SC2639

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO.65 OF 2023

BETWEEN:

DAVIS STEVEN
Applicant

AND:
JIMMY MALADINA
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  David J
2024:  12th September & 23rd October

PRACTICE & PROCEDURE – interlocutory application to raise new grounds not raised in the National Court and to introduce new evidence – application must contain a concise statement of the jurisdiction of the Court to grant the relief sought – application must be made in Form 4 – application dismissed. 

Cases Cited:
Application for Review Pursuant to Section 155(2)(b) of the Constitution; Viviso Serave and Electoral Commission v John Giheno (1998) SC539
The State v Transferees (2016) SC1488
Stanley Poga v The State (2020) SC1938
Barrick (Niugini) Ltd v Nekitel (2021) SC2092
Gadiki v Gaudi Logae (2021) SC2102
Powi v Kaku (2021) SC2147
The State v Kalaut (2022) SC2246
Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holdings (PNG) Ltd (2022) SC2337
Seravo & Electoral Powi v Kaku (2021) SC2147

Counsel:
Davis Steven, self-represented Applicant
Ian R. Shepherd with Meli Muga, for the First Respondent
Jack Kiluwe, for the Second Respondent

JUDGMENT
23rd October 2024

1.	DAVID, J:  INTRODUCTION: This is the decision of the Court following a contested hearing of the Applicant, Davis Steven’s application filed on 27 September 2023 (the Application) essentially seeking leave to include new grounds that were not raised and argued in the National Court and to introduce new evidence in his Application for Leave to Review filed on 22 September 2023 (Application for Leave to Review) that is yet to be heard and determined. 

2.	The Application for Leave to Review seeks leave to review the entire decision of the National Court delivered on 8 September 2023 which upheld an objection to competency of the Applicant’s Petition filed on 7 September 2022 and Amended Petition filed on 8 September 2022 in proceedings EP No.36 of 2022.

3.	The principal relief the Applicant seeks is contained in paragraph 1(a) of the Application which is in the following terms:

“Pursuant to Constitution, section 155(4) and (2)(b) and order 5, rule 6 of the Supreme Court Rules 2012 consolidated to the Supreme Court Miscellaneous Amendments) Rules 2022 (SC Rules) the Applicant be granted leave to raise new grounds and argue:

(i)	Legal issues concerning the constitutional validity of Election Petition (Miscellaneous Amendments) Rules 2022, this issue not having been raised in the National Court.
(ii)	Legitimate expectation in the undertaking given by the Registrar to the Applicant, and such other legal issues as may be new.
(iii)	Leave to introduce new evidence, 
(iv)	Leave to amend the application to review to include or clearly set out the new legal issues.” 

4. 	The grounds that the Applicant relies on in the Application are set out in paragraph 2 of the Application and these are:

	“Background

2.1 	On 8 September 2023, Justice Kariko announced the decision dismissing the petition and amended petition in EP 36 of 2022 as being incompetent. 
2.2	The decision of the court and the court order are annexed to the affidavit of Davis Steven as Annexures “A1” and “A2”.
2.3	The written decision was made available at the National Court registry on 19 September 2023. 
2.4	The 14 days prescribed for filing and service of the leave application expired on 23 September 2023, a Saturday. Counting the weekends since 8 September 2023 and the public holiday on 15 September 2023, effectively the Applicant was left with 3 working days to prepare the Application for leave to review.
2.5	On 22 September 2023, the Court granted extension of time for service on the Respondents and did not grant leave to amend the Application for Leave to Review, preferring arguments inter partes. 
	Legal Issue not raised in the National Court
2.6	The validity of the Election Petition (Miscellaneous) Rules 2022 and the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022, (the Rules) was not raised in the petition and during arguments before the National Court.
2.7	Evidence from the Clerk of Parliament about non-compliance of section 185(5) Constitution was not known to the Applicant until after the decision dismissing the petition on 8 September 2023.
2.8	Constitutional validity of the rules is a matter of constitutional law involving the construction and application of section 185(5), Constitution and section 212(2) Organic Law on National and Local Level Government Elections, 1997 (OLNLGE). It raises the question as to whether the rules as they stand are part of the laws of Papua New Guinea under the Constitution, section 9?
2.9	The election petition process under the OLNLGE give the process under which the applicant’s right under section 50, Constitution can be protected or enforced. 
2.10	The National Court relied on sections 5 and 6 of the rules to dismiss the petition filed on 7 September 2022 in EP 36 of 2022. The Court held that the Petition was incompetent because the filing fees was not paid in time as required under sections 5 and 6 of the rules and section 208(e) of the Organic Law on National and Local Level Government Elections, 1997.
2.11	The applicant is seeking to enforce his right under section 50, Constitution and the provisions of the OLNGE in the dismissed petition proceedings in the National Court. Such rights will be prejudiced if this legal issue is not argued and determined in this Application.
2.12	This Application for Review raises this issue for the first time and must be argued and settled in the interest of constitutional law and public interest.
2:13	This issue may be raised under the court’s original jurisdiction to interpret and apply the constitution under section 18 or 19 but it will be of no utility to the interest of the Applicant who is challenging the validity of the outcome of the 2022 National Election.
2:14	The issue of legitimate expectation has not been raised in the context of review of decisions to dismiss an election petition. 
2.15	The new evidence sought to be introduced goes to show that it is in the interest of justice and in accordance with the intention of the law that the election petition in EP 36 of 2022 be allowed to proceed to trial of the evidence.”
	
