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Nasam v Sungi [2024] PGSC 53; SC2548 (4 April 2024)

SC2548

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 54 OF 2023

EMMANUEL WAIMOU NASAM
Applicant

V

JOSEPH SUNGI
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Salika CJ, Cannings J, Yagi J
2024: 28^th March, 4^th April

SUPREME COURT– practice and procedure – election petition reviews – Constitution, s 155(2)(b) – Supreme Court Rules, Division 5.2 – application by notice of motion for leave to review decision of National Court in election petition – application to full court of Supreme Court by party dissatisfied with decision of single judge of Supreme Court to refuse leave for review – objections to competency of notice of motion.

The respondents to a Supreme Court election petition review each objected to the competency of a notice of a motion under Order 11 rules 25 and 26 of the Supreme Court Rules by the applicant, which sought leave from the full court of the Supreme Court to review the decision of the National Court to dismiss his election petition. He had previously been refused leave by a single judge of the Supreme Court. The respondents’ objection was that such a notice of motion is prohibited by Order 5 rule 17 of the Supreme Court Rules, which states “A decision to grant or a refusal to grant leave is final and shall not be subject to further review”. The applicant argued that Order 5 rule 17 is a subsidiary law that cannot constrain the power of the Supreme Court under s 155(2)(b) of the Constitution to review judicial acts of the National Court; and in any event, the Court could and should dispense with the requirements of Order 5 rule 17 under Order 5 rule 39 which allows the Court to dispense with compliance with any of the requirements of the Rules.

Held:

(1) Order 5 rule 17 of the Supreme Court Rules manifests a clear intention to prohibit any appeal against or review of the single Judge’s decision, and to prohibit also making the same application to the full court of the Supreme Court seeking the same relief sought before the single Judge.

(2) Order 11 rules 25 and 26 must be interpreted subject to the specific prohibition imposed by Order 5 rule 17.

(3) Order 5 rule 17 does not provide for any requirements that can be dispensed with under Order 5 rule 39.

(4) Nothing in Order 5 involves any unwarranted or unconstitutional constraint on exercise of the power of review in s 155(2)(b).

(5) The objections to competency were upheld.

Cases Cited

The following cases are cited in the judgment:

Basa v Quoreka & Electoral Commission (2023) SC2394
Electoral Commission v Pruaitch & Mise (2023) SC2416
Nasam v Sungi & Electoral Commission (2023) N10404
Nasam v Sungi & Electoral Commission, SCREV (EP) 54 of 2023, 22.1.24, Unreported
Nomane v Mori & Electoral Commission (2023) SC2412

Counsel

P Mawa, for the Applicant
S Ranewa, for the First Respondent
L Tangua, for the Second Respondent

4^th April 2024

1. BY THE COURT: The respondents to a Supreme Court election petition review each object to the competency of a notice of a motion under Order 11 rules 25 and 26 of the Supreme Court Rules by the applicant, Emmanuel Waimou Nasam, which seeks leave from the full court of the Supreme Court to review the decision of the National Court to dismiss his election petition.

2. Mr Nasam was the petitioner in EP 34 of 2022, a challenge to the election of the first respondent, Joseph Sungi, as member for Nuku Open in the 2022 general election. The petition was dismissed by the National Court constituted by Kassman J on 12 July 2023 (Nasam v Sungi & Electoral Commission (2023) N10404). Mr Nasam’s application for leave to review the decision of the National Court was refused by Hartshorn J, sitting as a single judge of the Supreme Court (Nasam v Sungi & Electoral Commission, SCREV (EP) 54 of 2023, 22.1.24, Unreported).

3. Dissatisfied with refusal of leave, the applicant filed the notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules, seeking the same orders sought before Hartshorn J.

GROUND OF OBJECTION

4. The respondents’ objection to competency is that such a notice of motion is prohibited by Order 5 rule 17 of the Supreme Court Rules, which states “A decision to grant or a refusal to grant leave is final and shall not be subject to further review”.

APPLICANT’S ARGUMENT

5. The applicant argues that Order 5 rule 17 is a subsidiary law that cannot constrain the power of the Supreme Court under s 155(2)(b) of the Constitution to review judicial acts of the National Court; and in any event, the Court could and should dispense with the requirements of Order 5 rule 17 under Order 5 rule 39 which allows the Court to dispense with compliance with any of the requirements of the Rules.

DETERMINATION

6. We uphold the respondents’ argument that the applicant’s notice of motion is prohibited by Order 5 rule 17. This issue has been settled by two recent Supreme Court decisions.

