SC2575

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) 69 OF 2023

BETWEEN:
PAUL MAWA
Applicant

AND:
WIN BAKRI DAKI
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent
    
Waigani: Hartshorn J.
2024: 21st February,
: April 22nd

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

Cases Cited: 
William Hagahuno v. Johnson Tuke (2018) SC1712
Sir John Pundari v. Peter Yakos (2023) SC2345
Wesley Raminai v. Maino Pano (2023) N10248
Raminai v. Pano (2023) SC2473

Counsel:
Mr. P. Mawa, the Applicant, in person
Mr. P. Othas, for the First Respondent
Mr. T. Cook, for the Second Respondent

22nd 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 Tambul Nebilyer Open Electorate in the Western Highlands Province 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 21st November 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 National Court fell into error amongst others:

i)	in concluding that the petition was filed seven days out of time notwithstanding that the Court found that the petition was uploaded on the Integrated Electronic Case Management System (IECMS) within 40 days;

ii)	in not giving convincing reasons for not following previous National Court decisions which are to the effect that uploading a document on IECMS constitutes filing for the purposes of the Organic Law;

iii)	in its interpretation of the IECMS Practice Direction No.1 of 2022.

b)	there is an important point of law to be determined which is not without merit;

c)	on the findings of fact, there is a gross error clearly apparent on the face of the record which is not without merit;

d) 	there are exceptional circumstances to grant leave because of conflicting National Court authority on the application of the IECMS;

e)	it is in the interests of justice to grant leave.

6. 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

7. The main points of contention in this application for leave to review are the consideration of the primary judge of when a petition is considered to be “filed” for the purposes of s. 208(e) Organic Law, the application of the IECMS, the “split” between judgments of the National Court on these issues, whether exceptional circumstances have been established and whether it is in the interests of justice that leave be granted.

8. As to the consideration of the primary judge of “filed”, from a perusal of the judgment of the primary judge, it is clear that Her Honour has considered the issue comprehensively and in detail and to my mind, has given convincing reasons for not following previous National Court decisions which are to the effect that uploading a document on IECMS constitutes filing for the purposes of the Organic Law. Her Honour states at [35] to [38] of her judgment as follows:

“35. As all those cases cited are all National Court Judgments, I am not bound by any of them. However, having considered the reasons in each of those cases, I am persuaded by the Judgments of their Honours, Batari J, Manuhu J and Kangwia J in their respective cases, which together with the other cases cited stood for the second view, which is: a petition is filed after it has completed the 3 steps process, namely:

•	Lodgement of the Petition at a National Court Registry.
•	Sealing of the Petition with the seal of the National Court and
•	The Petition is given an election petition number.

36. The foundation of this view (second view), which I respectfully consider is the correct one, is the Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022. The Election Petition Rules were made by Judges pursuant to Section 212 of the Organic Law to give effect to the Organic Law dealing with Election Petitions.

37. The Election Petition Rules clearly defined the phrase “The Petition shall be filed” as set out in Section 208(e) of the Organic Law to mean.

“Lodged in a Registry of the National Court at Waigani or at a Registry or sub - Registry of the National Court in a Province, a set in schedule 1, and sealed with the seal of the Court and endorsed with an election petition number”

(emphasis added)

9. As to the application of the IECMS and its legal basis, 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.”

10. 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.

11. The applicant refers to the “split” in National Court judgments on this issue and submits that this split establishes exceptional circumstances. Further, reference is made to my judgment in William Hagahuno v. Johnson Tuke (2018) SC1712 in which I granted leave to review because there were conflicting National Court decisions. At [18] I said: 

“18. I am further satisfied that because of the lack of any other Supreme Court decision on this issue, the conflicting National Court decisions, and that the common law of England appears to favour the argument of the applicant, if leave is granted the application for review is likely to succeed. Consequently, the application for leave to review should be granted.”

12. In this instance however, notwithstanding that there are conflicting National Court decisions on the IECMS issue, after a detailed consideration of the relevant laws and their hierarchy, the various judgments and the interests of justice according to law, I am not satisfied that an application for review, if leave was granted, would be likely to succeed.

13. That there are conflicting National Court judgments, with respect, does not ipso facto, mean that there are important points of law raised by those conflicting judgments.

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

Orders

18.  The Court orders that:

a)	The application for leave to review filed on 30th November 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.

_____________________________________________________________
Applicant                    In person
Paul Othas Lawyers: Lawyers for the First Respondent                 
Kuman Lawyers: Lawyers for the Second Respondent