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Agisa v Subam [2023] PGSC 159; SC2511 (8 November 2023)

SC2511

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 61 OF 2023

AN 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:
HON. SERKIE AGISA
Applicant

AND:
SALI SUBAM
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J.
2023: 27^th October, 8^th November

SUPEME COURT REVIEW – practice and procedure - Application for leave to review an interlocutory decision of the National Court in an Election Petition

Cases Cited:

Sir John Pundari v. Peter Yakos (2023) SC2345
James Nomane v. Wera Mori (2023) SC2345
Sir Peter Ipatas v. Laken Aigilo (2023) SC2447

Counsel:

Ms. P. Tamutai, for the Applicant
Ms. G. Salika, for the First Respondent
Mr. N. Onom, for the Second Respondent

8^th November 2023

1. HARTSHORN J: This is a contested application for leave to review an interlocutory decision of the National Court in an election petition. That decision, refused the objection to competency of the first respondent, now applicant. The second respondent supports the application for leave.

Background

2. The applicant was declared the elected member of Parliament for the South Fly Open Electorate in the 2022 General Elections. The first respondent is petitioning the applicant’s election.

Application for Leave - Law

3. In Sir John Pundari v. Peter Yakos (2023) SC2345, James Nomane v. Wera Mori (2023) SC2345 and Sir Peter Ipatas v. Laken Aigilo (2023) SC2447 amongst others, I considered the law on an application for leave to review an election petition. In Sir John Pundari (supra) 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. Here, 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.

This application

5. The applicant submits that amongst others, the primary judge fell into error in not upholding the objection to competency. More specifically, the applicant submits that the primary judge fell into error in determining that it would be wrong for him to dismiss an election petition because of an incorrectly spelt name, in finding that an incorrect spelling of a name did not render an election petition incompetent, in acting contrary to s. 62 Organic Law in recognizing an incorrect name, in not addressing each ground of the objection to competency, in failing to provide adequate reasons, in failing to dispense justice, in relying on the certification clause of the Deputy Registrar and in finding that the petition grounds are sufficiently pleaded.

Consideration

6. In this instance, what is sought to be reviewed is a decision of the National Court which resulted in the election petition not being dismissed and the election petition proceeding to trial. It is an interlocutory decision which has not affected the substantive rights of the applicant. The applicant has not in any way been prevented from continuing to prosecute his defence of the election petition in the National Court. 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 the parties except as to costs. The first respondent seeks costs on a solicitor client basis. I am not satisfied that it has been made out that the first respondent is entitled to such an order.

Orders

7. The Court orders that:

a) The application for leave to review filed 29^th August 2023 is refused.

2. The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to review on a party party basis.
   

100. The applicant’s security deposit of K5,000.00 shall be paid to the first respondent towards the costs to which the first respondent is entitled pursuant to order b) above.
     

Tamutai Lawyers: Lawyers for the Applicant
GFS Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent