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Dua v Kool [2018] PGSC 106; SC1756 (21 December 2018)

SC1756

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 45 OF 2018

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

BETWEEN:
MICHAEL BOGAI DUA

Applicant

AND:
NOAH KOOL
First Respondent

AND:

ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

Second Respondent

Waigani: Hartshorn J
2018: 20^th & 21 December

Application for leave to review

Cases Cited:

Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153
Fr. Simon Dumarinu v. Sam Akoita (2018) SC1748

Counsel:

Mr. C. Gagma, for the Applicant
Mr. G. Pipike, for the First Respondent
Mr. A. Kongri, for the Second Respondent

12^th November, 2018

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court. The decision was amongst others, to uphold the petition and to order a recount of votes (Petition Decision).

Background

2. The applicant was declared the elected Member of Parliament for the Simbu Provincial Electorate, in the 2017 National Elections. The first respondent was the runner-up. The first respondent filed an election petition challenging the applicant’s election. Following the trial of the election petition, the primary judge upheld the petition and ordered a recount of the votes. The primary judge also ordered that the final result of the recount shall be presented to the Court for further hearing. Further, the applicant was ordered to remain as the Governor of Simbu Province until the completion of the recount and presentation of the result to the Court for consideration. Costs of the petition were reserved until further order.

Preliminary

3. The applicant relies upon s. 155(2)(b) Constitution for leave to review the Petition Decision. The Supreme Court Rules, Order 5 Rule 8 and 9, provide for an election petition review and that leave is required. That is in respect of a decision of the National Court in an election petition brought under Part XVIII, Organic Law on National and Local-Level Government Elections. Order 5 Rule 7 Supreme Court Rules provides that:

“Unless expressly stated otherwise in this division:-

“Decision” means a final decision of the National Court made after the hearing of an election petition or an order dismissing the petition under Rule 18 of the National Court Election Petition Rules 2002 (as Amended).”

4. To my mind, the Petition Decision, is not a final decision. This is because a recount is ordered and then the final result of the recount is to be presented to the Court for a further hearing. This necessitates another hearing. Further, costs of the petition are reserved until further order. The Petition Decision does not finally determine the matter in the National Court as at least one further hearing is necessary. Consequently, it does not finally dispose of the rights or issues of and between the disputing parties: Stephen Punagi v. Pacific Plantation Timber Ltd (2011) SC1153; Fr. Simon Dumarinu v. Sam Akoita (2018) SC1748

5. Consequently, as it is not a final decision it is not a “Decision” in respect of which an election petition review may be filed under Order 5 Rule 8 Supreme Court Rules or in respect of which leave may be sought.

6. The applicant has not obtained a dispensation with the requirements of the Supreme Court Rules to permit him to be able to apply for leave to review a decision that does not fall within “Decision” in Order 5 Rule 7 Supreme Court Rules. He has “not done any act required to be done by or under the rules of this division” in Order 5 Rule 37(a) Supreme Court Rules. Consequently, a Judge may on his own motion order that the application for leave be dismissed.

7. This application for leave to review should be dismissed. Given the above it is not necessary to consider the other submissions of counsel.

Orders

8. The Court orders that:

a) The application for leave for review is dismissed;

b) The costs of the first respondent of and incidental to this proceeding shall be paid by the applicant.
____________________________________________________________
Gagma Legal Services: Lawyers for the Applicant
GP Lawyers: Lawyers for the First Respondent
Kongri Lawyers: Lawyers for the Second Respondent