Kala v Temu [2023] PGSC 99; SC2453 (1 September 2023)

SC2453

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 46 OF 2023 (IECMS)

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:
EVELE KALA
Applicant

V

SIR PUKA TEMU
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Anis J
2023: 18^th August, 1^st September

APPLICATION FOR LEAVE TO REVIEW –premised on s.155(2)(b) – Constitution - want of right of appeal - s.220 – Organic Law on National and Local-level Government Elections – intended grounds of review premised on final decision of the National Court that dismissed petition – dismissal premised on notice of objection to competency of petition – jurisdictional challenge – petition held to infringe s.208(e) and s.209 of the Organic Law on National and Local-level Government Elections – undisputed fact - different filing dates and time of petition and security for costs – applicable criteria – consideration - ruling

Cases Cited:

Evele Kala v. Sir Puka Temu and Electoral Commission (2023) N10364
Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345
Eric Ovake v. Bony Oveyara (2008) SC935
Avia Aihi v The State [1981] PNGLR 81
Application by Herman Joseph Leahy (2006) SC855
Application of Ludwig Patrick Shulze (1998) SC572
Kasap v Yama [1988-89] PNGLR 81
Kelly Kalit v John Pundari [1998] SC569
Application by Ben Semri (2003) SC723
Epi v. Farapo and Electoral Commission (1983) SC247
Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ginson Goheyu Soanu v Bob Dade (2004) SC763
Jimson Sauk v Don Pomb & Electoral Commission (2004) SC769
William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018

Counsel:

G Salika, for the Applicant
W Bigi, for the First Respondent
W Pep, for the Second Respondent

RULING

1^st September 2023

1. ANIS J: This was a hearing of an application for leave to review filed 7 July 2023 (leave application). It was contested thus was heard on 18 August 2023. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The applicant and the first respondent were contestants in the 2022 General Elections for the Abau Open Electorate Seat (AOE/ Seat). The first respondent was later returned as the duly elected member for the Seat. The applicant was aggrieved with the outcome of the election, and so on 14 September 2022, he filed an election petition disputing the declaration of the first respondent as the duly elected member for AOE. The proceeding is described as EP No. 74 of 2022 – Evele Kala v. Sir Puka Temu and Electoral Commission (EP 74). The applicant raised various grounds in the petition, including illegal practices, undue influence, and bribery.

4. The first respondent, in response to the petition, filed a notice of objection to the competency of the petition (Objection). The first respondent later amended the Objection to include additional grounds including the following:

......

(b) The petitioner paid his Security for Costs seven (7) days before filing the petition thereby breaching Section 209 of the Organic Law. Consequently, the petition filed herein is incompetent pursuant to Section 210 of the Organic Law.

5. The Objection was heard before His Honour Justice Dingake on 19 June 2023. The main contention at the hearing centered on the above additional ground of objection, that is, on whether the filing of security for costs 7 days ahead of the petition constituted breach of s.209 of the Organic Law on National and Local-level Government Elections (OLNLLGE/Organic Law) thus rendered the petition incompetent pursuant to s.210 of the Organic Law.

6. On 23 June 2023, His Honour delivered his decision where he upheld the Objection and dismissed the applicant’s petition as incompetent (the Decision). The Decision is published as an unreported judgment as Evele Kala v. Sir Puka Temu and Electoral Commission (2023) N10364.

LEAVE APPLICATION

7. Under term 1.1 of the leave application, the applicant intends to review the Decision of His Honour. The applicant pleads 4 proposed grounds of review. They are quite lengthy as pleaded, but I summarise them herein as follows:

(i) alleged error of law and of fact; that his Honour applied the repealed rule 5(3) of the Election Petition Rules 2007 as amended instead of Rule 5 of the Election Petition Rules 2017 as amended, at para 32 of the Decision; that had his Honour considered and applied the correct rule, his Honour would not have drawn the inference and found as a fact at para 28 of the Decision, that the applicant was inviting the Court to breach section 99(3) of the Constitution.

(ii) alleged error of law; that is, the applicant alleges that because his Honour had relied on the repealed Ruled 5(3) of the Election Petition Rules 2007 as amended, his interpretation of the same under para 22(5) of the decision was incorrect or wrong.

(iii) alleged error of law and of fact; that his Honour failed to make a finding that that payment of security for costs made on 7 September 2022 and the filing of the petition on 14 September 2022 together with the receipt or evidence of the payment of security for costs, were made in compliance with s.209 and not in breach of it; that his Honour erred when he relied on the repealed ruled Rule 5(3) of the Election Petition Rules 2007 as amended; that his Honour in so doing did not or failed to turn his mind to for guidance under ss.109(4), 158(2) and Schedules 1.5 and 1.9 of the Constitution and s.217 of the OLNLLGE;

(iv) alleged error of law and of fact; that his Honour erred when he stated at para 31 of the Decision that the security deposit for costs paid on 7 September 2022 was made when the petition had not yet been filed or existed and thus was not in compliance with the mandatory provisions of s.209 of the OLNLLGE; that the deposit of payment of the security for costs which was filed together with the petition on 14 September 2022, was filed pursuant to the requirements under ss.208(e) and 209 of the OLNLLGE and rules 5, 6 and 7 of the Election Petition Rules 2017 as amended.