EVIDENCE

5.	The Applicant relies on and reads the following affidavits:

1.	Affidavit of Davis Steven sworn on 21 September 2023 and filed on 22 September 2023;
2.	Affidavit of Davis Steven filed on 27 September 2023; and
3.	Affidavit of Davis Steven sworn and filed on 29 August 2024.

6.	The First and Second Respondents do not rely on any affidavit in opposing the Application.

SUBMISSIONS
Applicant

7.	The Applicant submits that the Court has jurisdiction to entertain the Application pursuant to s.155(2)(b) and (4) of the Constitution, Order 3 Rule 2 and Order 5 Rules 6 and 9 of the Supreme Court Rules 2012 (Supreme Court Rules).  He asserts that these provisions provide the Court or single judge of the Supreme Court jurisdiction to grant interlocutory relief such as those sought in the Application namely:

1.	Leave to raise and argue the ground of constitutional validity of the Election Petition (Miscellaneous Amendments) Rules 2022;
2.	Leave to raise and argue the ground of legitimate expectation;
3.	Leave to introduce new evidence; and
4.	Leave to amend the application to review to include or clearly set out the new legal issues. 

8.	In support of the submission, the Applicant has referred the Court to Seravo & Electoral Powi v Kaku (2021) SC2147 and Application for Review Pursuant to Section 155(2)(b) of the Constitution; Viviso Seravo and Electoral Commission v John Giheno (1998) SC539 which I have considered.
  
First Respondent

9.	The First Respondent submits that the Application should be dismissed as:

1.	It is defective and incompetent for not being in Form 4 which is a mandatory requirement under Order 13 Rule 15 of the Supreme Court Rules and therefore does not properly invoke the Court’s jurisdiction; 
2.	Order 5 Rule 6 of the Supreme Court Rules is only a general provision that allows interlocutory applications to be made before a single judge in the nature of directions that are not determinative of the issues under review;
3.	Section 6 of the Supreme Court Act allows an appellant to adduce fresh evidence, but only in very limited circumstances namely; evidence which has come to the knowledge of the party applying since the hearing  or trial and which could not by reasonable means have come to his knowledge before that time; and the Court is satisfied that the justice of the case warrants it; and that such applications are made at the hearing of the appeal , but in the present case, neither of the test is satisfied even if the Court had jurisdiction to hear such an application. 
4.	The “new evidence” referred to in the Applicant’s affidavit of 27 September 2023 which concerns whether certain provisions of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 (Election Petition (Miscellaneous Amendments) Rules 2022) were sent to Parliament for certification was clearly available at the time of the hearing of the petition;
5.	The Application is simply an attempt to bolster the application for leave to review the National Court’s decision to dismiss the entire petition for failing to comply with the Organic Law on National and Local-level Government Elections; and
6.	There is no provision in the Organic Laws or the Supreme Court Rules that allows an application to “add grounds” which were not before the National Court.

Second Respondent

10.	The Second Respondent adopts and supports the First Respondent’s submissions to dismiss the Application and makes the following additional submissions:

1.	The Applicant has failed to cite the correct statement of the Court’s jurisdiction to grant the orders sought as s.155(4) and (2)(b) of the Constitution and Order 5 Rule 6 of the Supreme Court Rules did not grant the Court such jurisdiction;

2.	The Application is an abuse of the process of the Court as the Application for Leave to Review is yet to be heard and determined and there is no substantive review application on foot;

3.	The Supreme Court Rules is silent on whether a party can seek leave to introduce new grounds that were not raised and argued in the National Court and the manner and form to be used in seeking such relief in the absence of which ad hoc directions ought to have been sought pursuant to s.185 of the Constitution and Order 11 Rule 9 of the Supreme Court Rules to remedy the lacunae; and

4.	No exceptional circumstances exist for the Court to allow the Applicant to include new grounds in the Application for Leave to Review.

ISSUES

11.	The issues that fall for my determination are:

1.	Whether the Application is competent?
2.	Whether the Applicant be granted leave to raise new grounds that were not raised in the National Court?
3.	Whether the Applicant be granted leave to introduce new evidence?  

REASONS FOR RULING
Form of Application

12.	All interlocutory applications are required to be made in Form 4 pursuant to Order 13 Rule 15 of the Supreme Court Rules which states:

All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4.

13.	The terms of Order 13 Rule 15 are mandatory.  

14.	The word “application” is defined in Order 13 Rule 1 of the Supreme Court Rules and it states:

“Application” means any application provided for under these rules, the Act, the Constitution and any other legislation;”

15.	The mandatory requirements must be strictly complied with:  The State v Transferees (2016) SC1488, The State v Kalaut (2022) SC2246.  It is a pivotal consideration on the issue of competency of the Application:  The State v Transferees (2016) SC1488, The State v Kalaut (2022) SC2246.

16.	The form of the application used ought to have been in Form 4. The form used by the Applicant appears to be in the nature of an application for leave to review, if anything, ie in Form 5A and not a Form 4 and is therefore defective and does not properly invoke the Court’s jurisdiction: Gadiki v Gaudi Logae (2021) SC2102, The State v Kalaut (2022) SC2246. 

17.	In State v Kalaut (2022) SC 2246 the Supreme Court dealt specifically with a Form 4 Application and noted that strict compliance was required including at [4] observing that “there should be a paragraph entitled “Grounds” and that each particular ground by paragraph be specified” and that failure to comply was fatal to the application.

18.	In the present case, under the heading “GROUNDS”, there is a section entitled “Background” which in fact, does not plead any grounds for the application. In addition, there is an additional, non-prescribed paragraph entitled “Legal Issue not raised in the National Court” which again fails to plead any grounds. 

19.	There is also a section under the heading “LEGAL ISSUES”.   It is not a requirement under Form 4.

20.	In addition, the Application ought to have stated briefly, but specifically the grounds relied upon in support of the Application and not in the manner they have been set out.

21.	It is a mandatory requirement in an application to make a concise statement of the Court’s jurisdiction to grant the orders sought:  Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holdings (PNG) Ltd (2022) SC2337.  In the Application, the Applicant cites s.155(4) and (2)(b) of the Constitution and Order 5 Rule 6 of the Supreme Court Rules as the jurisdictional basis for seeking the relief sought.  Other rules referred to in submissions as going to jurisdiction cannot be considered as they are not specifically cited in the Application. 

22.	The inherent and discretionary power of the Supreme Court under s.155(2)(b) of the Constitution to review all judicial acts of the National Court including reviewing decisions of the National Court in respect of a disputed election petition cannot be invoked to grant the relief sought in the Application. The relevant legal principles were enunciated in Avia Aihi v The State (No.1) [1981) PNGLR 81 (Avia Aihi principles) and they have been developed and applied by the Supreme Court in many cases since.  The power of review will be exercised after leave is granted.

23.	In Barrick (Niugini) Ltd v Nekitel (2021) SC2092 at [16], the Supreme Court said that s.155(4) of the Constitution does not confer primary jurisdictional power, but confers jurisdiction to issue facilitative orders in aid of enforcement of a primary right.  The Supreme Court also observed that where remedies are provided for under other law, s.155(4) does not apply. 

24.	Order 5 Rule 6 of the Supreme Court Rules (Sub-Division 3—Interlocutory orders) allows interlocutory applications to be made before a single judge of the Supreme Court.  It states:

A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.

25.	While Order 5 Rule 6 appears to be a general provision that allows interlocutory applications to be made before a single judge of the Supreme Court in the nature of directions that are desirable as the nature of the case warrants or to make any other interlocutory order which seems just and that are not determinative of the issues under review, His Honour, Gavara Nanau J in Powi v Kaku (2021) SC2147 at [14]-[15] said the rule gave jurisdiction to a single judge of the Supreme Court to grant interlocutory orders including an order for an interim stay. With respect, I concur with His Honour’s observation. As to the merits or otherwise of an application, it is another matter.

