Ramsey Pariwa v Peter Charles Yama and Others

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 28 April 2023
• Neutral Citation: SC2385
• Citation: SC2385, 2023-04-28
• Counsel: M Kombri, for the Applicant,B Lomai, for the First Respondent,M Boas, for the Second Respondent
• Docket Number: SC REV (EP) NO 14 OF 2023
• Hearing Date: 20 April 2023,28 April 2023
• Court: Supreme Court

SC2385

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 14 OF 2023

Ramsey Pariwa

Applicant

v.

Peter Charles Yama

First Respondent

Electoral Commission

Second Respondent

Waigani: Cannings J

2023: 20^th, 28^th April

ELECTIONS — application for leave to apply for review by Supreme Court of decision of National Court to dismiss application for summary determination of election petition — Constitution, s 155(2)(b) — Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The first respondent in an election petition (the successful candidate) applied in the National Court for summary dismissal of the petition on the ground of breach of s 222(1) of the Organic Law on National and Local-Level Government Elections, in that the petition had been drafted by a lawyer without the consent of the other parties or leave of the court. The National Court refused the application. The primary judge decided that the application, made by notice of motion, was an abuse of process and that it lacked a proper jurisdictional basis, and for each of those reasons was dismissed. As to the merits of the application, his Honour ruled that there was no Supreme Court decision on point and that the only National Court case in which the issue had arisen (Waranaka v Trawen (2012) N4815, where it was held that an alleged breach of s 222(1) was not a ground of objection to competency of a petition) was correctly decided, and therefore the primary ground of dismissal of the petition lacked merit. The first respondent in the National Court then filed an application in the Supreme Court seeking leave to review the decision to dismiss his application for summary dismissal of the petition.

Held:

(1) To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) insofar as the application relates to a point of law, that it is an important point, which is not without merit or (ii) insofar as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2) Some of the proposed grounds of review in the application for leave raised arguable points of law, in that it was arguable that the primary judge erred in law in dismissing the application to the National Court as an abuse of process and that his Honour erred in expressing the view that an alleged breach of s 222(1) of the Organic Law is not a ground of objection to competency, but none were so compelling as to give rise to exceptional circumstances and the interests of justice did not require that leave be granted. Therefore leave was refused.

Cases Cited:

The following cases are cited in the judgment:

Application by Schulze (1998) SC572

Hagahuno v Tuke (2020) SC2018

Hewabi v Simaka (2023) SC2373

Kikala v Electoral Commission (2013) SC1295

Kimave v Tore (2013) SC1303

Kopaol v Embel (2008) SC941

Pundari v Yakos (2023) SC2345

Saonu v Dadae (2004) SC763

Waranaka v Trawen (2012) N4815

Yama v Pariwa & Electoral Commission EP No 95 of 2022, 14.03.23, unreported

Counsel:

M Kombri, for the Applicant

B Lomai, for the First Respondent

M Boas, for the Second Respondent

Kombri & Associates Lawyers: Lawyers for the Applicant

Lomai & Lomai Attorneys: Lawyers for the First Respondent

Kuman Lawyers: Lawyers for the Second Respondent

28^th April, 2023

1. Cannings J: The applicant, Ramsey Pariwa, won the seat of Madang Provincial at the 2022 general election. His election was challenged by the first respondent, Peter Charles Yama, through an election petition, EP 95 of 2022, in the National Court.

2. On 14 March 2023 the National Court constituted by Justice Yagi refused an application by the applicant under rules 22(3) and (4) of the Election Petition Rules 2017 for summary dismissal of the petition on the ground of breach of s 222(1) of the Organic Law on National and Local-Level Government Elections, in that the petition had been drafted by a lawyer without the consent of the other parties or the leave of the court.

3. Section 222(1) states:

A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

4. Justice Yagi decided that the application, made by notice of motion, was an abuse of process and that it lacked a proper jurisdictional basis, and for each of those reasons was dismissed. As to the merits of the application, his Honour ruled that there was no Supreme Court decision on point and that the only National Court case in which the issue of whether there is anything wrong in a lawyer drafting a petition had arisen, was correctly decided. The National Court case was Waranaka v Trawen (2012) N4815, in which Makail J held that an alleged breach of s 222(1) was not a good ground of objection to competency of a petition. Justice Yagi concluded that the primary ground of dismissal of the petition lacked merit (Yama v Pariwa & Electoral Commission EP No 95 of 2022, 14.03.23, unreported).

5. The applicant, Mr Pariwa, now seeks leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of his Honour's decision. His application is opposed by the first respondent, Mr Yama. The second respondent, the Electoral Commission, takes a neutral position.

6. The applicant argues by way of proposed grounds of review that his Honour erred in fact and law by:

(a) ruling that the motion to dismiss the petition was an abuse of process, without giving reasons for ruling that the ground for dismissing the petition regarding s 222(1) of the Organic Law should have been included in a formal objection to competency or raised at the trial;

(b) ruling that the notice of motion cited an incorrect jurisdictional basis, when that point of law was not raised by any of the parties, and without indicating what would have been a correct jurisdictional basis;

(c) relying on the dissenting opinion of Injia J in Application by Schulze (1998) SC572 and disregarding significant obiter dicta in Sauk v Polye (2004) SC769, Saonu v Dadae (2004) SC763, Kimave v Tore (2013) SC1303, Kopaol v Embel (2008) SC941 and Hagahuno v Tuke (2020) SC2018 which supported the proposition that lawyers are prohibited from drafting petitions without the agreement of all parties or the leave of the court;

(d) not ruling that it is a mandatory requirement of s 222(1) of the Organic Law that lawyers are prohibited from drafting an election petition without the agreement of other parties or the leave of the court;

(e) failing to recognise that s 166(1) of the Constitution gave the National Court unlimited jurisdiction, so that it had power to consider the motion for dismissal of the petition on the ground of breach of s 222(1) of the Organic Law; and

(f) failing to give reasons for addressing the issue of abuse of process without the issue being raised by any of the parties and for agreeing with the reasoning in Waranaka v Trawen (2012) N4815 and for not addressing the effect of the admission by the first respondent's lawyers that they did indeed draft the petition.

7. The first respondent argues that the application is without merit as there are no important points of law to be determined, and there are no exceptional circumstances warranting the grant of leave.

CRITERIA

8. There are many cases that have over the years set out the criteria to be taken...