Henry Tutuwo Ame v Bire Kimisopa and the Electoral Commission of Papua New Guinea (2020) SC1958

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 05 June 2020
• Court: Supreme Court
• Citation: (2020) SC1958
• Docket Number: SC REVIEW (EP) No 2 of 2019
• Year: 2020
• Judgement Number: SC1958

Full Title: SC REVIEW (EP) No 2 of 2019; Henry Tutuwo Ame v Bire Kimisopa and the Electoral Commission of Papua New Guinea (2020) SC1958

Supreme Court: Makail J

Judgment Delivered: 5 June 2020

SC1958

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 2 OF 2019

BETWEEN

HENRY TUTUWO AME

Applicant

AND

BIRE KIMISOPA

First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail J

2020: 3rd & 5th June

SUPREME COURT – Practice & Procedure – Election petition review – Application for leave – Leave sought to make slip rule application – Application of relevant principles on slip rule application – Supreme Court Rules – Order 11, rule 32

SUPREME COURT – Practice & Procedure – Form of application – Objection as to form raised in submissions – Form of application filed – Supreme Court Rules – Order 11, rule 32 – Form 4

SUPREME COURT – Practice & Procedure – Application for leave – Slip rule application – Jurisdiction of judge – Source of power – Invoking of correct source of power – Supreme Court Rules – Order 11, rule 32

SUPREME COURT – Practice & Procedure – Application for leave to make slip rule application – Pleading of relief – Whether leave should be sole relief pleaded and sought in application – Supreme Court Rules – Order 11, rule 32 – Form 4

Cases Cited:

Henry Tutuwo Ame v. Bire Kimisopa & Electoral Commission (2020) SC1929

Application by James Lovika & 79 Others v. Carl Marlpo & The State (2020) SC1916

The State v. The Transferees (2016) SC1488

Counsel:

Mr. G. Sheppard with Mr. G. Purvey, for Applicant

Mr. B. Lomai, for First Respondent

No appearance, for Second Respondent

RULING

ON APPLICATION FOR LEAVE TO MAKE SLIP RULE APPLICATION

5th June 2020

1. BY THE COURT: This is an application for leave to make a slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules (SCR) or Section 155(4) of the Constitution.

2. Order 11, rule 32 confers jurisdiction on “a judge of the Court making the order from which the application arises to grant leave for the application to proceed”.

3. It follows that as a member of the Court who made the decision to dismiss the review, I am properly seized of the matter and will consider it.

Background Facts

4. On 3rd March 2020 the Supreme Court comprising of myself, Murray and Polume-Kiele JJ upheld the first respondent’s application to dismiss the review for non-compliance with Court order and want of prosecution.

5. We found that the applicant failed to file and serve a Review Book by the date fixed by the Court, at that time, the Chief Justice. Secondly, the applicant failed to prosecute the review with due diligence.

6. The dismissal of the review brought to an end the election petition challenging the election of the applicant as member for Goroka Open electorate in the 2017 General election whereby the National Court had ordered a by-election. I refer to the full text of the judgment in Henry Tutuwo Ame v. Bire Kimisopa & Electoral Commission (2020) SC1929.

Objection to Competency

7. The first matter for my consideration is the competency of the application for leave. It was brought up by the first respondent in submissions and without notice.

8. Relying on the recent decision by the Deputy Chief Justice in Application by James Lovika & 79 Others v. Carl Marlpo & The State (2020) SC1916 delivered on 13th February 2020, the first respondent argued that the application for leave is incompetent for two reasons.

9. First, as was held in James Lovika case (supra) Section 155(4) of the Constitution is a wrong provision for the applicant to rely on to confer jurisdiction on the judge to grant leave to make a slip rule application.

10. Secondly, it is not open to the applicant to plead and seek a substantive or final relief/order, in this case, the grant of the application for slip rule in the application for leave.

11. The applicant argued that he was not given prior notice in the appropriate form of the objection contemplated by the first respondent and has been disadvantaged in its defence.

12. As to the merits of the objection, he argued that I should distinguish the James Lovika case (supra) because in this case, the relief or order pleaded and sought for the grant of the application for slip rule formed part of the application for leave.

13. This is because the review itself has been concluded when it was dismissed. Thus, the application for leave must be treated as a final application because its dismissal will terminate the application for slip rule and deny the applicant an opportunity to reargue the application to review.

14. Putting to one side the argument on the need to give proper and adequate notice of the objection, the arguments for and against the correct source of power and invoking of the Court’s jurisdiction do not detract from the fact that the application for leave clearly cited Order 11, rule 32 of the SCR as the jurisdictional basis of the application.

15. The reference to Section 155(4) of the Constitution is an alternative source of power being sought to be invoked by the applicant. As far as I can recall, it was not relied upon by the applicant when he moved the application for leave.

16. This is the distinction between this case and James Lovika case (supra). In that case, the applicants had invoked both sources of power under Order 11, rule 32 of the SRC and Section 155(4) of the Constitution to mount the application for leave because of the use of the word “and” in the application for leave rather than “or” as in this case. (Underlining is mine).

17. This is why they were criticised by the Deputy Chief Justice for abusing the power of the Court under Section 155(4) of the Constitution. His Honour observed, and I entirely agree, where there are remedies provided by other laws such as Order 11, rule 32 of the SCR, the inherent powers of the Court under Section 155(4) of the Constitution should not be used.

18. As to the first respondent’s argument that the applicant erroneously sought a substantive or final relief/order in the application for leave, it is quite clear that the primary relief or order being sought at this stage is leave.

19. If leave is granted, the next stage is the hearing of the application for slip rul. Where the application is made out, an order for grant of the application for slip rule will follow suit. In that case, it will be a matter for the full Court to determine and Murray J and Polume-Kiele J will be called upon to participate at the hearing.

20. The other reason is this, as acknowledged by the Deputy Chief Justice at para. 15 in James Lovika case (supra), Order 11, rule 32 does not refer to a prescribed form for an application for leave to make a slip rule application including an application for slip rule itself.

21. On the other hand, case law in The State v. The Transferees (2016) SC1488 and adopted in James Lovika case (supra) proposed Form 4 of the SCR be adopted for Order 11, rule 32 application.

22. However, Form 4 is of a general application. When I read it, it does not expressly prohibit an applicant in Order 11, rule 32 application from seeking both an order for leave to make slip rule application and order for slip rule application in one application document using Form 4.

23. Similarly, Order 11, rule 32 is not expressed to exclude a substantive or final relief or order from being pleaded and sought in the application for leave to make a slip rule application.

24. While as a matter of form, I am accepting that Form 4 may be the appropriate Form to adopt for Order 11, rule 32 application it is open to debate whether leave should be the sole relief or order that must be pleaded and sought in the application document using Form 4.

25. For now, I prefer the view that an applicant who has pleaded and sought both an order for leave and final relief/order in Order 11, rule 32 application be permitted to move the application for leave only. The final relief/order is not relevant and can be disregarded for the time being.

26. For these reasons, I will allow the application in its present form to progress and dismiss the objection.

Principles of Slip Rule Application

27. Turning to the question of leave, I am going to apply the following principles to the facts of this case. These principles have been adopted by the Court in many past cases which need not be recited here. It suffices to say that amongst these principles are that an applicant must demonstrate that the slip or misapprehension of fact or law must not be of the applicant’s making, or that it is not to allow rehashing of arguments already raised and that it is not to allow new arguments that could have been put to the Court earlier.

28. The onus is on the applicant to demonstrate that the application has a strong chance of success.

Merits of Leave

29. The applicant contended that if leave is granted, he will be able to show that we slipped in our decision in three respects:

29.1. First Slip – Clear and unambiguous order of 3rd June 2019.

29.2. Second Slip – Application to dispense.

29.3. Third Slip – Want of prosecution –...