SC2722

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 68 OF 2023

PETER CHARLES YAMA
Applicant

V

HON. RAMSEY PARIWA, MP
First Respondent

THE ELECTORAL COMMISSION
Second Respondent

WAIGANI: HARTSHORN J, KARIKO J, POLUME-KIELE J
26 MARCH & 7 APRIL 2025

SUPREME COURT - practice and procedure – election petition – application to set aside decision of single judge of Supreme Court granting extension of time to serve application for leave to review decision of National Court in election petition – allegation that single judge was biased – Constitution, s 155(4) – whether the court has jurisdiction – whether application is an abuse of process.

The first respondent successfully defended an election petition in the National Court which disputed his return as a successful candidate in the 2022 general elections. Aggrieved, the applicant seeks to have the decision reviewed by the Supreme Court. Unable to serve his filed application for leave to review within the time required by the Supreme Court Rules, the applicant sought extension of time to effect service which was granted by a single Supreme Court judge.  Ten months later, the first respondent applied to have the single judge’s order extending time, set aside.  

Held

1.	s. 155(4) Constitution does not grant the Supreme Court power to set aside or review the decision of another Supreme Court however it is constituted, except as may be provided for by any law: Powi v. Southern Highlands Provincial Government (2006) SC844 referred to.

2.	To the extent that the Underlying Law may or may not provide for the Supreme Court to set aside a judgment of a single Supreme Court judge, such a provision would be inconsistent with an existing law and a law which takes precedence over the Underlying Law, namely Order 11 Rule 26 Supreme Court Rules which provides for a party dissatisfied with a direction or order given by a judge under the Supreme Court Rules to apply to the full Supreme Court within 21 days of the direction or order.

3.	In the circumstances of this case, which includes leave being granted to review, to grant the relief sought under s. 155(4) Constitution would lead to a result that is inconsistent with an existing law which takes precedence over the Underlying Law, namely Order 5 Rule 17 Supreme Court Rules which provides that a decision to grant or refuse to grant leave is final and shall not be subject to further review.

4.	There is no proper evidentiary basis for the alleged bias against the single Supreme Court judge.

5.	The application to set aside the order of a single Supreme Court judge was an abuse of process as it was made 10 months later and after the substantive matter had progressed to being ready for hearing. 

6.	The substantive rights of the applicant have not been affected by the order of a single Supreme Court judge which does not have any bearing on the final determination of the issues between the parties.

7.	Application dismissed with costs. 

Cases cited
Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 
Michael Wilson v. Clement Kuburam (2016) SC1489
Paki v. Polye (2011) SC1095
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Powi v. Southern Highlands Provincial Government (2006) SC844

Counsel

B Lomai for the applicant
M Kombri for the first respondent
K Barrion for the second respondent

1.	BY THE COURT: This is a contested application by the first respondent, Hon. Ramsey Pariwa, for the Court to set aside an order of a single Supreme Court judge who granted the applicant, Peter Charles Yama an extension of time to serve his application for leave to review the decision of the National Court which dismissed an election petition he filed against the first respondent. 

BACKGROUND

2.	The applicant and the first respondent contested the Madang Regional seat in the Parliament in the 2022 general elections whereby the first respondent was declared the winning candidate.

3.	That declaration was disputed by the applicant in an election petition filed in the National Court against the respondents.

4.	The petition was dismissed on 23 October 2023.   

5.	Aggrieved, the applicant filed an application in the Supreme Court on 6 November 2023 for leave to review the National Court decision.

6.	As the applicant was unable to serve the leave application within the 14 days’ time limit required by Order 5 Rule 15 Supreme Court Rules, he applied for extension of time to effect service.

7.	The application was heard ex parte by his Honour Salika CJ sitting as a single Supreme Court judge on 9 November 2023. It was granted (the Extension Order), and Mr Pariwa was duly served the leave application. 

8.	This is a chronology of relevant events that followed the Extension Order:

•	16 November 2023: The matter returned before the Chief Justice for directions. All parties were present, and the matter was adjourned for hearing of the leave application.

•	22 November 2023: The first respondent filed an application for the Chief Justice to recuse himself from any further hearing of the case on grounds of apprehension of bias, alleging that the families of the Chief Justice and the applicant have a close friendship.

