The petitioner agreed to directions, missed the date for his affidavits, and lost his petition summarily. His argument to the Supreme Court was that having nowhere else to go was itself exceptional. The Court disagreed.
Paul Agiru v Manasseh Q Makiba and Electoral Commission [2023] PGSC 18; SC2366
Supreme Court, Waigani — Hartshorn J, 27 February 2023. SCREV (EP) 1 of 2023.
What happened
Mr Makiba was declared member for Magarima Open in 2022. Mr Agiru, the runner-up, petitioned. On 21 October 2022 the National Court made directions by consent requiring him to file and serve his affidavits by 8 November 2022. He did not. On the respondent’s application the primary judge summarily dismissed the petition under rule 18(a) of the Election Petition (Miscellaneous Amendments) Rules 2022 for non-compliance. Mr Agiru applied for leave to review under section 155(2)(b) of the Constitution.
What was argued
The applicant said the judge erred in finding no reasonable explanation for the default, wrongly shifted the burden to him, and gave insufficient weight to the fair and liberal approach in Hagahuno v Tuke. On exceptional circumstances, he argued that because section 220 of the Organic Law leaves him no recourse but review, that by itself was exceptional. Both respondents also objected to the form of the application.
What the Court decided
The test. Adopting paragraphs 3 to 13 of Pundari v Yakos (2023) SC2345: leave requires an important point of law not without merit, or a gross error of fact clearly apparent on the evidence, and in any event exceptional circumstances showing a manifestation of substantial injustice and that review is warranted in the interests of justice. To grant leave without exceptional circumstances would render the words of section 220 otiose.
Burden. Where non-compliance with a consent order is admitted, the applicant cannot complain that he was expected to explain it.
Hagahuno. Non-compliance with a court order was not a consideration in Hagahuno v Tuke, which does not assist an applicant in default.
Section 220. It is not qualified and is not discriminatory; it applies to all. Its operation cannot constitute an exceptional circumstance. No other exceptional circumstance was shown, and it is not in the interests of justice, which is justice according to law, to review a dismissal that followed an unexplained breach of an order the applicant consented to. Leave refused with costs.
Did it make new law?
The decision applied the test formulated in Pundari v Yakos rather than creating it, but it was the first to apply that test to a summary dismissal for procedural default and the first to reject the section 220 argument in terms. Within months other judges of the Court, including Cannings J in several 2023 leave decisions, were treating Pundari and Agiru together as the summary of the criteria.
Why it matters
Consent directions bind. A petitioner who cannot meet a date should apply to vary it before it passes; the 2022 Rules allow summary dismissal for default. The Court will look for evidence of the reason for the default, and an unexplained failure to meet a date the petitioner agreed to is treated as a serious matter in a jurisdiction that requires petitions to be dealt with quickly.
Plead exceptional circumstances specifically. Something about the case itself must be shown, such as a clear error on a decisive point, not the general position that petitions cannot be appealed.
The interests of justice mean justice according to law, which cuts against an applicant in unexplained default.
What it does not decide
Agiru does not say a summary dismissal can never be reviewed. In Kowa v Namah the same year, Cannings J granted leave where the default was a single missed status conference, the inconvenience could be met in costs and the trial was months away. Nor does the decision define exceptional circumstances exhaustively; it decides only that the bar on appeals is not one.
Recent cases applying it
- Kowa v Namah [2023] PGSC 35; SC2382 — Cannings J described Pundari and Agiru as the summary of the criteria and found Agiru “particularly relevant” as another rule 18(a) dismissal, but granted leave on its different facts.
- Simon v Kapris [2023] PGSC 50; SC2395 — leave refused: no important point, no injustice, circumstances not exceptional.
- Potape v Undialu [2023] PGSC 86; SC2440 — the same criteria applied to a petition filed out of time.
- Wartovo v Narawec [2023] PGSC 29; SC2386 and Wararu v Maru [2023] PGSC 75; SC2427 — leave refused applying Pundari, Agiru and Hagahuno.
Sources
- Agiru v Makiba [2023] PGSC 18; SC2366 (Hartshorn J, 27 February 2023)
- Organic Law on National and Local-level Government Elections — s 220; Constitution — s 155(2)(b); Supreme Court Rules 2012 — Order 5 r 9
- Pundari v Yakos [2023] PGSC 3; SC2345; Hagahuno v Tuke [2020] PGSC 105; SC2018
- Kowa v Namah [2023] PGSC 35; SC2382; Simon v Kapris [2023] PGSC 50; SC2395; Potape v Undialu [2023] PGSC 86; SC2440; Wartovo v Narawec [2023] PGSC 29; SC2386; Wararu v Maru [2023] PGSC 75; SC2427
The Election Petition (Miscellaneous Amendments) Rules 2022 are not on PacLII and are cited as they appear in the judgment.
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