SC2658

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

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

SCREV (EP) 39 OF 2023

BETWEEN:
JOHNSON TUKE IBO
Applicant

AND:
WILLIAM HAGAHUNO
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2024: 10th July & 9th September

SUPREME COURT REVIEW – practice and procedure - Application for leave to review a final decision in an Election Petition

Cases Cited: 
Sir John Pundari v. Peter Yakos (2023) SC2345 
Evala Kala v. Sir Puka Temu (2023) SC2453
Matthew Damaru v. Taboi Yoto (2024) SC2576

Counsel:
Mr. R. Raka, for the Applicant
Mr. L. Tangua, for the First Respondent
Mr. D. Kints, for the Second Respondent

9th September 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court which dismissed an election petition (Decision). 

Background

2. The first respondent was declared the elected Member of Parliament for the Kainantu Open Electorate in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. On 12th June 2023, the primary judge ordered amongst others, that the petition was “dismissed in its entirety pursuant to s. 210 Organic Law” (Decision). The Decision was made following the hearing of the respondents’ objections to competency.

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.”

This application

4. The applicant submits that this application for leave to review should be granted as:

a)	the primary judge fell into error in relying upon judgments made prior to the amendment of the Election Petition Rules; in relying on judgments which had different factual circumstances and issues to this case; in his consideration of “deposit”, Rule 7 Election Petition Rules and s. 209 Organic Law.

b)	there are important points of law to be determined which are not without merit; 

c)	the matters for review as far as they are in relation to the facts, demonstrate that there are obvious errors apparent; 

d)	it is in the interests of justice.

5. The first respondent submits amongst others, that the applicant has not pleaded the grounds of the proposed review and has only set out the facts and circumstances leading up to the Decision. In the absence of the proposed grounds, it is difficult to make submissions on the merits of the application for leave to review, it is submitted. As to the main reason for the dismissal of the petition, being non-compliance with s. 209 Organic Law, the applicant has not raised an important point of law, it is submitted. Further, there is no error of the primary judge indicated and it has not been established that it is in the interests of justice that leave to review be granted.

6. The second respondent submits amongst others, that the applicant has not pleaded the grounds of the proposed review. Further, the primary judge did not fall into error in making the Decision, no important point of law is raised and it has not been established that it is in the interests of justice that leave be granted.

Consideration

7. From a perusal of the application for leave to review, under the heading, “Grounds”, as submitted by the first respondent, the applicant has set out the facts and circumstances leading up to the Decision. Under the heading, “The Issues Involved” the applicant sets out what are described as “grounds”. From a consideration of the application for leave to review, I am satisfied that it is in compliance with Order 5 Rule 10(c) and Form 5A Supreme Court Rules.

8. As to s. 209 Organic Law, the applicant’s position in essence, is that a deposit of the security deposit into the Registrar’s Trust Account before filing a petition, should be considered as compliance with s. 209 Organic Law so long as the receipt for the payment is filed with the petition. 

9. It is clear from a perusal of the Decision that the consideration of s. 209 Organic Law by the primary judge is detailed and comprehensive. The primary judge has reviewed historical applications of s. 209 and has given the Decision which is in accordance with the preponderance of judicial authority. The primary judge notes that the National Court is bound by the preponderance of the Supreme Court authorities by virtue of Schedule 2.9(1) Constitution.

10. Further, as I referred to in Matthew Damaru v. Taboi Yoto (2024) SC2576 at [11], Anis J in Evala Kala v. Sir Puka Temu (2023) SC2453 at [18] and [19] said:

“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.”

11. I respectfully concur with and adopt His Honour’s reasoning.

12. I am not satisfied therefore, that it has been demonstrated that it is arguable that the primary judge has fallen into error in his consideration and application of s.209 Organic Law. Further, I am not of the view that it has been demonstrated that the primary judge fell into error in any other respect in the Decision.

13. If, contrary to the above, the applicant has established that there is an important point of law to be determined or a gross error as to fact clearly apparent, the next question is whether it has been established that there are exceptional circumstances showing a manifestation of substantial injustice and also that a review is warranted in the interests of justice. 

14. In my view, no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice. 

15. As to the submission that it is in the interests of justice that the Decision be reviewed, I am not satisfied that it is in the interests of justice, which is justice according to law, for the applicant to be permitted to review the Decision. This is particularly so when the relevant law, s. 220 Organic Law, prohibits an appeal and states that a decision shall not be questioned in any way. 

16. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

17.  The Court orders that:

a)	The application for leave to review filed on 22nd June 2023 is refused.

b)	The applicant shall pay the costs of the first and second respondents of and incidental to the said application for leave to review.

c)	The applicant’s security deposit of K5,000.00 shall be paid equally to the first and second respondents forthwith in payment towards the costs to which they are entitled pursuant to order b) above.
_____________________________________________________________
Nelson Lawyers: Lawyers for the Applicant                             
Tangua Lawyers: Lawyers for the First Respondent                 
Jema Lawyers: Lawyers for the Second Respondent