N3716

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 55 OF 2007

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL 
LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE 
WESTERN HIGHLANDS PROVINCIAL ELECTORATE IN THE 2007 GENERAL ELECTIONS

BETWEEN:

PAIAS WINGTI
Petitioner

AND:

KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

AND:

TOM OLGA
Third Respondent

Waigani: Hartshorn J.
2008: 29th September: 3rd October

JUDICIAL REVIEW – s.155(4) Constitution - whether National Court has jurisdiction to stay a National Court Election Petition decision pending a review by the Supreme Court pursuant to s.155(2)(b) Constitution 

Facts:

Mr. Paias Wingti was successful in his election petition brought in respect of the Western Highlands Provincial Seat in the 2007 National General Elections. Among others, the National Court ordered that there be a recount of the ballot papers. The third respondent Mr. Tom Olga, has been granted leave by the Supreme Court to judicially review the decision of the National Court. Mr. Olga now applies to this court to stay the Orders of the National Court including the recount, until his application to judicially review the National Court decision is heard and determined by the Supreme Court.

The Orders that Mr. Olga seeks to stay had been stayed by this court but only until his application for leave to judicially review had been heard and determined. The application for stay is opposed by Mr. Wingti on the ground that this court does not have the jurisdiction to grant the stay.

Held:

1. All of the probanda that must be established for res judicata to apply have not been and the doctrine does not apply.

2. Mr. Olga’s primary right is no longer before this court. It is before the Supreme Court and it is to the Supreme Court that he must apply for a stay pursuant to s.155(4) Constitution to protect that primary right.

3. The National Court does not have jurisdiction to hear the application of Mr. Olga for the stay of the orders that he seeks. 

4. The order sought in paragraph 2 of the notice of motion of the third respondent dated 18 September 2008 is refused.

Cases cited: 

Papua New Guinea Cases

Avia Aihi v.The State [1981] PNGLR 81 
North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145 
Peter Yama v. Mathew Gubag & Anor (1998) SC547 
SCR No. 22 of 1999; Jimson Sauk Papaki v. Don Pomb Polye & Anor (1999) SC616
Oio Aba v. MVIL (2005) SC779
Wingti v. Rawali & Ors (2008) Unreported EP 55/07 
Peter Yama & 2 Ors v. PNGBC Ltd (2008) Unreported SCA110/04

Overseas Cases

Bozson v. Altrincham UDC [1903] 1KB 547 

Counsel: 

Mr. A. Manase, for the Petitioner 
Mr. A. Kongri, for the First and Second Respondents
Mr. H. Nii, for the Third Respondent

3rd October, 2008

1. HARTSHORN J: The Election Petition for the Western Highlands Provincial Electorate brought by Mr. Paias Wingti was determined in his favour by the National Court. One of the Orders was that there be a recount of the ballot papers.

2. The third respondent Mr. Tom Olga, has been granted leave by the Supreme Court to judicially review the decision of the National Court.

3. Mr. Olga now applies to this court to stay the Orders of the National Court including the recount, until his application to judicially review the National Court decision is heard and determined.

4. The Orders that Mr. Olga seeks to stay had been stayed by this court but only until his application for leave to judicially review had been heard and determined.

5. The application for stay is opposed by Mr. Wingti on the ground that this court does not have the jurisdiction to grant the stay.

6. Mr. Olga contends that the question of whether the National Court has jurisdiction to grant the stay has already been determined by the National Court in these proceedings. This court is therefore precluded from considering the question because of the doctrine of res judicata.

7. The other parties, the Provincial Returning Officer and Electoral Commission of Papua New Guinea, support the application for the stay.

Issues

8.
a) Does res judicata apply to the jurisdiction question?

b) If not, does the National Court have jurisdiction to grant the stay?

c) If yes, is Mr. Olga entitled to a stay?

Does res judicata apply to the jurisdiction question

9. Mr. Olga’s counsel submits that as the issue whether the National Court has jurisdiction to grant a stay under s. 155(4) Constitution to prevent prejudice to his right to review under s. 155(2)(b) Constitution has been considered already by Kapi CJ (as he then was) in this proceeding, Wingti v. Rawali & Ors (2008) Unreported EP 55/07, Kapi CJ, Waigani, delivered 22/4/08; Mr. Wingti is estopped from raising the issue again pursuant to the doctrine of res judicata. No authorities were cited by Mr. Olga’s counsel in support of this submission.

10. I mention here that the factual situation that was considered by Kapi CJ differs to that under consideration now. Mr. Olga has been granted leave to judicially review the National Court decision by the Supreme Court. His application for that leave had not been heard when Kapi CJ considered the matter.

11. The recent Supreme Court case of Peter Yama & 2 Ors v. PNGBC Ltd (2008) Unreported SCA110/04 (Sakora, Gabi, Hartshorn JJ) Waigani, delivered 9/7/08, considered the doctrine of res judicata. The Court considered the 6 probanda, all of which must be established by the party setting up res judicata, as postulated in The Doctrine of Res Judicata by Spencer, Bower and Turner 1969 2nd ed p.1. One of those probanda is ‘was the judicial decision final’.

12. In determining whether a decision was final, the Court referred to the Supreme Court cases of North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145 and Oio Aba v. MVIL (2005) SC779. Both cases effectively adopted the test in Bozson v. Altrincham UDC [1903] 1KB 547 namely:

Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

13. As the Order of Kapi CJ was to stay proceedings, it did not finally dispose of the rights of the parties and is not a final judicial decision. Consequently all of the probanda that must be established for res judicata to apply have not been and the doctrine does not apply here.

Does the National Court have jurisdiction to grant a stay

14. Counsel for Mr. Olga relied on the decision of Kapi CJ in support of his submission that the National Court did have jurisdiction to grant a stay under s.155(4) Constitution, of Orders made by the National Court exercising its jurisdiction under s.212 Organic Law on National and Local Level Government Elections (Organic Law), pending a determination of a judicial review by the Supreme Court.

15. The Supreme Court in Peter Yama v. Mathew Gubag & Anor (1998) SC547 said that:

The National Court sitting in its electoral jurisdiction derives its powers from the Organic Law. It is thus a creature of Statute. It follows that one must consider what powers are given to it by the Organic Law.

16. That case was concerned with whether a National Court sitting in its electoral jurisdiction had jurisdiction to hear, set aside and reinstate a petition. The Supreme Court held that it did not have that jurisdiction. In addition the Court said that:

We consider that the only recourse in such an event as is in the present case (where a petition is struck out by the National Court in its electoral jurisdiction) is by way of a s.155(2)(b) application for review. (words in brackets added)

17. Given that the Court held that the National Court in its electoral jurisdiction did not have the jurisdiction to hear, set aside and reinstate a petition that was struck out by another National Court in its electoral jurisdiction, it is logical to assume that it would not have the power to stay, as that power is not conferred by s.212 Organic Law.

18. The Court was not requested to consider whether a National Court in its electoral jurisdiction had power under s.155(4) Constitution to stay a decision of another National Court exercising its electoral jurisdiction.

19. As to s.155(4) Constitution, Kearney DCJ in Avia Aihi v.The State [1981] PNGLR 81 stated:

I agree with the views of Prentice CJ and Andrew J in Constitutional Reference No. 1 of 1979; Premadas v. Papua New Guinea [1979] PNGLR 329 that the Constitution, s.155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected.

20. What is the primary right in this instance? Pursuant to s.220 Organic Law:

A decision of the National Court is final and conclusive and    without appeal, and shall not be questioned in any way.

21. So under the Organic Law, the law under which rights in respect of elections are conferred, there is no right of appeal and the decision is final and conclusive. There are no rights remaining under this law.

22. Notwithstanding s.220 Organic Law, s.155(2)(b) Constitution can be used to review a decision of the National Court exercising its electoral jurisdiction but now only if leave is obtained pursuant to the Supreme Court Election Review Rules. This ability to review, subject to leave being granted, is given by the Constitution, not by the Organic Law.

23. The primary right is given by the Constitution. The Supreme Court is the Court that reviews under s.155(2)(b). An aggrieved party seeking to review under s.155(2)(b) is no longer before the National Court exercising its electoral jurisdiction; he is before the Supreme Court, especially after he has been granted leave by that Court to judicially review.

24. The Supreme Court in SCR No. 22 of 1999; Jimson Sauk Papaki v. Don Pomb Polye & Anor (1999) SC 616, in considering an interlocutory application for a stay under s. 155(4) Constitution, of a decision of the National Court exercising its electoral jurisdiction, pending a review under s. 155(2)(b) Constitution, stated the following concerning ss. 220 and 226 Organic Law:

In our view, this application is clearly misconceived because it has no sound legal basis. As a matter of constitutional law, pursuant to (the Organic Law), s.226 read in conjunction with s.220, the decision of the National Court, in so far as it concerns the applicant's right to remain in office……. was final and self executing…….

25. While s.226 Organic law is not applicable in this instance as there was no declaration made to which that section applies, the decision of the National Court in its electoral jurisdiction that Mr. Olga seeks to stay is a decision that is final and conclusive without appeal and which shall not be questioned in any way pursuant to s.220 Organic Law.

26. It is not self executing as the decision in Papaki (supra) was, as s.226 Organic Law does not apply, but it is a decision from which there are no rights granted by the primary law, the Organic Law. The only right to be protected is the application to review given by the Constitution under s.155(2)(b) once leave has been granted by the Supreme Court.

27. To protect that primary right by application of s.155(4) Constitution, the Supreme Court is the Court before which application should be made as it is the Supreme Court before which the aggrieved party is exercising his primary right.

28. It is not the National Court to which application can be made in this instance under s.155(4) Constitution as the aggrieved party is no longer before it for his primary right.

29. Again, in the words of Kearney DCJ in Avia Aihi (supra):

s.155(4) gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. (emphasis added)

30. The circumstances before this court are different from the circumstances that existed when Kapi CJ made his earlier decision in this proceeding. The primary right of Mr. Olga to review under s.155(2)(b) has been established as the Supreme Court has granted him leave. That was not the fact situation when the case came before Kapi CJ.

31. In my view, as Mr. Olga’s primary right is no longer before this court, it now being before the Supreme Court, it is to the Supreme Court that he must apply for a stay pursuant to s.155(4) Constitution to protect that primary right.

32. This court to my mind, does not have jurisdiction to hear the application of Mr. Olga for the stay of the Orders that he seeks, for the reasons given. Accordingly, the order sought in paragraph 2 of the notice of motion of the third respondent dated 18 September 2008 is refused.

Costs

33. Counsel for Mr. Wingti sought costs on a solicitor client basis if he was successful in his defence of this motion. This was on the basis that he had put the lawyers for Mr. Olga on notice that their application was an abuse of process and should have been filed in the Supreme Court.

34. Given that the previous stay had been granted by the National Court, Mr. Olga was entitled to argue the point again before this court. Costs shall be paid by the third respondent to the petitioner, of and incidental to this application, on a party to party basis.

_____________________________________

Steeles Lawyers: Lawyers for the Petitioner 
Nonggorr & Associates: Lawyers for the First and Second Respondents 
Harvey Nii Lawyers: Lawyers for the Third Respondent