SC2480

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 32 OF 2023 (IECMS) 

APPLICATION 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

BETWEEN: 
KOI TRAPPE
Applicant

V
HON. JACOB KOP MAKI, MP
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Anis, J
2023: 8th August and 26th October

APPLICATON FOR LEAVE TO REVIEW – Application made under s.155(2)(b) – Constitution – no primary right of appeal – s.220 – Organic Law on National and Local-Level Government Elections – leave required – Order 5 Rule 14 – Supreme Court Rules as amended - intended review against decision of the National Court granting Objection to Competency of Petition and dismissing the Petition – whether leave should be granted – considerations – application of various criteria - exercise of discretion - ruling

Cases Cited:
Avia Aihi v The State [1981] PNGLR 81
Robert Kopaol v. Phileman Embel (2003) SC727
Hewabi v. Simaka (2023) SC2373
Eric Ovake v. Bony Oveyara (2008) SC935
Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345
Kasap v Yama [1988-89] PNGLR 81
Application of Ludwig Patrick Shulze (1998) SC572
Kelly Kalit v John Pundari (1998) SC569
Application by Ben Semri (2003) SC723
Delbi Bira v Bill Ninkama & Ors [1982] PNGLR 342
Hagahuno v Tuke [2020] SC2018
Parkop v. Juffa (2023) N10153
Holloway v. Ivarato [1988] PNGLR 99
Mune v. Agiru (1998) SC590
Karo v. Kidu [1997] PNGLR 28
Talita v. Ipatas (2016) SC1603
Elemi v Pala (2023) N10112
Polye v. Manase (2018) N7489
Kool v. Dua (2018) N7205
Ijape v. Kimisopa (2003) N2344
Takori v. Yagari (2008) SC905
Public Officers Superannuation Fund Board v Imanakuan (2001) SC677
Singat v. Commissioner of Police (2008) SC910
Quoreka v. Basa (2023) N10207

Counsel:
G Sheppard with counsel assisting K Kulip, for the Applicant
A Ninkama, for the First Respondent
N Tame, for the Second Respondent

RULING

26th October 2023

1.  ANIS J:  I heard the applicant’s application for leave to review filed 4 August 2023 on 8 August 2023 (Leave Application).  The application was contested. 

2.	This is my ruling.

BRIEF BACKGROUND

3.	The applicant was a contestant for the Mul-Baiyer Lumusa Open Electorate (Mul-Baiyer) in the 2022 General Election.  The first respondent was later declared as the successful candidate for the said electorate.  The applicant was aggrieved so on 13 September 2022, he filed a petition under ss 206 and 208 of the Organic Law on National and Local-Level Government Elections (OLNLLGE) to dispute the validity of the election or return of the first respondent as the duly elected member for Mul-Baiyer.

4.	The election petition that he filed (Election Petition) was described as EP No. 68 of 2022, Koi Trappe v. Hon. Jacob Kop Maki MP and Electoral Commission (EP 68/EP).  Shortly after, the first and second respondents filed separate objection to competency applications against the EP.  On 19 May 2023, the trial commenced in Mt Hagen, and the National Court (the Court) began by hearing the 2 objection to competency applications.  On 24 May 2023, the Court handed down its ruling.  It upheld the objections and dismissed the Election Petition without proceeding to a full trial.  

5.	The final decision of the Court reads:

87.	In the aggregate, the Twenty-six (26) allegations and grounds corresponding are hereby dismissed forthwith.  The petition setting is dismissed forthwith.

88.	The security deposit of K5,000.00 will be paid to the respondents in equal proportions.

89.	The petitioner will pay the costs of the proceedings.

APPLICATION

6.	The Leave Application is filed under Order 5 Rule 14 of the Supreme Court Rules as amended (SCR).  The applicant, like all other applicants who intend to appeal against election petition decisions of the National Court, does not have a primary right of appeal.  Section 208 of the OLNLLGE does not permit appeals from the National Court to the Supreme Court.  It reads, A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way. 

7.	However, s.155(2)(b) of the Constitution makes it possible for one to seek review against a decision of the National Court that may arise out of an election petition that is filed under PART XVIII. – DISPUTED ELECTIONS, RETURNS, ETC. of the OLNLLGE.  It reads, The Supreme Court … has an inherent power to review all judicial acts of the National Court.  The genesis of s.155(2)(b) is to be found in Avia Aihi v The State [1981] PNGLR 81.  Moving on, Division 2, Order 5 of the SCR sets out the appeal process and requirements for election petition matters or appeals.  Rule 9 in particular states, An application for an election petition review in respect of a decision referred to under Rule 8 lies to the Court with leave only.  

8.	The criteria for granting or refusing leave to review of this nature are settled.  I note the submissions of the parties in this regard, and I uphold them in general.  I make particular reference to these case authorities; Robert Kopaol v. Phileman Embel (2003) SC727, Hewabi v. Simaka (2023) SC2373, Eric Ovake v. Bony Oveyara (2008) SC935 and Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345.  And the criteria derived from these cases may be summarised as follows:  

(a)	that there is no right of appeal or there is no other way of coming to the Supreme Court; and

(b)	that there is an important point of law to be determined by the Supreme Court; and

(c)	the application is not without merit;

(d)	insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723;

(e)	whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice; Sir John Pundari v. Peter Yakos and Electoral Commission (supra).

PROPOSED GROUNDS FOR REVIEW

9.	I refer to the Leave Application, the Petition, and the decision of the trial Judge.  The Petition and the decision the subject of this intended review, are marked as annexures KT-1 and KT-7 and are contained in the affidavit of the applicant filed 6 June 2023. 

10.	In the Petition, the applicant had raised a total of 26 allegations against the respondents.  Grounds 1, 2, 3, 4, 6, 7, 8, 9, 11, 14, 18, 21, 23 and 26 had alleged errors and omissions (13 grounds).  That is, and if I can summarise, grounds 1, 2, 3, 4, 6, 7 and 8 had pleaded, (i), alleged error and omission during polling at the respective polling locations and during counting that were allegedly committed by the named agents of the second respondent, and (ii), the total number of votes that were allegedly affected by the error and omission thereby said to have allegedly affected the results of the election.  And grounds 11, 14, 18, 21, 23 and 26 had pleaded, (i), alleged error and omission during counting that were allegedly committed by the agents of the second respondent in allegedly refusing the objections that were made by the applicant’s scrutineer, Sai Trappe, and (ii), the total number of votes that were allegedly affected by the error and omission thereby said to have allegedly affected the result of the election.

11.	I turn to the decision of the trial Judge.  In summary, the trial Judge dismissed all the 26 allegations as pleaded in the Petition.  At paras 84 and 85, his Honour states:

“84.  And this is so derived from Amet (supra), Ganasi v Subam [2013] PGSC 47; SC1277 (26th September 2013); Fairweather v Singirok [2013] PGSC 42; SC1293 (4th November 2013); Kikala v Electoral Commission [2013] PGSC 48; SC1295 (18th November 2013); Electoral Commission of Papua New Guinea v Solo [2015] PGSC 74; SC1467 (30th March 2015) and (Talita supra). This is the law that must be satisfied by the petitioner to see out his petition as competent.

85.  And in my view that application has seen my determination in assessing and declaring that all twenty six (26) allegations and grounds have no basis in this law to be granted as competent and that as a consequence of these application the striking out of all pursuant and dismissal forthwith.”

12.	In the present Leave Application, the applicant pleads therein a total of 16 grounds where he wishes the review Court to consider if leave for review is granted.  They are comprehensively stated in the Leave Application, but I summarise them herein as follows:

•	Grounds 1 to 5 challenges findings by the trial Court in regard to allegations 1, 2, 3, 4, 11, 14, 18, 21, 23, and 26 raised in the Petition.  These particular allegations concern various alleged errors and omissions on the part of the Second Respondent.

•	Grounds 6 to 14 challenges the findings by the trial Judge in relation to allegations 9, 12, 13, 15, 16, 17, 19, 20, 22, 24 and 25 raised in the Petition.  These particular allegations concern various alleged illegal practices that were allegedly committed by individuals without the knowledge and authority of the first respondent.

•	Ground 15 claims that the trial Judge fell into reviewable error in applying the principles held in Delbi Bira v Bill Ninkama & Ors [1982] PNGLR 342 when he ought to have applied the principles held in Hagahumo v Tuke [2020] SC 2018 to guide him in making his findings. 

•	Ground 16 claims that the trial Judge fell into reviewable error in hearing the second respondent’s notice of objection to competency filed on 6 October 2022 when it had not been served in accordance with the Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous) Amendment Rules 2022.

CONSIDERATION

13.	In considering the Leave Application, I note the submissions of the parties including the evidence in support that is filed.

14.	So, I ask myself whether I should exercise my discretion and grant leave; whether the leave application has merit in that it raises meritorious points of mixed facts and laws that leave should be granted; or whether there are exceptional circumstances showing a manifestation of substantial injustice; whether a review is warranted in the interests of justice.

15.	Having considered the criteria and applying them to the present matter, I have reached the conclusion that this is a case where I should exercise my discretion and grant leave to allow the applicant to file his review.  I set out my reasonings as follows:

•	each of the 26 allegations stated in the Petition appears sufficiently pleaded and they also appear to comply with the pleading requirements and or the requirements under s.208(a) of the OLNLLGE; cases in support include Hagahuno v. Tuke and the Electoral Commission (supra), Parkop v. Juffa (2023) N10153, Holloway v. Ivarato [1988] PNGLR 99, Mune v. Agiru (1998) SC590, Karo v. Kidu [1997] PNGLR 28; Talita v. Ipatas (2016) SC1603 and Elemi v Pala (2023) N10112; they suggest important point of law that should require consideration by the review Court.

•	the trial Judge appears to premise and make findings on individual allegations of illegal practices or errors and omissions as pleaded rather than considering them collectively as a whole; the trial Judge did not consider collectively whether the whole lots of votes that were affected as pleaded in more than one allegations would have affected the results; cases in support include Polye v. Manase [2018] N7489, Kool v. Dua (2018) N7205 and Ijape v. Kimisopa (2003) N2344; these suggest important points of mixed fact and law that should require consideration by the review Court.

•	A pleaded statement of the winning margin in a petition whether correct or otherwise would be a matter for trial and not something that should affect the competency of a petition; it appears that this was overlooked by the trial Court; case in support – Talita v Ipatas (supra).

•	Whether the trial Judge should have been guided by the principles in Hagahuno v. Tuke and the Electoral Commission (supra) and not Delbi Bira v. Bill Ninkama (supra) in his consideration and decision; this also suggests an important point of law that should require consideration by the review Court.

•	Ground 16 concerns proposed challenge concerning exercise of discretion by the trial Judge in refusing to address preliminary issues concerning the second respondent’s objection application; evidence adduced and Rule 12 of the Election Petition Rules 2017 (as amended) appear to show that the second respondent’s objection may have been served outside the mandatory requirement period of 21 days and that dispensation had not been sought by the second respondent to maintain its objection to competency application; there are no express provisions in the rules that requires a party that intends to raise jurisdictional issues over an objection to competency application to file a separate motion; it is not unusual for parties to raise preliminary or jurisdictional issues together at the time of hearing an objection to competency of a petition; cases in support include Takori v. Yagari (2008) SC905, Public Officers Superannuation Fund Board v. Imanakuan (2001) SC677, Singat v. Commissioner of Police (2008) SC910 and Quoreka v. Basa (2023) N10207.

SUMMARY

16.	In summary, I am minded to and will exercise my discretion to grant leave for review.

COST

17.	I will order cost to follow the event.  The respondents shall pay the applicant’s cost of the Leave Application on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

18.	I make the following orders:

1.	Leave is granted to the Applicant to apply for review against the whole of the Decision of the National Court, delivered on 24 May 2023 in EP No. 68 of 2022 – Koi Trappe v. Jacob Maki, MP and the Electoral Commission of Papua New Guinea.

2.	The Applicant shall file his review within 14 days from today, and further, the Applicant shall observe other requirements including service under sub-division 5 of Division 2 of Order 5 of the Supreme Court Rules as amended. 

3.	The Respondents shall pay the Applicant’s costs of the application on a party/party basis to be taxed if not agreed.
________________________________________________________________
Young and Williams Lawyers:	Lawyers for the Appellant
Adam Ninkama Lawyers:	Lawyers for the First Respondent
Nicholas Tame Lawyers:	Lawyers for the Second Respondent