legal forms and technicalities and rules of evidence and pleadings. This is in clear breach of the mandatory requirements under s. 217. The parties treat election petitions as if they are ordinary civil proceedings and resort to strict application of legal forms and technicalities and rules of evidence. The election petitions then turn into long drawn-out lawyers’ advocacy skills games being played-out in accordance with the ordinary Rules of court, in which the parties resort to piece-meal interlocutory applications on nit-picked issues. This also happens in substantive judicial review applications. As a result, the election petitions drag on for years, as happened in this case. These are main causes of delays in many election petition proceedings being expeditiously brought to finality. Such practice defeats the aim of the OLNLGE and the courts should readily penalize those who engage in such practice because the practice flourishes on the back of improper use of the court processes by the parties and their lawyers. This is clear basis for the courts to dismiss proceedings summarily for abuse of process. Furthermore, any interlocutory application which should or can be conveniently dealt with in a substantive proceeding is in my view a clear abuse of process and should be readily dismissed summarily by the courts even on their own motions. See. Michael Wilson v. Clement Kuburam (supra) and Luke Alfred Manase v. Don Pomb Polye & Electoral Commission of Papua New Guinea (supra).
49. It is important to bear in mind that a proceeding or an action such as an interlocutory application or a Supreme Court review, though it may prima facie appear to have been issued or taken in accordance with the Rules or the law, may still be an abuse of process. If the court finds that a proceeding or action suffers from such practice, then it should in the exercise of its inherent power dismiss the proceeding or action. Such situation may arise where court processes are used for an improper purpose, such as seeking to obtain a result that is unlawful or even where the action taken, or the proceeding issued is outside the scope of the court processes. These are general principles and they apply equally to election petitions. The practice is common in both interlocutory and substantive applications for judicial review, most of which as noted, are made piece-meal on nit-picked issues. The practice has become commonplace in election petition proceedings, thus resulting in the proceedings being litigated over unreasonably longer periods as happened in this case. The exercise of courts' power to dismiss such actions or proceedings summarily even on courts' own motions will ensure procedural fairness and proper dispensation of justice in the case. See, Hunter v. Chief Constable of West Midlans Police and Others [1981] UKHL 13; [1982] AC 529 per Lord Diplock.
50. That said, the Court’s inherent power to summarily dismiss or to strike out an action, should be exercised only in clear and obvious cases. But the courts’ duty to be vigilant and to jealously guard their processes from being abused must not be compromised. Like in any proceeding, election petitions and related proceedings that are plainly frivolous and vexatious or an abuse of process or are brought in bad faith by busy bodies should be readily dismissed to protect the integrity of the processes under the OLNLGE. I find that this application falls into that category. It lacks merit and is an abuse of process and should be dismissed.
51. Consequently, leave for a slip rule application is refused and the application is dismissed.
52. The applicant will pay the first respondent’s costs of and incidental to this application, which are to be taxed if not otherwise agreed.
Orders accordingly.
_______________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Fair Fax Legal: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent
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