Hewabi v Simaka [2023] PGSC 23; SC2373 (6 April 2023)

SC2373

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 9 OF 2023

MASO HEWABI
Applicant

V

ISAIAH SIMAKA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 5^th & 6^th April

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to dismiss objection to competency of election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews.

The applicant sought leave to apply to the Supreme Court for review of the dismissal by the National Court of his objection to competency of an election petition, which challenged his election. The applicant argued that the primary judge did not accord procedural fairness by dismissing his objection to competency based on default by the second respondent (Electoral Commission) in complying with court orders and did not comply with the principles of natural justice by not providing sufficient reasons for her decision. Further, that the primary judge erred in law by failing to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-Level Government Elections, including the erroneous view that the objection had to be supported by evidence and by failing to consider the grounds of objection and the submissions of the objecting parties.

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 application raised points of law that were not without merit and there were exceptional circumstances as it appeared arguable that the primary judge erred by not addressing the merits of the objection and basing her dismissal of the objection on extraneous considerations. It was in the interests of justice to grant leave. Therefore, leave was granted.

Case Cited

The following case is cited in the judgment:

Pundari v Yakos (2023) SC2345

Counsel

D Kints & S Kunai, for the Applicant
J Kolo, for the First Respondent
H Nii, for the Second Respondent

6^th April, 2023

1. CANNINGS J: The applicant, Maso Hewabi, won the seat of Middle Fly Open at the 2022 general election. His election is being challenged by the first respondent, Isaiah Simaka, through an election petition, EP 33 of 2022, in the National Court.
   
2. On 28^th February 2023 the National Court constituted by Justice Polume-Kiele commenced hearing the petition at Kiunga. The first matters to deal with were two objections to competency of the petition. One was filed by the applicant, who was first respondent in the National Court. The other was filed by the Electoral Commission, which was second respondent in the National Court, and is second respondent in these proceedings. Her Honour heard counsel on both objections and immediately gave an ex tempore decision, dismissing both objections and ordering costs. The primary reason for doing so, which is apparent from the transcript of the proceedings of 28 February 2023, is that the Electoral Commission had not complied with court orders for production of documents, forms 66A and 66B, which were to be introduced as evidence at the trial.
   
3. The applicant seeks leave to apply to the Supreme Court for review of her Honour’s decision. His application is supported by the Electoral Commission and opposed by the first respondent, Mr Simaka.
   
4. The applicant argues by way of proposed grounds of review that her Honour did not accord procedural fairness by dismissing his objection to competency based on default by the second respondent (Electoral Commission) in complying with court orders and did not comply with the principles of natural justice by not providing sufficient reasons for her decision. Further, that the primary judge erred in law by failing to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-Level Government Elections, including the erroneous view that the objection had to be supported by evidence and by failing to consider the grounds of objection set out in the notice of objection to competency and the submissions of the objecting parties.
   

CRITERIA

5. There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. That case is particularly relevant to the present case as it involved, like this case, a successful candidate making an application for an election petition to be summarily dismissed. In Pundari v Yakos, the application was refused in an interlocutory decision of the National Court, then the successful candidate applied to the Supreme Court for leave for review of the National Court decision.
   
6. 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; and
     
   • (b) there are exceptional circumstances; and
     
   • (c) it is in the interests of justice to grant leave.
     
7. I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that the granting of leave would be in the interests of justice. It is important that there be such requirements, at least in cases where the National Court has refused an application for summary dismissal of an election petition or an objection to competency. The decision of the National Court does not prevent the party moving for dismissal of the petition from continuing to defend the petition. The decision is an interlocutory decision that does not affect the substantive rights of the party that has had their application or objection dismissed.
   

APPLYING THE CRITERIA

8. Having considered the transcript of the proceedings at Kiunga on 28 February 2023 and the submissions of counsel, I can appreciate the applicant’s argument that the primary judge did not address the merits of his objection to competency, but became distracted by the failure of the Electoral Commission to comply with court orders for production of key documents, something over which he had no control.
   
9. Her Honour rightly regarded those documents as critical for the trial and was rightly dismayed by the Electoral Commission’s disregard of the orders. However, I appreciate the argument that her Honour did not accord procedural fairness by dismissing the objection to competency raised by one party based on default by another party in not complying with court orders.
   
10. I also appreciate the argument that the primary judge did not comply with the principles of natural justice by not providing sufficient reasons for the decision to dismiss the objection. Further, that the primary judge erred in law by failing to address her mind to the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-Level Government Elections. It is arguable that her Honour took an erroneous view that the objection had to be supported by evidence. It also appears that her Honour may not have addressed her mind to the grounds of objection set out in the notice of objection to competency and the submissions of the objecting parties.
    
11. I consider that:
    
    • (a) the application for leave raises in the proposed grounds of review, important points of law that are not without merit; and
      
    • (b) there are exceptional circumstances, given the manner in which the objection to competency was determined;
      
    • (c) it is in the interests of justice to grant leave.
      
12. In the particular circumstances of this case, it is appropriate to grant leave.
    

ORDER

(1) The application for leave, filed 9 March 2023, to apply for review of the decision of the National Court of 28 February 2023 to dismiss objections to competency and to order costs, in EP No 33 of 2022, is granted.

(2) Costs of the application for leave are in the cause.

Judgment accordingly.

___________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Kolo & Associates Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent