SC1037

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

(1) SC Rev. No. 55 of 2008

IN THE MATTER OF AN APPLICATION UNDER S 155 (2) (B) OF THE CONSTITUTION AND IN RE PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

Between:

ANDREW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Applicant

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
Second Applicant

And:

STEVEN PIRIKA KAMA
First Respondent

MICHAEL LAIMO
Second Respondent

___________________________

(2) SC Rev. No. 56 of 2008

Between:

MICHAEL LAIMO
First Applicant

ANDREW TRAWEN, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Applicant

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELCTORATE
Third Applicant

And:

STEVEN PIRIKA KAMA
Respondent

Waigani: Injia, CJ
2009: 5th June

SUPREME COURT – practice and procedure – applications for leave to apply for review of National Court decision –objection to competency of leave application filed by respondent – applications incompetent as having filed out of time and under the doctrine of res judicata - grounds of - decisions sought to be challenged on review and proposed grounds sought to be challenged same as those raised in previous proceeding – proposed grounds of review, issues involved and reasons seeking leave do not relate to the decision the subject of current review sought – Both applications incompetent as having been filed out of time and under the principles of res judicata –applications dismissed - Sub Div 1 Supreme Court Election Petition Review Rules 

Cases Cited:

Olga v Wingti, SC Rev 5 of 2009

Counsel:

B Lomai, for Michael Laimo
J Nonggorr, for Electoral Commission 
A Manase, for Steven Kama 

5th June, 2009

1. INJIA, CJ: These are two related applications for leave to apply for review of certain decisions made in respect of EP No. 11 of 2007, made by the National Court under Part XVIII of the Organic Law on National and Local-Level Government Elections (Organic Law). The applications are made under Sub. Div. 1 of the Supreme Court Election Petition Review Rules (Petition Review Rules). Both applications are contested. The applications were heard together and my decision covers both applications.

BACKGROUND

2. In EP No. 11 of 2007, Mr Kama challenged the election of Mr Laimo as the member for South Bougainville Open Electorate in the 2007 General Elections. Justice Sevua conducted direction hearings to prepare the matter for trial. On 28th November 2007, His Honor ruled that a notice of objection to competency of the petition can only be moved in the course of the trial. 

3. The petition was tried before Justice Kandakasi. On 5th December 2007, his Honor dismissed the respondents’ objections to the competency of the petition and ordered the Petition to proceed to trial on all grounds set out in the petition except paragraph 10 of Part B.1 (b) which was withdrawn by the Petitioner. His Honor proceeded to conduct the trial. 

4. On 21 February 2008, his Honor handed down his decision. His Honor upheld the petition, voided the election of Mr Laimo and ordered a recount. His Honor ordered that the result of the recount be returned to Court in order for the Court to "declare a winner of the election unless there are real and serious issues on the results of the recount in which cases, the Court shall receive such evidence and submissions as are necessary and grant such remedies as appear appropriate including an order for a by-election if need be" (paragraph 5 of Court Order of 21st February 2008).

5. In SC Rev. No. 5 & 6 of 2008, the Electoral Commission and Mr Laimo filed separate applications seeking leave to review the three decisions of the National Court namely, Justice Sevua’s decision of 27th November 2007, Justice Kandakasi’s decision of 5th December 2007 and Justice Kandakasi’s decision of 21st February 2008.

6. After hearing the applications, on 22 August 2008, Kapi CJ dismissed both applications.

7. In September 2008, the Electoral Commission conducted a recount at Buka. The result of the recount was returned to the Court pursuant to order of 21st February 2008. Based on the results of the recount, on 9th October 2008, Kandakasi J declared Mr Kama as the duly elected member.

8. In SC Rev. 55 of 2008, the Electoral Commission seeks leave to review the same decisions of Kandakasi J of 5th December 2007 and 21st February 2008. The applicant identifies the orders of 9th October 2008, as one of the decisions sought to be reviewed but it does not set out any relevant circumstances which give rise to the challenge to that decision. Also the proposed grounds of review, the issues raised and the reasons why leave should be given set out in the application do not relate to the orders of 9th October 2008; they only relate to the decisions of 21st February 2008 and 5th December 2007. 

9. In SC Rev. 56 of 2008, Mr Laimo seeks leave to review the decision of Sevua J of 28th November 2007 and Justice Kandakasi’s decisions of 5th December 2007, and the decision of Kandakasi J of 21st February 2008. In the application, the orders of 9th October 2009 is identified as one of the decisions sought to be reviewed and (see paragraph 2.10) but the proposed grounds of review set out in paragraph 3, there are no grounds to support a challenge to review the orders of 9th October 2008. 

10. There are additional rulings and orders set out in SC Rev. 56 of 2008 which were not contained in SC Rev. 6 of 2008 such as paragraphs 2. 9-2.12 which relate to award of costs and the implications of that in terms of the continuing validity of the petition but again these go to the decision of 21st February 2008.

11. Therefore, in the present applications, the decisions sought to be challenged on review and the proposed grounds upon which they are sought to be challenged, the issues involved and the reasons why leave should be given set out in the applications for leave are essentially the same as those raised in SC Rev. 5 of 2008 and SC Rev. 6 of 2008..

OBJECTIONS TO COMPETENCY OF LEAVE APPLICATIONS

12. Mr Pirika objects to the competency of both applications which I deal with first. The same ground of objection is raised in respect of both applications and that is that the applications were not filed within 14 days from the date of final decision on 21st February 2008 thereby in breach of Rule 1 of the Petition Review Rules. Both applications were filed on 10th October 2008.

13. The applicants’ contention is that the proceedings of 9th October 2008 were a continuation of the trial proceedings and that the final decision was that given on 9th October 2009. Therefore the two applications have been filed within time.

14. The other basis of the objection is that this Court gave a final decision on the same matters raised in the present applications when Kapi CJ dismissed SC Rev. 5 & 6 of 2008. That decision is binding on the parties.

15. The applicants’ submission is that Kapi CJ did not deal with and determine the merits of those applications. The applications were dismissed on a technicality. Therefore it is open to the applicants to raise the merits of the case for determination before this Court. 

16. On the face of the material before me and judgments of Kapi CJ in SC 5 & 6 of 2008, the applications for leave in respect of the decisions of 5th December 2007 and 21st February 2008, taking the latter judgment to be final, have been filed out of time. Insofar as the two applications relate to those decisions, they are incompetent. 

17. The same cannot be said of the applications that relate to the decision of 9th October 2008. Insofar as the applications relate to the decision of 9th October 2009 the applications were filed within time. But as I have said already, the proposed grounds of review, issues involved and reasons why leave should be given pleaded in the application do not relate to the orders of 9th October 2008; they only relate to the decisions of 28 November 2007, 5th December 2007 and 21st February 2008. 

18. For these reasons, the two applications are both incompetent as having been filed out of time.

19. The other related competency issue is with regard to the application of the doctrine of res judicata. The requisite conditions of res judicata are that in a case where a Court of competent jurisdiction has made a final decision which extinguished the very foundation on which the claim is made or the right to set up an action, the result is final and conclusive and it binds the parties and every other Court. The same party cannot bring a same claim or action and seek to have the same cause of action and the same issues re-litigated before the same Court or even another Court.

20. In my view, insofar as the two applications relate to the decisions of 28th November 2007, 5th December 2007 and 21st February 2008, any purported challenge to those decisions is defeated by the principle or doctrine of res judicata. Whilst I appreciate that the two applications in SC Rev. 5 & 6 of 2008 were dismissed on technical grounds due to jurisdiction as to compliance with procedural requirements for making the applications, the decision is binding on the parties in terms of both the technical procedural aspects as well as the merits of the applications. A final determination of a cause of action on jurisdictional competency basis is determinative of the whole proceeding inclusive of the merits of the matters before the Court. 

21. There is no question that the nature of the case and circumstances of SC Rev. 55 & 56 of 2008 meet all the requisite conditions of res judicata. The applicants in SC Rev. 5 & 6 of 2008 took the National Court decision of 21st February 2008 inclusive of the interlocutory rulings of 28th November 2007 and 5th December 2007 as the final decision of the National Court on the EP No. 11 of 2007 and sought leave to review those decisions on essentially the same grounds of proposed grounds of review. The applications were heard and determined by this Court. Under the Petition Review Rules, the Court’s decision is final and cannot be questioned in any way or not subject to further review. It is not open to the same applicants to bring fresh applications seeking leave to review the same decisions of the National Court in EP No. 11 of 2007 on essentially the same proposed grounds and issues.