26.	There is therefore no need to rely on s.155(4) or even (2)(b) of the Constitution when Order 5 Rule 6 was invoked. 

27.	Nevertheless, the Application is defective and incompetent for want of form and it is dismissed.

28.	While it is now not necessary to consider the merits of the Application, for purposes of giving finality to the issues raised, I will make some brief remarks on; the constitutional validity of the Election Petition (Miscellaneous Amendments) Rules 2022, the question of legitimate expectation; and application for leave to introduce new evidence.

29.	As to the constitutional validity of the Election Petition (Miscellaneous Amendment) Rules 2022, those rules were made pursuant to s.184 of the Constitution and s.212(2) of the Organic Law on National and Local-level Government Elections and s.8 (Rules of Court in the National Court) of the National Court Act.  The rules made under these laws come into force when they are promulgated or in accordance with the commencement clause in the rules by notice in the National Gazette and they remain in force until disallowed as to the whole or part by the Parliament pursuant to s.184(5) of the Constitution.   The Election Petition (Miscellaneous Amendments) Rules 2022 came into force on 1 May 2022.

30.	As to the question of legitimate expectation, it is not clear what this is about.   It lacks specificity.

31.	As to the question of fresh evidence, in appeals, s.6 of the Supreme Court Act allows an appellant to adduce fresh evidence, but only in very limited circumstances and such applications are heard at the hearing of an appeal.  The law governing applications to adduce fresh evidence in appeals is settled in this jurisdiction and the two basic requirements that must be satisfied if fresh evidence is to be admitted on appeal were restated in Stanley Poga v The State (2020) SC1938 at [64} and these are:

1.	There must be fresh evidence within the meaning of s.6(1)(a) of the Supreme Court Act which means evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time; and 
2.	The Court must be satisfied that the justice of the case warrants admission of the evidence.

32.	No binding precedent of the Supreme Court has been referred to me by the parties as to the adoption and application of these principles in cases under review under s.155(2)(b) of the Constitution.   I am not aware of any myself.  

33.	For argument’s sake, assuming the principles on adducing fresh evidence apply, in the present case,  the evidence is lacking.  Neither of the requirements can be met even if the Court had jurisdiction to hear such an application moved pursuant to an application properly before the Court.  The “new evidence” is referred to in the Affidavit of the Applicant filed on 27 September 2023 and concerns whether the Election Petition (Miscellaneous Amendments) Rules 2022 were forwarded to Parliament pursuant to s.184(5) of the Constitution. I find that this “new evidence” was clearly available at the time of the hearing by the National Court.

34.	In addition, the letter purportedly from the Office of the Clerk of Parliament to the Applicant dated 25 September 2023 is secondary evidence as it is not produced by the author himself.  It is not primary evidence.

35.	Moreover, where a party to or a person interested in any legal proceedings before a court desires to use in the proceedings an affidavit by a witness concerning particular facts, the affidavit must be signed and sworn properly before a Commissioner for Oaths or other person authorised to administer an oath.  The Affidavit of the Applicant filed on 27 September 2023 does not bear; the date of execution on the first page; the signature of the Commissioner for Oaths on each page of the affidavit, below the jurat in the space provided for the signature of the Commissioner for Oaths; and the annexure sheets:  see Order 11 Division 3 (Affidavits - Rules 21-28) National Court Rules.   The affidavit is invalid and cannot be used in this Court.

36.	In any event, I have already observed that the rules made by judges pursuant to s.184 of the Constitution and s.212(2) of the Organic Law on National and Local-level Government Elections and  s.8 (Rules of Court in the National Court) of the National Court Act come into force when they are promulgated or in accordance with the commencement clause in the rules by notice in the National Gazette and they remain in force until disallowed as to whole or part by the Parliament pursuant to s.184(5) of the Constitution.

37.	Given the above, it is not necessary to consider the other submissions of the parties.

CONCLUSION

38.	The end result is that I will refuse all the relief sought in the Application and dismiss it.

COSTS

39.	As to costs, it is a discretionary matter.  In the exercise of my discretion, I would order the Applicant to bear the respondents’ costs of and incidental to the Application which shall be taxed if not agreed.

ORDERS

40.	I now make the following orders:

1.	All relief sought in the Application filed on 27 September 2023 are refused and dismissed.
2.	The Applicant shall bear the respondents’ costs of and incidental to the Application filed on 27 September 2023 which shall be taxed if not agreed.
3.	Time is abridged.   
Judgment and orders accordingly.
______________________________________________________________
Davis Steven, self-represented Applicant
Simpson Lawyers:  Lawyers for the First Respondent	
Palem Onom: Lawyers for the Second Respondent