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Ganzik v Iguan [2024] PGSC 37; SC2572 (8 May 2024)

SC2572

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 6 OF 2023
Application under Section 155 (2) (b) of the Constitution
In the Matter of Part XVIII of the Organic law on National and Local-level Government Elections

BETWEEN:
GENGEWE NERITHA GANZIK
Applicant

AND:
HON. KONI IGUAN, MP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Geita, Lindsay & Shepherd, JJ
2023: 28^th September
2024: 8^th May

PRACTICE & PROCEDURE – application to Supreme Court pursuant to s.155(2)(b) of Constitution for review of National Court decision on election petition – objection to competency of application to review after leave granted – whether inclusion in application to review of new grounds for which leave was not granted renders entire application to review incompetent – discussion of principles – relevance of s.217 of Organic Law on National and Local-level Government Elections – obligation to observe substantial merits and good conscience of each case without regard to legal forms and technicalities - Hagahuno v Tuke (No. 2) (2020) SC2018 applied - objection upheld in part – new grounds pleaded in application to review struck out but remaining grounds competent to proceed to substantive hearing.

Held:

(1) When confronted with the inclusion of a new ground in an application to review pursuant to s.155(2)(b) of the Constitution in election petition proceedings after grant of leave, the Supreme Court is entitled to adopt that course which is most appropriate to the circumstances of the case and which advances the interests of justice: Hagahuno v Tuke (No. 2) (2020) SC2018 applied.

(2) The options available to the Supreme Court on the hearing of an objection to competency in election petition review proceedings include:

(a) allowing a new ground or a modified ground for which leave has not been granted to nevertheless go forward to substantive review if the Court is satisfied that the new ground has merit or if the ground as modified continues to have merit;

(b) striking out the new ground or modified ground from the application to review if either fail to have merit but allowing the remaining grounds for which leave has been granted to go forward to substantive review;

(c) dismissing the application to review in its entirety for failure to have pleaded grounds that have merit despite leave having already been granted in respect of some or all of those grounds.

(3) The paramountcy of s.217 of the Organic Law on National and Local-level Elections has equal application to reviews by the Supreme Court of election petition proceedings in the National Court, including the hearing by the Supreme Court of objections to competency of applications to review after grant of leave, through to final determination on substantive review pursuant to s.155(2)(b) of the Constitution.

(4) In the present case there were four new grounds pleaded in the application to review in respect of which leave had not been granted. The new grounds were struck out but all remaining grounds, having engaged the jurisdiction of the Court, were ordered to proceed to substantive review.

Cases Cited:
Amet v Yama (2010) SC1064
Application by Ben Semri (2003) SC723
Avei v Maino [2000] PNGLR 157
Balakau v Torato [1988] PNGLR 242
Biri v Nilkama [1982] PNGLR 342
Coca Cola Amatil (PNG) Ltd v Kennedy (2012) SC1221
Dekena v Kuman (2018) SC1715
Dr Lino Tom v Kenai (2023) SC2495
Hagahuno v Tuke (No.1) (2020) SC1966
Hagahuno v Tuke (No.2) (2020) SC2018
Kikala v Electoral Commission (2013) SC1295
Kuman v Digicel PNG Ltd (2017) SC1638
Lovika v Malpo (2019) SC1895
Onglo v Dilu (2023) N1095
Paraka v Peng (2016) SC1780
Pundari v Yakos (2023) SC2345
Sigianisi v Aimo (2013) SC1237
Simon v Kapris (2022) N10103
Waranaka v Dusava (2009) SC980

Legislation:
Constitution, s.155(2)(b)
Organic Law on National and Local-level Government Elections, ss.175(1A)(b), 208, 209, 210, 217, 220
Supreme Court Rules 2012, Order 5 rr. 9, 10 & 19(f), Order 7 rr.4(e) & 9, Forms 5A, 5B, 7, 8

Counsel:
Mr. K. Kulip, for the Applicant
Mr. B.S. Lai, for the First Respondent
Mr. H. Nii, for the Second Respondent

REASONS FOR DECISION

8^th May 2024

1. BY THE COURT: This is a ruling on the Respondents’ objections to competency of the Applicant’s review application following grant of leave.
2. The Applicant is seeking a review under s.155 (2)(b) of the Constitution of a decision of the National Court which dismissed her election petition against the First Respondent, Hon. Koni Iguan, MP. The decision sought to be reviewed is a decision of the National Court exercising jurisdiction under the Organic Law on National and Local-level Government Elections (Organic Law).
   
3. Being aggrieved by the decision of the National Court to dismiss her petition EP No. 70 of 2022 (IECMS), the Applicant applied to the Supreme Court pursuant to s.155 (2)(b) of the Constitution for leave for review of the National Court’s decision in view of s.220 of the Organic Law which prohibits appeals. Leave for review was granted on 18 May 2023 following which the Applicant filed her formal application to review on 31 May 2023.
4. The Respondents have each objected to the competency of the Applicant’s application to review.

BACKGROUND

5. At about 2pm on Saturday 16 July 2022 disgruntled supporters of the First Respondent gained access to a storage container housing all of the cast ballot papers for the Markham Open and the Morobe Provincial seats and set the ballot papers alight, destroying all 32,232 ballot papers from the three LLG areas that constituted the electorate. This prompted Electoral Commissioner Mr Sinai to exercise his “special circumstances” powers under s.175 (1A)(b) of the Organic Law and he declared the result of the election by naming the First Respondent as the winning candidate, who was then duly sworn into office.
6. As a result, the Applicant filed an election petition against the First Respondent but the petition was dismissed on incompetency grounds for having failed to meet the requirements of s. 208 of the Organic Law. The National Court, among other reasons, held that the Petitioner had failed to plead known grounds for disputing an election petition and had also failed to properly plead the material facts, as required under s. 208(a) of the Organic Law.

APPLICANT’S GROUNDS FOR REVIEW

7. The Applicant in this Review has relied on 26 grounds which are reproduced in full below:

5.1.1 The learned trial Judge fell into error, constituting an error of mixed fact and law when he at paragraph 57 of the written decision held that the facts pleaded by the Petitioner (applicant) in paragraphs 5 to 7 of her Petition were insufficient under application of s.208 (a) of the Organic Law on National and Local Level Government Elections ("the Organic Law") to properly raise the allegation that s.175 (IA) (b) of the Organic Law, by which the Second Respondent declared the First Respondent to be returned as the member for the Markham Open electorate, was inconsistent with the ss. 101 and 126 (6) of the Constitution, and the spirit of the Constitution, and consequently, by operation of s. 11 of the Constitution was invalid and ineffective.

5.1.2 Section 208 (a) of the Organic Law requires the relevant material facts to be pleaded in a petition. The Supreme Court in Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020) at paragraph 161 adopted the definition of facts under s.208(a) of the Organic Law which was provided in Barry Holloway v. Aita Ivarato and Electoral Commission [1988-89] PNGLR 99 and held:

"However, case law attempted to define the term 'facts’. In Barry Holloway v. Atta Ivarato and Electoral Commission [1988-89] PNGLR 99 the Supreme Court observed thus:

"The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated ". (My emphasis)

5.1.3 The Learned Trial Judge ought to have held, on the basis of the findings he made in paragraph 58 of the written decision, that the facts pleaded in paragraph 5 to 7 of the Petition which essentially pleads that the scrutiny of the ballot papers for the Markham Open Electorate was not completed due to the destruction of ballot boxes and papers that took place on Saturday I6^h July 2022, are material and relevant facts that which raises questions relating to the interpretation or application of certain specific provisions of constitutional laws, which were not trivial vexatious or irrelevant, and consequently, he should have referred the issues or questions to the Supreme Court in accordance with s. 18 (2) of the Constitution.

