Alfred v Kaupa [2024] PGSC 39; SC2569 (3 April 2024)

SC2569

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) 44 OF 2023

BETWEEN:
ANDAPANGA ALFRED
NELSON BALIAWE
Applicant

AND:
JOHN KAUPA
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 6^th September
2024: 3^rd April

SUPREME COURT REVIEW - Application for leave to review a final decision in an Election Petition

Cases Cited:
Pacific Equities and Investments Ltd v. Goledu (2009) SC962
Nandali v. Curtain Bros Ltd (2012) SC1483
Vitolo v. Mararea Land Group Inc (2020) SC2006
Yama v. Singirok (2020) SC1982
Kore v. Lapa (2021) SC2103
State v. Kalaut (2021) SC2094
Sir John Pundari v. Peter Yakos (2023) SC2345
Raminai v. Pano (2023) SC2473

Counsel:
B. Lai, for the Applicant
P. Mawa, for the First Respondent
N. Onom, for the Second Respondent

3^rd April 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 Port Moresby North East 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 22^nd June 2023, the election petition was dismissed after the respondents’ objections to competency were upheld.

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 submits that this application for leave to review should be granted as:

a) the primary judge fell into error in not finding that the notices of payment of the filing fee and of the security deposit fee were filed at the same time as the petition on 15^th September 2022;

b) there is an important point of law to be determined that is not without merit;

c) the matters for review as far as they are in relation to the facts, demonstrate that there is a prima facie gross error apparent on the face of the facts of the evidence before the court and that the findings of fact by the primary judge are absurd so as to result in an injustice such that a review of those findings is required;

d) exceptional circumstances have been established and it is in the overall interests of justice, as the primary judge, “imposed an absurd reasoning to find that the petition can be lawfully and properly filed without there being evidence of payment of the filing fee and the K5,000.00 security deposit pursuant to s. 209 Organic Law. The Court did not find that the petition was filed without the payment of the mandatory fees within time, that being 40 days from the date of declaration of the first respondent. But the court did find that the evidence of payment of the mandatory fees were filed on different dates than the petition which cannot be possible as all three must be present before the Registrar in order for the proceedings to be lawfully commenced and a proceeding number issues”;

e) the primary judge imposed a strict and legalistic approach in determining the act of filing of documents on the Integrated Electronic Case Management System (IECMS).

6. The respondents submit amongst others that the applicant does not adequately satisfy the requirements of law to enable this court to grant leave; the applicant has not demonstrated a serious issue on a point of law or fact to be determined such that if leave was granted, the application would be likely to succeed and the applicant has not demonstrated that exceptional circumstances exist or that it is in the interests of justice such that leave be granted.

Consideration

Objection to competency

7. The second respondent by notice of objection to competency filed 31^st July 2023, objects to the competency of the application for leave to review on two grounds. The said notice of objection to competency, however, does not contain a reference to the jurisdiction relied upon by the second respondent to make the objection to competency. It is settled that a notice of objection to competency must contain a statement of the court’s jurisdiction to grant the orders being sought: Pacific Equities and Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483; Vitolo v. Mararea Land Group Inc (2020) SC2006; Kore v. Lapa (2021) SC2103; State v. Kalaut (2021) SC2094 and Yama v. Singirok (2020) SC1982. Consequently, in the absence of the requisite statement as to jurisdiction, the objection to competency is dismissed.

Application for leave

8. The applicant submits that the primary judge fell into error in not finding that the notices of payment of filing fee and of the security deposit fee were filed at the same time as the petition on 15^th September 2022.

9. The applicant submits that the reasoning and finding of the primary judge that the petition and two notices of payment were not filed at the same time was “absurd” as the petition cannot be filed in accordance with the lawful requirements of s. 208 (d) and (e) and s. 209 Organic Law and Rules 1, 5, 6(2) and 7 Election Petition (Miscellaneous Amendments) Rules 2022 (EP Rules) unless amongst others, the petition is lodged with evidence of the payment of the filing fee and security deposit.

10. The applicant submits further, that as a result of the primary judge’s error, there is an important point of law to be determined which is not without merit, there exists gross error apparent as to the facts, the finding of facts are absurd, there exist exceptional circumstances and it is in the interests of justice according to law for leave to review to be granted.

11. At [23] of the reasons of the primary judge, the primary judge finds that the petition was filed on 15^th September 2022. In reaching that finding, the primary judge had referred to the wording of the definition of “filed” in Rule 1 EP Rules at Rule 1 at [16] of his reasons. To my mind, the primary judge is referring to the petition being filed as that word is defined in Rule 1 EP Rules.

12. The definition of “filed” in Rule 1 EP Rules is:

“ “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;”

13. The definition of “filed” does not state that the petition cannot be filed unless at the same time there is lodged evidence of payment of the filing fee and security deposit. Further, s. 208 and s. 209 Organic Law and Rules 1, 5, 6(2) and 7 EP Rules do not provide as such either. Rules 5 and 7 EP Rules provide that a petition shall be “filed together with” and “filed with” but do not provide that a petition cannot be filed.

14. So the question of whether the requirements of s. 208 and s. 209 Organic Law and Rules 5 and 7 EP Rules in particular, have been complied with, may be considered after a petition has been “filed”.

15. Consequently, contrary to the submission of the applicant, the reasoning and finding of the primary judge is not “absurd”.

16. The applicant also raises the issue of whether the primary judge has imposed a strict and legalistic approach in determining the act of “filing” of documents on the IECMS. In regard to this issue, as to the legal basis of the IECMS, in Raminai v. Pano (2023) SC2473, in which an application for leave to review was made, at [9] to [11] I said:

“9. The IECMS Practice Direction was issued by the Chief Justice and not by the Registrar. Rule 21 EP Rules provides that the Registrar shall issue a practice direction. Moreover, s. 184 Constitution provides amongst others for the Judges to make rules of court. Section 184 Constitution does not provide for the Chief Justice or the Judges to make a practice direction.

10. On the basis that the IECMS Practice Direction was validly made however, a practice direction under our hierarchy of laws cannot amend a rule. The IECMS Practice Direction did not amend the EP Rules. This is in essence, acknowledged by the Chief Justice in his judgment in Francis Potape v. Philip Undialu (2023) N10322. At [13] of Potape v. Undialu (supra), His Honour refers to the EP Rules. At [14] His Honour refers to and sets out part of the IECMS Practice Direction. At [15] His Honour says as follows:

“Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law provisions prevail.”

11. In these circumstances, 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.”

17. Further, the fact that the filing of the two notices of payment is an administrative process over which the applicant has no control, does not detract from how “filed” as defined in the EP Rules is to be interpreted.

18. 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.

19. 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.

20. 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. This is particularly so when regard is had to the doubt that exists concerning the validity of the IECMS Practice Direction and that in any event a practice direction cannot amend a rule.

21. As to the submission that it is in the interests of justice that the Decision be reviewed, for the same reasons referred to in 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 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.

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

Orders

23. The Court orders that:

a) The application for leave to review filed on 6^th 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.
_____________________________________________________________
B. S. Lai Lawyers: Lawyers for the Applicant
Mawa Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent