SC2661

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) 27 OF 2023

BETWEEN:
MATHEW MINAPE
Applicant

AND:
JOHN ROSSO
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J.
2024: 22nd August & 4th November

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

Cases Cited: 
Kuberi Epi v. Tony Farapo (1983) SC247 
Yama v. Amet (2010) SC1331
Kubak v. Trawen (2013) SC1250 
Paru Aihi v. Peter Isoaimo (2015) SC1598
Yagama v. Uguro (2018) SC1682
Elemi v. Pala (2023) N10112
Evala Kala v. Sir Puka Temu (2023) SC2453
Sir John Pundari v. Peter Yakos (2023) SC2345
Ilaibeni v. Morris (2024) SC2633

Counsel:
J. Aku, for the Applicant
W. Bigi, for the First Respondent
D. Kints, for the Second Respondent

4th November 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review an interlocutory and a final decision of the National Court concerning an election petition. 

Background

2. The first respondent was declared the elected Member of Parliament for the Lae 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 2nd May 2023 the primary judge refused to dismiss the respondents’ objections to competency of the Election Petition (First Decision) and proceeded to hear them. On 16th May 2023, after hearing the respondents’ objections to competency, the primary judge ordered that the Election Petition was incompetent and dismissed it in its entirety (Second Decision). 

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. In this instance, the parties did not take issue with the consideration of the law in Pundari v. Yakos (supra) or the statement of the criteria for the exercise of this court’s discretion in [13] thereof.

This application

5. The applicant applies for leave to review two decisions of the primary judge. These are the First Decision which refused to dismiss the respondent’s objections to competency and the Second Decision which dismissed the petition.

6. The applicant submits that the application for leave to review should be granted as:

a)	the primary judge lacked jurisdiction to interpret s. 209 Organic Law;

b)	the deposit of K5,000.00 security for costs with the National Court Registrar complied with s.209 Organic Law;

c)	there was a breach of natural justice by the primary judge;

d) 	the primary judge fell into error in:

i) striking out certain grounds of the petition;
ii) not dismissing the respondent’s objections to competency;

e)	all of the proposed grounds of review raise important points of law which are not without merit;

f)	exceptional circumstances exist;

g)	it is in the interests of justice.

7. The first respondent submits that the application for leave to review should be dismissed as the applicant has failed to establish at a higher standard that in so far as the application relates to a point of law, that it is an important point, which is not without merit or insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit. Further, the applicant has failed to establish that there are exceptional circumstances and that it is in the interests of justice according to law for leave to be granted. The applicant has also failed to file evidence to enable this court to find that in this instance there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.

8. The second respondent submits that the application for leave to review should be dismissed as the primary judge did not fall into error, there are no important points of law raised by the applicant and it has not been demonstrated that any exceptional circumstances exist or that it is in the interests of justice that the application for leave to review be granted.

Consideration

9. The third proposed ground of review is that the primary judge lacked jurisdiction to interpret s. 209 Organic Law. The applicant made submissions upon this ground first and so it is considered now.

10. The applicant submits that there is a serious Constitutional issue concerning the interpretation of s. 209 Organic Law as there are two differing interpretations concerning its application and interpretation. The primary judge should have referred the question of the interpretation of s.209 Organic Law to the Supreme Court, the applicant submits.

11. From a perusal of the reasons of the primary judge, the primary judge has applied the interpretation of s. 209 Organic Law as it was applied in the Supreme Court cases of Kuberi Epi v. Tony Farapo (1983) SC247 and Paru Aihi v. Peter Isoaimo (2015) SC1598. The primary judge did not apply a different interpretation of s. 209 Organic Law. The primary judge is bound to follow decisions of law of the Supreme Court pursuant to Schedule 2.9(1) Constitution. As to the other interpretation of s. 209 Organic Law, referred to by the applicant, this is contained in National Court decisions. They are not binding on the primary judge. Further, I refer to the judgment of Anis J. in Evala Kala v. Sir Puka Temu (2023) SC2453 in which His Honour rejected the other interpretation of s. 209 Organic Law and amongst others stated that the different interpretations of s 209 Organic Law do not constitute important points of law which are not without merit. His Honour said at [18] – [19]:

“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.”

12. As to the submission that the primary judge should have referred the question of the interpretation of s. 209 Organic Law to the Supreme Court pursuant to s. 18(2) Constitution, there is no evidence that the applicant’s counsel requested the primary judge to make such a referral pursuant to s.18(2) or at all. Further, from the documentation before this court and the submissions made, I am not satisfied that the primary judge was under any obligation to make such a referral. Consequently, I am not satisfied that it has been shown that it is arguable that the primary judge fell into error as alleged in the third proposed ground.

13. The fourth proposed ground of review is that the security for costs of K5,000.00 was deposited with the Registrar of the National Court in compliance with s. 209 Organic Law. This proposed ground of review as submitted by the applicant, is related to the third proposed ground of appeal, just considered. I am not satisfied that it has been shown that it is arguable that the primary judge fell into error as alleged in the fourth proposed ground.

14. The fifth proposed ground of review was that the primary judge breached the principles of natural justice under s. 59 Constitution when he struck out certain grounds of the Election Petition founded on errors and/or omissions.

15. From a perusal of the transcript, as submitted by the first respondent, the reasons of the primary judge for dismissing or striking out these grounds of the petition were that the applicant had failed to set out or plead facts material to establishing the grounds of errors and omissions as alleged. I am not satisfied that it has been shown that it is arguable that the primary judge fell into error as alleged.

16. The sixth proposed ground of review is that the primary judge fell into error when he held that certain grounds of errors and/omissions were either immaterial errors or not proper grounds to void an election and struck out those grounds. From a perusal of the transcript, in considering this ground, the primary judge amongst others relied on s. 218 Organic Law which requires that an error or omission of an officer must affect the result of an election. I am not satisfied that it has been shown that the primary judge fell into error as alleged in this proposed ground.

17. The seventh proposed ground of review is that the primary judge fell into error when he found that certain grounds of alleged illegal practices were incompetent as they did not plead material and sufficient facts to show how the results of the election were affected or were likely to be affected. From a perusal of the transcript, I am not satisfied that it is been shown that the primary judge fell into error as alleged in the proposed ground.

18. As to the first and second proposed grounds of review, that the primary judge fell into error in not dismissing the respondents objections to competency which were served outside of the twenty one days prescribed by Rule 12 Election Petition Rules, it is settled that a court may consider an objection to competency of any proceeding before it at any time pursuant to its inherent jurisdiction. This is also the position in cases dealing with or relating to election petitions. In this regard I refer to Yama v. Amet (2010) SC1331 at [27], Kubak v. Trawen (2013) SC1250 at [6], Yagama v. Uguro (2018) SC1682, Ilaibeni v. Morris (2024) SC2633 and Elemi v. Pala (2023) N10112. In the circumstances, I am not satisfied that it has been shown that the primary judge fell into error as alleged in these proposed grounds

19. Given the above, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent in respect of the first decision or the second decision.

20. 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. It is submitted by the applicant that these factors exist in this instance.

21. In my view however, as to the First Decision, 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.

22. As to the First Decision, what is sought to be reviewed is a decision of the National Court which permitted objections to competency of an Election Petition to be heard. It is an interlocutory decision which did not affect the substantive rights of the applicant. The applicant was not in any way prevented from presenting his case against the objections to competency to the election petition and did so. In this context, exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. 

23. 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 the First Decision which did not affect the substantive rights of the applicant and in circumstances in which the applicant was able to and did present his case against the objections to competency to the election petition.

24. Similarly, in my view, as to the Second Decision, 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. 

25. As to the submission that it is in the interests of justice that the Second Decision be reviewed, for the same reasons referred to in [24] above, 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 Second Decision. As mentioned, 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. 

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

Orders

27.  The Court orders that:

a)	The application for leave to review filed on 25th May 2023 is refused.

b)	The applicant shall pay the costs of both 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 to both respondents equally forthwith in payment towards the costs to which they are entitled pursuant to order b) above.
_____________________________________________________________
Jaku Lawyers: Lawyers for the Applicant                             
Henaos Lawyers: Lawyers for the First Respondent                 
Jema Lawyers: Lawyers for the Second Respondent