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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REVIEW NO. 23 OF 2004
REVIEW PURSUANT TO THE NATIONAL CONSTITUTION
IN THE MATTER OF THE ORGANIC LAW ON THE NOMINATION OF GOVERNOR-GENERAL
AND IN THE MATTER OF AN APPLICATION TO RECALL AND REVIEW A SUPREME COURT DECISION IN RELATION TO THE NOMINATION OF GOVERNOR GENERAL OF PAPUA NEW GUINEA
APPLICATION BY SIR PATO KAKARAYA
BETWEEN:
SIR PATO KAKARAYA
Applicant
AND:
SIR ALBERT KIPALAN
First Respondent
AND:
ILA GENO, CHIEF OMBUDSMAN
Second Respondent
AND:
THE NATIONAL PARLIAMENT
Third Respondent
AND:
JEFFREY NAPE – ACTING SPEAKER OF NATIONAL PARLIAMENT
Fourth Respondent
AND:
ANO PALA, CLERK OF NATIONAL PARLIAMENT
Fifth Respondent
AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Respondent
AND:
THE RT. HON. SIR MICHAEL SOMARE, PRIME MINISTER
Seventh Respondent
Waigani: Kapi CJ, Injia DCJ, Hinchliffe, Salika & Sawong JJ
2004: 11th, 18th June
SUPREME COURT – Jurisdiction to re-open – Application under slip-rule principle – Decision in an action brought under Constitution, s.18(1) (Original jurisdiction) – Misapprehension of fact, mixed fact and law or law alone – Process of electing National Parliament’s nominee to position of Governor-General – No misapprehension established – Application an abuse of process – Application dismissed with costs.
Cases cited:
Avei v Maino SC648 dated 7th July 2001
Aviah Aihi v The State [1981] PNGLR 81
Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1992-1993) 176 CLR 300
Chan v Aphraim Apelis & Another (No. 2) SC591 dated 19th April 1999
Haiveta v Wingti (No. 1) [1994] PNGLR 160
Henzy Yakam v. Michael Nali & Others, SC553 27th November 1997
Lambu v Ipatas, and Others SC645 dated 28th May 1999
Polye v Sauk and the Electoral Commissioner SC643 dated 24th November 1999
Re Wili Kili Goiya [1991] PNGLR 170
Richard Dennis Wallbank & Jeanette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78
SC OS No. 2 of 2003, SC721 dated 21 November 2003
SCR No. 3 of 1999 (No. 2) Unreported, Unnumbered Supreme Court Judgement dated 23 July 2001
SCR No. 3 of 2000 SC722 dated 31 December 2002
Counsel:
B. Narakobi with C. Narakobi for the Applicant
L. Henao for the First Respondent
L. Yalo for the Second Respondent
J. Nonggorr for the Third, Fourth and Fifth Respondents
S. Singin for the Sixth and Seventh Respondents
18th June 2004
DECISION
BY THE COURT: This is an application to the Supreme Court by Sir Pato Kakaraya ("the Applicant") for the Court to re-open and review this Court’s decision delivered on 31st March 2004 in SC 03 of 2003, (Unreported judgment of the Supreme Court No. SC728). The application is made in the nature of what is commonly referred to in our jurisdiction as a "slip-rule application."
The orders sought to be reviewed are as follows:
FACTS
The background facts to this application are that on 4th December 2003, the National Parliament voted on three candidates and elected the Applicant as its nominee for the post of Governor-General of Papua New Guinea. On 16th December 2003, the Queen and Head of State executed an instrument of appointment, appointing the Applicant as Governor-General, with effect from midnight 19th November 2003. On the next day, Sir Albert Kipalan (the First Respondent) filed proceedings in the Supreme Court in SCOS No. 3 of 2003 challenging the election of the Applicant as Governor-General. On 31st March 2004, the Supreme Court handed down its decision declaring that the Parliament’s decision to nominate the Applicant as Governor-General and his subsequent appointment as such, was null and void. The Court also made some consequential orders and for a fresh election to be conducted for the post of Governor-General.
On Wednesday 21st April 2004, the Applicant filed a Notice of Motion seeking to re-open and review the Supreme Court judgment of 31st March 2004. That matter came up before Sakora, J as a single judge of the Supreme Court. His Honour heard the application and on 26th April 2004 he dismissed the application as being mischievous and without any merit. This decision is not the subject of review before us.
On Tuesday 27th April 2004, the Parliament was recalled by the Acting Speaker and proposals for nominations were called for. The Applicant was one of the persons proposed. The Clerk of the Parliament was to conduct a ballot on 11th May 2004.
On 29th April 2004, the Applicant filed the present application. On Tuesday 11th May 2004 the National Parliament met to elect its nominee but the Acting Speaker notified Parliament that all proposals had been rejected by the Clerk. Two days later on 13th May 2004, the Acting Speaker recalled the Parliament and it met and fresh proposals were called for. The closing date for the proposals was set for 20th May 2004 and the election was set for 27th May 2004.
On 13th May 2004, the matter came before Kapi CJ for directions hearing. Pursuant to directions issued, the Applicant filed an Amended Application on 19th May 2004.
The Applicant did not seek an order restraining the Parliament from proceeding to elect its nominee. The Applicant was proposed as a candidate in this election. It is agreed between the parties before us that the Applicant through his counsel indicated to the Chief Justice during the directions hearing that if his client won this election, he would not pursue the present application. On 27th May 2004 the Parliament met to nominate the next Governor-General. Sir Paulias Matane was elected as the Parliament’s nominee. The Applicant was not a successful candidate. There is no proceedings filed in Court to contest this nomination.
Soon after the Parliament decided to nominate Sir Paulus Matane to be the Parliament’s nominee for the position of Governor-General, the Applicant returned to this Court to prosecute the present proceedings.
THE SUPREME COURT’S DECISION DATED 31 MARCH 2004.
On 31st March 2004 this Court in a unanimous decision, declared, amongst other things that the Parliament’s election of the Applicant was invalid and that his subsequent appointment by the Queen and Head of State was null and void. The reasoning of the Court may be summarised as follows:
The Supreme Court held that the Applicant’s Proposal Form was defective, in that it was not in the prescribed form as required under the Organic Law on the Nomination of the Governor-General ("Organic Law"). When the Proposal Form was handed to the Clerk, he failed to reject it and in doing so allowed the Applicant’s defective form to progress to the floor of Parliament.
In its decision the Court rejected the Applicant’s arguments on the interpretation of S.4 of the Organic Law. The Court found that the ballot that was conducted was in breach of S.9(5) of the Organic Law. The Court also considered S.86(4) of the Constitution. It held that provision did not make the decision of the Queen and Head of State, to appoint the Applicant the Governor-General, non-justiciable. However the nomination of the Applicant was done in a manner contrary to the provision of the Constitution and the Organic Law. The Court in its decision also considered and rejected the Applicant’s submissions regarding the application of schedule 2.11 of the Constitution.
We now turn to the grounds for review in this application.