8. The applicant’s proposed issues and reasons in support of his grounds of review, as pleaded in the leave application, are as follows:

3. THE ISSUES INVOLVED:

3.1 Whether the Learned Trial Judge erred for the reasons set out above, in making a finding that the Petition filed on 14 September 2022 was incompetent on the basis that the deposit as security for costs, paid to the Registrar’s Trust Account on 7 September 2022, was paid when the Petition had not been filed and therefore was not in existence and thus failed to comply with the strict requirements of section 209 of Organic Law.

3.2 Whether the Learned Trial Judge erred for reasons set out above, in making a finding that the deposit as security for costs paid into the Registrar’s Trust Account on 7 September 2022 and evidence exhibiting said payment was filed with the filing fee receipt and the Petition on 14 September 2022 in the one act of filing on IECMS, was not filed within the meaning of section 209 of the Organic Law in light of 109(4), 158(2) and Schedules 1.5 and 1.9 of the Constitution, section 217 of the Organic Law and against the spirit of the decision in William Hagahuno v Johnson Tuke and the Electoral Commission (2020) SC2018 that a “fair large liberal and purposive approach should be employed for the interpretation and application of a Constitutional law and other statutory provisions”.

3.3 Whether the Learned Trial Judge erred for the reasons set out above in failing to make a finding that the Petition, the filing fee receipt, and the receipt of the deposit of security as to costs was filed pursuant to sections 208(e) and 209 of the Organic Law, in the one act of filing on IECMS on 14 September 2022.

......

4. REASONS WHY LEAVE SHOULD BE GIVEN

4.1 Section 220 of the Organic Law provides that a decision of the National Court is final. The only avenue available to the Applicant is the review procedure under Section 155(2)(b) of the Constitution.

4.2 There is an important point of law to be determined that is not without merit.

4.3 The matters for review as far as they are in relation to the facts, demonstrate that,

a. there is prima facie, a gross error apparent or manifested on the face of the evidence before the Court and

b. the findings of fact by the Learned Trial Judge are absurd so as to result in an injustice that a review of the findings of fact is required.

4.4 There exist exceptional circumstances.

4.5 It is in the interest of justice, according to law, to grant leave.

SECTIONS 208, 209, 210 and 217

9. Sections 208, 209, 210 and 217 of the OLNLLGE state:

“208. REQUISITES OF PETITION.

A petition shall–

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

209. DEPOSIT AS SECURITY FOR COSTS.

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

......

217. REAL JUSTICE TO BE OBSERVED.

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.

CRITERIA FOR GRANT OF LEAVE – EP MATTERS

10. Case law appears settled on what criteria to apply when considering an application for leave to review a final decision of the National Court on election petition.

11. But before I look at the case law, s.220 of the OLNLLGE states that, A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way. This section eliminates the rights of the parties in election petition matters to appeal directly to the Supreme Court.

12. However, s.155(2)(b) of the Constitution makes it possible for one to seek review against a decision of the National Court that arise out of an election petition that is filed under PART XVIII. – DISPUTED ELECTIONS, RETURNS, ETC. of the Organic Law. It reads, The Supreme Court ... has an inherent power to review all judicial acts of the National Court. The genesis of s.155 (2) (b) is to be found in Avia Aihi v The State [1981] PNGLR 81. Moving on, Division 2, Order 5 of the Supreme Court Rules 2012 as amended (SCR) sets out the appeal process and requirements for election petition matters. Rule 9 in particular states that, An application for an election petition review in respect of a decision referred to under Rule 8 lies to the Court with leave only.

13. The criteria for the grant of leave to review of this nature are summarised by Hartshorn J in the case of Sir John Pundari v. Peter Yakos and Electoral Commission (2023) 2345. His Honour adopted and restated the 2 criteria that were applied by Injia DCJ, as he then was, in Eric Ovake v. Bony Oveyara (2008) SC935, but his Honour went further and added an additional criteria. I summarise them herein as follows:

(a) First, insofar as the application relates to a point of law, the only criteria to be satisfied is that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC855; Application of Ludwig Patrick Shulze (1998) SC572.

(b) Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted; or

(c) in any event (or regardless), whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

CONSIDERATION

14. Let me now consider whether the present leave application meets these requirements.

15. At the outset, I note the submissions made by the parties.

16. In regard to the criteria important point of law, I make this observation. I note that the applicant, premised on the 4 grounds of review, intends to primarily argue or make the point that if a petitioner files a receipt of payment of his or her security for costs, together with an election petition, then that shall constitute compliance with (and not in breach of) the mandatory requirement of s.209 of the OLNLLGE. I therefore note that if leave is granted, then that may involve or call into question the interpretation of s.209.

17. So, I ask myself whether this is an important point of law that should require further consideration by the review Court thus leave should be granted. I would answer this question in the negative. The Supreme Court first addressed this issue 30 years ago regarding the application of s.209, that is, in Epi v. Farapo and Electoral Commission (1983) SC247. Supreme Courts later have followed or ruled similarly in these cases, Paru Aihi v Peter Namea Isoaimo (2015) SC1598, Delba Biri v Bill Ninkama [1982] PNGLR 342, Ginson Goheyu Soanu v Bob Dade (2004) SC763, and Jimson Sauk v Don Pomb Polye & Electoral Commission (2004) SC769. Recent National Court decisions that address this point include Moses Manwau v. Hon Allan Bird and Electoral Commission (2023) N10249 and Johnson Tuke Ibo v. William Hagahuno and Electoral Commission (2023) N10322.

18. These cases interpret s.209 to mean (paraphrase/summarise) that at the time of filing a petition, the security for costs, and not the receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court. The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time. The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss 208, 209 and 210 of the OLNLLGE. Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when his Honour at para 38 of his decision stated, a receipt is merely documentary evidence of payment. It is not payment per se.

19. I therefore do not see nor find the intended arguments by the applicant raised in his proposed grounds of review, to constitute important points of law that are not without merit.

20. The applicant also intends to bring the review Court’s attention to the application of s. 217 of the OLNLLGE and determine whether it should have been applied to cure defects or the uncertainties and thus whether the trial Judge erred in law in that regard.

21. In consideration, I refer to the Supreme Court case of William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018. At paras 68 and 69, his Honour Kandakasi DCJ, stated and I quote:

68. As long as a petitioner addresses and or meets all of these requirements, his or her petition should qualify to progress to trial. In other words, if a petition on its face reveals a meeting of all of these requirements that should be sufficient for the purposes of s. 210 of the Organic Law. It should follow therefore that, objections to competency of petitions can only be raised against a petition which on its face fails to meet any of the requirements under s. 208 (a) to (d) and is something that cannot be cured by appropriate amendments either before or after the expiry of the time period stipulated under s. 208 (e) of the Organic Law. An incurable defect, error or omission in an election petition could be a complete failure to:

(a) disclose by a statement of the facts (regardless of however poorly or well drafted the petition might) at least a known ground for invalidating an election or return; or

(b) state the occupation of the attesting witnesses as was the case in Biri v. Ninkama; or

(b) state both or either of the required two attesting witness’ addresses;

(c) specify the relief sought; or

(d) sign the petition by the petitioner; or

(e) file the petition within 40 days after declaration of the relevant election results.

69. Also, a petition that fails to meet the condition precedent of the deposit requirement under s.209 of the Organic Law could correctly attract an objection to the competency of a petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filing an election petition.

[Underlining and bold lettering mine]

22. When I consider the undisputed facts, I note that the applicant herein paid his security for costs, as required under s.209, 7 days prior to him filing his petition. He paid K5,000 into the National Court Trust Account held by the Bank South Pacific Ltd on 7 September 2022. Then on 14 September 2022, the applicant filed his petition with the receipt of payment of the security for costs through the Integrated Electronic Case Management System (IECMS).

23. In applying Hagahuno’s case, on the face of the petition, the serious defect or flaw is the separate filing dates (i.e., payment of security and filing of the petition) or the occurrence of the 2 separate events, which, in my view, cannot be cured even by the power that is bestowed upon the Court by s.217 of the OLNLLGE. No amendments or exercise of discretion will alter the fact that the security for costs and the petition were made and filed respectively at different dates. Let me also say this. Section 217 does not give any power to a National Court judge to, in the exercise of his or her discretion under it (i.e., s.217), override other provisions in the OLNLLGE such as ss 208 and 209. The requirements of ss.208 and 209 are mandatory and must be strictly complied with and that is that.

24. Therefore, I also find against the applicant on this intended question of law that he intends to raise if leave is granted. I do not see that as an important point that should warrant a review. The facts also do not support this argument to say that it would be a worthwhile consideration before a review Court.

25. In regard to the second criteria, I note that the relevant facts, as determined or relied upon by the trial Judge, were not disputed by the parties.

26. Moving on and in regard to the third criteria, I must say that I find no exceptional circumstances herein that should warrant a review of this matter. What the applicant is seeking to review which he considers as important points of law, have been established in the case law and have been in existence for decades. I therefore do not find that a review is warranted in the interest of justice.

SUMMARY

27. In summary, I will refuse to grant leave in regard to the Applicant’s Application for Leave to Review.

COST

28. A cost order is discretionary. I will order costs to follow the event.

ORDERS OF THE COURT

29. I make the following orders:

1. The applicant’s Application for Leave to Review filed 7 July 2023 is refused.
   
2. The applicant shall pay the respondents’ costs of the application on a party/party basis to be taxed if not agreed.
   

The Court orders accordingly.
________________________________________________________________
GFS: Lawyers for the Applicant
Henaos: Lawyers for the First Respondent
Harvey Nii: Lawyers for the Second Respondent