22. Extensive submissions, both oral and written, were made before me as to the merits of the two applications before me. One of the main issues argued was whether the proceedings of 9th October 2008 was a continuation of the trial, which was the final decision for purpose of the Petition Review Rules and from which date of decision the 14 days time period for filling application for leave for review should run. Extensive submissions were also made on the proper approach to be adopted by the Court in dealing with Petitions and competency issues in terms of broad or expanded as opposed to strict or literal approach to interpretation of relevant sections of the Organic Law such as s 206-210, s. 217 and so forth.

23. In my view, the merits of the application are open for determination if the application surpasses the jurisdiction issue or other competency issues. Issues of jurisdiction are fundamental threshold issues that remain to be determined by the Court at any stage of the proceedings, with or without being invoked by the parties. It would be an exercise in futility or mere academic exercise to proceed to the merits if the proceeding cannot survive the jurisdictional challenge. 

24. I appreciate that the issues that have been argued before quiet ably by learned counsel will be no doubt underscored by my decision on the competency and jurisdictional matters but those arguments could be resurrected before the Supreme Court in another case and proper determination made by the Court. The circumstances of the present case in particular the manner in which the critical decisions were challenged and dismissed by this Court in SCR No. 5 and 6 of 2008 is determinative the main challenges to those decisions and it is binding on everyone. The same case and issues cannot in law be resurrected under a new set of proceedings. 

25. Finally it is clear that the applicants have accepted the decision of 21st February 2008 which is inclusive of the interlocutory decisions of 28 November 2007 and 5th December 2007 as the final decision which attracts a review under the Petition Review Rules. It is on this basis that the present applications are premised. The order of 9th October 2008 appears to have been taken as a mere formal ratification of the results of the recount and nothing more. 

26. On this point, I would like to distinguish the present case from a decision I made recently where I granted leave for judicial review to an applicant to challenge the results of a recount. I am referring to the case of Olga v Wingti cited by Mr Manase in his submissions. In that case the trial judge gave a decision after a full trial on the petition. The judge did not void the election but ordered a recount, the results of which were to be presented to the Court for ratification. I granted leave for review. The substantive application was dismissed by the full Court for abuse of Court process. A recount was held. When the recount results were presented to the trial judge, the Judge conducted a further hearing involving reception of evidence, both oral and affidavit evidence. The Court made order which were different to the result of the recount. He voided the election and ordered a by-election whereas the result of the recount was that the applicant came out winner for the second time. When that happened, the final nature of the orders or the final decision given after the trial was altered. The hearing on the process of recount became a continuation of the hearing and a final decision was made after the hearing on the recount. Therefore when the applicant applied for leave to review this decision on the recount, I granted leave to review that recount. 

27. In the present case, nothing of this sort is raised or suggested in the present case even though in paragraph 5 of the order made by Judge on 21st February 2009, it expressly provided a window of opportunity for parties to challenge the manner in which the recount was conducted and the result arrived at. The Judge anticipated issues may arise on the recount process and provided avenue for a fresh hearing of some kind at the time the recount results were presented to the Court. The parties before me, in particular the applicants, take no issue with the manner in which the Judge received the recount results and declared a winner. Going by the wording of paragraph 5 of the Court order of 21st February 2008, I can only infer that no real and serious issues arose on the recount process such that they would have raised them before the Judge to determine at a hearing. If such hearing had been conducted and an order made which was inconsistent with or different to the result of the recount, that would have altered the final nature of the decision of 21st February, 2008. In the end it is clear that the proceedings of 9th October 2009 and orders made were not a continuation of the trial or altered the final nature of the decision of 21st February 2008. It appears the Judge merely ratified the result of the recount and nothing more.

CONCLUSION & ORDER

28. Therefore I find that the present applications are incompetent as being either filed out of time, (taking the decision of 28th February 2008 as the final decision inclusive of the interlocutory ruling of 5th December 2007) or defeated by the doctrine of res judicata.

29. For these reasons, I dismiss both applications with costs to the respondent namely Mr Steven Pirika Kamma.

__________________________________________________

Nonggorr & Associates: Lawyer for the Electoral Commission
Lomai & Lomai Attorneys: Lawyer for Michael Laimo
Steeles Lawyers: Lawyer for Steven Pirika Kamma