In the matter of an Application under s155 (2) (b); Constitution and In The Matter of the Organic Law on National and Local Level Government Elections; Moses Manwau v Andrew Trawen, Electoral Commissioner, Electoral Commission of Papua New Guinea and Martin Maingu, Returning Officer for Wewak Open Electorate and Electoral Commission of Papua New Guinea and Jim Simitab (2011) SC1159

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Kandakasi and Hartshorn JJ
• Judgment Date: 16 June 2011
• Court: Supreme Court
• Citation: (2011) SC1159
• Docket Number: SC REVIEW NO 31 OF 2008
• Year: 2011
• Judgement Number: SC1159

Full Title: SC REVIEW NO 31 OF 2008; In the matter of an Application under s155 (2) (b); Constitution and In The Matter of the Organic Law on National and Local Level Government Elections; Moses Manwau v Andrew Trawen, Electoral Commissioner, Electoral Commission of Papua New Guinea and Martin Maingu, Returning Officer for Wewak Open Electorate and Electoral Commission of Papua New Guinea and Jim Simitab (2011) SC1159

Supreme Court: Salika DCJ, Kandakasi and Hartshorn JJ

Judgment Delivered: 16 June 2011

SC1159

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO 31 OF 2008

In the matter of an Application under s.155 (2) (b)

Constitution and in the matter of the Organic Law

on National and Local Level Government Elections

BETWEEN:

MOSES MANWAU

Applicant

AND:

ANDREW TRAWEN, Electoral Commissioner,

ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

First Respondent

AND:

MARTIN MAINGU, Returning Officer

for Wewak Open Electorate

Second Respondent

AND:

ELECTORAL COMMISSION OF

PAPUA NEW GUINEA

Third Respondent

AND:

JIM SIMITAB

Fourth Respondent

Waigani: Salika DCJ, Kandakasi and

Hartshorn JJ.

2011: 27th April,

: 16th June

SUPREME COURT – Slip Rule - whether Court acted without jurisdiction – sections 8 (1) (e) and 12 Supreme Court Act considered

Facts:

The fourth respondent Mr. Jim Simatab, applies under the slip rule for this court to correct its errors or mistakes made in its decision delivered on 4th August 2010. Mr. Simatab although declared the member for the Wewak Open Electorate following the 2007 National Elections, lost his seat when this court declared the applicant Mr. Moses Manwau the member on 4th August 2010 following a recount ordered by this court. Mr. Simatab contends that the Court acted without jurisdiction, exceeded its review jurisdiction by assuming the powers of the National Court and did not give Mr. Simatab an opportunity to be heard in respect of evidence presented on 4th August 2010.

Held:

1. The applications of sections 8 (1) (e) and 12 Supreme Court Act, although in Part III Supreme Court Act, are not confined only to an appeal.

2. The Supreme Court is entitled to make the declaration that it does as s. 8 (1) (e) Supreme Court Act, provides that if it thinks it necessary or expedient in the interests of justice to do so, exercise in relation to the proceedings of the Court any of the powers that may for the time being be exercised by the National Court on appeals or applications.

Cases cited:

Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063

Counsel:

Mr. N. Kubak, for the Applicant

Mr. R. William, for the First, Second and Third Respondents

Messrs I. R. Molloy and T. Yanarhia, for the Fourth Respondent

16th June, 2011

1. BY THE COURT: The fourth respondent Mr. Jim Simatab, applies under the slip rule for this court to correct its errors or mistakes made in its decision delivered on 4th August 2010. Mr. Simatab although declared the member for the Wewak Open Electorate following the 2007 National Elections, lost his seat when this court declared the applicant Mr. Moses Manwau the member on 4th August 2010 following a recount ordered by this court.

2. Mr. Simatab contends that the issues and we assume the errors or mistakes in the decision of 4th August 2010 are that:

a) as Salika DCJ and Kandakasi J and not Hartshorn J constituted the court that delivered the 4th August 2010 decision, the court acted without jurisdiction,

b) the Court exceeded its review jurisdiction by assuming the powers of the National Court,

c) the court denied Mr. Simatab an opportunity to be heard in respect of evidence presented on 4th August 2010.

3. Mr. Manwau opposes the slip rule application. The first, second and third respondents represented by the Electoral Commission (Electoral Commission), support the application.

4. We mention that Mr. Simatab’s application also sought to have this court correct its earlier decision delivered on 24th June 2010, but at the hearing before us, counsel for Mr. Simatab informed that his reliance was only upon the issues detailed in his extract of argument. Those are the issues to which we have already made reference.

5. The principles governing slip rule applications have been considered by this court on numerous occasions. Recently 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) consistently applied 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. We consider the jurisdiction issue first.

No jurisdiction

7. Mr. Simatab submits that the hearing on 4th August 2010 by Salika DCJ and Kandakasi J was without jurisdiction and a nullity as although Hartshorn J had purportedly given his authority for the other two judges to sit and make declarations on his behalf, they were not merely publishing their decisions and Hartshorn J's decision; they also heard argument, received evidence, rejected a request for an adjournment, considered the evidence, made a decision to accept the evidence and made a declaration.

8. Reliance is placed upon s. 161 (2) and s. 162 (2) Constitution which are:

s. 161 (2) “Subject to Section 162 (2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three judges.”

s. 162 (2) “In such cases as our provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.”

9. It is submitted that a judge cannot delegate his role and that there is no legislation (s. 3 Supreme Court Act only applies in respect of appeals), or rule of court which permits any number of judges less than three constituting the Supreme Court, to continue with their hearing or make an adjudication upon a review.

10. As to the delegation submission; s. 12 Supreme Court Act prescribes that it is not necessary that all the Judges before whom any cause or matter after being finally heard and ordered to stand for judgment, be present together in court to declare their opinions. Notwithstanding that s. 12 is in Part 3 of the Supreme Court Act which is entitled “APPEALS TO THE SUPREME COURT”, s. 12 refers to “any cause or matter” and not ‘appeal’. The word “matter” is defined in s.1 (1) Supreme Court Act as including any proceedings in the Supreme Court or National Court. Further, there is no provision in the Supreme Court Act that restricts all of the sections in Part 3 to appeals.

11. We are satisfied that s. 12 Supreme Court Act does include a cause or matter that is not an appeal. This would include a review under s. 155 (2) (b) Constitution. Counsel however, did not pursue this argument before us.

12. As to whether two instead of three judges can continue with a hearing, it is clear from the legislation...