5.2.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law when he in paragraph 59 of the written decision found "This is not a case where no election was conducted at all and the Electoral Commission arbitrarily exerciser his power under s.175(1A)(b) and declared the First Respondent or picked him from a lottery...”

5.2.2 When in fact he ought to have found that no election, or no valid election was conducted because a critical part of an election, is a proper completion of the scrutiny, and without which such scrutiny being properly completed, there cannot be said to be any election, or any valid election. In the absence of any valid election, s. 175(1A)(b) of the Organic Law is not consistent with the Constitution for the reasons stated above.

5.3.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law when at paragraph 59 of the written decision, the learned trial Judge held that he would be satisfied if the Petitioner (applicant) had answered the following questions with the facts that she pleaded in the Petition. The questions being;

(i) At what stage of the counting was it stopped?
(ii) What was the result of each of the Candidate at the time the counting stopped?
(iii) What were the circumstances surrounding the burning of the ballot papers?
(iv) How many ballot papers were burnt?
(v) How did the scrutineers participate in the supervision of the Counting?
(vi) Is it possible to establish the motives of the persons involves [sic]in the burning of the ballot papers?
(vii) What role did the returning officer play in the circumstances before, during and after the burning of the ballot papers?
(viii) What role did the returning officer play in the circumstances before, during and after the burning of the ballot papers?
(ix) What process did the Electoral Commissioner employ to exercise his power under s. 175 (1A) (b) of the Organic Law and what were his reasons and were reasons provided to candidates and their scrutineers?

5.3.2 With respect, the Learned Trial Judge fell into error when he suggested that had the Petitioner pleaded facts answering the above questions; or facts that would disclose the circumstances before, during and after the decision made by the Electoral Commissioner to exercise his power under s.175(1A)(b) of the Organic Law then it would be sufficient to refer the constitutional issue to the Supreme Court.

5.3.3 The learned trial judge ought to have held that the material facts pleaded in paragraph 5 to 7 of the petition which the learned trial judge rephrased in paragraph 62 of the written decision, were sufficient to comply with s.208(a) of the Organic Law and hence, raised a question of whether s. 175(1A)(b) of the Organic Law by the Electoral Commission in such circumstances as the one in Markham is Constitutional. The learned trial judge ought to have held that that issue is not trivial, vexatious, or irrelevant and hence have the question referred to the Supreme Court pursuant to s.18(2) of the Constitution.

5.4.1 The learned trial judge fell into error, constituting an error of mixed fact and law when he at paragraph 59 of the written decision held that the Petition has not established the requisite factual foundation, "thereby giving the Petition a hypothetical character." The learned Trial Judge ought to have held that there was nothing hypothetical in the Petitioner’s alleged facts and hold the correct view that the allegations were not hypothetical, because the facts pleaded in the petition are derived from an occurrence of a real and relevant event which was properly pleaded in 10 paragraph 5 to 7 of the Petition and validly raised questions relating to the interpretation or application of certain specific provisions of constitutional laws. The learned trial judge, ought to have held that such issues were not trivial, vexatious, or irrelevant and consequently, ought to have referred the matter to the Supreme Court pursuant to s.18(2) of the Constitution.

5.5.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law when the Learned Trial Judge at paragraph 67 and 68 of the written decision, validated the use of s.175(1A)(b) of the Organic Law by the Electoral Commission entirely on the opinion provided in the Affidavit of Mr. Sinai who is the Electoral Commissioner, and in doing so the Learned Trial Judge partially answered the Constitutional question or issue raised by the Petitioner.

5.5.2 That was an error in law because the Learned Trial Judge clearly had no jurisdiction to take such approach or make such comment because the issue gave rise to a question of a Constitutional Law. Section 18 of the Constitution provides that only the Supreme Court, to the exclusion of other courts, have the power to interpret a Constitutional question.

5.5.3 The correct approach would have been for the learned trial Judge to withhold himself from validating the use of s. 175 (1A)(b) of the Organic Law on the basis of the Electoral Commissioners opinion which was contained in the affidavit deposed by the Electoral Commissioner and instead exercise the court’s powers under s. 18 of the Constitution and refer the question to the Supreme Court, given that the constitutionality of the power granted to the Electoral Commission to declare a candidate as the winner of an election under s. 175(1A) of the Organic Law.

5.6.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law when he at paragraph 50 to 52 of the written decision held that the Constitutional issues raised by the Petitioner were not captured by the Organic Law. The Learned Trial Judge ought to have held the Supreme Court is the final arbiter of the constitutional law issues and hence it may declare that an unconstitutional election return may constitute a ground upon which a return can be declared valid or invalid.

5.7.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law, when he at paragraph 18 of the written decision refused the Petitioner’s (applicant’s) objection to the Second Respondent’s Notice of Objection to Competency, which was filed and served outside of the time stipulated in Rule 12 of the Election Petition (Miscellaneous Amendments) Rules 2022.

5.7.2 The Learned Trial Judge's reason for refusing the objection by the Petitioner towards the Objections to Competency served and filed outside of the time limit by the Second Respondent was based on the Supreme Court case of Amet v Yama [2010] PGSC 46; SC I064 (9 July 2010) which states that ‘an objection can be raised at any time of the proceeding’. The Supreme Court of Amet v Yama in stating that, made reference to Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 which held that:

“It is settled law that the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.” (My underlining)

5.7.3 Respectfully the Learned Trial Judge misapplied the legal proposition established by Amet v Yama (supra), when in fact, Amet v Yama (supra) supported the objection by the Petitioner to the Objection to Competency filed by the Second Respondent and the Learned Trial Judge should have upheld the objection by the Petitioner on the bases that the courts have an inherent jurisdiction to watch over their process and procedures to ensure that they are not abused.

5.7.4 The compliance of Rule 12 of the Election Petition (Miscellaneous Amendment) Rules 2022 is mandatory and as such the Learned Trial Judge made an error in law when he failed to invoke the jurisdiction and powers of the trial court under Rule 22 of the Election Petition (Miscellaneous Amendment) Rules 2022 to upheld the objection raised by the Petitioner.

5.7.5 The learned trial judge should have held that the Second Respondent failed to invoke the jurisdiction and powers of the trial Court under Rule 22 of the Election Petition (Miscellaneous Amendment) Rules 2022 and that is a substantial non-compliance.

5.7.6 The correct approach by the Learned Trial Judge should be the dismissal of the Objection to Competency by the Second Respondent on the bases that;

(i) The Second Respondent did not seek leave to file it out of time; and

(ii) The filing out of time is a deliberate abuse of process; and
(iii) The filing out of time is a substantial non-compliance of the election petition rules; and
(iv) It is incompetent; and
(v) It is an abuse of the process.

