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Thomas v Bando [2023] PGSC 114; SC2462 (26 September 2023)

SC2462

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 40 OF 2023

PETRUS NANE THOMAS
Applicant

V

WILLIAM WAI BANDO
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 22^nd, 26^th September

PRACTICE AND PROCEDURE – objection to competency of application for leave for review of decision of National Court to dismiss election petition – whether application adequately stated jurisdictional basis – whether form of application compliant with Supreme Court Rules – whether supporting affidavit compliant with Rules.

The applicant filed an application for leave to review a decision of the National Court that dismissed his election petition that challenged the return of the first respondent as successful candidate in a general election. The second respondent, the Electoral Commission, filed an amended notice of objection to competency raising three grounds of objection, summarised as: (1) the application failed to properly state its jurisdictional basis; (2) the application was non-compliant with the Supreme Court Rules in four respects; (3) the applicant’s supporting affidavit was non-compliant with the Supreme Court Rules.

Held:

(1) The application adequately stated its jurisdictional basis.

(2) The application was substantially compliant with the Rules and was not defective. No departure from the Rules deprived the Court of jurisdiction.

(3) The applicant’s supporting affidavit was compliant with the Rules.

(4) All grounds of objection refused. Objection to competency refused.

Cases Cited

The following case is cited in the judgment:

Thomas v Bando & Electoral Commission (2023) N10335

Counsel

A Manase, for the Applicant
D E Doiwa, for the First Respondent
S G Dewe, for the Second Respondent

26^th September, 2023

1. BY THE COURT: The second respondent, the Electoral Commission, objects, by an amended notice filed on 20 September 2023, to the competency of the application by Petrus Nane Thomas for leave to review a decision of the National Court.

2. The decision was by Justice Kangwia in the election petition EP 7 of 2022. Mr Thomas was the petitioner. Mr Bando, the successful candidate in the seat of Koroba-Kopiago Open in the 2022 general election, was first respondent. The Electoral Commission was second respondent.

3. On 19 June 2023 his Honour upheld objections by both respondents to competency of the petition. His Honour held that the petition was not filed within 40 days after declaration of the result of the election, as required by s 208(e) of the Organic Law on National and Local-Level Government Elections. His Honour ruled that the petition was incompetent and dismissed it (Thomas v Bando & Electoral Commission (2023) N10335).

4. On 28 June 2023 Mr Thomas filed in the Supreme Court an application for leave to review that decision. Mr Bando is the first respondent in these Supreme Court proceedings. The Electoral Commission is second respondent.

5. It is Mr Thomas’s application for leave that is the subject of the Electoral Commission’s objection to competency. Mr Bando supports the objection to competency.

GROUNDS OF OBJECTION

6. The grounds of objection are that:

(1) the application fails to properly state its jurisdictional basis;

(2) the application is non-compliant with the Supreme Court Rules in four respects;

(3) the applicant’s supporting affidavit is non-compliant with the Supreme Court Rules.

I deal with each ground in turn.

(1) THE APPLICATION FAILS TO PROPERLY STATE ITS JURISDICTIONAL BASIS

7. Mr Dewe for the second respondent submits that the application fails to make a proper and concise reference to its jurisdictional basis. Instead it pleads directory provisions of the Supreme Court Rules 2012, thereby contravening Order 13 rule 15 of the Rules, which provides that “All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought”.

8. I consider that Order 13 rule 15 is a general provision that does not apply to election petition reviews, which have a whole division, Division 5.2 of the Supreme Court Rules, consisting of Order 5 rules 7 to 48, devoted to that subject.

9. The requirements of an application for leave are set in Order 5 rule 10, which states:

An application for leave shall—

(a) be entitled 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; and

(b) be entitled in the name of the person making the application and the name of the respondents; and

(c) state briefly the particulars of the decision of the National Court to be reviewed, the nature of the case, the issues involved and why leave should be given; and

(d) state an address for service of the applicant; and

(e) be signed by the applicant; and

(f) be in accordance with Form 5A; and

(g) be filed in the Supreme Court Registry at Waigani.

10. Order 5 rule 10(f) requires that the application for leave be in accordance with form 5A, which is set out in the following way:

APPLICATION FOR LEAVE TO REVIEW

APPLICATION will be made to the Supreme Court, at Waigani at ............... am/pm on the ............ day of ................. 20...., for:

1. LEAVE TO APPLY FOR REVIEW:

(state date of the decision and the decision for review).

2. GROUNDS:

(state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case)

3. THE ISSUES INVOLVED:

4. REASONS WHY LEAVE SHOULD BE GIVEN:

5. ADDRESS FOR SERVICE OF THE APPLICANT:

Dated this .............day of............... , 20.......... .

Signed_______________________

(Applicant)

11. Nowhere in Order 5 rule 10 or in form 5A is there any requirement to state the jurisdictional basis of the application for leave.

12. Despite the absence of such a requirement, the application for leave includes this statement at paragraph 1.2:

The application for leave to review under s 155(2)(b) of the Constitution is made pursuant to Order 5 Division 2, Sub-division 2, rules 8, 9 and 10 of the Supreme Court Rules (as amended).

13. That, in my view, is an adequate statement of the jurisdictional basis of the application for leave.

14. The first ground of objection is refused.

(2) THE APPLICATION IS NON-COMPLIANT WITH THE SUPREME COURT RULES IN FOUR RESPECTS

15. It is argued that the application for leave:

(a) in paragraph 1 offends against Order 5 rule 10(c) and form 5A of the Rules by pleading more than the date of the decision and the decision to be reviewed and including an extra and unnecessary paragraph;

(b) in paragraph 2 fails to accurately state the particulars of the decision to be reviewed;

(c) in paragraph 3 fails to conform to form 5A by not accurately stating the heading of the paragraph and the issues involved in the National Court;

(d) in paragraph 4 fails to provide reasons that support the purported grounds of the application for leave.

16. As to (a), the objection is that paragraph 1 of the application for leave contains details of the decision of the National Court which is the subject of the complaint, which are not required, and that paragraph 1.2 includes the purported jurisdictional basis of the application for leave, which is not in the correct place and is just lumped together with the details of the decision.

17. This is a trivial objection. It is not a proper ground of objection to competency. It is an exercise in extreme nit-picking. No significant, material or important departure from the Rules has been highlighted by the second respondent. Objection 2(a) is refused.

18. As to (b), the argument is that paragraph 2 of the application for leave does not state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case. It is argued that paragraph 2 merely states the submissions made by the applicant in the National Court and does not identify the purported erroneous reasoning of the National Court.

19. I reject those arguments. The application for leave adequately and succinctly sets out particulars of the National Court’s decision and the nature of the case. It also sets out the proposed grounds of review. There is nothing wrong with drafting an application for leave in that way. Objection 2(b) is refused.

20. As to (c), the argument that the application for leave is defective as the heading to paragraph 3 simply states “ISSUES”, when it should have stated “THE ISSUES INVOLVED”, is beyond trivial. A party objecting to competency of an originating process in the Supreme Court must do much more than point to literal differences between the form in the Rules and the form actually used. Is it seriously suggested that because an applicant does not include two words in his application form, his application is incompetent? And that it should be dismissed? This argument is frivolous and a waste of time.

21. The complaint that paragraph 3 fails to accurately state the issues involved is also trivial. Paragraph 3 of the application for leave appears to me to adequately and fairly state the issues that would be determined by the Supreme Court if leave is granted. It alerts the Judge hearing the application to the important issues that would be raised if leave is granted.
Objection 2(c) is refused.

22. As to (d), the argument is that paragraph 4 of the application for leave does not support the purported grounds of the application.

23. This argument is without merit. Order 5 rule 10(c) and form 5A require that the application for leave “state briefly ... why leave should be given”. Paragraph 4 of the application for leave states amongst other things that “there are conflicting decisions in the National Court concerning the meaning of the word “filed” in s 208(e) of the Organic Law and on the relevance of the definition of “filed” in the Election Petition Rules 2017 ... to its interpretation”. That would appear to be a valid and relevant consideration for the Judge hearing this application for leave to consider in the exercise of discretion whether to grant leave. It is proper for an applicant to state it as a reason why leave should be granted. Objection 2(d) is refused.

(3) THE APPLICANT’S SUPPORTING AFFIDAVIT IS NON-COMPLIANT WITH THE SUPREME COURT RULES

24. It is argued that the applicant’s supporting affidavit offends against Order 5 rule 11, as it fails to specifically state the issues and grievances that the applicant wishes to prosecute.

25. Order 5 rule states:

The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.

26. The only requirements that the supporting affidavit must meet are that it:

• sets out the circumstances pertaining to the petition; and
• annexes a copy of the petition and the judgment and the order of the National Court.
  

27. The affidavit of the applicant filed with the application for leave on 28 August 2023 meets those requirements. There is nothing wrong with the affidavit. Objection (3) is refused.

CONCLUSION
28. All grounds of objection to competency fail. The objection to competency will be refused. Costs will follow the event.

ORDER

1. The objection to competency of the application for leave, made by amended notice of objection to competency filed 20 September 2023, is refused.
   
2. The second respondent shall pay the applicant’s costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.
   

________________________________________________________________
Manase & Co Lawyers: Lawyers for the Applicant
Makap Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent