Application by Sinai as the Electoral Commissioner [2024] PGSC 147; SC2681 (15 November 2024)

SC2681

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE

SCCA 4 OF 2024 (IECMS)

Application pursuant to
Constitution Section 18(1)

Application by

SIMON SINAI as the
ELECTORAL COMMISSIONER

WAIGANI: HARTSHORN J
25 OCTOBER, 15 NOVEMBER 2024

SUPREME COURT – PRACTICE AND PROCEDURE - Application to intervene

Cases cited

Reference by Igo Namona Oala (2011) SC1128
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202
Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016
Special Reference by Hon. Davis Steven (2019) SC1828
Reference by Hon. Belden Namah (2019) SC1896 and SC1898
Application by Arnold Alero (2021) SC2188

Counsel

Ms. N. Yomba for the Applicant
Mr. W. Pep for the Hon. Dawa Lucas Dekena

1. HARTSHORN J: This is a decision on an application to intervene in this Application. The intervention application is made by Hon. Dawa Lucas Dekena pursuant to Order 4 Rule 21 Supreme Court Rules. The intervention application is not opposed by the substantive applicant in this Application, Mr. Simon Sinai, the Electoral Commissioner.

Section 18(1) Constitution Application

2. The substantive applicant applies to interpret certain sections of the Constitution and the Organic Law on National and Local-level Government Elections (Organic Law). Further, the substantive applicant requests the Supreme Court to make declarations concerning, amongst others, the interpretation of s. 209 Organic Law and the requirement to deposit the security for costs “at the time of filing the petition”.

Application to intervene

3. The intervention applicant seeks to intervene as he submits that he has a substantial interest in the substantive application which is likely to be directly affected by the issues raised therein as:

a) in the National and Supreme Courts, the intervention applicant unsuccessfully raised the same issues which are raised in this substantive application concerning s.209 Organic Law in an objection to competency he made in an election petition. That election petition was brought against his election victory for the Gumine Open Electorate in Simbu Province, in the 2022 National General Elections (Election Petition).

b) the Electoral Commission supported the objections raised and the Electoral Commissioner herein raises the same issues in this substantive application.

c) the Election Petition is pending trial in the National Court and the outcome of this substantive application will likely have a direct impact on its result.

Consideration

4. This is an Application made pursuant to s. 18(1) Constitution. The test to be satisfied to intervene in such an Application has been considered in numerous cases by the Supreme Court. In Special Reference by Hon. Davis Steven (2019) SC1828 (Hartshorn J, Makail J, Dingake J), a s. 19(1) Constitution Reference, the Court in determining the test to be applied for a successful application to intervene, considered the cases of Reference by Igo Namona Oala (2011) SC1128, a decision of Davani J and Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016 (Injia CJ, Salika DCJ (as they then were) and Makail J), which both concerned References, now referred to as Applications, under s. 18(1) Constitution. The Court in Steven (supra) also considered In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s.19(1) Special Reference case.

5. The Court in Steven (supra) then adopted the test that for a successful application to intervene, there has to be a substantial interest and real interest which is a right or liability recognised in law, peculiar to an applicant, which is directly or likely to be directly affected by the issues in the Reference or Application.

6. In Reference by Hon. Belden Namah (2019) SC1896 and SC1898 at [12], I adopted this test. Both of these cases concerned s. 18(1) Applications. I am satisfied that this is the test to be applied here.

7. In this instance, the intervention applicant submits, amongst others, that the substantive applicant raises similar arguments concerning the interpretation of s.209 Organic Law, which were raised by the intervention applicant in the National Court and Supreme Court concerning the Election Petition. Further, the Electoral Commission supported the objections raised by the intervention applicant in the Election Petition.

8. In regard to the interest that the intervention applicant may have in the interpretation of s.209 Organic Law, that interest is not peculiar to the intervention applicant as there are many persons who are parties to election petitions who have the same interest: see [12] Application by Arnold Alero (2021) SC2188 as to similar interests.

9. Further, from the submissions made, the intervention and substantive applicants are of the same mind as to the interpretation of s. 209 Organic Law. Consequently, the intervention applicant would be repeating the arguments to be made by the substantive applicant concerning the interpretation of s.209 Organic Law. This is contrary to what is stated by the Court in In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202: see also [12] Application by Arnold Alero (2021) SC2188.

10. For the above reasons, I am not satisfied that the applicant has shown that he has the requisite substantial and real interest which is peculiar to him to intervene in this Application. Given this it is not necessary to consider the other submissions of counsel.

11. Consequently, for the above reasons, this intervention application should be dismissed.

Orders

1. The application of Hon. Dawa Lucas Dekena filed on 29^th August 2024 is dismissed.
   

b) No order as to costs.
__________________________________________________________________
Lawyers for the applicant: Adam Ninkama Lawyers
Lawyers for Hon. Dawa L. Dekena: Harvey Nii Lawyers