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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REV (EP) NO 67 OF 2023
DR LINO TOM MP
Applicant
V
SAMUEL PHILIP KENAI
First Respondent
ELECTORAL COMMISSION
Second Respondent
Waigani: Cannings J
2023: 10th &15th November
ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to refuse objection to competency of election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).
The first respondent in an election petition objected to competency of the petition on the ground that it was non-compliant with s 208(d) of the Organic Law on National and Local-Level Government Elections due to one of the attesting witnesses stating his residential address incorrectly. The trial judge refused the objection, being satisfied that the witness had an honest but mistaken belief in the correctness of the address at the time of attestation. His Honour held that there was substantial compliance with the form of a petition required by the Election Petition Rules and invoked s 217 of the Organic Law, which requires the court to be guided by the substantial merits of a case without regard to legal forms and technicalities, and considered the conduct of the first respondent in filing his objection to competency long after incorrectness of the address was disclosed. The first respondent then filed an application in the Supreme Court seeking leave to review the decision to refuse his objection to competency. He argued that the trial judge denied him natural justice by not providing sufficient reasons for his refusal of the objection and erred in law by not dismissing the petition when there was clear evidence that the address of the attesting witness was incorrect and by incorrectly invoking rule 22 of the Election Petition Rules and s 217 of the Organic Law and by reassessing the issue of late service of the notice of objection to competency, despite an earlier ruling that the notice was not incompetent.
Held:
(1) To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.
(2) The applicant raised one arguable point of law, but it is not an important point and does not by itself warrant the grant of leave. The other proposed grounds of review lack merit. None of the arguments are so compelling that they make this an exceptional case warranting the grant of leave.
Cases Cited
The following cases are cited in the judgment:
Amet v Yama [2010] 2 PNGLR 87
Danaya v Wobiro (2013) [2013] 2 PNGLR 87
Hagahuno v Tuke (2020) SC2018
Kenai v Tom & Electoral Commission (2023) N10529
Kikala v Electoral Commission [2013] 2 PNGLR 143
Pundari v Yakos (2023) SC2345
Wartovo v Narawec & Electoral Commission (2023) N10503
Counsel
G Gileng, for the Applicant
C Copland, for the First Respondent
J Simbala, for the Second Respondent
15th November 2023
1. CANNINGS J: Dr Lino Tom applies for leave to review the decision of the National Court, constituted by Justice Batari, of 19 October 2023 in the election petition EP No 19 of 2022, to refuse his objection to competency of the petition.
2. The petitioner Samuel Philip Kenai challenged the return of Dr Tom as member for Wabag Open in the 2022 general election.
3. Dr Tom objected to competency of the petition on the ground that it was non-compliant with s 208(d) of the Organic Law on National and Local-Level Government Elections, which states:
A petition shall ... be attested by two witnesses whose occupations and addresses are stated.
4. The primary ground of objection was that one of the attesting witnesses, Josi Karato, stated his residential address incorrectly as Section 100, Lot 42, Waigani Heights, Port Moresby, National Capital District. It was an agreed fact that that address was incorrect. The correct address is Section 454, Allotment 015, Waigani Heights, National Capital District. An affidavit deposing to that fact was filed and served in the proceedings in November 2022.
5. His Honour refused the objection, being satisfied that the witness had an honest but mistaken belief in the correctness of the address at the time of attestation. His Honour held that there was substantial compliance with the form of a petition required by the Election Petition Rules. He also invoked s 217 of the Organic Law, which requires the court to be guided by the substantial merits of a case without regard to legal forms and technicalities, and considered the conduct of the first respondent in not serving a notice of objection to competency until 25 August 2023, long after the incorrectness of the address was disclosed and directions for the trial had been given by the Court (Kenai v Tom & Electoral Commission (2023) N10529).
6. Dr Tom then filed an application in the Supreme Court seeking leave to review the decision to refuse his objection to competency. The application is supported by the Electoral Commission. It is opposed by Mr Kenai, who is first respondent in these proceedings.
7. Dr Tom argues by way of proposed grounds of review that the trial judge erred in fact and/or in law by:
CRITERIA
8. There are many cases that have over the years set out the criteria to be considered when determining applications for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. His Honour spelt out the criteria for granting leave. The applicant must show:
(a) in so far as the application relates to a point of law, that it is an important point, which is not without merit, or in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit;
(b) there are exceptional circumstances; and
(c) it is in the interests of justice to grant leave.
9. I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. It is important that there be such requirements, especially in cases where the National Court has refused an objection to competency, as the National Court decision does not prevent the objecting party from continuing to defend the petition. The decision is interlocutory. It does not affect the substantive rights of the objecting party. There needs to be strict criteria for granting leave, to avoid the spectre of interlocutory decisions being unnecessarily reviewed, long before the National Court is able to make a final decision, and to avoid the prospect of an election petition becoming the exact opposite of what it is intended to be, a simple and straightforward court case to be quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:
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.
APPLYING THE CRITERIA
10. I now assess Dr Tom’s application for leave against the criteria in Pundari v Yakos (2023) SC2345.
11. I do not consider that it is arguable that there was a denial of natural justice by not providing sufficient reasons for refusal of the objection to competency. His Honour gave a careful, considered and prompt decision, containing clear and sufficient reasons for the decision.
12. It is arguable that because of the evidence that the address of the attesting witness was incorrect, there was a failure to provide an adequate address. Mr Gileng, counsel for Dr Tom in the leave application, submitted that once the incorrect address is removed from the address provided by the attesting witness, his address becomes “Waigani Heights, Port Moresby, National Capital District”, which is a vague and inadequate address that does not meet the requirements of s 208(d) of the Organic Law. Mr Gileng submitted that the facts of the present case are similar to those in Wartovo v Narawec & Electoral Commission (2023) N10503, where the attesting witnesses gave their addresses as “Ward 9, Wau Urban LLG, Wau-Waria District” and “Wau (Maus Pipe, Ward 10, Wau Urban LLG, Wau-Waria District”. The trial judge in that case was Batari J and his Honour held that the addresses were too broad, and upheld an objection to competency founded on failure to comply with s 208(d) and dismissed the petition. When the petitioner applied for leave to review the decision I was the Supreme Court judge who refused leave (Wartovo v Narawec & Electoral Commission (2023) SC2386). I held:
I consider that the approach taken by his Honour was consistent with a long line of authority, beginning with Biri v Ninkama [1982] PNGLR 342, which has maintained that there must be strict compliance with each of the requirements of s 208 of the Organic Law. The recent decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018, reinforced what was stated in Kikala v Electoral Commission (2013) SC1295: s 217 applies from the beginning to the end of an election petition, including during the hearing of an objection to competency. However, those cases do not detract from the fundamental principle applied by the primary judge in this case, that strict compliance with s 208 is necessary.
13. These are valid submissions, however there is an important point of distinction between Wartovo and the present case. In Wartovo there was an error on the face of the petition, whereas in the present case the error was not immediately apparent. There was a specific and detailed address with a section and lot number.
14. The facts of the present case are something like those in Danaya v Wobiro [2013] 2 PNGLR 87, where an attesting witness provided a description of his occupation, which the trial judge regarded as incorrect. An objection to competency was upheld but on review the Supreme Court found error by the National Court, holding that there was no failure to comply with s 208(d) on the face of the petition.
15. My assessment of this proposed ground of review is that it is certainly arguable but I am not persuaded that there is any patent error of law by the trial judge. There is no important point of law involved.
16. As to the other proposed grounds of review, I agree that it is not entirely clear what his Honour meant by his remark that the error in the address “can be easily cured by inserting the correct section and allotment numbers”. I do not think he was suggesting that the petition could be amended. His Honour was just indicating that the correct address can be read into the petition as everyone now knows what it is, and there is no prejudice to any of the parties by having the incorrect address. I do not agree that his Honour’s remark manifests any error of law in his Honour’s reasons for decision. Thre is no important point of law involved.
17. I do not consider that his Honour erred in invoking rule 22 of the Election Petition Rules to find that there was substantial compliance with the prescribed form for a petition. His Honour was observing that the petition was substantially compliant with form 1 of the Rules. His Honour was not saying that if a petition is substantially compliant with the form, it is competent. I do not see any arguable point of law arising here.
18. Mr Gileng was critical of his Honour for invoking s 217 of the Organic Law in refusing the objection to competency. However, that is a barren argument. The Supreme Court emphasised in Hagahuno v Tuke (2020) SC2018, reinforcing what was stated in Kikala v Electoral Commission [2013] 2 PNGLR 143, that s 217 applies from the beginning to the end of an election petition, including during the hearing of an objection to competency.
19. This does not contradict the general principle that strict compliance with s 208 is to be insisted on. What it means is that in assessing whether there has been strict compliance, the National Court must do so having regard to the approach required by s 217. I do not see any arguable point of law arising here.
20. The remaining proposed ground of review is that his Honour erred by reassessing the issue of late service of the notice of objection to competency despite an earlier ruling that the notice was not incompetent. This is a flawed argument.
21. All that his Honour did in his earlier ruling was dismiss an argument by the petitioner that the objection to competency was incompetent as it was filed late. His Honour ruled that that argument went nowhere as objections to competency can be made at any time (Amet v Yama [2010] 2 PNGLR 87). However, it did not follow that his Honour should not be critical of a party who raises an objection as late as Dr Tom did (ten months after the ground on which the objection could be taken was disclosed). His Honour was rightly critical of the conduct of Dr Tom’s lawyers in prosecuting the objection in the manner that they did.
CONCLUSION
22. The applicant has raised one arguable point of law, but it is not an important point and does not by itself warrant the grant of leave. The other proposed grounds of review lack merit. None of the arguments are so compelling that they make this an exceptional case warranting the grant of leave.
23. The substantive rights of the applicant, Dr Tom, are left unaffected by the decision to refuse his objection to competency. He is still able to defend the petition. There are no exceptional circumstances. The interests of justice do not require that leave be granted, especially as the trial of the petition is at an advanced stage and is due to resume in three weeks. Leave is therefore refused. Costs will follow the event.
ORDER
(1) The application for leave, filed 24 October 2023, to apply for review of the decision of the National Court of 19 October 2023 in EP No 19 of 2022, is refused.
(2) The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.
___________________________________________________________
Adam Ninkama Lawyers: Lawyers for the Applicant
Simpson Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent
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