Nupiri v Powi [2024] PGSC 33; SC2570 (27 March 2024)

SC2570

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) NO. 52 OF 2023

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF DISPUTED RETURN FOR THE SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN:
PETER NUPIRI
Applicant

AND:
WILLIAM POWI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Gavara-Nanu J, David J & Dingake J
2024: 27^th March

PRACTICE AND PROCEDURE – Order 5 Rule 17 of the Supreme Court Rules – Appeal against a single judge of the Supreme Court’s decision refusing leave to review the decision of the National Court is not permissible – Appeal dismissed.

Cases Cited:

Electoral Commission v Patrick Pruaitch (2023) SC2416
Lady Ni Cragnolini & Teddy Taison v Henry Leia (2023) SC2464

Counsel:

Mr. Brendan Lai, for the Applicant
Mr. Puyan Rajiv, for the First Respondent
No Appearance, for the Second Respondent

27^th March 2024

1. BY THE COURT: The issue that sharply falls for determination before us is whether a decision of a single Judge of the Supreme Court refusing to grant leave to review the decision of the National Court is susceptible to further review.
   
2. A crisp background to this matter will put the issue as framed above into sharp focus.
   
3. The Applicant and the First Respondent contested for the Southern Highlands Provincial Seat in the 2022 National Elections.
   
4. The First Respondent was declared the winner of those elections.
   
5. On the 23^rd of September 2022, the Applicant being aggrieved by the decision of the Second Respondent to declare the First Respondent the winner filed a petition under EP No. 91 of 2022 – Peter Nupiri v William Powi & Electoral Commission.
   
6. On the 7^th of July 2023, the National Court heard and upheld the objections based on Section 209 of the Organic Law and dismissed the petition.
   
7. On the 19^th of July 2023, the Applicant filed an application for leave to review the decision of the National Court referred to above.
   
8. The leave application came before Anis J, sitting as a single Judge of the Supreme Court. The learned Judge dismissed the application on the 18^th of September 2023.
   
9. On the 5^th of October 2023, the Applicant filed a Notice of Motion under Order 11, Rule 25 and 26 of the Supreme Court Rules (SCR) seeking to review the decision of Anis J. referred to above.
   
10. The First and Second Respondents object to the competency of the review on varied grounds which we have considered.
    
11. We consider that it is not necessary to deal with each and every ground relied upon by the First and Second Respondent in contending that the review is incompetent, save for only one ground, namely, that the review is prohibited by Order 5 Rule 17 of the SCR, which if successful, would be dispositive of this review and or appeal before us.
    
12. We turn now to consider the question whether review against the decision of a single Judge of the Supreme Court is susceptible to review and or appeal.
    
13. The crux of the Respondents’ contention is that the Supreme Court lacks jurisdiction to review the grant of or refusal of leave for judicial review in election petition matters where an application for leave to review has already been determined by a single Judge of the Supreme Court.
    
14. The Applicant on the other hand contends that whilst ordinarily Order 5 Rule 17 of SCR, precludes the Applicant from seeking to review the decision of the single Judge, in the circumstances of this case, where the Applicant alleges denial or absence of procedural fairness, a review and or appeal is permissible.
    
15. The Respondents have cited to us several decisions of this Court to support their contention that review against the decision of a single Judge of the Supreme Court granting or refusing leave for judicial review in election matters is not permissible. The Respondents seem to place heavy reliance on the case of Electoral Commission v Patrick Pruaitch (2023) SC2416, where the Court held in effect that a review is not permissible.
    
16. The Applicant also relied on several decisions of this Court to persuade us that, in the circumstances of this case, where it is alleged that the single Judge of the Supreme Court denied the Applicant procedural fairness, this Court should hold that review and or appeal against the decision of a single Judge, although not ordinarily available, is permissible in this case.
    
17. The Applicant placed heavy reliance on the case of Lady Ni Cragnolini & Teddy Taison v Henry Leia (2023) SC2464, which emphasized the importance of the right to be heard.
    
18. We have considered all the authorities relied upon by the parties in support of their respective arguments.
    
19. We consider that Order 5 Rules 17 speaks for itself. It says:
    

“17. A decision to grant or a refusal to grant leave is final and shall not be subject to further review.”

20. The above provision is clear as it could be. It is not hedged with any qualifications or conditions.
    
21. In the most recent case of Electoral Commission v Patrick Pruaitch (2023) SC2416, this Court made it clear that review against the decision of a single Judge to refuse to grant leave is not susceptible to further review. The Court went further and stated that Order 5 Rule 17 also prohibits moving a motion under Order 11 Rule 25 of the Supreme Court Rules, seeking orders to overturn the decision of the single Judge.
    
22. We associate ourselves with the decision of this Court in the case of the Electoral Commission v Patrick Pruaitch (supra).
    
23. We have considered the authorities cited by the Applicant particularly the case of Lady Ni Cragnoli & Teddy Tasion v Henry Leia (2023) SC 2464, and do not consider the facts of that case to be similar to this case. In our respectful opinion the decision of Anis J, was not infected with any procedural unfairness.
    
24. In the result, we conclude that the Applicant’s Notice of Motion filed on the 5^th of October 2023, pursuant to Order 11 Rule 25 and 26 of SCR is incompetent for offending Order 5 Rule 17 and is therefore liable to be dismissed.
    
25. We make the following orders:
    
    1. The Applicant’s Notice of Motion filed on the 5^th of October 2023 is dismissed.
       
    2. The Applicant shall pay costs to the Respondents, on a party-to-party scale, as may be agreed or taxed.
       

_______________________________________________________________
B.S. Lai Lawyers: Lawyer for the Plaintiff/Applicant
Banyamai Lawyers: Lawyer for the First Respondent
No Appearance for the Second Respondent