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Mul v Ondokoi [2024] PGSC 119; SC2654 (29 October 2024)

SC2654

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 5 OF 2024
Review Pursuant to Constitution, s 155(2)(b)

BETWEEN:
BENJAMIN NGENTS MUL
-Applicant-

AND:
DAISY APORE ONDOKOI
-First Respondent-

AND:
ELECTORAL COMMISSION
-Second Respondent-

Waigani: Collier J, Narokobi J & Carey J
2024: 28^th & 29^th October

ELECTION PETITION - Application for Review- Review decision which held Notice of Motion Incompetent – Review Ruling on Application to Extend Time and/or vary orders – Review the decision that all 19 affidavits by the Applicant before the National Court were filed without leave and not properly before the court –Review the Petition progresses to an expedited hearing under Rule 18(2) of the Election Petition (Miscellaneous Amendment) Rules 2022.

The Applicant sought a review of the trial judge’s decision to dismiss his notice of motion to adduce further evidence and request consequential relief. This was despite his failure to file leave to present this evidence as directed by the trial judge and without providing any reason for not complying with the directions. The Applicant contends that the trial judge erred in the exercise of discretion pursuant to s.212 and s. 217 of the Organic Law on National and Local-Level Government Elections. The First Respondent opposed the grounds of review by the Applicant on the basis that they were misconceived and asserted that they should be dismissed.
Held:

(1) The Application for Review is dismissed.
(2) There was no identifiable error in the exercise of discretion by the trial judge.
(3) The Applicant was not precluded from a fair hearing to defend himself against the serious allegations of bribery.
(4) Each of the grounds of the Review is without merit.
(5) The trial judge considered s.212 and s.217 of the Organic Law on National and Local-Level Government Elections in arriving at her decision.
(6) The Orders of 15 February 2024 by the trial judge are upheld.
(7) The Applicant’s Security of Costs of K5,000.00 are affirmed and not to be refunded.
(8) The Applicant to pay the First Respondent’s cost of and incidental to:

1. the Notice of Motion, filed on 25 September 2023;
2. the Application for Leave to Review, filed on 29 February 2024; and

100. the Application herein for Review, filed on 27 March 2024.
     

Cases Cited:
Aihi v Isoaimo [2023] PGSC 56
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
PNG Power Limited v Ralph Gura, Albert Ukura, Yari Baiwe and all officers and members of Arona Valley Landowners Association Inc and all people of Agarabi, Kainantu, Obura, Wonenara District and Yonki, Arona Valley Area, Eastern Highlands Province (2014) SC1402
Moi Avei and Electoral Commission v Charles Maino [2000] PNGLR 157

Legislation:
Constitution of Papua New Guinea
Organic Law on National and Local-level Government Elections
National Court Rules (Election Petitions)

Counsel:
Mr Levente A. Jurth with Mr. Elijah Wembri, for the Applicant
Mr Ryhen Tamarua, for the First Respondent

29^th October 2024

1. BY THE COURT: Benjamin Ngents Mul (the Applicant) in SCR (EP) No. 5 of 2024 and in which Daisy Apore Ondokoi (the first Respondent) and Electoral Commission (the second Respondent), sought to set aside the decision by the National Court Election Petition proceeding styled EP No. 65 of 2022 (IECMS)- Daisy Apore Ondokoi -v- Benjamin Ngents Mul & Electoral Commission.
   
2. The Applicant and the First Respondent were both candidates in the North Waghi Open Electorate seat in the 2022 National General Elections.
   
3. On 3 August 2022, the Applicant was declared the winner and returned as the elected member, and the First Respondent finished in 8th place.
   
4. On 9 September 2022, the First Respondent filed election petition proceedings EP No.4 of 2022 which indicated as follows:
   
   1. alleging four grounds of bribery against the Applicant pursuant to s.103(a)(iii) of the Criminal Code Act; and
   2. to have the election of the Applicant declared void pursuant to s.215(1) of the Organic Law on Provincial and Local Level Government Elections.
      
5. On 17 October 2022, the Court issued direction orders pursuant to Rule 13(3) of the National Court Election Petition Rules (the EP Rules) by consent of the Applicant and First Respondent.
   
6. The direction orders indicated that the parties agreed to file and serve all witness statements and affidavits by 14 November 2022.
   
7. The First Respondent complied with the direction orders and filed the witness statement and affidavits within time.
   
8. The Applicant filed one affidavit on 14 November 2022.
   
9. On 6 July 2023, the trial commenced with the First Respondent calling her witnesses, and on 10 July 2023, the First Respondent’s witnesses completed their evidence.
   
10. On 25 September 2023, the Applicant’s Notice of Motion to Adduce Further Evidence was filed and served on the parties.
    
11. On 10 October 2023, a further 19 affidavits were filed on behalf of the Applicant to support the Notice of Motion to Adduce Further Evidence which were also served on the First Respondent on 12 October 2023.
    
12. On 26 October 2023 a Notice to Rely on the 19 affidavits were filed by the Applicant pursuant to s.35(1) of the Evidence Act.
    
13. On 22 December 2023, the hearing of the Notice of Motion to Adduce Further Evidence occurred.
    
14. On 15 February 2024 the trial judge delivered the ruling to dismiss in relation to the Notice of Motion to Adduce Further Evidence and also ordered that the proceedings continue to an expedited hearing under Rule 18(2) of the EP Rules.
    

Determination

15. The Applicant contends that the trial judge erroneously proceeded on the basis that the Applicant was in breach of direction orders and misconstrued the effect of direction orders which were by consent to preclude any further evidence being received including oral evidence.
    
16. In Curtain Bros (PNG) Ltd v. UPNG (2005) SC788 it states:
    

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred...”