5.8.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law, when he at paragraph 63 and 64 of the written decision misapplied the case of Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea [2019] SC 1814 (PGSC 109) by asking himself the following question:

“If the constitutional question in this case is referred to the Supreme Court, then would the Supreme Court apply the same interpretation as it did in Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC 1814?

5.8.2 That approach is misleading because the issue in the Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814 (PGSC109) and the issue in this case are totally different from each other, are NOT in the context of an election petition.

5.8.3 The correct view for the Learned Trial Judge to take which he should have taken, is that Special Reference by the Ombudsman Commission of Papua New Guinea (supra), in that the Supreme Court was asked to interpret and apply the provisions of the Organic Law pertaining to "Special Circumstances" as used in Date of Polling (s. 79 of the Organic Law), Date of Return of Writs (s.80 of the Organic Law) General Election to be held on the same day (s, 81 of the Organic Law), use of Special Procedures (s.82A of the Organic Law) and Extension of Time (s. 177 of the Organic Law). However, the Learned Trial Judge failed to acknowledge and inform himself that "Special Circumstances" as used in s, 175(1A)(b) of the Organic Law is distinct and separate from its application as those in the provisions stated above.

5.8.4 In this case, the issue presented before the Trial Judge was not improper use but directly concerned with the unconstitutionality of the use of the power given to the Electoral Commission by s.175(1A)(b) of the Organic Law on the bases that the Special Circumstances as used in s.175(1A)(b) directly calls into question or conflicts with the requirements of ss.126(l) and (6), 50 and 59 of the Constitution when ballot papers were burnt and hence no legal election was completed to elect a leader. Therefore the suggestion by the Learned Trial Judge that there was a possibility that if this issue was referred to the Supreme Court, then the Supreme Court would take the same approach as it did in Special Reference by the Ombudsman Commission of Papua New Guinea (supra) is with respect in error. It was beyond the Learned Trial Judge's jurisdiction to make such a comment.

5.9.1 The Learned Trial Judge fell into error, constituting an error of mixed fact and law, when the Trial Judge at paragraph 65 of the written decision took into consideration an assumption raised by the Electoral Commissioner Mr. Sinai in his Affidavit. Clearly, his Honour made an error in law when he took into consideration evidence or the affidavit of Mr. Sinai when it is trite law that the only thing that must be considered in an Objection to Competency are the material facts?

5.9.2 The courts have in this jurisdiction in compliance with s.208(a) of the Organic Law have held on numerous occasions that a petition is to plead only the material facts. In Barry Holloway v. Aita Ivarato and Electoral Commission [1988-891 PNGLR 99, the Supreme Court observed;

"In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved 1258 [sic]. What I observed above in relation to pleading of facts and what must be pleaded to constitute facts is reinforced by the Supreme Court decision in the Holloway case (supra). That is the facts must not be long-winded but brief and must be essential or material to the ground of bribery. Further! they must not be evidence. My underlying [sic]

5.9.3 His Honour ought to have abstained himself from considering the affidavit of the Electoral Commissioner because the law requires the Petitioner to plead only the facts and as such any objections made to the Petition must be made to the facts pleaded. Likewise, the correct approach that the learned trial judge ought to have taken which he did not is to abstain himself from considering the affidavit of Mr. Sinai which is evidence.

LAW AND PRINCIPLES GOVERNING JUDICIAL REVIEW OF ELECTION PETITION PROCEEDINGS IN THE SUPREME COURT

(a) General principles for judicial review under s.155 (2)(b) of the Constitution

8. Section 220 of the Organic Law provides that a decision of the National Court in an election petition matter is final and conclusive and without appeal, and shall not be questioned in any way.
9. However, notwithstanding the prohibition contained in s.220 of the Organic Law against any appeal, s.155 (2)(b) of the Constitution states that the Supreme Court has an inherent power to review all judicial acts of the National Court. It is accepted law that a party in an election petition matter who is aggrieved by a decision of the National Court can apply to the Supreme Court for judicial review of that decision under s.155(2)(b) of the Constitution.
10. The procedure governing applications to the Supreme Court under
    s.155 (2)(b) of the Constitution invoking the Court’s review jurisdiction is set out in Order 5 of the Supreme Court Rules 2012 (SCR).
11. Division 2 of Order 5 SCR is specific to applications to the Supreme Court for review of final decisions made by the National Court in election petition matters.
12. An application to the Supreme Court for review of a National Court decision in an election petition matter lies only with leave: Order 5 r. 9.
13. The contents of an application for leave for review are prescribed by Order 5 r.10 SCR and must be in Form 5A of the First Schedule.
14. Order 5 r.10(c) SCR provides

10. An application for leave shall –

(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.

15. The principles governing the exercise by the Supreme Court of its power of judicial review of election matters under s.155 (2)(b) of the Constitution are well established. The Supreme Court summarised the main principles in Application by Ben Semri (2003) SC723 (Kapi CJ, Los J, Salika J). The Court held at pp. 9 and 10:

An appeal against a decision of the National Court in election matters is prohibited by s. 220 of the Organic Law on National and Local-level Government Elections (Organic Law).

However, the Supreme Court has an inherent power to review a decision of the National Court under s.155 (2)(b) of the Constitution: Balakau v Torato [1983] PNGLR 242; Applications by Kasap and Yama [1988-89] PNGLR 197. Bearing in mind that s.220 of the Organic Law prohibits appeals to the Supreme Court, the scope of a review under s.155(2)(b) should be given a limited scope. The Court should not allow appealable points to come in the guise of a judicial review.

In an endeavour to establish the scope of review under s.155 (2)(b), the Supreme Court in Avia Aihi v The State [1981] PNGLR 81 held that an applicant must demonstrate:

(1) there are clear legal grounds meriting a review
(2) there are cogent and convincing reasons or exceptional circumstances

(3) it is in the interest of justice that the review be granted.

[underlining added]

16. A concise statement of the difference between the appeal process and judicial review was provided in Avei v Maino [2000] PNGLR 157 (Hinchliffe J, Sheehan J, Jalina J) where the Supreme Court explained at pp. 161-162:

It is common ground that there are fundamental differences between appeals and reviews. They are in fact different jurisdictions.

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 its own judgment 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 ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or 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 of 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... Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason.

17. This explanation as to the distinction between appeals and judicial review has been endorsed by the Supreme Court on many occasions: see for example Waranaka v Dusava (2009) SC 980 and Sigianisi v Aimo (2013) SC1237.

(b) Principles specific to Leave to Apply for Judicial Review

18. The principles which apply to applications to the Supreme Court made pursuant to Order 5 r.9 SCR for leave for judicial review under s.155 (2)(b) of the Constitution have been developed over many years, The principles were recently summarised by Hartshorn J in Pundari v Yakos (2023) SC 2345. The applicant must show:

(a) where the application relates to a point of law, that it is an important point, which is not without merit, or where the application relates to facts, there is a gross error clearly apparent, which is not without merit;

(b) there are exceptional circumstances; and

(c) it is in the interests of justice to grant leave.