•	5 December 2023: The matter came before David J who recused himself as he personally knows one of Mr Yama’s wives.

•	21 December 2023: The matter came before Kangwia J who adjourned to 28 December 2023 as not all parties were present.

•	28 December 2023: Kangwia J further adjourned the case to 14 February 2024 after the first respondent discontinued the application for the Chief Justice to recuse himself.

•	14 February 2024: The leave application was heard and granted on 20 February 2024 (the Leave Order).

•	4 March 2024: The applicant filed his application for review.

•	12 March 2024: The first respondent filed a notice of objection to the competency of the review application.

•	17 May 2024: The first respondent filed another application for the Chief Justice to recuse himself from being involved in the case including administratively, on grounds of apprehension of bias. The application also sought Kangwia J to recuse himself as he had dealt with the leave application. 

•	11 June 2024: Hartshorn J, as the listing Judge, informed the parties in court that both the Chief Justice and Kangwia J had agreed to the recusals sought. 

•	21 June 2024: The first respondent filed an application in which he sought to have the hearing of the review application vacated and adjourned; directions issued on the proper procedure to adopt for a challenge to the Extension Order on grounds of bias. Alternatively, the first respondent sought orders to set aside both the Extension Order and the Leave Order, and that the entire proceedings be dismissed. 

•	26 June 2024: The application of 21 June 2024 came before the Supreme Court (Murray J, Frank J, Dowa J) together with the first respondent’s objection to competency of the review application. The applications for vacation of the hearing and adjournment were refused while the objection to competency was argued and the decision reserved. 

•	17 August 2024: The Court delivered its decision dismissing the objection to competency.

•	 5 September 2024: The present application was filed.

9.	The review application is ready for hearing but for this application.

THE APPLICATION

10.	In his application, the first respondent relies on s. 155(4) Constitution and seeks these orders:

•	that the Extension Order is set aside on grounds that the Chief Justice was biased in favour of the applicant; and (consequently)

•	that the Leave Order is set aside; and 

•	that the entire proceeding in the Supreme Court is dismissed.

SUBMISSIONS

11.	Mr Kombri, for the first respondent, asserts that the decision by the Chief Justice to recuse himself from being involved in any way with the further hearing of the case, as relayed to the parties by Hartshorn J on 11 June 2024, amounted to an admission to the alleged bias, and this tainted the propriety of the Extension Order. In those circumstances, it is argued that the first respondent is entitled to the relief sought. Counsel relies on the case authority of Powi v. Southern Highlands Provincial Government (2006) SC844 which highlights five features of s. 155(4) Constitution to guide the Court in considering the application of this provision. It is submitted that consideration of these attributes favors the grant of the relief.   

12.	Mr Lomai, for the petitioner, opposes the application by first contending that s. 155(4) Constitution does not confer jurisdiction to this Court to grant the relief. He relies on cases including Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 and Paki v. Polye (2011) SC1095 for the propositions that s. 155(4) Constitution is to be utilized to enforce a primary right in the absence of legislation providing for that right, and may not be used to produce a result that is inconsistent with existing legislation. 

13.	He points out that Order 5 Rule 17 Supreme Court Rules does not permit an appeal or a review of a decision granting or refusing leave to review a decision in an election petition, 

14.	Counsel urges the Court to find that there is no proper evidentiary basis to conclude that the Chief Justice was biased towards the applicant when deciding the Extension Order. 

15.	It is further submitted that in circumstances where there has been an inordinate delay in filing this application, this is an abuse of process. 

CONSIDERATION

16.	The applicant seeks to set aside a decision of a single Supreme Court judge by reliance upon s. 155(4) Constitution. The judgment of Powi v. Southern Highlands Provincial Government (2006) SC844 is the primary case authority cited in support. In that judgment at [25], the Court detailed five important features or attributes of s.155(4) Constitution. The fourth of those is:

“The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; ….”

17.	The applicant submits that the exception “as may be provided for by any law”, includes the Underlying Law under s. 9 Constitution and s. 3 Underlying law Act 2000 and the ability of this Court pursuant to the Underlying Law to consider matters relating to real and actual bias of a judge.

