SC2441

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 49 OF 2023

BENJAMIN NGENTS MUL
Applicant

V

DAISY APORE ONDOKOI
First Respondent

ELECTORAL COMMISSION 
Second Respondent

Waigani: Cannings J
2023: 28th July, 16th August 

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

The National Court in an election petition heard an objection by a respondent, the successful candidate, to competency of the petition, which was based on three grounds: (1) the petition was filed late; (2) the K5,000.00 security deposit was not paid at the time of filing the petition; and (3) the petition was filed by a lawyer without leave of the Court or consent of other parties. The National Court refused the objection, holding that the petition and other necessary documents were lodged through the Integrated Electronic Case Management System (IECMS) on the same day and within time, and that the filing of the petition by a lawyer was not unlawful and not a proper ground of objection to competency. The successful candidate then filed an application in the Supreme Court seeking leave to review the decision to refuse the objection. 

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)	None of the proposed grounds of review raised arguable and important points of law. There were no exceptional circumstances and the interests of justice did not require that leave be granted. Leave was refused. 

Case Cited

The following cases are cited in the judgment:

Aihi v Isoaimo (2015) SC1598
Amet v Yama [2010] 2 PNGLR 87
Hagahuno v Tuke (2020) SC2018
Kikala v Electoral Commission (2013) SC1295
Ondokoi v Mul (2023) N10406
Pariwa v Yama (2023) SC2385
Pundari v Yakos (2023) SC2345
Waranaka v Trawen (2012) N4815

Counsel

D Kints & S Kunai, for the Applicant
P B Lomai, for the First Respondent
S Kapi, for the Second Respondent

16th August, 2023

1.      CANNINGS J: Benjamin Ngents Mul applies for leave to apply for review of a decision of the National Court, constituted by Justice Polume-Kiele, made at Mt Hagen on 6 July 2023 in the election petition EP No 65 of 2022 in which the petitioner Daisy Apore Ondokoi challenged the return of Mr Mul as member for North Waghi Open in the 2022 general election. 

2.     Her Honour refused Mr Mul’s objection to competency of the petition, which was based on three grounds:

1.	the petition was filed late, on 14 September 2022, outside the 40-day period after declaration of the result of the election allowed by s 208(e) of the Organic Law on National and Local-level Government Elections;

2.	the K5,000.00 security deposit was not paid at the time of filing the petition, contrary to s 209 of the Organic Law;

3.	the petition was filed by a lawyer without leave of the Court or consent of other parties, contrary to s 222(1) of the Organic Law. 

3.      Her Honour took into account that the date of declaration of Mr Mul as successful candidate was 3 August 2022 and accepted that the 40-day period expired on 11 September 2022. (In my reckoning, it expired on 12 September 2022, but whether it was the 11th or the 12th makes no difference to her Honour’s decision, nor does it affect my ruling on the application for leave.)

4.     Her Honour found that the petition was lodged electronically using the Integrated Electronic Case Management System (IECMS) on 9 September 2022. Her Honour made that finding of fact based on an affidavit by Rhyen Tamarua of Lomai & Lomai Attorneys (lawyers for Ms Ondokoi) who deposed to uploading the petition and supporting documents including a notice of payment of the security deposit through IECMS on 9 September 2022. Her Honour preferred that evidence to an affidavit of James Aku, Mr Mul’s lawyer in the National Court, who deposed that the petition lodged electronically on 9 September 2022 was not accompanied by notice of payment of the security deposit and that the defects in the petition were not rectified until 14 September 2022, by which time the 40-day period for filing the petition had expired. 

5.      Her Honour emphasised that the date stamped on the petition was 9 September 2022, which meant that according to the normal practice and procedures of the National Court registry, the petition was filed within time. Her Honour noted that there was no affidavit by any officer of the Registry to contradict the evidence of Rhyen Tamarua.

6.      Her Honour’s reasoning is encapsulated in paragraphs 58 to 61 of the written judgment, Ondokoi v Mul (2023) N10406:

58 On the other hand, if the petition had been filing outside of the 40 days period under s 208(2) of the Organic Law, there is basically no evidence adduced into Court from any of the National Court Registry staff as to the procedure and processes involved in the implementation of the IECMS. Further, the first respondent [Mr Mul] has not tendered into court any evidence from the Registry staff, in this case, the Receiving Officer, Mathew Bae and or the Registrar, Deputy Registrar (National Court) or any other Registry staff involved in administration and operation of the IECMS and how the IECMS system works. 

59 An affidavit from any of the relevant National Court Registry staff would greatly assist this Court to understand how it is being implemented in relation to the election petitions filed in the National Court including all civil proceedings brought before the Court by way of IECMS filing. This is to demonstrate the failure in uploading, filing, sealing and endorsement of this election petition.

60   However, due to the lack of any evidence to the contrary, I must conclude that the effective date of filing or lodgement of petition through IECMS on 9 September 2022 is the effective date of filing, sealing and endorsement of the Petition. This conclusion is in line with the purpose of the IECMS which is outlined in Rule 10 of the Practice Directions (IECMS) which states that: “All new cases or matters in the National Court and the Supreme Court shall be commenced by way of electronic filing of the “cause form”, with all the supporting evidence in affidavit form in the National Court and in the Supreme Court for causes based on facts or raises factual issues other than for appeal or review causes”.

61 In this present case, I accept that in compliance with Rule 6 of the Practice Directions (IECMS), the petition together with the supporting evidence of the receipts for filing fees and in the case of election petitions receipts for security deposit were uploaded, filed, or lodged electronically on 9 September 2022.

7.     Having made a finding of fact that the petition, including the notice of payment on 9 September 2022 of the security deposit, was filed on 9 September 2022, her Honour refused the first two grounds of objection to competency of the petition.

8.     As to the third ground of objection (the petition was drafted by a lawyer contrary to s 222(1) of the Organic Law) her Honour followed the approach taken in the recent case of Pariwa v Yama (2023) SC2385: there was no Supreme Court decision on point and the only National Court case in which the issue had arisen (Waranaka v Trawen (2012) N4815) held that an alleged breach of s 222(1) was not a proper ground of objection to competency of a petition. 

9.    Her Honour therefore refused all grounds of objection and dismissed the objection to competency. 

10.    Mr Mul argues by way of proposed grounds of review that her Honour:

1.	erred in fact and law in finding that the petition was filed and sealed on 9 September 2022, when the affidavit of Ryhen Tamarua showed that the hard copy of the petition and notices of payment of filing fee and security deposit were not lodged until 12 September 2022 and sealed copies of those documents were not available until 14 September 2022 and s 208(e) of the Organic Law requires that a petition “be filed in the Registry of the National Court” and the Supreme Court ruled in Aihi v Isoaimo (2015) SC1598 that that is how a petition is filed, and uploading of a petition through IECMS does not constitute filing in the registry of the National Court; 

2.	erred in fact and law as, even if uploading on IECMS is regarded as an acceptable mode of filing a petition, the affidavit of James Aku was evidence that the activity log for IECMS showed that after the petition was uploaded with its “cause form” at 4.23 pm on 9 September 2022, it was rejected by Deputy Registrar Baka Bina at 4.01 pm on 13 September 2022 because the personal email address of the petitioner was not included in the cause form, and this led to the cause form being resubmitted on 14 September 2022, which should be regarded as the filing date for IECMS purposes;

3.	erred in fact and law in finding that uploading the petition through IECMS on 9 September 2022 and the Registry ascribing that date on the petition meant that it was filed on 9 September 2022, when there was clear evidence in the affidavit of Ryhen Tamarua that hard copies of the petition and notices of payment of filing fee and security deposit were not lodged until 12 September 2022, while the deposit of K5,000.00 into the Registrar’s trust account was made on 9 September 2022, which was not “at the time of filing the petition” as required by s 209 of the Organic Law; 

4.	erred in law in dismissing the objection to competency as being filed out of time contrary to the Election Petition Rules 2017 and without the leave of the Court, as her Honour gave precedence to the Rules, which are an inferior law to the Organic Law, ss 208, 209 and 210 of which set out requirements a petition must meet before the National Court has jurisdiction to hear it, which makes her Honour’s decision to dismiss the objection to competency wrong in law and unconstitutional.

CRITERIA 

11.    There are many cases that have over the years set out the criteria to be considered when determining applications for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. That case is particularly relevant to the present case as it involved 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 the respondent to the election petition applied to the Supreme Court for leave for review of the National Court decision. 

12.    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.

13.    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 interlocutory in nature. It does not affect the substantive rights of the party that has had their application or objection dismissed. 

14.     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.

15.    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.

APPLYING THE CRITERIA 

16.     I assess the four proposed grounds of review as follows:

1.	Error in fact and law in finding that the petition was filed and sealed on 9 September 2022.

17.    Her Honour’s process of reasoning was clear and coherent. She acknowledged the fact that the hard copy of the petition and notices of payment of filing fee and security deposit were not lodged until 12 September 2022 and sealed copies of those documents were not available until 14 September 2022, but emphasised that there was clear evidence that the petition, signed by the petitioner and the attesting witnesses and accompanied by notices of payment of filing fee and security deposit, was uploaded on IECMS on 9 September 2022. That was her Honour’s finding of fact and there was no gross error made in making it. 

18.     The proposition that her Honour’s acceptance of IECMS as a proper way of filing a petition is wrong in law is an arguable point, but it cannot be said that her Honour made any gross error in taking that approach as there is no binding Supreme Court decision on that issue. With respect, the Supreme Court decision in Aihi v Isoaimo (2015) SC1598 on which Mr Mul relied, is out of date as in those days there was no electronic filing. IECMS did not exist. There is no important point of law involved. Proposed ground 1 does not warrant the granting of leave. 

2.	Error in fact and law by disregarding the fact that the petition uploaded on IECMS on 9 September 2022 was rejected on 13 September 2022.

19.     I agree with her Honour that the fact that the petition uploaded on IECMS on 9 September 2022 was rejected due to failure to comply with an IECMS requirement about the “cause form” does not detract from the fact that the petition was uploaded on IECMS on 9 September 2022. 

20.    It was filed in the Registry of the National Court within 40 days after the date of declaration of the result in accordance with s 208(e) of the Organic Law. I cannot see any arguable or important point of law in this proposed ground of review.

3.	Error in fact and law in finding that uploading the petition through IECMS on 9 September 2022 and the Registry ascribing that date on the petition meant that it was filed on 9 September 2022.

21.     Her Honour did not disregard the fact that hard copies of the petition and notices of payment of filing fee and security deposit were not lodged until 12 September 2022, while the deposit of K5,000.00 into the Registrar’s trust account was made on 9 September 2022. Her Honour found that the petition was filed on 9 September 2022 and I cannot see any strong argument that that finding was made in error. 

22.    There was clear evidence that that was the same day that the deposit was made to the Registrar’s trust account. Even if the view is taken that the words “at the time of filing the petition” in s 209 of the Organic Law mean that the deposit must be made on the date of filing, and neither before nor after that date, her Honour’s findings were consistent with that view. I cannot see any arguable or important point of law in this proposed ground of review.

4.	Error of law in dismissing the objection to competency for being filed out of time and without leave of Court. 

23.     Her Honour noted in passing that the notice of objection to competency was filed out of time and ruled in paragraph 67 of her written judgment that “the objection to competency is itself incompetent”. Her Honour otherwise gave little consideration to the issue of ‘competency’ of the objection to competency. 

24.     Nevertheless, there is a strong argument to say that in taking that approach, her Honour erred in law. It runs counter to the principle of the leading case Amet v Yama [2010] 2 PNGLR 87 (an objection to competency can be made at any time) to rule that an objection to competency is incompetent. This proposed ground of review raises an arguable point of law, certainly. But is it an important point? No, not in this case as her Honour addressed the merits of the objection to competency. It would be a pointless exercise to grant leave to argue this point before the full court of the Supreme Court as even if it is proven that her Honour erred in law, it would make no difference to the outcome of the review. Leave must be refused to argue this proposed ground of review.

CONCLUSION

25.     None of the proposed grounds of review raise arguable and important points of law or fact. There are no exceptional circumstances and the interests of justice do not require that leave be granted. Leave must be refused. Costs will follow the event. 

ORDER

1.	The application for leave, filed 13 July 2023, to apply for review of the decision of the National Court of 6 July 2023 in EP No 65 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 stay order of 2 August 2023 is dissolved.

4.	The file is closed.
________________________________________________________________
Jema Lawyers: Lawyers for the Applicant			
Lomai & Lomai Attorneys: Lawyers for the First Respondent	
Niugini Legal Practice: Lawyers for the Second Respondent