GROUNDS FOR REVIEW
The Applicant has raised thirty-three (33) grounds on which, he submits, the Court’s judgment of 31st March 2004 should be re-opened and reviewed. It is not necessary to set out each of those grounds separately. They fall into two broad categories, - namely errors of fact and mixed fact and law or errors of law. Each of the grounds will be summarized and considered under each of these two broad categories.
Error of Fact and Mixed Fact and Law
The sub grounds under this category primarily concern the issue of the dating of the Applicant’s Proposal Form. The relevant subgrounds are paragraphs 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.9, and 6.2.10. In grounds 6.2.2, 6.2.3, 6.2.5, 6.2.7, 6.2.8, 6.2.9 and 6.2.10, the Applicant alleges that this Court misapprehended the facts, in ruling that the Applicant’s Proposal Form was defective. It is pleaded that the Court misapprehended the facts because there was undisputed evidence that the Applicant and his proposer signed the Proposal Form on the 25th November 2003 and as such there was no error in relation to the date of the Proposal Form. It was further pleaded that the defect in the Proposal Form relating to the incorrect date being inserted was not material to invalidate the result of the nomination. It was further pleaded that the Court misapprehended the facts by relying on extraneous and non agreed facts that the dating of the Proposal Form was wrong.
In ground 6.2.4 the Applicant claims that the Supreme Court’s finding that the Clerk of Parliament should have rejected the Proposal Form was unreasonable and the Clerk’s decision to accept the Applicant’s amended Proposal Form was reasonably justifiable within the meaning of ss.39 and 41 of the Constitution.
In grounds 6.2.6. the Applicant claims that pursuant to Section 185 and Schedule 1.16 and Schedule 1.19 of the Constitution, the Court should have concluded that the Applicant and his proposer signed the form on 25th November 2003.
Errors of Law
These are pleaded in paragraphs 6.3.1 to 6.3.23 inclusive. These maybe summarised as follows:
schedule in the Unreported Case of Henzy Yakam and Michael Nali v. National Newspaper & Others SC553 dated 27 November 1997.
JURISDICTION
As the application raises the issue of jurisdiction, we wish to address that issue first.
The Amended application filed on 19 May 2004 states that the application is purportedly made under s.155(2), (a) and (b); s.155(3)(d); S.155(4); S.158(2); S.162(1)(a) & (b), and or section schedule 2.2 and 2.3 of the Constitution. The Amended application then states the application is also made under the Supreme Court’s decision in SCR No. 4 of 1998 In re Chan v Aphraim Apelis and other Unreported Supreme Court Judgement No. SC591 dated 9th April 1999. This case deals with the Supreme Court’s inherent power to re-open the case to correct a mistake made in its earlier decision under the slip-rule principle.
The Applicant in this case, has sought a review of this court’s earlier decision, under what appears to be a mixture of grounds of appeal, grounds of review and grounds for re-opening of a case under the slip-rule principle. It is submitted for the Applicant that the Court should not restrict itself to "any constraining rules on the slip-rule or on appeals", but go beyond to apply relevant sections of the Constitution to review its "own decision and make ...... correctional orders, so as to do justice." The general ground of the application for review is stated to be that this Court "proceeded on clear misapplication of the law and fact giving rise to Public interest in the application of the rule of law, such as to justify, as a matter of public policy interest, a review and correction of the mistakes in the decision", (para 4.1 of Amended Application). In para 6 of the application, the Applicant sets out some thirty three (33) instances where this Court is said to have committed errors of fact alone or mixed fact and law or law alone.
It is clear to us that the Applicant has sought a review of this Court’s earlier decision under the provisions of the Constitution, mentioned above, by way of or in effect amounting to an appeal (S.155(3)(a)), or a review (S.155(2)(b)) under the pretext of an application under the slip-rule principle. It is also clear to us that the Applicant has misunderstood the Supreme Court’s power on appeal from decisions of the National Court and the inherent power of the Supreme Court to review its own judgements and judgements of the National Court.
In our view, the provisions of the Constitution relied upon by the Applicant do not confer on this Court a jurisdiction to re-open the case and review its own decision by way of an appeal, in respect of an action brought under the original jurisdiction of the Supreme Court under S.18(1) of the Constitution. The decision of the Supreme Court in respect of an action brought under S.18(1) is final and not subject to further appeal. There is no provision in the Constitution or the Supreme Court Act for an appeal against such decision. A party aggrieved by the decision of the Supreme Court under S.18(1) has no right of appeal against that decision.
The Applicant relies on S.155(2)(a) of the Constitution. Section 155(2)(a) says the Supreme Court is the final Court of appeal from a decision of the National Court. In the present case, this Court has no jurisdiction to hear an appeal against its own decision made under S.18.
Realising this limitation, the Applicant turns to this Court’s inherent power of review in S.155(2)(b) of the Constitution. Section 155(2)(b) vests in this Court the "inherent power to review all judicial acts of the National Court." However, this Court is not being asked to review a decision of the National Court.
The Applicant relies on Section 155(3)(d) of the Constitution. However, Section 155(3)(d) relates to the inherent review powers of the National Court. The Applicant is not making this application before the National Court.
The Applicant then relies on Section 155(4) of the Constitution. Section 155(4) relates to the Supreme Court’s inherent power to make other orders as are necessary to do justice in the circumstances of a particular case. Our short response at the outset is that, this subsection cannot be used to create or re-create a primary statutory right which has been either lost as in Aviah Aihi v The State [1981] PNGLR 81, or which is non-existent in law, as in this case. This power is exercisable only where the Applicant has a claim in respect of primary right before the Supreme Court which is being determined. This subsection is inapplicable to a situation where the Supreme Court has already determined primary rights of parties in the matter before it and the Court is in effect asked to re-consider its earlier decision.
It is settled law that the Supreme Court, the highest Court in the land, has jurisdiction to re-open and review its own decision in appropriate cases. This jurisdiction is inherent in the fact that it is the court of last resort. This is a principle of common law (Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1992-1993) 176 CLR 300) adopted as part of he underlying law under Schedule 2.2 of the Constitution (see Wallbank & Minifie v The State [1994] PNGLR 78, SCR 54 of 1998; Re Chan v Apelis and Another (No. 2) (Unreported Judgment of the Supreme Court dated 19th April 1999, SC591), SCR 11 of 1999; Re Lambu v Ipatas & Others (Unreported Judgment of the Supreme Court dated 28th May, 1999, SC645), SCR 22 of 1999; Re Polye v Sauk and the Electoral Commissioner (Unreported Judgment of the Supreme Court dated 24th November 1999, SC643), SCR 8 of 1999; Re Maino v Avei and the Electoral Commission (Unreported Judgment of the Supreme Court No. SC648 dated 7th July 2000); SCR 3 of 1999 – Special Reference Pursuant to Section 19 – Re Calling of Meetings of the Parliament (Unreported Judgment of the Supreme Court dated 23 February 2001.
Dr Nonggor in his submissions drew our attention to the view expressed by former Chief Justice, Sir Arnold Amet in SCR 3 of 1999 (No 2) (supra) namely, that the jurisdiction to review is expressly granted by s 155(4) of the Constitution without conclusively determining the issue. It was not necessary to decide the point in that case.
