Glen Kiso v Ian Ling Stucky and Others

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 22 September 2023
• Neutral Citation: SC2461
• Citation: SC2461, 2023-09-22
• Counsel: R Habuka, for the Applicant,E Heagi, for the First Respondent,D Kints, for the Second Respondent
• Docket Number: SC REV NO. 37 OF 2023 (IECMS)
• Hearing Date: 11 August 2023,14 August 2023,22 September 2023
• Court: Supreme Court

SC2461

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 37 OF 2023 (IECMS)

Application Under Section 155(2) (b) of the Constitution

Between:

Glen Kiso

Applicant

v.

Ian Ling Stucky

First Respondent

and

Electoral Commission of Papua New Guinea

Second Respondent

Waigani: Anis J

2023: 11^th & 14^th August, 22^nd September

OBJETION TO COMPETENCY OF APPLICATION FOR LEAVE TO REVIEW — Order 7 Rules 15 and 17 — Supreme Court Rules as amended — preliminary issue — whether service of objection to competency of leave application effected in accordance with Order 7 Rule 15 — Supreme Court Rules as amended — consideration and ruling — considering objection and grounds — whether leave application is incompetent premised on non-compliance with Order 13 Rule 15, non-compliance with Order 5 Rule 10(c) and (f), and non — compliance with Order 5 Rule 11 — Supreme Court Rules as amended — consideration — ruling

Cases Cited:

Nandali v Curtain Brothers Ltd (2012) SC1483

Manase v Polye (2019) SC1907

The State v Kalaut (2021) SC2094

Michael Kandiu v. Powes Parkop (2015) SC1597

Francis Baindo v. Joseph Yopiyopi and Electoral Commission (2019) SC1763

Gordon Wesley v. Isi Leonard and Electoral Commission (2018) SC1706

Tobias Kulung v. William Onglo (2018) SC1714

Counsel:

R Habuka, for the Applicant

E Heagi, for the First Respondent

D Kints, for the Second Respondent

Pacific Horizons Legal Services: Lawyers for the Applicant

Ashurst PNG: Lawyers for the First Respondent

Jema: Lawyers for the Second Respondent

RULING

22^nd September 2023

1. Anis J: The second respondent applied to dismiss the applicant's application for leave to review for being incompetent. I heard submissions from the parties on 11 and 14 August 2023 before I reserved my ruling to a date to be advised.

2. The parties have been advised so I now give my ruling.

BACKGROUND

3. The brief background of the matter is this. The applicant and the first respondent were contestants in the 2022 General Election for the Kavieng Open Electorate Seat (the Seat). On 20 July 2022, the first respondent was declared as the winner of the Seat.

4. The applicant was aggrieved, so on 29 August 2022, he filed an election petition to challenge the election result (the election petition). In the election petition, the applicant alleged 7 grounds that constituted allegations of bribery, undue influence and illegal practices, under s.50 of the Constitution, ss.101, 102(b) and 103(a)(i) and (iii) of the Criminal Code, and ss.178 and 215(1) of the Organic Law on National and Local-level Government Elections (the Organic Law).

5. In response to the election petition, the respondents filed objections challenging its competence. At the trial on 5 June 2023, the National Court (the Court) heard the objections, and on 7 June 2023, it handed down its decision where it dismissed the election petition. The dismissal was based on want of compliance of a mandatory requirement of s.208(d) of the Organic Law. The respondents had argued on this issue that the applicant had failed to correctly plead the address of the 2 attesting witnesses, as required under Rule 4 of the Election Petition Rules as amended (EP Rules) and Form 1 as prescribed in the EP Rules. Thus, the respondents had submitted to the Court that such failure meant that the applicant had breached the mandatory requirement of s.208(d) and the election petition was therefore incompetent and could not proceed to trial under s.210. The trial Judge, as stated, upheld the said ground in dismissing the election petition.

6. Aggrieved by the said decision, the applicant filed his application for leave to review (leave application) on 19 June 2023. The leave application is met with this objection by the second respondent, that is, notice of objection to competency of the leave application (the Objection). The Objection was filed on 3 July 2023.

OBJECTION

7. The Objection reads in part:

OBJECTION is made on the following grounds pursuant to Order 11 rule 28(a) and Order 7 rule 15 and 17 (1)(a) of the Supreme Court Rules 2022 (“SCR”):

1. The Application for Leave to Review filed on 19 June, 2023 failed cite the jurisdictional basis for making the application as required by Order 13 rule 15 of the SCR.

2. The Application for Leave to Review filed on 19 June, 2023 is not in accordance with Form 5A of the SCR and in breach of Order 5 rule 10(c) of the SCR.

3. The affidavit in support for leave application deposed to be Glen Kiso and filed on 19 June, 2023 failed to annex the copy of the order of the National Court contrary to the requirement of Order 5 rule 11 of the SCR.

……

ISSUE

8. The main issues in my view are (i), whether service of the Objection upon the applicant constitutes service under Order 7 Rules 15 and 17 of the Supreme Court Rules as amended (i.e., including Supreme Court (Miscellaneous Amendment) Rules 2022) (SCR as amended), and (ii), subject to the first issue, whether the leave application is incompetent as alleged, that is, premised on the 3 grounds in the Objection.

JURISDICTION

9. The correct rule, which is not contested, that gives me the jurisdiction to hear the Objection is Order 7 Rule 17(1)(a) of the SCR as amended. It reads and I quote, An objection of which notice has been given shall be determined by… in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court or any Judge;

10. In the present matter, extension of time had been sought by the applicant to effect service of the leave application, and the leave application was served on the respondents on 21 June 2023. And the second respondent responded by filing its Objection on 3 July 2023, that is, within the 14-day period as required by Order 7 Rule 15 of the SCR as amended. Order 7 Rule 15 reads:

A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service of the notice of appeal or application for leave to appeal—

(a) file an objection in accordance with Form 9; and

(b) serve a copy of the objection on the appellant in any manner including by service on the appellant's lawyers in the National Court proceedings.

11. However, the applicant has raised this preliminary challenge (i.e., issue No. 1) in regard to service of the Objection which I will deal with first.

SERVICE OF THE OBJECTION

12. The applicant submits that the Objection was not served within 14 days in accordance with Order 7 Rules 15 and 17 of the SCR as amended. Counsel submits that leaving or serving the Objection and other court documents on a third party and not on the lawyer or the applicant, as was done herein, does not constitute service within the meaning of the Court rules. As such, counsel submits that the Objection is not properly before the Court; that the Objection itself is incompetent and must be dismissed; that there is no need therefore to proceed further or for the Court to deal with it.

13. The respondents submit otherwise. They argue that the Objection was served in compliance with the Court rules. They also argue that the applicant has not provided any evidence to support his assertions; that counsel was giving evidence over the bar table. They also argue that since the applicant has not disputed the 3 grounds as pleaded in the Objection, the Court should grant the relief sought and dismiss the leave application.

14. I note the submissions of the parties in this regard.

15. I ask myself this. What do the evidence say? I note that Mr Habuka nor his client filed any evidence to address the issue. The second respondent, on the other hand, filed 2 affidavits in that regard. The first is the affidavit of Lingston Peya filed 5 July 2023, and the second is the affidavit of Mary Mora filed 6 July 2023.

16. I accept the 2 affidavits filed by the second respondent as evidence that are properly before me for consideration. I also note that the applicant, despite having had the opportunity to do so, has not filed any evidence to rebut the evidence of the second respondent. I reject the attempts by Mr Habuka to give evidence over the bar table. I also dismiss counsel's submissions that are made that are not supported with evidence.

17. However, have said or made this finding, it does not resolve the legal arguments that are raised herein on whether service was effected within 14 days and in a manner that is permitted by Order 7 Rules 15 and 17. With that, let me set out in summary the undisputed facts as follows:

• the Objection was filed within 14 days from the date of service of the leave application (i.e., service was premised on the extended time that was allowed by the Court);

• the Objection was served in the manner as instructed by the applicant's lawyer Mr Habuka, that is, it was served on a receptionist at the reception desk at Luxury Inn, at Gordons, National Capital District;

• Mr Habuka was residing at Luxury Inn at the material time;

• the Objection was served by Lingston Peya on Tuesday, 4 July 2023, at 4:17pm on one Nora H, a receptionist of Luxury Inn, at Gordons, National Capital District;

• Nora H accepted service of the Objection and signed for it as evident in the affidavit of Mr Peya.

18. Two immediate questions that come to mind are, (i), whether service of the Objection was effected within 14 days from 21 June 2023, and (ii), if so, whether service as per directed by Mr Habuka in the manner as adduced in evidence, constitutes proper service pursuant to Order 7 Rules 15 and 17 of the SCR as amended.

19. In regard to the first question, it is not disputed that the leave application was served on the respondents on 21 June 2023. The respondents had 14 days to file and serve their objections if they so wished. The 14^th day was on 5 July 2023, and I note that the second respondent filed its Objection on 3 July 2023 which was within time. In regard service, the Objection was served in the manner as directed by Mr Habuka, that is, it...