Charles Maino v Moi Avei and The Electoral Commission (2000) SC648

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 07 July 2000
• Citation: [2000] PNGLR 404
• Docket Number: SCR 8 of 1999
• Year: 2000

Full Title: SCR 8 of 1999; Charles Maino v Moi Avei and The Electoral Commission (2000) SC648

Supreme Court: Los J, Sheehan J, Injia J

Judgment Delivered: 7 July 2000

1 Judgment delivered—Application for correction of error—Jurisdiction for correction—Consideration of Application.

2

3

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Los J:

It has been fairly decided that the Supreme Court has power to correct a judgment it has made and this was confirmed in 1994 in Richard Dennis Wallbank and Jeannette Minifie v The State [1994] PNGLR 78. In this case the court turned to Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 for guidance. In the context of election petition the principles were applied in Dick Mune v Paul Poto (No 2) [1997] PNGLR 356.

More recently the court constituted by Sir Mari Kapi DCJ, Sheehan J and Akuram J applied the principles. All these cases emphasise that jurisdiction to re–open a case is not open–ended; in other words it is rare and the discretion must be exercised with great care. The summary of the principles are that the court may re–open a case where; (a) an apparent error arising from some miscarriage in the judgment; (b) the court has proceeded on some misapprehension of facts or relevant law and such misapprehension cannot be attributed solely to the neglect or default of the party seeking rehearing. A re–opening must not be to re–agitate arguments or to better argue when in the first argument not all aspects of the arguments were presented.

In the decision subject of this application SCR No 8 of 999 and SCR No 13 of 1999; In the matter of Review pursuant to S155(2)(b) of the Constitution; And In the matter of Organic Law on National and Local–level Government Elections; And in the matter of a Disputed Return in the election for the Kairuku–Hiri Open Electorate in the Central Province; Charles Maino v Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633, I joined in with my brother Injia who had kindly made his draft available to me for my consideration. To me the influencing factor were receiving of certain affidavits by the reviewing judge; their contents and the judges words on the contents of the affidavits. The trial judge did consider the contents though subsequently he rejected them both on their admissibility and the credibility. The majority reached the view on the basis that because of the applicability of s217 of the Organic Law on National and Local–level Government Elections, no issue could arise because in an election petition the technical rules of evidence did not apply but the court must “be guided by the substantial merits and good conscience . . . without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not". But the provisions of s217 are not meant to override the right to have a say on any allegation or evidence that may affect a party unless the party's own action shows not wishing to conduct any examination or call any contrary evidence. The superior court, in this case the Supreme Court cannot apply a different law to this.

Secondly the trial judges criticism that substantial systematic irregularities did not relate to the ballot papers but they were directed at the secondary documents, the electoral returns used for checking the actual count. I therefore consider this was a misapprehension which s217 “substantial merit and good conscience" and s218 “immaterial errors not to vitiate declares" of the Organic Law on National and Local–level Government Elections cannot save.

For these reasons and others in the well thought–out judgment of Sheehan J I join him. His decision and my decision now form the majority judgment.

Sheehan J:

The second respondent has sought relief from the judgment of this Court, delivered on 9 May 2000, when under powers of review, it reversed the decision of the National Court in the Election Petition in respect of the Kairuku–Hiri Electorate. This application is made on, in reliance the Supreme Court inherent jurisdiction to correct inadvertent error arising in a judgment. It is contended for the Electoral Commission that the Court inadvertently and mistakenly assumed that particular affidavit evidence filed in the Election Petition Trial, had been accepted matters of uncontested fact, when such was not the case. The Second Respondent maintains that the Courts determination of the law, applied to those supposed “facts", amounts to an error that calls for correction.

There is no doubt that the Supreme Court has power to correct a judgment it has made, where it is shown, there is a matter of substance integral to the judgment that is incorrect and that such error is based on a misapprehension of the true facts or of the law applicable in particular case. This Court, in Richard Dennis Wallbank and Jeannette Minifie v The State [1994] PNGLR 78, confirmed that, when it stated that while decisions of the Supreme Court, as the final court of appeal, are final, that does not preclude there being the possibility of reviewing a decision made or rehearing an issue affecting a decision, when the Court has good reason to consider that a judgment that it has made has been arrived at on a misapprehension as to the true facts or applicable law. Such jurisdiction of course arises only if it is clearly shown that there is a matter calling for review. A slip–such as a spelling or arithmetical mistake are straightforward examples, but to ensure there is no miscarriage of justice, the Court may look further. As was said in Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, was cited in Richard Dennis Wallbank and Jeannette Minifie v The State [1994] PNGLR 78 and again in Sir Julius Chan v Ephraim Apelis (No 2) [1999] PNGLR 187:

“As this Court is the final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment."

But those decisions also make it clear that this is not an extension to the appeal system. “The purpose is not to provide a back door method by which unsuccessful litigants can seek to reargue their case". There has to be a genuine error or misapprehension, one not occurring through failure of the parties to put their case adequately.

David Lambu v Peter Ipatas (No 4) [1999] PNGLR 634 and Don Pomb Pullie Polye v Jimson Sauk Papaki (1999) SC643.

The Applicant the Electoral Commission points to two matters of concern. The first of these arises from the fact that the review brought before the Supreme Court was one brought by the Petitioner to challenge the National Court decision adverse to him. It was brought on grounds that contested the trial Judges rejection of four affidavits (which alleged irregularities in the re–count ordered by the Court), as not amounting to evidence, but to speculation only. The Applicants argues that this Court erroneously assumed that because the Applicant though objecting to the affidavits had not sought any ruling on admissibility those affidavits filed in the proceedings had been and were accepted as evidence in the petition both by the parties and trial Court itself. Following that assumption the Supreme Court considered that that evidence was therefore open to reconsideration on review as to its credibility and effect.

The second matter Applicants argues, is that the Supreme Court decision is based on the misapprehension that the errors and omissions found by the National Court which merited the order for a recount, were errors and omissions relating to the primary vote itself. That is, the actual counting of the votes in the election. The true position it is said was that the trial Court did not find error in the primary count or that ballot boxes or papers were tampered with. The errors found related only to secondary documents; the electoral returns used for checking the actual count. The essential basis of the National Court decision to hold the recount was, the applicant says that having found irregular practices committed by the Electoral Officials in their handling of the reporting of the result of the poll, the Court determined that a recount was appropriate to see whether those irregularities in that aspect of their duties might have had...