Electoral Commission v Pruaitch [2023] PGSC 61; SC2415 (30 May 2023)

SC2415

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 19 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:
THE ELECTORAL COMMISSION
Applicant

AND:
PATRICK PRUAITCH
First Respondent

AND:
HON. ANDERSON MISE
Second Respondent

Waigani: Hartshorn J
2023: 11^th, 30^th May

SUPREME COURT – practice and procedure - Application for summary determination – Whether the Electoral Commission is a party aggrieved by a decision of the National Court - Order 5 Rule 8 Supreme Court Rules does provide that it is, “A party aggrieved by a decision of the National Court....” that shall file an application for an election petition - no relief sought against the Electoral Commission in the election petition and no allegations made against the Electoral Commission in the election petition – no costs order made against the electoral commission – electoral commission is not an aggrieved person – application summarily dismissed

Cases Cited:
Papua New Guinean Cases

Olga v. Wingti (2008) SC938
Barrick (Niugini) Ltd v. Nekitel (2021) SC2092

Overseas Cases

Ealing Borough Council v. Jones [1959] 1 All ER 286

Counsel:

Mr. L. Dos, for the Applicant
Mr. P. Tabuchi, for the First Respondent
Mr. J. Kondop, for the Second Respondent

30^th May, 2023

1. HARTSHORN J: This is a decision on a contested application to summarily determine this proceeding.

Background

2. The second respondent, Hon. Anderson Mise, was declared the winner of the 2022 National General Election for the Aitape-Lumi Open Electorate. The first respondent, Mr. Patrick Pruaitch filed an election petition challenging the election of Mise. The applicant, the Electoral Commission and Mise both objected to the competency of the election petition of Pruaitch. The primary judge dismissed the objections to competency.

3. The Electoral Commission commenced this proceeding and seeks leave to review the whole of the decision of the primary judge delivered on 31^st March 2023 to dismiss the objections to competency of the Electoral Commission and Mise.

4. The hearing of the election petition 23 of 2022 has occurred and was concluded on 28^th April 2023. The primary judge reserved his decision.

5. Pruaitch seeks to summarily determine and dismiss this proceeding pursuant to Order 13 Rule 16(1)(a) Supreme Court Rules and the inherent jurisdiction of the court on the ground that the proceeding is an abuse of process.

Whether the Electoral Commission is a party aggrieved by a decision of the National Court

6. Pruaitch submits that the Electoral Commission is not a party aggrieved by a decision of the National Court. Therefore, it is not entitled to file an application for an election petition review pursuant to Order 5 Rule 8 Supreme Court Rules. This is because Order 5 Rule 8 provides for:

“A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application for an election petition review.”

7. Pruaitch submits that there are no allegations against the Electoral Commission in the election petition, such that it may be argued that the Electoral Commission is an aggrieved person. The Electoral Commission is not prevented from defending the election petition in the National Court and in fact, at the hearing of election petition, it only adopted the position of Mise. Pruaitch relies on the judgment of Injia DCJ (as he then was) in Olga v. Wingti (2008) SC938 and a decision from the United Kingdom of Ealing Borough Council v. Jones [1959] 1 All ER 286.

8. The Electoral Commission submits that it is a party aggrieved by a decision of the National Court. This is because the Electoral Commission is a party to the election petition in the National Court. Its objection to competency was never heard by the primary judge and that is why the Electoral Commission is aggrieved.

Consideration

9. Order 5 Rule 8 Supreme Court Rules does provide that it is, “A party aggrieved by a decision of the National Court....” that shall file an application for an election petition.

10. In Ealing Borough Council v. Jones (supra) at 289, Donovan J said:

“I agree. If one came to the expression “person aggrieved by the decision” without reference to judicial authority one would say that the words meant no more than a person who had the decision given against him; but the courts have decided that the words mean more than that and have held that the word “aggrieved” is not synonymous in this context with the word “dissatisfied”. The word “aggrieved” connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on, and I cannot see that there is so here”.

11. In Olga v. Wingti (2008) SC938, Injia DCJ (as he then was) considered whether an applicant was an aggrieved person. His Honour said at [8]:

“8. In relation to this question, I am satisfied that the applicant is an aggrieved person. He was named as a party in the Petition and is entitled to bring this application because his election as the provincial member for Western Highlands Province is directly affected by the order for recount. The results of the recount, if it favours the First Respondent, will affect his election. Therefore, I am satisfied that the applicant is an aggrieved person within the meaning of r 1 of the Petition Review Rules.”

12. From this passage, His Honour considered more than that the applicant before him was merely dissatisfied or annoyed. He considered that because the applicant was directly affected, he was an “aggrieved person” within the meaning of the Petition Review Rules.

13. No other case authorities were cited on this point. The decision in Ealing Borough Council v. Jones (supra) is persuasive in this jurisdiction and may be said to represent the common law in the United Kingdom at the time of that decision. I am satisfied that on the above authority that “aggrieved” is to be interpreted as described in Ealing Borough Council v. Jones (supra), that is to connote some legal grievance, for example, a deprivation of something, or an adverse effect on the title to something.

14. In this instance, no relief is sought against the Electoral Commission in the election petition and there are no allegations made against the Electoral Commission in the election petition. No order for costs was made against the Electoral Commission by the primary judge in his dismissal of the objection to competency of the Electoral Commission. The Electoral Commission is able to continue to defend the election petition notwithstanding that its objection to competency was dismissed. That the Electoral Commission is aggrieved as it is a party to the election petition, as submitted by the Electoral Commission, does not explain why it is aggrieved in the sense referred to. From a perusal of the decision of the primary judge it is evident that the primary judge did consider the objection to competency of the Electoral Commission, contrary to the submission of the Electoral Commission. To my mind the Electoral Commission may be described as being disappointed or annoyed by the National Court decision which dismissed its objection to competency, but not aggrieved.

15. Further, if a by-election or recount was ordered by the National Court, this would be organised and conducted by the Electoral Commission as part of its prime function pursuant to s.15 Organic Law on National and Local-level Government Elections. It cannot be said in my view, that the Electoral Commission would be aggrieved in such circumstance as it would be performing its prime function as prescribed by an Organic Law.

16. Moreover, there is no evidence before the court which demonstrates that the Electoral Commission is an aggrieved party. There is a statement of concluded fact that the Electoral Commission is an aggrieved party but nothing to justify that statement.

17. After taking into account all of the above, I am satisfied that it has not been shown to be and that the Electoral Commission is not, “A party aggrieved by a decision of the National Court” for the purposes of Order 5 Rule 8 Supreme Court Rules in this instance.

18. Consequently, for the Electoral Commission to bring this application for leave to review is an abuse of process. As to amongst others, this Court’s power to summarily determine a proceeding pursuant to Order 13 Rule 16 Supreme Court Rules for being an abuse of process, I reproduce [22] and [23] of Barrick (Niugini) Ltd v. Nekitel (2021) SC2092:

“22. The case authorities mentioned above demonstrate that Order 13 Rule 16 should only be invoked in dealing with procedural matters. In that context, we would also add to the above list that a matter can be summarily determined for abuse of the process of the Court under the rule.

23. The law as to abuse of the process of the Court is that by its inherent jurisdiction, the Court has power to protect and safeguard its own processes and protect its dignity and integrity from any possible abuse by its users or litigants: The State v Peter Painke [1976] PNGLR 210, National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Anderson Agiru v Electoral Commissioner & The State (2002) SC687, Philip Takori v Simon Yagari (2008) SC905, Grand Chief Sir Michael Somare v Chronox Manek and Others (2011) SC1118, Jacob Popuna v Ken Owa (2017) SC1564, Telikom (PNG) Ltd v Kila Rava (2018) SC1694. The types of abuses of process may vary from case to case: National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, Michael Wilson v Clement Kuburam (2016) SC1489.”

19. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a) This proceeding is summarily determined pursuant to Order 13 Rule 16(1)(a) Supreme Court Rules as it is an abuse of process.

b) The costs of the first respondent of and incidental to this proceeding shall be paid by the applicant.
_____________________________________________________________
Nicholas Tame Lawyers: Lawyers for the Applicant
Young and Williams: Lawyers for the First Respondent
Manase and Co Lawyers: Lawyers for the Second Respondent