SC2430

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 47 OF 2023

JAMES NOMANE
Applicant

V

WERA MORI
First Respondent

ELECTORAL COMMISSION
Second Respondent

&

SC REV (EP) NO 48 OF 2023

ELECTORAL COMMISSION
Applicant

V

WERA MORI
First Respondent

JAMES NOMANE
Second Respondent

Waigani: Cannings J
2023: 18th, 28th July

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

The respondents in an election petition (the successful candidate and the Electoral Commission) each made a supplementary objection to competency of the petition. Each supplementary objection was refused by the National Court. Each respondent then filed an application in the Supreme Court seeking leave to review the decision to refuse their objection. There was a joint hearing of the two applications for leave. 

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)	Some of the grounds of review in the successful candidate’s application for leave raised arguable points of law, but none were so compelling as to give rise to exceptional circumstances and the interests of justice did not require that leave be granted. Therefore leave was refused. 

(3)	The Electoral Commission raised several arguable points but none were so compelling as to make the case exceptional, and the interests of justice did not require that leave be granted. Leave was refused. 

Case Cited

The following cases are cited in the judgment:

Aihi v Isoaimo (2015) SC1598
Amet v Yama [2010] 2 PNGLR 87
Epi v Farapo (1983) SC247
Hagahuno v Tuke (2020) SC2018
Hewabi v Simaka (2023) SC2373
Kikala v Electoral Commission (2013) SC1295
Mori v Nomane & Electoral Commission, EP 52 of 2022, 17.04.23
Nomane & Electoral Commission v Mori (2023) SC2412
Nomane v Mori & Electoral Commission (2023) SC2414
Pundari v Yakos (2023) SC2345

Counsel

SCREV (EP) 47 of 2023
M Ninkama, for the Applicant
G P Anis, for the First Respondent
L Dos, for the Second Resp   ent

SCREV (EP) 48 of 2023
L Dos, for the Applicant
G P Anis, for the First Respondent
M Ninkama, for the Second Respondent

28th July, 2023

1. CANNINGS J: This is a ruling on two applications for leave to apply for review of one decision of the National Court, constituted by Justice Kangwia. His Honour’s decision was made at Kundiawa on 6 July 2023 in the election petition EP No 56 of 2022 in which the petitioner Wera Mori challenged the return of James Nomane as the member for Chuave Open in the 2022 general election. Mr Nomane was first respondent in the National Court, the Electoral Commission was second respondent.

2.    His Honour refused two supplementary objections to competency of the petition. Both were based on the alleged failure of the petitioner to comply with s 209 of the Organic Law on National and Local-level Government Elections, which requires that a security for costs of K5,000.00 be deposited with the Registrar at the time of filing the petition. One supplementary objection was filed by Mr Nomane, the other by the Electoral Commission.

3.    His Honour delivered an 11-page written judgment (Mori v Nomane & Electoral Commission, EP 56 of 2022, unreported). After stating that he allowed the hearing of the supplementary objections to competency “void of leave”, his Honour determined the merits of the supplementary objections. His Honour ruled that each was without merit. His Honour held: 

The petitioner met the requirements of s 208(e) and s 209 of the Organic Law when the security for costs was filed at the time the petition was filed on 12 September 2022.

4.     I digress to note that his Honour consistently referred to “the supplementary notice of objection”, in the singular, whereas it is my understanding that there were two separate supplementary objections to competency that his Honour was ruling on.

5.     After determining that the supplementary objections to competency lacked merit his Honour proceeded to address “the law on a supplementary objection to competency”. His Honour held that the supplementary objections to competency were “incompetent” for three reasons:

•	failure to comply with rule 12 of the Election Petition Rules 2017, which requires that notice of an objection to competency be filed and served within 21 days after service of the petition (his Honour ruled that the respondents were well out of time);

•	neither objection supplemented any existing objection to competency (his Honour ruled that the original objections to competency had been heard and determined already, so there was nothing to supplement); and 

•	failure to comply with rule 16 of the Election Petition Rules 2017, which requires that an objection to competency be heard “at the trial of the petition” (his Honour ruled that the supplementary objections to competency were heard prior to trial). 

6.    His Honour made an order in the following terms:

1.	Leave to apply for supplementary objection to competency is refused.

2.	Trial of the petition shall commence on 14 July 2023 at 9.30 am.

3.	The respondents shall deposit into the Registrar’s trust account all costs ordered against them in the conduct of EP 56 of 2022 before any further proceeding is commenced by them on a 50-50 basis. 

4.	Time be abridged.

7.     Mr Nomane makes his application for leave in SCREV (EP) 47 of 2023 to review his Honour’s decision. The Electoral Commission makes its application for leave in SCREV (EP) 48 of 2023. They require leave to apply for review of the National Court decision under s 155(2)(b) of the Constitution, due to the requirements of Division 5.2 of the Supreme Court Rules 2012.

8.      Mr Nomane argues by way of proposed grounds of review in SCREV (EP) 47 of 2023 that his Honour:

•	erred in law and committed a procedural error in ordering that leave to file the supplementary objection to competency was refused when his Honour had already conveyed to the parties at the hearing of the supplementary objection to competency on 3 July 2023 that the requirements of rule 12 of the Election Petition Rules 2017 were dispensed with and that leave was granted to the respondents to the petition to move their supplementary objections to competency (application for leave ground 2.1); 

•	erred in law and committed a procedural error in raising the issue of whether the applicant was entitled to raise a supplementary objection after his primary objection had been dismissed on 17 April 2023 (Mori v Nomane & Electoral Commission, EP 52 of 2022, 17.04.23, unreported; also see Mr Nomane’s unsuccessful application for leave to review the decision of 17 April 2023 in Nomane & Electoral Commission v Mori (2023) SC2414 and Nomane v Mori & Electoral Commission (2023) SC2412) when his Honour had already conveyed to the parties at the hearing of the supplementary objection to competency on 3 July 2023 that leave was granted to the respondents to the petition to move their supplementary objections to competency, thus his Honour was bound by his own ruling that leave was granted and created the legitimate expectation that the supplementary objection to competency would be determined on its merits, without again raising the issue of whether it was properly before the court (application for leave grounds 2.2 & 2.3);

•	erred in law in not dismissing the petition for being non-compliant with s 209 of the Organic Law as the K5,000.00 security for costs was deposited in the National Court Registrar’s trust account on 9 September 2022, not at the time of filing the petition, 12 September 2022, and not following binding Supreme Court authority (Epi v Farapo (1983) SC247 and Aihi v Isoaimo (2015) SC1598) that the deposit must be made at the time of filing the petition (application for leave grounds 2.4 & 2.5);

•	erred in law and fact in finding that “the security for costs was downloaded together with the petition and filing fee on 12 September 2022”, when s 209 of the Organic Law required the petitioner to deposit the K5,000.00 security for costs at the time of, ie on the day of, filing the petition, 12 September 2022, and not on any other day, either before or after (application for leave ground 2.6);

•	erred in law by relying on rule 7 of the Election Petition Rules 2017 (which provides that “evidence of the deposit shall be filed with the petition”) to justify the inconsistencies in the dates of filing the petition and payment of the security deposit, as the Rules are inferior to s 209 of the Organic Law, which makes it mandatory that the security deposit be made at the time of filing of the petition. 

9.     The Electoral Commission makes substantially similar arguments to the above arguments by way of proposed grounds of review in SCREV (EP) 48 of 2023 (see application for leave grounds 2.1 to 2.4). There are two additional proposed grounds of review, that his Honour:

•	erred in law and fact when he ruled that the respondents to the petition “are deemed to have conceded the correctness [ie competency] of the petition in respect of satisfying the requirement of s 209 of the Organic Law” when they failed to raise their grounds of objection based on non-compliance with s 209 within the 21-day period specified by rule 12 of the Election Petition Rules 2017, when an objection to competency of a petition is a threshold issue that can be raised at any stage by a party or by the Court on its own volition (application for leave ground 2.5);

•	erred in law and fact when he ordered that the “respondents shall deposit into the Registrar’s trust account all costs ordered against them in the conduct of EP 56 of 2022 before any further proceeding is commenced by them on a 50-50 basis”, as the amount of costs had not been taxed and this order was made in a vacuum and in breach of the principles of natural justice under s 59 of the Constitution (application for leave ground 2.6).

CRITERIA 

10.     There are many cases that have over the years set out the criteria to be considered when determining applications 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 a respondent to an election petition making an application for the petition to be summarily dismissed, which was refused in an interlocutory decision of the National Court. Then the respondent to the election petition applied to the Supreme Court for leave for review of the National Court decision. 

11.     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.

12.     I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. It is important that there be such requirements, especially in cases where the National Court has refused an application for summary dismissal or an objection to competency of an election petition, as the National Court decision does not prevent the party moving for dismissal of the petition from continuing to defend the petition. The decision is interlocutory in nature. It does not affect the substantive rights of the party that has had their application or objection dismissed. 

13.     There needs to be strict criteria for granting leave in such cases, to avoid the spectre of interlocutory decisions being unnecessarily reviewed, long before the National Court is able to make a final decision, and to avoid the prospect of an election petition becoming the exact opposite of what it is intended to be, a simple and straightforward court case to be quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:

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.

14.     As the Supreme Court emphasised in Hagahuno v Tuke (2020) SC2018, reinforcing what was stated in Kikala v Electoral Commission (2013) SC1295, s 217 applies from the beginning to the end of an election petition, including during the hearing of an objection to competency.

APPLYING THE CRITERIA 

15.    I now assess the two applications for leave against the criteria spelt out in Pundari v Yakos (2023) SC2345, with full regard to the approach that the National Court was required by s 217 of the Organic Law to take to the two objections before it.

SCREV (EP) 47 of 2023

16.     The proposed grounds of review (application for leave grounds 2.1, 2.2 & 2.3) relating to his Honour’s decision to address the merits of the supplementary objections to competency first, and then later address the question of whether those objections were properly before the court, are arguable points of law that appear to have merit. 

17.     It does seem odd to address the issues in that order. Ordinarily it would be expected that a court would first address the issue of whether objections were properly before the court, and determine that issue. Then, if the objections were properly before the court, a separate determination would be made as to whether they had merit. If it were decided that the objections were not properly before the court, it would be expected that the court would not address their merits. It is arguable that his Honour erred in law in taking an approach that was opposite to the approach that would normally be taken. 

18.     I appreciate the applicant’s argument that his Honour’s decision to question whether the supplementary objections to competency were properly before the court – let alone decide that they were not properly before the court – was peculiar and apparently contradictory to the position his Honour conveyed to the parties at the hearing on 3 July 2023 that leave was granted to argue the objections. With respect, I see on the face of it, considerable merit in these arguments. 

19.     However, even if it is presumed that his Honour took a wrong and irregular approach to those issues, there was no prejudice to the applicant, Mr Nomane, or to the Electoral Commission, as his Honour did address the merits of the supplementary objections to competency. The upshot is that although the arguments raised in application for leave grounds 2.1, 2.2 & 2.3 appear to raise arguable points of law, they are not important in the context of this case as the alleged errors of law of the primary Judge had no impact on his Honour’s determination of the merits of the supplementary objections to competency.

20.     Other proposed grounds of review (application for leave grounds 2.4 to 2.7) relating to alleged errors of law and fact regarding his Honour’s determination surrounding the date of depositing the K5,000.00 security for costs and whether the deposit was made on 9 or 12 September 2022 and whether s 209 of the Organic Law was complied with, are certainly arguable. To that extent the first of the three criteria set out in Pundari v Yakos (2023) SC2345 – the application for leave raises an important point of law that is not without merit – is satisfied. 

21.     However, I do not think that the arguments entailed in those proposed grounds of review are so compelling that they make this an exceptional case warranting the grant of leave. 

22.     His Honour carefully addressed the competing arguments after hearing extensive argument from the parties. I distinguish this case from the recent case of Hewabi v Simaka (2023) SC2373, in which I formed the opinion that there were exceptional circumstances warranting the grant of leave. It was in the interests of justice to grant leave. 

23.     I find in the present case that there are no exceptional circumstances and it is not in the interests of justice to grant leave for review. Leave is therefore refused.

SCREV (EP) 48 of 2023

24.     I have already dealt above with the proposed grounds of review of the Electoral Commission (application for leave grounds 2.1 to 2.4) that mirror those in Mr Nomane’s application. Those proposed grounds of review do not warrant the granting of leave.

25.     As to the additional proposed grounds of review, I see prima facie merit in the argument (application for leave ground 2.5) that his Honour erred in law and fact when he ruled that the respondents to the petition “are deemed to have conceded the correctness [ie competency] of the petition in respect of satisfying the requirement of s 209 of the Organic Law” when they failed to raise their grounds of objection based on non-compliance with s 209 within the 21-day period specified by rule 12 of the Election Petition Rules 2017. I agree with the Electoral Commission’s argument that an objection to competency of a petition including a supplementary objection or a late objection is a threshold issue that can be raised at any stage by a party or by the Court on its own volition. This is the thrust of the leading case, Amet v Yama [2010] 2 PNGLR 87.

26.     I also see prima facie merit in the argument (application for leave ground 2.6) that his Honour erred in law and fact when he ordered that the “respondents shall deposit into the Registrar’s trust account all costs ordered against them in the conduct of EP 56 of 2022 before any further proceeding is commenced by them on a 50-50 basis”. I agree that this order appears perverse as the amount of costs had not been taxed, so the order will be difficult to comply with. 

27.    I also appreciate the argument that this order was not made in response to any motion by Mr Wera, and appears to have been made in a vacuum. It is arguable the order is in breach of the principles of natural justice as it appears the parties affected by it were not given any opportunity to be heard before the order was made.

28.     But ultimately the costs order made by his Honour involved an exercise of discretion, and I am not satisfied that there is a strong case that his Honour erred so extensively as to warrant the granting of leave for review of that order. 

29.     The Electoral Commission has raised several arguable points but, as in the case of Mr Nomane’s application, none are so compelling as to make this case exceptional, and the interests of justice do not require that leave be granted. Leave is therefore refused.

CONCLUSION

30.     Both applications for leave to review the decision of the National Court will be refused. Costs will follow the event.

ORDERS

SCREV (EP) 47 of 2023

(1)	The application for leave, filed 12 July 2023, to apply for review of the decision of the National Court of 6 July 2023 in EP No 56 of 2022, is refused. 

(2)	The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.

(3)	The file is closed.

SCREV (EP) 48 of 2023

(1)	The application for leave, filed 12 July 2023, to apply for review of the decision of the National Court of 6 July 2023 in EP No 56 of 2022, is refused. 

(2)	The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed. 

(3)	The file is closed.

________________________________________________________________

SCREV (EP) 47 of 2023
Harvey Nii Lawyers: Lawyers for the Applicant
Gagma Legal Services: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent

SCREV (EP) 48 of 2023
Nicholas Tame Lawyers: Lawyers for the Applicant	
Gagma Legal Services: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent