SC2576

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) 66 OF 2023

BETWEEN:
MATTHEW DAMARU
Applicant

AND:
HON. TABOI AWI YOTO
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2024: 13th February, 24th April
            
SUPREME COURT REVIEW – practice and procedure - application for leave to review a final decision in an Election Petition

Cases Cited: 
Epi v. Farapo (1983) SC247
Epi v. Farapo (1983) SC247
Aihi v. Isoaimo (2015) SC1598
Sir John Pundari v. Peter Yakos (2023) SC2345
Raminai v. Pano (2023) SC2473

Counsel:
B. Lai, for the Applicant
P. Tamutai, for the First Respondent

24th April 2024

1. HARTSHORN J: This is a decision on a contested application for leave to review a final decision of the National Court which dismissed an election petition (Decision). 

Background

2. The first respondent was declared the elected Member of Parliament for the Western Provincial Electorate in the 2022 General Elections. The applicant was also a candidate in the election for the Electorate and petitioned the first respondent’s election in the National Court. On 4th October 2023, the primary judge held that the petition was not filed in accordance with s. 209 Organic Law on National and Local Level Government Elections (Organic Law) and the election petition was dismissed.

Application for Leave - Law

3. 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.”

4. In this instance, the parties did not take issue with the consideration of the law in Pundari v. Yakos (supra) or the statement of the criteria for the exercise of this court’s discretion in [13] thereof.

This application

5. The applicant submits that this application for leave to review should be granted as:

a)	the primary judge fell into error in not finding that the petition, the filing fee receipt and the receipt for the deposit of security as to costs were filed in the one act of filing on the Integrated Electronic Case Management System (IECMS) on 12th September 2022;

b)	the primary judge misapplied the Supreme Court cases of Epi v. Farapo (1983) SC247 and Aihi v. Isoaimo (2015) SC1598;

c)	there are important points of law to be determined that are not without merit; 

d)	the matters for review as far as they are in relation to the facts, demonstrate that there is a gross error as to fact clearly apparent and that the findings of fact by the primary judge are absurd so as to result in an injustice such that a review of those findings is required; 

e)	there exist exceptional circumstances as there are no Supreme Court decisions in respect of: s. 209 Organic Law and the application of the IECMS or as to Aihi v. Isoaimo (supra) since the Election Petition Rules were amended or concerning the conflicting decisions of the National Court in respect of s. 209 Organic Law;

f)	it is in the interests of justice.

6. The first respondent submits amongst others, that the applicant does not adequately satisfy the requirements of law to enable this court to grant leave; the applicant has not demonstrated a serious issue on a point of law or fact to be determined such that if leave was granted, the application would be likely to succeed and the applicant has not demonstrated that exceptional circumstances exist or that it is in the interests of justice such that leave be granted.

Consideration

7. As to the first issue, that the primary judge misapplied the principles in Epi v. Farapo (supra) by not finding that the evidence of the payment of the security deposit, that evidence being filed on 12th September 2022 with the petition, constituted one act of filing with the petition; in Epi v. Farapo (supra) in considering s. 209 Organic Law, the Court said:

“Whilst the Court must strive to avoid sophistry, the act of filing petition and lodging deposit must be part of one act, an act of filing which is manifestly one and the same, not two separate and distinct acts requiring two separate and distinct visits to the Registry, one with the cheque and another with the petition. ……… The language is clear and unambiguous. “At the time of filing” means what it says - neither more nor less, and it behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.”  

8. The evidence before the primary judge was that the petitioner deposited the security deposit into the National Court Registrar’s Trust account on 9th September 2022, three days before filing the petition. The petitioner filed the receipt for the payment of the security deposit on 13th September 2023, one day after the filing of the petition. So, at the time of the filing of the petition the petitioner did not file the receipt of the payment of the security deposit at the National Court.

9. If the receipt for the payment of the security deposit was filed on 12th September 2022 as contended by the applicant or the 13th September as contended by the first respondent, the primary judge was consistent with the principles in Epi v. Farapo (supra) in finding that the petition was not filed in accordance with s. 209 Organic Law, as the security deposit was not deposited at the time of filing. Consequently, I am not satisfied that it has been shown that it is arguable that the primary judge fell into error as alleged.

