SC2447

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

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

SCREV (EP) 31 OF 2023

BETWEEN:
SIR PETER IPATAS
Applicant

AND:
LAKEN LEPATU AIGILO
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

  Waigani: Hartshorn J. 
           2023: 10th, 17th July

SUPREME COURT REVIEW - Application for leave to review an interlocutory decision in an Election Petition

Cases Cited: 
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No. 2) [1982] PNGLR 44 
Malipu Balakau v. Paul Torato and Anor [1983] PNGLR 242
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345 
James Nomane v. Wera Mori (2023) SC2414

Counsel
Mr. G. Manda and Mr. M. Alyata, for the Applicant
Mr. L. L. Aigilo, the First Respondent, in person
Mr. N. Onom, for the Second Respondent

17th July 2023

1. HARTSHORN J: This is a decision on a contested application for leave to review an interlocutory decision of the National Court (Decision). The National Court, after hearing the application to dismiss the election petition, contained in the further amended notice of motion of the first respondent now applicant Sir Peter Ipatas, dismissed the application and ordered that the matter was adjourned for a pre-trial conference. The application for leave to review is opposed by the first respondent Mr. Laken Aigilo and supported by the second respondent the Electoral Commission.

Background

2. The applicant was declared the elected Member of Parliament for the Enga Provincial Electorate in the 2022 General Elections. The first respondent was also a candidate in the election for the Electorate and petitions the applicant’s election in the National Court. The application to dismiss the election petition was heard and the primary judge refused to dismiss the election petition.

Application for Leave - Law

3. In Sir John Pundari v. Peter Yakos (2023) SC2345, I considered the law on an application for leave to review an election petition at [3] to [13]. At [3], [4], [11] and [13] I stated the following:

“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 (Injia DCJ as he then was).

4. 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 on National and Local-level Government Elections (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.”
……..
11. For this Court to give a fair and liberal meaning to and to follow the clear wording of s.220 Organic Law, to give due recognition to the intention of Parliament as enunciated in s.220 whilst recognising the paramountcy of s.155(2)(b) Constitution and the overall interests of justice, an applicant must establish that exceptional circumstances exist before leave to review under s.155(2)(b) Constitution is granted. In my view, to permit a case where exceptional circumstances have not been established to be granted leave, renders the latter part of the wording of s.220 Organic Law otiose and is to ignore the fair, liberal and clear meaning of section 220 and is to ignore the intention of Parliament as expressed in section 220.
……..
13. Consequently, given the decision in Hagahuno v. Tuke (supra) and the other matters referred to, in my view the criteria for the exercise of this Court’s discretion on an application for leave to review an election petition or decision made therein, are whether there is an important point of law to be determined which 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 and in any event, whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.”

4. The applicant submits that exceptional circumstances do exist in this instance and that it is in the interests of justice that the leave to review sought should be granted. The applicant further submits that it is not necessary for an applicant seeking to review an interlocutory decision in an election petition to show that there exist exceptional circumstances and that a review is warranted in the interests of justice. 

This application

5. The applicant submits that the primary judge fell into error in the exercise of the Court’s discretion in not dismissing the election petition, on numerous grounds. In essence, these grounds are amongst others, that the primary judge fell into error as he did not consider all relevant facts in determining the issue before the Court; he did not properly apply the principles enunciated in three certain Supreme Court cases to the circumstances of this case; he failed to take into account the notice of objection to competency filed 26th September 2022 and he did not properly deal with and dispose of the second limb of the applicants motion.

6. The applicant submits that there are gross errors as to fact clearly apparent or manifested on the face of the evidence and also that there are important points of law which are not without merit. Further, the applicant submits that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

Consideration

7. The applicant submits that it is not necessary for an applicant seeking to review an interlocutory decision in an election petition to show that there exist exceptional circumstances and that a review is warranted in the interests of justice. It is submitted that these factors are not applicable to an election petition review. Reference is made to Malipu Balakau v. Paul Torato and Anor (1983) PNGLR 242.

