Kowa v Namah [2023] PGSC 102; SC2446 (14 July 2023)

SC2446

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 15 OF 2023

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:
ERICK KOWA
Applicant

AND:
BELDEN NAMAH
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 29^th June 29^th & 14^th July

SUPREME COURT REVIEW – practice and procedure - Application to dispense with time for filing an application for review –whether the application is incompetent

Cases Cited:

Marape v. Pokaya (2017) SC1364
Electoral Commission v. Potape (2020) SC1926
Patrick Basa v. Haring Quoreka (2023) SC2394

Counsel:

Mr. G. Bon, for the Applicant
Mr. G. Sheppard and Mr. G. Kult, for the First Respondent
Mr. W. Pep, for the Second Respondent

14^th July 2023

1. HARTSHORN J: This is a decision on whether a contested application which seeks to dispense with the time for filing an application for review (Dispense Application) is incompetent.

Background

2. On 21^st April 2023 the applicant Mr. Erick Kowa was granted leave to apply for a review of the decision of the National Court which on 17^th March 2023 dismissed the election petition filed by the applicant against the respondents Hon. Belden Namah and the Electoral Commission of Papua New Guinea.

3. The first respondent submits that the applicant as at 2^nd June 2023 has not filed an application for review and so is out of time to do so.

4. Order 5 Rule 18 Supreme Court Rules provides that:

“The application for review shall be filed within 14 days from the date of grant of leave or within such further extended period as the Judge determines upon application made within those 14 days.”

5. The applicant now applies pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with compliance of Order 5 Rule 18. The first respondent supported by the second respondent submits that the Dispense Application is incompetent as it seeks to dispense with Order 5 Rule 18 per se and not with any of that Rule’s requirements. Secondly, the applicant cites s. 155(4) Constitution instead of s.155(2)(b) Constitution as the jurisdiction for directions to be issued for filing.

6. The applicant submits that he does seek dispensation with the requirements of Order 5 Rule 18 and that s. 155(4) Constitution is a general provision which may be relied upon for directions to be issued if the Dispense Application is granted.

Consideration

7. Order 5 Rule 39 Supreme Court Rules upon which the applicant relies is as follows:

“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”

8. The first respondent relies upon a passage in Electoral Commission v. Potape (2020) SC1926, in which I said at [4]:

“4. The applicant seeks dispensation with certain Rules pursuant to Order 5 Rule 39 Supreme Court Rules. Order 5 Rule 39 provides that the Court or a Judge may dispense with compliance with any of the requirements of the Rules. It does not provide for dispensation from the Rules per se. Consequently, the application for dispensation which the applicant seeks should be dismissed on this basis.”

9. This interpretation of Order 5 Rule 39 was recently considered in Patrick Basa v. Haring Quoreka (2023) SC2394. After referring to the case of Marape v. Pokaya (2017) SC1364 which had specifically considered Order 5 Rule 39 Supreme Court Rules, the Court said at [5]:

“Order 5 Rule 39 provides to the Court or a Judge the discretion to dispense with any of the requirements of the Rules. For there to be a dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought.”

10. In this instance, in the Dispense Application, what is sought is for “... compliance of Order 5 Rule 18 of the Rules in terms filing of Application for Review within 14 days is dispense (sic) with...”. The applicant does not seek dispensation with any of the requirements of Order 5 Rule 18.

11. The submission of counsel for the applicant that dispensation of the requirements of Order 5 Rule 18 is sought in the Dispense Application is not correct. Further, no application to amend the Dispense Application was made by the applicant.

12. Consequently, the Dispense Application is incompetent as it seeks relief which the Court is unable to grant under Order 5 Rule 39 Supreme Court Rules and should be dismissed. Given this it is not necessary to consider the other submissions of counsel on the issue of competency.

13. The first respondent submits further that if the Dispense Application is incompetent, the application for leave to review is rendered incompetent by virtue of Order 5 Rule 18 Supreme Court Rules and should be dismissed. To my mind this submission does not have merit. The application for leave to review has been determined by the grant of leave. The application for leave to review has been completed.

Orders

a) The application filed 19^th June 2023 by the applicant is incompetent and is dismissed.

b) The applicant shall pay the costs of the first and second respondents of and incidental to the said application filed 19^th June 2023.
_____________________________________________________________
Gibson Bon Lawyers: Lawyers for the Applicant
Young and Williams Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent