SC2382

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 15 OF 2023

ERICK KOWA
Applicant

V

BELDEN NAMAH
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 19th, 21st April

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to summarily dismiss election petition – Election Petition Rules, rule 18 (summary determination) – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The applicant sought leave to apply to the Supreme Court for review of the summary dismissal by the National Court of his election petition, which was against the election of the first respondent. The decision of the National Court was made under rule 18(a) of the Election Petition Rules due to the failure of the applicant to attend a status conference, which amounted to non-compliance with an order of the court. The National Court ruled that there was no satisfactory explanation for the default, that the first respondent suffered prejudice and the interests of justice required that the petition be dismissed. The applicant argued that the primary judge erred in fact and law by: (a) rejecting the explanation provided by the applicant and his lawyer for their non-attendance at the status conference and finding, without evidence, that they had knowingly made untruthful statements intended to mislead the court; (b) misapplying the criteria for exercise of the discretion as to summary dismissal of election petitions arising from the leading case, Manase v Polye (2014) SC1329; (c) not taking into account the requirements of s 217 of the Organic Law on National and Local-Level Government Elections and the principle in Hagahuno v Tuke (2020) SC2018 that s 217 applies from the beginning to the end of a petition; and (d) not adequately taking into account the overall interests of justice, given that the petition had already been set down for trial, and raised serious allegations of bribery in connection with the election and the purpose of the status conference was simply to confirm that previous directions for the conduct of the trial had been complied with.

Held:

(1)	To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far 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)	The application raised points of law that were not without merit and there were exceptional circumstances, given that there was only instance of non-compliance with orders of the National Court, and even though there was no reasonable explanation for the failure to attend the status conference, the inconvenience to the other parties could have been accommodated with an order for costs and the default could not reasonably be expected to delay the proceedings as the trial was not due to commence until three months after the date of the status conference. It was in the interests of justice to grant leave. Therefore, leave was granted. 

Cases Cited

The following cases are cited in the judgment:

Agiru v Makiba (2023) SC2366
Hagahuno v Tuke (2020) SC2018
Kikala v Electoral Commission (2013) SC1295
Kowa v Namah & Electoral Commission, EP 32 of 2022, 17.03.23, unreported
Manase v Polye (2014) SC1329
Pundari v Yakos (2023) SC2345

Counsel

G Bon, for the Applicant
G J Sheppard & G Kult, for the First Respondent
J Simbala, for the Second Respondent

21st April, 2023

1.      CANNINGS J: The first respondent, Belden Namah, won the seat of Vanimo-Green River Open at the 2022 general election. His election was challenged by the first respondent, Erick Kowa, through an election petition, EP 32 of 2022, in the National Court.

2.     On 17 March 2023 the National Court constituted by Justice Yagi summarily dismissed the petition under rule 18(a) of the Election Petition Rules 2017, which states:

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.
3.    His Honour dismissed the petition due to the applicant’s failure to comply with the court’s order of 20 January 2023, which required amongst other things that he attend a status conference on 3 March 2023. Neither the applicant nor his lawyer attended the status conference. His Honour then on his own motion listed the matter for summary determination on 14 March 2023 for the applicant to provide an explanation for his non-appearance at the status conference. 

4.      On 14 March 2023 a hearing was conducted. The applicant and his lawyer each deposed in separate affidavits that though present in court on 20 January 2023 each had not heard the part of the order that stated that the petition would return for a status conference on 3 March 2023. There was no evidence by the respondents. Submissions were made by parties on whether the petition ought to be dismissed. 

5.      His Honour was unimpressed by explanations for the non-appearance of the applicant and his lawyer at the status conference and stated, at paragraph 37 of his judgment (Kowa v Namah & Electoral Commission, EP 32 of 2022, 17.03.23, unreported):

Having considered the circumstances involved based on the principles in Manase v Polye (2014) SC1329 and moreover having regard to the guiding principles under s 217 of the Organic Law I am satisfied that the real justice and good conscience of the case warrant the exercise of the power under rule 18(a) of the Election Petition Rules. The petitioner provided an explanation which is unreasonable, unacceptable and unsatisfactory. It is an explanation calculated to mislead the Court. The conduct of the petitioner and his counsel is manifested and characterised with half-truth designed purposely to mislead the court and interfere with the proper administration of justice in the case. Such conduct cannot be tolerated and condoned and must be censured to demonstrate that misleading the court to attain justice by dishonest means is unacceptable conduct.

