Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Pato v Kaeok [2023] PGSC 117; SC2472 (6 September 2023)

SC2472

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 28 OF 2022

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:
RIMBINK PATO
Applicant

AND:
MIKI KAEOK
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2023: 5^th & 6^th September

SUPREME COURT - REVIEW - Application for leave to review an interlocutory decision of the National Court in an Election Petition

Case Cited:

Sir John Pundari v. Peter Yakos (2023) SC2345
James Nomane v. Wera Mori (2023) SC2414
Sir Peter Ipatas v. Laken Aigilo (2023) SC2447

Counsel:

Mr. R. Pato, the Applicant, in person

6^th September 2023

1. HARTSHORN J: This is an application for leave to review an interlocutory decision of the National Court in an election petition. That decision ordered an adjournment of the hearing of the subject election petition until the determination of another certain proceeding (adjournment decision). There was no appearance on behalf of either of the respondents at the hearing of this application for leave to review. I permitted the application to proceed as I was satisfied that both respondents had been served pursuant to Order 5 Rule 15 Supreme Court Rules and had been notified of the hearing date and time of the application for leave.

Background

2. The first respondent was declared the elected member of Parliament for the Wapenamanda Open Electorate in the 2022 General Elections. The applicant is petitioning the first respondent’s election. The primary judge ordered an adjournment of proceedings EP 40 of 2022 between the applicant and the respondents pending the determination of Supreme Court Application SC (OS) 9 of 2022 made by the Hon. Peter O’Neill (SC Application). The adjournment decision was made after an application by the first respondent had been heard.

Application for Leave - Law

3. In Sir John Pundari v. Peter Yakos (2023) SC2345, James Nomane v. Wera Mori (2023) SC2414 and Sir Peter Ipatas v. Laken Aigilo (2023) SC2447 amongst others, I considered the law on an application for leave to review an election petition. In Sir John Pundari (supra) 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. Here, 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.

This application

5. The applicant submits that the primary judge fell into error in the exercise of the Court’s discretion in making the adjournment decision on numerous grounds. In essence these grounds are amongst others, that the primary judge fell into error in finding that the SC Application and the applicant’s election petition raise the same issue, that the Supreme Court has exclusive jurisdiction to make a ruling on the return of a late writ and in not giving proper weight to the necessity to deal with an election petition expeditiously pursuant to the Organic Law.

Consideration

6. In this instance, what is sought to be reviewed is a decision of the National Court which ordered an adjournment of the hearing of the election petition pending the hearing of another proceeding. It is an interlocutory decision which does not affect the substantive rights of the applicant. The applicant is not in any way prevented from continuing to prosecute his election petition in the National Court once the SC Application is determined. (As an aside, I informed the applicant that I am aware that the SC Application has been set down to be heard on 27^th September 2023.) Exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. I note the submission that the people of Wapenamanda are suffering prejudice generally because of amongst others, the uncertainty as to who eventually will be their elected Member of Parliament. Apart from unsupported statements, there is no evidence of this or of any prejudice being suffered by the applicant as a consequence of the adjournment decision. 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 does not affect the substantive rights of the applicant. Given this it is not necessary to consider the other submissions of the applicant.

Orders

7. It is ordered that:

a) The application for leave to review filed 25^th May 2023 is refused.

b) No order as to costs.
____________________________________________________________
Steeles Lawyers: Lawyers for the Applicant