In the matter of application under Section 155(2) (b) of the National Constitution; In the matter of Part XVII of the Organic Law on the National and Local-level Government Elections; Michael Kandiu v Hon Powes Parkop and Cyril Retau and Ricky Fugunto and Electoral Commission of Papua New Guinea (2015) SC1597

• Jurisdiction: Papua New Guinea
• Judge: Davani, Kariko, Toliken JJ
• Judgment Date: 06 March 2015
• Court: Supreme Court
• Citation: (2015) SC1597
• Docket Number: SCREV. (EP) NO. 2 OF 2014
• Year: 2015
• Judgement Number: SC1597

Full Title: SCREV. (EP) NO. 2 OF 2014; In the matter of application under Section 155(2) (b) of the National Constitution; In the matter of Part XVII of the Organic Law on the National and Local-level Government Elections; Michael Kandiu v Hon Powes Parkop and Cyril Retau and Ricky Fugunto and Electoral Commission of Papua New Guinea (2015) SC1597

Supreme Court: Davani, Kariko, Toliken JJ

Judgment Delivered: 6 March 2015

SC1597

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV. (EP) NO. 2 OF 2014

IN THE MATTER OF APPLICATION UNDER SECTION 155(2) (b) OF THE NATIONAL CONSTITUTION

IN THE MATTER OF PART XVII OF THE ORGANIC LAW ON THE NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:

MICHAEL KANDIU

Applicant

AND:

HON. POWES PARKOP

First Respondent

CYRIL RETAU

Second Respondent

RICKY FUGUNTO

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Davani, Kariko, Toliken.JJ

2014: 16th December

2015: 6th March

Cases Cited:

Amet v. Yama (2010) SC 1064

Bari Palma v. the Electoral Commission of PNG (2014)

Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221

Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC 1272

Edward Ekan Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877

In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917

In Yap v. Tan [1987] PNGLR 227

Jeffery Turia v Gabriel Nelson (2008) SC949

Korak Yasona v. Castan Maibawa (1998) SC 552

Paru Aihi v. Victor Naime Isoaimo and Electoral Commission of Papua New Guinea (2014) N5691

Ramu Nico Management (MCC) Ltd v Farina Siga (2010) SC1056

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Special Reference by Morobe Provincial Executive) SC 1089

Vele v. Parkop (2008) SC 945

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel:

Mr P. Korowi, for the Applicant

Mr T. Dawidi, for the first Respondent

Mr M. Duma and Mr L. Okil, for the Second, Third & Fourth Respondents

DECISION

6th March, 2015

1. DAVANI J: Before the Court for hearing is application filed by Dawidi Lawyers on 3rd June, 2014 and which is contained in Application Book filed by Dawidi Lawyers on 10th September, 2014. The application or as put by Mr Dawidi, an Objection to Competency of the review, is filed for and on behalf of the first respondent, the Hon. Powes Parkop and is an application seeking to dismiss the Review, filed by Michael Kandiu, the Applicant (‘Mr Kandiu’) on 7th April, 2014, after leave was granted by a single Judge of the Supreme Court on 27th March, 2014.

2. Before setting out and discussing the grounds of Review, it is necessary that I discuss the jurisdictional basis and the form of the Objection to Competency now before us, because it was raised and argued by both counsel.

Jurisdictional basis and form of the Application/Objection to Competency

3. The Objection to Competency of the Review now before this Court is in the form of an Application filed by Dawidi Lawyers on 3rd June, 2014. Mr Dawidi for the Applicant seeks leave of this Court to apply under Order 11 Rule 9 of the Supreme Court Rules for directions because the manner or form of challenges to the competency of a Review, is not covered or provided by the rules of court and he seeks this Court’s sanctioning to rely on the Application, now before us. Mr Dawidi submits, in response to my brother Kariko J’s queries about the form he has adopted, that because there is no prescriptive method provided in the Supreme Court Rules and also because of the fact that the Rules do not say that the application or objection should be in the form of a Notice of Motion, that the application or objection to competency, is in the form that it is.

4. Although Mr Dawidi requested that the Court rule on the grant or not of leave first, before considering the merits of the Objection, the Court proceeded to hear counsel.

5. In response to that, Mr Korowi for Mr Kandiu, referred the Court to Order 7 Rule 15 of the Rules which provides for and prescribes the form of Objection to Competency of an appeal.

6. Mr Korowi submits that because order 7 rule 15 provides that an Objection to Competency must be in the form of a “Notice of Objection to Competency of Review”, that the Application, filed by Dawidi Lawyers, is not in the proper form and should be dismissed as being defective and for want of proper form.

7. Order 7, Rule 15 of the Supreme Court Rules falls under Division 5 which is the Division on “Objection to Competency of Appeal”. (my emphasis) That provision states that a respondent will file within 14 days after service on him of the Notice of Appeal, an Objection to the Competency of the Appeal, in accordance with Form 9 of the Supreme Court Rules.

8. Clearly, that provision does not apply to Reviews filed under section 155 (2) (b) of the Constitution. This was discussed in Korak Yasona v. Castan Maibawa (1998) SC 552 per Amet CJ, Salika J, Sakora J dated 3rd May, 1998.

9. In that case, the respondent filed an Objection to Competency of the Review, relying on a form headed “Objection to Competency”. The respondent submitted that because the Supreme Court Rules were silent in relation to procedure and process for objecting to the Competency of an Application for Review, pursuant to Section 155 (2) (b), that the Objector should have asked for directions from the Supreme Court pursuant to Section 185 of the Constitution as how to make such an application.

10. The Supreme Court found that to be the case and held this;

“Since there is no applicable provision of procedure for objecting to the competency of an Application for Review, we consider that the Objector to the Competency of the Application for Review ought probably to have made application to the Supreme Court pursuant to Section 185 of the Constitution for direction as to the procedure to be adopted for making such an objection to the Competency of the Application.”

11. The Court found the Objection to be incompetent and dismissed it.

12. Order 5 of the Supreme Court Rules, provides for the Court’s general power of review of National Court decisions, for parties applying under s. 155 (2) (b) of the Constitution, with leave only or without leave. Division 2 falls under order 5 which provides for Election Petition Reviews. It states this at order 5 rule 36;

“36. The Court may hear and determine the application or any objection to competency of the application on the date and time fixed for the hearing or may adjourn the hearing.”

13. This provision falls under sub-division 10 which is the provision on the hearing of the Review. In Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1272 per David, Sawong and Kassman JJ dated 30th August, 2013, the Supreme Court held this;

“It is trite that a Competency issue is an issue that can arise at any time during a proceeding. It may be raised by a party or by the Court on its volition at any time.” (my emphasis)

14. In saying that, the Court relied on the case Amet v. Yama (2010) SC1064, where this principle was emphasized.

15. The Supreme Court in Dawa Lucas Dekena v. Kuman (supra) said further in relation to Rule 36 of the Supreme Court Rules;

“This rule is clear. This rule gives the Supreme Court power to hear any objection to the competency of the Review application at the hearing of the application. There is no rule as to how that objection is to be raised. The objection may be raised by a party or by the Court at the hearing. (Amet v. Yama (supra)). One should not confuse this procedure with objections to competency in the ordinary appeal rules.”

(my emphasis)

16. Therefore, based in these authorities, it is clear that the position at law is that if an aggrieved respondent wishes to challenge the competency of a review under S.155(2) (b), then he need only do the following;

1. That he can raise these objections at anytime; even during the leave the hearing of the Review; (Amet v. Yama (supra)); Dawa Lucas Dekenai v. Kuman (supra));

2. That the Objection need not to be in any form (see Bari Palma v. the Electoral Commission of PNG (2014) SC 1309 Makail .J dated 17.2.2014; Amet v. Yama (supra); Dawa Lukas Dekena v. Kuma (supra));

3. And can be verbally made (Amet v. Yama).

17. What of the rule of general application, O.11, R.28 of the Supreme Court Rules 2012? This rule reads;

“28. The provisions of the following rules apply to any proceedings before the Court, substituting the nature of the proceedings for the word ‘appeal’ where necessary;

(a) Order 7 Division 5 (objection to competency of appeal);

(b) Order 7 Division 19 (time, and want of prosecution).”

18. This rule provides for the substitution of the word ‘appeal’ for ‘objection to competency’. It is not a mandatory provision, and is inserted there in the rules, to give an applicant the choice of a form to use. However, it is not mandatory that such a form be filed. And that is only because Objections to the Competency of the form of a Review, can be raised at anytime, even at a substantive hearing. In fact, such verbal...