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Dola v Alua [2024] PGSC 41; SC2565 (26 April 2024)

SC2565

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR REV. (EP) NO. 64 OF 2021

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
TULIP WESA DOLA
Applicant

AND
FRANCIS YORI ALUA
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Gavara-Nanu J
2024: 21^st February
2024: 26^th April

PRACTICE & PROCEDURE – Election petition – Dismissal of the petition by the Court of Disputed Returns (National Court) - Application for leave for judicial review of the decision of the National Court – Constitution; s. 155 (2) (b) – Refusal of leave by a single judge of the Supreme Court – Application by way of a notice of motion purporting to review the decision of the National Court –Requests in the same notice of motion for the Chief Justice to issue Directions and empanel special Supreme Court benches to hear and interpret s. 208 of the Organic Law on National and Local-level Government Elections and Order 5 Rule 17; Order 11 Rules 9, 25, 26 and 27 and Order 13 Rule 16 of the Supreme Court Rules (as amended)- Whether the notice of motion is an abuse of process.

Cases Cited:
Electoral Commission v. Patrick Pruaitch and Anderson Mise (2023) SC2416
Michael Wilson v. Clement Kuburam (2016) SC1489

Counsel:
B. Lomai, for the Applicant
G. Gileng, for the First Respondent
J. Simbala, for the Second Respondent

26^th April 2024

1. GAVARA-NANU J: This is an application by the first respondent made pursuant to Order 13 Rule 16 of the Supreme Court Rules, 2012 (as amended), (“the Rules”) filed on 8^th January, 2024 seeking dismissal of the notice of motion filed by the applicant on 20th December, 2023, for abuse of process.
   
2. The backgrounding facts are these. The first respondent contested the Karimui Nomane Open seat in the 2022 national elections. He was declared winner; the applicant was the runner-up. Aggrieved by the result of the election, the applicant filed a petition challenging the election of the first respondent. The first respondent filed an objection challenging the competency of the petition. The National Court heard the objection and upheld the objection and dismissed the petition. Aggrieved by that decision, the applicant filed an application for leave to review the decision of the National Court under s. 155 (2) (b) of the Constitution. The first respondent filed an objection challenging the competency of the application for leave. The objection was heard by a single judge of the Supreme Court. On 8^th December, 2023, the judge delivered the decision in which the applicant’s application for leave to review was refused. Aggrieved by the decision of the single judge of the Supreme Court the applicant filed a notice of motion under Order 11 Rules 25 and 26 of the Rules seeking directions from the Chief Justice to empanel a special Supreme Court to hear and to interpret ss. 208 and 209 of the Organic Law on Natiuonal and Local Level Governments Elections and Order 5 Rule 17; Order 11 Rules 25, 26 and 27 of the Rules. In the notice of motion, the applicant also sought a review pursuant to s. 155 (2)(b) of the Constitution, of the decision of the National Court which dismissed his petition.
   
3. It is not necessary for me to delve into the various relief sought in the notice of motion by the applicant, as the issue before the Court is whether the applicant’s notice of motion is an abuse of process.
   

Submissions

(i) By the first respondent

4. Mr. Gileng, counsel for the first respondent submitted that applicant’s notice of motion is an abuse of process and should be dismissed. He argued that when the single judge of the Supreme Court refused the applicant’s application for leave to review under s. 155 (2) (b) of the Constitution that was the end of the matter. It was argued that Order 5 Rules 16 and 17 and Order 13 Rule 16 (a) of the Rules, empowered the single judge of the Supreme Court to hear the applicant’s application for leave and summarily determine the application. It was argued that the refusal by the single judge of the Supreme Court to grant leave to the applicant to seek review was a substantive decision and was final and it cannot be reviewed. Thus, the refusal of the applicant’s application for leave by the single judge of the Supreme Cout put an end to the matter.
   
5. It was submitted that Order 5 Rules 16 and 17 of the Rules which are in mandatory terms must be strictly complied with. It was submitted that Order 5 Rule 16 empowers a single judge of the Supreme Court to hear and determine an application for leave under s. 155 (2) (b) of the Constitution and Order 5 Rule 17 clearly provides that a grant or a refusal of the application for leave by a single judge of the Supreme Court is final and is not subject to further review.
   
6. Thus, it was further submitted that the applicant’s notice of motion is in essence an attempt to seek a further review of the National Court decision which dismissed the applicant’s petition. It is therefore a clear abuse of process.
   

(ii) By the second respondent

7. Mr Simbala, counsel for the second respondent supported the arguments by Mr. Gileng and submitted that the applicant’s notice of motion should be dismissed for abuse of process. Mr Simbala also submitted among others that the applicant’s notice of motion raises fresh matters which were not raised in his application for leave to review under s. 155 (2) (b) of the Constitution. It was also argued that the applicant is essentially seeking a further review of the National Court decision which dismissed his petition, thus it is an abuse of process because Order 5 Rule 17 of the Rules prohibits any further review of the decision.
   

(iii) By the applicant

8. Mr Lomai, counsel for the applicant argued that applicant’s application for leave to review the decision of the National Court which dismissed the petition was made under s. 155 (2) (b) of the Constitution and Order 11 Rules 25 and 26 of the Rules. The decision of the National Court was based on interpretation of ss. 208 and 209 of the Organic Law on National and Local-level Government Elections. The applicant therefore under s. 185 of the Constitution and Order 11 Rule 9 of the Rules sought Directions from the Chief Justice to “convene” a special Supreme Court to hear and determine points of law raised in the decision of the National Court and Order 11 Rules 25 to 27 of the Rules. Mr Lomai therefore argued that applicant’s notice of motion is not an application for a further review, it is a fresh application seeking new relief. He also argued that the notice of motion is not a review of the decision of the single judge of the Supreme Court refusing his client’s application for leave to review under s. 155 (2) (b) of the Constitution.
   
9. It was also submitted that Order 5 Rule 17 which provides that a decision of a single judge of the Supreme Court which grants or refuses an application for leave is final, is inconsistent with s. 155 (2) (b) of the Constitution which provides the review process. Thus, Order 5 Rule 17 is unconstitutional and is therefore null and void. It was therefore argued that applicant’s notice of motion is not an abuse of process.
   

(iv) Consideration and reasons for decision

10. Having considered submissions by counsel and the material before the Court, I have reached a conclusion that the applicant’s submissions are misconceived and are based on misapprehension of the relevant laws. One glaring error or misconception in the applicant’s submissions is the claim that Order 5 Rule 17 is inconsistent with s. 155 (2) (b) of the Constitution and is therefore unconstitutional. This argument to my mind reflects the misapprehension of the powers exercised by the Supreme Court under s. 155 (2) (b) of the Constitution and Order 5 Rules 16 and 17 and Order 13 Rule 16 of the Rules. The former is a special reserve power granted to the Supreme Court to review actions or decisions of the National Court with leave. Thus, the exercise of power to review decisions of the National Court by the Supreme Court under s, 155 (2) (b) of the Constitution is not automatic. In case of the latter, it gives power to a single judge of the Supreme Court to hear and determine whether to grant or refuse leave for review under s. 155 (2) (b) of the Constitution. The exercise of power in the latter, viz; Order 5 Rules 16 and 17 which is for a single judge of the Supreme Court to hear and determine leave is mandatory. In exercising that power, a single judge of the Supreme Court under Order 13 Rule 17 has power to summarily determine the case by refusing leave, this involves exercise of discretion by the single judge of the Supreme Court.
    
11. The applicant also purports to invoke s. 185 of the Constitution and Order 11 Rule 9 in his notice of motion to seek Directions from the Chief Justice to empanel a special Supreme Court made up of more than 3 judges to hear and determine issues relating to application of s. 208 of the Organic Law on National and Local-level Government Election and Order 11 Rules 25 to 27. It is noted that the relief sought are related to the application for leave to review which the single judge of the Supreme Court had already dismissed. In that regard, the application quite plainly amounts to an improper use of the court processes and is an abuse of process. See, Michael Wilson v. Clement Kuburam (2016) SC1489. There is another reason why the applicant’s notice of motion is an abuse of process, if the applicant wants to seek interpretation of ss. 208 and 209 of the Organic Law on National and Local-level Government Elections by the Supreme Court, the proper mode of seeking such relief is by way of a Supreme Court Reference.
    
12. Notably, the applicant has invoked s. 185 of the Constitution because it is claimed there is no procedure under the Rules. The applicant has also relied on Order 11 Rules 25 to 27, to seek Directions from the Chief Justice to empanel a special Supreme Court to hear and determine issues raised by the applicant, but these are general provisions, which relate to either Directions or orders given by the Supreme Court which are interlocutory in nature. Moreover, they relate to appeals against orders made in substantive proceedings. This is clear from the plain reading ss. 5 and 10 of the Supreme Court Act, Chapter No. 37 which the applicant has also relied on. This line of argument plainly has no legal basis.
    
13. Contrary to what has been submitted by the applicant, there are established procedures and processes under the Rules which govern and regulate these types of applications, namely Order 5 Rules 16 and 17 and Order 13 Rule 16, which are in mandatory terms.
    
14. Order 5 of the Rules deals specifically with judicial reviews brought under s. 155 (2) (b) of the Constitution. Its requirements are different to the Rules which govern and regulate appeals. Order 5 Rule 16 gives power to a single judge of the Supreme Court to hear applications for leave under s. 155 (2) (b) of the Constitution. Order 5 Rule 17 imposes a bar to further reviews of the grant or refusal by a single judge of the Supreme Court of an application for leave for review. This Rule makes the decision of a single judge of the Supreme Court to either grant or refuse leave final, and it cannot be reviewed. The imposition of such bar against further review of such decision is not without significance. The basis of this Rule is that the grant or refusal of the application for leave is a decision of the Supreme Court, and the Supreme Court cannot review its own decisions. See, Electoral Commission v. Patrick Pruaitch & Anderson Mise (2023) SC2416.
    
15. For the foregoing reasons, I find the applicant’s notice of motion is an abuse of process. Consequently, the notice of motion is dismissed.
    
16. The applicant will pay the respondents’ costs of and incidental to this application, which are to be taxed if not otherwise agreed.
    

Orders accordingly.
Lomai & Lomai Attorneys: Lawyers for the Applicant
Gileng & Co. Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent