Numu v Sia [2023] PGSC 157; SC2509 (3 November 2023)

SC2509

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 56 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:
PETER NUMU
Applicant

AND:
HON. SIMON B. SIA
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 9^th September, 3^rd November

SUPREME COURT REVIEW – practice and procedure - Application for leave to review

Cases Cited:

Telikom PNG Ltd v. Independent Consumer and Competition Commission [2008] PNGLR 303
Bernard Kosie v. John Kapi Natto (2015) N6263
Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:

Mr. W. Kaum and Mr. I David, for the Applicant
Mr. S. Javati, for the First Respondent
Mr. J. Palma, for the Second Respondent

3^rd November 2023

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court which dismissed an election petition for being an abuse of process (Decision).

Background

2. The first respondent was declared the elected Member of Parliament for the Eastern Highlands Provincial Electorate in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. On 28^th July 2023 the election petition was dismissed for being an abuse of process. The Court had heard submissions from the parties on the issue of abuse of process after the Court had been made aware that the applicant had filed an application in the Supreme Court pursuant to s. 18(1) Constitution whilst the election petition was current. The Supreme Court application concerned a constitutional issue which was also raised as one of the grounds of the election petition.

Application for Leave - Law

3. In Sir John Pundari v. Peter Yakos (2023) SC2345, I considered the law on an application for leave to review an election petition at [3] to [13]. 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.”

4. In this instance, the parties did not take issue with the consideration of the law in Pundari v. Yakos (supra) or the statement of the criteria for the exercise of this court’s discretion in [13] thereof.

This application

5. The applicant’s proposed grounds for review are that the primary judge fell into error in respect of the Decision in three areas. These three areas are submitted to be first, in finding that the election petition was an abuse of process when the Supreme Court application was not so similar to the election petition that it constituted a duplicity of proceedings amounting to an abuse of process; second, the sufficiency of the notice of discontinuance in the Supreme Court application was not within the jurisdiction of the National Court for the primary judge to determine and third, the delay in the delivery of the Decision was such that grave injustice has been caused to the applicant.

Consideration

6. It is not controversial that in the election petition the applicant raised the issue of the late return of the writ in the subject electorate in the 2022 elections and in the Supreme Court application he raised the same issue in regard to the late return of writs for the 2022 elections. Further, it is not controversial that for a period of time the election petition and the Supreme Court application existed concurrently.

7. In finding that there was an abuse of process, the primary judge was entitled to do so when regard is had to the judgment cited by him: Bernard Kosie v. John Kapi Natto (2015) N6263. I also make mention of the following passage of the majority in Telikom PNG Ltd v. Independent Co:nsumer and Competition Commission [2008] PNGLR 303 at [101] – [102] which is relevant in this instance:

“It is the very existence of two or more proceedings involving the same subject matter that is noxious and gives rise to the presumption, rebuttable, of abuse of process.

Once the jurisdiction of the National Court is invoked by filing a proceeding, it is incumbent on a plaintiff to prosecute it with all due dispatch; and not to commence parallel proceedings over the same subject matter. Parallel proceedings give rise to confusion and inconvenience for the defendants and the court, even where, as in the present case, one of the originating processes is not served on the defendant.”

8. Further, from a consideration of the application, the evidence and submissions, I am not satisfied that the applicant has established that there is an important point of law to be determined and which is not without merit or that there is a gross error as to fact clearly apparent in the various grounds. If however, there is such an important point of law or such a gross error, the next question is whether it has been established that there are exceptional circumstances showing a manifestation of substantial injustice and also that a review is warranted in the interests of justice.

9. No evidence has been given or submissions made which in my view would enable this court to find that in this instance there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.

10. As to the submission that it is in the interests of justice that the Decision be reviewed, after considering the evidence and submissions, I am not satisfied that it is in the interests of justice, which is justice according to law, for this application for leave to review to be granted. This is particularly so when the relevant law, s.220 Organic Law, prohibits an appeal and states that a decision shall not be questioned in any way. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. The Court orders that:

a) The application for leave to review filed 10^th August 2023 is dismissed.

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

c) The applicant’s security deposit of K5,000.00 shall be split between the first and second respondents equally and shall be paid forthwith.
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Fortis Legal Services: Lawyers for the Applicant
Javati Lawyers: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent