SC1207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SC Review No. 30 of 2012

BETWEEN:

JOHN PUNDARI
Applicant

AND:

LUCAS NEAH
First Respondent

AND:

ROMALO BAPU, District Returning Officer
for Kompiam Ambun
Second Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Third Respondent

Waigani: Salika, DCJ
2012: 05th, 18th, 24th October

SUPREME COURT – Applicant for dispensation of Rule 1 of Supreme Court Election Petition Review Rules (SCEPRR) – Rule 1 is a jurisdictional clause – cannot be dispensed with.

Cases Cited:

Waranaka v Dusava (2008) SC 942
Simon v Kapris (2012) SC1206

Counsel:

Mr D Dotaona, for the Applicant
Mr R Mann-Rai, for the First Respondent
Mr H. Viyogo, for Second and Third Respondent

24th October, 2012

1.	SALIKA DCJ: INTRODUCTION: This is an application for leave for judicial review of a decision of the National Court given on 26 September 2012 in EP No. 21 of 2012 in the matter of Lucas Neah v John Thomas Pundari and Romala Bapu, Returning Officer for Kompiam-Ambun Open Electorate and the Electoral Commission of PNG.

2.	 The decision is now being sought to be reviewed was an interlocutory decision refusing to dismiss the petition.

3.	 The application was filed on October 1, 2012 and because the decision sought to be reviewed is an interlocutory ruling or decision and not a final decision, the applicant first seeks to dispense with the requirements of Rule 1 of the Election Petition Rules of 2012 as suggested by the Supreme Court in Waranaka v Dusava (2008) SC 942.

4.	 By this application the applicant seeks the following orders:

APPLICATION will be made to the Supreme Court, Waigani at am/pm on the day of 2012 for the following orders:

1.	Pursuant to Rule 32 of the Supreme Court Election Petition Review Rules 2002 (as amended) (the Rules) an Order that the Court dispense with compliance with the requirements of Rule 1 of the Rules thus enabling the Applicant to apply for leave to review a decision made on a preliminary ruling in EP No. 21 of 2012 Lucas Neah v John Thomas Pundari & Others by Makail J. rather than a review of a final decision.

2.	Pursuant to s155(4) of the Constitution until the determination of the substantive review or further order an Order to be made staying the proceedings in EP No. 21 of 2012 Lucas Neah v John Thomas Pundari & Others.

3.	Costs the cause.

4.	Such further or other orders as the Court deems fit.

5.	Time be abridged to the time of settlement by the Registrar which shall take place forthwith.

JURISDICTION

5.	Does this Court have jurisdiction to review preliminary or interlocutory decisions of the National Court arising from Election Petitions. 

6.	The applicant relies on the decision of Injia CJ sitting as a single Supreme Court in Waranaka v Dusava (2008) SC 942 where he said:

"I do not see any other way around the strict requirement of r 1 that the decision must be a final decision on a petition except by way of the procedure prescribed in r 32 which provides for the Court's power to dispense with the requirements of any of the rules in the Petition Review Rules. If an applicant intends to seek a review of such decision, particularly if an important point of procedural or substantive law is raised, the proper procedure to be invoked is set out in r 32 of the Petition Review Rules. The applicant must apply for and obtain an order dispensing with the requirement of r 1 and obtain leave to challenge the preliminary ruling. The application should be made by Motion in the application for leave, within the 14 days requirement in r 7. A ground in an application for leave for review which challenge such preliminary ruling without obtaining the necessary dispensation under r 32 is incompetent: see Olga v Wingti (2008) SC 938."

7.	Rule 1 of the Supreme Court Election Petition Rules says a party aggrieved by a "decision" of the National Court in an election petition shall file an application in the Supreme Court under s 155 (2)(b) of the Constitution.

8.	 A "decision" in that context refers to a final decision and not a preliminary or an interlocutory ruling, judgment or order.

9.	In this case the applicant sought to dismiss the petition because he was not served the petition. That application was dismissed by the National Court.