We do not consider that it is necessary to determine this issue in the present case either. However, we offer the following opinion that s 155(4) of the Constitution does not expressly grant jurisdiction in terms for a further review of a decision of the Supreme Court after exercising the power of review under s 155(2)(a) of the Constitution (and under the provisions of the Supreme Court Act), nor does it expressly grant jurisdiction to review a decision of the Supreme Court under s 155(2)(b) of the Constitution. Section 155(4) is expressed in terms of discretionary remedies that may be granted by both the National and the Supreme Courts in the circumstances of a particular case.
If the view expressed by the former Chief Justice is correct, it could be argued that the National and the Supreme Courts would have concurrent jurisdiction to review a decision of the Supreme Court.
We do not consider that the Constitution intends that the National Court could review a decision of the Supreme Court in this way. Section 155(4) grants jurisdiction to both the National and the Supreme Courts to make orders in the nature of prerogative writs for which the National and the Supreme Courts respectively have power to review decisions of subordinate tribunals under the law. This is consistent with the view expressed of s 155(4) by this Court in Avia Aihi [1981] PNGLR 81.
The Applicant also relies on Section 158(2) and S.162(1)(a) and (b) of the Constitution. These provisions make general reference to the interpretive and enforcement jurisdiction of the Supreme Court. They by themselves do not confer a jurisdiction to review its earlier decision.
The Applicant relies on Schedule 2.2 and S.2.3 of the Constitution which relate to adoption of the common law as part of the underlying law and the development of the rules of the underlying law. In the present case, we are applying principles of the common law which have already been adopted as part of the underlying law.
In our view, reliance on all these provisions of the Constitution are misconceived. These provisions are irrelevant to the issue of the Supreme Court re-opening the case to review its earlier decision. In our view, all the grounds of review and the manner in which they were argued before us, shows that the Applicant is in effect, appealing against or seeking a review of the whole judgement. There was no or only fleeting references to the slip-rule principle in the entire course of the submissions by the Applicant’s counsel. This is not permitted by the provisions of the Constitution we have referred to. For these reasons, we are of the view that the application is clearly misconceived and should be dismissed. It is also an abuse of the process of this Court to invoke these provisions of the Constitution, which clearly do not confer a jurisdiction on this Court to re-open the case and review its previous decision, in effect, by way of an appeal or a review.
SLIP-RULE PRINCIPLE
In the alternative, the only avenue open, which is a last resort, is under the principles developed by this Court, to avail itself of the opportunity to correct some glaring error or mistake, under the slip-rule principle. Therefore, we wish to determine if the Applicant has made out a case under the slip-rule principle. For the purpose of this exercise, we will treat the grounds set out in para 6 of the Amended Application to be relevant under the slip-rule principle.
The issue in this case is whether the grounds raised by the Applicant fall within the slip-rule principles?
In Osborne’s Concise Law Dictionary Sixth edition, at p.307 the common law "slip-rule" is defined as follows:-
"Slip rule. Clerical mistakes, accidental omissions etc. in judgements and orders may be corrected by the Court at anytime on application by motion or summons"
In Richard Dennis Wallbank and Jeanette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78, the Supreme Court considered an application by the appellants to re-open the appeal after reasons had been delivered. The Court held that on appeal, it has a discretionary power to correct its own mistake. Such a mistake should be seen to be little short of extraordinary and affect an unsuccessful party.
The Court in Wallbank v The State (supra) at page 100 - 101 referred to the Australian High Court decision of Autodesk Inc. v Dyason (No.2) of (1993) 67 CLR 270 where Mason CJ at page 302 said the following:-
"But these statements do not exclude the exercise of jurisdiction to re-open a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. So much was acknowledged by Brennan, Dawson, Toohey and Gaudron JJ. In Smith v N.S.W Bar association (8) when their Honours said: ‘If reasons for judgment have been given, the power is only exercised if there is some matter calling for review.’ It is sufficient to give three examples. In re Harrison’s Share under a Settlement (9), orders were set aside following a decision of the House of Lords which overruled authorities on the basis of which the orders had been made. In New South Wales Bar Association v. Smith (10), the New South Wales Court of appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings (11). And, in Pittalis v Sherefettin (12), a judge recalled orders the day after they were made upon determining that he had ‘erred in a material matter in his approach to the case’ (13).
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a 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. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide, a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
The Court in Wallbank v State (supra) went on at p.101 and said the following:-
"In civil appeals, those matters found relevant canvassed by Mason CJ, spring from that Court’s inherent powers. This Court’s powers on appeal are found in S.16 of the Supreme Court Act Ch 37 and do not envisage any power to re-open the appeal after judgement. There must be a discretionary power in the Court to correct its own mistake, but in this case, we are not minded to find that a mistake has occurred, or that there has been an error in need of correction.
Since this Court is the final court of appeal, as in the High Court of Australia in that country’s judicature, we consider Mason CJ’s comments apposite, subject to a proviso. This Court should only consider such applications where there has been a mistake which could be said to be little short of extraordinary and which affects an unsuccessful party."
The Court was also of the view that the public interest in the finality of civil litigation must preclude all but the clearest "slip" error as a ground to re-open.
These principles have been adopted as part of the underlying law by the Supreme Court in the cases we set out earlier at page 13 hereof. Also see Re Wili Kili Goiya [1991] PNGLR 170. The principles are conveniently summarized by counsel for the Chief Ombudsman in his written submissions. They include consideration of the following:
(1) There is a substantial public interest in the finality of litigation.
(2) On the other hand, any injustice should be corrected.
(3) The Court must have proceeded on a misapprehension of fact or law.
(4) The misapprehension must not be of the applicant’s making.
(5) The purpose is not to allow rehashing of arguments already raised.
(6) The purpose is not to allow new arguments that could have been put to the Court below.
In order to determine whether this jurisdiction may be exercised in the present case, it is necessary to examine the nature of the issues that came before the Court in the first instance.
The central issue before the Court in SCOS 3 of 2003 was whether the nomination of the present Applicant by Parliament for appointment as Governor General was valid.
In considering that issue, the Court also had to consider other related and critical issues. These included whether the Applicant’s Proposal Form was valid, if it was not what was required to be done to comply with the Organic Law and what is the correct procedure for the nomination for appointment of Governor-General on the floor of Parliament pursuant to Section 4 and Section 5 of the Organic Law.
These issues then necessarily involved the interpretation and application of the relevant provisions of the Constitution and the Organic Law on the Nomination of the Governor-General.
In the present case, Counsel for the Applicant submits that the Court had misapprehended the facts and law, such that the Court should reopen and review its own decision.
In relation to the grounds relating to misapprehension of facts, and mixed facts and law or law alone, the submission by Counsel for the Applicant attempts to reargue, inter alia, the provisions of Sections 4, 5 and 9 of the Organic Law. He submits that there was no requirement under Section 4 to date the Proposal Form on the day the Proposal Form is filled out by the proposer and signed by the proposer and the proposed. He submitted that the minimum requirement of s.4 does not include the issue of dating the Proposal Form. It was submitted there was no requirement in the Organic Law that if the date of the Proposal Form is not inserted, the form is invalid. In so holding the Court read more into the said provision.
