SC2394

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 10 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:
PATRICK BASA
Applicant

AND:
HARING QUOREKA
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Salika CJ, Hartshorn J, Kariko J
2023: 12th May

SUPREME COURT REVIEW – ELECTION PETITION – practice and procedure - Application for dispensation – Order 5 Rule 17 Supreme Court Rules

Cases Cited: 
Marape v. Pokaya (2017) SC1634

Counsel:

Mr. S. Ranewa, for the Applicant
Mr. M. J. Alu, for the First Respondent
Mr. J. Simbala, for the Second Respondent

Oral decision delivered on
12th May 2023:

1. BY THE COURT: This is a decision on a contested application to dispense with the requirements of Order 5 Rule 17 Supreme Court Rules. The application is made pursuant to Order 5 Rule 39 Supreme Court Rules. The reason that dispensation is sought is to enable a further review of an Election Petition decision after a single judge of the Supreme Court refused an application for leave to review.
2. We have heard from Mr. Ranewa for the applicant in support and Mr. Alu and Mr. Simbala for the respondents in opposition.
3. In regard to an application for dispensation made pursuant to Order 5 Rule 39 Supreme Court Rules, we refer to the case of Marape v. Pokaya (2017) SC1634 which specifically discussed Order 5 Rule 39.
4. Order 5 Rule 39 Supreme Court Rules is as follows:

“The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”
5. Order 5 Rule 39 provides to the Court or a Judge the discretion to dispense with compliance with any of the requirements of the Rules. For there to be a dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought.
8. In this instance Order 5 Rule 17 is:

“A decision to grant or a refusal to grant leave is final and shall not be subject to further review.”
9. Nowhere in Order 5 Rule 17 are words used to convey, express or imply a requirement that has to be complied with. Expressed another way, Order 5 Rule 17 does not require anyone to do or comply with anyone or anything - it merely makes a statement.

10. As there is no requirement in Order 5 Rule 17 and no requirement that has to be complied with, there is no compliance of a requirement that can be dispensed with. Consequently, Order 5 Rule 39 Supreme Court Rules cannot, in our view, be relied upon by the applicant for the relief that he seeks.

11. We note that Mr. Ranewa for the applicant conceded that there are no requirements in Order 5 Rule 17 Supreme Court Rules. 

12. Given the above it is not necessary to consider the other submissions of counsel.

Orders

13.    The Court orders that:

1. The application for dispensation contained in paragraph 1(5) of the Application filed 4th May 2023 of the applicant, Patrick Basa, is refused.

2. The costs of and incidental to the said Application shall be paid by the applicant to the first respondent.
_____________________________________________________________
Kawat Lawyers: Lawyers for the Applicant                                              
Supersonics and Alu Lawyers:  Lawyers for the First Respondent                                  
Harvey Nii Lawyers: Lawyers for the Second Respondent