SC1708

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 36 OF 2018

AN APPLICATION UNDER SECTION 155 (2) (b) OF THE
CONSTITUTION AND IN THE MATTER OF PART
XVIII OF THE ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:
LUKE ALFRED MANASE
Applicant

AND:
DON POMB POLYE
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2018: July 26th, 30th

Application pursuant to Order 5 Rule 39 Supreme Court Rules 2012 and Sections 155(2)(b) and (c), s.155(4) and s. 185 Constitution 

Cases cited:

Erie Jurvie v. Bony Oveyara (2008) SC935
Louis Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 Fairweather v. Singirok (2013) SC1279
James Marape v. Johnny Phillip Pokaya (2017) SC1634
Peter Waranaka v. Richard Maru (2018) SC1653
Michael Dua v. Noah Kool (2018) SC1676

Counsel:

Ms. C. Copland, for the Applicant
Ms. H. Masiria, for the First Respondent
Mr. W. Stephen, for the Second Respondent

30th July, 2018

1. HARTSHORN J:  This decision concerns the election petition filed in regard to the result of the Kandep Open Electorate of Enga Province in the 2017 General Elections.

2. The applicant seeks pursuant to Order 5 Rule 39 Supreme Court Rules 2012, to dispense with the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules 2012 and that he be granted leave to file an Application for Leave to Review the interlocutory decision of the National Court made on 5th July 2018 in EP 73 of 2017 – Don Pomb Polye v. Luke Alfred Manase and Electoral Commission (interlocutory decision).

3. Alternatively, the applicant seeks, pursuant to sections 155(2)(b) and (c), 155(4) and 185 Constitution that he be granted leave to file an Application for Leave to Review the interlocutory decision.

4. The second respondent supported the application while the first respondent did not make any submissions upon the application. Notwithstanding that the application is unopposed the court is required to consider whether the applicant is entitled to the relief that he seeks.

5. The interlocutory decision the subject of this application upheld in part the objections to competency of the applicant and the second respondent, being the first and second respondents in the National Court, and ordered that certain allegations in the petition are competent and will progress to trial.

This application

6. As to the dispensation application, the applicant submits that dispensation with the definition of “Decision” in Order 5 Rule 7 Supreme Court Rules 2012 is necessary as “Decision” is defined in that Rule to mean, in effect, that only a final decision concerning an Election Petition may be the subject of an application to review. Dispensation of the definition of “Decision” is sought so that the interlocutory decision can be the subject of an application to review.

7. Reliance is placed upon Order 5 Rule 39 Supreme Court Rules 2012 which is as follows:

“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.”
8. It is conceded in the submissions of the applicant concerning Order 5 Rule 39 that for this Rule to be able to be successfully relied upon for dispensation with compliance with any of the requirements of the Rules, there must be a Rule that contains a requirement that has to be complied with. Order 5 Rule 7 which contains the definition of “Decision” is not a Rule that contains a requirement, or a requirement to be complied with. Consequently Order 5 Rule 39 cannot be successfully relied upon to dispense with “Decision” in Order 5 Rule 7. The applicant refers to my decisions of James Marape v. Johnny Phillip Pokaya (2017) SC1634; Peter Waranaka v. Richard Maru (2018) SC1653 and Michael Dua v. Noah Kool (2018) SC1676 in this regard.
9. In the absence of any argument as to why I should consider departing from the reasoning in the above three decisions, that reasoning leads me to refuse the application for dispensation made pursuant to Order 5 Rule 39 Supreme Court Rules 2012.
10. I now consider the alternative application made pursuant to sections 155(2)(b) and (c), 155(4) and 185 Constitution.

11. In regard to reliance upon s. 155(2)(b) and (c) - the Supreme Court’s inherent power to review all judicial acts of the National Court and other jurisdiction and powers as are conferred - the Supreme Court Rules 2012 specifically make provision with respect to the practice and procedure for Election Petition Reviews. These Reviews are made pursuant to the Supreme Court’s inherent power to review all judicial acts of the National Court under s. 155(2)(b) Constitution. All applications made in respect of these Reviews require compliance with the Supreme Court Rules 2012 and specifically those Rules applicable to Election Petition Reviews in Order 5. There is no application before this court that seeks relief on the basis that the Supreme Court Rules 2012 either do not apply or are not in force or should not be complied with. 
12. In regard to s.185 Constitution, it is as follows:
“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”
13. It is the case that in the circumstances of an application for leave to review a decision of the National Court made in an Election Petition, the Supreme Court Rules 2012 are to the effect that such an application for leave to review may only be made in respect of a final decision. To that extent, the Supreme Court Rules 2012 have made provision for an application concerning an Election Petition under s. 155(2)(b) Constitution by specifying the practice and procedure to be complied with. It is not the case that there is no provision or no adequate provision. That the Supreme Court Rules 2012 do not provide for or permit a person to make a particular application of that person’s choice does not lead to the conclusion that the Supreme Court Rules 2012 are in some way lacking or inadequate.

14. As to s.155(4) Constitution, it is unable to be successfully relied upon by the applicant. Section 155(4) is to be utilized to enforce a primary right in the absence of legislation providing for that right: Louis Medaing v. Ramu Nico Management (MMC) Limited (2011) SC1156 at [10] - [12]. Further, s.155(4) may not be used to produce a result that is inconsistent with existing legislation.

15. The Supreme Court Rules 2012 provide for amongst others, the practice and procedure to be followed for reviews of Election Petitions under s.155(2)(b) Constitution. Further, to grant an application for leave to review an interlocutory decision would produce a result that is inconsistent with the Supreme Court Rules 2012.

16. Reference was made by counsel to the decision of Fairweather v. Singirok (2013) SC1279. In that case the Court consisting of a single Supreme Court Judge upheld the argument that Order 11 Rule 9 Supreme Court Rules 2012 could be relied upon for the Court to make directions that relevant provisions of the Supreme Court Rules 2012 do apply to interlocutory decisions. Application is not made before this court under Order 11 Rule 9, however I comment that it is similar in its effect to s.185 Constitution. A prerequisite for Order 11 Rule 9 to be successfully relied upon is “… the manner or form of the procedure is not described, …” In my view, my remarks concerning s.185 Constitution not being applicable in this instance, apply also to Order 11 Rule 9. 

17. Reference was also made to Erie Jurvie v. Bony Oveyara (2008) SC935. That decision is concerned with an application for leave to review a dismissal of an Election Petition. A dismissal of an Election Petition is not an interlocutory decision and so this case is not on point.

18. Given the above, I am not satisfied that the applicant is entitled to any of the relief that he seeks.

Orders

19. It is ordered that:

a)	The relief sought in paragraphs b) and c) of the Application of the applicant filed 19th of July 2018 is refused;

b)	No order as to costs.
_____________________________________________________________ 
Simpson Lawyers:  Lawyers for the Applicant                               
Fairfax Legal PLN:  Lawyers for the First Respondent                   
Kawat Lawyers:  Lawyers for the Second Respondent