SC2385

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 14 OF 2023

RAMSEY PARIWA
Applicant

V

PETER CHARLES YAMA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 20th, 28th April

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to dismiss application for summary determination of election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The first respondent in an election petition (the successful candidate) applied in the National Court for summary dismissal of the petition on the ground of breach of s 222(1) of the Organic Law on National and Local-Level Government Elections, in that the petition had been drafted by a lawyer without the consent of the other parties or leave of the court. The National Court refused the application. The primary judge decided that the application, made by notice of motion, was an abuse of process and that it lacked a proper jurisdictional basis, and for each of those reasons was dismissed. As to the merits of the application, his Honour ruled that there was no Supreme Court decision on point and that the only National Court case in which the issue had arisen (Waranaka v Trawen (2012) N4815, where it was held that an alleged breach of s 222(1) was not a ground of objection to competency of a petition) was correctly decided, and therefore the primary ground of dismissal of the petition lacked merit. The first respondent in the National Court then filed an application in the Supreme Court seeking leave to review the decision to dismiss his application for summary dismissal of the petition. 

Held:

(1)	To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) insofar as the application relates to a point of law, that it is an important point, which is not without merit or (ii) insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2)	Some of the proposed grounds of review in the application for leave raised arguable points of law, in that it was arguable that the primary judge erred in law in dismissing the application to the National Court as an abuse of process and that his Honour erred in expressing the view that an alleged breach of s 222(1) of the Organic Law is not a ground of objection to competency, but none were so compelling as to give rise to exceptional circumstances and the interests of justice did not require that leave be granted. Therefore leave was refused. 

Cases Cited:

The following cases are cited in the judgment:

Application by Schulze (1998) SC572
Hagahuno v Tuke (2020) SC2018
Hewabi v Simaka (2023) SC2373
Kikala v Electoral Commission (2013) SC1295
Kimave v Tore (2013) SC1303
Kopaol v Embel (2008) SC941
Pundari v Yakos (2023) SC2345
Saonu v Dadae (2004) SC763
Waranaka v Trawen (2012) N4815
Yama v Pariwa & Electoral Commission EP No 95 of 2022, 14.03.23, unreported 

Counsel:

M Kombri, for the Applicant
B Lomai, for the First Respondent
M Boas, for the Second Respondent

28th April, 2023

1.	CANNINGS J: The applicant, Ramsey Pariwa, won the seat of Madang Provincial at the 2022 general election. His election was challenged by the first respondent, Peter Charles Yama, through an election petition, EP 95 of 2022, in the National Court.

2.	On 14 March 2023 the National Court constituted by Justice Yagi refused an application by the applicant under rules 22(3) and (4) of the Election Petition Rules 2017 for summary dismissal of the petition on the ground of breach of s 222(1) of the Organic Law on National and Local-Level Government Elections, in that the petition had been drafted by a lawyer without the consent of the other parties or the leave of the court. 

3.	Section 222(1) states:

A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

4.	Justice Yagi decided that the application, made by notice of motion, was an abuse of process and that it lacked a proper jurisdictional basis, and for each of those reasons was dismissed. As to the merits of the application, his Honour ruled that there was no Supreme Court decision on point and that the only National Court case in which the issue of whether there is anything wrong in a lawyer drafting a petition had arisen, was correctly decided. The National Court case was Waranaka v Trawen (2012) N4815, in which Makail J held that an alleged breach of s 222(1) was not a good ground of objection to competency of a petition. Justice Yagi concluded that the primary ground of dismissal of the petition lacked merit (Yama v Pariwa & Electoral Commission EP No 95 of 2022, 14.03.23, unreported). 

5.	The applicant, Mr Pariwa, now seeks leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of his Honour’s decision. His application is opposed by the first respondent, Mr Yama. The second respondent, the Electoral Commission, takes a neutral position.

6.	The applicant argues by way of proposed grounds of review that his Honour erred in fact and law by: 

(a)	ruling that the motion to dismiss the petition was an abuse of process, without giving reasons for ruling that the ground for dismissing the petition regarding s 222(1) of the Organic Law should have been included in a formal objection to competency or raised at the trial; 

(b) 	ruling that the notice of motion cited an incorrect jurisdictional basis, when that point of law was not raised by any of the parties, and without indicating what would have been a correct jurisdictional basis; 

(c) 	relying on the dissenting opinion of Injia J in Application by Schulze (1998) SC572 and disregarding significant obiter dicta in Sauk v Polye (2004) SC769, Saonu v Dadae (2004) SC763, Kimave v Tore (2013) SC1303, Kopaol v Embel (2008) SC941 and Hagahuno v Tuke (2020) SC2018 which supported the proposition that lawyers are prohibited from drafting petitions without the agreement of all parties or the leave of the court;

(d) 	not ruling that it is a mandatory requirement of s 222(1) of the Organic Law that lawyers are prohibited from drafting an election petition without the agreement of other parties or the leave of the court;

(e) 	failing to recognise that s 166(1) of the Constitution gave the National Court unlimited jurisdiction, so that it had power to consider the motion for dismissal of the petition on the ground of breach of s 222(1) of the Organic Law; and

(f) 	failing to give reasons for addressing the issue of abuse of process without the issue being raised by any of the parties and for agreeing with the reasoning in Waranaka v Trawen (2012) N4815 and for not addressing the effect of the admission by the first respondent’s lawyers that they did indeed draft the petition. 

7.	The first respondent argues that the application is without merit as there are no important points of law to be determined, and there are no exceptional circumstances warranting the grant of leave. 

CRITERIA 

8.	There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in two cases, Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366. In each case his Honour refused leave for review of decisions of the National Court in an election petition. The latter case is particularly relevant to the present case as it involved, like this case, a respondent to an election petition making an application for the petition to be summarily dismissed, which was refused in an interlocutory decision of the National Court. Then that respondent applied to the Supreme Court for leave for review of the National Court decision. 

9.	His Honour spelt out the criteria for granting leave. The applicant must show:

1.	insofar as the application relates to a point of law, that it is an important point, which is not without merit or insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and 

2.	there are exceptional circumstances; and 

3.	it is in the interests of justice to grant leave.

10.	I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. It is important that there be such requirements, especially in cases where the National Court has refused an application for summary dismissal or an objection to competency of an election petition, as the National Court decision does not prevent the party moving for dismissal of the petition from continuing to defend the petition. The decision is an interlocutory decision that does not affect the substantive rights of the party that has had their application or objection dismissed. There needs to be strict criteria for granting leave in such cases, to avoid the spectre of interlocutory decisions being unnecessarily reviewed, long before the National Court is able to make a final decision, and to avoid the prospect of an election petition becoming the exact opposite of what it is intended to be, a simple and straightforward court case to be quickly and efficiently resolved in accordance with s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

11.	As the Supreme Court emphasised in Hagahuno v Tuke (2020) SC2018, reinforcing what was stated in Kikala v Electoral Commission (2013) SC1295, s 217 applies from the beginning to the end of an election petition. This means, in my view, that it applies during the hearing of an application for summary dismissal.

APPLYING THE CRITERIA 

12.	Several of the proposed grounds of review lack merit, and do not raise any important point of law. These are the proposed grounds described above as (b), (c), (e) and (f)

13.	As to (b), which deals with his Honour’s ruling that the notice of motion cited an incorrect jurisdictional basis, I think his Honour was correct. The jurisdictional basis relied on for the order sought in the notice of motion was rules 22(3) and (4) of the Election Petition Rules. Rule 22 states: 

(1)	The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. 

(2)	Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.

(3)	No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

(4)	Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirements of s 217 of the Organic Law.

14.	That rule had no relevance to the orders sought in the notice of motion. No part of the rule provided the basis for making the order sought, which was for summary dismissal of the petition. Perhaps it would have been better to rely on rule 18, which provides for summary determination of a petition in the following terms:

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:

(a)	order that the petition be dismissed where the defaulting party is the petitioner; or

(b)	where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(c)	make such other orders as it deems just.

15.	As to the argument that his Honour erred by not indicating a correct jurisdictional basis for the summary relief sought by the applicant, I see no merit in the argument. His Honour clearly expressed the view that the ground being relied on by the first respondent – breach of s 222(1) of the Organic Law – should have been raised as a competency issue in a notice of objection to competency under rule 12 of the Election Petition Rules and dealt with at the trial. So his Honour did indicate what was the required procedure. 

16.	The alleged error of law by his Honour dismissing the motion for citing an incorrect jurisdictional basis when that issue was not raised by any of the parties, is a trivial and meritless argument. A judge is not restricted, when dismissing a motion, to the grounds argued by the party opposing the motion.

17.	As to (c), alleged error in relying on the dissenting opinion of Injia J in Application by Schulze (1998) SC572 and disregarding significant obiter dicta in Sauk v Polye (2004) SC769, Saonu v Dadae (2004) SC763, Kimave v Tore (2013) SC1303, Kopaol v Embel (2008) SC941 and Hagahuno v Tuke (2020) SC2018, this is not a sound argument. The fact is that there is no Supreme Court authority on the point of law on which the applicant’s motion was based. None of the authorities referred to, addressed s 222(1) of the Organic Law. Even if they are regarded as addressing s 222(1), the opinions expressed in each of those cases was obiter dicta. There is no arguable case that his Honour erred in law.

18.	As to (e), failing to recognise that s 166(1) of the Constitution gave the National Court unlimited jurisdiction, this was in my view an academic sort of argument and there is no arguable case that his Honour erred in ruling on it in the manner that he did.

19.	As to (f), failing to give reasons for addressing the issue of abuse of process without the issue being raised by any of the parties and for agreeing with the reasoning in Waranaka v Trawen (2012) N4815 and for not addressing the effect of the admission by the first respondent’s lawyers that they did indeed draft the petition, this is a convoluted argument that has no merit. His Honour gave careful and considered reasons for refusing the orders sought in the motion. There is no arguable case that his Honour erred by giving insufficient reasons.

20.	That leaves two of the proposed grounds of review, which I think are arguable: those described as (a) and (d).

21.	As to (a) – ruling that the motion to dismiss the petition was an abuse of process  – I think it is arguable that the way in which the applicant raised the issue regarding s 222(1) of the Organic Law was proper and that it was not necessary for the issue to be ventilated through a formal objection to competency. I also think this is an important point of procedure that perhaps can be raised again in appropriate circumstances.

22.	As to (d) – not ruling that it is a mandatory requirement of s 222(1) of the Organic Law that lawyers are prohibited from drafting an election petition without the agreement of other parties or the leave of the court – his Honour, as he explained in his judgment, did not have to address this issue as he had rightly dismissed the motion for citing an incorrect jurisdictional basis. He can hardly have erred in law when he was not obliged to address the argument. However, it must be emphasised that there is no Supreme Court authority on the issue, and until there is, it can be said to be an important point of law.

23.	So, I can see that the proposed grounds of review described as (a) and (d) are not entirely meritless and seem to raise important points of law. To that extent the first of the three criteria set out in Pundari v Yakos (2023) SC2345 – the application for leave raises an important point of law that is not without merit – is satisfied. 

24.	However, I do not think that the arguments entailed in those proposed grounds of review are so compelling that they make this an exceptional case warranting the grant of leave. The primary judge heard the arguments and made a careful and considered decision. There was no binding Supreme Court authority contrary to the approach taken by the primary judge.

25.	The substantive rights of the applicant, Mr Pariwa, are left unaffected by the decision to refuse the motion for summary dismissal of the petition. He is still able to defend the petition. I distinguish this case from the recent case of Hewabi v Simaka (2023) SC2373, in which I formed the opinion that there were exceptional circumstances warranting the grant of leave. It was in the interests of justice to grant leave. I find in the present case that there are no exceptional circumstances and it is not in the interests of justice to grant leave for review. Leave is therefore refused.
 
ORDER

(1)	The application for leave, filed 24 March 2023, to apply for review of the decision of the National Court of 14 March 2023 in EP No 95 of 2022, is refused. 

(2)	The applicant shall pay the first respondent’s costs of the application on a party-party basis, which shall if not agreed be taxed.

(3)	The file is closed.
___________________________________________________________
Kombri & Associates Lawyers: Lawyers for the Applicant
Lomai & Lomai Attorneys: Lawyers for the First Respondent	
Kuman Lawyers: Lawyers for the Second Respondent