18.	To the extent that the Underlying Law may or may not provide for the Supreme Court to set aside a judgment of a single Supreme Court judge (and it is not necessary for this Court to consider that issue), such a provision would be inconsistent with an existing law and a law which takes precedence over the Underlying Law: s. 9(e) and (f), s. 10 and sch 1.2.2(1) Constitution; s. 6 Underlying Law Act 2000.

19.	That law is Order 11 Rule 26 Supreme Court Rules which provides for a party dissatisfied with a direction or order given by a judge under the Supreme Court Rules to apply to the full Supreme Court within 21 days of the direction or order. To grant the relief sought under s. 155(4) Constitution would be to grant relief which is inconsistent with the procedure prescribed by Order 11 Rule 26. Further, in the circumstances of this case, which includes leave being granted to review, to grant the relief sought under s. 155(4) Constitution, would lead to a result that is inconsistent with an existing law which takes precedence over the Underlying Law. That law is Order 5 Rule 17 Supreme Court Rules which provides that a decision to grant or refuse to grant leave is final and shall not be subject to further review.

20.	Consequently, s. 155(4) Constitution is not able to be successfully relied upon by the applicant for the relief which he seeks.

21.	In any case, we find that the application is founded on a misapprehension of a significant fact. Any allegation of actual or real bias against any Judge including the Chief Justice is a very serious matter, for obvious reasons. It is an attack on the integrity and reputation of a judge who the public expects to adjudicate cases in an impartial manner, including free of prejudice and without bias. There has been no finding or determination by a single Judge or a full court regarding the bias alleged against the Chief Justice. The administrative decision of his Honour not to further involve himself in the case does not translate to an admission to the alleged bias. 

22.	There is no proper evidentiary basis for suggesting the Chief Justice was and is biased in favour of the applicant. The alleged facts upon which bias is alleged are contained in the affidavit of one Brian Kapi, Close Protection Officer for the first respondent. That affidavit is annexed to the first respondent’s affidavit in support filed 5 September 2024 and relied on in this application. Brian Kapi’s evidence is therefore hearsay.  

23.	The first respondent states in his affidavit in support that he received from his Close Protection Officer the information about the friendship between the families of the Chief Justice and the applicant in September 2022 after the election petition was filed.  He deposes that when he learnt of the Extension Order, he concluded that the Chief Justice had assisted the applicant as a family friend. This means that the first respondent formed the view on or about 9 November 2023 that the Extension Order was tainted with bias, yet the present application was filed 5 September 2024, some 10 months later. 

24.	In the meantime, the application for leave to review was heard and granted; the application for review was filed; objection to competency of the review application was heard and dismissed; the review application has progressed to being ready for hearing. It is noted that the first respondent had ample opportunity earlier to make the current application. He did not dispute the Extension Order in his first application for recusal of the Chief Justice filed 22 November 2023. In fact, he discontinued that application on 28 December 2023. Again, the first respondent did not dispute the Extension Order in his application for recusal of the Chief Justice filed 17 May 2024. In his application filed 21 June 2024 the first respondent did ask for the Extension Order to be set aside on grounds like those contained in the current application, but he did not pursue that when the application came before the full court on 26 June 2024. 

25.	In the circumstances we find this application an abuse of process. In Michael Wilson v. Clement Kuburam (2016) SC1489 at [25], Gavara-Nanu, J remarked:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: ... ” 
`	(Emphasis added)

26.	A further point worthy of mention is that the substantive rights of the first respondent have not been affected by the Extension Order and the Extension Order does not have any bearing on the final determination of the issues between the parties. Any prejudice which the first respondent may have suffered are able to be adequately catered for by an appropriate order for costs and interest if the first respondent is successful.

CONCLUSION

27.	For the foregoing reasons, the application is dismissed, and costs will follow the event. 

28.	Although costs on a solicitor-client basis were raised by the applicant in written submissions, we are not satisfied the claim for this has been properly made out.

ORDER

1.	The application filed by the first respondent on 5 September 2024 is dismissed.

2.	The first respondent shall pay the applicant and the second respondent’s costs of and incidental to the application on party-party basis, to be taxed if not agreed.

3.	The case is referred to the Registrar for it to be listed for directions hearing to progress the application for review to hearing.
Lawyers for applicant: Lomai & Lomai Attorneys
Lawyers for first respondent: Kombri & Associates
Lawyers for second respondent: Kuman Lawyers