Thomas v Bando [2024] PGSC 9; SC2537 (28 February 2024)

SC2537

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 60 OF 2023 (IECMS)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

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

BETWEEN
PETRUS NANE THOMAS
Applicant

AND
WILLIAM WAI BANDO
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Yagi, Makail & Dowa, JJ
2023: 19^th December
2024: 28^th February

SUPREME COURT REVIEW – PRACTICE & PROCEDURE – Application for dismissal of application for leave to review – Objection to competency by Notice of Motion – Supreme Court Rules – Order 11, rules 25 & 26

SUPREME COURT REVIEW – PRACTICE & PROCEDURE – Application to dismiss application for dismissal of leave to review – Counter application to objection to competency – Refusal of objection to competency by single Judge – Jurisdiction of full Court to revisit objection to competency – Relitigating of objection to competency before three-member bench Supreme Court - Abuse of process – Supreme Court Rules – Order 11, rules 25 & 26

Cases Cited:
Petrus Nane Thomas v. William Wai Bando & Electoral Commission (2023) SC2462
Petrus Nane Thomas v. William Wai Bando & Electoral Commission (2023) SC2470
Reference by Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821
Sir Arnold Amet v. Peter Yama & Electoral Commission (2010) SC1064; [2010] PNGLR 87
John Kekeno v. Philip Undialu & Electoral Commission (2014) SC1428
Dawa Lucas Dekena v. Nick Kopia Kuman & Electoral Commission (2013) SC1272
Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935
Sir John Pundari v. Peter Yoko & Electoral Commission (2023) SC2345
James Nomane v. Wera Mori & Electoral Commission (2023) SC2412
Electoral Commission v. Patrick Pruaitch & Anderson Mise (2023) SC2416

Counsel:
Mr J Kondop, for Applicant
Ms D Doiwa, for First Respondent
Mr S Dewe with Mr J Wembri, for Second Respondent

RULING ON OBJECTION TO COMPETENCY OF APPLICATION FOR LEAVE TO REVIEW

28^th February 2024

1. BY THE COURT: There are two applications before us for ruling.
   
2. The first one is by a Notice of Motion filed 27^th September 2023 where the second respondent moves the Court for the following orders:
   

“1. Pursuant to section 185 of the Constitution and Order 11 rule 9 of the Supreme Court (Miscellaneous Amendments) Rules 2022 (“SCR”), Form 15 of the SCR, with appropriate modification, be adopted and deemed sufficient to file the application pursuant to Order 11 rules 25 & 26 of the SCR, and this form be deemed appropriate to bring this application.

2. THE Applicant applies to review whole of the decision of His Honour Cannings J (learned Judge) given on 26^th September 2023 at Waigani which refused to dismiss the Application for Leave filed 28^th June 2023 for being incompetent on the proposed grounds pursued (sic) in 1 to 3 in the Amended Objection to Competency filed 20^th September 2023.” (Underlining added).
   
3. In the second case, the applicant relies on an application filed 31^st October 2023 and moves the Court for the following orders:
   

“(a) AN ORDER pursuant to Order 13, Rule 16 (1) (a) of the Supreme Court Rules, (“Rules”) and Section 155 (4) of the Constitution, that the herein proceedings be dismissed for being an abuse of process on the basis that:

(i) The Full Court does not have jurisdiction under Order 11, Rules 25 and 26 of the Supreme Court Rules to hear de novo the matter substantively determined. The orders sought in the Notice of Objections to Competency were not Directional or Interim Orders under the Rules or as envisaged under Section 5 of the Supreme Court Act that may warrant this application to be filed;

(ii) The reasoned decision of Justice Cannings delivered on 26^th September, 2023 dismissing the Objections to Competency is substantive decision which is final in nature which had the effect of determining the competency of the Leave Application and not interlocutory;

(iii) Order 5, Rule 17 of the Supreme Court Rules prohibits further application of the determinative orders which is final;

(iv) The Notice of Motion filed on 27^th September, 2023 did not comply with Order 11, Rule 26 of the Supreme Court Rules;

(v) The appeal serves no utility on the basis that Leave has been granted and Application to Review filed already.

(b) AN ORDER pursuant to Order 13, Rule 16 (1) (a) of the Supreme Court Rules, and Section 155 (4) of the Constitution, that the herein proceeding be dismissed for non-compliance of Order 11, Rule 26 of the Supreme Court Rules.

(c) AN ORDER pursuant to Order 5, Rule 40 of the Supreme Court Rules, that the costs of and incidental to this proceedings be paid for by the Second Respondent’s lawyer having carriage of this matter or Jema Lawyers, on Solicitor/Client basis to the Applicant.

(d) Alternatively, an Order for costs against the Second Respondent.

(e) Such further and other Orders this Court deems fit.”

ISSUE

4. It is clear from the applicant’s application that it is a counter application to the second respondent’s Notice of Motion on the grounds that this Court lacked jurisdiction to revisit the question of competency once it has been decided by a single judge of the Supreme Court.

5. The question raises whether a three-member bench Supreme Court can revisit the question of competency once it has been decided by a single judge of the Supreme Court at the hearing of the application for leave to review.
   

