Nasam v Sungi [2024] PGSC 21; SC2552 (22 January 2024)

SC2552

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) 54 OF 2023

BETWEEN:
EMMANUEL WAIMOU NASAM
Applicant

AND:
Hon. JOSEPH SUNGI, MP
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 13^th December,
2024: 22^nd January

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

Counsel:

P. Mawa, for the Applicant
S. Ranewa, for the First Respondent
D. Koiam, for the Second Respondent

22^ndJanuary 2024

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

Background

2. The first respondent was declared the elected Member of Parliament for the Nuku Open Electorate in the West Sepik Province 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 12^th July 2023, the election petition was dismissed after the respondents’ objections to competency were upheld. The primary judge dismissed the petition on the basis that the petition, security for costs deposit and court filing fee receipts were filed outside of the requisite 40 days.

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.

Consideration

5. The applicant submits first, that there is an important point of law to be determined which is not without merit. This point is that the primary judge misinterpreted s. 208(e) Organic Law and Rule 1 Election Petition Rules 2022 in his interpretation of the word “filed”. It is submitted that the primary judge interpreted “filed” in a narrow and strict manner instead of adopting a large, fair and liberal interpretation. The interpretation adopted by the primary judge of “filed”, in effect imposes the responsibility for sealing a petition and endorsing a petition with an election petition number upon an applicant, when such actions are out of the control of the applicant, it is submitted.

6. Section 208(e) or any other section of the Organic Law does not define “filed”. The definition of “filed” is in Rule 1 Election Petition Rules 2017 now consolidated to Election Petition (Miscellaneous Amendments) Rules 2022. It is as follows:

“ “filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number;”

7. For the interpretation preferred by the applicant to apply, “filed” as set out in Rule 1 Election Petition Rules 2022 would be accomplished once the applicant had lodged a document, the petition, only. For the definition of “filed” to be interpreted as such, the conjunction “and” also has to include the disjunctive meaning of “or”. That is, “filed” would mean lodged or sealed or endorsed.

8. To determine whether the disjunctive meaning of “and” should be included in the definition of “filed”, the context in which “and” is used in the definition requires consideration. To my mind, it was never intended that a document, a petition or otherwise, be considered filed when it is either lodged or sealed or endorsed with an election petition number. Further, it cannot be successfully argued that the large, fair and liberal interpretation which should apply is that a document be considered filed when it is either lodged or sealed or endorsed with an election petition number.

9. Given this, the disjunctive meaning of “and” was not intended to be included in the definition of “filed”. Consequently, “filed” is to be interpreted to mean when all three elements are satisfied, being when a document, a petition or otherwise, is lodged, sealed and endorsed with an election petition number.

10. That the acts of sealing and endorsing with an election petition number are out of the control of the applicant, does not detract from how “filed” is to be interpreted.

11. I am not satisfied therefore from the above consideration of the interpretation of “filed” that it has been established that there is an important point of law to be determined or that the primary judge fell into error in this regard.

12. Further, I am not satisfied that it has been shown that there is a gross error as to fact clearly apparent.

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

14. In my view however, 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. Given this it is not necessary to consider the other submissions of counsel.

Orders

16. The Court orders that:

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

b) The applicant shall pay the costs of the 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 the respondents forthwith in the sum of K2,500.00 each in payment towards the costs to which they are entitled pursuant to order b) above.

_____________________________________________________________
Mawa Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent