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; SCREV (EP) 3 of 2019; William Powi v Pastor Bernard Peter Kaku and Electoral Commission; SCREV (EP) 4 of 2019; Electoral Commission v Pastor Bernard Peter Kaku and William Powi (2019) SC1856

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Kandakasi DCJ; Mogish & Dingake JJ
• Judgment Date: 30 April 2019
• Citation: (2019) SC1856
• Judgment Number: SC1856
• Year: 2019
• Docket Number: SCREV (EP) No 3 and SCREV (EP) 4 of 2019

Full Title: SCREV (EP) No 3 and SCREV (EP) 4 of 2019; 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; SCREV (EP) 3 of 2019; William Powi v Pastor Bernard Peter Kaku and Electoral Commission; SCREV (EP) 4 of 2019; Electoral Commission v Pastor Bernard Peter Kaku and William Powi (2019) SC1856

Supreme Court: Kandakasi DCJ; Mogish & Dingake JJ

Judgment Delivered: 30 April 2019

SC1856

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 3 AND SCREV (EP) 4 OF 2019

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

SCREV (EP) 3 OF 2019

BETWEEN:

WILLIAM POWI

Applicant

AND:

PASTOR BERNARD PETER KAKU

First Respondent

AND:

ELECTORAL COMMISSION

Second Respondent

AND

SCREV (EP) 4 OF 2019

BETWEEN:

ELECTORAL COMMISSION

Applicant

AND:

PASTOR BERNARD PETER KAKU

First Respondent

AND:

WILLIAM POWI

Second Respondent

Waigani: Kandakasi DCJ; Mogish & Dingake JJ.

2019: 01st and 30th April

PRACTICE & PROCEDURE – Application for dispensation of requirements of Order 5 Rules 7 and 8 pursuant to Rule 39 of the Supreme Court Rules – Effect of Rules 7 and 8 – No right of review of interlocutory decision –Effect of – Contrary to provisions of s. 155 (2) (b) of the Constitution - Court has power to review all judicial acts of the National Court - No provision for applications for dispensation – Ad hoc directions issued – Application to be in form similar to application for leave for review to be filed together with an Application for leave for review given need to deal with election petitions promptly –Issues raised must be meritorious and likely to succeed - Case made for dispensation – Dispensation granted and application for leave permitted to be progressed to hearing subject to service.

WORDS & PHRASES– “Court” - Under the Supreme Court Act, means the full court of the Supreme Court of Justice - “Judge” refers to a Judge of the Supreme Court of Justice -“dispense” - Meaning of –Means permission to do something forbidden by law or relaxation of the strict requirements of the law for the benefit or advantage of an individual – “requirement” – Means of – Means a “necessity”, “demand”, “specification”, “stipulation”, “want”, “need”, “must”, “essential”, “qualification”, “precondition”, “requisite” or “must have” – Combined meaning of the word “dispense” and “requirement” as used in r. 39 of Order 5 of the Supreme Court Rules means - the Court may exempt or do away with or release or remove any impediment that might be in the way of a party who wishes to invoke the Supreme Court’s review powers under s.155(2)(b) of a decision of the National Court.

These are two Applications by the Honourable William Powi (Hon. Powi) and the Electoral Commission (the EC) seeking a dispensation of the requirements of the O.5, r .7 of the Supreme Court Rules (the Rules) which effectively precludes them from seeking a review of an interlocutory decision of the National Court. The Applications were filed pursuant to O.11, r. 25 of the Rules. The National Court dealt with an election petition by the First Respondent (Pr. Kaku) met by two separate objections to its competency by the Applicants. The learned trial Judge heard the objections together and delivered one judgment. That judgment dealt only with the objection by Hon. Powi and not the one by the EC. The objections raised issues of the petition not been in the form prescribe by the Election Petition Rules (EP Rules) and not pleading facts and the reliefs in the way required by s. 208 of the Organic Law on National and Local Level Government Elections, (Organic Law) which had to be dealt with first because of the provisions of s.210 of the Organic Law. The learned trial Judge applied s.217 of the Organic Law and held that the petition not being in the prescribe form was not fatal, upheld parts of the objection by Hon. Powi and ordered the balance to go to trial and commence hearing on the remaining grounds of the petition.

The Applicants claimed the EC was denied natural justice within the meaning of s. 59 of the Constitution, and the learned trial Judge erred in applying s. 217 of the Organic Law especially when no order either dispensing or waiving the requirements of r.4 and Form 1 ofthe EP Rules was sought and granted, facts forming the foundation for invoking the provisions of s. 142,168(1) and 175(1A) of the Organic Law were not pleaded, the reliefs sought were not properly pleaded and there was no pleading that the actions of the EC officials affected or were likely to affect the results of the election and that it was just and fair that the declaration of Hon. Powi as the winner of the relevant election should be declared null and void. The Applicants claimed the issues they raised were meritorious and needed to be presented to the Supreme Court by way of review of the National Court’s decision. However, they claim they are precluded from taking the matter to the Supreme Court because of the provisions of O.5, r.7 of the Rules, since the decision of the National Court is an interlocutory decision and not a final one. Hence, they are first seeking a dispensation of the requirements of the provisions in question with ad hoc directions to bring their Applications. Conditional on success on those Applications, they sought appropriate orders for them to proceed with applications for leave for review. In response, Pr. Kaku argued that the learned trial Judge fell into no error and that the Applicants Applications are without merit. He also argued that O.11, r.25 of the Rules did not apply as they apply only to appeals and not reviews. On the dispensation application, Pr. Kaku argued that there was no requirement under O.5, r.7 of the Rules to dispense and that the Applicants are prevented by that provision from seeking a review of the National Court’s decision. Based on these submissions he argues for a dismissal of the Applications.

Held:

1. The provisions of O.11, r.25 of the Rules applies to both appeals and reviews with appropriate modification to election petition reviews by virtue of O.11, r.1 and 25 of the Rules.

2. The Supreme Court as power under s. 155(2) of the Constitution to review all judicial acts of the National Court, which includes interlocutory decisions of the National Court in election petitions. Approved and followed Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272; Anthon Yagama v. Peter Yama, Steven Bigo and Others (2013) SC1219;Electoral Commission of PNG v. Simon J Solo (2015) SC1467 and Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412 and disapproved Gordon Wesley v. Isi Henry Leonard (2015) SC1433 list of mostly single Judge Supreme Court such as De Kewano v. Pastor Isaac Joseph and Andrew Trawen (2012) SC1205; Polye v. Manase (2015) SC1339;Marape v. Pokaya and Electoral Commission (2017) SC1634; Michael Bogai Dua v. Noah Kool (2018) SC1676 and many others.

2. Order 5, r. 7 of the Rules by defining the word “Decision” to mean final decisions only contravenes the Supreme Court’s powers under s. 155 (2) (b) of the Constitution to review all judicial acts of the National Court which includes interlocutory decisions in election petitions that have merit and warrants review by reason of which the requirements of O.5, r. 7 can be dispensed to allow reviews of such decisions. Approved and followed Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272; Anthon Yagama v. Peter Yama, Steven Bigo and Others (2013) SC1219; Electoral Commission of PNG v. Simon J Solo (2015) SC1467and Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412 and disapproved Gordon Wesley v. Isi Henry Leonard (2015) SC1433 list of mostly single Judge Supreme Court such as De Kewano v. Pastor Isaac Joseph and Andrew Trawen (2012) SC1205; Polye v. Manase (2015) SC1339;Marape v. Pokaya and Electoral Commission (2017) SC1634; Michael Bogai Dua v. Noah Kool (2018) SC1676 and many others.

3. There being no provisions made in the Rules for applications for dispensation of the requirement of Order 5, r. 7, ad hoc directions under s.185 of the Constitution and O.11, r.9 of the Rules were issued pending formal provision being made in the Rules.

4. The ad hoc directions issued were for applications for dispensations:

(a) to use forms similar to applications for leave for review but appropriately modified to show they are applications for dispensation where there exists no valid proceeding on the basis of which dispensation could be sought;

(b) given the need to expeditiously hear and dispose of election petition related cases an application for dispensation must be filed together with an application for leave for review subject to a grant of the application for dispensation being given to enable expedited hearing and disposal;

(c) within the time...