Next it was argued that from the foregoing the Clerk and the Court were under no duty to investigate whether the date was inserted on the date the Proposal Form was filled out or on any other date.
He next argued that the Clerk did not reject the Proposal Form, but he insisted that it be dated, which was done. Thus the form was properly and fully completed. And it follows that the Court misapprehended the law when the Court said that the "wrong date was inserted". He submitted that no wrong date was inserted.
Mr. B. Narokobi submitted that the proposer and the proposed inadvertently left out the dating. This was however cured by schedule 1.16 of the Constitution. By the operation of this provision the date was validated. He argued that had the Supreme Court applied its mind to Schedule 1.16 it would not have fallen into such an error. He submitted that by the time the nominations were closed, the Applicant had complied fully with the mandatory requirements of Section 4 of the Organic Law.
The next issue he argued relates to the Clerk’s powers of accepting or rejecting a Proposal Form. He then argued about the interpretation and application of Section 5 of the Organic Law. Hence, he submitted that had the Clerk rejected the form he would have taken other steps required of him under s. 5 of the Organic Law. But the Clerk did not do that, that he didn’t reject the applicant’s Proposal Form, and so the applicant was denied his right of appeal to the National Court under s. 5(3) of the Organic Law. This he submitted was wrong.
In relation to s.9(5) of the Organic Law, Mr B. Narakobi argued that the Court was wrong in interpreting s.9(5) to require the Speaker to cast his vote after the Second ballot because if he did cast his vote in favour of one of the candidates with equal votes, it could still result in an equality of votes between either Sir Pato or Sir Paulias and Sir Albert. The Speaker correctly called for a further ballot between Sir Pato and Sir Paulias.
APPLICATION OF SLIP RULE PRINCIPLE TO DECISIONS UNDER S.18(1) OF THE CONSTITUTION.
The slip-rule principle has been applied to review an advisory opinion of the Supreme Court under s 19 of the Constitution, a decision on appeal under s 155(2)(a) of the Constitution (and the Supreme Court Act) and a decision on reviews under s 155(2)(b) of the Constitution. This is the first case in which the Court has been asked to review its decision in the exercise of its original jurisdiction under s 18(1) of the Constitution. None of the parties doubts the extension of the slip rule to a decision of the Court under s 18(1) of the Constitution. We have no difficulty in extending the application of the slip-rule to a decision of the Supreme Court under s 18(1) of the Constitution.
APPLICATION OF SLIP-RULE PRINCIPLE TO THIS CASE
We propose to consider the submissions that have been made under two broad categories. First we consider whether the Court had made any errors on the facts alone or mixed facts and law.
Misapprehension of Mixed Fact and Law.
The application raised numerous grounds under this category. It is not necessary to set them out in any great detail. They related to the question of whether the Proposal Form for the Applicant was defective.
Most of the facts in this respect were agreed and documentary evidence was also admitted by consent of all parties. Any action brought under s 18(1) of the Constitution before the Supreme Court in its original jurisdiction is commenced by an originating process. As such the Court has jurisdiction to make findings of fact on the evidence placed before it.
In the present case, the Court had to determine when the proposal to nominate the Applicant was made. The Court concluded as a matter of agreed fact that the form was not dated in the first instance to indicate when the Proposer proposed the Applicant. There can be no misapprehension of this fact.
The Court further concluded from the uncontested affidavit evidence placed before it by all parties that the Proposal Form was dated on 28th November. There can be no misapprehension of this fact either. This is apparent from the form itself. On this premise, the Court concluded:
"In this case, the proposal for nomination was made on the 28th November, 2003 on the face of the record. This factor must in turn must adversely affect the validity of the signatures of those Members of Parliament who signed their support on the 25th, 26th and 27th November, 2003. The result is that the proposal only has two (2) members of Parliament validly supporting it. The consequence would be that the Proposal Form ought to have been rejected by the Third Defendant under s 5(1)(b) of the Organic Law.
It is apparent from the Third Defendant’s affidavit that he did not notice this glaring error on the face of the document in so far as the dates on the forms were concerned. The Third Defendant ought to have been more careful and a lot more vigilant when the document came through his hands and his office."
The Court considered all the evidence in relation to the date of the proposal and concluded:
"The date was inserted by the Proposed and probably explains why the wrong date was inserted. In the result, he post dated the Form after the Proposer and the fifteen (15) supporters have signed the form on earlier dates. It is our view that no amount of explanation will cure the defect on the face of the form."
The grounds raised by the Applicant which questions these findings were fully argued and considered by the Court. The Applicant is not entitled to rehash the same arguments nor can he use the application as a back door method to re-argue the case.
The Court also found as a matter of fact that the Clerk of the Parliament rejected the Proposal Form when it was presented in the first instance. It was open to the Court to make this finding on the evidence and the Applicant is not entitled to raise this on an application for review under the slip-rule principle for the same reasons we have outlined above.
The grounds raised on misapprehension of fact are tantamount to an appeal against finding of facts by the Supreme Court. There is no such right of appeal. An application on the slip-rule cannot be used by way of an appeal.
So far as the finding of fact that the Clerk rejected the Applicant’s Proposal Form gives rise to an issue of law, namely, whether the Clerk has any power to amend a defect on a mandatory requirement, such as the date of proposal, the Court concluded that the Clerk has no power to make such an amendment. The Court came to this conclusion on the basis that there is no such power expressed in the Organic Law.
In addition, the Court considered that a person whose Proposal Form is rejected by the Clerk for non-compliance of a mandatory requirement, has a right to appeal to the National Court under s 5(3) of the Organic Law. The fact that there is an alternative view of the law favourable to the Applicant is not a valid ground for review in a slip-rule application.
The Applicant did not take up an appeal under s 5(3) of the Organic Law because he chose not to do so by going back to the Clerk. In so doing, he forfeited the right to appeal. In the circumstances, he cannot rely on the failure to appeal as a proper ground for review by way of a slip-rule application.
So far as the Applicant relies on misapprehension of mixed fact and law in relation to the issue of whether the Proposal Form was defective, we conclude that he failed to demonstrate any misapprehension of fact or mixed fact and law.
Under this category the Applicant points to ten instances, which he claims the Supreme Court is said to have fallen into error, in that the Court has misapprehended the facts. These are set out in paragraphs 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6, 6.2.7, 6.2.8, 6.2.9, and 6.2.10. All these paragraphs, with the exception paragraph 6.2.10, relate to the evidence of the date of the Applicant’s proposal.
Counsel for the Applicant submitted that the Court had "no jurisdiction when it made a decision outside the agreed facts" and to the extent the Court went outside the agreed facts, it acted in excess of its jurisdiction.
The Respondents submit that the Court did not make any errors on the facts based on all the relevant uncontested evidence before it. It was submitted that the submissions by the Applicant were misconceived and without any merit. The evidence came from all the uncontested affidavit evidence and that the Court was entitled to rely not only the "agreed facts" but also on the other relevant uncontested evidence properly before it. The respondents submit that these grounds must be dismissed.