17. We do not accept that there was an identifiable error in the exercise of discretion of the trial judge with respect to direction orders which were by consent of the Applicant and First Respondent.
    
18. It would be an injustice to the First Respondent to have facilitated the Applicant’s contention that case management that suits the purpose of the Applicant to a prejudicial view of the First Respondent is acceptable.
    
19. In PNG Power Limited v Ralph Gura, Albert Ukura, Yari Baiwe and all officers and members of Arona Valley Landowners Association Inc and all people of Agarabi, Kainantu, Obura, Wonenara District and Yonki, Arona Valley Area, Eastern Highlands Province (2014) SC1402, it indicates that the interest of justice is applicable to all parties.
    
20. The Applicant did not provide any explanation as to the rationale as to the inordinate and inexcusable delay in filing the affidavits as provided for in the directions order by consent of the parties.
    
21. The Applicant’s failure to comply with direction orders which are not discretionary but mandatory indicates a blatant disregard for the court on the one hand but on the other hand an expectation that the court is mandated to accept his argument in a manner that is prejudicial to the First Respondent.
    
22. The Applicant was not restricted from giving evidence in support of his case but chose to delay in filing and serving witness statements and affidavits to be relied on and this demonstrates a clear case in which after 10 months and 27 days the Applicant was still non-compliant with the direction orders for which he consented, determined that in the absence of any bona fide reasons was entitled to adduce further evidence which in the exercise of discretion of the trial judge would not have been “just and sufficient” and read in conjunction with s.217 of the Organic Law inconsistent with real justice.
    
23. In Moi Avei and Electoral Commission v Charles Maino (2000) PNGLR 157 it states:
    

“It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions. This can be noted in s. 155(6) of the Constitution which speaks of them as alternatives.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming it's own judgement of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts of authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.”

24. In this review we have examined the decision-making process.
    
25. While Rule 22(1) of the EP Rules provides that “the Court may dispense with compliance” this is based on the exercise of discretion of the judge.
    
26. The argument put forward by the Applicant vitiates the proposition that the consent of the parties in the direction orders underpinned how the proceedings were to progress and we are not persuaded that the legal reasoning by the trial judge was flawed with regard to the considerations given to the s.155(4) of the Constitution.
    
27. The process by which the trial judge arrived at her decision in which it was found that the Notice of Motion to Adduce Further Evidence was incompetent does not suggest an identifiable error as proffered by the Applicant that we are persuaded by.
    
28. In Aihi v Isoaimo [2023] PGSC 56, at paragraph 49, it states:
    

“49. It is settled law now that, once an election petition has progressed to trial, the provisions of s. 217 comes into operation. [40] Pursuant to this provision, the Courts have allowed themselves for instance to consider all evidence before them, whether admissible or not, or whether hearsay or not, in order to do real justice on the substantive merits of the case. This means in my view that, once a matter has progressed to trial, however that was allowed, the Court must proceed to consider the evidence before it, make the relevant findings of fact and arrive at a decision on the substantive merits of the case. Hence, the technical questions of whether there is foundation in the pleadings or not or whether or not an election petition is incompetent do not apply. This was made abundantly clear in the National Court decision by Amet CJ., in Maino v. Avei, which was endorsed by this Court’s decision in the Application by Ben Semri (confirming the approach of Injia J (as he then was) in Assik Tommy Tomscoll v Ben Semri, [41] which I followed in my own decision in the Steven Pirika Kamma v. Itanu, Electoral Commission and Laimo [42] and Steven Pirika Kamma v. John Itanu & Others (No 2). [43]”

29. The trial judge took s.217 into consideration in her legal reasoning as this is not an appeal against her decision but a review of the decision-making process that resulted in her decision, we do not find an error in the exercise of discretion.
    
30. The Applicant avers that s.34 of the Evidence Act provides the court with the power to give orders for filing of affidavits.
    
31. Further the Applicant indicates that s.35 of the Evidence Act informs that parties are able to file affidavits and file a Notice to Rely thereafter.
    
32. However, the trial judge in her decision provided the balancing act required in the exercise of discretion and the application of real justice to be observed in accordance with s.217 of the Organic Law.
    
33. Therefore, this court rejects the argument by the Applicant that the entitlement to provide evidence (ie. Oral and by way of the 19 affidavits filed which were done out of time and with no excuse as to delay) under the Evidence Act and failure to allow this evidence resulted in an identifiable error of the trial judge when read in line with the requirement of s.217 of the Organic Law.
    
34. The injustice that is argued to have been created by the decision of the trial judge was a direct result of the Applicant and he is unable to demonstrate to this court that the trial judge had any identifiable error in the exercise of her discretion to arrive at the decision for which this review has examined.
    
35. We make the following Orders:
    

ORDER

1. The Application for Review is dismissed.
2. There was no identifiable error in the exercise of the discretion by the trial judge.
3. The applicant was not precluded from a fair hearing to defend himself against the serious allegations of bribery.
4. Each of the grounds of review is without merit.
5. The trial judge considered s.212 and s.217 of the Organic Law on National and Local-Level Government Elections in arriving at her decision.
6. The Orders of 15 February 2024 by the trial judge are upheld.
7. The Applicant’s Security of Costs of K5,000.00 are affirmed and not to be refunded.
8. The Applicant to pay the First Respondent’s cost of and incidental to:
   1. the Notice of Motion, filed on 25 September 2023;
   2. the Application for Leave to Review, filed on 29 February 2024; and
   100. The Application herein for Review, filed on 27 March 2024.
        

Ordered accordingly.
________________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Lomai & Lomai Attorneys: Lawyers for the First Respondent