19. Cannings J in Dr Lino Tom v Kenai (2023) SC2495 endorsed these three principles and observed at para. 9, with reference to Hartshorn J’s decision in Pundari v Yakos:

I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. It is important that there be such requirements, especially in cases where the National Court has refused an objection to competency, as the National Court decision does not prevent the objecting party from continuing to defend the petition. The decision is interlocutory. It does not affect the substantive rights of the objecting party. There needs to be strict criteria for granting leave, to avoid the spectre of interlocutory decisions being unnecessarily reviewed, long before the National Court is able to make a final decision, and to avoid the prospect of an election petition becoming the exact opposite of what it is intended to be, a simple and straightforward court case to be quickly and efficiently resolved in accordance with s. 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

(c) Principles and case law on Objections to Competency in the Supreme Court

20. There are many Supreme Court decisions which have extensively discussed the principles applicable to objections to the competency of not only appeals but also reviews for judicial review for failure to comply with the Supreme Court Act Ch. 37 and the Supreme Court Rules 2012.
21. It is settled law that an objection to competency goes to the jurisdiction of this Court to deal with a matter that comes before it and that an objection can be raised at any time of the proceeding, right up to the time of substantive hearing: Amet v Yama (2010) SC1064.
22. However the case authorities have in the past resulted in two very different views as regards the nature and degree of compliance with procedural requirements which must be observed by a party seeking to have an appeal or judicial review dismissed on grounds of incompetency.
23. The first of these views is that there must always be strict compliance with procedural requirements. Where leave of the Supreme Court to appeal or to seek review is mandatory, any deviation from the grounds on which leave is sought and granted, when pleaded in a substantive notice of appeal or application to review, is said to be fatal. There must be total adherence in the substantive proceeding to the grounds for which leave was granted. The initial leading case for this view was Biri v Nilkama [1982] PNGLR 342 which was followed by a long line of subsequent cases and more recently endorsed by the Supreme Court in Dekena v Kuman (2018) SC1715 and Lovika v Malpo (2019) SC1895.
24. This strict approach was summarised in the dissenting judgment of Kandakasi J (as he then was) in the earlier case of Kuman v Digicel PNG Ltd (2017) SC1638 at para. 12 as follows:

.. A failure to strictly meet the requirements of the Supreme Court Act and the Supreme Court Rules as to the correct form, pleading grounds of an appeal and the relevant and correct procedure amounts to a failure to properly invoke the jurisdiction of the Court. Consequently, the proceedings would not be correctly before the Court by reason of which they would be dismissed for being incompetent.

25. This rigorous view was given express approval in the unanimous decision of the Supreme Court in Dekena v Kuman. This is what Kandakasi J, Geita J and Lindsay J said at para. 20:

If leave is granted, the applicant would be entitled to proceed to file his or her substantive application. This must be strictly in accordance with terms upon which leave was granted and most importantly only on the grounds for which leave was first sought and granted. The decision granting leave for judicial review is not an open license of an applicant to plead grounds of the review as an applicant pleases. An applicant is under an obligation to plead in his or her substantive review application only the grounds for which leave was sought and specifically granted. Any departure from that would render the review incompetent. This in our view is most critical in an election petition. Here is why. Section 220 of the Organic Law on Elections makes a decision of the National Court to an election petition final.. Accordingly, it prohibits appeals. The only way around that is by judicial review under s,155 (2)(b) of the Constitution. That is not as of right but with leave of the Supreme Court as required by Order 5 r. 9 of the Supreme Court Rules.

26. Objections to competency in Dekena v Kuman and in Malpo v Lovika were upheld and substantive applications to review were dismissed by the Supreme Court because in each case the applicants for review had introduced new grounds into their applications to review for which leave had not been granted, even though other grounds had survived the leave applications. The pleading of new grounds in the substantive applications to review where leave had not been granted was held in each case to have divested the Supreme Court of all jurisdiction to entertain any review of the National Court decision the very subject of the review.
27. The opposing and more liberal view, in so far as it relates to objections to competency, is represented by the Supreme Court decision, among others, in Coca Cola Amatil (PNG) Ltd v Kennedy (2012) SC 1221, reflected in Kikala v Electoral Commission (2013) SC1295 and endorsed by the majority decision of Manuhu J and Logan J in Kuman v Digicel (PNG) Ltd. This liberal view stands for the proposition that provided there is even one ground of appeal that survives a leave application, that ground invokes the jurisdiction of the Court and the appeal on that ground is competent to proceed to hearing.
28. This more flexible approach was explained by Justices Lenalia, Kawi and Logan in Coca Cola Amatil in these terms at para. 8:

An objection under O7 r.14 SCR is, materially and as the rule expressly provides, “to the competency of an appeal”, not to the notice of appeal. An appeal will be competent if, having regard to the notice by which the appellant has sought to initiate it, the jurisdiction of the Supreme Court has been invoked. A concession that the notice contained at least one ground by which the court’s jurisdiction was validly invoked is necessarily a concession that the appeal is competent. That remains so even though it may be that other grounds specified in the notice lack merit, including a lack of merit because they seek to raise an issue which the Court does not have jurisdiction to entertain. That absence of merit may well result in the dismissal of those grounds but that dismissal will not occur because the appeal is incompetent but rather because particular grounds lack merit. The importance of this distinction and of recognising that an objection must go to the competency of the appeal, not a ground of appeal per se, cannot be over-emphasised.

29. Their Honours further expounded on this by stating at para. 25:

Considerable care needs to be taken in deciding whether or not to give notice of an objection to competency. The decision calls for an understanding of the true nature and purpose of an objection to competency and the making of a discriminating choice by a practitioner based on that understanding. If, truly, the Court lacks jurisdiction because, for example, the appeal is only on a question of fact and leave to appeal has not been obtained, it would be an imprudent respondent who did not object to the competency of the appeal. If, though, by reference to at least one of the grounds of appeal, it can be seen that the Court’s jurisdiction has validly been invoked, the case is not one for an objection to competency. All that the taking of a misconceived objection to competency by a respondent does is to delay the hearing of the appeal on the merits. In our collective experience too many such misconceived objections presently appear on the Court’s list of business.

