Pundari v Yakos [2023] PGSC 3; SC2345 (24 January 2023)

SC2345

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 2 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:
SIR JOHN THOMAS PUNDARI
Applicant

AND:
PETER YAKOS
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2023: 20^th & 24^th January

SUPREME COURT – Practice and Procedure - Application for Leave to Review – review of interlocutory decision of National Court which refused to dismiss election petition filed against the applicant - exercise of court’s discretion in application for leave to review an election petition – consideration of - whether there is an important point of law to be determined and that it is not without merit - whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court - for an application for leave to review an election petition the standard of satisfaction must be set rather high – the interlocutory decision subject of the review does not affect the substantive rights of the applicant – leave for review dismissed
Cases Cited:

Eric Ovake Jurvie v. Bony Oveyara (2008) SC935
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568
Bede Tomokita v. Douglas Tomuriesa (2018) SC1864
Justin Haiara v. James Marape (2019) SC1830
William Hagahuno v. Johnson Tuke (2020) SC2018
Telikom PNG Ltd v. Yaki Kopalye (2021) SC2141
State v. Pokanis (2022) SC2274

Counsel:

Mr. G. Lau, for the Applicant

24^th January, 2023

1. HARTSHORN J: This is a decision on an application for leave to review an interlocutory decision of the National Court which refused to dismiss an election petition. The application for leave is made pursuant to Order 5 Rule 9 Supreme Court Rules 2012.

Background

2. The applicant was declared the elected Member of Parliament for the Kompiam Ambum Electorate in Enga Province in the 2022 General Elections. The first respondent is petitioning the applicant’s election. The primary judge refused to dismiss the first respondent’s election petition after amongst others, hearing the applicant’s notice of motion which sought dismissal.

Application for Leave - Law

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.”

5. I have expressed previously in amongst others: Bede Tomokita v. Douglas Tomuriesa (2018) SC1864 and Justin Haiara v. James Marape (2019) SC1830 that in my view, in the context of the intention of the Parliament expressed in this provision, whilst of course, respecting the paramountcy of s. 155(2)(b) Constitution, that for an application for leave to review an election petition the, “.... standard of satisfaction must be set rather high”. This was also stated in the Supreme Court in Waim No. 85 Ltd v. The State (2015) SC1470 at [7] and Poko Kandapaki v. Enga Provincial Government (2015) SC1463 at [8].

6. In the recent five-member Supreme Court case of William Hagahuno v. Johnson Tuke (2020) SC2018, which Kandakasi DCJ stated at [1] had, “... been specifically empaneled at the request of the parties to consider the conflicting approaches, some liberal and some strict, by both the Supreme and the National Court’s in relation to election petitions and settle the law.”, it was held amongst others, that when hearing an election petition regard must be taken of Schedule 1.5 Constitution which requires that all provisions of Constitutional Laws be given their “fair and liberal meaning”.

7. This statement was made by the Court with reference to s. 217 Organic Law on National and Local-level Government Elections (Organic Law), which provides that 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”.

8. This statement applies equally to s.220 Organic Law which is a provision of a Constitutional Law. The fair and liberal meaning of s.220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal and shall not be questioned in any way. Section 220 is in the part of the Organic Law which is concerned specifically with election petitions. It is not a general provision and is expressed in mandatory terms.

9. Importantly, in my view, s.220 has remained and continues in force and is in a repeal and amendment of the Organic Law which concerns National Elections. That appeal and amendment occurred more than 20 years after Independence and the adoption of the Constitution of Papua New Guinea.

10. It is in this context that whilst respecting s. 155(2)(b) Constitution and the general statement contained therein as to the Supreme Court’s inherent jurisdiction to review a judicial act of the National Court, when an application for leave to review under s. 155(2)(b) Constitution is made, this Court should be concerned with whether the interests of justice, being justice according to law (see Telikom PNG Ltd v. Yaki Kopalye (2021) SC2141 at [2] and State v. Pokanis (2022) SC2274 at [8]), are being served, pursuant to s. 158(2) Constitution, by permitting leave to be granted.

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.

12. I note that in certain scenarios there is already a requirement that there be exceptional circumstances for leave to review a decision pursuant to s.155(2)(b) Constitution other than from an election petition, as referred to in amongst others, Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, a decision of Injia CJ (as he then was).

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.

14. In this instance, what is sought to be reviewed is a decision of the National Court which refused to dismiss an election petition. It is an interlocutory decision which does not affect the substantive rights of the applicant. The applicant is not in any way prevented from continuing to defend the election petition in the National Court. Exceptional circumstances have not been established and in my view from a perusal of the documentation before the Court, do not exist. 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 not affect the substantive rights of the applicant. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. The Court orders that:

a) The application for leave to review filed 10^th January 2023 is refused.

b) No order as to costs.
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Niuage Lawyers: Lawyers for the Applicant