10. As to the second issue, that the primary judge misapplied the authority of Aihi v. Isoaimo (supra), as mentioned there was evidence before the primary judge that the receipt for the payment of the security deposit was filed on 13th September 2022. In respect of the submission that the petition cannot be lawfully filed without evidence of payment of the security deposit, the definition of “filed” in Rule 1 Election Petition Rules does not state that the petition cannot be filed unless at the same time there is lodged evidence of payment of the security deposit. I am not satisfied that it has been shown that it is arguable that the primary judge fell into error as alleged.

11. As submitted by the first respondent, the issues raised by the applicant including those referred to, are premised on the applicant’s position that a deposit of the security deposit into the Registrar’s Trust Account before filing a petition, should be considered as compliance with s. 209 Organic Law so long as the receipt for the payment is filed with the petition. This position was rejected by Anis J in Evela Kala v. Sir Puka Temu (2023) SC2453. The facts in that case were similar to the facts in this case. At [18] and [19] His Honour said:

“18.       These cases interpret s.209 to mean (paraphrase/summarise) that at the time of filing a petition, the security for costs, and not the receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court.  The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time.  The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss 208, 209 and 210 of the OLNLLGE.  Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when his Honour at para 38 of his decision stated, a receipt is merely documentary evidence of payment.  It is not payment per se.
 
19.       I therefore do not see nor find the intended arguments by the applicant raised in his proposed grounds of review, to constitute important points of law that are not without merit.”

12. I respectfully concur with and adopt His Honour’s reasoning.

13. The applicant also raises the issues of the practical application of filing an election petition, and the application of s. 209 Organic Law, given the purported requirements of the IECMS. In regard to these issues, as to the legal basis of the IECMS, in Raminai v. Pano (2023) SC2473, in which an application for leave to review was made, at [9] to [11] I said:

“9. The IECMS Practice Direction was issued by the Chief Justice and not by the Registrar. Rule 21 EP Rules provides that the Registrar shall issue a practice direction. Moreover, s. 184 Constitution provides amongst others for the Judges to make rules of court. Section 184 Constitution does not provide for the Chief Justice or the Judges to make a practice direction.

10. On the basis that the IECMS Practice Direction was validly made however, a practice direction under our hierarchy of laws cannot amend a rule. The IECMS Practice Direction did not amend the EP Rules. This is in essence, acknowledged by the Chief Justice in his judgment in Francis Potape v. Philip Undialu (2023) N10322. At [13] of Potape v. Undialu (supra), His Honour refers to the EP Rules. At [14] His Honour refers to and sets out part of the IECMS Practice Direction. At [15] His Honour says as follows:

“Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law provisions prevail.”

11. In these circumstances, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.”

14. Given the above, I am not satisfied that it has been shown that the primary judge has fallen into error or that it has been established that there is an important point of law to be determined which is not without merit or that there is a gross error as to fact clearly apparent.

15. If, contrary to the above, the applicant has established that there is an important point of law to be determined or a gross error as to fact clearly apparent, the next question is whether it has been established that there are exceptional circumstances showing a manifestation of substantial injustice and also that a review is warranted in the interests of justice. It is submitted by the applicant that these factors exist in this instance.

16. In my view however, no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice. This is particularly so when regard is had to the doubt that exists concerning the validity of the IECMS Practice Direction and that in any event a practice direction cannot amend a rule.

17. As to the submission that it is in the interests of justice that the Decision be reviewed, for the same reasons referred to in [16] above, I am not satisfied that it is in the interests of justice, which is justice according to law, for the applicant to be permitted to review the Decision. This is particularly so when the relevant law, s. 220 Organic Law, prohibits an appeal and states that a decision shall not be questioned in any way. 

18. Given the above, it is not necessary to consider the other submissions of counsel including the submissions of the first respondent as to the competency of the application for leave to review.

Orders

19.   The Court orders that:

a)	The application for leave to review filed on 13th October 2023 is refused.

b)	The applicant shall pay the costs of the first respondent of and 	incidental to the said application for leave to review.

c)	The applicant’s security deposit of K5,000.00 shall be paid to the first respondent forthwith in payment towards the costs to which the first respondent is entitled pursuant to order b) above.
_____________________________________________________________
B. S. Lai Lawyers: Lawyers for the Applicant                             
Tamutai Lawyers: Lawyers for the First Respondent                 
Palem Onom Lawyers: Lawyers for the Second Respondent