SC2633

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

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

SCREV (EP) 10 OF 2024

BETWEEN:
LISIA ILAIBENI
Applicant

AND:
RICKY MORRIS
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J.
2024: 5th July, 4th September

SUPREME COURT REVIEW – ELECTION PETITION – Practice and Procedure - Objection to Competency of an Application for leave to Review - objection based on grounds of not stating the “nature of the case” in the petition pursuant to Order 5 Rule 10(c) Supreme Court Rules – nature of the case not stated briefly in the application for leave for review – application for leave for review dismissed

Cases Cited: 

Raymond Liu v. Daul Emoto (2009) SC1032
Yama v. Amet (2010) SC1331
Tulip Wesu Dola v. Francis Yori Alua (2023) SC2521

Counsel:

Mr. A. Baniyami, for the Applicant
Mr. L. Giyomwanauri, for the First Respondent

4th September 2024

1. HARTSHORN J: This is a decision on a contested objection to competency of this application for leave to review.

Background

2. The first respondent was declared the elected Member of Parliament for the Alotau Open Electorate 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. On 23rd March 2024, the National Court ordered amongst others, that the entire petition under EP 44 of 2022 – Lisia Ilaibeni v. Ricky Morris and Electoral Commission be dismissed. 

3. The applicant filed this application for leave to review on 5th April 2024.

4. The first respondent now objects to the competency of the application for leave to review.

Preliminary

5. The applicant raises objections to the first respondent’s objection to competency. Two of these objections are concerned with the ability of this court to entertain a notice of objection to competency and an objection to competency to an application for leave to review. I consider these objections first.

6. The first objection of the applicant is that the notice of objection to the competency of the application for leave to review has been filed out of time. Order 7 Rule 15 Supreme Court Rules requires the filing and service of an objection to competency within 14 days after service of an application for leave to review. The notice of objection to competency was filed on 26th April 2024. The application for leave to review was served on the lawyers for the first respondent in the National Court proceeding from which this application for leave to review emanates, on 8th April 2024. Consequently, the objection to competency was filed and served out of time, it is submitted.

7. The first respondent submits that although the application for leave to review was served on Young and Williams lawyers on 8th April 2024, Young and Williams lawyers did not have instructions to act for the first respondent at that time and so the application for leave to review was returned to the lawyers for the applicant.

8. As to service of the application for leave to review, Order 11 Rule 7(b) (ii) Supreme Court Rules provides for service on the address for service of a party in the proceedings in the National Court from which the present proceedings arose. Further, Order 5 Rule 15 Supreme Court Rules by its wording is open to the construction that service of the application for leave to review and supporting affidavit may be served upon the lawyers for the respondents in the National Court without leave to do so having to be obtained. (See Tulip Wesu Dola v. Francis Yori Alua (2023) SC2521 at [4].)

9. Consequently, the submission that Young and Williams did not have instructions to act for the first respondent on 8th April 2024 is not relevant. Service of the application for leave to review was affected pursuant to the Supreme Court Rules. The notice of objection to competency of the first respondent was not filed and served within 14 days of the application for leave to review being served and is therefore filed and served out of time.

10. The second objection of the applicant is that there is no clear express provision under Order 5 Division 2 Supreme Court Rules for the Court to hear and determine an objection to competency. Further, Order 11 Rule 28(a) Supreme Court Rules does not provide specific jurisdiction to deal with an application for leave to review filed under Order 5 Supreme Court Rules, it is submitted and that Order 7 Division 5 primarily refers to appeals.

11. Order 11 Rule 28 relevantly provides, “The provisions of the following rules apply to any proceedings before the Court, …” and then refers to “(a) Order 7 Division 5 (Objection to competency)”. I am satisfied that an application for leave to review falls within the words, “any proceedings before the Court”.

12. In any event, as was conceded by counsel for the applicant, this court may consider an objection to the competency of any proceeding before it, pursuant to its inherent jurisdiction: Yama v. Amet (2010) SC1331 at [27].

13. Consequently, notwithstanding that the notice of objection to competency of the first respondent was filed and served out of time, this court shall consider the objections to competency raised therein.

Order 5 Rule 10(c) Supreme Court Rules

14. The first objection to competency I consider is that the application for leave to review was filed in breach of Order 5 Rule 10(c) Supreme Court Rules as the application for leave to review does not state the, “nature of the case”. Order 5 Rule 10(c) is mandatory by use of the word “shall”. 

15. The first respondent submits:

“29. The Application before this court contains a statement that the whole of the subject decision is sought to be reviewed, details of how it is claimed that the primary judge fell into error, the issues claimed to be involved and the reasons why it is claimed that leave should be given however nowhere in the Application does it contain any statement of the nature of the case.

30. The nature of the case involved facts or circumstances of the case. Given it was an Election Petition case premised on errors and omissions under s. 218 of the Organic Law on National and Local Level Government Elections (Organic Law), the Applicant failed to state the nature of the case, that is, the figures in the Official Electoral Records (Forms 66A1, 66A2 and 66B, summary of ballot papers etc.), tendered by consent of all the parties and accepted into evidence by the Court and how the court came to its findings of fact based on those figures.

31. These were crucial facts that the Court based its findings on given the criteria or the test promulgated under s.218 of the Organic Law.

32. Grounds C, D, and F of the Application are identical to the Petition filed in the National Court. These are the same allegations the Petitioner made in the National Court. The nature of the case has not been stated regarding these grounds other than the Petitioner complaining the trial judge (sic) should have ruled based on his allegations and not on the findings of fact the court made.
33. Grounds A, B and G do not contain any statement regarding the nature of the case.

34. There is no ground E

35. It is therefore submitted that the Applicant failed to state the nature of the case in each ground for Application for leave to review therefore in breach of Order 5 Rule 10(c) of the Rules.

36. Further, by not stating the nature of the case, it deprives the First Respondent of knowing what the case is.” 

16. The applicant submits:

“2.19. Form 5A of the Supreme Court Rules does not provide for a separate requirement or heading under ‘Nature of the Case’ as is the situation when one utilises Form 7 of SCR. This is not an Application for Leave to Appeal but an Application for Leave to Review.

2.20. The words ‘nature of the case’ in Order 5. Rule 10(c) SCR are not accorded a technical or a special definition under the SCR. The Grounds as envisioned by Part 2 of Form 5A would also be stating the nature of the case to be taken to the full Court.

2.21. In Raymond Liu v. Daul Emoto & 23 Others (2009) SC1032, Injia DCJ as he then was, sitting as a single judge of the Supreme Court, discussed the ‘nature of the case’ within the context of an Application for Leave to Appeal. At paragraph 5, his Honour said:-

“… In the present case, the application for leave contains the nature of the case but does not contain the other two requirements. Instead, it contains the proposed grounds of appeal. The proposed grounds of appeal may be part and parcel of the nature of the case and the issues may be apparent from the proposed grounds of appeal but the issues and reasons why leave should be given must be explicitly spelt out in the application.”

2.22. In Gigmai Awal v. Elemo Elama & Anor [2000] PNGLR 288, the full bench of the Supreme Court observed within the context of an application for leave to appeal, that the application needs to indicate the nature of the proceedings before the trial court. The Court held that a paragraph that indicated that it was an application for leave to extend time sufficed and it was sufficient.

2.23. It is submitted that in this case, paragraphs 1, 2.1, 2.2 and 2.3 of the Application for Leave to Review state in brief the nature of the case in the Court below and this would suffice for compliance purposes. This case can be contrasted with that of Tulip Dola v. Francis Alua & Anor (2023) SC2521, where the nature of the case was not set out at all in the Application for Leave to Review.

2.24. The Applicant need not plead in the Application for Leave to Review a separate heading under ‘Nature of the Case’. See Henry Ame v. Bire Kimisopa & Anor (2019) SC1809.

2.25. Order 5, Rule 11 SCR requires the filing of an affidavit by the Applicant setting out the circumstances pertaining to the application and annexing copies of the election petition and the judgement and order of the National Court. This would amply cover the historical background of the case. This shows that the ‘nature of the case’ would mean the grounds as well.

2.26. In any case, it would be impractical and impossible to comply with the mandatory requirements of Form 5A and Order 5, Rule 10(c) SCR at the same time, as there is no requirement under Form 5A to state the ‘nature of the case’ as a separate heading.”

Consideration

17. Order 5 Rule 10 (c) Supreme Court Rules provides:

“An application for leave shall –
(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given;” 

18. The first respondent relies on the judgment in Tulip Dola v. Francis Alua (supra). As to the nature of the case, in the grounds of the application for leave to review being paragraphs 2.1 to 2.11 reference is made as to how it is alleged that the National Court fell into error. In the remaining paragraphs of the application for leave to review there are paragraphs under the headings, “Issues Involved” and “Reasons why Leave should be granted”. Contrary to the submission of the applicant in respect of paragraphs 1, 2.1, 2.2 and 2.3, nowhere in the application for leave to review is there a statement of the nature of the case, being the circumstances or facts of the case. I refer to Tulip Dola v. Francis Alua (supra) [12] – [15] in this regard.

19. The applicant submits that the words “nature of the case” in Order 5 Rule 10(c) Supreme Court Rules are not defined and that the nature of the case would be stated under “Grounds” in Form 5A. Reliance is placed upon Raymond Liu v. Daul Emoto (2009) SC1032. In that judgment, Injia DCJ (as he then was) determined that the application for leave to appeal before him contained the nature of the case. He then went on to state that proposed grounds of appeal may be “part and parcel of the nature of the case”. This statement does not detract from the nature of the case being stated, which in my view refers to the circumstances or facts of the case. The decision in Liu v. Emoto (supra) does not state otherwise.

20. Reliance is also placed on Henry Ame v. Bire Kimisopa (2019) SC1809 in which I said amongst others, that there is no separate heading in Form 5A for “Nature of the Case”. This is correct. There is no requirement for such a heading, but the requirement under Order 5 Rule 10 (c) Supreme Court Rules is to state briefly amongst others, the nature of the case. As referred to by the applicant, the “nature of the case” would be stated in the Grounds in Form 5A.

21. I am satisfied that it has been made out that the “nature of the case” has not been stated briefly or at all in the application for leave to review. Consequently, with reliance upon Tulip Dola v. Francis Alua (supra) and the judgments referred to therein, as Order 5 Rule 10(c) Supreme Court Rules, which is mandatory, has not been complied with, the application for leave to review should be dismissed. Given this it is not necessary to consider the other submissions of counsel apart from as to costs.

22. Pursuant to Order 7 Rule 19 Supreme Court Rules, as the notice of objection to competency of the first respondent was filed out of time, it was not given. Consequently, the first respondent is not entitled to his costs on the dismissal of the application for leave to review, pursuant to Order 7 Rule 19 Supreme Court Rules.

Orders

23. The Court orders that:

a) 	The objection to competency of the first respondent concerning a breach of Order 5 Rule 10(c) Supreme Court Rules by the applicant is upheld.

b)	   The application for leave to review is dismissed.

c)	Each party shall pay their own costs of and incidental to the said application for leave to review.
_____________________________________________________________
Baniyamai Lawyers: Lawyers for the Applicant                             
Young and Williams Lawyers: Lawyers for the First Respondent