Electoral Commission of Papua New Guinea v Nukundj [2024] PGSC 70; SC2602 (13 June 2024)

SC2602

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) 4 OF 2024

BETWEEN:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Applicant

AND:
WESTLEY NUKUNDI NUKUNDJ
Respondent

Waigani: Hartshorn J.
2024: 6^th & 13^th June

SUPREME COURT – practice and procedure - Application for leave to review a final decision in an Election Petition

Cases Cited:
Pacific Equities & Investments Ltd v. Goledu (2009) SC962
Nandali v. Curtain Bros Ltd (2012) SC1483
Southern Highlands Provincial Government v. Kalu (2016) SC1568
Vitolo v. Mararea Land Group Incorporated (2020) SC2006
Yama v. Singirok (2020) SC1982
William Hagahuno v. Johnson Tuke (2020) SC2018
Kore v. Lapa (2021) SC2103
Independent State of Papua New Guinea v. Kalaut (2021) SC2094
Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:
Mr. R. William, for the Applicant
Mr. I. Opahi, for the Respondent

13^th June 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court (Decision) which upheld the respondent’s election petition.

Background

2. The late Hon. Steven Pim (Mr. Pim) was declared the elected Member of Parliament for the Dei Open Electorate in the 2022 General Elections. The respondent herein was also a candidate in the election for the Electorate and petitioned Mr. Pim’s election in the National Court. The trial of the election petition concluded on 24^th June 2023 and judgment was reserved.

3. Mr. Pim died on or about 24^th September 2023. The primary judge requested for and on 8^th December 2023 heard, submissions from counsel on whether there was any utility in delivering the reserved judgment given the express provision of s. 104(2)(g) Constitution. On 13^th December 2023 the primary judge delivered an oral decision and ruled that there was utility in the court delivering a decision on the petition in circumstances where the trial was completed pending the decision of the court when Mr. Pim died and that the allegations in the petition were against the Electoral Commission, amongst other reasons. The primary judge indicated then that his written decision would be subsumed into the final decision.

4. The primary judge delivered his judgment on 7^th February 2024 and upheld the petition of the respondent. The orders of the primary judge also included that a by-election for the Dei Open Electorate be conducted by the applicant, the Electoral Commission, forthwith.

Preliminary

5. The respondent objects to the competency of the application for leave to review on various grounds. The notice of objection to competency of the respondent filed 7^th March 2024 however, does not contain a statement as to the jurisdiction upon which the respondent relies to make the objection to competency. This is conceded by counsel for the respondent.

6. 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. There are numerous Supreme Court judgments to this effect including: Pacific Equities & Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483; Vitolo v. Mararea Land Group Incorporated (2020) SC2006; Kore v. Lapa (2021) SC2103; Independent State of Papua New Guinea v. Kalaut (2021) SC2094 and Yama v. Singirok (2020) SC1982.

7. The basis for the requirement that the jurisdiction relied upon must be specified is Order 13 Rule 15 Supreme Court Rules. Order 13 Rule 15 provides that all applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. The Supreme Court has consistently stated that a notice of objection to competency must contain such a concise statement.

8. Consequently, on the authority of the cases to which I have made reference and as the jurisdictional basis relied upon is not stated in the respondent’s notice of objection to competency, the notice of objection to competency is incompetent and should be dismissed.

Application for Leave – Law

9. 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.”

10. In this instance, the applicant takes issue with the requirement that exceptional circumstances must be shown by the applicant to succeed on an application for leave to review a decision on an election petition. This is because such a requirement is subjective, it is submitted.

This application

11. The applicant only pursues proposed grounds 2.3.8 and 2.3.9. These are that the application for leave to review should be granted as the primary judge fell into error:

a) in continuing the trial of the election petition when Mr. Pim had died. This is because upon the death of a Member of Parliament, a vacancy in the Parliamentary seat for the Dei Open Electorate was created by virtue of s. 104(2)(g) Constitution. On such an event, a by-election is to occur pursuant to s. 106 Constitution;

b) in failing to conclude that upon the death of a Member of Parliament, by virtue of s. 104(2)(g) and s. 106 Constitution, a vacancy occurs and any current election petition concerning the electorate and the deceased member of Parliament, abates.

