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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV (EP) 1 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:
PAUL AGIRU
Applicant
AND:
MANASSEH Q. MAKIBA
First Respondent
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Hartshorn J
2023: 9th & 27th February
SUPREME COURT REVIEW - Application for leave to review decision of National Court in an election petition filed by the applicant – grounds of leave for review – consideration of – whether there is an important point of law to be determined which is not without merit – whether there is a gross error – whether it has been established that there are exceptional circumstances showing manifestation of substantial injustice – whether a review is warranted in the interests of justice – No other evidence has been given or submissions made which would enable this court to find that there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice – application refused.
Cases Cited:
Application by Belden Namah (2020) SC1934
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345
Counsel:
Mr. J. Ole, for the Applicant
Mr. M. Nale, for the First Respondent
Mr. L. Tangua, for the Second Respondent
27th February, 2023
1. HARTSHORN J: This is a decision on an application for leave to review a final decision of the National Court which dismissed an election petition (Decision).
Background
2. The first respondent was declared the elected Member of Parliament for the Magarima Open Electorate in Hela Province in the 2022 General Elections. The applicant was the first runner up in the election for the Electorate and petitioned the first respondent’s election in the National Court. Upon application by the first respondent the primary judge summarily dismissed the election petition under Rule 18 (a) Election Petition (Miscellaneous Amendments) Rules 2022 for the failure by the applicant to comply with direction orders made on 21st October 2022 by consent, which required amongst others, the applicant to file and serve affidavits by 8th November 2022 (Consent Order).
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].
Preliminary
Objections to Competency
5. Both respondents objected to the competency of the application before this court.
6. The first respondent objects to the competency of the application on the basis that a new heading has been incorporated into the application which is not in the requisite Form in the Supreme Court Rules. Further, orders are sought contrary to the intent and purpose of Order 5 Sub-division 2 Supreme Court Rules, which is for leave only.
7. The authority relied upon in support of these objections to competency is Application by Belden Namah (2020) SC1934. The proceeding in that case was a substantive Application made pursuant to s. 18(1) Constitution in the original jurisdiction of the Supreme Court. The Court stated that it considered that substantial compliance with Rules of the Supreme Court was not sufficient in a case of the invocation of the original jurisdiction of the Supreme Court in constitutional matters, especially in the case of the nature before it, that nature being the constitutionality of the appointment of the Prime Minister.
8. The proceeding presently before this court is not of such a nature and may be distinguished from Application by Namah (supra). The matters about which complaint is made by the first respondent to my mind, do not affect the competency of the application before this court. To the extent that they do, I am satisfied that there has been substantial compliance by the applicant. The objections to competency of the first respondent are rejected.
9. The second respondent objects to the competency of the application before this court on the basis that the applicant has failed to cite the jurisdictional basis upon which the application is made. The second respondent submitted that citation of the jurisdictional basis is required by the Supreme Court Rules but was not specific as to which Rule had been breached by the non-citation. Consequently, this objection to competency is rejected.
This application
10. The applicant submits in essence that the primary judge fell into error in the exercise of the Court’s discretion in dismissing the petition as:
a) the non-compliance with the Consent Order was not extensive and could have been cured by a costs order, the applicant had good reasons for the non-compliance, there was no material evidence of prejudice and there was no prejudice to the respondents occasioned by the non-compliance. Further it was not in the interests of justice that the petition be dismissed;
b) his decision was based on an incorrect calculation of the period of non-compliance with the Consent Order and the primary judge shifted the burden to the appellant to provide a reasonable explanation for his non- compliance with the Consent Order;
c) he did not give due weight to the principles and finding in the judgment of William Hagahuno v. Johnson Tuke (2020) SC2018 and the fair and liberal meaning of s. 217 Organic Law on National and Local-level Government Elections (Organic Law);
d) he did not consider the applicant’s application for an extension of time to comply with the Consent Order;
e) he incorrectly considered the effect of the incident of the missing policeman on witnesses for the applicant;
11. Generally, the applicant submits that the primary judge fell into error in respect of his consideration of both fact and law and that there are exceptional circumstances existing which warrant a review of the Decision in the interests of justice.
12. The respondents in essence submit that the application for leave to review should be refused as the primary judge did not fall into error:
a) in finding that the applicant had failed to provide a reasonable explanation for the default in compliance with the Consent Order;
b) in correctly finding that the first respondent was suffering prejudice and would likely be prejudiced because of the default of the applicant;
c) in his consideration of the interests of justice.
13. Generally, the respondents submit that the applicant has failed to demonstrate that there is an important point of law requiring determination or that there was a gross error of fact by the primary judge or that there were exceptional circumstances.
Consideration
14. In the application, the applicant repeatedly refers to the primary judge not considering the applicant’s application for an extension of time to comply with the Consent Order and therefore, it is submitted that the primary judge fell into error. The application for an extension of time before the National Court is contained in the notice of motion of the applicant filed 24th November 2022.
15. At [5] of the reasons for judgment of the primary judge which is in evidence as an annexure to the affidavit in support of the applicant, the primary judge states that:
“The parties agreed that the application by the first respondent be first determined as it was filed first in time and depending on the outcome of the ruling the petitioner’s application should follow. I now proceed in that manner agreed.”
16. There is no evidence from the applicant to the effect that there was no such agreement as referred to by the primary judge. Further, no submissions were made by counsel for the applicant as to the agreement referred to by the primary judge when the issue was raised in the hearing before this court.
17. In the absence of any evidence or submissions to the contrary there is before this court this unchallenged agreement between the parties as referred to by the primary judge. Consequently, I am not satisfied that the applicant has an arguable case that the primary judge fell into error in not considering the applicant’s application for an extension of time to comply with the Consent Order, given this agreement.
18. Counsel for the applicant informed the court that the only affidavit filed on behalf of the applicant before the primary judge when the dismissal motion was being heard by the primary judge was the affidavit of Brendan Lai, the then lawyer for the applicant in the National Court proceeding. This affidavit was in support of the application to extend.
19. It is the case that there was no specific evidence of or on behalf of the applicant giving a reasonable explanation for his non-compliance with the Consent Order. The only evidence given on behalf of the applicant was by his then lawyer in Port Moresby. That evidence as to the non-compliance was to the effect that the time to comply with the Consent Order was too short (notwithstanding that he had consented to the Consent Order) and that there were security issues in Hela Province. There was no evidence given by the applicant personally.
20. Given the evidence or paucity thereof before the National Court as to the default in complying with the Consent Order and the submissions on this issue before the court, I am not satisfied that it has been established that the applicant has an arguable case that the primary judge fell into error in his finding that a reasonable explanation for not complying with the Consent Order had been given.
21. As to the primary judge dismissing the petition instead of ordering costs against the applicant for non-compliance, there were no meaningful submissions made as to whether the primary judge had fallen into error in this regard and if so why. Further, there were no submissions to the effect that the primary judge was not entitled to make the orders about which complaint is made.
22. As to whether the first respondent suffered prejudice and whether the interests of justice were considered, from a perusal of the written reasons of the primary judge, these factors and the evidence relied upon were considered by the primary judge. I am not satisfied that it has been shown that the applicant has an arguable case that the primary judge fell into error in his consideration of these two issues.
23. In regard to the submission that the primary judge fell into error in his consideration of the period of non-compliance with the Consent Order, it is arguable that he miscalculated that period. To my mind however, this is not a gross error and does not detract from the undisputed fact that there was a period of non-compliance by the applicant in complying with an order to which he had consented. Further, as referred to, it has not been established that there is an arguable case that the primary judge fell into error in his finding that there was not a reasonable explanation for non-compliance with the Consent Order.
24. In regard to the submission that the primary judge shifted the burden to the applicant to provide a reasonable explanation for the non-compliance with the Consent Order, it is not controversial that there was non-compliance by the applicant and that this was the basis for the dismissal motion. In such circumstances, the applicant cannot legitimately complain that he was expected by the primary judge to provide a reasonable explanation for his non-compliance with the Consent Order.
25. As to the submission that the primary judge failed to give sufficient weight to the principles and finding in Hagahuno v. Tuke (supra), the reason for the dismissal in this instance is non-compliance with a consent court order. Such non-compliance was not a consideration in Hagahuno v. Tuke (supra).
26. From a consideration of the evidence and submissions, I am not satisfied that the applicant has 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. If however, there is such an important point of law or such a gross error, 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.
27. As to exceptional circumstances, the applicant submits that as the applicant has no other recourse but to apply to review pursuant to s.155(2)(b) Constitution, this per se is an exceptional circumstance. The reason that the applicant has no other recourse is because of the operation of law – s. 220 Organic Law, which is quite specific. Section 220 Organic Law is not stated to be qualified in any way and is not discriminatory - it applies to all. In such circumstances, s.220 Organic Law or its affect is not able to constitute an exceptional circumstance.
28. No other evidence has been given or submissions made which in my view would enable this court to find that in this instance there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.
29. As to the submission that it is in the interests of justice that the Decision be reviewed, I am not satisfied that it is in the interests of justice, which is justice according to law, for an applicant who has acknowledged that he did not comply with a court order to which he consented and in respect of which he has not given a reasonable explanation for the non-compliance, 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
30. It is ordered that:
a) The application for leave to review filed 10th January 2023 is dismissed.
b) The applicant shall pay the costs of the first and second respondents of and incidental to the said application for leave to review
_____________________________________________________________
Redman Lawyers: Lawyers for the Applicant
Jema Lawyers: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGSC/2023/18.html