SC1712

PAPUA NEW GUINEA 
   [IN THE SUPREME COURT OF JUSTICE] 

SCREV (EP) 34 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: 
WILLIAM HAGAHUNO
   Applicant

AND:
JOHNSON TUKE
First Respondent

      AND:
       ELECTORAL COMMISSION
        Second Respondent

      Waigani: Hartshorn J 
                2018: 2nd, 3rd August

Application for leave to review

Cases cited: 
Papua New Guinea Cases

Kelly Kilyali Kalit v. John Pundari (1998) SC569 
Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 
Labi Amaiu v. Andrew Mald (2008) N3334
Waim No. 85 Ltd v. The State (2015) SC1470
Poko Kandapaki v. Enga Provincial Government (2015) SC1463 
Amaiu v. Kaupa (2017) N7004 
Auwi v. Donald (2017) N7062 
Pacific Assurance Group Ltd v. Pacific International Hospital Ltd (2017) N6992
Ganim v. Moses (2018) N7233
Pini v. Nunji (2018) N7243
Waranaka v. Maru (2018) N7346
Bede Tomokita v. Douglas Tomuriesa (2018) SC1684

Overseas Cases

Dodds v. Walker [1981] 2 All ER 609
Counsel:

Mr. L. Tangua, for the Applicant
Mr. P. Mawa, for the First Respondent
Mr. M. Ninkama, for the Second Respondent

3rd August, 2018

1. HARTSHORN J: This is a decision on a contested application for leave to review the decision of the National Court which dismissed the applicant’s election petition. The application for leave is made pursuant to Order 5 Rule 9 Supreme Court Rules 2012.

Background

2. The first respondent was declared the elected Member of Parliament for the Kainantu Open Electorate in the 2017 General Elections. The primary judge dismissed the applicant’s election petition after upholding the first respondent’s objection to competency on the ground that the Petition was filed outside of the 40 day period prescribed in s. 208(e) Organic Law on National Local Level Government Elections (Organic Law).

Application for Leave - Law

3. The criteria for the exercise of this court’s discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 at [9]. In the view of Injia DCJ (as he then was) at [11]:

“The applicant for leave for review in an election petition matter must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed.”

4. I respectfully concur with His Honour’s comments and mention that notwithstanding that an application for leave is provided for under Order 5 Rule 9 Supreme Court Rules 2012, it is the case that s. 220 Organic Law is in the following terms:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

5. As I stated in Bede Tomokita v. Douglas Tomuriesa (2018) SC1684 at [5], it is in my view, in the context of the intention of the Parliament expressed in this provision, whilst of course, respecting the paramountcy of s.155(2)(b) Constitution, that for an application for leave to review an election petition the, “…. standard of satisfaction must be set rather high”, as stated in the Supreme Court in Waim No. 85 Ltd v. The State (2015) SC1470 at [7] and Poko Kandapaki v. Enga Provincial Government (2015) SC1463 at [8].

This application 

6. The applicant submits that the primary judge fell into error in her determination of when the period of 40 days prescribed in s. 208(e) Organic Law, starts. Her Honour held that the period of 40 days starts on the date of the declaration of the result whereas the applicant submits that the primary judge should have held that the period of 40 days starts on the day after the date of the declaration.

7. The applicant submits that the primary judge’s reliance upon the Supreme Court case of Kelly Kilyali Kalit v. John Pundari (1998) SC569 was incorrect as the Court in that case did not specifically consider whether the 40 day period commenced on the day of, or the day after, the declaration.

8. The respondents’ submit that the primary judge’s reliance upon Kalit v. Pundari (supra) was correct and that the primary judge did not fall into error.

Consideration

9. At page 13 of the primary judge’s decision Her Honour said:

“36. I have read the judgement by the Supreme Court in Kelly Kilyali Kalit, and I agree that, the issue now before this Court was not raised as an issue per se before the Supreme Court. However, in reviewing the decision of the trial judge, Salika J as he then was in the National Court case of Kelly Kilyali Kalit v. John Pundari, which dealt with the preliminary issue of whether the petition was filed within the prescribed period of 40 days from the date of declaration, the Supreme Court, found no error by the trial Judge and approved his findings. The findings of the Trial Judge were, firstly, His Honour found that, 4th of July was the date of declaration of the winning candidate and secondly, in computing the 40 days, the trail (sic) Judge started counting from the 4th July and finally, found the petitioner’s petition was filed 1 day outside the 40 days period, resulting in a dismissal.

37. In my opinion, the Supreme Court in Kelly Kilyali Kalit, has settled this issue and in the absence of any other Supreme Court decisions to the contrary, I am bound by the decision in Kelly Kilyali Kalit, which says, the computation of the 40 days is calculated from the date of the declaration of the result of an election petition, including the date of declaration.”

10. From my reading of the decision in Kalit v. Pundari (supra) the issue before the Supreme Court was stated by the Court as:

“The applicant in the present matter is seeking a review of the trial judge’s findings of fact alone on the evidence, as to the date of declaration. The applicant asks us to disturb the findings of fact by the trial judge and find that the declaration was made on 5 July 1997 and not on the 4th of July, 1997 as found by the trial judge.” (my underlining)

11. Later, in arriving at its decision the Court said:

“Findings of fact alone by the trial judge in an election petition matter under the principles should not, in our view, be open to review by this Court except in the most exceptional cases where there is some gross error which is clearly manifested on the records. Even when reviewed, this Court will have to pay greater deference to the trial judge’s findings of fact …….

For these reasons, we agree with the trial judge that in the absence of any evidence of fraud, the Writ speaks for itself. We cannot find any gross error clearly apparent on the face of the record to merit a review. We dismiss the application. We confirm the decision of the trial judge that EP No 78 of 1997 should stand dismissed. Costs follow the event.”

12. In the absence of any reference to a consideration of the 40 days issue in the decision and having regard to the above extracts from the decision, it is the case, to my mind, that the only findings of the trial judge that the Supreme Court approved, was in respect of the issue that was before it. That was the finding of fact as to the date of the declaration. The Supreme Court did not appear to give its specific approval to the other findings of the trial judge. In this regard, I respectfully disagree with the comments of Kapi CJ in Labi Amaiu v. Andrew Mald (2008) N3334 in which he states that the method of calculating 40 days was approved by the Supreme Court in Kalit v. Pundari (supra).

13. I am of the view that the primary judge may have fallen into error in concluding that Kalit v. Pundari (supra) approved the trial judge’s findings including on the 40 day issue, that Her Honour was bound by the Kalit v. Pundari (supra) decision and that the 40 day issue was settled by Kalit v. Pundari (supra).

14. I am not aware of any other Supreme Court decision specifically on point and none were brought to my attention. There are however numerous conflicting National Court decisions on point: Amaiu v. Mald (supra); Amaiu v. Kaupa (2017) N7004; Ganim v. Moses (2018) N7233; Pini v. Nunji (2018) N7243; Auwi v. Donald (2017) N7062 and Waranaka v. Maru (2018) N7346.

15. I mention also that in regard to the common law of England on this point, if it may be relevant, (Sch 2.2 Constitution), in the case of Dodds v. Walker [1981] 2 All ER 609 at 610, Lord Diplock said:

“It is also clear under a rule that has been consistently applied by the courts since Lester v Garland (1808) 15 Ves 248, [1803-13] All ER Rep 436 that, in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning.”

16. Dodds v. Walker (supra) was referred to and relied upon by me in Pacific Assurance Group Ltd v. Pacific International Hospital Ltd (2017) N6992.

17. I am satisfied that the applicant has demonstrated that the primary judge may have fallen into error on a point of law and as a consequence the applicant has a serious issue on a point of law.

18. I am further satisfied that because of the lack of any other Supreme Court decision on this issue, the conflicting National Court decisions, and that the common law of England appears to favour the argument of the applicant, if leave is granted the application for review is likely to succeed. Consequently, the application for leave to review should be granted.

Orders

19. It is ordered that:

a)	The application for leave for review is granted;

b)	The costs of the applicant of and incidental to this application shall be 	paid by the respondents.
_____________________________________________________________
Baniyamai Lawyers: Lawyers for the Applicant                                         
Mawa Lawyers: Lawyers for the First Respondent                                 
Harvey Nii Lawyers: Lawyers for the Second Respondent