Dilu v Onglo [2024] PGSC 96; SC2626 (9 September 2024)

SC2626

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP (EP) NO 10 OF 2024

MUGUWA DILU
Applicant

V

WILLIAM GOGL ONGLO
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Lindsay J, Berrigan J & Narokobi J
2024: 29th August and 9th September

ELECTION PETITION REVIEWS – application for dismissal of Supreme Court notice of motion on ground of abuse of process – Supreme Court Rules 2012, Order 13 rule 16(1)(a) – whether there can be any further proceedings after decision of single Supreme Court Judge granting leave for review of decision of the National Court in an election petition – Supreme Court Rules 2012, Order 5 rule 17.

The Applicant filed an Application on 6 August 2024, asking the Court to dismiss the First Respondent’s Notice of Motion filed on 5 July 2024 and his related Amended Application filed on 8 July 2024. The Application’s jurisdictional basis is Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012, which grants this Court power to summarily dismiss a matter on application. The Application to dismiss the First Respondent’s Notice of Motion and Amended Application is premised on Order 5 Rule 17 of the Supreme Court Rules, preventing review of a decision after grant or otherwise of an application for leave to review an Election Petition decision of the National Court.

Held:

(1) A Supreme Court single judge’s grant or refusal of leave to review an Election Petition decision of the National Court, is final and is not subject to a further review (Supreme Court Rules 2012, Order 5, Rule 17 applied).

(2) It is an abuse of process to seek to challenge an application for leave to review when that application for leave has been granted.

(3) The Application to dismiss the First Respondent’s Notice of Motion filed on 5 July 2024 and the Amended Notice of Motion filed on 8 July 2024 is upheld pursuant to Order 13, Rule 16(1)(a) of the Supreme Court Rules with costs awarded on a solicitor client basis against the First Respondent as he was forewarned prior to the filing of the Application to dismiss.

Cases Cited
Electoral Commission v Pruaitch (2023) SC2416
Nasam v Sungi (2024) SC2548
Nupiri v Powi (2024) SC2570,
Powi v Kaku & Electoral Commission (2019) SC1856
Rumet v Marat (2023) SC2484
Thomas v Bando (2024) SC2537

Counsel
G Gileng, for the Applicant
I Emmanuel, for the First Respondent
R William, for the Second Respondent

9th September 2024

1. BY THE COURT: Two Applications and a Notice of Motion were listed before us for hearing. We decided that we should hear the Application filed by Muguwa Dilu filed on 6 August 2024 first, as the outcome of that application will resolve whether the Notice of Motion filed by William Gogl Onglo on 5 July 2024 should be dismissed. If the Notice of Motion is dismissed it will render the Amended Application also filed by William Gogl Onglo unnecessary, and subsequently dismissed too (filed on 8 July 2024).
   
2. To avoid confusion in the identification of parties we shall refer to Muguwa Dilu as the Applicant, William Gogl Onglo as the First Respondent, and the Electoral Commission of Papua New Guinea as the Second Respondent. It should be noted that the Second Respondent supports the Applicant.
   
3. The Application filed on 6 August 2024 is asking the Court to dismiss the First Respondent’s Notice of Motion filed on 5 July 2024 and his related Amended Application filed on 8 July 2024. The Application’s jurisdictional basis is Order 13 Rule 16(1)(a) of the Supreme Court Rules 2012, which grants this Court power to summarily dismiss a matter on application.
   
4. The Applicant and the First Respondent were candidates in the Kundiawa/Gembogl Open electorate of Simbu Province in the 2022 National General Elections. The First Respondent successfully petitioned the National Court and overturned the election of the Applicant, where the National Court, amongst other orders made, ordered a recount. The Applicant being aggrieved by the decision of the National Court now seeks a review of the National Court’s decision in the Supreme Court.
   
5. The Application to dismiss the First Respondent’s Notice of Motion and Amended Application is premised on Order 5 Rule 17 of the Supreme Court Rules, preventing review of a decision after grant or otherwise of an application for leave to review. That provision states:
   

A decision to grant or refuse to grant leave is final and shall not be subject of further review.

6. The short summary of the facts giving rise to the Application was that Justice Makail sitting as a single judge of the Supreme Court heard two applications on 19, 20 and 21 June 2024, namely an application for leave to review the decision of the National Court moved by the Applicant and a related amended objection to competency of that application filed on 18 June 2024 by the First Respondent. On 1 July 2024 Justice Makail granted leave to the Applicant and dismissed the First Respondent’s objection to competency.
   
7. A subsequent objection to the competency of the application for leave was filed by the First Respondent on 5 July 2024 through a Notice of Motion, this time for hearing before the Full Court. The Applicant now seeks to dismiss the First Respondent’s Notice of Motion, on the basis that after leave for review has been granted, it is not subject to review, applying Order 5 Rule 17 of the Supreme Court Rules earlier quoted.
   
