SC2564

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) NO. 1 OF 2024
Application under s. 155 (2) (b) of the Constitution
AND In the Matter of Part XVIII of the Organic Law on National & Local Level Government Elections

BETWEEN
Hon. Anderson Mise
Applicant

AND
Patrick Pruaitch
First Respondent

AND
The Electoral Commission of Papua New Guinea
Second Respondent

Waigani: Gavara-Nanu J
2024: 20th February, 27th March, 24th April

ELECTION PETITION – Application for leave to review – Payment of Security for costs - Section 155 (2) (b) – Constitution - Objection to competency – Supreme Court Rules, 2012 (as amended) – Order 5 Division 2 – Sub-Division 2; Rules 8, 9, 10 and 13. 

Cases Cited:

Application by Morobe Provisional Government – Review pursuant to Constitution s. 155 (2) (b) [2012] SC1190
Application by Hon. Belden Namah (2021) SC2105
Manwau v. Bird (2023) N10249
Talu v. Petroleum Venture Limited (2016) SC1621
Thomas v. Bando (2023) SC2462
Re Namah [2020] SC1946

Counsel:

P. Tabuchi, for the First Respondent
A. Manase, with T. Kondop, for the Applicant
L. Dos, for the Second Respondent 

24th April 2024

1.	GAVARA-NANU J: The first respondent objects to the competency of the application for leave, filed pursuant to s. 155 (2) (b) of the Constitution by the applicant on 16 January, 2024, to review the decision of the National Court given on 4 January, 2024, which declared his election in the last national elections as the Member for Aitape-Lumi null and void. The objection is raised pursuant to the Notice of Objection to Competency (“the objection”) filed on 2nd February, 2024. 

2.	The objection raises three grounds. The relevant parts of the objection are as follows: -

OBJECTION is made pursuant to Order 11 Rule 28(a) and Order 7 of the Supreme Court Rules 2012 (“Rules”) (as amended) and the inherent jurisdiction of the Court, to the Application for Leave to Review filed 16 January, 2024 (‘the Application”) on the following grounds:

1.	The Application is incompetent by reason of the fact that it is commenced by the Applicant in his capacity as a Member of Parliament, being the Member for Aitape-Lumi, when as of 4 January, 2024, his election was declared void by the National Court, and he was and is no longer a Member of Parliament and the Member for Aitape-Lumi.

2.	The Application is filed in breach of Order 5 Rule 13 of the Rules and therefore incompetent as the security for costs of K5,000 was not deposited into the Registrar’s Trust Account at the time of filing the application for leave but on a different date.

3.	The Applicant has not invoked the jurisdiction of the Court in that the Application “under Section 155 (2) (b) of the Constitution is made pursuant to Order 5, Division 4, Sub-Division 2; Rules 8, 9 and 10 of the Rules which does not exist.  As a consequence, the Application is incompetent. 

3.	In the first ground of objection, it is claimed that the application for leave for review is incompetent because the applicant signed it as the Member of Parliament for Aitape-Lumi, when he was no longer the Member for Aitape-Lumi after his election as the Member for Aitape-Lumi was declared null and void by the National Court on 4 January, 2024. Mr. Philip Tabuchi, counsel for the first respondent argued that the applicant should not have signed the application for leave as the Member for Aitape-Lumi because he was no longer Member for Aitape-Lumi. He should have signed the application under his own name as a private person.

4.	Notably, the application for leave is under the name and title, “Hon. Anderson Mise - Applicant” and signed under the name and title - “Hon. Anderson Mise, MP – Applicant”. The first respondent is named under his personal name - “Patrick Pruaitch” and the second respondent is named under its corporate name - “Electoral Commission”. 
  
5.	The second ground of objection is based on the claim by the first respondent that the K5,000.00 security for costs was not deposited into the Registrar’s Trust Account “at the time of filing the Application for leave” at the Supreme Court Registry in Waigani (“the Registry”) as required under Order 5 Rule 13 of the Supreme Court Rules (“the Rules”).  It was argued that the fact that security for costs was paid on a different day from the day the application for leave was filed in the Registry, which is not disputed, was in breach of Order 5 Rule 13, thus rendering the application for leave incompetent. 

6.	The third ground of review is that the application of leave lacked jurisdictional basis which vital because the applicant relied on Order 5 Division 4 Sub-Division 2; Rules 8, 9 and 10, which Mr Tabuchi argued did not exist. It was argued that there is no Division 4 under Order 5 and the error goes to the jurisdiction of the Supreme Court to review the decision of the National Court. It was argued that in the circumstances, the Supreme Court would lack jurisdiction to entertain the application for leave.  Thus, the application for leave is incompetent and should be dismissed.

7.	For the first ground of objection, the first respondent relied on a number of cases. One of which is Re Application by Morobe Provisional Government – Review pursuant to Constitution s. 155 (2) (b) [2012] SC1190. In that case, the Supreme Cout said the power of the Supreme Court to review acts of the National Court under s.155 (2) (b) of the Constitution is a special and reserve power, therefore an applicant invoking the review jurisdiction of the Supreme Court must plead and comply strictly with the laws governing and regulating such applications, which includes the Rules of court. 

8.	The other case the applicant relied on is Re Namah [2020] SC1946. In that case, the applicant filed an application under s. 18 (1) of the Constitution to challenge the constitutionality of the election of the Prime Minister. The applicant filed the application in his capacity as the Leader of the Opposition. However, at the time of filing the application, the applicant was no longer Leader of the Opposition because he had been suspended from Office under s. 28 of the Organic Law on Duties and Responsibilities of Leadership, over allegations of misconduct in Office. The Supreme Court held the application was incompetent because the applicant filed the application when he was no longer Leader of Opposition. The Court said: -

“When he (Namah) filed the application, the applicant was suspended from duty. He remains suspended from duty. We will make a declaration to that effect. This means that the proceedings are incompetent and must be dismissed.” 

9.	Regarding the second ground of objection, Mr Tabuchi stressed the binding effect of the mandatory requirements under Order 5 Rule 13 of the Rules. He argued that the Rule is in mandatory terms and requires strict compliance. The Rule provides as follows: - 

13. At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.  

10.	Mr. Tabuchi submitted that this Rule is similar to s. 209 of the Organic Law on National and Local Level Government Elections (OLNLGE), which also requires strict compliance. Section 209 of the OLNLGE provides as follows: -

 209. Deposit as security for costs

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs. 

11.	The only notable differences between s. 209 of the OLNLGE and Order 5 Rule 13 of the Rules are, under s. 209 of the OLNLGE it is the petitioner that must deposit the security for costs with the Registrar at the time of filing the petition. Under Order 5 Rule 13 of the Rules, it is the applicant that must deposit the security for costs in the Registrar’s Trust Account at the time of filing the application for leave at the Registry. It was argued that common sense and logic and the principles of statutory interpretation would require that the security for costs be paid at the Registry where the application for leave is filed.   

12.	Mr Tabuchi argued that mandatory requirements of Order 5 Rule 13 of the Rules are clear and must be strictly complied with. It was submitted that the plain and ordinary meaning of this Rule and its clear intention is for the security for costs be paid into the Registrar’s Trust Account by the applicant at the Registry at the time of filing the application for leave. Things should then take their normal course thereafter, in which the payment would be receipted, and the receipt given to the applicant. It would then be for the Registrar to organize payment of the security for costs into his Trust Account at the bank where the Trust Account is held. The case of Talu v. Petroleum Venture Limited (2016) SC1621, was also relied upon. In that case, the Supreme Court in stating that where words of a statute are plain and clear, they ought to be applied as they are, said: - 

“It has been held that when the words of a statute are plain and clear, there is no room for judicial construction of those words to ascertain their meaning. The Courts need to do no more than apply the words of the statute as they are”.  

13.	Reliance was also placed on Manwau v. Bird (2023) N10249, in which the National Court in commenting on the mandatory requirements of s. 209 of the Organic Law on National and Local Level Government Elections, which the applicant was required to comply strictly with said: - 

“These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for costs in the sum of K5,000.00 had to be paid in full on 7th September, 2022, when the petition was filed with the Registrar of the National Court”. 

14.	Further reliance was placed on Application by Hon. Belden Namah (2021) SC2105, in which the Supreme Court in stressing the need for an applicant invoking the original jurisdiction of the Supreme Court to comply strictly with the mandatory requirements of its Rules said: -

“We have no difficulty with the interveners’ contention that strict compliance with the Supreme Court Rules is necessary and that if an applicant is non-compliant with the Rules, this is a matter that goes to competency of the application. We adopt what was said by this Court in a successful objection to competency in Application by Namah (2021) SC2082 that a rather strict standard of compliance must be adhered to as we are dealing with an application that seeks to invoke the original jurisdiction of the Supreme Court directly under the Constitution”. 

15.	It was further argued that the applicant has not clearly pleaded the nature of his case and the errors relied on in the decision of the National Court, which were the basis for the application for leave. The application for leave therefore has not been sufficiently pleaded and should be dismissed with costs. 

16.	After discussing the laws relating to objections to competency, Mr Manase, counsel for the applicant submitted that the first ground of objection is misconceived because the applicant filed the application for leave to review the decision of the National Court which declared his election as Member for Aitape-Lumi null and void. Therefore, the applicant as the party aggrieved by the decision had the capacity to file the application for leave to review the decision.  It was also argued that as such, the applicant correctly signed the application for leave as “Hon. Anderson Mise, MP – Applicant”. It was argued that signing the application for leave as Member for Aitape Lumi did not affect the applicant’s capacity to seek leave for the review of the decision of the National Court.  It was submitted that for the same reason the applicant used the same name and style when he signed the petition. It was further submitted that the first respondent referred to the applicant by that same name and title in the petition and the applicant remained Honourable Member for Aitape-Lumi until the National Court declared his election null and void. It was therefore argued that it was proper for the applicant to use the same name and title to sign and file the application for leave. The case of Thomas v. Bando (2023) SC2462 was relied on to argue that this ground of objection is trivial and unmeritorious, and it does not go to jurisdiction and should be dismissed.  

17.	Regarding the second ground of objection, it was submitted that the argument by the first respondent that the security for costs of K5,000.00 had to be deposited at the time the application for leave was filed at the Registry was practically impossible because the security for costs had to be deposited into the Registrar’s Trust Account at a bank at a different time to the time the application for leave was filed at the Registry. It was argued that accepting the first respondent’s argument would give rise to absurdity.  Mr Manase argued that Order 5 Rule 13 should be given a liberal interpretation. It was further argued that Order 5 Rule 13 should not be interpreted in the same way as s. 209 of the OLNLGE, as they are under two different laws.

18.	It was argued that unlike the requirements of s. 209 of the OLNLGE which must be complied with strictly by a petitioner because of the mandatory requirements of s. 210 of the OLNLGE; the requirements of Order 5 Rule 13 of the Rules can be dispensed with under Order 5 Rule 39.

19.	 It was argued that the difference between s. 209 of the OLNLGE and Order 5 Rule 13 lies in the requirement of Order 5 Rule 13 which states that the deposit of the security for costs be made in the Registrar’s Trust Account. Section 209 of the OLNLGE on the other hand simply states that security for costs be deposited with the Registrar of the National Court.  

20.	The Court was urged to give liberal meaning to Order 5 Rule 13, especially to words “at the time of filing the application for leave”. It was argued that what is of the essence is that even if the deposit for the security for costs was made before the filing of the application for leave, which is what happened in this case, production of the evidence of the deposit being made already, such as a deposit slip at the Registry at the time of filing the application for leave would be sufficient compliance with the requirements of Order 5 Rule 13. The case of Amuli v. Gore (2023) SC2399 was relied upon for this argument.  

21.	In this case, it is not disputed that the security for costs was paid on 15 January, 2024, in the Registrar’s Trust Account at a bank with BSP, and the application for leave was filed the next day in the Registry on 16 January, 2024 with the security for costs having been paid already. The Court is therefore urged to dismiss this ground of objection.

22.	Regarding ground 3 of the objection in which the first respondent also argued that the application for leave is incompetent because the applicant invoked laws which did not exist, Mr Manase while conceding the error in pleading wrong “Division 4” instead “Division 2” under Order 5 of the Rules, argued that this ground of objection is trivial and the first respondent is nit-picking.  He told the Court that “the only error is the reference to Division 4 instead of Division 2”. He relied again on Thomas v. Bando (supra), which is a decision of a single judge of the Supreme Court, in which it was held among others, that although the Rules do not require the jurisdictional basis for an application for leave for judicial review under s. 155 (2) (b) of the Constitution to be pleaded, the Court nonetheless held the application competent, when it stated that the application was – “made pursuant to Order 5 Division 2, Sub-division 2, rules 8, 9 and 10 of the Supreme Court Rules (as amended)”. The Court there held that this was sufficient pleading of the jurisdictional basis of the application for leave. 

Reasons for decision

23.	Having considered arguments by counsel and the material before the Court, I find that the first respondent has made out all the grounds of objection against the competency of the applicant’s application for leave. 

24.	Regarding the first ground of objection, I find Re Nama [2020] PGSC 33; SC1946 has relevance to the issues at hand. The applicant in that case was the Leader of the Opposition, who filed an application under s. 18 of the Constitution as the Leader of the Opposition, the application was signed under that official name and style. However, at the time of signing and filing the application, the applicant was no longer holding Office as the Leader of Opposition because he was suspended by a Leadership Tribunal under s. 28 of the Organic Law on Duties and Responsibilities of Leadership for alleged misconduct in Office. He was found guilty by the Leadership Tribunal and was recommended for dismissal.  The interveners in the application filed an objection to the competency of the application on the grounds that the applicant was not the Leader of Opposition when he signed and filed the application. The applicant argued that the National Court had subsequently stayed the decision of the Leadership Tribunal therefore he had the capacity to file the application as the Leader of the Opposition. The Supreme Court in holding that the application was incompetent said among others, that the application was incompetent because the applicant was under suspension and therefore could not exercise the powers of the Leader of the Opposition to file an application under s. 18 of the Constitution. 

25.	The case of Re Nama was concerned with an application under s. 18 of the Constitution, purportedly filed by the Leader of the Opposition to challenge the election of the Prime Minister. This case concerns an application under s. 155 (2) (b) of the Constitution for leave to review the decision of the National Court, which declared the election of the applicant as the Member for Aitape-Lumi in the last national elections null and void. In that regard, the two cases do differ. But I find that the two cases share one common denominator which is, in both cases, the applicants signed their applications under the names and titles they did not hold. More importantly, by signing the applications under the names and titles they no longer held, the applicants acted in contempt, in the case of Re Nama, of the Leadership Tribunal orders recommending his dismissal, and in this case, of the National Court orders declaring the election of the applicant as Member for Aitape-Lumi null and void.   In this case, the applicant in also go defiance of the National Court orders signed the application as the Member for Aitape-Lumi when he was not. In both Re Namah and this case, the applicants brought the Organic Law on Duties and Responsibilities of Leadership and OLNLGE into disrepute. In both cases, there were elements of dishonesty and falsehood in the manner and style they signed and filed the applications. These were not trivial matters; they go to the integrity and the dignity of the electoral process. See, Re Application by Morobe Provincial Government – Review pursuant to Constitution s. 155 (2) (b) [2012] SC1190.  Furthermore, in this case, the application for leave breached Order 5 Division 2 Sub-Division 2 Rule 10 (b) and (e) of the Rules, which also go to the jurisdiction of the Court. I therefore do not find the applicant wrongly pleading “Division 2” as “Division 4” a trivial matter.

26.	The second ground of objection must be decided according to the mandatory requirements of Order 5 Rule 13 of the Rules. To me the critical words of the Rule are “at the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account…”. This Rule must be given its plain and ordinary meaning because there cannot be any ambiguity in the words of the Rule. See, Manwau v. Bird [2023] N10249. 

27.	In my view, the clear legislative intention behind this Rule is that the “applicant” must deposit in person the K5,000.00 security for costs into the Trust Account of the Registrar “at the time of filing the application for leave” at the Registry. Thus, to me two requirements are clear under this Rule. First, the security for costs must be deposited in the Registrar’s Trust Account by the applicant at the time” of filing the application. Second, because the security for costs is to be filed “at the time of filing the application for leave” which is at the Registry, it follows that the security for costs must also be paid at the Registry by the applicant in person in strict compliance with the requirements of the Rule. 

28.	Implicitly, the payment must be receipted by the Registry staff receiving the money, and the receipt must bear the name of the applicant. It is then for the Registry staff to deposit the money into the bank where the Registrar’s Trust Account is held. The significance of this view is that there would be certainty that the payment was made by the applicant as required by the Rule and not by anyone else. This would demonstrate that the applicant is serious in challenging the right of the incumbent of the public office to hold office.

29.	There is no requirement under the Rule that the payment of the security for costs be made at the bank where the Registrar’s Trust Account is held. To give the Rule such expanded meaning would be superfluous, and the Court would be treading into the functions of the legislature, thus legislating. 

30.	The Rules are aimed at protecting the integrity of the electoral process. Under the Rules therefore, it is the applicant who is required to pay the deposit and the deposit must be paid personally by the applicant. 

31.	Meeting these mandatory requirements would indicate the genuineness of the applicant in filing the application for leave to review. The review jurisdiction of the Court under s. 155 (2) (b) of the Constitution is a special and a reserve power, thus applicants invoking the review jurisdiction of the Supreme Court must be serious and genuine in invoking that power. See, Application by the Morobe Provincial Government – Review pursuant to Constitution s. 155 (2) (b) (supra). The significance of this view is attached to the decision by the applicant to challenge the decision of a court of a competent jurisdiction, interest of the public requiring finality of the litigation process and the right of the respondent, viz; the incumbent public office holder to enjoy the benefits of the decision of the National Court. Removing the party which is entitled to the judgement seat is not a trivial matter. It is a serious matter, and the Rules are intended to protect such rights of the party in whose favour the decision was made.

32.	 In this case, the security for costs was said to have been deposited at a bank where the Registrar’s Trust Account is kept a day before the application for leave was filed at the Registry. In my view this was a clear breach of the mandatory requirements of Order 5 Rule 13. The obvious fallacies with the argument that the security for costs could be paid at the bank where the Registrar’s Trust Account was held, then produce the receipt for the payment at the time of filing the application for leave at the Registry are; first, no one would know who actually paid the security for costs and second; the payment of the security for costs could not be said to have been paid “at the time of filing the application for leave” and more importantly there is no requirement that the security for costs is to be paid at the bank where the Registrar’s Trust Account is held. To me the words “at the time” are critical and determinative. 

33.	Regarding the third ground of objection, Order 5 Sub-Division 13 Rule 39 is pertinent. The Rule provides as follows: -

Sub-Division 13 - Dispensation from the Rules

39. 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. (My emphasis).

34.	 Order 5 Division 2 deals with election petition reviews. Sub-Division 1 provides definitions of certain terms. The pertinent parts provide as follows: -  

Division 2 – Election Petition Reviews
Sub-Division 1—Definitions 

7. Unless expressly stated otherwise in this division:— 

“Applicant” means a party referred to in Subdivision 2. 
“Decision” means any decision of the National Court regarding an election petition that is susceptible to review under s 155(2)(b) of the Constitution and for the avoidance of doubt includes a decision to refuse an objection to competency of the petition and a decision to refuse a no-case submission made after the close of the petitioner’s case at the trial of the petition. “Election petition review” means a review under s 155(2)(b) of the Constitution of a decision of the National Court made pursuant to part xviii of the Organic Law on National and Local-level Government Elections.
 	“Index” means the Index to the Review Book under these Rules. 
“Organic Law” means the Organic Law on National and Local-level Government Elections. “Respondent” means the Electoral Commission and the party in whose favour a decision is made. 
“Transcript” means the transcript of proceedings of the National Court on an election petition under review. (My emphasis).

34.	 Division 2 Sub-Division 1 of the Rules having defined the applicant’s application for leave as being made pursuant to XVIII of the OLNLGE (Organic law), pursuant to Order 5 Sub-Division 13, Rule 39, the Court has no power to dispense with the requirement that the applicant had to  plead the correct Sub-Division for his application for leave which is Sub-Division 2 and not Sub-Division 4, which is what the applicant pleaded and invoked in his application for leave. This error is significant and is fatal as it goes to the jurisdiction of the Court.

35.	For the foregoing reasons I find the application for leave by the applicant incompetent and is dismissed with costs.

Orders accordingly.
_________________________________________________________
Young and Williams: Lawyers for the First Respondent
Manase Lawyers: Lawyers for the Applicant
In-house Lawyers: Lawyers for the Second Respondent