Ground 6.2.1
In ground 6.2.1 it is alleged that there were no facts before the Court that the Clerk had rejected the Proposal Form and that he was entitled in the exercise of his discretion to allow the form to be dated.
We consider these grounds to be unmeritorious. The uncontroverted evidence before the Court was that the form was not dated on the day it was filled out and signed by the proposer and the Applicant. They did these on 25th November but that date was not inserted on the form on that day. That form was presented to the Clerk without that date (25th November). When the form was presented to the Clerk on 28th November it did not have the date 25th November on it. It was an incomplete form. The Clerk advised the Applicant that he would not accept the Proposal Form unless it was dated. This was on 28th November. The Applicant went away, filled in the date 28th November himself and returned and handed the form to the Clerk. These were facts deposed to in the affidavits of both the Clerk and the Applicant. The Court set out these facts in its decision. In its decision the Court endorsed an earlier ruling in SCOS 2 of 2003 that Section 4 of the Organic Law is in mandatory terms. The Clerk had no discretion to allow the Applicant to amend the Proposal Form and resubmit it to the Clerk. There is nothing in section 4 of the Organic Law which gives any discretion to the Clerk. That provision is in mandatory terms. It sets out what form must be used to propose a candidate for nomination as the Governor-General and how that form must be filled. That form is part and parcel of section 4 and these must be read together. The Applicant’s submission that the Clerk was perfectly entitled in law to exercise his discretion to allow the form to be dated or amended is wrong in law. That submission is misleading and without any merit. The Clerk’s discretion is provided for by section 5 and not by section 4. In any case, all these submissions were made at the earlier Supreme Court by the applicant. This is a clear rehash of those submissions and do not come under the slip-rule principle. This ground is therefore dismissed.
Ground 6.2.2.
This ground refers to there being no evidence that the Clerk had reported any rejection of the Applicant’s form to the Speaker and as a result the form could not have been rejected pursuant to s.4(1)(c) of the Organic Law.
This ground is somewhat confusing, but upon a closer reading, it is obvious that it is related to ground 6.2.1.
It is submitted that the Clerk could have accepted the Applicant’s form at any time prior to the commencement of the voting. The reference to s.4(1)(c) is a misnomer. Section 4(1(c) of the Organic Law refers to handing to the Clerk the Proposal Form after it has been properly completed. It does not refer to the Clerks powers of rejection which is dealt with in s.5 of the Organic Law.
The Court dealt with this issue when it determined the issue of the day of dating the Applicant’s Proposal Form. The Court did not misapprehend the facts. Once again the Applicant is rehashing his argument. This ground is also dismissed as being without merit.
Ground 6.2.3
The next ground is sub ground 6.2.3. Here it is alleged that the Court’s finding that the form was without a date was not supported by the evidence.
For the reasons given in ground 6.2.1 and the fact that this again is a rehash of the same arguments we dismiss this ground. We are of the view that this ground is baseless as the Court relied on the evidence of both the Applicant and the Clerk.
Ground 6.2.4
In general in ground 6.2.4 the Applicant challenges the Court’s finding that the Clerk should have rejected the form as being unreasonable because the Clerk in exercising his discretion, he formalised what was a defective form and in doing so, the Clerk’s actions were reasonably justifiable within the meaning of sections 39 and 41 of the Constitution.
The respondents submit that the Court made no errors either in fact or in law in holding that the Clerk had no power to direct an amendment to a defective Proposal Form and then subsequently to accept the amended form.
We accept the submissions put forward by the Respondents. The submissions on this aspect were made before the earlier Supreme Court. The Court considered those submissions and found that the Clerk had no power to direct an amendment and to subsequently accept an amended form. Under section 5(1)(a) of the Organic Law the Clerk has power to reject a Proposal Form that is not in the prescribed form. A person aggrieved by the Clerk’s decision has a right of appeal to the National Court under s.5(3) of the Organic Law.
The submissions made in relation to this ground are in effect re-agitating the same arguments made before the Court earlier. This goes against the slip-rule principle. Further we are not satisfied that the Court misapprehended the facts as urged upon us by Counsel for the Applicant.
In relation to the submission relating to Sections 39 and 41 of the Constitution, we are of the opinion these are new matters not raised earlier. In addition we consider that these provisions were and are not relevant to the issue before the Court.
We would dismiss this ground.
Ground 6.2.5.
In relation to ground 6.2.5, we consider that the Applicant has not demonstrated how the Court erred in fact. The evidence from the Applicant and the Clerk was that the proposer who proposed the
Applicant did not date the form on the date it was filled out, that is on 25th November. Consequently the Court was correct to find that the seventeen other supporters who signed in support of the Applicant’s proposal was invalid because they supported an invalid Proposal Form. Furthermore, in our opinion this is rehashing of the same argument put on behalf of the Applicant. The Applicant has not shown how the Court misapprehended the facts.
For this reason, we reject this ground as it does not fit into the slip-rule principle.
Ground 6.2.6
Under this ground, the Applicant says that the Court was correct in accepting the fact that this Proposal Form was signed by the proposer and the proposed on 25 November and the Court ought to have deemed that it was dated on that date pursuant to the Courts powers under Section 185 and Schedule 1.16 and 1.19 of the Constitution.
Here the Applicant argued that the Court was correct in accepting that the proposer and the nominee properly signed the Proposal Form on the 25th November. Having done so, the Court should have deemed or inferred as a fact that the Proposal Form was in fact dated 25th November. It was submitted that the Court ought to have done so pursuant to its powers under Section 185, and Schedule 1.16 and 1.19 of the Constitution.
The Respondents submit that the Applicant did not raise Section 185 of the Constitution in the first instance. Alternatively it has been submitted that Section 185 is not a correct provision to rely on in respect of this issue. It relates to "practice and procedure" to be developed or applied by the Court in a particular case where there is inadequate or lack of practise or procedure for it to facilitate proceedings. It is not a provision for the Court to use to determine the finality of the merits or an issue in a case before it.
The Respondents further submit that on the evidence before the Court, it was open to the Court to accept either the 28th or the 25th November as the date the proposer and the proposed signed the form. The Applicant chose the 28th November as the date on which he signed the form and the Court was entitled to accept that date. As a consequence the 15 other supporters signed an invalid or incomplete form on 25th, 26th and 27th November. The legal effect, it was submitted, was that Section 4 (1) (a) of the Organic Law was not complied with.
In our view the arguments put forward by the Applicant does not demonstrate that the Court misapprehended the facts as alleged by the Applicant. The arguments raised were raised before the Court in the first instance and the Court considered the submissions carefully and came to the findings of facts on this issue. In our view the submission put forward are in effect restating the same arguments put before the Court in the first instance.
Furthermore, s185 of the Constitution was never raised before the Court in the first instance. The applicant had the opportunity then, but did not raise it. It cannot now raise these same arguments under the disguise of a slip-rule application.
Furthermore, in our view, s.185 of the Constitution exists as a necessary aid for the Court to use in a case before it to facilitate proceedings where matters of practise or procedure are lacking or inadequate. It cannot be used by the Court to determine the finality of the merits or an issue of a case before the Court. In any case, this section is not relevant to the issue at hand.
Moreover, in our view Schedule 1.16 of the Constitution is irrelevant. The issue of "time limits" did not arise in the initial case and it certainly does not arise now. In any case Sch. 1.16 relates to time limits for the doing of an act, prescribed by Statute. There is no question of statutory time prescription in the present case. There is no misapprehension of the law there.
It is to be noted that the Applicant has under this ground conceded that "any subsequent date was clearly a mistake". In other words the Applicant has conceded that any date after the 25th November was clearly wrong. The Applicant inserted 28th November. This does not cure the incomplete or invalid form.
For these reasons we would dismiss this ground.
Ground 6.2.7
The Applicant contends that the Court’s finding that there was glaring error as it related to dates was not supported by facts and the Court’s decision was unreasonable. It was submitted that the dates were not a material defect and that there had been substantial compliance in filling out the Proposal Form.
The respondents submit that the Court did not make any mistake of facts. They submit that there were "glaring errors" on the part of the Applicant and his proposer, when they did not date the Proposal Form with the correct date, it being the 25th November. This was clear from the evidence of the Applicant and supported by the evidence of the Clerk.
The Organic Law requires mandatory compliance and not substantial compliance. The Applicant said that the defect was not material which amounts in effect to a concession that the form was in fact defective. Hence no amount of substantial compliance could cure the defect.
Once again the submissions that have been made by the Applicant are in effect a rehashing of the same arguments he made to the Court in the first instance thus offending the slip-rule principle. The arguments he raised here do not demonstrate any errors of fact made by the Court so as to come under the slip-rule principle. Consequently we would also dismiss this ground.
Ground 6.2.8
In this ground the Applicant contends that the Courts finding that the Applicant’s Proposal Form was defective was not supported by evidence because it was clear that the form was signed on 25th November by the Applicant and his proposer, and in any case the defect was not a material defect. The Applicant raised the same arguments he raised in relation to grounds 6.2.7, 6.2.4, 6.2.6 and 6.2.5.
The Respondents submit that the submission put by the Applicant are the same as those arguments put before the earlier Court. They submit that this ground is baseless and should be dismissed.
We are also of the view that the submissions put by the Applicant are a rehashing of the arguments put before the Court on the previous occasion. In our view the Applicant has failed to show where and how the Court has misapprehended the facts. There was clear evidence from the Applicant that whilst he and the proposer signed the Proposal Form on the 25th November, that form was not dated on 25th November but on 28th November. On the basis of the uncontested evidence, coming from the Applicant and supported by the Clerk’s evidence, the Court was entitled to find that the Applicant’s form was defective as it was not dated by the proposer on the date he proposed the Applicant. That was a material defect under s.4 of the Organic Law. These same arguments were put before the earlier Court. This is a rehash of those arguments. The Court then did not misapprehend the facts. This argument fails to comply with the slip-rule principle.
For the foregoing reasons we also dismiss this ground.
Ground 6.2.9 and 6.2.10
In these grounds the Applicant claims that the Court misapprehended the facts when it found as a fact that the dating of the form was wrong by taking into account extraneous and non agreed facts.
It has been submitted that the Court should not have considered or taken into account other matters set out in the various affidavits that were properly before it. Mr Narakobi submitted that the Court should have relied only on the agreed facts as the evidence. By going outside of the agreed facts, the court acted on extraneous maters.
In our view the submission quite clearly demonstrated the misunderstanding of the procedures of the Court. The Court was not only entitled to rely on the agreed facts but was also entitled to look at all the relevant and credible evidence properly put before it. This does not in our view amount to any misapprehension of the facts.
Further the Applicant does not specifically point out where and how the Supreme Court reached conclusions outside of the agreed facts and issues raised in the originating process. The originating process sought the Courts interpretation of a Constitutional Law. Thus the Court had jurisdiction to determine the matter under the Constitution s.18(1). The Court confined itself to those agreed facts and all the other relevant and undisputed evidence properly put before it.
We would dismiss these grounds also.
Misapprehension of Law
We next consider the grounds in the second category namely errors of Law. The grounds raised under this category may be summarised into several categories. These may be conveniently dealt with under several sub categories.
The Applicant raises several issues of law. The question of separation of powers between the Legislature and the Judiciary was raised in the context of the jurisdiction of the Supreme Court in reviewing the conduct of the Parliament in nominating its nominee as Governor-General of Papua New Guinea. These issues were argued and the Court considered and rejected them. The jurisdiction of the Court was established in the first case (SC OS No. 2 of 2003 (Unreported Judgment of the Supreme Court dated 21 November, SC721) and confirmed in this case. The Applicant cannot raise the same arguments or improve on the same arguments in a slip-rule application.
There is ample authority for the proposition that decisions of Parliament in appropriate cases are justiciable (SCR 2 of 1982; Re Organic Law [1982] PNGLR 214, Haiveta v Wingti (No. 3) [1994] PNGLR 297, SCR 3 of 2000 (Unreported Judgment of the Supreme Court dated 31 December 2002, SC722). In the present case, the Parliament is bound to comply with the requirements of the Organic Law. Where those provisions are not complied with, the Court may review its actions. There is no merit in these arguments and we would reject them.
Counsel for the Applicant further argues that by setting out the requirements of a Proposal Form under the Organic Law, the Court was amending the Organic Law and it is therefore an act of legislating. In particular, he argues that the requirement for a proposer to date the nomination at the time of signing the Proposal Form is an amendment of the Organic Law.
In our view, the Court construed s 4 of the Organic Law in a manner that gave meaning to the requirements of the form in the Organic Law. This is an interpretation and application of a constitutional law within the meaning of s 18(1) of the Constitution. We do not find any merit in this argument.
Counsel for the Applicant also raises the issue of construction of s 9(5) of the Organic Law. He submits that the Court misapprehended the law. All these arguments were put before the Court. The Court carefully considered all these arguments and rejected the arguments now put by the Applicant. The Applicant cannot rehash or improve the same arguments in a slip-rule application.
The Applicant also raised the question of costs as a misapprehension of law. The law on the question of cost is well established and it is discretionary. There is no misapprehension of law in this regard and we would dismiss this ground as well.
The first sub category relates to the jurisdiction of the Supreme Court. These are grounds 6.3.1, 6.3.2, 6.3.3, 6.3.4 and 6.3.11.
The next several grounds concern the issue of the Court legislating by judicial act. These are set out in grounds 6.3.5, 6.3.8, 6.3.9 and 6.3.10. Three of the grounds pleaded raise issues concerning non juristicability. These are pleaded in grounds 6.3.6, 6.3.21 and 6.3.12.
The following sub grounds raise new Constitutional provisions not raised in the first instance, namely grounds 6.3.16, 6.3.17, 6.3.21 and 6.3.22. One sub ground raises the issue of prospective over ruling and the next raise issues concerning the exercise of the Clerk’s discretion.
We now proceed to consider each of these grounds.
Grounds 6.3.1, 6.3.2, 6.3.3, 6.3.4 and 6.3.11.
In these ground the Applicant claims that the Court had wrongly assumed jurisdiction under s.18 (1) of the Constitution when the First Respondent ought to have sought relief before the National Court either under s.18(1) of the Constitution or by way of an appeal under s.5(3) of the Organic Law. It was submitted that in so assuming jurisdiction the Court erred in law. It was further argued that the Court is without power pursuant to s155 (4), s164 or any other law to act outside of the law. It was argued that under s. 18(1) of the Constitution the Court had power only to grant declaratory orders and not directory orders on the National Executive Council.
The Respondents submit that the arguments raised by the Applicant in relation to these issues are without merit. They submit that the Supreme Court has clear jurisdiction under s. 18(1) of the Constitution. It was further submitted that the reference to section 5(2) of the Organic Law is irrelevant as it does not confer any right on any candidate to invoke it to enforce his right. Further the facts did not give rise for the need for the First Respondent in the earlier case to invoke s.5 (2) of the Organic Law.
The Respondents further submit that the Court had jurisdiction to determine the matter under s.18 (1) of the Constitution and the Court confined itself to those agreed facts and the specific issue raised before it.
We consider that the arguments raised by the Applicant on these grounds are plainly misconceived. They reflect the misunderstanding of the Courts power under s. 18 (1) and s. 155(4) of the Constitution.
Under s18 (1) of the Constitution, the Supreme Court has the exclusive original jurisdiction concerning issues relating to the "interpretation and application of any Constitutional law". It has the power to interpret any Constitutional Law and the application of that interpretation to the particular issue or issues before the Court. The expression "application" indicates that the court has power not only to make declaratory orders but also directory orders. Such an interpretation would be consistent with the provisions of s155 (4) of the Constitution.
In our view, the submissions put forward by the Applicant in support of these grounds do not show any error of law on the part of the Court. Those submissions are mischievous and a rehashing of the arguments. We would dismiss all the grounds relating to this issue.
Separation of Powers
The next issue we wish to address are the grounds relating to the issues of principles of separation of powers. In these grounds, the Applicant contends that the Supreme Court’s decision is in breach of the principles of separation of powers as envisaged by Section 99 and Section 100 of the Constitution. The Applicant contends that the Parliamentary process relating to the election of the Parliament’s nominee for Applicant as Governor-General is immune from the jurisdiction of this Court.
The Respondents submit that the Applicant’s submission is misconceived. They submit that the Court has the power and did exercise that power and gave the appropriate orders to NEC. This did not offend any other Constitutional provision. The Constitutional provisions referred to in these grounds were of no relevance to the Supreme Court decision.
We accept the submissions put forward by the respondents. In SCR No. 3 of 2000, (Unreported judgment of the Supreme Court No. SC722), the Supreme Court dealt with the issue of whether ss99, 100 and 115 of the Constitution provides immunity to the National Parliament from the jurisdiction of the Supreme Court. In the leading judgment of the Court, Kapi, DCJ (as he then was) said at pp 22 – 33.
"The immunities granted by these provisions to individual members of Parliament are not applicable to the actions of the National Parliament as a legal entity. The Parliament is required to perform its functions within the framework of the law.
Where Parliament as a legal entity has not followed the law, its actions will be reviewed by the Courts in accordance with the law. There are numerous instances where legislation passed by Parliament has been reviewed by the Courts for non-compliance with the Constitution. (See for example SR No. 2 of 1982; Re: Organic Law [1982] PNGLR 214). The Courts have directed Parliament to perform its functions in accordance with the law. In Haiveta v. Wingti (No. 3) [1994] PNGLR 197, the Supreme Court declared the election of the Prime Minister null and void and directed that the Parliament should elect the Prime Minister in accordance with s.142(3) of the Constitution. Immunities and privileges granted by s.115 could afford no defence to the review of the acts of the Parliament by the Courts".
In our view the defect in the Proposal Form did not relate to Parliamentary proceedings.
Further any argument that the Parliament and or the Executive are free from the directives of the Court are misconceived. The respective powers of the principal arms of government (ss 100 (1), 138 and 158(1) of the Constitution and or the Constitutional powers of the various Constitutional offices must be read and applied subject to the Constitution, in particular Sections 11 and 99(1).
We would dismiss the grounds relating to these issues as being misconceived.
Grounds 6.3.5, 6.3.8, 6.3.9 and 6.3.10 –Amendment by Judicial Act
We next consider the issue of whether the Court by its decision altered or amended the Constitution or the Organic Law. The Applicant submits that the Court by its decision in SC OS 3 of 2003, altered or amended the substance and meaning of the Constitutional and Organic Law provisions. In doing so, it is argued that the Court erred in Law.
The Respondents submit in brief that these arguments are slanderous of the Court. They say the court did not in its decision alter the meaning of any of the provisions of the Constitution or the Organic Law.
In our view, the grounds raised do not have any merit whatsoever. The Court did not alter or amend the meaning or substance of any
Constitutional Law. In interpreting the relevant provisions of the Organic Law, the Court did not alter the substance or meaning of sections 13, 14 and 12(2) of the Constitution. In its decision the Court added nothing new to Section 4 of the Organic Law, when it
said that the dating of the form is mandatory. "Date" is an essential part of the form that the Organic Law prescribes. The Court did not err because it did not create a new requirement. The requirement to date
the proposal is already on the form prescribed by the Organic Law. The form is part and parcel of the Organic Law. The requirement to indicate the date of the Proposal Form appears very clearly on the form under the first paragraph. It is for
the proposer to date it.
Further in our view the arguments put forward on these grounds are in effect a re-argument of the issues which were raised and considered by the Court in the first instance. The arguments do not show any error of law on the part of the Court on that matter.
Consequently we dismiss all the grounds relating to this issue.
Ground 6.3.6 - Justiciabillity
The next issue to address concern the issue of justiciability. On this issue, the Applicant alleges that the Court breached Section 134 and Schedule 1.7 of the Constitution when it enquired into how the Parliament conducted its proceedings in electing the applicant as next the Governor-General.
Counsel for the Applicant, in his submission, refers to decisions of the English Courts to support the proposition that the Court should not enquire into the proceedings of Parliament.
Counsel for the respondents argue that the grounds and submissions put forward by the applicant amount to nothing more than rehashing of arguments and raising new matters. They further submit that the Court did not err under Section 134 of the Constitution to enquire into whether or not the Parliament followed the proper procedures prescribed by the Constitution and the Organic Law. They rely on the authority of Haiveta v. Wingti (No.1) [1994] PNGLR 160; SCR No. 3 of 2000.
We accept the submissions put forward by the Respondents and dismiss this ground for several reasons.
The first is that the arguments on justiciability were raised before the Court in the first instance. The arguments before us are nothing more than rehashing of those arguments. Secondly, the Applicant is raising new grounds which were not raised in the Court on the earlier occasion. He had the opportunity to raise all relevant provisions of any law he thought were relevant – but he did not. The submissions put by the Applicant do not amount to any error of law on the part of the Court. The submissions amount to rehashing of the arguments put before the Court or the previous occasion. This is not permissible under the slip-rule principle.
