Application by James Lovika & 79 Other Discharged Members of the Papua New Guinea Defence Force v Carl Marlpo, as the Commander of the Papua New Guinea Defence Force and the Independent State of Papua New Guinea (2020) SC1916

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ, Bona & Shepherd JJ
• Judgment Date: 13 February 2020
• Court: Supreme Court
• Citation: (2020) SC1916
• Docket Number: SCREV No 22 of 2014
• Year: 2020
• Judgement Number: SC1916

Full Title: SCREV No 22 of 2014; Application by James Lovika & 79 Other Discharged Members of the Papua New Guinea Defence Force v Carl Marlpo, as the Commander of the Papua New Guinea Defence Force and the Independent State of Papua New Guinea (2020) SC1916

Supreme Court: Kandakasi DCJ, Bona & Shepherd JJ

Judgment Delivered: 13 February 2020

SC1916

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 22 OF 2014

BETWEEN:

APPLICATION BY JAMES LOVIKA & 79 OTHER DISCHARGED MEMBERS OF THE PAPUA NEW GUINEA DEFENCE FORCE

Applicants

AND:

CARL MARLPO, as the Commander of the PAPUA NEW GUINEA DEFENCE FORCE

First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi DCJ, Bona & Shepherd JJ.

2020: 12th & 13th February

PRACTICE & PROCEDURE – Slip Rule Application - Principles governing – Alleged misapprehension of law and facts – Proposed grounds not clear and manifest error of law or fact by the Court by are arguable and possible appeal review grounds - No misapprehension but deliberate judgment by the Court – Application dismissed - O.11, r32 Supreme Court Rules.

PRACTICE & PROCEDURE – Leave for slip rule application – Competency of – Not in required form, using wrong jurisdictional provision to invoke Court’s jurisdiction and seeking substantive reliefs – Order 11, r32(1) Supreme Court Rules

Cases Cited:

Papua New Guinea Cases

Jacob Sanga Kumbu v. Dr. Nicholas Mann (2018) SC1710

Lucas Dekena v. Nick Kuman (2018) SC1715

Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638

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

Moses Manwau v. Andrew Trawen (2011) SC1159

Francis Kunai & Ors. v. Papua New Guinea Forest Authority & Ors (2018) N7570

William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844

Eremas Wartoto v. The State (2015) SC1411

The State v. the Transferees (2016) SC1488

Coca Cola Amatil (PNG) Ltd v. Yanda (2012) SC1221

Counsel:

Mr. B. Lai, for the Applicants

Mr. D. Levi, for the Respondent

13th February, 2020

1. KANDAKASI DCJ: The Applicants, James Lovika and 79 others (Applicants) are claiming, this Court made certain slips on 17th December 2019 when it came to its final decision on their substantive review application. The alleged slips are listed in the grounds for the application at paragraph 2.1 - 2.7 of the application, which mainly claim the Court misapprehended the relevant law and facts. The Respondents, in response say, the application is incompetent for not correctly invoking the jurisdiction of the Court, not being in the correct form and seeking a substantive relief instead of leave. As for the application on its merits, the Respondents say the Court made no slips. For these reasons they argue for a dismissal of the application.

Issue for determination

2. Hence, two issues are presented for determination. They are:

(1) Is the application incompetent for not invoking the correct jurisdictional provision of the Court Rules, not being in the correct form and seeking substantive reliefs?

(2) Did the Court misapprehend the law and the relevant facts and come to a decision that requires correction?

Background facts

3. This matter initially came to the Supreme Court by way of a review application from the National Court which ordered a dismissal of the Applicants’ claim and ordered a release of K12, 919,600.00 from the National Court Trust Account to the Papua New Guinea Defence Force. The Respondents filed an objection to the competency of the review application on the basis that the application included grounds for which leave were not sought and granted. The Court upheld that objection based on principles of law as represented by the decisions in Jacob Sanga Kumbu v. Dr. Nicholas Mann (2018) SC1710, Lucas Dekena v. Nick Kuman (2018) SC1715 and the minority view in Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638 and dismissed the review application. That should have been the end of the matter, except for the correction of any apparent and obvious error on the Court’s own motion or in Latin, the Court acting suo moto.

The Principles Governing Slip Rule

4. The principles governing slip rule applications are well settled in our jurisdiction. In the five-member Supreme Court decision in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors, (2010) SC1063 the Court after a review of the various authorities on point, settled the following as the principles that govern all slip rule applications:

(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 earlier.

(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.

5. These principles have been consistently applied in many earlier and subsequent decisions of the Supreme Court, such as the decision in Moses Manwau v. Andrew Trawen (2010) SC1063 with followings in the National Court as demonstrated by the decision in Francis Kunai & Ors v. Papua New Guinea Forest Authority & Ors., (2018) N7570.

Present Case

6. The application before me will be determined applying these principles. However, before doing so there is a challenge on the competency of the application itself as already noted. That is issue number one so I will deal with that first.

Issue 1 - Is the application incompetent for not correctly invoking the Courts jurisdiction, not being in the correct form and seeking a substantive relief?

7. In their application for leave, the Applicants say their application is pursuant to (a) Order 11, Rule 32 (3) of the Supreme Court Rules and Section 155 (4) of the Constitution of PNG and (b) Order 11, Rule 32 (1) and (2) of the Supreme Court Rules and Section 155 (4) of the Constitution of PNG.

8. The relevant provision made in the Supreme Court Rules for slip rule applications is Order 11, Rule 32. That rule reads:

“32. (1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.”

9. Clearly, subrule (1) allows for the filing of slip rule application and also sets the time period within which an application for a slip rule must be filed and served. The next subrule (2), provides as to how a person applying under this rule must plead his case and the kind of finding the Court should have made that, he or she is asking from the Court. Finally, the third and last subrule (3) provides as to the order in which a slip rule application must be dealt with. It makes it very clear that, no such application can be listed for hearing unless a judge of the Court or the Court that is alleged to have slipped has first granted leave for the application to proceed.

10. The most important part of the Applicants’ application is the provision in 1 (a). In this provision, the Applicants say they are seeking leave pursuant “to Order 11, Rule 32(3) of the Supreme Court Rules and Section 155(4) of the Constitution of PNG.” There are two things wrong with this part of the application. First, it is obvious that the Applicants have invoked the wrong jurisdictional foundation in the Court Rules. Secondly, they have also invoked the provisions of s. 155(4) of the Constitution.

11. This Court has already on a number of occasions made it clear that, s. 155 (4) of the Constitution has seen more abuses than its proper use or application. In its decision in William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844, this Court formally noted that abuse. Then after carefully reviewing relevant authorities on point, the Court concluded, there are about 5 important features or attributes of s. 155 (4) in these terms:

“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:

1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make ‘such other orders as a necessary to do justice in the particular circumstances of a case’ before the Court;

2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the...