SC2521

PAPUA NEW GUINEA 
   [IN THE SUPREME COURT OF JUSTICE] 

SCREV (EP) 64 OF 2023 

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

BETWEEN: 
TULIP WESU DOLA
Applicant

AND:
 
FRANCIS YORI ALUA
First Respondent

AND:
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 15th November & 18th December
        
SUPREME COURT - practice and procedure - Objection to competency of application for leave to review - Order 5 Rule 10(c), which is mandatory, has not been complied with - application for leave to review should be dismissed – objection upheld

Cases Cited: 
Michael Kandiu v. Powes Parkop (2015) SC1597 
Baindu v. Yopiyopi (2019) SC1763
Glen Kiso v. Ian Ling Stuckey (2023) SC2461

Counsel:
Mr. B. Lomai, for the Applicant
Mr. G. Gileng, for the First Respondent
Mr. M. Ninkama, for the Second Respondent

8th December 2023

1. HARTSHORN J: This is a decision on a contested objection to competency of an application for leave to review the dismissal of an election petition. The objection to competency is made by the first respondent and is supported by the second respondent. 

Background

2. The first respondent was declared the winner for the Karimui Nomane Open Electorate in Simbu Province in the 2022 National General Election. The applicant came second in the election for the electorate. The applicant’s election petition in the National Court was dismissed following a successful notice of objection to competency of the first respondent. The applicant filed this application for leave to review.

Objection

3. The first respondent objects to the competency of the application for leave to review on three grounds. These grounds are that the applicant breached Order 5 Rules 14 and 15 Supreme Court Rules in serving the application for leave to review on the first respondent’s lawyers without seeking permission or leave of a Judge to do so. Second, that the applicant has failed to state the jurisdictional basis for the application for leave to review, which specifically is Order 5 Rules 8 and 9 Supreme Court Rules. Third, the applicant has failed to state the nature of the case in accordance with Order 5 Rule 10(c) Supreme Court Rules.

First ground

4. In regard to the first ground concerning Order 5 Rules 14 and 15 Supreme Court Rules, as I indicated during the hearing, in my view, from a perusal of Order 5 Rule 15 Supreme Court Rules currently in force, its wording is open to the construction that service of the application for leave to review and supporting affidavit may be served upon the lawyers for the respondents in the National Court proceedings without leave to do so having to be obtained. This is because the words, “including by service on their lawyers in the National Court proceedings”, appearing after the words, “in any manner permitted by a Judge,” would otherwise be superfluous. As service of the application for leave to review and affidavit in support was effected upon the first respondent’s lawyers, the first ground of this objection to competency is refused.

Second ground

5. As to the second ground, it is that the jurisdictional basis for the application for leave to review has not been stated. That basis is Order 5 Rules 8 and 9 Supreme Court Rules.

6. The applicant submits that as s. 155(2)(b) Constitution is stated within the application for leave to review, that is sufficient and a further statement of jurisdictional basis is not required.

7. Order 13 Rule 15 Supreme Court Rules relevantly provides that:

“All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought.”

8. “Application” is defined in Order 13 Rule 1 as meaning “… any application provided for under these rules, the Act, the Constitution and any other legislation.”

9. The application for leave to review document commences the proceeding and seeks leave to review. That is the primary relief sought. It does not seek a review per se. It is not therefore, an application for an interlocutory order and does not fall within Order 13 Rule 15. I refer to the decision of Anis J in Glen Kiso v. Ian Ling Stuckey (2023) SC2461 at [26] in this regard. Consequently, the second ground of this objection to competency is refused.

Third ground

10. As to the third ground, that the application for leave to review fails to state the nature of the case in accordance with Order 5 Rule 10(c) Supreme Court Rules, Order 5 Rule 10(c) and (f) are as follows:

“10. An application for leave shall-
…..
(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
……
(f) be in accordance with Form 5A; and ….”

11. The applicant submits that the application for leave to review complies with Form 5A. Form 5A does not require the nature of the case to be included. Further, Order 5 Rule 11 Supreme Court Rules requires that the affidavit supporting the application for leave to review 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. The affidavit supporting the application for leave to review filed in this instance complies with all of these requirements. Consequently, this ground should be refused, the applicant submits.

12. From a perusal of the application for leave to review, it contains a statement that part of the subject decision is sought to be reviewed, details of how it is claimed that the primary judge fell into error, the issues claimed to be involved and the reasons why it is claimed that leave should be given. Nowhere in the application for leave to review however, is there a statement of the nature of the case, being the circumstances or facts of the case. It may be that the circumstances are contained in the affidavit in support. Order 5 Rule 10 is mandatory and requires that the application for leave to review shall amongst others, state the nature of the case. That Form 5A does not require a statement of the nature of the case does not detract from the fact that Order 5 Rule 10(c) requires that an application for leave to review amongst others, state the nature of the case and be in accordance with Form 5A.

13. As I am satisfied that the application for leave to review in this instance does not state the nature of the case, Order 5 Rule 10(c) which is mandatory, has not been complied with.

14. As to non-compliance I refer to the judgment in Michael Kandiu v. Powes Parkop (2015) SC1597 to which I made reference at [9] in Baindu v. Yopiyopi (2019) SC1763:

“20. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:

“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)” 

15. Consequently, as Order 5 Rule 10(c), which is mandatory, has not been complied with, the application for leave to review should be dismissed.

Orders

a)	The objection to competency of the first respondent concerning a 	breach of Order 5 Rule 10(c) Supreme Court Rules by the applicant is 	upheld.

b)	The application for leave to review is dismissed.

c)	The costs of the respondents of and incidental to the said application for leave to review shall be paid by the applicant.

d)	The applicant’s security deposit of K5,000.00 shall be paid equally to 	the respondents towards the costs to which they are entitled pursuant 	to order c) above.
_____________________________________________________________
Lomai and Lomai:  Lawyers for the Applicant                                     
Gileng and Co: Lawyers for the First Respondent                         
Harvey Nii: Lawyers for the Second Respondent