SC2473

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) 30 OF 2023

BETWEEN:
WESLEY ORA RAMINAI
Applicant

AND:
HON. MAINA PANO
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 21st July, 11th September
            
SUPREME COURT – REVIEW - Application for leave to review a final decision in an Election Petition

Cases Cited: 

Sir John Pundari v. Peter Yakos (2023) SC2345
Francis Potape v. Philip Undialu (2023) N10322
Counsel:

B. Lomai, for the Applicant
Y. Kapili, for the First Respondent
A. Ninkama, for the Second Respondent
11th September 2023

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court which upheld objections to competency and dismissed an election petition (Decision). 

Background

2. The first respondent was declared the elected Member of Parliament for the Kagua Erave Open Electorate in the Southern Highlands Province in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. On 12th May 2023, the election petition was dismissed after the respondents’ objections to competency were upheld.

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. In this instance, the parties did not take issue with the consideration of the law in Pundari v. Yakos (supra) or the statement of the criteria for the exercise of this court’s discretion in [13] thereof.

This application

5. The applicant’s proposed grounds for review are concerned with the primary judge’s consideration of the law concerning the Integrated Electronic Case Management System (IECMS). Every document which was filed by the applicant was uploaded using the IECMS. The applicant contends that each of those documents were deemed filed on 15th September 2022.

6. The applicant contends that the primary judge fell into error in amongst others, placing no weight or reliance upon affidavit evidence to the effect that all documents filed by the applicant were deemed filed on 15th September 2022 and fell into error further in amongst others, finding that the petition and notice of security deposit were filed six or seven days outside of the 40 days requirement for filing under s. 208(e) and s. 209 Organic Law.

7. The applicant submits that the IECMS derives its constitutional and legal basis from s. 184 and s. 185 Constitution, Rule 21 Election Petition (Miscellaneous Amendments) Rules 2022 (EP Rules) and Practice Direction (IECMS) No. 1 of 2022 (IECMS Practice Direction) and that the primary judge fell into error in his consideration of the IECMS Practice Direction.

Consideration

8. As contended by the second respondent, from a perusal of the transcript of the hearing of the objections to competency, the IECMS Practice Direction was not raised or referred to by the applicant or any other party before the primary judge and it was not referred to by the primary judge in his written reasons for judgment. Further, the effect of the contentions of the applicant is that the IECMS Practice Direction amended or should have the effect of amending the EP Rules.

9. The IECMS Practice Direction was issued by the Chief Justice and not by the Registrar. Rule 21 EP Rules provides that the Registrar shall issue a practice direction. Moreover, s. 184 Constitution provides amongst others for the Judges to make rules of court. Section 184 Constitution does not provide for the Chief Justice or the Judges to make a practice direction.

10. On the basis that the IECMS Practice Direction was validly made however, a practice direction under our hierarchy of laws cannot amend a rule. The IECMS Practice Direction did not amend the EP Rules. This is in essence, acknowledged by the Chief Justice in his judgment in Francis Potape v. Philip Undialu (2023) N10322. At [13] of Potape v. Undialu (supra), His Honour refers to the EP Rules. At [14] His Honour refers to and sets out part of the IECMS Practice Direction. At [15] His Honour says as follows:

“Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law provisions prevail.”

11. In these circumstances, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.

12. If, contrary to the above, the applicant has established that there is an important point of law to be determined or a gross error as to fact clearly apparent, the next question is whether it has been established that there are exceptional circumstances showing a manifestation of substantial injustice and also that a review is warranted in the interests of justice. It is submitted by the applicant that these factors exist in this instance.

13. In my view however, no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice, particularly when the IECMS Practice Direction was not raised before the primary judge, that there is doubt as to the validity of the IECMS Practice Direction and in any event a practice direction cannot amend a rule.

14. As to the submission that it is in the interests of justice that the Decision be reviewed, for the same reasons referred to in [13] above, I am not satisfied that it is in the interests of justice, which is justice according to law, for the applicant to be permitted to review the Decision. This is particularly so when the relevant law, s. 220 Organic Law, prohibits an appeal and states that a decision shall not be questioned in any way. Given this it is not necessary to consider the other submissions of counsel.

Orders

15.  It is ordered that:

a)	The application for leave to review filed on 26th May 2023 is refused.

b)	The applicant shall pay the costs of the respondents 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 respondents forthwith in the sum of K2,500.00 each in payment towards the costs to which they are entitled pursuant to order b) above.

_____________________________________________________________
Lomai and Lomai: Lawyers for the Applicant                             
Mawa Lawyers: Lawyers for the First Respondent                 
Adam Ninkama Lawyers:  Lawyers for the Second Respondent