8. It is not disputed that the Notice of Motion is filed in similar terms to the earlier Motion filed on 18 June 2024 that was dismissed by Justice Makail on 1 July 2024. The objective of the current motion filed on 5 July 2024 is to challenge the grant of leave, for example one of the orders it seeks is to have the Application for Leave to Review filed on 14 June 2024 be declared as incompetent. Again, this is the Application for Leave that Justice Makail heard and granted leave on 1 July 2024.
   
9. The Applicant submits that once a single judge of the Supreme Court has made the decision on leave whether granting leave or otherwise, that decision is final and is not subject to a further review. In the Applicant’s view, the First Respondent in his Notice of Motion filed on 5 July 2024 is in effect reviewing the decision of Justice Makail. Order 5, Rule 17, is in clear and mandatory terms. What the First Respondent seeks in his Notice of Motion runs contrary to the clear terms of the Rules.
   
10. The Second Respondent urges the court to have regard to the case of Nasam v Sungi (2024) SC2548, where the Supreme Court held as follows:
    

(1) Order 5 rule 17 of the Supreme Court Rules manifests a clear intention to prohibit any appeal against or review of the single Judge’s decision, and to prohibit also making the same application to the full court of the Supreme Court seeking the same relief sought before the single Judge.

(2) Order 11 rules 25 and 26 must be interpreted subject to the specific prohibition imposed by Order 5 rule 17.

(3) Order 5 rule 17 does not provide for any requirements that can be dispensed with under Order 5 rule 39.

(4) Nothing in Order 5 involves any unwarranted or unconstitutional constraint on exercise of the power of review in s 155(2)(b).

11. The Second Respondent further submits that the views of the Supreme Court expressed in Nasam v Sungi were followed in Nupiri v Powi (2024) SC2570, Electoral Commission v Pruaitch (2023) SC2416, Rumet v Marat (2023) SC2484, Nomane v Mori (2023) SC2412 and Thomas v Bando (2024) SC2537.
    
12. The First Respondent submits to the contrary. He relies on the case of Powi v Kaku (2019) SC1856, citing the decision of learned Deputy Chief Justice Kandakasi to support his contention that there is nothing preventing him from coming to three judges with his Notice of Motion:
    

24. With the greatest respect, I do not find these views as correctly representing the law for three main reasons. Firstly, none of these decisions had regard to the fact that all decisions of the National Court are subject to the review powers of the Supreme Court under s.155(2)(b) of the Constitution. This power cannot as we already noted, be restricted or removed by any law, let alone an inferior law, such as O.5, r.7 of Rules. Only the Constitution itself can restrict or remove that power. As long as the definition of the word “Decision” in r.7 exists, it has the effect of restricting or removing the review powers vested in the Supreme Court by s. 155 (2) (b) of the Constitution. Clearly, this is contrary to the provisions of s. 155 (2) (b) of the Constitution and it is therefore unconstitutional. It is thus untenable for an inferior law to override the provisions of s. 155 (2) (b) of the Constitution. Consequently, it follows that, to the extent the various single Judge decisions of this Court rely on or have had regard to the provisions of O.5, r.7 of the Rules to arrive at their decisions, they operate against the constitutional dictates of s. 155 (2) (b) of the Constitution. Hence, my view that, those earlier single Judge decisions do not correctly represent the law. As such, they can neither be allowed to stand nor permitted to be followed.

13. In our view the First Respondent’s submission should be rejected. The decision in Powi v Kaku preceded the amendments to the Rules in 2022: see Rumet v Marat, supra at [27]. We are persuaded that the Supreme Court’s decision in Thomas v Bando resolves the issues raised squarely in this case. As the Supreme Court explained, the following procedures govern when an objection to competency should be made at [25]:
    

(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.

14. The First Respondent’s Notice of Motion is an application de novo, challenging the competency of the Application for Leave. But leave has already been granted. To put it simply, there is nothing to challenge the competency of. There is no longer any application for leave on foot to challenge.
    
15. In short, it is a clear abuse of process to seek to challenge an application for leave to review when that application for leave has already been granted and the decision granting leave is final.
    
16. From the foregoing we are of the unanimous view that the application to dismiss the Notice of Motion filed on 5 July 2024 and the Amended Application filed on 8 July 2024 should be upheld.
    
17. Both the Applicant and the Second Respondent warned the First Respondent that the application should be withdrawn in view of the Supreme Court authority referred to above and that they would be seeking costs on a solicitor-client basis in the event the matter proceeded to hearing and was dismissed. Accordingly, we order that the First Respondent pays the costs of the Applicant and the Second Respondent on a solicitor client basis, to be taxed if not agreed.
    
18. Our formal orders are that:
    
    1. The First Respondent’s Notice of Motion filed on 5 July 2024 and the Amended Application filed on 8 July 2024 are dismissed.
    2. The First Respondent shall pay the Applicant and the Second Respondent’s costs on a solicitor client basis, to be taxed if not agreed.
    3. The time for the entry of these orders is abridged.
       

Judgment and orders accordingly.

Gileng & Co Lawyers: Lawyers for the Applicant
Emmanuel Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent