Pariwa v Yama [2023] PGSC 132; SC2488 (2 October 2023)

SC2488

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 59 OF 2023

AN 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:
RAMSEY PARIWA
Applicant

AND:
SIR PETER CHARLES YAMA
Respondent

Waigani: Hartshorn J.
2023: 25^th September 25^th, 2^nd October

SUPREME COURT REVIEW - Application for leave to review an interlocutory decision of the National Court in an Election Petition

Cases Cited:
Sir John Pundari v. Peter Yakos (2023) SC2345
James Nomane v. Wera Mori (2023) SC2345
Sir Peter Ipatas v. Laken Aigilo (2023) SC2447

Counsel:
Mr. M. Kombri, for the Applicant
Mr. B. Lomai and Mr. R. Tamarua, for the Respondent

2^nd October 2023

1. HARTSHORN J: This is a contested application for leave to review an interlocutory decision of the National Court in an election petition. That decision, given after a hearing of an objection to competency, permitted a ground relied upon by the petitioner now respondent, to proceed to trial and refused to dismiss the election petition (oc decision).

2. This court was informed that the trial of the election petition has now been heard. A decision was reserved by the primary judge and has yet to be delivered.

Background

3. The applicant was declared the elected member of Parliament for the Madang Provincial Electorate in the 2022 General Elections. The respondent is petitioning the applicant’s election.

Application for Leave - Law

4. In Sir John Pundari v. Peter Yakos (2023) SC2345, James Nomane v. Wera Mori (2023) SC2345 and Sir Peter Ipatas v. Laken Aigilo (2023) SC2447 amongst others, I considered the law on an application for leave to review an election petition. In Sir John Pundari (supra) at [3], [4], [11] and [13] I stated the following:

“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 (Injia DCJ as he then was).

4. 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 on National and Local-level Government Elections (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.”

........

11. For this Court to give a fair and liberal meaning to and to follow the clear wording of s.220 Organic Law, to give due recognition to the intention of Parliament as enunciated in s.220 whilst recognising the paramountcy of s.155(2)(b) Constitution and the overall interests of justice, an applicant must establish that exceptional circumstances exist before leave to review under s.155(2)(b) Constitution is granted. In my view, to permit a case where exceptional circumstances have not been established to be granted leave, renders the latter part of the wording of s.220 Organic Law otiose and is to ignore the fair, liberal and clear meaning of section 220 and is to ignore the intention of Parliament as expressed in section 220.

........

13. Consequently, given the decision in Hagahuno v. Tuke (supra) and the other matters referred to, in my view the criteria for the exercise of this Court’s discretion on an application for leave to review an election petition or decision made therein, are whether there is an important point of law to be determined which 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 and in any event, whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.”

5. Here, the applicant submits that exceptional circumstances do exist in this instance and that it is in the interests of justice that the leave to review sought should be granted.

This application

6. The applicant submits that the primary judge fell into error in the exercise of the Court’s discretion in making the oc decision on numerous grounds. In essence these grounds are amongst others, that the primary judge fell into error in not dismissing the election petition as it was filed out of time, in not giving reasons for not addressing certain evidence, in not dismissing the election petition for being incompetent and in not striking out the ground of undue influence for being incompetent.

Consideration

7. In this instance, what is sought to be reviewed is a decision of the National Court which did not dismiss an election petition and permitted one ground relied upon by the respondent to go to trial, a trial which has now been heard. It is an interlocutory decision which has not affected the substantive rights of the applicant. The applicant has not in any way been prevented from continuing to prosecute his defence of the election petition in the National Court. Exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. The applicant’s complaint that he has only had an opportunity to address whether the election petition was filed out of time at the hearing of the objection to competency implies that he is entitled to another opportunity. Section s.220 Organic Law provides otherwise. Further, in circumstances where s.220 Organic Law prohibits an appeal and states that a decision shall not be questioned in any way, it is not in the interests of justice, being justice according to law, that leave to review be granted, particularly in this instance, to review a decision which does and did not affect the substantive rights of the applicant and was made in the course of the hearing of an election petition, the trial of which has now been heard. Given this it is not necessary to consider the other submissions of the applicant.

Orders

8. The Court orders that:

1. The application for leave to review filed 28^th August 2023 is refused.
   

b) The applicant shall pay the costs of the respondent of and incidental to the said application for leave to review.

100. The applicant’s security deposit of K5,000.00 shall be paid to the respondent towards the costs to which the respondent is entitled pursuant to order b) above.

____________________________________________________________
Kombri and Associates: Lawyers for the Applicant
Lomai and Lomai: Lawyers for the Respondent