10.	The substantive grounds of the petition still remain to be argued.

11.	The Supreme Court Election Petition Review Rules (SCEPRR) give no jurisdiction to the Supreme Court to review preliminary or interlocutory decisions of the National Court, arising from Election Petitions.

12.	The Statement or suggestion made by the Chief Justice in Waranaka v Dusava (2008) SC 942 is by way of an obiter dictum or an observation or a suggestion in my respectful view and is therefore not binding on me.

13.	The suggestion needs a closer examination and in that regard I take note of the legislative intent in s 220 of the Organic Law on National and Local Level Government Elections.

14.	It says:

"A decision of the National Court is final and conclusive and without appeal and shall not be questioned in any way"

15.	The relevant Organic Law prohibits aggrieved persons from appealing the decision of the National Court in Election Petition matters.

16.	The second part of s220 of the Organic Law says "and shall not be questioned in any way ". Those words in my opinion would ordinarily also apply to judicial reviews, meaning that there can be no judicial reviews of the decisions of the National Court in Election Petition matters.

17.	However, an aggrieved party from a decision of the National Court in an Election Petition brought under Part XVIII of the Organic Law may file an application in the Supreme Court under s 155 (2) (b) of the Constitution for judicial review but such an application must be with leave only.

18.	Section 155 (2) (b) says: 

The Supreme Court – has an inherent power to review all judicial acts of the National Court; 

19.	Rule 1 of the SCEPRR gives effect to s 155 (2) (b) of the Constitution and Rule 2 says an application for review must be with leave.

20.	Rule 32 of the SCEPRR says that the Court may dispense with compliance with any of the requirements of Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.

ISSUE

21.	The critical issue here is whether Rule 1 of SCEPRR can be dispensed with.

22.	Rule 1 in my view is a jurisdictional clause and as such cannot be dispensed with readily. If it is dispensed with, the entire SCEPRR will no longer apply or will no longer come into play at all. Section 155 (2) (b) of the Constitution will be invoked on its own right where different considerations apply.

23.	Rule 2 of the SCEPRR is also important here because it is this rule that makes "leave", a condition precedent in such an application.

24.	 The Court may dispense with the "leave" requirements because the Organic Law does not specifically require it.

25.	But if "leave" is dispensed with the entire scheme of the SCEPRR in my respectful view will be defeated. Election Petitions are seasonal. They only come about after a National Election and must be dealt with expeditiously. That is why strict requirements are necessary in an Election Petition.

26.	The answer to the question – Can Rule 1 of the SCEPRR be dispensed with is in my view this – it cannot be dispensed with, without affecting the entire scheme under the rules. There is nothing in Rule 1 to dispense with. It is a jurisdictional clause and once it is dispensed with the Rules become nugatory in effect.

27.	In this case the applicant has applied for dispensation of Rule 1 of the SCEPRR. The application relates to a preliminary decision given by the National Court in an Election Petition under Part XVIII (Disputed Elections and Returns etc) of the Organic Law.

28.	The effect of dispensing with the Rule 1 is that it is not there anymore for the time being and the rest of the Rules cannot come into play without Rule 1 when that happens.

29.	There is nothing or no requirement to dispense with in Rule 1, in my respectful view and it is not a tenable proposition to dispense with Rule 1 in Election Petition matters.

30.	On the issue of Jurisdiction therefore I repeat what I said in John Simon v Gabriel Kapris (2012) SC1206 that the SCEPRR do not provide for judicial review from interlocutory judgments or decisions in the National Court.

31.	Accordingly as there is no jurisdiction in this court to review interlocutory decisions of the National Court in Election Petition matters, I dismiss this application.

32.	I need not discuss the merits or demerits of the other issues raised in this application, because the applicant has not gotten over the threshold issue of jurisdiction.

33.	The application for leave for judicial review of an interlocutory decision and the application for dispensation of Rule 1 of SCEPRR is therefore refused.

34.	Costs are awarded to the Respondent to this application.

________________________________________

Dotaona Lawyers: Lawyer for the Applicant
Warner Shand Lawyers: Lawyer for the First Respondent
Nonggorr William Lawyers: Lawyer for the Second & Third Respondents