Application under Section 155 (2) (B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Lucas Dekena v Nick Kuman and Electoral Commission of Papua New Guinea (2018) SC1744

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 November 2018
• Court: Supreme Court
• Citation: (2018) SC1744
• Docket Number: SC REV (EP) NO. 6 OF 2018
• Year: 2018
• Judgement Number: SC1744

Full Title: SC REV (EP) NO. 6 OF 2018; Application under Section 155 (2) (B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections; Lucas Dekena v Nick Kuman and Electoral Commission of Papua New Guinea (2018) SC1744

Supreme Court: Kandakasi J

Judgment Delivered: 23 November 2018

SC1744

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 6 OF 2018

APPLICATION UNDER SECTION 155 (2) (B) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:

LUCAS DEKENA

Applicant

AND:

NICK KUMAN

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi J.

2018: 02nd and 23rd November

CONTEMPT OF COURT - Contempt in the face of the Court - Counsel for a party expressly abandoning an issue - Seeks to have the issue revisited under an application for leave for slip rule claiming the Court slipped - Transcript confirming decision to abandon the issue provided to all parties and their counsel - Applicants counsel maintaining claim of the Court slipping and effectively seeking to justify and blame the Court for his decision - Conduct clearly contempt of Court in the face of the Court - Counsel found guilty of contempt of Court.

JUDGEMENT & ORDERS – When does an order or a judgment take effect - The date when the judgment or order is pronounced and not when a formal minute is taken out – Formal minutes are based on a pronouncement of an order or a judgment and has no life on its own.

PRACTICE & PROCEDURE – Application for leave to proceed with Slip Rule Application - Applicant has burden to show substantive application likely to succeed and not an arguable case - Principles governing slip rule application - Basis for claiming slip - Preliminary issue of competency against objection to competency of substantive review application - Preliminary issue disposed off through the party raising the issue abandoning it – Subject matter of slip claim in disregard of party’s own decision to abandon issue - Provision of transcript of proceedings confirm decision to abandon - Counsel still insisting on the Court slipping - No slip by Court but by counsel - Issue raised not likely to succeed - Application for leave dismissed - O.11, 32(1) Supreme Court Rules.

WORDS & PHRASES - “Orders” and “judgment” - Meaning of – The terms “judgement” and “order” in the widest sense may include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court – When the terms are considered separately, they overlap considerably and are incapable of exact definition - Order is a generic term which includes a judgement, and there are distinctions between the two terms .

Cases Cited:

Papua New Guinea Cases

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Gima Raka v. Philip Maimu (2013) N5200

Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88

Jimmy Maladina v. The State (2015) SC1572

Lord & Co Ltd v. Timothy Inapero (2009) SC1042

Kandapaki v. Enga Provincial Government (2015) SC1463

Agiru v. Kaiabe (2015) SC 1412

The State v. Transferees (2016) SC1488

Kelly Kilyali Kalit v. John Pundari and The Electoral Commission (1998) SC569

Peter Wararu Waranaka v. Richard Maru (2018) N7346

Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334

Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission (1997) N1694.

Labi Amaiu v. John Kaupa (2017) N7004

Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission (EP No 37 of 2012 - Unnumbered & Unreported Judgment of 6th March 2015)

Delba Biri v. Bill Ninkama [1982] PNGLR 342

Paru Aihi v Peter Isoaimo (2013) SC1276

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

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

Overseas Case Cited:

R v. Ireland (1970) 44 ALJR 263

Counsel:

Mr. D. Yariyari, for the Applicant

Mr. A. Kongri, for the First Respondent

Mr. H. Nii, for the Second Respondent

23rd November, 2018

1. KANDAKASI J: This is an application by Mr. Lucas Dekena (Dekena) under Order 11, Rule 32(3) of the Supreme Court Rules (SCR), which is an application for leave for a “slip rule” application.

2. The main and determinative argument for Mr. Dekena is that, the full Court did not address his objections to the competency of the Respondents, Hon. Nick Kuman and the Electoral Commission objections to the competency of his substantive review application. In response, Hon. Kuman and the Electoral Commission argue for a dismissal of this application saying the Court did deal with the issue and disposed it off on 27th June 2018 at the hearing of their objections. They also point out that this application is incompetent because it has been filed outside the 21 days prescribed by O.11, r.32(1). Further they argue that, Mr. Dekena’s application does not otherwise meet the requirements for a successful slip rule application.

Relevant issues

3. Clearly therefore the issues for this Court to deal with are these:

(1) Is the Application incompetent for it being filed outside the 21days prescribed by O.11, r.32 (1) of the Supreme Court Rules?

(2) Has Mr. Dekena made out a case for grant of leave for him to proceed with an application under the slip rule?

Background facts

4. The background to this application is straight forward. The then Chief Justice, Sir Salamo Injia sitting as a single judge of the Supreme Court granted Mr. Dekena leave to pursue a substantive review application against a decision of the National Court which dismissed his election petition against the Hon. Kuman’s election victory out of the 2017 National General Elections. The petition preceded both men claiming victory with two writs surfacing and both men turning up on the first sitting of Parliament after the Elections claiming the same seat, namely, Gumini Open Electorate in the Simbu Province. The Electoral Commission recognized the Hon. Kuman as the duly elected member for the relevant seat.

5. After the grant of leave, Mr. Dekena filed a substantive review application. That application was met with objections to its competence from Hon. Kuman which was supported by the Electoral Commission. The main ground for the objection was that, the grounds for review were not the same grounds for which leave was granted and that, completely new grounds for which leave were not sought and granted, were included. The Respondents proceeded with their arguments in support of the objection. At the end of their arguments, Mr. Dekena first took issue with the competency of the objection to competency. The main basis for that objection (preliminary issue) was that Hon. Kuman in his objection cited the wrong reference, namely, O.5, r.35 instead of r.36 of the SCR. By reason of that wrong reference, so argued learned Counsel for Mr. Dekena, the objection to his client’s review application was incompetent and failed to correctly invoke the jurisdiction of the Supreme Court.

6. The Court meaningfully engaged with learned Counsel for Mr. Dekena bearing in mind the law on point as represented for instance, by the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama

(2010) SC1064.

11 where the Court said

“27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v. Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

‘It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.’”

7. The full Court was also aware of the circumstances in which the principle was applied in the above case. There the competency issue allowed to be raised at the review level concerned competency of the petition and not the processes that was before the Supreme Court. That as far as the Court was concerned meant that it is not too late to raise competency issues concerning originating process at the Supreme Court level reviewing on appeal or review a decision of a trial court.

8. The discussion between the Court and learned counsel resulted in Counsel for Mr. Dekena deciding to abandon his client’s preliminary...