SC2458

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 9 OF 2023

MASO HEWABI
Applicant

V

ISAIAH SIMAKA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J, Yagi J, Carey J
2023: 28th August, 6th September

ELECTIONS – application for review by Supreme Court of decision of National Court to dismiss objections to competency of election petition – Constitution, s 155(2)(b).

The applicant applied with leave of the Court for review by the Supreme Court of the dismissal by the National Court of his objection to competency of an election petition, which challenged his election, and another objection to competency raised by the Electoral Commission. The applicant argued that the primary judge did not comply with the principles of natural justice under s 59 of the Constitution and erred in law by failing to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-Level Government Elections, including taking the erroneous view that the objection had to be supported by evidence. 

Held:

(1)	The primary judge did not adhere to the principles of natural justice. The judge did not act fairly, nor was seen to act fairly, in that there was a failure to address the merits of the objections to competency and a failure to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-level Government Elections. The decision of the National Court did not adhere to the minimum requirements of natural justice in s 59 of the Constitution.

(2)	The decision of the National Court to refuse the objections to competency was set aside and the objections were remitted to the National Court for rehearing by another Judge.

Case Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Electoral Commission v Kaku (2019) SC1866
Hewabi v Simaka & Electoral Commission (2023) SC2373

Counsel

D Kints & S Kunai, for the Applicant
J Kolo, for the First Respondent
J Simbala, for the Second Respondent

6th September 2023

1.     BY THE COURT: The applicant, Maso Hewabi, won the seat of Middle Fly Open at the 2022 general election. His election is being challenged by the first respondent, Isaiah Simaka, through an election petition, EP 33 of 2022, in the National Court.

2.     On 28 February 2023 the National Court constituted by Justice Polume-Kiele commenced hearing the petition at Kiunga. The first matters to deal with were two objections to competency of the petition. One was filed by the applicant, who was first respondent in the National Court. The other was filed by the Electoral Commission, which was second respondent in the National Court, and is second respondent in these proceedings. Her Honour heard counsel on both objections and immediately gave an ex tempore decision, dismissing both objections and ordering costs. The primary reason for doing so, which is apparent from the transcript of the proceedings of 28 February 2023, is that the Electoral Commission had not complied with court orders for production of documents, forms 66A and 66B, which were to be introduced as evidence at the trial. 

3.    The applicant was granted leave on 6 April 2023 to apply to the Supreme Court for review of her Honour’s decision (Hewabi v Simaka & Electoral Commission (2023) SC2373). The review is conducted under s155(2)(b) of the Constitution, which states:

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

4.    The application for review is supported by the Electoral Commission and opposed by the first respondent, Mr Simaka.

5.    The applicant argues in his grounds of review set out in paragraph 5.1 of the application for review that her Honour did not accord procedural fairness by dismissing his objection to competency based on default by the second respondent (Electoral Commission) in complying with court orders and did not comply with the principles of natural justice by not providing sufficient reasons for her decision. 

6.    Further, that the primary judge erred in law by failing to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-Level Government Elections, including taking the erroneous view that the objection must be supported by evidence and by failing to consider the grounds of objection set out in the notice of objection to competency and the submissions of the objecting parties. 

DETERMINATION 

7.     Having considered the transcript of the proceedings at Kiunga on 28 February 2023 and the submissions of counsel, we uphold the applicant’s argument that the primary judge did not address the merits of his objection to competency. 

8.     Her Honour, with respect, became distracted by the failure of the Electoral Commission to comply with court orders for production of key documents. The Commission had not produced forms 66A and 66B, which were to be introduced as evidence at the trial. Her Honour failed to appreciate that the failure of the Commission to comply with the court’s orders was something over which the objecting party, the applicant, had no control and had nothing to do with the competency of the petition.

9.    Her Honour rightly regarded those documents as critical for the trial and was rightly dismayed by the Electoral Commission’s disregard of the orders. 

10.    There was nonetheless an ongoing constitutional requirement that the primary Judge had to meet, arising under s 59 (principles of natural justice) of the Constitution, which states:

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

11.    We find that the primary judge did not adhere to the principles of natural justice. Her Honour did not act fairly, and was not seen to act fairly, in that she did not at any stage address the merits of the objection to competency. 

12.    We are satisfied that there was a complete failure to address the requirements of ss 208, 209 and 210 of the Organic Law on National and Local-level Government Elections. These provisions set out the requirements an election petition must comply with to enliven the jurisdiction of the National Court, ie the prerequisites for a competent petition: 

208.	Requisites of petition

A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

209.	Deposit as security for costs

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

210.	No proceedings unless requisites complied with

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

13.   In dismissing the objections to competency her Honour relied on an extraneous and irrelevant consideration over which the applicant had no control, ie the failure of the Electoral Commission to comply with court orders for production of documents. 

14.    The applicant had a right to have his objection to competency heard fairly on its merits. Her Honour did not address the submissions of counsel and failed to give any rational reason for refusing the objection. In those respects the decision of the National Court did not adhere to the minimum requirements of natural justice in s 59 of the Constitution (Amet v Yama [2010] 2 PNGLR 87, Electoral Commission v Kaku (2019) SC1866).

15.     Her Honour erred in law by deciding that the objection to competency of the applicant would be dismissed for not having any supporting affidavit. There is no provision of the Election Petition Rules 2017 imposing such a requirement, and there is no reason in principle that an objection to competency must be supported by evidence.

16.     We will therefore grant the application for review. The decision of the National Court to refuse the objection to competency of the applicant will be quashed. We do not have sufficient material and we have not heard sufficient argument on the objections to competency to rule on them. We will remit them to the National Court for rehearing by another Judge. We will make other consequential orders. Costs will follow the event.

ORDER

(1)	The application for review of the decision of the National Court of 28 February 2023 to dismiss objections to competency and the order of 28 February 2023 in EP No 33 of 2022, is granted, and that decision and order are quashed. 

(2)	The objections to competency and the proceedings generally in EP No 33 of 2022 are remitted to the National Court for rehearing before a Judge other than the primary Judge.

(3)	The applicant’s security for costs deposited in accordance with Order 5 rule 13 of the Supreme Court Rules 2012 shall be refunded forthwith.

(4)	The first respondent shall pay the applicant’s costs of the entire proceedings on a party-party basis, which shall if not agreed, be taxed. 
___________________________________________________________
Jema Lawyers: Lawyers for the Applicant	
Kolo & Associates Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent