SC2601

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) 70 OF 2023

BETWEEN:
MUGUWA DILU
Applicant

AND:
WILLIAM GOGL ONGLO
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2024: 7th & 10th June
           
SUPREME COURT – practice and procedure - Application for leave to review an interlocutory decision in an Election Petition

Cases Cited: 
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345
Raminai v. Pano (2023) SC2473

Counsel:
Mr. G. Gileng, for the Applicant
Mr. E. Isaac, for the First Respondent
Mr. R. William, for the Second Respondent

10th June 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review an interlocutory decision of the National Court (Decision) and a contested application to dismiss this proceeding for being an abuse of process. Both applications were heard together. The Decision dismissed the objections to competency of the respondents, now applicant and second respondent. The application for leave to review is opposed by the first respondent and supported by the second respondent. Opposite positions are taken by the parties for the application to dismiss.

Background

2. The applicant was declared the elected Member of Parliament for the Kundiawa-Gembogl Open Electorate in the 2022 General Elections. The first respondent was also a candidate in the election for the Electorate and petitioned the applicant’s election in the National Court. After the objections to competency were dismissed the substantive hearing of the election petition proceeded. It is in evidence that the decision on the election petition was delivered on 6th June 2024. The orders of the National Court include that the petition is upheld and that there shall be a recount of certain votes cast in the 2022 General Election for the said Electorate.

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. The applicant submits that exceptional circumstances do exist in this instance and that it is in the interests of justice that the leave to review sought should be granted. The second respondent submits as to exceptional circumstances, that they do exist. This is because s. 220 Organic Law prohibits a right of appeal and provides that a decision shall not be questioned in any way. Section 220 Organic Law per se, creates exceptional circumstances, it is submitted. 

This application

5. The applicant submits that the primary judge fell into error in the exercise of the Court’s discretion in dismissing the objections to competency on numerous grounds. These grounds are, amongst others, that the primary judge fell into error in his consideration or lack thereof of:

a)	the grounds raised in respect of s. 209 and 208(e) Organic Law, the definition of “filed” in the Election Petition Rules, the Integrated Electronic Case Management System (IECMS) and its legal basis and the effect of Hagahuno v. Tuke (2020) SC2018;

b)	the issues concerning alternative, misguided, imprecise and contradictory pleading, that the petition failed to state the figures of ballots alleged to have been placed in wrong boxes and the interpretation of s.218 Organic Law; 

c)	the issue leading to the decision of the primary judge to permit the petition to proceed to hearing without the amended petition being signed by the now first respondent and by two attesting witnesses.

6. The applicant submits that there are gross errors as to fact clearly apparent or manifested on the face of the evidence and also that there are important points of law which are not without merit. Further, the applicant submits that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

7. The first respondent submits, amongst others, that this application should be dismissed as s. 220 Organic Law prohibits an appeal or review of a National Court decision on an election petition, that the primary rights of the applicant were not affected by the Decision, the applicant was able to and did defend the election petition, there are no merits in this application, no exceptional circumstances exist and it is not in the interests of justice that leave to review be granted. Further, this proceeding should be dismissed as an abuse of process as the substantive proceeding from which this application arises has concluded and so there is no utility in this application. The applicant is in effect seeking to cancel the result of the substantive election petition and the applicant did not apply for a stay of the hearing of the election petition, it is submitted.

Consideration

8. In the grounds, the issue of the filing of the petition is raised and the interpretation and the applicability of the IECMS. In essence, it is submitted by the applicant that the petition was not physically filed in time and so the Court lacked jurisdiction to hear it. The primary judge found that the petition was filed in time, it being filed by the IECMS. 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.”

9. Given the above, I am satisfied in this instance that it has been shown that the primary judge has fallen into error and that it has been established that there is an important point of law to be determined which is not without merit.

10. I am also of the view that the applicant has established that he has an arguable case in respect of the other grounds of review.

11. The next question then 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.

12. 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.

13. In this instance, what is sought to be reviewed is a decision of the National Court which did not dismiss an election petition. It is an interlocutory decision which did not affect the substantive rights of the applicant. The applicant was not in any way prevented from continuing to defend the election petition in the National Court and did defend the election petition. In this context, exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. 

14. As to the submission of the second respondent that s.220 Organic Law per se, creates exceptional circumstances, as s.220 applies to every person who desires to appeal or question a decision of the National Court on an election petition, one of those persons is unable to contend that it is exceptional that he or she cannot appeal or question the subject decision when s. 220 affects all such persons.

15. Further, in circumstances where s.220 Organic Law prohibits an appeal and states that a decision shall not be questioned in any way, it is not in the interests of justice, being justice according to law, that leave to review be granted, particularly in this instance, to review a decision which did not affect the substantive rights of the applicant and in circumstances in which the applicant was able to and did defend the election petition against his election. Given this it is not necessary to consider the other submissions of counsel.

Orders

16.   The Court orders that:

a)	The amended application for leave to review filed 18th April 2024 and this proceeding is dismissed.

b)	The applicant shall pay the costs of the first respondent of and incidental to the said application for leave to review save that each party shall pay their own costs of and incidental to the application to dismiss of the first respondent. 

c)	The applicant’s security deposit of K5,000.00 shall be paid to the first respondent forthwith.
_____________________________________________________________
Gileng and Co. Lawyers: Lawyers for the Applicant                             
Emmanuel Lawyers: Lawyers for the First Respondent                 
Niugini Legal Practice: Lawyers for the Second Respondent