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Electoral Commission of Papua New Guinea [2018] PGSC 42; SC1695 (30 July 2018)

SC1695

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 35 OF 2018

APPLICATION UNDER SECTION 155(2) OF THE CONSTITUTION AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant

AND:
DON POMB POLYE
First Respondent

AND:
LUKE ALFRED MANASE
Second Respondent

Waigani: Dingake J
2018: 18, 25 & 30 July

SUPREME COURT – ELECTION PETITION – Application to dispense with Order 5 Rule 7 and 8, Order 5 Rule 39 of Supreme Court Rules 2012 – Objection to Competency partly successful, Dispensation refused – Constitution – Section 155(2) (b) and Section 155 (4) and 185.

Cased Cited:

Louis Medaing v Ramu Nico Management (MMC) 2011 SC1156; SCRev (EP) No. 36 of 2018;
Luke Alfred Manase v Don Pomb Poyle and he Electoral Commission of Papua New Guinea); SCRev (EP) No. 36 of 2018

Counsel:

Mr.Steven Ranewa, for the Appellants
Ms. Hillary Marsiria, for the First Respondent
Mr. Bonnertius Sabarei, for the Second Respondent

8^th August, 2018

1. DINGAKE J: The applicant, by amended Notice of Motion filed with this Court on the 1^st of August, 2018, seeks, inter alia, the following orders:
   • (b) Pursuant to Order 5, Rule 39 of the Rules strict compliance with Order 5, Rules 7 and 8 of the Rules, or the combine effect to Order 5, Rules 7 and 8 of the Rules, which precludes an interlocutory decision of the National Court on election petition to be reviewed, except final decisions only, be dispensed with.
   • (c) Alternatively, pursuant to Section 155(2) (b) and (c) and Section 155(4) and Section 185 of the Constitution and that the applicant be granted leave to file an application for leave to review the interlocutory decision of the National Court of 5^th July, 2018, in EP No. 73 of 2017; Don Polye v Alfred Manase & Electoral Commission.
2. The interlocutory decision which the applicant prays for leave to review, relates to objection to competency filed by the applicant and the second respondent.
3. The interlocutory decision upheld in part the objections to competency raised by the applicant and second respondent and ordered that certain allegations in the petition are competent and will proceed to trial.
4. The decision (interlocutory decision) was delivered by the National Court (per Makail J) on the 5^th of July, 2018.
5. The decision concerns the election petition, filed by the first respondent against the applicant and the second respondent to invalidate the election of the second respondent as a member for Kundep Electorate.
6. Order 5 Rule 7 sets out seven separate definitions of certain words, including the definition of “Decision”.
7. It is plain from a reading of Order 5 Rule 7 that it does not require anyone to do or comply with anything.
8. The issue that sharply falls for determination is whether it is permissible for this Court to dispense with Order 5 Rule 7 and 8 of the Supreme Court Rules pursuant to Order 5 Rule 39 of the Supreme Court Rules.
9. Order 5 Rule 8 provides that:
   • “8. A party aggrieved by a decision of the National Court in an election petition brought under Part XVIII of the Organic Law shall file an application for an election petition review.”
10. Order 5 Rule 8 provides that a party aggrieved by the decision of the National Court shall file an application for an election petition review.
11. The applicant places reliance upon Order 5 Rule 39 of the Supreme Court Rules 2012, which provides as follows:
    • “39. The Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”
12. It seems to me that in order to successfully place reliance on Order 5 Rule 39, referred to above, there must be a Rule that contains a requirement that has to be complied with.
13. Order 5 Rule 7, which contains a definition of “Decision” does not embody any requirements that any party should comply with and thereby requiring same to be dispensed with.
14. I am fortified in the view I hold, namely, that for there to be dispensation with compliance with the requirement of a Rule, there must be a Rule that has a requirement to be complied with for which dispensation is sought, by the opinion of my brother, Hartshorn J, in SCR (EP) No. 36 of 2018, Luke Alfred Manase v Don Poyle & The Electoral Commission (unreported), dated 30 July, 2018, when he held to the same effect.
15. I turn now to consider the alternative application made pursuant to Sections 155(2) (b) and (c), 155(4) and 185 of the Constitution.
16. In my mind reliance on Section 155(2) (b) and (c) does not advance the case of the applicant in any significant manner, because there is subsidiary legislation, in the form of Supreme Court Rules, which specifically deal with the practice and procedure for Election Petition Reviews. The Election Petition Reviews are appropriately made under Section 155(2) (b) and (c) dealing with the Supreme Court inherent powers. It stands to reason therefore that an application made in respect of the reviews must comply with the Supreme Court Rules.
17. With respect to the applicability of Section 185, the Supreme Court Rules 2012, make adequate provision for leave to review, in so far as they provide that an application for leave to review may only be made in respect of a final decision. The Supreme Court Rules make provision for an application concerning an Election Petition under Section 155(2) (b) of the Constitution by prescribing the governing practice and procedure.
18. With respect to Section 155(4) of the Constitution, the authorities seem to suggest that Section 155(4) may only be utilized to enforce a primary right in the absence an enabling legislation (Louis Medaing v Ramu Nico Management (MMC) 2011 SC1156; SCRev (EP) No. 36 of 2018; Luke Alfred Manase v Don Pomb Poyle and he Electoral Commission of Papua New Guinea).
19. In the result, the application is without merit and it is refused.
20. It is ordered that:
    • (i) The relief sought in paragraphs (b) and (c) and (e) of the Amended Application filed with this Court on the 1^st of August, 2018 is refused.
    • (ii) There is no order as to costs.

______________________________________________________________
Kawat Lawyers: Lawyer for the Appellant
Fairfax Legal PLN: Lawyer for the First Respondent
Simpson Lawyers: Lawyer for the Second Respondent