30. These two diametrically opposed approaches were considered by a five-member Supreme Court consisting of Justices Mogish, Cannings, Manuhu, Koeget and Tamate in the case of Hagahuno v Tuke (No.1) (2020) SC1966 (Hagahuno No. 1). Here the Court was called upon to consider an objection to competency of an application to review in an election petition proceeding where leave to review had been granted but, among others, a new ground had been pleaded by the applicant in his substantive application. Up until that point, many objections to competency in judicial review proceedings, particularly reviews of decisions taken by the National Court in election petition proceedings, were being upheld and review proceedings dismissed by the Supreme Court because of reliance being placed by respondent objectors on the strict approach taken by the Supreme Court in appeal cases such as Dekena v Kuman and Lovika v Malpo. That approach was used by way of analogy to argue that the same rigorous approach which had applied in those cases to appeals should also apply in judicial review proceedings, particularly where applicants had endeavoured to introduce new grounds for substantive review where leave had not been granted..
31. In Hagahuno No. 1 the Supreme Court reconsidered the appropriateness of the strict approach and in so doing it gave close attention to Order 5 r.10 SCR, which specifically relates to applications for leave for review. This Rule requires that an application for leave must be set out in accordance with form 5A, para. 2 of which provides that the applicant must state the grounds on which the application is being made. It was in the context of this Rule and with reference to form 5A that the Supreme Court said at paras. 22 to 25 in Hagahuno No. 1:
    22. While paragraph 2,”Grounds” would appear at first sight to be the natural place in which to plead proposed grounds of review, it is modified by the requirement to “state briefly the particulars of the decision of the National Court to be reviewed and the nature of the case”. The Rules do not actually require an applicant to state the proposed grounds of review in a way that would require them to be reflected literally, as a copy-and-paste, in the application for review, in the event that leave is granted.
    23. We consider that this ambiguity in the requirements of the Rules, and form 5A in particular, give an applicant leeway to depart, in the application for review, from the literal wording of the proposed grounds of review. We see no problem in this. It is only when an applicant introduces an entirely new ground of review that there is a real problem that needs to be addressed.
    24. Very little is to be gained by excessive nit-picking over the way in which grounds of review have been pleaded in an application for review, after leave has been granted, and comparing and contrasting the grounds of review with the way in which the arguments were set out in the leave application, and spotting differences in wording and new or different grounds in the application for review, and then arguing that new arguments are being raised, leave for which has not been granted. And then arguing that the whole application for review is incompetent.
    25. If we allow respondents to engage the Court in this time-consuming exercise, and if the Court too readily dismisses applications for review on competency grounds, after leave has been granted, we are making a mockery of the review jurisdiction of the Supreme Court under s.155 (2)(b) of the Constitution. We are providing scope for another round of interlocutory proceedings and getting further away from allowing grievances about an election to be resolved quickly after an election.
    40. This Court has followed Coca Cola Amatil in a number of subsequent cases, including:
        • Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group (20120) SC1201 (Cannings J, Sawong, Collier J)
        • Michael Kandiu v Powes Parkop (2015) SC1597 (Davani J dissenting, Kariko J, Toliken J
    • Papua New Guinea Law Society v David Richey Cooper (2016) SC1553 (Manuhu J, Yagi J, Sawong J):
      • The State v Gaian (2019) SC 1879 (Hartshorn J, Polume-Kiele J, Liosi J).

[emphasis added]

32. The views expressed by their Honours in the 2020 Supreme Court decision in Hagahuno No. 1 delivered on 20 July 2020 were repeated, even more forcefully, when three months later the Supreme Court, comprised this time by Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J, handed down its unanimous decision in Hagahuno v Tuke (No. 2) (2020) SC2018 (Hagahuno No. 2). This was the Court’s decision dealing with the applicant’s substantive grounds for the application to review following the Court’s then recent dismissal of the respondents’ objections to competency in Hagahuno No. 1.
33. Kandakasi DCJ delivered the primary judgment in Hagahuno No. 2. His Honour’s judgment is a reversal of the views which he espoused in Dekena v Kuman and Malpo v Lovika. His Honour observed at the commencement of his lengthy reasons for judgment that the strict approach which he and other Judges had previously taken in cases upholding objections to competency in election petition proceedings had led to many good petitions being dismissed on technical grounds with the result that this had brought into question the integrity of the whole election process. This is what his Honour said at paras. 9 and 11 of his reasons for judgment in connection with the reversal of his judicial stance to the strict approach he had adopted in earlier cases:

9. ... This has meant that the petitions have not been allowed to reach a hearing on their substantive merits and have therefore been denied the opportunity of a hearing on their substantive merits. This strict approach has taken the nation to a point where the quality and integrity of both the electoral system and the election process with election results being seriously compromised.

11. Adopting and applying the strict approach has resulted in serious allegations and in some cases actual instances of illegal production, hijacking and marking of ballot papers, to group voting, to deliberate misallocation of ballot papers at counting centres, to lack of proper scrutiny both at the polling and counting of votes, with many instances of bribery in some cases with the use of public funds and offices and other facilities, have now become commonplace and are getting repeatedly featured in elections and election petitions. ...

34. His Honour further observed at paras. 20 to 22 that:

20. ... objections to competency have become far too highly technical and, in some cases, purely nit-picking. In the process, the Courts at the instance of lawyers, have effectively built into s.208 additional requirements. Thus, decisions have been arrived at in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s.217, which obligates the Court to be “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not”.

21. Further, in Kamma v Itanu^[1] I expressed the view that we have come to this result because of two important failures of lawyers and their clients as well as the Courts. I identified the two failures in these terms:

“First, we have failed to give any due and proper consideration to the intention of Parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of s.217 of the Organic Law. Secondly, we have failed to have a closer look at the particular wording in s.208 and s.210 from which this trend has originated.”

22. Elaborating on the second of the two failures, I noted that s.208 (a) of the Organic Law merely requires, among others, “the facts relied on to invalidate the election return”. I then observed that this provision:

“ ... does not say for instance that there must be no inconsistency in the facts relied on or that the facts must set out in full or with much detail. We have reached the result we have thus far not because legislation says it, but because lawyers, who are not supposed to be involved in election petitions as of right, becoming creative without having regard to what the legislation is actually saying and the intention behind that. ... What the Courts and the parties should looking at is whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the facts alleged and not necessarily every single detail of or about the facts stated. Such details should be left for the trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or irregularity or error or omissions which affected the result of an election.”

...

24. To that earlier discussion I now add a couple of observations. Firstly, I accept that the requirements of s.208 as well as s.209 of the Organic Law are mandatory and must be strictly met because of s.210. However, I do not accept that this necessarily means for instance, for the purpose of s.208 (a) that the facts relied upon must be strictly pleaded with particulars in the way lawyers who are properly trained and experienced in drafting and settling legal document, including documents pleading a cause of action or a defence in court proceedings would, although that would be most helpful and should be encouraged. Instead, all that a petitioner is required to do is to state the facts disclosing one or more of the known grounds for voiding an election outcome and do what he or she is required to do by the rest of the provisions from s.208 (b) to (c) and meet the deposit requirement under s.209

[underlining added]

35. The observations made by Kandakasi DCJ in Hagahuno No. 2 were echoed by Kirriwom J in his ruling and endorsed by Mogish J, Manuhu J and Makail J.
36. The Supreme Court emphasised in Hagahuno No. 2, repeating what was earlier said in Kikala v Electoral Commission (2013) 2 PNGLR 143, that s.217 of the Organic Law applies from the beginning to the end of the election petition process, including during the hearing of an objection to competency in the National Court.^[2]

RESPONDENTS’ OBJECTIONS TO COMPETENCY OF APPLICATION TO REVIEW

37. Leave to review having been granted, the First Respondent objects to the competency of the Applicant’s substantive Application to Review on two grounds:

(a) the Application to Review pleads at paragraph 5.9.3 a new ground of review for which leave was not granted; and

(b) the Application to Review generally contains grounds of review at paragraphs 5.1.1 to 5.9.3 that are inconsistent with the grounds for which leave was granted,

which renders the entire Application to Review incompetent and should be dismissed based on the cases of Dekena v Kuman (2018) SC1715 and Lovika v Malpo (2019) SC1895.