8. In Balakau v. Torato (supra), the Full Supreme Court was concerned with an objection to competency of an appeal. Consequently, the comments of Andrew J upon which reliance is placed by the applicant, are with respect, obiter. Further, from a perusal of Balakau v. Torato (supra), the Court did not engage in a consideration of specific issues concerning s. 220 Organic Law and s.155(2)(b) Constitution, or a consideration of whether there is any effect on the criteria to be considered for the grant of leave if s. 220 Organic Law as a Constitutional Law, is given its fair and liberal meaning.

9. In Hagahuno v. Tuke (2020) SC2018, the Deputy Chief Justice stated at [1] that the Court had:

“… been specifically empaneled at the request of the parties to consider the conflicting approaches, some liberal and some strict, by both the Supreme and the National Court’s in relation to election petitions and settle the law.”.

10. It was held in Hagahuno v. Tuke (supra) amongst others, that when hearing an election petition regard must be taken of Schedule 1.5 Constitution which requires that all provisions of Constitutional Laws be given their “fair and liberal meaning”. 

11. As I mentioned in Pundari v. Yakos (supra) at [7] and [8]:

“7. This statement was made by the Court with reference to s. 217 Organic Law on National and Local-level Government Elections (Organic Law), which provides that the National Court, “shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.

8. This statement applies equally to s.220 Organic Law which is a provision of a Constitutional Law. The fair and liberal meaning of s.220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal and shall not be questioned in any way. Section 220 is in the part of the Organic Law which is concerned specifically with election petitions. It is not a general provision and is expressed in mandatory terms.”

12. As I said in James Nomane v. Wera Mori (2023) SC2414, with emphasis being placed on Schedule 1.5 Constitution requiring that all provisions of Constitutional Laws be given their, fair and liberal meaning, whilst recognising the paramountcy of s. 155(2)(b), it is useful to consider the interplay between s.155(2)(b) Constitution and s. 220 Organic Law. It is also useful to consider that interplay in this instance given the applicant’s submission that the emphasis on s.220 Organic Law appears to give that Organic Law prominence over s.155(2)(b) Constitution.

13. Section 155(2)(b) Constitution does not give a right to review. It provides generally, that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Constitution is silent as to when the Supreme Court may exercise that inherent power to review and as to who has the right to request the Supreme Court to exercise that inherent power and when. Given this, the Supreme Court, beginning with Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No. 2) [1982] PNGLR 44, developed factors to be considered before the Court will exercise its inherent power under s. 155(2)(b) Constitution. Under s. 220 Organic Law, a decision of the National Court is final and conclusive and without appeal and shall not be appealed or questioned in any way. As a review of a decision is a questioning of a decision in some way, s. 220 Organic Law may be interpreted to mean that there is no right to request the Supreme Court to exercise its inherent power of review of an election petition under s.155(2)(b) or if there is such a right to request, however that right may have arisen, that right cannot be exercised in respect of a National Court decision covered by s.220 Organic Law. If it were otherwise and an election petition could be questioned, this is contrary to s.220 Organic Law and renders the wording of s.220 Organic Law otiose. The factors that have been developed in judgments by the Supreme Court to be considered before the Court will exercise its inherent power under s. 155(2)(b) do not have the effect of overriding the provisions of a statute, an Organic Law.

14. The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.

15. Given the above, to the extent to which it is able, for this Court to grant leave to review, I am satisfied that it is necessary for an applicant seeking to review a decision in an election petition, including an interlocutory decision, to show that in addition to there being an important point of law as referred to or a gross error as to fact as referred to, that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

16. In this instance, what is sought to be reviewed is a decision of the National Court which did not dismiss an election petition. It is an interlocutory decision which does not affect the substantive rights of the applicant. The applicant is not in any way prevented from continuing to defend the election petition in the National Court. In this context, exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. Further, in circumstances where s.220 Organic Law prohibits an appeal and states that a decision shall not be questioned in any way, it is not in the interests of justice, being justice according to law, that leave to review be granted, particularly in this instance, to review a decision which does not affect the substantive rights of the applicant. Given this it is not necessary to consider the other submissions of counsel.

Orders

17.  The Court orders are in the following terms: 

a)	The application for leave to review filed 31st May 2023 is refused

b)	The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to review.

c)	The applicant’s security deposit of K5,000.00 shall be paid to the first respondent forthwith.

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Applicant                             
First Respondent In person
Palem Onom Lawyers: Lawyers for the Second Respondent