BACKGROUND FACTS

6. The undisputed facts which give rise to this question are, on 19^th June 2023 Kangwia J upheld objections by the respondents to the competency of the petition and dismissed it for not being filed within 40 days after the declaration of the result of the election, as required by Section 208(e) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).
   
7. On 28^th June 2023 the applicant filed an application for leave to review of that decision. The respondents filed objections to competency respectively. On 22^nd September 2023 the objections were heard by Cannings J as a single Judge of the Supreme Court. On 26^th September 2023 his Honour refused the objections. The ruling has been published as Petrus Nane Thomas v. William Wai Bando & Electoral Commission (2023) SC2462.
   
8. In a separate ruling on 04^th October 2023, his Honour upheld the applicant’s application for leave to review and granted leave to the applicant to review the National Court’s decision to dismiss the petition. See the full reasons for ruling in Petrus Nane Thomas v. William Wai Bando & Electoral Commission (2023) SC2470.
   
9. It was after the dismissal of the objections that on 27^th September 2023 the second respondent filed the Notice of Motion referred to at [2] supra. The first respondent did not file any Notice of Motion but supported the second respondent to have the application for leave dismissed for being incompetent.
   

JURISDICTION OF SUPREME COURT

10. The first matter we wish to comment on is paragraph 2 of the second respondent’s Notice of Motion. It states that the applicant seeks to ‘review’ whole of the decision of Cannings J delivered on 26^th September 2023. If the function of the Supreme Court comprising of three members is to ‘review’ a single Judge’s ruling on an objection to competency of an application for leave to review, the ‘review’ must be dismissed because Order 11, rules 25 and 26 of the Supreme Court Rules (“SCR”) are not expressed as conferring jurisdiction on the Supreme Court to “review” a single Judge’s decision on an objection to competency.
    
11. Rules 25 and 26 state as follows:
    

“25. A party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.”
    
12. As was held at paragraph 3 of the headnotes in the judgment of the Supreme Court in Reference by Ombudsman Commission Pursuant to Constitution, Section 19(1) (2019) SC1821:
    

“(3).........application ........made under Order 11, Rule 25 and Order 13, Rule 15.........is not an appeal or a review of the order of the single Judge; rather, it is a hearing de novo on the merits of affirming, discharging or varying the earlier order.” (Underlining added).

13. Given this, it is beyond argument that there is no right of ‘review’ from a single Judge’s ruling on an objection to competency of an application for leave to review. The Notice of Motion which seeks an order to ‘review’ the ruling of Cannings J sitting as a single Judge is an abuse of process and for this reason alone, it can be dismissed.
    
14. However, we note that in submissions, the second respondent supported by the first respondent deviated from making out a case for a ‘review’ of Cannings J’s ruling to a hearing of the Notice of Motion de no vo. Proceeding on this premise, the second respondent relies on Order 11, rules 25 and 26 of the SCR to say that they confer jurisdiction on the Supreme Court to revisit the question of competency after it has been decided by a single Judge of the Supreme Court.
    
15. According to the respondents, the term “Court” used in Rule 25 (supra) is defined in the definition provision of the SCR as “full court of the Supreme Court of Justice”. There is therefore no doubt that the Supreme Court comprising of three members has jurisdiction to revisit the question of competency after it has been decided by a single Judge.
    

TIME TO OBJECT TO COMPETENCY OF APPLICATION FOR LEAVE TO REVIEW

16. However, before deciding whether Order 11, rules 25 and 26 (supra) conferred jurisdiction on the Supreme Court to revisit a ruling on an objection to competency by a single Judge, there is a more fundamental question to answer. It is the question as to the appropriate time to object to the competency of an application for leave to review because this question turns on the question of whether it is an abuse of process of the Court to revisit the question of competency after it has been decided by a single Judge.
    
17. There is one view that a respondent may object to the competency of an application for leave to review at the hearing of application for leave to review because the question of competency goes to the question of jurisdiction of the Court. Only when it has been established that the Court’s jurisdiction has been correctly engaged that the matter can progress to a hearing proper. This view has support from case law in Sir Arnold Amet v. Peter Yama & Electoral Commission (2010) SC1064; [2010] PNGLR 87 and many subsequent cases and the inherent power of the Supreme Court under Section 155(4) of the Constitution.
    
18. This view is based on the notion that an objection to competency to a Court proceeding may be raised at any stage of the Court proceedings. It does have its benefits and disadvantages. One of the benefits is that no additional costs and time are incurred to further litigate an application for review if an objection is heard and upheld, and leave is refused at the hearing of the application for leave to review.
    
19. One of the disadvantages is that, where an objection has been refused by a single Judge of the Supreme Court, it leaves open the opportunity for a further objection to be taken before a three-member bench of the Supreme Court. This does result in additional costs and time in litigating the objection.
    
20. The other view which has the support of the SCR is that an objection to competency can be taken up at the hearing of the application for review. As to whether it can be heard prior to or together with the application for review is a matter that can be decided by the duty Judge in consultation with the parties at the Directions Hearing pursuant to Order 5, rule 28(f) and rule 36 of the SCR.
    
21. Order 5, rule 28(f) states:
    

“28. At the Directions Hearing, the Judge may consider and determine or give such directions as may be necessary to ensure prompt disposition of the application, amongst other things –

(f) objection to competency of the application.”

22. Order 5, rule 36 states:

“The Court may hear and determine the application or any objection to competency of the application on the date and time fixed for the hearing or may adjourned the hearing.”

23. There are Supreme Court cases which adopted this view. One of them is John Kekeno v. Philip Unidalu & Electoral Commission (2014) SC1428. It will be noted from the headnotes of the judgment that each respondent objected to the competency of the application for review on the grounds that the grounds of review were too general and vague. This was contrary to the requirements of Order 5, rule 19(c) of the SCR which required “The Application for Review [to] state briefly but specifically the grounds relied upon in support of the review”. The objections arose from an application to review a decision of the National Court under Section 155(2)(b) of the Constitution which upheld the respondents’ objections to competency and dismissed the petition challenging the election of the first respondent as Member for Koroba-Lake Kopiago as being incompetent.

24. It is also interesting to note at paragraph number 1 of the headnotes that the Supreme Court referred to Order 5, rule 28(f) of the SCR, the inherent jurisdiction of the Supreme Court and the cases of Sir Armold Amet v. Peter Yama (supra) and Dawa Lucas Dekena v. Nick Kopia Kuman & Electoral Commission (2013) SC1272 and held that the Court has jurisdiction to determine whether an application for review is competent at any stage of the Court proceedings.

25. In our considered opinion, among others, the following reasons lend strong support to the proposition that the appropriate time for the Court to hear an objection to competency in an election petition review proceeding under Order 5 of the SCR is at the substantive hearing of the application for review:

(i) An application for leave is not a substantive proceeding. It is merely a preliminary interlocutory procedure. At that stage and prior to leave being granted the applicant for leave has not established a locus standi to be heard on the merit of the proposed review application.

(ii) The first occasion for the Court to deal with objection to competency is at the Directions Hearing. This is provided under Order 5 rule 28(f). It should be noted that the preceding rule 27 provides that a Directions Hearing must be held within 14 days after filing of the application for review following the grant of leave.

(iii) Order 5 Rule 36 of the SCR pertains to substantive hearing of the application for review and states that during that hearing the Court may hear and determine an objection to competency.
(iv) A combined operation of rules 28(f) and 36 of Order 5 of the SCR gives certainty and clarity in relation to the practice as to when an objection to competency of an application for review can be heard.

(v) The hearing of the application for leave to review is restricted to the applicant being able to establish that there is an important point of law that is not without merit, that there is gross error as to fact that is apparent or manifested on the face of the evidence and that it is an exceptional case that is in the interest of justice, leave should be granted: Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935 and Sir John Pundari v. Peter Yakos & Electoral Commission (2023) SC2345.

(vi) There is no expressed provision under Order 5 of the SCR providing for either a review or hearing de novo on a ruling by a single Judge on refusing or dismissing an objection to competency equivalent to Order 11 rules 25 and 26 of the SCR, which applies to ordinary civil appeal proceedings.

(vii) There is no expressed provision under Order 5 of the SCR providing for either a review or hearing de novo on a ruling by a single Judge on refusing or dismissing an objection to competency equivalent to Order 11 rules 25 and 26 of the SCR, which applies to ordinary civil appeal proceedings.

CONCLUSION

26. We conclude that a better view is that a respondent should restrain from objecting to the competency of an application for leave until at the hearing proper if leave has been granted. The objection can be heard prior to or at the same time together with the application for review. Where a respondent objects to the competency of the application for leave to review, and the objection is refused, it is an abuse of process to relitigate the objection before a three-member bench Supreme Court under the guise of Order 11, rules 25 and 26 (supra). On the other hand, once the objection is refused by a single Judge, the full Court of the Supreme Court is seized of the application for review and must determine it.

27. Finally, we reinforced the principle that the Court must protect itself from abuse of its processes by litigants. This is a case where this Court must not allow the respondents to abuse the established processes in the SCR. The established processes include first a hearing of application for leave to review and if leave is granted, secondly, a respondent can object to the competency of the application for review prior to or at the same time together with the hearing of the application for review. The respondents decided to object at the leave stage and cannot have a second bite of the cherry so to speak before a differently constituted bench of the Supreme Court hoping to get a different result.

28. For the foregoing reasons we uphold the applicant’s application and dismiss the second respondent’s Notice of Motion as being an abuse of process. Given this finding, it is not necessary for us to consider the grounds of objection.

ORDER

29. The final terms of the order of the Court are:

1. The applicant’s application filed on 31^st October 2023 is upheld.
   
2. The second respondent’s Notice of Motion filed on 27^th September 2023 is dismissed as being an abuse of process.
   
3. The respondents shall pay, to the applicant, costs of the applicant’s application and second respondent’s Notice of Motion, to be taxed, if not agreed.
   
4. Time shall be abridged.
   

________________________________________________________________
Manase & Co Lawyers: Lawyers for Applicant
Makap Lawyers: Lawyers for First Respondent
Jema Lawyers: Lawyers for Second Respondent