38. A third ground of objection, pleaded in the First Respondent’s Notice of Objection filed on 9 June 2023 was abandoned at the hearing.
39. The Second Respondent objects to the competency of the Review and seeks its dismissal because:

(a) the Application to Review contains four new grounds for which leave was not granted, namely Grounds 5.1.2, 5.3.3, 5.5.3 and 5.9.3; and

(b) the Application to Review contains grounds that have been modified and are inconsistent with grounds for which leave was sought and granted, the offending grounds being Grounds 5.1.3, 5.4.1, 5.5.1, 5.5.2, 5.7.5, 5.7.6, 5.8.4 and 5.9.1.

COMPARISON OF GROUNDS FOR WHICH LEAVE WAS GRANTED AND GROUNDS PLEADED IN SUBSTANTIVE APPLICATION FOR REVIEW

40. The Application for Leave to review (AFL) was filed on 23 February 2023 and raised 26 grounds of review, namely Grounds 2.2 (i) to (xxvi).
41. Leave for review was granted to the Applicant by a single Judge of the Supreme Court on 28 March 2023.
42. The substantive Application to Review (ATR) was filed on 31 May 2023. It also contains 26 grounds of review, grounds 5.1.1 to 5.9.3.
43. The First Respondent contends that although superficially the AFL and ATR each plead 26 grounds, his comparison of those two applications shows that the grounds are not consistent with each other and that new grounds have been inserted by the Applicant in the ATR which were not pleaded in the AFL.
44. The First Respondent submitted at the objection hearing on 28 September 2023 that there were two further new grounds, apart from Ground 5.9.3, which have been pleaded in the ATR in respect of which leave had not been sought or granted. It was said by the First Respondent that the three new grounds pleaded in the ATR without leave having been granted are Grounds 5.1.2, 5.3.3 and 5.9.3.
45. The First Respondent also submitted at the hearing that all other grounds pleaded in ATR are inconsistent with grounds pleaded in the AFL, the offending inconsistent grounds in the ATR being said to be Grounds 5.1.1, 5.1.3, 5.2.1, 5.2.2, 5.3.1, 5.3.2, 5.4.1, 5.5.1, 5.5.2, 5.5.3, 5.6.1, 5.7.1, 5.7.2, 5.7.3, 5.7.4, 5.7.5, 5.7.6, 5.8.2, 5.8.3, 5.8.4, 5.8.1, 5.9.1 and 5.9.2.
46. At the objection hearing the Second Respondent maintained its position at as set out in its objection to competency filed on 10 July 2023, that is to say that there are four new grounds in the ATR in respect of which leave had not been granted and six grounds which are modifications of their corresponding grounds in the AFL in respect of which leave had been granted.
47. The First Respondent and the Second Respondent each submitted at the objections hearing that the insertion by the Applicant of new grounds in the ATR and the pleading of grounds in the ATR which modified or altered various of the grounds in the AFL was sufficiently egregious as to warrant dismissal of the entire review proceedings, the principal authority for this stance being the cases of Dekena v Kuman and Lovika v Malpo.
48. The Court has carried out its own comparison of the differences in pleading which have occurred between the Applicant’s AFL and her ATR. Those differences and our observations are identified in the table set out below.

49. As a result of our above analysis, we agree with the Second Respondent’s assessment that Grounds 5.1.2, 5.3.3, 5.5.3 and 5.9.3 in the ATR are new grounds for which leave was not granted. However we disagree with both the First Respondent and the Second Respondent that other grounds in the ATR which have modified or altered counterpart grounds in the AFL for which leave was granted have done so to the extent that they have materially changed the basis on which leave was granted. Most of those modifications or alterations are cosmetic.

CONSIDERATION

50. We observe that the submissions made in support of the First Respondent’s objection to competency seek to persuade this Court that it should adopt the strict approach reflected in cases such as Dekena v Kuman and Lovika v Malpo, in which event it is said this review proceeding should be dismissed as penalty for the Applicant having inserted new grounds and other grounds in her Application to Review which are allegedly inconsistent with the grounds for which leave was granted. We further observe that the First Respondent’s submissions in this regard make no reference at all to the Supreme Court’s pronouncements in 2020 in Hagahuno No.1 and Hagahuno No.2.
51. The thrust of the First Respondent’s argument is simple. It is said at para. 16 of counsel’s submissions that although this Court is not bound by its earlier 2018 and 2019 decisions in Dekena v Kuman and Lovika v Malpo, those decisions are claimed by the First Respondent to still be good law and can be relied on by this Court.
52. We disagree with this submission for the very reasons which were so comprehensively addressed and articulated by the Supreme Court in Hagahuno No.1 and Hagahuno No.2. We need not repeat our earlier recitation of those reasons here. They speak for themselves.
53. The Second Respondent has approached its submissions on its objection to this review from a different perspective. Counsel for the Second Respondent, when agreeing with the proposition that this Court is not bound by its prior decisions, observes that Hagahuno No. 1 adopted and relied on principles developed in Coca Cola Amatil v Kennedy and Kuman v Digicel PNG Ltd, both of which were ordinary appeals that were pursued by appellants as of right under the Supreme Court Act.
54. The Second Respondent by its counsel argues that where leave is required in an ordinary appeal, for instance on grounds that raise questions of fact alone, if leave is not sought for those grounds then those grounds may be struck out as being incompetent but the appeal can nevertheless proceed on any remaining grounds that are competent because they have survived the objection and are still competent. In that situation the jurisdiction of the Supreme Court has been properly invoked by reason of those remaining competent grounds. This of course is recognition of the liberal approach taken by the Supreme Court in Coca Cola Amatil v Kennedy and its line of cases.
55. However, the Second Respondent then seeks to argue that election petition review proceedings in the Supreme Court are in a special category of their own, different from ordinary appeals, because the Court is involved at the outset of the review application in the screening of all grounds through mandatory leave under Order 5 r.9 SCR. It is submitted that this screening process means that grounds for which leave is granted have the special sanction of the Court.
56. The Second Respondent points to the fact that Order 5 r.19(f) and Form 5B SCR require an applicant to personally sign an application to review in an election petition matter whereas in an ordinary appeal the notice of appeal (Form 8) and the application for leave (Form 7) can be signed either by the applicant or by the lawyer for the applicant: Order 7 Rule 4(e) and Rule 9(e) SCR.
57. It is then argued that the requirement in Order 5 r.19(f) SCR for an applicant to personally sign the application to review in Form 5B denotes the seriousness of the matter because the personal signing validates the genuineness of the application. Hence, it is submitted, for any applicant in an election petition matter to then introduce new or modified versions of grounds for substantive review outside of the purview of the Court’s order for granting of leave necessarily amounts to a serious abuse of process. Therefore there is a need for the Court to guard against the undermining of its review processes by intervening and dismissing applications to review that abuse the Court’s processes, as was done by the Supreme Court in Dekena v Kuman.
58. The Second Respondent submits that when leave is granted for grounds to be reviewed, then the grounds as screened by the leave Judge and permitted to go to substantive review should be placed before the full Court in their entirety, verbatim, copy-pasted from the application for leave into the application to review, for consideration by the full Court without including new grounds or “dressing up” some grounds. It is said that to do otherwise would seriously offend the judicially-sanctioned screening process.
59. A separate reason which is advanced by the Second Respondent as to why the Supreme Court should revert to a strict compliance approach to the leave process is because it is submitted that the Supreme Court should not be placed in a position at substantive hearing where it has to sit and waste its time screening each ground to ascertain whether leave was granted, or ought to have been granted, for each ground to go to substantive review.
60. We reject both of these propositions put forward by the Second Respondent for why this Court should not follow the liberal approach taken in Hagahuno No.1.
61. Firstly, we find nothing remarkable about the requirement in Order 5 r.19(f) SCR for an application for review (technically an “application to review”) in Form 5B to be personally signed by an applicant. Order 5 r.10(e) SCR also requires an application for leave in Form 5A to apply for review to be personally signed by an applicant. There is no doubt that election petition proceedings are in themselves a very special category of process in both the National Court and the Supreme Court. They are processes that have their own special rules as to the requirements for a petition for filing in the National Court (s.208 of the Organic Law) and as to the requirements for filing of review proceedings in the Supreme Court (Order 5 Division 2 rr. 7 to 17 SCR). But to our minds this does not mean that the special nature of election petition proceedings extends to confer an additional special status on the leave application process which could somehow justify departure from the liberal approach propounded in Hagahuno No.1 and Hagahuno No.2. The reason advanced by the Second Respondent based on the special jurisdiction of the Supreme Court to review election petition matters is without merit.
62. Secondly, as to the additional reason submitted by the Second Respondent, this too in our opinion is a reason without merit. The second limb of the Second Respondent’s objection is that if a new ground for which leave is not granted is pleaded in an application to review, or if there are grounds in that application which have been modified from the grounds for which leave was granted, then it wastes the Court’s time if the Court is subsequently called upon either at an objection hearing or at substantive hearing to again screen each ground to determine whether leave should have been granted or should be rejected for being a fresh ground for which leave was not granted or should be rejected for being a ground that has been modified beyond that for which leave was granted.
63. We respond by noting firstly that the screening process of leave for all applications for review prescribed by Order 5 r.9 SCR is a first-level safeguard to prevent wastage of the Supreme Court’s time for unmeritorious reviews. The leave process is in itself a serious matter. We have already referred to the principles which relate to grant of leave as summarised by Hartshorn J in Pundari v Yakos (supra) and which require an applicant for leave to show: (1) there is an important point of law having merit or there has been gross error of facts by the primary judge; and (2) there are exceptional circumstances; and (3) it is in the interests of justice to grant leave. If one or more of those factors cannot be demonstrated to the leave Judge’s satisfaction, leave to review will be refused at the outset of the review proceedings.
64. In the present case, the application for leave was heard by a single Judge of the Supreme Court. The leave Judge would not have granted leave lightly. His Honour would have been satisfied, after carefully perusing the applicant’s proposed grounds for review and hearing inter partes argument and submissions from all parties, that there are important points of law having merit that warrant determination by the full Supreme Court, that exceptional circumstances were demonstrated by the Applicant at the leave hearing and that the justice of the case requires substantive review by the Supreme Court of the primary judge’s reasons for decision.
65. The second-level safeguard to prevent unmeritorious applications for review wasting the Court’s time is the objection process provided for by Order 5 rr. 15 to 19 SCR. This is the very process which the First and Second Respondents have availed themselves of and it is their objections which are now before this Court for determination.
66. Hagahuno No.1 and Hagahuno No.2 have made it abundantly clear that where an applicant for review has included new grounds in an application to review after leave has been granted by a single Judge, the full Court can adopt that line of authority which it considers is the most appropriate to the circumstances of the case and which at the same time advances the interests of the justice of the case.
67. In view of the two Hagahuno cases and the liberal approach which they stand for, the options available to the Supreme Court on the hearing of an objection to competency in election review proceedings include:

(1) allowing a new ground or a modified ground for which leave has not been granted to nevertheless go forward to substantive review if the Court is satisfied that the new ground has merit or if the ground as modified continues to have merit;

(2) striking out the new ground or modified ground from the application to review if either fail to have merit but allowing the remaining grounds for which leave has been granted to go forward to substantive review;

(3) dismissing the application to review in its entirety for failure to have pleaded grounds that have merit despite leave having already been granted in respect of some or all of those grounds.

68. We remind ourselves in this context of what was unanimously said by the full Court in Hagahuno No.1 at paras. 41 to 43:

41. We are of the view that Coca Cola Amatil remains good law and, to the extent that there are conflicting lines of authority on the question of whether an appeal that has just one proper ground of appeal is competent, we would endorse Coca Cola Amatil as being correct and more authoritative that the alternative line of authority reflected in the dissenting opinion of Kandakasi DCJ in Kuman v Digicel (PNG) Ltd which has been channelled into the decisions in Dekena v Kuman and Lovika v Malpo.

42. As for the present case, we conclude that the inclusion of the new ground 5.7 (re Ino-Onka villagers) does not render the application for review incompetent. The jurisdiction of the Court has been properly engaged by the grounds of review 5.1,5.2, 5.3, 5.4 and the two grounds 5.5.

43 The Supreme Court, not being bound by its own decisions, is entitled, when faced with conflicting lines of authority, to adopt that which is most appropriate to the circumstances of the case and advances the interests of justice. In this case, leave for review having been granted, and the Court’s jurisdiction having otherwise been engaged, the inclusion of the new ground does not make the application incompetent or result in the proceedings being dismissed. That would be an unfair result.

69. This brings us to the next reason why we reject the Second Respondent’s submission that the strict approach should be applied to the Applicant’s application to review and for the review to be dismissed. We observe that the Second Respondent has urged this Court to disregard Hagahuno No.1 because, being a decision of the Supreme Court, it is binding on the National Court but not on this Court in its review jurisdiction. Therefore, it is submitted by the Second Respondent, it is within our discretion to revert in this instance to the strict approach favoured in Dekena v Kuman and Malpo v Lovika and to dismiss the whole of the Applicant’s application to review for the reasons stated in the Second Respondent’s formal objection to competency filed on 10 July 2023.
70. However, the Second Respondent has not advanced any exceptional reason why, in the circumstances of the present case, we should depart from the guidance and precedent value of Hagahuno No.1 and Hagahuno No.2. We have found that the two reasons advanced by the Second Respondent for this Court exercising its discretion to ignore those two leading cases to be without substance.
71. The law relating to the manner in which the Supreme Court deals with conflicting prior decisions of law is clear. The principles of law which have been developed by the Supreme Court in this regard emanate from Schedule 2.9 (1) of the Constitution which provides that all decisions of law by the Supreme Court are binding on all other courts, but not on itself. This is the constitutional recognition of the English common law doctrine of stare decisis, meaning “to stand by things decided”, which holds that it is necessary to abide by former precedents when the same points of law arise again in litigation.
72. When conflicting decisions fall for consideration by the Supreme Court as to which of those decisions the Court should apply or should best have bearing on the particular circumstances of an appeal or review, the Court is not left in a vacuum. Guidance is given by numerous earlier decisions on point. Hartshorn J in the Supreme Court decision in Paraka v Peng (2016) SC1780 summarised the relevant principles, after considering earlier case authorities, and said this at para. 26:

Though the Supreme Court is not bound by its previous decisions, it should only overrule them with great caution, in exceptional circumstances, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding.

73. Given that prior decisions of the Supreme Court are not binding on itself, in Hagahuno No. 2 Kandakasi DCJ expressly considered how the Supreme Court was to resolve its own two conflicting lines of authority, one in favour of the strict approach which had commenced with Biri v Ninkama in 1982 and had continued through to Dekena v Kuman in 2018 and beyond, and the very different liberal approach so clearly articulated in the 2012 case of Coca Cola Amatil (PNG) Ltd v Kennedy, reinforced in 2013 by Kikala v Electoral Commission and followed in many subsequent similar cases at both National Court and Supreme Court levels.
74. In the course of his Honour’s deliberations on this issue in Hagahuno No.2, Kandakasi DCJ specifically addressed the law relating to the principles which deal with conflicts in past precedent. His Honour summarised the application of those principles at para. 71 of the decision in Hagahuno No.2 as follows:

(a) [T]his five-member Supreme Court is not bound by its own earlier decisions starting from the three-member Supreme Court decision in Biri v Ninkama;

(b) in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court has not readily and easily departed from its earlier decisions;

(c) departure from Biri v Ninkama and the line of decisions following it have been called for and finally after more than 31 years later, this Court in Kikala v Electoral Commission departed from the decision in Biri v Ninkama and the various decisions that follow it:

(d) additionally, exceptional circumstances now exist which warrant a departure from the decision in Biri v Ninkama and its line of authorities because:

(i) that decision and those following it have misinterpreted, misconceived, mistook and or misunderstood the law as pointed out above which requires correction in the terms discussed;

(ii) the law pronounced or stated in the earlier decisions is no longer appropriate and applicable to the current prevailing circumstances and needs of the country for the reasons also given above; and

(iii) although the Chief Justice is not a part of this Court comprising of five Judges, His Honour then as Deputy Chief Justice was the president of the Court in Kikala v Electoral Commission which consciously commenced the departure from Biri v Ninama and its line of cases.

75. The decisions in Hagahuno No.1 and Hagahuno No.2 were each delivered by five-member benches of the Supreme Court. Moreover, the five-member Supreme Court in Hagahuno No. 2 was specifically empanelled by the Chief Justice at the request of the parties to settle the conflicting approaches taken by both the National Court and the Supreme Court which had up to that point emerged over the years, strict as opposed to liberal, in relation to election petitions, including the differing approaches the Courts have taken to objections to competency at both National and Supreme Court levels. Hagahuno No.1 and Hagahuno No.2 expressly deal with detailed consideration of objections to competency in review proceedings, as distinct from appeal proceedings, where the applicant has pleaded one or more grounds of review when leave for those grounds has not granted by the leave Judge. To our minds, Hagahuno No.1 and Hagahuno No.2 have convincingly resolved the conflict in prior decisions in favour of the liberal approach.
76. For the Second Respondent to have had any chance of success in persuading this Court not to follow the pronouncements made in Hagahuno No.1 and Hagahuno No.2, full argument would have needed to have been made before us as to why the decisions in those two leading cases should now be ruled by this Court to be wrong in law. No exceptional circumstances have been made out by the Second Respondent which could even remotely persuade us why Hagahuno No.1 and Hagahuno No.2 are wrong in law or why the precepts which those decisions of the Supreme Court stand for should not be applied to the present case. The circumstances presented in the two Hagahuno cases, in so far as they relate to new grounds having been pleaded in a substantive application to review in election petition proceedings where leave has not been granted, are on par and almost identical to those now before us in this proceeding SC Rev (EP) No. 6 of 2023.
77. We note from the Applicant’s application to review that the whole of the substantive National Court decision is in contention, including the constitutionality of the powers exercised by Electoral Commissioner Mr Simon Sinai under s. 175 (1A)(b) of the Organic Law, the Electoral Commissioner’s alleged breach of s.208 of the Organic Law by declaring and returning the First Respondent to office as the member for the Markham Open Seat in the National Parliament and the alleged error by the trial judge in his interpretation and exercise of his powers in connection with s.18 (2) of the Constitution. These are all matters that we find are of substance and, to the extent that they have been pleaded as grounds in the application to review, require determination at substantive review. These are genuine issues which the leave Judge has already allowed to go forward for determination by the full Court.

CONCLUSION

78. For the reasons we have given, we consider that the liberal approach to objections to competency propounded in Hagahuno No. 1 and Hagahuno No. 2 must in this instance prevail.
79. We have found that four of the grounds pleaded in the Applicant’s application to review (ATR) are new, despite any implied inter-relationship they may have with other grounds for review in respect of which leave was granted. The Applicant by her lawyers overstepped the mark in this regard.
80. We are mindful that the overarching obligation for judicial determination of election petition proceedings in contention is to apply s.217 of the Organic Law (real justice to be observed) which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

81. We are of the view that the unanimous decision of the five-member Supreme Court in Hagahuno No.1, fortified by the decision of the five-member Supreme Court in Hagahuno No.2, has made it transparently clear that the paramountcy of s. 217 of the Organic Law has equal application to reviews by the Supreme Court of election petition proceedings in the National Court, including the hearing by this Court of objections to competency of applications to review after leave has been granted, as is the case here, through to final determination on substantive review pursuant to s.155 (2)(b) of the Constitution.
82. As was recently said by Yagi J in Simon v Kapris (2022) N10103 at para. 28 and Kandakasi DCJ in Onglo v Dilu (2023) N1095 at para. 42, the decision in Hagahuno No. 2 has overturned and changed the landscape of the law from strict interpretation and application to the need to observe real justice of the case and to be guided by substantial merits and good conscience without regard to legal forms or technicalities.
83. Our view of the real justice of the present case is that it requires the excision from the Applicant’s application to review of new Grounds 5.1.2, 5.3.3, 5.5.3 and 5.9.3 for which leave was not granted. Those grounds are incompetent and will be struck out. The objections of the First and Second Respondents are to this extent allowed. However, subject to the striking-out of those new grounds, we find that the remainder of the grounds pleaded by the Applicant in her formal application to review are competent. We find that any modification or alleged inconsistencies of those remaining grounds in the application to review when compared with their counterpart grounds in the application for leave to review are inconsequential and do not affect substance. As those remaining grounds have properly invoked the Court’s jurisdiction, they are to proceed to substantive hearing for determination on their merits. To that end, this review will be adjourned to the Registry to be listed at the next available directions hearing.
84. As to costs, we consider that each party should pay their own costs of and incidental to the Respondents’ objections to competency. This is because the objections have been upheld in part as to the new grounds that were pleaded in the Applicant’s application to review but the remainder of the grounds pleaded by the Applicant, being competent, are to go forward to substantive review.

ORDER

85. The terms of the Court’s order are as follows:

(1) The Respondents’ Objections to Competency are upheld in part.

(2) Grounds 5.1.2, 5.3.3, 5.5.3 and 5.9.3 in the Application to Review are struck out for being incompetent.

(3) All remaining grounds in the Application to Review shall proceed to substantive hearing.

(4) This review is adjourned to the Registry to be listed at the next available directions hearing.

(5) Each party shall pay their own costs of and incidental to the Respondents’ Objections to Competency.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
B.S. Lai Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

^[1] Kamma v Itanu (2007) N3246.

^[2] See paras. 33 to 36 of judgment of Kandakasi DCJ and paras. 136 to 138 of judgment of Kirriwom J in Hagahuno v Tuke (No. 2) (2020) SC2018.