SC2680

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 40 OF 2024

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

BETWEEN:
PETER YAKOS
Applicant

AND:
SIR JOHN THOMAS PUNDARI
First Respondent

AND:
THE ELECTORAL COMMISSION
Second Respondent

WAIGANI: HARTSHORN J
4, 14 NOVEMBER 2024

SUPREME COURT – PRACTICE AND PROCEDURE -Application to dismiss an application for leave to review pursuant to Order 5 Rule 37(a) Supreme Court Rules

Cases cited: 

Baindu v. Yopiyopi (2019) SC1763
Tulip Doa v. Francis Alua (2023) SC2521
Ilaibeni v. Morris (2024) SC2633

Counsel

Mr. S. Wanis for the applicant
Mr. P. Othas for the first respondent
Mr. R. William for the second respondent

1. HARTSHORN J: This is a decision on a contested application to dismiss this application for leave to review pursuant to Order 5 Rule 37(a) Supreme Court Rules. The application is made by the first respondent and is supported by the second respondent.

Background

2. The applicant Peter Yakos, seeks to review the decision of the National Court made on 23rd August 2024 which dismissed the election petition filed by him against the respondents. The election petition was dismissed when the amended objection to competency of the first respondent was upheld.

3. The election petition was disputing the declaration of the first respondent, Sir John Pundari, as the Member of Parliament for the Kompiam Ambum Electorate in the 2022 National General Elections.

This application

4. The first respondent seeks the dismissal of this application for leave to review for failure to comply with, amongst others, Order 5 Rules 10(c) and 11 Supreme Court Rules.

5. Application is made to dismiss pursuant to Order 5 Rule 37(a) Supreme Court Rules, which is as follows:

“Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-

(a)	order that the application for leave or application for review be dismissed where the defaulting party is the applicant; ….”

Order 5, Rule 10(c) Supreme Court Rules

6. Order 5 Rule 10(c) is as follows:

“10. An application for leave shall-
…..
(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; ….”

7. The first respondent submits that the application for leave to review fails to state the particulars of the decision of the National Court to be reviewed and the nature of the case in accordance with Order 5 Rule 10 (c) Supreme Court Rules.

8. As to the particulars of the decision, it is stated in the application for leave to review: when the decision was made, that it dismissed the petition and that it upheld an amended objection to competency filed by the first respondent. Further, it is stated that the election petition number is EP 16 of 2022, it is in respect of the Kompiam Ambum Electorate, the petition was dismissed as s. 209 Organic Law on National and Local Level Government Elections (Organic Law) was breached as the security deposit was paid by the petitioner five days before the filing of the petition and that s. 209 Organic Law requires payment of the security deposit fee and filing of the petition to occur on the same day.

9. I am satisfied that the particulars of the decision of the National Court to be reviewed have been stated briefly in accordance with Order 5 Rule 10(c) Supreme Court Rules. 

10. As to the “nature of the case”, it is stated in the application for leave to review that the election petition disputed the declaration of the first respondent in the Kompiam Ambum Electorate. Nowhere else in the application for leave to review, is there any mention or reference to or statement of the nature of the case, being the circumstances or facts of the case. I refer to Tulip Doa v. Francis Alua (2023) SC2521 [12] – [15] and Ilaibeni v. Morris (2024) SC2633 [17] – [21] in this regard. 

11. As I mentioned in Doa v. Alu (supra) at [12], it may be that the circumstances are contained in the affidavit in support, however, Order 5 Rule 10(c) is mandatory and requires that the application for leave to review shall, amongst others, state the nature of the case. As I am satisfied that the application for leave to review in this instance, does not state the nature of the case, Order 5 Rule 10(c) which is mandatory, has not been complied with. As to such non compliance, I reproduce [14] of Doa v. Alu (supra):

“14. As to non-compliance I refer to the judgment in Michael Kandiu v. Powes Parkop (2015) SC1597 to which I made reference at [9] in Baindu v. Yopiyopi (2019) SC1763:

“20. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:

“50.	Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non-compliance will be fatal to the Review.

51.	The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917).  Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive (2010) SC1089)” 

12. Consequently, as Order 5 Rule 10 (c), has not been complied with, the application for leave to review should be dismissed.

Order 5 Rule 11 Supreme Court Rules

13. The first respondent also submits that Order 5 Rule 11 Supreme Court Rules has not been complied with as the applicant has failed to annex to his affidavit in support of the application for leave a copy of the subject order of the National Court, as is required by Order 5 Rule 11.

14. That the subject order was not annexed to the affidavit in support of the applicant is conceded by counsel for the applicant. It was submitted however, that the subject order is annexed to the further affidavit of the applicant filed on 30th September 2024 and that the judgment annexed to the affidavit of the applicant in support, contains the required orders of the National Court.

15. Order 5 Rule 11 is as follows:

“11.	The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.”

16. The first respondent relies upon the judgment in Baindu v. Yopiyopi (2019) SC1763 in which at [9] and [10] I said:

“9. As to the submission that there has been substantial compliance with Order 5 Rule 11, as only the order was not annexed and the judgement contains the order, as I said in Tobias Kulang v. William Gogl Onglo (supra) at [19]:

“As to this submission, as a judgment will contain orders made by the judge in the course of making his judgment, this fact was not considered sufficient when the Supreme Court Rules were made otherwise, “order” would not have been included in Order 5 Rule 11. Further, it is necessary to have a copy of the order of the National Court so that, amongst others, the date when the judgment took effect may be ascertained whether on the date of direction by the Court or the date of entry. I am not satisfied that Order 5 Rule 11 Supreme Court Rules has been complied with. ……

10. Further, no application has been made by the applicant pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirement of Order 5 Rule 11 to annex a copy of the order to the supporting affidavit of the applicant. I concur, respectfully, with the following remarks of Dingake J in Wesley v. Leonard (supra) at [23]:

“23. Order 5 Rule 11 of the Supreme Court Rules is couched in mandatory terms and ought to be complied with strictly unless excused by the Court on good cause shown.””

17. In this instance it is conceded by the applicant that the order of the court the subject of the application for leave to review is not annexed to the affidavit of the applicant which supports the application for leave. Though the said order is annexed to an affidavit of the applicant filed later, notwithstanding the requirements of Order 5 Rules 11 and 14 Supreme Court Rules, no extension of time or dispensation was sought or obtained by the applicant for him to be able to file at a later date, the further affidavit annexing the said order.

18. Consequently, from a perusal of the submissions, the evidence and the case law relied upon, I am satisfied that the first respondent has satisfactorily made out that he is entitled to the relief which he seeks. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a)	The application to dismiss of the first respondent filed 20th September 2024 is upheld.
b)	The application for leave to review is dismissed.

c)	The costs of the first and second respondents of and incidental to the 	said application for leave to review shall be paid by the applicant.

d)	The applicant’s security deposit of K5,000.00 shall be paid equally to 	the respondents towards the costs to which they are entitled pursuant 	to order c) above.
_____________________________________________________________
Lawyers for the applicant:  Solomon Wanis Lawyers
Lawyers for the first respondent:   Niuage Lawyers
Lawyers for the second respondent: Niugini Legal Practice