Kowa v Namah [2023] PGSC 89; SC2444 (18 August 2023)

SC2444

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO.15 OF 2023

APPLICATION UNDER SECTION 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:
ERICK KOWA
Applicant

AND:
BELDEN NAMAH
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: David, J
2023: 7^th & 18^th August

PRACTICE & PROCEDURE – application to dispense with Supreme Court Rules – no application for substantive review filed within 14 days from the date of grant of leave – no application for extension of period to file substantive review filed within 14 days from the date of grant of leave – rule expressed in mandatory terms - Supreme Court Rules 2012, Order 5 Rules 18 and 39.

Cases Cited:
Wari Vele v Powes Parkop (2008) SC945
Peter Waieng v Tobias Kulang (2013) SC1258
Dei Kewano v Isaac Joseph [2013] SC1261
Philemon Embel v Jefferey Komal (2016) SC1579
James Marape v Johnny Phillip Pokaya (2017) SC1634
Dean Taman v Pastor David Kiak and Seventh Day Adventist (SDA) Church of PNG Union Mission (2021) SC2148
Patrick Basa v Haring Quoreka (2023) SC2394

Counsel:
Gibson Bon for the Applicant
Gregory J. Sheppard with George Kult for the First Respondent
Dick Warep Pep for the Second Respondent

JUDGMENT

18^th August 2023

1. DAVID, J: INTRODUCTION: Before me is the Application filed on 18 July 2023 by the Applicant, Erick Kowa seeking the following relief:

1. Pursuant to Order 5 Rule 39 of the Supreme Court Rules 2012 consolidated to Supreme Court (Miscellaneous Amended) Rules 2022 (the Rules), the requirement for the filing of the Application for Review within 14 days pursuant to Order 5 Rule 18 of the Rules is dispensed with and that the Applicant is allowed to file and serve the Application for Review pursuant to Order 5 Rule 19 of the Rules within 7 days.

2. Costs of the Application be in the cause of the Review.

2. The Application is opposed.

EVIDENCE
3. The Applicant relies on and reads his own affidavit sworn on 17 July 2023 and filed on 18 July 2023.

4. In response, the First Respondent relies on and reads the following materials:

1. Affidavit of George Kult sworn and filed on 2 June 2023;
2. Affidavit of Hon. Belden Namah, MP sworn on 7 June 2023 and filed on 13 June 2023; and
3. Affidavit of George Kult sworn on 20 June 2023 and filed on 21 June 2023.

5. The Second Respondent did not rely on any affidavit.

6. I have considered the evidence.

BRIEF BACKGROUND FACTS

7. On 21 April 2023, the Supreme Court granted leave to the Applicant to apply for review of the decision of the National Court of 17 March 2023 to dismiss EP No.32 of 2022, Kowa v Namah and Electoral Commission.

8. On 5 May 2023, the 14-day time period under Order 5 Rule 18 of the Rules within which the Applicant was mandatorily required to file his substantive Review or Application for Review, lapsed. No Application for Review was filed within the 14-day time period.

9. Within the 14 days from the grant of leave from 21 April 2023 to 5 May 2023, the Applicant did not file any application to extend the period prescribed under the Rules to file the Application for Review. Moreover, no order extending the period or dispensing with the requirements of the Rules was granted within the 14-day period.

10. On 19 June 2023, the Applicant filed and served an application to dispense with compliance with the time prescribed under Order 5 Rule 18 for the filing of an application for review (the Prior Application) on the respondents.

11. On 29 June 2023, the Court heard the Prior Application. The First Respondent raised a preliminary issue as to the competency of the Prior Application and the court reserved on the preliminary issue.

12. On 14 July 2023, the Court handed down its decision dismissing the Prior Application for being incompetent.

13. On 18 July 2023, the Applicant filed the Application.

14. To date, no substantive review or Application for Review has been filed in accordance with the Rules.

SUBMISSIONS

Applicant

15. Mr. Bon for the Applicant submits that the Application for Review was actually filed with the Registry within the time prescribed under Order 5 Rule 18 on 25 April 2023 and that is supported by his own affidavit, a copy of which is annexed to the Applicant’s affidavit as annexure “C”. However, he said the delay caused by the Registry as to the registration of the Application for Review within the prescribed period gave rise to the Applicant filing the Prior Application. It is submitted that the Applicant has proceeded to the filing of a Review Book with a request to the Registry to have the matter listed for directions hearing with a view to having an expedited hearing.

16. It is also submitted that the respondents will not be prejudiced and it was in the interest of justice that the Application be granted.

First Respondent

17. It is submitted for and on behalf of the First Respondent that the Application is incompetent and an abuse of the process of the Court because it has been filed contrary to the mandatory requirements of Order 5 Rule 18 of the Rules and therefore should be dismissed. It was also submitted that the grant of leave was valid for only 14 days from the date leave was granted and that the grant of leave was not perpetual as it was regulated by Order 5 Rule 18. Consequently, it was contended that as of the end of 5 May 2023, leave to review granted to the Applicant lapsed or ceased to exist.

18. In addition, it was argued that given the grant of leave has lapsed, the proper way forward was for the Applicant to file a fresh or new leave to review application and not to pursue a dispensation application.

19. Reliance was had on the decision of the Supreme Court in Dean Taman v Pastor David Kiak and Seventh Day Adventist (SDA) Church of PNG Union Mission (2021) SC2148 which said that where leave is granted, the rules make it mandatory for the applicant to file the substantive proceeding or an application to review within 21 days after the grant of leave. That was a case where the National Court entered default judgment in favour of the respondent with a further order for damages to be assessed. The appellants did not file an appeal against the National Court’s decision within the prescribed period so applied for leave to review before the Supreme Court instead. Leave was granted. The respondent later filed an application to dismiss the review. Nine days later, the appellants filed their substantive application for review. The Supreme Court found that the application for review filed outside the time prescribed by the Rules was incompetent so dismissed it. It was held that the applicant was at liberty to file a fresh or new application for leave to review as the one obtained earlier had lapsed and no longer existed.

20. The First Respondent urges me follow the approach taken in Dean Taman v Pastor David Kiak and Seventh Day Adventist (SDA) Church of PNG Union Mission (2021) SC2148 as the principle is equally applicable to an election petition review. It is submitted that the Applicant should have filed an application for extension within the 14-day time period contemplated under Order 5 Rule 18 of the Rules.

21. Otherwise, the First Respondent essentially submits that the Application does not have merit and should be dismissed.

Second Respondent

22. The Second Respondent adopts and supports the First Respondent’s submissions.

23. In addition, it was submitted by Mr. Pep of counsel for the Second Respondent that none of the requirements for seeking an extension under Order 5 Rule 39 have been met by the Applicant so the Application should be dismissed.

CONSIDERATION

24. Order 5 Rule 18 of the Rules states:

“The application for review shall be filed within 14 days from the date of grant of leave or within such further extended period as the Judge determines upon application made within those 14 days.”

25. Order 5 Rule 18 of the Rules imposes two requirements, one is as to the period within which the application for review must be filed after the grant of leave and the other is the alternative to the other. The first requirement is that the applicant must file the application for review within 14 days from the date of grant of leave. The alternative requirement is that the application for review can be filed within a further extended period as the Judge determines upon application made by the applicant within those 14 days.

26. Order 5 Rule 39 of the Rules states:

“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”

27. The power given to the Court or a Judge to dispense with compliance with any of the requirements of the Rules under Order 5 Rule 39 is discretionary: Wari Vele v Powes Parkop (2008) SC945, Peter Waieng v Tobias Kulang (2013) SC1258, Dei Kewano v Isaac Joseph [2013] SC1261, Philemon Embel v Jefferey Komal (2016) SC1579, James Marape v Johnny Phillip Pokaya (2017) SC1634, Patrick Basa v Haring Quoreka (2023) SC2394.

28. The considerations to take into account in the exercise of the discretion given under Order 5 Rule 39 have been suggested in a number of Supreme Court decisions. Injia CJ in Dei Kewano v Isaac Joseph [2013] SC1261 at [5] suggested the following considerations:

”(1) Whether the rule is founded on the dictates or requirements of law and expressed in mandatory terms requiring strict compliance.
(2) The impact of non-compliance on the parties.

(3) Whether there are alternative avenues open under the rules of court for the applicant to seek redress in Court for the same grievance.

(4) Whether the requirement of the rule sought to be dispensed with is one that is fundamental and one that goes to the very foundation upon which the Court’s review jurisdiction is based; and if the dispensation were granted, it would render the review procedure contained in the PRR ineffectual or meaningless, and tantamount to re-writing the rules of court by judicial act.

In other words those rules must be ancillary and facilitate implementation of the substantive provisions of the rules that create avenues for relief by way of judicial review.

(5) Where “the trial judge clearly erred on the face of the record and that therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested (s208(c) and (d), and where security for costs had not been deposited (s209), and the petition proceeded to substantive hearing despite these clear breaches.”

(6) The application must be made promptly. Where there has been a delay, a reasonable explanation is offered.”

29. In Wari Vele v Powes Parkop (2008) SC945 and Philemon Embel v Jefferey Komal (2016) SC1579, it was suggested that the following considerations apply:

1. A reasonable explanation must be provided why the time limit was missed.
2. Extent of delay between the expiry of the time limit and the making of the application to waive/extend the time limit.
3. Prejudice to the respondent’s conduct of his case.
4. All issues in contention to be promptly put before the Court to be determined without further delay.

30. The Supreme Court has stated that time is of the essence in election petition cases because; election petition reviews are special cases that require the applicant’s constant and detailed attention and that as times imposed under the Rules are tight, the applicant must closely manage the review process and reduce to the minimum the time between various steps in the review. Wari Vele v Powes Parkop (2008) SC945.

31. In Wari Vele v Powes Parkop (2008) SC945 at [14] to [18], the Supreme Court also said:

“14. All of these provisions show that the intention of the Rules is to:

1. not treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention;
2. closely manage the review process;

100. reduce to a minimum the time between the various steps in the review.

15. The times stipulated are short and we expect there will be many circumstances which will arise which will justify the grant of extensions of time such as distance, communication difficulties, congestion of the court, the unavailability of documentation required, e.g. the judges reasons; provided the application is made promptly, within the 14 days period, and with a reasonable explanation.

16. The requirement to promptly make the application is underscored by the provision of Rule 5/1/7 that the application for an extension of time should be made within the same 14 days as the rule envisages the application being filed, served and heard.

17. We find that the provisions of Rule 5/1/7 are not a mistake nor an anomaly, but part of a scheme of rules intended to impose restrictions on the right of review, so as to establish in the shortest possible time, for the benefit of the people of an electorate, the identity of the person entitled to represent the people in and for the term of the Parliament.

18. We also agree with Kapi CJ (as he then was), in SCR No.6 of 2008 Michael Laimo v Andrew Trawen, Electoral Commissioner of Papua New Guinea and John Ilam, Returning Officer for South Bougainville Open Electorate, 22 August, 2008, unpublished and unreported judgment, where his Honour held that where application to extend time under Rule 5/1/7 is not made within the 14 days, the application is rendered incompetent by operation of the Rules. It can be saved by a successful application under Rule 5/10/32, to which we refer below.”

32. In Philemon Embel v Jefferey Komal (2016) SC1579, at [6], Injia CJ said:

“Time is always the essence in election cases, and the filing of the substantive application for review following grant of leave is the first and foremost of fundamental requirements under the rules of Court to institute a substantive review. The filing of the substantive application for review within the time limit prescribed by the rules always a priority matter for any lawyer having business over election petitions decision reviews in the Supreme Court. If that is missed, through inadequate attention being given to the case, the miss cannot be said to offer a reasonable explanation.”

33. I would follow the approach taken by the Supreme Court in Dean Taman v Pastor David Kiak and Seventh Day Adventist (SDA) Church of PNG Union Mission (2021) SC2148 and apply the principle propounded there to this case. In that case at [17], the Supreme Court said:

“We adopt these as the foundation of our decision to be reached. We make these further observations. Firstly, we note that the purpose for obtaining leave, in instances such as this where an applicant has lost his or her primary right of appeal, is to seek permission to file a substantive proceeding like Application to Review under Order 5 of the SCR. When leave is granted, the rules require or make it mandatory for the applicant to file the substantive proceeding or an application to review, within 21 days. At that juncture (i.e., after the grant of leave), the application for leave will have served its purpose and is regarded as complete. With the permission at hand, the applicant must file the substantive proceeding or Application for Review within the prescribed period. If that fails to occur, like in the present matter where the appellants have failed to file their review application within 21 days after the grant of leave, the opportunity for an applicant to assert his or her right over the matter in question lapses or ceases to exist. We agree with what the Court said in Simon Aoae Ovu that an applicant may be at liberty to file a fresh or new leave to review application, but that it would be a separate matter for the applicant.”

34. The requirements under Order 5 Rule 18 are mandatory. Clearly, the Applicant has failed to comply with the mandatory requirements there. This also accords with the first consideration in Dei Kewano v Isaac Joseph [2013] SC1261.

35. I generally accept the respondents’ submissions. The Application is incompetent and amounts to an abuse of process as; the grant of leave has lapsed; the Application filed on 18 July 2023 is made outside the 14-day time period contemplated under Order 5 Rule 18 and the application for leave was determined and there is nothing before the Supreme Court to determine.

36. In case I am wrong in arriving at this conclusion (which I think I am not), let me quickly address the relevant considerations that need to be satisfied.

37. As to why the time limit was missed, no reasonable explanation has been provided by the Applicant. I reiterate that time is of the essence in election petition cases and if that is missed through inadequate attention being given to the case, the miss cannot be said to offer a reasonable explanation: Wari Vele v Powes Parkop (2008) SC945, Philemon Embel v Jefferey Komal (2016) SC1579. If some explanation has been provided, it is insufficient. In any event, the Applicant is prevented by his conduct or the manner in which the proceedings have been progressed since leave was granted on 21 April 2023. It has been said that if the dispensation were granted, it would render the review procedure contained in the Rules ineffectual or meaningless and tantamount to re-writing the rules of court by judicial act and I subscribe to that legal proposition: fourth consideration, Dei Kewano v Isaac Joseph [2013] SC1261. This militates against the grant of the Application.
38. As to the question of delay between the expiry of the time limit and the making of the Application to waive/extend the prescribed time limit, leave was granted on 21 April 2023. The Applicant ought to have filed his application for substantive review by 5 May 2023 or alternatively applied for an extension by 5 May 2023. He filed the Prior Application which was dismissed by Hartshorn J on 14 July 2023. He filed the Application which is more than two months after the time given to file his substantive review or apply for an extension. This militates against the grant of the Application.

39. As to the question of prejudice, I am of the respectful view that the respondents have been prejudiced due to the manner in which the Applicant has conducted his case. The impact on the respondents in my view is adverse: second consideration, Dei Kewano v Isaac Joseph [2013] SC1261. Importantly, the First Respondent has been greatly affected in the discharge of his duties and responsibilities as a Member of Parliament for his electorate of Vanimo Green River because the mandate given to him by his electorate at the 2022 National General Elections has been further disputed and questioned by these proceedings. This militates against the grant of the Application.

40. As to the question that all issues in contention be promptly put before the Court to be determined without further delay, the conduct of the Applicant is wanting. It is not in the interest of justice to further prolong the determination of these proceedings. This militates against the grant of the Application.

41. For these reasons, I will refuse the Application and dismiss it.

42. Costs is a discretionary matter and in the present case, costs shall follow the event.

JUDGMENT AND ORDERS

43. I will enter judgment in the following terms:

1. The Application filed on 18 July 2023 is refused and dismissed.

2. The Applicant shall bear the respondents’ costs of and incidental to the Application which shall, if not agreed, be taxed.

Judgment and orders accordingly.
_____________________________________________________________
Gibson Bon Lawyers: Lawyers for the Applicant
Young & Williams: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent