SC2573

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) 41 OF 2023

BETWEEN:
DIANE UNAGI KOIAM
Applicant

AND:
Hon. JOHN KAUPA, MP
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 6th September
2024: 3rd April

SUPREME COURT REVIEW – practice and procedure - application for leave to review a final decision in an Election Petition

Cases Cited: 
Sir John Pundari v. Peter Yakos (2023) SC2345
Wesley Raminai v. Maino Pano (2023) N10248
Raminai v. Pano (2023) SC2473

Counsel:
G. Salika, for the Applicant
P. Mawa, for the First Respondent
T. Cook, for the Second Respondent

3rd April 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court which upheld objections to competency and dismissed an election petition (Decision). 

Background

2. The first respondent was declared the elected Member of Parliament for the Port Moresby North East 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 14th June 2023, the election petition was dismissed after the respondents’ objections to competency were upheld.

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 applicant submits that this application for leave to review should be granted as:

a)	the erroneous application of sections 208(e) and 209 Organic Law by the primary judge raises an important point of law to be determined that is not without merit;

b)	the application of the Integrated Electronic Case Management System (IECMS) and conflicting judgments of the National and Supreme Court concerning certain sections of the Organic Law and Constitution raise exceptional circumstances;

c)	there is a gross error apparent or manifested on the face of the evidence before the National Court. This is that despite the petition, the filing fee receipt and the security deposit being filed on IECMS within the requisite 40 day time limit, the primary judge found that s. 208(e) Organic Law had not been complied with;

d)	it is in the interests of justice.

6. Further, the applicant submits that this court should refer the interpretation or application of sections 208(e) and 209 Organic Law to the Supreme Court Court pursuant to s. 18(2) Constitution.

7. The respondents submit amongst others that the applicant does not adequately satisfy the requirements of law to enable this court to grant leave; the applicant has not demonstrated a serious issue on a point of law or fact to be determined such that if leave was granted, the application would be likely to succeed and the applicant has not demonstrated that exceptional circumstances exist or that it is in the interests of justice such that leave be granted.

Consideration

8. The applicant submits that the main point of contention in this application for leave to review arises from whether the primary judge fell into error in making a finding that s.208(e) Organic Law was not complied with despite evidence that demonstrated that the petition was filed within the 40 day time requirement of s. 208(e) Organic Law and pursuant to the authority established in Paru Aihi v. Peter Isoaimo (2015) SC1598. 

9. The premise of this submission is that when a petition is uploaded on the IECMS, it is filed for the purposes of s. 208(e) Organic Law. It is on this basis that the applicant submits amongst others, that the primary judge fell into error in finding that the petition had been filed on 23rd September 2022 when he had also found that the petition had been uploaded on IECMS at 11:29pm on 21st September 2022.

10. In his written reasons at [43], the primary judge adopted the reasoning of Manuhu J in Wesley Raminai v. Maino Pano (2023) N10248. At [10] of Raminai v. Pano (supra), Manuhu J said:

“Filing of a petition is complete when the petition is lodged, sealed and endorsed with an election petition number. Merely uploading a petition through IECMS does not satisfy the requirement of filing under ss. 208(e) and s.209.”

11. The above statement by Manuhu J was made after he had referred to the definition of “filed” in the Election Petition (Miscellaneous Amendments) Rules 2022. The definition of “filed” came into effect after the judgment in Paru Aihi v. Peter Isoaimo (supra).

12. Further, as to the legal basis of the IECMS, in Raminai v. Pano (2023) SC2473 in which an application for leave to review was made, at [9] to [11] I said:

“9. The IECMS Practice Direction was issued by the Chief Justice and not by the Registrar. Rule 21 EP Rules provides that the Registrar shall issue a practice direction. Moreover, s. 184 Constitution provides amongst others for the Judges to make rules of court. Section 184 Constitution does not provide for the Chief Justice or the Judges to make a practice direction.

10. On the basis that the IECMS Practice Direction was validly made however, a practice direction under our hierarchy of laws cannot amend a rule. The IECMS Practice Direction did not amend the EP Rules. This is in essence, acknowledged by the Chief Justice in his judgment in Francis Potape v. Philip Undialu (2023) N10322. At [13] of Potape v. Undialu (supra), His Honour refers to the EP Rules. At [14] His Honour refers to and sets out part of the IECMS Practice Direction. At [15] His Honour says as follows:

“Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law provisions prevail.”

11. In these circumstances, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.”

13. Similarly, in this instance and with reference to the above authority, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.

14. If, contrary to the above, the applicant has established that there is an important point of law to be determined or a gross error as to fact clearly apparent, 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. It is submitted by the applicant that these factors exist in this instance.

15. In my view however, no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice particularly when there is doubt as to the validity of the IECMS Practice Direction. In any event a practice direction cannot amend a rule.

16. As to the submission that it is in the interests of justice that the Decision be reviewed, for the same reasons referred to in [15] above, I am not satisfied that it is in the interests of justice, which is justice according to law, for the applicant to be permitted to review the Decision. 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. 

17. In regard to the submission that this court should refer the interpretation or application of sections 208(e) and 209 Organic Law to the Supreme Court Court pursuant to s. 18(2) Constitution, first, I am not satisfied that s. 18(2) Constitution provides the jurisdiction for a single Supreme Court Judge to refer matters as is submitted by the applicant. Secondly, if such jurisdiction is bestowed, I am not satisfied that a question relating to the interpretation or application of a provision of a Constitutional Law has arisen. The laws the subject of application and interpretation in this instance are the Election Petition (Miscellaneous Amendments) Rules 2022 and Practice Direction (IECMS) No.1 of 2022. These are not Constitutional Laws. This submission is rejected.

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

Orders

19.   The Court orders that:

a)	The application for leave to review filed on 28th June 2023 is refused.

b)	The applicant shall pay the costs of the respondents of and 	incidental to the said application for leave to review.

c)	The applicant’s security deposit of K5,000.00 shall be paid to the 	respondents forthwith in the sum of K2,500.00 each in payment 	towards the costs to which they are entitled pursuant to order b) 	above.
_____________________________________________________________
GFS Lawyers: Lawyers for the Applicant                             
Mawa Lawyers: Lawyers for the First Respondent                 
Kuman Lawyers: Lawyers for the Second Respondent