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Kromnong v Donald [2023] PGSC 48; SC2393 (20 April 2023)

SC2393

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 3 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:
HERMAN KROMNONG
Applicant

AND:
JAMES DONALD
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 4^th & 20^th April

SUPREME COURT REVIEW – ELECTION PETITION – practice and procedure - Application for leave to review

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. G. Kult, for the Applicant
Mr. I. Shepherd, for the First Respondent
Mr. N. Tame, for the Second Respondent

20^th April, 2023

1. HARTSHORN J: This is a decision on a contested 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 North Fly Open Electorate in Western Province in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. The respondents’ objections to the competency of the applicant’s election petition were heard and upheld by the primary judge and the applicant’s election petition was dismissed.

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] thereof.

This application

5. The respondents both contest the application for leave. The applicant submits in essence that the primary judge fell into error in the exercise of the Court’s discretion in dismissing the petition on seven grounds which I now consider.

a) First ground 2.1(a)

The primary judge fell into error when at [4] of his written decision he found that the second respondent’s notice of objection to competency filed 30^th September 2022 was filed and served on time when in fact the 21 day period to file and serve an objection to competency lapsed on 29^th September 2022.

b) Second ground 2.1(b)

The primary judge fell into error when he relied on s. 217 Organic Law and ruled that the second respondent’s notice of objection to competency be accepted and heard in the interests of justice.

c) The decision by the primary judge to accept the second respondent’s objection to competency was made on 27^th December 2022 (transcript of 27/12/22 p.10 line 16). The application for leave to review seeks to challenge the decision of the primary judge “handed down” on 16^th January 2023 and not the decision made on 27^th December 2022. Further, the application for leave to review was filed on 30^th January 2023 which is more than 14 days after the decision made on 27^th December 2022. Consequently, grounds 2.1(a) and 2.1(b) are incompetent.

a) Third ground 2.1(c)

The primary judge fell into error at [14] and [15] of his written decision when he in essence found that the grounds pleaded in the Petition are not grounds capable of invalidating an election or its results.

b) It is not clear what the applicant is seeking to allege by ground 2.1 (c). The complaint is that the primary judge fell into error when in essence (he) found that the grounds pleaded in the petition are not grounds capable of invalidating an election or its results. The applicant then makes statements of law in (i), (ii) and (iii). The applicant does not detail however, how the primary judge is alleged to have fallen into error.

c) In ground 2.1 (c)(iv), the complaint is that the Court failed to ascertain the specific requirements under s. 208 and s. 209 that were not met by the applicant.

d) At the beginning of his written reasons the primary judge references s.208 and s. 209 and he considers the submissions as to whether the applicant had met the requirements.

e) The applicant does not raise any important point of law or gross error of fact in this ground.

a) Fourth ground 2.1 (d)

The primary judge fell into error at [18] to [23] of his written decision when he found that the applicant’s approach to employing s.208(b) Organic Law to access s. 18(2) Constitution was flawed, misconceived and tantamount to an abuse of process where the primary judge’s findings failed in various respects and were pre-emptive.

b) In this instance the primary judge was hearing objections to competency of an election petition. He was not determining matters which may arise in the course of the hearing of the petition. The National Court may only refer questions to the Supreme Court under s. 18(2) Constitution which arise in a proceeding within the National Court’s jurisdiction, as distinct from questions which have not arisen. I concur with the submissions of the first respondent that it was premature and incompetent for a party to seek an order for referral under s.18 Constitution within the originating process in the National Court.

c) The applicant has not raised any important point of law and which has merit or a gross error of fact in this ground.

a) Fifth ground 2.1(e)

The primary judge fell into error at [29] and [30] of his written decision when he found that the matters pleaded in the petition are mere complaints and grievances and not capable of invalidating the election or return of the first respondent and that the grounds pleaded by the petitioner are not legal or known grounds prescribed under s. 215, s. 218 Organic Law and/or the Organic Law generally, and are not capable of invalidating an election or its results. The applicant then makes statements of law in 2.1 (e) (i),(ii),(iii) and (v).

b) Again, it is not clear what the applicant is seeking to allege by this ground. The complaint is that the primary judge fell into error but the applicant does not specifically detail how the primary judge fell into error when he found as he did.

c) In ground 2.1 (e)(iv), the complaint is that the Court failed to ascertain the specific requirements under s. 208 and s. 209 that were not met by the applicant.

d) At the beginning of his written reasons the primary judge references s.208 and s. 209 and he considers the submissions as to whether the applicant had met the requirements.

e) The applicant has not raised an important point of law and which has merit or a gross error of fact in this ground.

a) Sixth ground 2.1(f)

The primary judge fell into error at [31] of his written decision when he found that the pleadings and grounds of the petition related to events that occurred well before the 2022 National General Election, therefore falling outside the spirit and intent of s. 206 Organic Law and were not permissible, when s. 206 Organic Law is not a requisite of an Election Petition as required under ss. 208, 209 and 210 Organic Law.

b) In reading [31] of the written decision what the primary judge said did not determine the objections to the petition. No important issue of law and which has merit or a gross error of fact has been raised by the applicant in this ground.

Seventh ground 2.1(g)

a) The primary judge fell into error at [45] of his written decision when he found that the allegations in the petition related to errors and omissions under s. 218 Organic Law when the allegations pleaded and the grounds relied on were not the grounds under s. 218 Organic Law and s. 218 was not relied on by the applicant to challenge the election and return of the petitioner.

b) This ground is confusing and it is not clear what the applicant is attempting to allege. Further, it does not raise an important issue of law and which has merit or a gross error of fact.

6. From a consideration of the evidence and submissions, as referred to, I am not satisfied that the applicant has established that there is an important point of law to be determined and which is not without merit or that there is a gross error as to fact clearly apparent in the various grounds. 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.

7. No 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.

8. As to the submission that it is in the interests of justice that the Decision be reviewed, after considering the evidence and submissions, I am not satisfied that it is in the interests of justice, which is justice according to law, for this application for leave to review to be granted. 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

9. The Court orders that:

a) The application for leave to review filed 30^th 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.

c) The applicant’s security deposit of K5,000.00 shall be split between the first and second respondents equally and shall be paid forthwith.
_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Simpson Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent