SC2508

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 38 OF 2023

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:
JOHNSON TUKE IBO
Applicant

AND:
WILLIAM HAGAHUNO
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2023:11th & 17th October

SUPREME COURT – practice and procedure - Objection to competency of application for leave to review

Cases Cited: 
Baindu v. Yopiyopi (2019) SC1763

Counsel:

Mr. R. Raka, for the Applicant
Mr. L. Tangua, for the First Respondent
Mr. D. Kints, for the Second Respondent

17th October 2023

1. HARTSHORN J: This is a decision on a contested objection to competency.

Background

2. The applicant, Johnson Tuke Ibo, seeks leave to review an interlocutory decision of the National Court. That decision concerned an amended notice of objection to competency of the second respondent, Electoral Commission, the hearing of the trial of the subject election petition and objections to competency.

This application

3. The second respondent objects to the competency of the application for leave to review on the ground that the affidavit of the applicant fails to annex the order of the National Court made on 5th June 2023, in breach of Order 5 Rule 11 Supreme Court Rules. The first respondent, William Hagahuno, supports the objection.

4. The applicant submits that he did everything that he could to have the subject order sealed before the application for leave to review was filed. It was the delay of the National Court registry which caused the sealed order not to be ready in time, he submits. Further, the order is now in evidence in another affidavit filed by the applicant.

Law

5. 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.”

6. The second respondent relies upon the judgment in Baindu v. Yopiyopi (2019) SC1763 in which at [9] and [10] I said:

“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 judgement contains the order, 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.””

Consideration

7. In this instance it is conceded by the applicant that the order of the court the subject of the application for leave to review is not annexed to the affidavit of the applicant which supports the application for leave. Though the said order is annexed to an affidavit of the applicant filed later, notwithstanding the requirements of Order 5 Rules 11 and 14 Supreme Court Rules, no extension of time or dispensation was sought or obtained by the applicant for him to be able to file at a later date, the further affidavit annexing the said order.

8. Consequently, from a perusal of the submissions, the evidence and the case law relied upon, I am satisfied that the second respondent has satisfactorily made out that it is entitled to the relief which it seeks. Given this, it is not necessary to consider the other submissions of counsel.

Orders

a)	The objection to competency of the second respondent concerning a 	breach of Order 5 Rule 11 Supreme Court Rules by the applicant is 	upheld.

b)	The application for leave to review is dismissed.

c)	The costs of the second and first respondents of and incidental to the 	said application for leave to review shall be paid by the applicant.

d)	The applicant’s security deposit of K5,000.00 shall be paid equally to 	the respondents towards the costs to which they are entitled pursuant 	to order c) above.
_____________________________________________________________
Nelson Lawyers: Lawyers for the Applicant                                              
Tangua Lawyers: Lawyers for the First Respondent                                  
Jema Lawyers: Lawyers for the Second Respondent