Paul Agiru v Manasseh Q. Makiba and Others

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 27 February 2023
• Neutral Citation: SC2366
• Citation: SC2366, 2023-02-27
• Counsel: Mr. J. Ole, for the Applicant,Mr. M. Nale, for the First Respondent,Mr. L. Tangua, for the Second Respondent
• Docket Number: SCREV (EP) 1 OF 2023
• Hearing Date: 09 February 2023,27 February 2023
• Court: Supreme Court

SC2366

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 1 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:

Paul Agiru

Applicant

v.

Manasseh Q. Makiba

First Respondent

and

Electoral Commission of Papua New Guinea

Second Respondent

Waigani: Hartshorn J

2023: 9^th & 27^th February

SUPREME COURT REVIEW — Application for leave to review decision of National Court in an election petition filed by the applicant — grounds of leave for review — consideration of — whether there is an important point of law to be determined which is not without merit — whether there is a gross error — whether it has been established that there are exceptional circumstances showing manifestation of substantial injustice — whether a review is warranted in the interests of justice — No other evidence has been given or submissions made which would enable this court to find that there exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice — application refused.

Cases Cited:

Application by Belden Namah (2020) SC1934

William Hagahuno v. Johnson Tuke (2020) SC2018

Sir John Pundari v. Peter Yakos (2023) SC2345

Counsel:

Mr. J. Ole, for the Applicant

Mr. M. Nale, for the First Respondent

Mr. L. Tangua, for the Second Respondent

Redman Lawyers: Lawyers for the Applicant

Jema Lawyers: Lawyers for the First Respondent

Tangua Lawyers: Lawyers for the Second Respondent

27^th February, 2023

1. Hartshorn J: This is a decision on an 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 Magarima Open Electorate in Hela Province in the 2022 General Elections. The applicant was the first runner up in the election for the Electorate and petitioned the first respondent's election in the National Court. Upon application by the first respondent the primary judge summarily dismissed the election petition under Rule 18 (a) Election Petition (Miscellaneous Amendments) Rules 2022 for the failure by the applicant to comply with direction orders made on 21^st October 2022 by consent, which required amongst others, the applicant to file and serve affidavits by 8^th November 2022 (Consent Order).

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].

Preliminary

Objections to Competency

5. Both respondents objected to the competency of the application before this court.

6. The first respondent objects to the competency of the application on the basis that a new heading has been incorporated into the application which is not in the requisite Form in the Supreme Court Rules. Further, orders are sought contrary to the intent and purpose of Order 5 Sub-division 2 Supreme Court Rules, which is for leave only.

7. The authority relied upon in support of these objections to competency is Application by Belden Namah (2020) SC1934. The proceeding in that case was a substantive Application made pursuant to s. 18(1) Constitution in the original jurisdiction of the Supreme Court. The Court stated that it considered that substantial compliance with Rules of the Supreme Court was not sufficient in a case of the invocation of the original jurisdiction of the Supreme Court in constitutional matters, especially in the case of the nature before it, that nature being the constitutionality of the appointment of the Prime Minister.

8. The proceeding presently before this court is not of such a nature and may be distinguished from Application by Namah (supra). The matters about which complaint is made by the first respondent to my mind, do not affect the competency of the application before this court. To the extent that they do, I am satisfied that there has been substantial compliance by the applicant. The objections to competency of the first respondent are rejected.

9. The second respondent objects to the competency of the application before this court on the basis that the applicant has failed to...