SC1810

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 5 OF 2019

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

BETWEEN:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Applicant

AND:
BIRE KIMISOPA
First Respondent

AND:
HENRY TUTUWO AME
Second Respondent

Waigani: Hartshorn J
2019: 19th March,
: 7th May
                                 
SUPREME COURT - Application to dismiss application for leave to review and application for leave to review  

Cases Cited

Tobias Kulang v. William Gogl Onglo (2018) SC1714
Gordon Henry Wesley v. Isi Henry Leonard (2018) SC1706
Francis Essacu Baindu v. Joseph Jerry Yopiyopi (2019) SC1763

Counsel:

Mr. L. Okil, for the Applicant
Mr. J. Kolo, for the First Respondent
Mr. P. Othas, for the Second Respondent

7th May, 2019

1. HARTSHORN J: This is a decision on a contested application for leave to review and an application to dismiss the application for leave to review.  The decision the subject of the applications is of the National Court which amongst others, avoided the election for the seat of Goroka Open, and ordered a by-election.

Background

2. The National Court on 7th February 2019:

a)	Rejected the result of the court ordered recount of ballot papers for the Goroka Open electorate seat; and

b)	Declared the election of the applicant, Mr. Henry Tutuwo Ame, void and ordered a by-election for the electorate.

Application to dismiss

3.      I consider the dismissal application first. The first respondent, Mr. Bire Kimisopa, applies pursuant to Order 5 Rule 37(a) Supreme Court Rules for the application for leave to review to be dismissed as:

a)	The affidavit of Patilias Gamato filed on behalf of the applicant, the Electoral Commission, in support of the application for leave, did not annex a copy of the formal order of the National Court contrary to Order 5 Rule 11 Supreme Court Rules;

b)	The applicant has demonstrated a lack of due diligence in the preparation of this application, has failed to treat this application as a special matter and did not pay detailed attention to the drafting of the documents in this application in terms of compliance with the Supreme Court Rules.

4.      The applicant and second respondent oppose the application to dismiss as:

a)	Although the order of the National Court is not annexed, the judgment of the National Court is annexed and so there is partial compliance with Order 5 Rule 11 Supreme Court Rules;

b)	Such a dismissal would be inconsistent with s. 155(2)(b) Constitution and the purpose of Order 5 Rule 11 Supreme Court Rules;

c)	No prejudice has been caused to either party by the non-compliance with Order 5 Rule 11 Supreme Court Rules.

Consideration

5.      Order 5 Rule 37 (a) Supreme Court Rules, upon which the first respondent relies is as follows:

“Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-

(a)	order that the application for leave or application for review be dismissed where the defaulting party is the applicant; ….”

6. Order 5 Rule 11 is as follows:

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

7.     The applicant concedes that the order of the National Court is not annexed to the affidavit of the applicant that supports the application for leave to review. However, the applicant submits that the judgment from the National Court is annexed and that the judgment contains the order of the National Court. Consequently, submits the applicant, the respondents are not prejudiced, there has been substantial compliance with Order 5 Rule 11 and so the application for leave for review is competent. 

8. Notwithstanding that in this case only the order and not the judgment and order are not annexed to the supporting affidavit, in Tobias Kulang v. William Gogl Onglo (2018) SC1714, Gordon Henry Wesley v. Isi Henry Leonard (2018) SC1706 and Francis Essacu Baindu v. Joseph Jerry Yopiyopi (2019) SC1763, only the order was not annexed, in fact situations similar to this case. In these cases the applications for leave were dismissed for failure to comply with Order 5 Rule 11 Supreme Court Rules.

9. As to the submission that there has been substantial compliance with Order 5 Rule 11, as only the order was not annexed and the judgment contains the order, and that a dismissal would be inconsistent with s.155(2)(b) Constitution and the purpose of Order 5 Rule 11 Supreme Court Rules, as I said in Tobias Kulang v. William Gogl Onglo (supra) at [19]:

“As to this submission, as a judgment will contain orders made by the judge in the course of making his judgment, this fact was not considered sufficient when the Supreme Court Rules were made otherwise, “order” would not have been included in Order 5 Rule 11. Further, it is necessary to have a copy of the order of the National Court so that, amongst others, the date when the judgment took effect may be ascertained whether on the date of direction by the Court or the date of entry. I am not satisfied that Order 5 Rule 11 Supreme Court Rules has been complied with. 

20. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:

“50.	Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51.	The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917).  Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).” ”

10. Further, no application has been made by the applicant pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirement of Order 5 Rule 11 to annex a copy of the order to the supporting affidavit of the applicant. I concur, respectfully, with the following remarks of Dingake J in Wesley v. Leonard (supra) at [23]:

“23. Order 5 Rule 11 of the Supreme Court Rules is couched in mandatory terms and ought to be complied with strictly unless excused by the Court on good cause shown.”

11. I am satisfied from a perusal of the evidence and a consideration of the submissions made that the first respondent is entitled to the relief that he seeks. Given this it is not necessary to consider the other submissions of counsel.

Orders

12. The court orders that:

a)	The application for leave for review is dismissed;
b)	The costs of the first respondent of and incidental to the application for leave to review shall be paid by the applicant.
_____________________________________________________________
Kimbu & Associates Lawyers: Lawyers for the Applicant                      
Kolo & Associates Lawyers: Lawyers for the First Respondent           
Paul Othas Lawyers: Lawyers for the Second Respondent