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Kibeto v Soloma [2024] PGSC 47; SC2580 (6 May 2024)

SC2580

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 57 OF 2023

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

BETWEEN:
SIMEON KIBETO
Applicant

AND:
SAKI HACKY SOLOMA
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2024: 22^nd March & 6^th May

SUPREME COURT REVIEW – practice and procedure - application for leave to review

Cases Cited:
Richard Liri v. State (2007) SC883
Olga v. Wingti (2008) SC938
Waranaka v. Dusava (2009) SC980
Michael Kandiu v. Powes Parkop (2015) SC1597
William Hagahuno v. Johnson Tuke (2020) SC2018
Sir John Pundari v. Peter Yakos (2023) SC2345
Amuli v. Gore (2023) SC2399

Counsel:
Mr. A. Manase and Mr. I. Opahi, for the Applicant
Mr. C. Mende, for the First Respondent
Mr. L. Tangua, for the Second Respondent

6^th May 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). The first respondent opposes the application. The second respondent does not take any position in regard to the application.

Background

2. The first respondent was declared the elected Member of Parliament for the Okapa Open 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.

3. The petition proceeded to trial on one ground of bribery. On 3^rd August 2023, the National Court dismissed the applicant’s petition and ordered costs to the first respondent and second respondent.

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. In this instance, the applicant submits that in the Decision there are errors of mixed fact and law. Further, he submits that there exist exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted by the Supreme Court in the interests of justice.

This application

6. The applicant submits in essence that the primary judge fell into error in her consideration of the evidence and witnesses demeanour and her consideration of whether the evidence established that a customary obligation had been performed or whether bribery had occurred.

7. The first respondent submits that the application for leave to review contains 15 grounds and sub-grounds which are lengthy, convoluted and confusing. They should be struck out for being an abuse of process as they are incompetent, it is submitted. The grounds fail to address the totality of the evidence and are “nit picking”, they fail to identify an important point of law to be determined that is not without merit or any gross error of fact clearly apparent or manifested on the face of the evidence, it is submitted.

Consideration

8. The grounds contained in the application for leave to review consist of 15 paragraphs numbered 2.1 to 2.15. Six of those grounds contain about 32 subparagraphs in total. Counsel for the applicant stated that the grounds are very extensive and attempt to show that the primary judge fell into error. To my mind and as described by the first respondent, the grounds fit the description referred to by Makail J in Amuli v. Gore (2023) SC2399 at [8]. That is, the grounds are many, very lengthy and convoluted. Further, they do not state briefly (emphasis added), the particulars of the decision of the National Court to be reviewed, contrary to Order 5 Rule 10(c) Supreme Court Rules. Order 5 Rule 10(c) is mandatory by use of the word “shall”.

9. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko, Toliken JJ), the Supreme Court at [50] said:

“50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).” ”

10. Consequently, the application for leave to review should be dismissed.

11. If, however, the application for leave to review is not dismissed on the above basis, I consider the grounds further.

12. As referred to, the grounds are concerned with the consideration by the primary judge of the evidence, her consideration of the demeanour of witnesses and the determination by the primary judge of whether the evidence established that a customary obligation had been performed or whether bribery had been established.

13. In this regard I refer to the statement by the Court in Gihiye v. State (2016) SC1546 in which it was acknowledged that the Supreme Court must not readily interfere with the assessment of the evidence and findings of the trial judge because the trial judge is in a better position to assess the demeanour of the witnesses. The Supreme Court can only interfere in clearest of cases: see Richard Liri v. The State (2007) SC883; Olga v. Wingti (2008) SC938 at [33] and Waranaka v. Dusava (2009) SC980 at [24] to [26].

14. In this instance, from a perusal of the judgment of the primary judge, I am not satisfied that it has been established that it may be argued that the primary judge fell into error as contended by the applicant or at all, or that the primary judge fell into error in terms of an important issue of law or as to a gross error of fact. The primary judge properly considered the evidence in my view and was entitled to make the decision which she did.
15. If, however, there is such an important point of law or such a gross error, 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.

16. No evidence has been given or submissions made which in my view would enable this court to find that in this instance there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.

17. As to the submission that it is in the interests of justice that the Decision be reviewed, after considering the evidence and submissions, I am not satisfied that it is in the interests of justice, which is justice according to law, for this application for leave to review to be granted. 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. Given this it is not necessary to consider the other submissions of counsel.

Orders

18. The Court orders that:

a) The application for leave to review filed 17^th August 2023 is dismissed.

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

100. The applicant’s security deposit of K5,000.00 shall be paid to the first respondent forthwith towards the costs to which the first respondent is entitled pursuant to order (b) above.

_____________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Wantok Legal Group: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent