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Akem v Kapili [2024] PGSC 127; SC2660 (28 October 2024)

SC2660

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

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

SCREV (EP) 54 OF 2024

BETWEEN:
AMOS JOSEPH AKEM
Applicant

AND:
TOMAIT KAPILI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J.
2024: 25^th & 28^th October

SUPREME COURT REVIEW – practice and procedure - Application for leave to review an interlocutory decision in an Election Petition

Cases Cited:
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:
Mr. R. Lains and Mr. Z. Kamaso, for the Applicant
Mr. R. William, for the Second Respondent

28^th October 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review an interlocutory decision of the National Court (Decision). The National Court, after hearing the applicant’s notice of objection to competency, dismissed all but eight grounds of the election petition. The eight grounds not dismissed are to proceed to trial.

2. I permitted the hearing of the application for leave to proceed, notwithstanding the absence of the first respondent or his lawyer, as I was satisfied that the first respondent’s lawyers had been served and notified of the hearing date and time of the application for leave in accordance with a chambers order made by me.

Background

3. The applicant was declared the elected Member of Parliament for the Lagaip Open Electorate in the 2022 General Elections. The first respondent was also a candidate in the election for the Electorate and petitions the applicant’s election in the National Court.

Application for Leave - Law

4. In Sir John Pundari v. Peter Yakos (2023) SC2345, I considered the law on an application for leave to review an election petition at [3] to [13]. 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.”

5. 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. The applicant further submits that s.220 Organic Law is subject to the powers of the Supreme Court pursuant to s. 155(2)(b) Constitution.

This application

6. The applicant submits on numerous grounds that the primary judge fell into error in the exercise of the Court’s discretion in not upholding all of the objections to competency and dismissing the election petition. In essence, these grounds are amongst others, that the primary judge fell into error in his consideration of certain pleadings concerning alleged bribery and errors and omissions. Further, the applicant, supported by the second respondent, submits that the primary judge fell into error in his consideration or lack thereof of the objections made concerning the alleged failure of the first respondent to comply with Rule 6 of the Election Petition Rules and his acceptance of the evidence of Assistant Registrar, Mr. Baka Bina in that regard.

7. The applicant submits further that there are errors as to fact clearly apparent or manifested on the face of the evidence and also that there are important points of law which are not without merit. In addition, the applicant, supported by the second respondent, submits that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

Consideration

8. As the applicant emphasised in submissions that s. 220 Organic Law is subject to the powers of the Supreme Court pursuant to s. 155(2)(b) Constitution, it is useful to consider the interplay between s. 155(2)(b) Constitution and s. 220 Organic Law.

9. Section 155(2)(b) Constitution does not give a right to review. It provides generally that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Constitution is silent as to when the Supreme Court may exercise that inherent power to review and who has the right to request the Supreme Court to exercise that inherent power and when. Given this, the Supreme Court, beginning with Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No. 2) [1982] PNGLR 44, developed factors to be considered before the Court will exercise its inherent power under s. 155(2)(b) Constitution. Under s. 220 Organic Law, a decision of the National Court is final and conclusive and without appeal and shall not be appealed or questioned in any way. As a review of a decision is a questioning of a decision in some way, s. 220 Organic Law may be interpreted to mean that there is no right to request the Supreme Court to exercise its inherent power of review of an election petition under s.155(2)(b) or if there is such a right to request, however that right may have arisen, that right cannot be exercised in respect of a National Court decision covered by s.220 Organic Law. If it were otherwise and an election petition could be questioned, this is contrary to s.220 Organic Law and renders the wording of s.220 Organic Law otiose. The factors that have been developed in judgments by the Supreme Court to be considered before the Court will exercise its inherent power under s. 155(2)(b) do not have the effect of overriding the provisions of a statute or an Organic Law.

10. The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.

11. Given the above, to the extent to which it is able, for this Court to grant leave to review, I am satisfied that it is necessary for an applicant seeking to review a decision in an election petition, including an interlocutory decision, to show that in addition to there being an important point of law as referred to or a gross error as to fact as referred to, that there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

12. In this instance, what is sought to be reviewed is a decision of the National Court which did not dismiss an election petition. 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 defend the election petition in the National Court. (As an aside, the applicant is not prevented from pursuing other action as foreshadowed in submissions by counsel for the applicant.) In this context, exceptional circumstances have not been established in my view and from a perusal of the documentation before the Court, do not exist. 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 counsel.

Orders

13. The Court orders that:

a) The application for leave to review filed 22^nd October 2024 is refused.

b) Costs are in the cause.
_____________________________________________________________
Hardy and Stocks Lawyers: Lawyers for the Applicant
Niugini Legal Practice: Lawyers for the Second Respondent