SC2599

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) 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 J
2024:  26th & 28th June
 
SUPREME COURT – practice and procedure - Application for leave to file a slip rule application – Need for applicant to demonstrate glaring mistakes, error, or slip of law or fact on critical issues which are manifest and not arguable.   
 
Cases Cited:
Andrew Trawen and Anor v Stephen Pirika Kama and Ors (2010) SC1063
Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412
Hagahuno v Tuke (No. 2) (2020) SC2018

Counsel:
Brendan.S. Lai, for the First Respondent
Werep Pep, for the Second Respondent
Kennedy Kulip, for the Applicant

28th June 2024

1.      GEITA J: 	This is a decision on a contested application for leave to make a slip rule application. It is made by the First Respondent under O.11 R. 32 (1) (2) (3) of the Supreme Court Rules and is opposed by the respondents.
 
Background

2.	 In a National Court proceeding filed under EP No. 70 of 2022 (IECMS), the First and Second Respondents’ objections to the competency of the Petition was upheld and the Petition dismissed in its entirety. 

3.	On 8 May 2024 in proceedings under SC Rev (EP) No. 6 of 2023 the Respondents’ Objection to Competency was upheld in part with all the remaining grounds in the Application to Review to proceed to substantive hearing. In its published decision dated 8 May 2024 the Court held: - 

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 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 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. 
 
          Application for leave to bring a slip rule application
 
4.     The First Respondent in its application, seeks leave to make a slip rule application pursuant to Order 11 Rule 32(1), (2) and (3) Supreme Court Rules. The Respondent contends that the Court set-aside its previous decision and correct the clear and manifest error. The supposed manifested error it argues was the inclusion of a line in the decision of 8 May 2024 in which the Court recorded that the First Respondent’s supporters to be responsible for the destruction of all 32,232 ballot papers from the LLG area that constituted the electorate, whereas it should read from “unknown persons.”  

Law
 
5. 	The principles governing slip rule applications have been considered by this court on numerous occasions. In Andrew Trawen and Anor v Stephen Pirika Kama and Ors (2010) SC1063, this Court consisting of five judges, after a review of the authorities, agreed that the following principles are those that govern all slip rule applications to this court for it to reopen one of its decisions:
 
(a)   there is a substantial public interest in the finality of litigation.
 
(b)   on the other hand, any injustice should be corrected.
 
(c)   the Court must have proceeded on a misapprehension of fact 	 or law.
 
(d)   the misapprehension must not be of the applicant’s making.
 
(e)   the purpose is not to allow rehashing of arguments already 	 raised.
 
(f)   the purpose is not to allow new arguments that could have 	 been put   to the Court below.
 
(g)   the Court must, before setting aside its previous decision, be 	 satisfied that it made a clear and manifest, not an arguable, 	 error of law or fact on a critical issue.
 
6.  	In addition, earlier Supreme Court decisions have also set out succinctly what slip rule application should entail: It said slip rule application for leave to make a slip rule application, are  precondition on two basic rules as set down in Anderson Agiru v Aluago Alfred Kaiabe (2015) SC1412.  The Court stated at [11] that there are two preconditions to the grant of leave:  First, the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings. Secondly, the applicant must satisfy the Court that the slip rule application would have a strong chance of success.
 
7.	In submissions, counsel for The First Respondent submitted that the error, if not corrected may impact on his client’s reputation and standing as he currently holds the position of Deputy Speaker of the National Parliament. It follows that the making of this application for leave to make a slip rule application are for reasons other than that the Court slipped or that the Court misapprehended facts or law and that the application has a strong chance of success. 

8.	The First Respondent in its affidavit of 24 May 2024 deposed that if the error is not corrected it may impact on his reputation and standing as he currently holds the position of Deputy Speaker of the National Parliament.

9.	According to submissions by Counsel of First Respondent his client is not concerned with the court’s decision. He however remained mum on whether the slip rule application has a strong chance of success.
 
10.	The Respondent/Applicant submits that the Application by the First Respondent for leave to make a slip rule application filed 27 May 2024 should be dismissed for being incompetent and without any merit and therefore an abuse of process. It is submitted that the First Respondent did not point out any “glaring issues” on any critical fact or point of law issue which could legitimately be said to have resulted in an injustice.  Furthermore, The Respondent/Applicant submits that the error of fact is not substantial and does not affect the Court’s reasoning. Adding that this error is inconsequential, and does not in any event, affect the outcome of the decision as its very trivial and a minor error and ought to be dismissed. There is nothing in the Application by which the Court could be satisfied that it made a clear and manifest, (not an arguable), error of law or fact on any critical issue. 

Consideration
 
11. 	Now, going by the second precondition in the Anderson Agiru v Aluago Alfred Kaiabe (supra) the First Respondent has not articulated specifically that there is a strong chance of the application being successful. 

12.	The First Respondent’s concession that he is not concerned with the court’s decision as a whole does not sit in well with principles (a) and (g) of the principles governing slip rule applications as stated in the case of Andrew Trawen and Anor v Stephen Pirika Kama and Ors (2010) SC1063:

(a)	there is a substantial public interest in the finality of litigation.

(g)   the Court must, before setting aside its previous decision, be satisfied that 	it made a clear and manifest, not an arguable, error of law or fact on a 	critical issue. (emphasis mine)

13.	If anything, the slip application is indicative of the First Respondent seeking to frustrate the finality of litigations. Both the Supreme Court and National Court have repeatedly emphasised that challenging an election outcome, with its associated processes is a serious matter. It goes without saying that Election Petitions or any Election related cases are seasonal and have a shorted life span of five years (5). It follows that substantial public interest dictates that all such litigations are best concluded within the currency of the National Parliament. I am therefore not satisfied that a clear and manifest error of law or fact on a critical issue was put before me in the application and submissions.

14.	The alleged slip is so insignificant that it offends against the public interest in the finality of litigations as it is praying for the slip to be upheld and the decision of the Court made on 8 May 2024 to be set-aside. In the case of Richard Dennis Wallbank and Jeannette Minifie v State [1994] PNGLR 78, the Supreme Could said at P.103:

““We consider that the public interest in the finality of litigation must preclude all but the clearest “slip” error as a ground to re-open.
To that extent, then, while the High Court of Australia may have been willing to widen its discretionary ambit of review, this Court is unwilling to go so far, for the mischief occasioned by the resultant uncertain nature of a Supreme Court decision following appeal would, in our view be contrary to the public interest.”

15.	Notwithstanding that the Court misapprehended a certain factual situation, the slip, or the error is so insignificant and superficial. The whole tenor and outcome of the Court decision remains intact and undisturbed.	For the above reasons, there is no merit in this slip application. Consequently, for the above reasons this application should be dismissed. It is therefore not necessary to consider the other submissions of counsel of Applicant/Respondent. This misapprehension is perception oriented and therefore not fatal to the decision. During exchange between the Court and both Counsel regarding the offending sentence, Counsel of the Respondent/Applicant submitted that, that concern was a non-issue, and they would use it against the First Respondent. 
 
Orders
 
a)       The application for leave to make a slip rule application filed 27th May 2024 of the appellant is dismissed.
b)       As to costs, I would order that costs to be in the cause.

________________________________________________________________
Brendan. S. Lai Lawyers: Lawyer for the First Respondent
Werep Pep:  Lawyer for the Second Respondent
Emergent Lawyers: Lawyer for the Applicant