Ground 6.3.13 - Discretion of the Clerk
The next issues raised by the Applicant concern the exercises of discretion by the Clerk of Parliament.
In this ground the Applicant alleges that the Court did not consider the Supreme Courts decision in SC OS 2 of 2003 (SC721) and that, had the Court did that, it could have come to a different decision. It further alleges that the Court erred in law in finding that the Clerk had no discretion.
Counsel for the Applicant has made repetitious submissions in relation to this ground together with the other grounds relating to this ground, eg. Ground 6.2.4. We do not consider it necessary to restate those submissions.
In our view this ground is misleading. It is also an attempt to re- agitate arguments that were made and considered. The submissions made by the Applicant do not demonstrate any errors of law or any misapprehension of the law on the part of the Court. It is dismissed as being without merit.
Ground 6.3.14, 6.3.15 - Speaker’s Casting Vote
The Applicant next raises issues about the Acting Speaker casting his votes.
The Applicant has made extensive submission relating to these issues. The submissions are set in pp. 10 to 14 of the Applicant’s submissions. The essence of the submission is that the Court erred in law in the way it interpreted and applied the provisioned of sections 8 and 9 of the Organic Law.
The respondents submit that the Court did not err in interpreting the provisions of Sections 8 and 9 of the Organic Law. They submit that the Court interpreted s.9(5) correctly. They further submit that the submissions raised by the Applicant amount to re-agitating of the submissions previously put before the Court.
We have considered the submissions. It is our view that the submissions put by the Applicant amount to rehashing of the arguments put before the Court at first instance. The applicant has not demonstrated to us any error of law or any misapprehensions of the law by the Court at first instance. The Applicant has misunderstood the interpretation the Court gave to s.9(5) of the Organic Law that the Speaker casting vote is a vote to exclude one of the candidates with equality of votes, and not a vote in favour of that candidate, as the Applicant’s counsel Mr B Narakobi submitted. If the Speaker cast his exclusion vote, the result would have been that either Sir Pato or Sir Paulias would have been excluded, and the remaining candidate would have proceeded to contest the election with Sir Albert. There would have been no equality of votes at this point. The provisions of s.8(5) would then have applied.
In addition the Applicant has now raised issues concerning the application of ss. 98, 114(3) and 224(2) of the Constitution. (See ground 6.3.16, 6.3.17 and 6.3.22).
In our view the arguments raised by the Applicant amount to rehashing of the submissions he put before the Court in the first instance. For instance the Court discussed the provisions of s.89 of the Constitution in its judgment. In discussing or referring to it the Court did not give effect to s.89 as suggested by the Applicant. The Court simply considered s.89 and said its application is dependent upon the Parliament satisfying the Constitution and or the Organic Law. Finally the Applicant did not raise s.98 in the first instance.
Under the slip-rule principles he is not permitted to re-agitate his arguments or raise new matters. In so doing he has offended the principles under the slip-rule. In any case he has not shown where and how the Court made errors of law. Those grounds are therefore dismissed.
Ground 6.3.18 – Prospective Over-ruling
The next issue raised by the Applicant relates to the principles of prospective overruling. This is pleaded in ground 6.3.18. Here it is pleaded that the Court erred in law in not applying Schedule 2.11 of the Constitution when there was an authority for that proposition in Henzy Yakam and Michael Nali v. National Newspaper & Others, Unreported Supreme Court Judgement No. SC553 dated 17th November 1997.
The Applicant submitted that the Court erred in law in not applying Schedule 2:11 of the Constitution to the facts of the case before it. He relies on the decision of the Court in Henry Yakam v. Michael Nali & Others (supra). He submits that had the Court been aware of this decision, the result could have been different.
The Respondents submit that the circumstances of this case did not warrant the application of Schedule 2.11 of the Constitution. Further the authority which he relied on was not raised in the first instance.
We have considered the submissions on this ground. We accept the submissions put by the respondents for several reasons.
First, the arguments relating to Schedule 2.11 of the Constitution were raised before the Court and the Court considered those in the first instance. These submissions put before us now are in effect a re-agitation.
Secondly, the case authority now raised was never raised in the first instance. He failed to draw the Court’s attention to that case when he had the opportunity to do so. The Court in its decision did say that Counsel had not drawn to the Court’s attention to any decision on the application of Schedule 2.11 of the Constitution.
Ground 6.3.19 and 6.3.20 - Costs
Finally the issue of costs. On this issue it is the Applicant’s contention that he should not bear the costs but that they should have been apportioned between the other parties.
We consider this issue to be without any merit whatsoever. The Applicant has not shown how the Court erred in law in ordering his and the other defendants to pay the costs of the two plaintiffs. We would dismiss this ground also as being without any merit at all.
ABUSE OF PROCESS OF COURT
Counsel for the Applicant emphasized that if we do not correct the misapprehension of law and fact as alleged, this would affect the democratic rights of the Applicant and this would result in injustice to the Applicant. We do not consider that there is any injustice. The fact is that the Applicant exercised his right to be nominated as the Parliament’s nominee as Governor-General in the first nomination as well as in the second nomination by the Parliament. He has fully exercised his democratic right.
Moreover, he proceeded on the assumption that the decision of the Supreme Court was correct and allowed the Parliament to make a new nomination. Not only did he allow this process to take place, he participated in the process. Had he been nominated, he would not have had any complaints. In the circumstances, the fact that he did not win the nomination cannot result in injustice.
By pursuing this application after failing to secure the Parliament’s nomination, the Applicant seeks to take advantage of both the second nomination by the Parliament and this application before the Court. The only difficulty about this is that the option to nominate for the second time was dependent on his acceptance of the correct decision by this Court and the second is dependent on allegations of misapprehension of law and facts. This should not be permitted. Having chosen to accept the decision to contest the second nomination would render the proceeding before us an abuse of the process of this Court.
CONCLUSION
It is obvious that the Applicant has misunderstood the provisions of the Constitution relating to the Supreme Court’s power on appeal and review. The application is clearly misconceived and an abuse of the process of this Court. The application should be dismissed on the question of jurisdiction alone.
Alternatively it is also obvious that, each of the grounds for review considered either separately or together do not stand up to the test of slip-rule application. The grounds and submissions advanced are either a rehash of the submissions put and considered by the Court in the first instance, or are irrelevant, vague or unreasonable and having no substance at all.
In our opinion the Applicant has failed to demonstrate any misapprehension of fact alone, mixed fact and law or questions of law alone. We would dismiss the whole application. The matters raised either separately or collectively do not amount to grounds upon which the principles in the slip-rule may be applied.
Also in our opinion, the application under the slip-rule is an abuse of process of this Court.
END RESULT
For the foregoing reasons, we dismiss the whole application. The Applicant shall pay each Respondents’ costs of these proceedings.
__________________________________________
Lawyer for the Applicant : Narakobi Lawyers
Lawyer for the First Respondent : Henao Lawyers
Lawyer for the Second Respondent : M. Unagui
Lawyer for the Third, Fourth and Fifth Respondents : Nonggorr & Associates
Lawyer for the Sixth and Seventh Respondents : S. Singin
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