6.     His Honour concluded that there was no satisfactory explanation for the applicant’s default, that the first respondent suffered prejudice and the interests of justice required that the petition be dismissed.

7.     The applicant 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 Namah. The second respondent, the Electoral Commission, takes a neutral position.

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

(a)	rejecting the explanation provided by the applicant and his lawyer for their non-attendance at the status conference and finding, without sufficient evidence, that they had knowingly made untruthful statements intended to mislead the court; 

(b) 	misapplying the criteria for exercise of the discretion as to summary dismissal of election petitions arising from the leading case, Manase v Polye (2014) SC1329; 

(c) 	not taking into account the requirements of s 217 of the Organic Law on National and Local-Level Government Elections and the principle in Hagahuno v Tuke (2020) SC2018 that s 217 applies from the beginning to the end of a petition; and 

(d) 	not adequately taking into account the overall interests of justice, given that the petition had already been set down for trial, and raised serious allegations of bribery in connection with the election and the purpose of the status conference was simply to confirm that previous directions for the conduct of the trial had been complied with.

9.      The first respondent argues that the application is without merit as there are no important points of law to be determined, there is no gross error of fact apparent and there are no exceptional circumstances warranting the grant of leave, Further, that the proposed grounds of review are vague, make no legal sense, do not demonstrate how the decision of the National Court was against the weight of the evidence or how it was wrong in law. 

CRITERIA 

10.      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, summarily dismissal of a petition under rule 18(a) of the Election Petition Rules for default on the part of a petitioner in complying with directions of the court as to the conduct of the petition; specifically, the petitioner failed to comply with a consent order that required him to file and serve affidavits by a specified date.

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

(a)	in so far as the application relates to a point of law, that it is an important point, which is not without merit or in so far 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.

12.     I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that the granting of leave would be in the interests of justice. It is important that there be such requirements, to reflect the fact that s 220 of the Organic Law on National and Local-Level Government Elections provides that a decision of the National Court in an election petition “is final and conclusive and without appeal and shall not be questioned in any way”.

APPLYING THE CRITERIA 

13.       I reject the first respondent’s argument that the applicant’s proposed grounds of review are devoid of merit and do not raise a single important point of law, and that the proposed grounds of review are vague, make no legal sense, do not demonstrate how the decision of the National Court was against the weight of the evidence or how it was wrong in law. I consider that the proposed grounds of review are intelligible and raise arguable points of law.

14.     It is arguable that his Honour erred in making such a striking condemnation of the applicant and his lawyer based only on their own evidence, and in the absence of any evidence from the respondent.

15.     It is arguable that his Honour misapplied the criteria for exercise of the discretion as to summary dismissal of election petitions arising from the leading case, Manase v Polye (2014) SC1329.

16.      It is arguable that his Honour erred in not fully taking into account the requirements of s 217 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.

17.     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, including during the hearing of an objection to competency. Section 217 must apply, in my opinion, when the National Court is giving consideration to the summary dismissal of a petition. Though his Honour mentioned s 217, it is arguable that by dismissing the petition well before the trial started, due to the failure of the petitioner to attend one status hearing, his Honour did the opposite of what the provision required.

18.     It is arguable that his Honour erred by not adequately taking into account the overall interests of justice, given that the petition had already been set down for trial in June 2023, and raised serious allegations of bribery in connection with the election and the purpose of the status conference was simply to confirm that previous directions for the conduct of the trial had been complied with.

19.     I consider that all of these proposed grounds raise important points of law that are not without merit in the context of this case, given that the decision of the National Court entirely dismissed the petition, even though it had been set down for trial, and even before any objection to competency had been heard.

20.     I further consider that there are exceptional circumstances, given that there was only instance of non-compliance with orders of the National Court. I acknowledge that there would appear to have been no reasonable explanation for the failure to attend the status conference put before his Honour. The absence of a reasonable explanation made the petition susceptible to summary dismissal. However, there were other factors to be considered in exercise of the discretion whether to dismiss the petition. The inconvenience to the other parties could have been accommodated with an order for costs and the default could not reasonably be expected to delay the proceedings as the trial was not due to commence until three months after the date of the status conference.
 
21.     In my view it is in the interests of justice that leave be granted. 

ORDER

(1)	The application for leave, filed 27 March 2023, to apply for review of the decision of the National Court of 17 March 2023 to dismiss EP No 32 of 2022, is granted. 

(2)	Costs of the application for leave are in the cause.

Judgment accordingly.
___________________________________________________________
Gibson Bon Lawyers: Lawyers for the Applicant		
Young & Williams Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent