SC2461
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 37 OF 2023 (IECMS)

APPLICATION UNDER SECTION 155(2) (b) OF THE CONSTITUTION

BETWEEN:
GLEN KISO
Applicant

V
IAN LING STUCKY
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Anis J
2023: 11th & 14th August, 22nd September

OBJETION TO COMPETENCY OF APPLICATION FOR LEAVE TO REVIEW –Order 7 Rules 15 and 17 – Supreme Court Rules as amended – preliminary issue – whether service of objection to competency of leave application effected in accordance with Order 7 Rule 15 – Supreme Court Rules as amended – consideration and ruling – considering objection and grounds – whether leave application is incompetent premised on non-compliance with Order 13 Rule 15, non-compliance with Order 5 Rule 10(c) and (f), and non- compliance with Order 5 Rule 11 – Supreme Court Rules as amended – consideration - ruling

Cases Cited:

Nandali v Curtain Brothers Ltd (2012) SC1483
Manase v Polye (2019) SC1907
The State v Kalaut (2021) SC2094
Michael Kandiu v. Powes Parkop (2015) SC1597
Francis Baindo v. Joseph Yopiyopi and Electoral Commission (2019) SC1763
Gordon Wesley v. Isi Leonard and Electoral Commission (2018) SC1706
Tobias Kulung v. William Onglo (2018) SC1714

Counsel:

R Habuka, for the Applicant
E Heagi, for the First Respondent
D Kints, for the Second Respondent

RULING

22nd September 2023

1.	ANIS J:  The second respondent applied to dismiss the applicant’s application for leave to review for being incompetent.  I heard submissions from the parties on 11 and 14 August 2023 before I reserved my ruling to a date to be advised.

2.	The parties have been advised so I now give my ruling.

BACKGROUND

3.	The brief background of the matter is this.  The applicant and the first respondent were contestants in the 2022 General Election for the Kavieng Open Electorate Seat (the Seat).  On 20 July 2022, the first respondent was declared as the winner of the Seat.  

4.	The applicant was aggrieved, so on 29 August 2022, he filed an election petition to challenge the election result (the election petition).  In the election petition, the applicant alleged 7 grounds that constituted allegations of bribery, undue influence and illegal practices, under s.50 of the Constitution, ss.101, 102(b) and 103(a)(i) and (iii) of the Criminal Code, and ss.178 and 215(1) of the Organic Law on National and Local-level Government Elections (the Organic Law).  

5.	In response to the election petition, the respondents filed objections challenging its competence.  At the trial on 5 June 2023, the National Court (the Court) heard the objections, and on 7 June 2023, it handed down its decision where it dismissed the election petition.  The dismissal was based on want of compliance of a mandatory requirement of s.208(d) of the Organic Law.  The respondents had argued on this issue that the applicant had failed to correctly plead the address of the 2 attesting witnesses, as required under Rule 4 of the Election Petition Rules as amended (EP Rules) and Form 1 as prescribed in the EP Rules.  Thus, the respondents had submitted to the Court that such failure meant that the applicant had breached the mandatory requirement of s.208(d) and the election petition was therefore incompetent and could not proceed to trial under s.210.  The trial Judge, as stated, upheld the said ground in dismissing the election petition.

6.	Aggrieved by the said decision, the applicant filed his application for leave to review (leave application) on 19 June 2023.  The leave application is met with this objection by the second respondent, that is, notice of objection to competency of the leave application (the Objection).  The Objection was filed on 3 July 2023.

OBJECTION

7.	The Objection reads in part:

OBJECTION is made on the following grounds pursuant to Order 11 rule 28(a) and Order 7 rule 15 and 17 (1)(a) of the Supreme Court Rules 2022 (“SCR”):

1.	The Application for Leave to Review filed on 19 June, 2023 failed cite the jurisdictional basis for making the application as required by Order 13 rule 15 of the SCR.

2.	The Application for Leave to Review filed on 19 June, 2023 is not in accordance with Form 5A of the SCR and in breach of Order 5 rule 10(c) of the SCR.

3.	The affidavit in support for leave application deposed to be Glen Kiso and filed on 19 June, 2023 failed to annex the copy of the order of the National Court contrary to the requirement of Order 5 rule 11 of the SCR.
……

ISSUE

8.	The main issues in my view are (i), whether service of the Objection upon the applicant constitutes service under Order 7 Rules 15 and 17 of the Supreme Court Rules as amended (i.e., including Supreme Court (Miscellaneous Amendment) Rules 2022) (SCR as amended), and (ii), subject to the first issue, whether the leave application is incompetent as alleged, that is, premised on the 3 grounds in the Objection.

JURISDICTION

9.	The correct rule, which is not contested, that gives me the jurisdiction to hear the Objection is Order 7 Rule 17(1)(a) of the SCR as amended.  It reads and I quote, An objection of which notice has been given shall be determined by… in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court or any Judge;

10.	In the present matter, extension of time had been sought by the applicant to effect service of the leave application, and the leave application was served on the respondents on 21 June 2023.  And the second respondent responded by filing its Objection on 3 July 2023, that is, within the 14-day period as required by Order 7 Rule 15 of the SCR as amended.  Order 7 Rule 15 reads:

A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal-

(a)	file an objection in accordance with Form 9; and

(b)	serve a copy of the objection on the appellant in any manner including by service on the appellant’s lawyers in the National Court proceedings.

11.	However, the applicant has raised this preliminary challenge (i.e., issue No. 1) in regard to service of the Objection which I will deal with first.

SERVICE OF THE OBJECTION

12.	The applicant submits that the Objection was not served within 14 days in accordance with Order 7 Rules 15 and 17 of the SCR as amended.  Counsel submits that leaving or serving the Objection and other court documents on a third party and not on the lawyer or the applicant, as was done herein, does not constitute service within the meaning of the Court rules.  As such, counsel submits that the Objection is not properly before the Court; that the Objection itself is incompetent and must be dismissed; that there is no need therefore to proceed further or for the Court to deal with it.

13.	The respondents submit otherwise.  They argue that the Objection was served in compliance with the Court rules.  They also argue that the applicant has not provided any evidence to support his assertions; that counsel was giving evidence over the bar table.  They also argue that since the applicant has not disputed the 3 grounds as pleaded in the Objection, the Court should grant the relief sought and dismiss the leave application. 

14.	I note the submissions of the parties in this regard.

15.	I ask myself this.  What do the evidence say?  I note that Mr Habuka nor his client filed any evidence to address the issue.  The second respondent, on the other hand, filed 2 affidavits in that regard.  The first is the affidavit of Lingston Peya filed 5 July 2023, and the second is the affidavit of Mary Mora filed 6 July 2023. 

16.	I accept the 2 affidavits filed by the second respondent as evidence that are properly before me for consideration.  I also note that the applicant, despite having had the opportunity to do so, has not filed any evidence to rebut the evidence of the second respondent.  I reject the attempts by Mr Habuka to give evidence over the bar table.  I also dismiss counsel’s submissions that are made that are not supported with evidence.

17.	However, have said or made this finding, it does not resolve the legal arguments that are raised herein on whether service was effected within 14 days and in a manner that is permitted by Order 7 Rules 15 and 17.  With that, let me set out in summary the undisputed facts as follows:

•	the Objection was filed within 14 days from the date of service of the leave application (i.e., service was premised on the extended time that was allowed by the Court);
•	the Objection was served in the manner as instructed by the applicant’s lawyer Mr Habuka, that is, it was served on a receptionist at the reception desk at Luxury Inn, at Gordons, National Capital District;
•	Mr Habuka was residing at Luxury Inn at the material time;
•	the Objection was served by Lingston Peya on Tuesday, 4 July 2023, at 4:17pm on one Nora H, a receptionist of Luxury Inn, at Gordons, National Capital District;
•	Nora H accepted service of the Objection and signed for it as evident in the affidavit of Mr Peya.

18.	Two immediate questions that come to mind are, (i), whether service of the Objection was effected within 14 days from 21 June 2023, and (ii), if so, whether service as per directed by Mr Habuka in the manner as adduced in evidence, constitutes proper service pursuant to Order 7 Rules 15 and 17 of the SCR as amended.

19.	In regard to the first question, it is not disputed that the leave application was served on the respondents on 21 June 2023.  The respondents had 14 days to file and serve their objections if they so wished.  The 14th day was on 5 July 2023, and I note that the second respondent filed its Objection on 3 July 2023 which was within time.  In regard service, the Objection was served in the manner as directed by Mr Habuka, that is, it was served at the reception desk of Luxury Inn at Gordons, the inn where Mr Habuka was situated at the material time.  The telephone conversation and instruction of Mr Habuka is adduced in evidence, that is, as deposed at para 5 to Ms Mora’s affidavit of 6 July 2023.  Service was then effected in that manner by Mr Peya on 4 July 2023, which was a day before the 14th day which was on 5 July 2023.  Evidence of service is deposed to in Mr Peya’s affidavit of 5 July 2023.  So, service of the Objection was effected within the 14-day period as stipulated under Order 7 Rule 15.

20.	It now comes down to the second leg of the argument or issue, that is, whether service at the reception area at Luxury Inn is proper service within the requirement of Order 7 Rule 15(b).  Rule 15(b) reads, serve a copy of the objection on the appellant in any manner including by service on the appellant’s lawyers in the National Court proceedings. [Underlining mine].  The key words used in the rule which is relevant for this purpose, in my view, is the phrase, in any manner.  What this means is this; that personal service is not necessarily required; that service upon the applicant’s lawyers would be sufficient.  In this case, the uncontested evidence adduced by the second respondent shows that the second respondent’s lawyers had been in contact with Mr Habuka at the material time.  And it was upon Mr Habuka’s direction that service was effected in the manner as had been done.  Service was therefore effected on the applicant through his lawyers in the manner as directed by Mr Habuka himself.  To me, the manner of service of the Objection as described above, constitutes service as permitted by Rule 15(b).

21.	It is therefore my view that service and notice of the Objection had been effected in compliance with Order 7 Rules 15 and 17 of the SCR as amended.

OBJECTION

22.	I now turn to the Objection and address the 3 grounds that are pleaded therein.

23.	But at the outset, I note that the applicant did not contest the Objection.  Mr Habuka did not make any oral or written submissions in that regard.  Counsel had premised his arguments only on the preliminary issue re service of the Objection.

24.	The Objection is therefore unopposed.

25.	Under the first ground, the second respondent claims that the leave application did not plead the Court’s jurisdiction.  The second respondent submits that the requirement is mandatory under Order 13 Rule 15 of the SCR as amended.  The said rule reads:

15.  All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4. [Underlining mine]

26.	I find this ground to be misconceived.  Order 13 Rule 15 is relevant to applications that are made at interlocutory stages of pending appeals.  In other words, a substantive appeal must exist or be pending before the Supreme Court before an interlocutory application that seeks an interlocutory order may be made.  Under these circumstances, applications that are filed must comply with Order 13 Rule 15.  In the present case, however, there is no appeal that is pending before the Supreme Court.  Rather, the applicant is trying to seek permission from the Supreme Court to be heard on review or to file a substantive review.  There is no substantive appeal proceeding that is pending where the present leave application is filed under.  Instead, the leave application is filed as the first document that is before the appellant Court for consideration.  The case authorities cited by the second respondent including Nandali v Curtain Brothers Ltd (2012) SC1483, Manase v Polye (2019) SC1907 and The State v Kalaut (2021) SC2094 are distinguishable and inapplicable, in my view, to the present case premised on my stated reasons.

27.	Given that s.220 of the Organic Law disallows any election petition appeals to the Supreme Court, s.155(2)(b) of the Constitution is the only mode of proceeding that is available for an aggrieved party to invoke and file a review before the Supreme Court.  However, Order 5 Rule 8 of the SCR as amended states that an election petition review may be heard by the Supreme Court provided that leave is sought and is granted by the Supreme Court or a single Judge of the Supreme Court. 

28.	Despite my above findings against the first ground of objection, I make this observation.  What must be pleaded or contained in an application for leave to review an election petition are expressly stated under Order 5 Rule 10 of the SCR as amended, as follows:

10.  An application for leave shall –

(a)	be entitled under Section 155(2)(b) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; and

(b)	be entitled in the name of the person making the application and the name of the respondents; and

(c)	state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and

(d)	state an address for service of the applicant; and

(e)	be signed by the applicant; and

(f)	be in accordance with Form 5A; and

(g)	be filed in the Supreme Court Registry at Waigani.

29.	The above requirements do not say that an applicant must plead the source or jurisdiction of the Court apart from s.155(2)(b) of the Constitution and Part XVIII of the Organic Law.  

30.	What about Form 5A?  Does it require such express pleading of source or jurisdiction?  I have had the benefit of perusing Form 5A.  I set it out in part as follows:

APPLICATION FOR LEAVE TO REVIEW

APPLICATION will be made to the Supreme Court, at Waigani at …………… am/pm on the ………… day of …………….. 20…., for:

1. LEAVE TO APPLY FOR REVIEW: (state date of the decision and the decision for review).

2. GROUNDS: (state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case)

3. THE ISSUES INVOLVED:

4. REASONS WHY LEAVE SHOULD BE GIVEN:

5. ADDRESS FOR SERVICE OF THE APPLICANT:

Dated this ………….day of…………… , 20………. .

Signed_______________________
(Applicant)
…………………………………………………………………………………..

31.	There is no express requirement to plead any further jurisdiction or source under Form 5A, that is, in an election petition application for leave to review.  

32.	I therefore dismiss the first ground of objection to competency of the Objection.

33.	I now turn to the second ground in the Objection.  The second respondent claims that the leave application is not compliant with Form 5A in that the applicant did not plead a heading for ISSUES INVOLVED and addressed that separately therein which, the second respondent submits, is in breach of the mandatory requirement under Order 5 Rule 10(c) of the SCR as amended.  As such, it submits that the leave application is incompetent and must be dismissed.

34.	I am minded to uphold this ground of objection.  There is clearly a breach in complying with this requirement.  The heading ISSUES INVOLVED is not pleaded separately in the leave application.  The applicant only pleads 4 headings in his leave application.  I note that under the heading GROUND, the applicant pleads 2 separate sub-headings titled “Particulars of the decision” and “The learned Judge:” which are not required and regarded under Form 5A.

35.	I therefore find that the leave application breaches Order 5 Rule 10(c) of the SCR as amended.  The leave application is incompetent in that regard.

36.	Moving on, the 3rd and final objection raised by the second respondent is this.  It claims that the affidavit in support of the leave application that is deposed to by the applicant and filed on 19 June 2023, failed to annex the copy of the order of the National Court.  As such, the second respondent submits that this therefore breaches the requirement of Order 5 rule 11 of the SCR as amended thus the leave application is incompetent and must be dismissed.

37.	Order 5 Rule 11 states:

11.  The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court. [Underlining mine]

38.	I turn my attention now to the applicant’s said affidavit.  The affidavit was filed on 19 June 2023 and is marked as document no. 2 in the Court file. I have had the benefit of perusing it.  The affidavit attaches a copy each of the election petition and the judgment of the Court that dismissed it.  The applicant, however, did not annex a sealed copy of the Court Order that dismissed the election petition to his affidavit.

39.	Compliance with the requirement of Order 5 Rule 11 is mandatory.  See cases:  Michael Kandiu v. Powes Parkop (2015) SC1597, Francis Baindo v. Joseph Yopiyopi and Electoral Commission (2019) SC1763, Gordon Wesley v. Isi Leonard and Electoral Commission (2018) SC1706 and Tobias Kulung v. William Onglo (2018) SC1714.

40.	In Michael Kandiu v. Powes Parkop (supra), the Supreme Court stated at paras 50 and 51 which I adopt herein, as follows:

50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).

41.	I note that the applicant did not apply pursuant to Order 5 Rule 39 SC Rules as amended, to dispense with the requirement of Order 5 Rule 11 (that is, of the requirement to annex a copy of the Court Order to his supporting affidavit).  

42.	I therefore make this finding; that the failure by the applicant to annex a seal copy of the Court Order of 7 June 2023 constitutes a mandatory breach of the provisions of Order 5 Rule 11 thus makes the leave application incompetent.  

SUMMARY

43.	In summary, I will uphold the Objection and, in so doing, dismiss the leave application as incompetent premised on the above stated reasons.

COST

44.	A cost award or order herein is discretionary.  

45.	I will order the cost to follow the event to be assessed on a party/party basis to be taxed if not agreed.  I will also make an order that the security for costs payment that is deposited into the National Court Trust Account by the applicant shall be withdrawn by the Registrar and be used to fully or partly settle the respondents’ costs.

ORDERS OF THE COURT

46.	I make the following orders:

1.	The Applicant’s Application for Leave to Review filed 19 June 2023 is incompetent and is dismissed in its entirety.

2.	The Applicant shall pay the First and Second Respondents’ costs of the Application for Leave to Review, on a party/party basis which may be taxed if not agreed.

3.	The Registrar shall withdraw the deposited K5,000 Security for Costs of the Applicant in this proceeding, which is kept at the National Court Trust Account, and use that to party or wholly settle the Respondents’ costs.

The Court orders accordingly

________________________________________________________________
Pacific Horizons Legal Services:	 Lawyers for the Applicant
Ashurst PNG: Lawyers for the First Respondent 
Jema: Lawyers for the Second Respondent