Manwau v Trawen [2011] PGSC 43; SC1159 (16 June 2011)

SC1159

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO 31 OF 2008

In the matter of an Application under s.155 (2) (b)
Constitution and in the matter of the Organic Law
on National and Local Level Government Elections

BETWEEN:

MOSES MANWAU
Applicant

AND:

ANDREW TRAWEN, Electoral Commissioner,
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
First Respondent

AND:

MARTIN MAINGU, Returning Officer
for Wewak Open Electorate
Second Respondent

AND:

ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Third Respondent

AND:

JIM SIMITAB
Fourth Respondent

Waigani: Salika DCJ, Kandakasi and
Hartshorn JJ.
2011: 27th April,
: 16th June

SUPREME COURT – Slip Rule - whether Court acted without jurisdiction – sections 8 (1) (e) and 12 Supreme Court Act considered

Facts:

The fourth respondent Mr. Jim Simatab, applies under the slip rule for this court to correct its errors or mistakes made in its decision delivered on 4th August 2010. Mr. Simatab although declared the member for the Wewak Open Electorate following the 2007 National Elections, lost his seat when this court declared the applicant Mr. Moses Manwau the member on 4th August 2010 following a recount ordered by this court. Mr. Simatab contends that the Court acted without jurisdiction, exceeded its review jurisdiction by assuming the powers of the National Court and did not give Mr. Simatab an opportunity to be heard in respect of evidence presented on 4th August 2010.

Held:

1. The applications of sections 8 (1) (e) and 12 Supreme Court Act, although in Part III Supreme Court Act, are not confined only to an appeal.

2. The Supreme Court is entitled to make the declaration that it does as s. 8 (1) (e) Supreme Court Act, provides that if it thinks it necessary or expedient in the interests of justice to do so, exercise in relation to the proceedings of the Court any of the powers that may for the time being be exercised by the National Court on appeals or applications.

Cases cited:

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

Counsel:

Mr. N. Kubak, for the Applicant
Mr. R. William, for the First, Second and Third Respondents
Messrs I. R. Molloy and T. Yanarhia, for the Fourth Respondent

16th June, 2011

1. BY THE COURT: The fourth respondent Mr. Jim Simatab, applies under the slip rule for this court to correct its errors or mistakes made in its decision delivered on 4th August 2010. Mr. Simatab although declared the member for the Wewak Open Electorate following the 2007 National Elections, lost his seat when this court declared the applicant Mr. Moses Manwau the member on 4th August 2010 following a recount ordered by this court.

2. Mr. Simatab contends that the issues and we assume the errors or mistakes in the decision of 4th August 2010 are that:

a) as Salika DCJ and Kandakasi J and not Hartshorn J constituted the court that delivered the 4th August 2010 decision, the court acted without jurisdiction,

b) the Court exceeded its review jurisdiction by assuming the powers of the National Court,

c) the court denied Mr. Simatab an opportunity to be heard in respect of evidence presented on 4th August 2010.

3. Mr. Manwau opposes the slip rule application. The first, second and third respondents represented by the Electoral Commission (Electoral Commission), support the application.

4. We mention that Mr. Simatab's application also sought to have this court correct its earlier decision delivered on 24th June 2010, but at the hearing before us, counsel for Mr. Simatab informed that his reliance was only upon the issues detailed in his extract of argument. Those are the issues to which we have already made reference.

5. The principles governing slip rule applications have been considered by this court on numerous occasions. Recently in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063, this court consisting of five judges, after a review of the authorities, agreed that the following principles are those that govern all slip rule applications to this court for it to reopen one of its decisions:

(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 below.

(g) consistently applied 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.

6. We consider the jurisdiction issue first.

No jurisdiction

7. Mr. Simatab submits that the hearing on 4th August 2010 by Salika DCJ and Kandakasi J was without jurisdiction and a nullity as although Hartshorn J had purportedly given his authority for the other two judges to sit and make declarations on his behalf, they were not merely publishing their decisions and Hartshorn J's decision; they also heard argument, received evidence, rejected a request for an adjournment, considered the evidence, made a decision to accept the evidence and made a declaration.

8. Reliance is placed upon s. 161 (2) and s. 162 (2) Constitution which are:

s. 161 (2) "Subject to Section 162 (2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three judges."

s. 162 (2) "In such cases as our provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together."

9. It is submitted that a judge cannot delegate his role and that there is no legislation (s. 3 Supreme Court Act only applies in respect of appeals), or rule of court which permits any number of judges less than three constituting the Supreme Court, to continue with their hearing or make an adjudication upon a review.

10. As to the delegation submission; s. 12 Supreme Court Act prescribes that it is not necessary that all the Judges before whom any cause or matter after being finally heard and ordered to stand for judgment, be present together in court to declare their opinions. Notwithstanding that s. 12 is in Part 3 of the Supreme Court Act which is entitled "APPEALS TO THE SUPREME COURT", s. 12 refers to "any cause or matter" and not 'appeal'. The word "matter" is defined in s.1 (1) Supreme Court Act as including any proceedings in the Supreme Court or National Court. Further, there is no provision in the Supreme Court Act that restricts all of the sections in Part 3 to appeals.

11. We are satisfied that s. 12 Supreme Court Act does include a cause or matter that is not an appeal. This would include a review under s. 155 (2) (b) Constitution. Counsel however, did not pursue this argument before us.

12. As to whether two instead of three judges can continue with a hearing, it is clear from the legislation that they cannot. The question to be considered in this case is whether what occurred on 4th August 2010 was a continuation of a hearing. The purpose of the court sitting on 4th August 2010 was merely for the court to declare the ultimate winner of the election pursuant to its sixth order made on 24th June 2010. The court had completed its hearing of the review and had made orders determining the review on 24th June 2010. On 4th August 2010 Salika DCJ and Kandakasi J were sitting pursuant to s. 12 Supreme Court Act. It is conceded that what occurred on 4th August 2010 could be considered to be more than a declaration of the opinions of judges as contemplated by s. 12 Supreme Court Act. Without determining the issue we have decided to proceed on the basis that what occurred on 4th August 2010 was without jurisdiction and was a nullity.

13. Proceeding on that basis, the three judges of this court sat and heard this slip rule application. During the course of that hearing we had cause to consider the results of the recount that we ordered on 24th June 2010. Pursuant to those results, and having in mind the first principle referred to in Trawen's case (supra) that there is a substantial public interest in the finality of litigation, we now declare Mr. Moses Manwau the winner of the 2007 election for the Wewak Open Electorate.

14. We are satisfied that we are entitled to make this declaration as we have, as s. 8 (1) (e) Supreme Court Act provides that for the purposes of the Supreme Court Act the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so exercise in relation to the proceedings of the Court any of the powers that may for the time being be exercised by the National Court on appeals or applications.

15. As to the argument that s. 8 (1) (e) Supreme Court Act only relates to appeals, we repeat the comments we made in this respect concerning s. 12 Supreme Court Act. We also note that such relief is able to be granted by this court as in the application for review under s. 155 (2) (b) Constitution, part of the relief sought by Mr. Manwau was any other Orders the Court deems fit.

16. Given the above it is not necessary to consider the other submissions of counsel.

Orders

17. The orders of the Court are:

a) the applicant, Moses Manwau is declared the winner of the 2007 election for the Wewak Open Electorate.

b) the parties shall bear their own costs of and incidental to this slip rule application.

_____________________________________________________________

Norbert Kubak & Co Lawyers: Lawyers for the Applicant
Nonggorr Williams Associate Lawyers: Lawyers for the First, Second & Third Respondents
Greg Manda Lawyers: Lawyers for the Fourth Respondent