12. The respondent submits, amongst others, that the application for leave to review should not be granted as the decision of the primary judge to deliver a decision following the death of Mr. Pim was made orally by the primary judge on 13^th December 2023. The primary judge ruled then that his written decision would be subsumed into the final decision. The applicant did not file an application for leave to review the decision delivered on 13^th December 2023 within 14 days.

Consideration

13. As to the submission of the respondent concerning the timing of the filing of the application for leave to review, on the evidence, the primary judge did make a decision, albeit orally, on 13^th December 2023, that he would deliver a judgment on the election petition notwithstanding the death of Mr. Pim. This evidence is unrebutted. This was after he had heard submissions of counsel on the point on 8^th December 2023. On 13^th December 2023 the primary judge said his decision would be subsumed into the final decision. He did not indicate that his decision was subject to or on the basis of further reasons to be given in the final decision.

14. The application for leave to review was filed on 21^st February 2024, more than 14 days after the said decision of the primary judge made on 13^th December 2023 and so it is out of time in respect of the decision of 13th December 2023.

15. As the decision of the primary judge to continue to deliver the final decision notwithstanding the death of Mr. Pim, is now the only subject of the application for leave to review, those proposed grounds concerning the decision made on 13^th December 2024 should be dismissed and as a consequence, the application for leave to review should be dismissed.

16. If the application for leave to review is not dismissed on the above basis, I consider the application for leave to review further.

17. The applicant submits that the effect of s. 104(2)(g) and s. 106 Constitution read together is that upon the death of a Member of Parliament, there is a vacancy in the subject electorate and there will be a by-election. Section 104(2)(g) Constitution provides that the seat of a member of the Parliament becomes vacant on his death. Section 106 Constitution relevantly provides that if the office of an elected member of the Parliament becomes vacant an election shall be held to fill the vacancy. This is under the heading “BY-ELECTIONS”. Further, the primary judge at [7] of his written judgment refers to “the express provision of Section 104(2)(g) of the Constitution which states that a seat of a member of the Parliament becomes vacant upon the death of the member”.

18. I am satisfied in this instance that it has been shown that it is arguable that the primary judge has fallen into error as submitted by the applicant and that it has been established that there is an important point of law to be determined which is not without merit.

19. The next question then 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. The applicant also submits that exceptional circumstances should not be required by the Court as such a requirement is subjective.

21. The determination of whether exceptional circumstances exist is a subjective finding. It is not, however, unusual for the courts to engage in a determination of whether certain factors or criteria are met on a subjective basis. Numerous statutes require a court to make a subjective finding. The following statutory provisions are examples:

“special circumstances”:

s. 18 Supreme Court Act; ss. 63(4), 65(2) and 65(6)(a) Lawyers Act; ss. 20(3) and 30(6) Land Act

“exceptional circumstances”

ss. 77(12)(b) and 97(23)(c) Goods and Services Tax Act; s. 14(5) Claims By and Against the State Act.

22. Further, the court has determined subjective tests for certain circumstances. This is evident in the criteria for an application for leave to review a non-election petition matter. I refer to Southern Highlands Provincial Government v. Kalu (2016) SC1568, amongst other cases, in this regard.

23. I am satisfied therefore that it is not unusual and not inappropriate for this Court to determine whether certain factors or criteria are satisfied, on a subjective basis.

24. As to whether exceptional circumstances exist, in my view 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.

25. In this instance, what is sought to be reviewed is a decision of the National Court which amongst others, ordered a by-election for the Dei Open Electorate. A by-election is what the applicant submits should occur consequent upon the death of Mr. Pim and is what would likely be ordered if a substantive review of the Decision was successful. So if a substantive review of the Decision was successful, the result would likely still be the same as the result ordered by the primary judge in the National Court – a by election.

26. Further, to my mind, it is not in the interests of justice that the application for leave to review should be granted for the same reasons referred to in [25] above. 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.

27. Consequently, the application for leave to review should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

28. The Court orders that:

a) The amended application for leave to review filed 5^th March 2024 and this proceeding is dismissed.

b) The applicant shall pay the costs of the respondent of and incidental to the said application for leave to review save that each party shall pay their own costs of and incidental to the objection to competency of the respondent.

c) The applicant’s security deposit of K5,000.00 shall be paid to the respondent forthwith.
_____________________________________________________________
Niugini Legal Practice: Lawyers for the Applicant
Simpson Lawyers: Lawyers for the Respondent