7. In Nomane v Mori & Electoral Commission (2023) SC2412 the applicant was refused leave by a single judge of the Supreme Court to review the decision of the National Court to refuse his objection to competency of an election petition. The applicant then applied by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules to the full court of the Supreme Court, seeking the same orders that were refused by the single Supreme Court Judge. The Court (Cannings J, David J, Kassman J) refused the application for leave, stating:

In our view Order 5 rule 17 manifests a clear intention to prohibit any appeal against or review of the single Judge’s decision, and to prohibit also making the same application to the full court of the Supreme Court seeking the same relief sought before the single Judge.

This interpretation is driven by the governing phrase of Order 5 rule 17: “A decision to grant or a refusal to grant leave is final ...” The remaining words of Order 5 rule 17 “and shall not be subject to further review” do not qualify the governing phrase.

Order 5 rule 17 means what it says. In this case it means Hartshorn J’s decision of 19 June 2023 to refuse leave is final. There is no appeal against it, no review of it, and no right to make the same application before the full court.

We reiterate that Order 11 rules 25 and 26 are rules of general application that would, if not for Order 5 rule 17, allow the application now before the Court to be made. However Order 11 rules 25 and 26 are subject to Order 5 rule 17, which prohibits any appeal, review or application beyond the final decision of the single Judge.

8. In Electoral Commission v Pruaitch & Mise (2023) SC2416 the applicant’s application for leave to review a decision of the National Court to refuse objections to competency of an election petition was summarily determined by a single judge of the Supreme Court, Hartshorn J, as an abuse of process. The applicant then applied by notice of motion under Order 11 rules 25 and 26 of the Supreme Court Rules to the full court of the Supreme Court, seeking the same orders that were refused by Hartshorn J. The Court (Cannings J, David J, Berrigan J) refused the application for leave, stating:

The summary determination of the leave application by Hartshorn J had the effect of refusing the leave application. Though it was not determined on its merits the decision of his Honour was for all intents and purposes a refusal to grant leave. ...

Order 5 rule 17 provides that the decision to refuse leave is final, and that is the end of the matter.

Order 5 rule 17 means what it says. It means Hartshorn J’s decision of 30 May 2023 to summarily determine the leave application is final. There is no appeal against it, no review of it, and no right to move a motion seeking to set aside or quash Hartshorn J’s decision or to reinstate the leave application and have it heard and determined by the full court of the Supreme Court.

9. Mr Mawa, for the applicant, acknowledged those two recent decisions in Nomane and Pruaitch but stressed that we are not bound by them. We should take the opportunity, Mr Mawa argued, to reassert the significance of s 155(2)(b) of the Constitution, which provides the jurisdictional basis for all reviews of National Court decisions in election petition cases. We should not allow ourselves to be constrained by the Supreme Court Rules, which are a subsidiary law, in giving effect to the power of review conferred by s 155(2)(b) of the Constitution, which provides:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

10. Furthermore, we can depart from those two recent decisions, Mr Mawa submitted, by invoking Order 5 rule 39 of the Supreme Court Rules, which states:

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.

11. We are not persuaded to depart from Nomane or Pruaitch. Both cases were in our view correctly decided. Section 155(2)(b) of the Constitution does not confer on any person in any case a right to review of a decision of the National Court. Permitting a review under s 155(2)(b) when a person has lost the right or has no right to appeal against a decision of the National Court necessarily involves an exercise of discretion by the Supreme Court. In the case of election petitions, the Judges have determined by making Division 5.2 (election petition reviews) of the Supreme Court Rules that the power to grant leave for review is vested in a single judge of the Supreme Court. This is consistent with s 162(2) (jurisdiction of the Supreme Court) of the Constitution, which provides:

In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

12. It must be stressed that when the single judge exercises the discretion to grant or refuse leave for review, the judge is exercising the power of the Supreme Court. The Judges have determined that in the case of election petition reviews, the single judge’s decision is final. That is the end of the matter. Nothing in this legislative scheme involves any unwarranted or unconstitutional constraint on exercise of the power of review in s155(2)(b).

13. As for Order 5 rule 39, the point raised by Mr Mawa has already been decided by the Supreme Court (Salika CJ, Hartshorn J, Kariko J) in Basa v Quoreka & Electoral Commission (2023) SC2394. The Court held that Order 5 rule 17 contains no “requirements”, so there is nothing that can be dispensed with under Order 5 rule 39.

14. We therefore apply the principle established by the decisions in Nomane and Pruaitch. The decision of Hartshorn J of 22 January 2024 to refuse leave to the applicant is the end of the matter. The objections to competency are upheld.

ORDER

(1) The objections to competency of the application filed by notice of motion on 9 February 2024, for leave to apply for review of the decision of the National Court of 12 July 2023 in EP No 34 of 2022, are upheld.

(2) The application filed by notice of motion on 9 February 2024, for leave to apply for review of the decision of the National Court of 12 July 2023 in EP No 34 of 2022, is dismissed.

(3) The applicant shall pay the respondents’ costs of the application on a party-party basis, which shall if not agreed be taxed.

___________________________________________________________
Mawa Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent