Nomane v Mori [2023] PGSC 64; SC2414 (19 June 2023)

SC2414

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

APPLICATIONS 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

SCREV (EP) 22 OF 2023

BETWEEN:
JAMES NOMANE
Applicant

AND:
WERA MORI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

SCREV (EP) 23 OF 2023

BETWEEN:
ELECTORAL COMMISSION
Applicant

AND:
WERA MORI
First Respondent

AND:
JAMES NOMANE
Second Respondent

Waigani: Hartshorn J.
2023: 12^th & 15^th May^, 19^th June

SUPREME COURT REVIEW – practice and procedure - Applications for leave to review an interlocutory decision in an Election Petition

Cases Cited:
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Shulze: Review Pursuant to Constitution s. 155(2)(b) (1998) SC572
Erie Ovako Jurvie v. Bony Oveyara (2008) SC935
Powi v. Kaku (2019) SC1856
Electoral Commission v. Kaku (2019) SC1866
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:
Mr. H. Nii, for James Nomane
Mr. C. Gagma, for Wera Mori
Mr. N. Tame and Mr. L. Dos, for the Electoral Commission

19^th June, 2023

1. HARTSHORN J: This is a decision on two contested applications for leave to review an interlocutory decision of the National Court (Decision). The National Court, after hearing the objections to competency of the applicants, struck out one ground of the election petition and permitted the other grounds to proceed to trial. The two applications for leave to review are opposed by the first respondent Wera Mori.

Background

2. James Nomane was declared the elected Member of Parliament for the Chuave Open Electorate in Simbu Province in the 2022 General Elections. Wera Mori was also a candidate in the election for the Electorate and petitions Mr. Nomane’s election in the National Court. The objections to the competency of Mr. Mori’s election petition were heard. The primary judge refused to dismiss the election petition. This was because the primary judge struck out one ground of the election petition and permitted the remainder of the grounds to proceed to trial.

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. Both applicants submit that it is not necessary for an applicant seeking to review an interlocutory decision in an election petition to show that there exist exceptional circumstances and that a review is warranted in the interests of justice. Nevertheless, the applicants submit that exceptional circumstances do exist in this instance and that it is in the interests of justice that the leave to review sought should be granted.

These applications

5. The applicants submit that the primary judge fell into error in the exercise of the Court’s discretion in not upholding all the objections to competency and dismissing the election petition, on numerous grounds. In essence, these grounds are amongst others, that the primary judge fell into error in his consideration of grounds which alleged that necessary facts had not been pleaded, that there were no necessary allegations of errors or omissions pleaded, that facts had not been pleaded with clarity, in ignoring binding Supreme Court authority, in not providing reasons where necessary, in effect erroneously amending the petition, in not applying relevant principles as to pleading, in not dismissing allegations of errors and omissions concerning ballot papers in Ward 7 and Ward 22 and in breaching principles of natural justice.

6. The applicants submit that all their grounds are not without merit and raise important points of law. Further, where the applicants allege the decisions were made in defiance of binding Supreme Court authority, those decisions amount to a breach of Sch 2.9(1) Constitution. Thus, it is submitted, exceptional circumstances exist in this instance and it is in the interests of justice that leave to review be granted.

Consideration

7. The applicants submit that it is not necessary for an applicant seeking to review an interlocutory decision in an election petition to show that there exist exceptional circumstances and that a review is warranted in the interests of justice. It is submitted that these factors are not applicable to an election petition review. Reference is made to amongst others, Application by Shulze: Review Pursuant to Constitution s. 155(2)(b) (1998) SC572; Erie Ovako Jurvie v. Bony Oveyara (2008) SC935; Powi v. Kaku (2019) SC1856 and Electoral Commission v. Kaku (2019) SC1866.

8. In Application by Shulze (supra), the Full Supreme Court was concerned with a judicial review application made pursuant to s.155(2)(b) Constitution of an interlocutory National Court decision in an election petition. At that time leave to review was not required. Leave to review is now required pursuant to Order 5 Rule 9 Supreme Court Rules. Application by Shulze (supra) is not therefore of assistance in regard to the requirements for a successful grant of leave.

9. In Jurvie v. Oveyaru (supra), Injia DCJ (as he then was) sitting as a single Supreme Court Judge, considered an application for leave to apply for a review of a final decision which dismissed an election petition. There was now a requirement for leave to be obtained. In the course of his decision, His Honour considered factors to be taken into account in the consideration of whether leave should be granted to review pursuant to s.155 (2)(b) Constitution, in various scenarios. His Honour noted at [4] that the Petition Review Rules applicable then, as they are now, do not provide for how the discretion is to be exercised or for the considerations to be taken into account in determining the question of leave. Further, His Honour stated at [10] that the various criteria for the grant of leave are by no means exhaustive.

10. From a perusal of Application by Shulze (supra) and Jurvie v. Oveyara (supra), the Courts in those cases did not engage in a consideration of specific issues concerning s. 220 Organic Law and s.155(2)(b) Constitution, or a consideration of whether there is any effect on the criteria to be considered for the grant of leave if s. 220 Organic Law as a Constitutional Law, is given its fair and liberal meaning. The reason that those Courts did not consider these issues is possibly because these issues do not appear to have been argued before those Courts.

11. In this regard, I note as an aside, that in his minority decision in Application by Shulze (supra), Injia J (as he then was) said that:

“The discretion under Constitution, s.155(2)(b) is a judicial discretion which must be exercised on proper grounds with greater restraint in election petition matters given the political nature of an election petition matter. Review of such decision of the National Court under s. 155(2)(b) should only be granted in the most exceptional of cases on an important point of law which clearly has merit or on points of evidence where there is a gross error clearly manifested on the face of the record.”

12. In regard to the judgments in Powi v. Kaku (supra) and Electoral Commission v. Kaku (supra), the President of both Courts was the Deputy Chief Justice. Both judgments precede the judgment of the five-member Supreme Court in Hagahuno v. Tuke (supra). In Hagahuno v. Tuke (supra) the Deputy Chief Justice stated at [1] that the Court 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.”.

13. It was held in Hagahuno v. Tuke (supra) 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”.

14. As I mentioned in Pundari v. Yakos (supra) at [7] and [8]:

“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.”

15. With emphasis being placed on Schedule 1.5 Constitution requiring that all provisions of Constitutional Laws be given their, fair and liberal meaning, whilst recognising the paramountcy of s. 155(2)(b), it is useful at this juncture to consider the interplay between s.155(2)(b) Constitution and s. 220 Organic Law. Section 155(2)(b) Constitution does not give a right to review. It provides generally, that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Constitution is silent as to when the Supreme Court may exercise that inherent power to review and as to who has the right to request the Supreme Court to exercise that inherent power and when. Given this, the Supreme Court, beginning with Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No. 2) [1982] PNGLR 44, developed factors to be considered before the Court will exercise its inherent power under s. 155(2)(b) Constitution. Under s. 220 Organic Law, a decision of the National Court is final and conclusive and without appeal, and shall not be appealed or questioned in any way. As a review of a decision is a questioning of a decision in some way, s. 220 Organic Law may be interpreted to mean that there is no right to request the Supreme Court to exercise its inherent power of review of an election petition under s.155(2)(b) or if there is such a right to request, however that right may have arisen, that right cannot be exercised in respect of a National Court decision covered by s.220 Organic Law. If it were otherwise and an election petition could be questioned, this is contrary to s.220 Organic Law and renders the wording of s.220 Organic Law otiose. The factors that have been developed in judgments by the Supreme Court to be considered before the Court will exercise its inherent power under s. 155(2)(b) do not have the effect of overriding the provisions of a statute, an Organic Law.

16. The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.

17. Given the above, to the extent to which it is able, for this Court to grant leave to review, I am satisfied that it is necessary for an applicant seeking to review a decision in an election petition, including an interlocutory decision, to show that in addition to there being an important point of law as referred to or a gross error as to fact as referred to, that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

18. In this instance, what is sought to be reviewed is a decision of the National Court which permitted grounds in an election petition to proceed to trial. It is an interlocutory decision which does not affect the substantive rights of the applicants. The applicants are 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 applicants. Given this it is not necessary to consider the other submissions of counsel.

Orders

19. The Court orders that:

a) The applications for leave to review filed on 23^rd April 2023 in SCRev EP 22 of 2023 and filed on 25^th April 2023 in SCRev EP 23 of 2023 are refused.

b) The applicants shall pay the costs of the first respondent of and incidental to the said applications for leave to review.

c) The applicants’ security deposit of K5,000.00 each shall be paid to the first respondent forthwith.

_____________________________________________________________
Harvey Nii Lawyers: Lawyers for James Nomane
Nicholas Tame Lawyers: Lawyers for the Electoral Commission
Gagma Legal Services: Lawyers for Wera Mori