Agiru v Kaiabe [2014] PGSC 53; SC1384 (4 July 2014)

SC1384

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC Rev. (EP) No. 39 of 2013

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

BETWEEN:

ANDERSON AGIRU
Applicant/Respondent

AND:

ALUAGO ALFRED KAIABE
First Respondent/Applicant

AND:

JOHN TIPA,
Returning Officer for Hela Provincial Electorate
Second Respondent

AND:

ANDREW TRAWEN, Electoral Commissioner
Third Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani : Batari J
2014 : 26 March, 2 April,
2014 : 04 July

JUDICIAL REVIEW – Election Petition – Slip Rule – interlocutory Orders – preliminary issues – objection to competency of leave application – failure to decide competency application – Slip rule – principles applied – no slip.

Facts

The applicant sought to reverse, by a slip rule application, a decision of the court granting leave to review an interlocutory decision in an election petition matter.

Held

1. To succeed on a slip rule application the court must be satisfied of the 7 matters referred to in (1) Andrew Trawen v Steven Pirika Kama; (2) Michael Laimo v Steven Pirika Kama (2010) SC1063, at [4];

2. There are two lines of Supreme Court authority, one holding leave under Election Petition Review Rules O 5 Rule 39 to dispense with the requirements of Rule 7 is mandatory to review an interlocutory decision in an election petition, and the other that the Supreme Court always retains jurisdiction under Constitution s 155(2)(b) to review decisions of the National Court, and until the issue is resolved the Court can follow either decision, at [11-15];

3. The failure of the Court to give reasons for its decision is a matter for appeal or review; it cannot be the subject of a slip rule application, at [17-22];

4. There was no clear and manifest error on a critical issue, at [24].

5. Application refused.

Cases Cited

Andrew Trawen v Steven Kama &Michael Laimo v Steven Kama (2010) SC1063
Anton Yagama v Peter Yama (2013), SC1219
James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC 856
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747;
SCR 55 of 2012 Anton Yagama v Peter Yama & Anor, (2013) (Unnumbered SC Judgment)
Sir Arnold Amet v. Peter Yama (2010) SC1064
Waranaka v Dusava (2008) SC 942

Counsel

C. Copeland with Ms G. Salika, for the Applicant/Respondent.
T. Yamarhai, for the First Respondent/Applicant.
R. William, for the Second, Third & Fourth Respondents.

4 July, 2014

1. BATARI, J: On 30 August 2013, this Court granted the Applicant/Respondent, Anderson Agiru (the applicant/respondent) leave to seek a judicial review of an interlocutory ruling by the National Court in an election petition. In this ruling, the First Respondent/Applicant, Aluago Alfred Kaiabe (the respondent/applicant) seeks in a slip rule application, orders to reverse the grant of leave on the basis that the Court, inter alia, made a slip in failing to consider and rule on his objection to competency of the application for leave.
   
2. At the leave application hearing, Alfred Kaiabe appeared in-person and objected to the grant of leave based on the following contentions:
   
   1. The application was made outside of the required time of 14 days;
   2. The applicant did not seek dispensation with the requirements of the Supreme Court Rules on a review to be filed only after the final decision.
      
3. The principles on a slip-rule application, of which the applicant must satisfy the Court, before the Court can correct an error as a slip made by the Court, has been settled in the case of, Andrew Trawen v Steven Kama & Michael Laimo v Steven Kama (2010) SC1063. The full Supreme Court of five member bench held:
   

"1. A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law (Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752).

2. A slip rule application to this Court cannot be made under s. 155 (2) (b) of the Constitution as that subsection concerns this Court's inherent power to review judicial acts of the National Court. Section 155(4) Constitution also does not provide the opportunity for a slip rule application to be made to the Supreme Court to reopen one of its decisions.
   
3. A slip rule application must be made before the same Supreme Court constituted by the same judge or judges who heard and determined the appeal or review."
   
4. Before the application under the slip rule can succeed, there are seven matters the Court must be satisfied on pursuant to the authority of Andrew Trawen v Steven Kama & Michael Laimo v Steven Kama (supra):
   

(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.

(7) 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: James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC 856.

5. In this case the main contention by the respondent/applicant is that the Court made a slip when it failed to consider the objection to competency of the leave application. Counsel, Mr Yamarhai laboured unpersuasively on a misconceived proposition, that if this Court had considered and determined his client's objection, the application would not have succeeded.
   
6. Mr Yamarhai submitted that the application for leave to seek a judicial review of an interlocutory decision must comply with the procedural requirements in Order 5 rules 7, 8 and 39 of the Supreme Court Rules (the SCR) and that there is no other way outside that strict requirement. He argued that the word "decision" in rules 7 and 8 only applies to final decisions so; the applicant must first seek dispensation of the rules before seeking leave to apply for judicial review of an interlocutory ruling. This, Counsel submitted, is a mandatory requirement. Hence, in failing to comply with this prerequisite, the Court proceeded on an erroneous apprehension of the law in granting the applicant/respondent the leave to apply for judicial review.
   
7. The respondent/applicant cited and relied on the principle enunciated in Waranaka v Dusava (2008) SC 942 and affirmed by the Supreme Court bench in, Anton Yagama v Peter Yama (2013), SC 1219 (Sakora, Manuhu, Kariko, JJ).
   
8. I am persuaded by the more convincing case put forward by Ms Copeland and Mr William for the respondents, that the process in obtaining leave to dispense with the SCR requirement for an appeal or a review of an interlocutory decision, is not mandatory. I also accept their contention that the Court did not make a slip for the reasons that follow.
   
9. The principal complaint by the respondent/applicant is correct to the extent that the Court in its ruling did not specifically address and deal with the objection to competency of the leave application, as a separate issue or process to be determined on its own merits. However, I made it clear in my brief ruling in granting the leave application that detailed published reasons will follow. The full reasons for decision were then in draft form at the time, the respondent/applicant filed this slip rule application.
   
10. Even so, it is apparent from the whole of the reading of the brief reasons, that the Court, in proceeding under s. 155 (2) (b) of the Constitution to grant the leave application, had thereby treated the objection to the leave application as insignificant and without merits. The apparent implication from the ruling is that the court effectively dealt with the objection by resorting to the court's inherent powers under the Constitution to hear the application for leave to apply for judicial review of an interlocutory decision.
    
11. Earlier on at the hearing of the leave application, the objection by Mr Kaiabe was strongly countered by the more persuasive argument by Mr Molloy for the applicant/respondent, that the Supreme Court has an inherent jurisdiction it can exercise to review an interlocutory ruling of the National Court in election petition proceedings. Mr Molloy relied on the Supreme Court case of, SCR 55 of 2012 Anton Yagama v Peter Yama & Anor. (2013) (Unnumbered SC Judgment) (Salika DCJ, David, Yagi JJ) for that proposition. After refering to the earlier Supreme Court decision in Anton Yagama v Peter Charles Yama (supra) the Court in, SCR 55of 2012 Anton Yagama v Peter Yama & Anor (supra) stated:
    

"With respect, we follow the decision of the Supreme Court in Anton Yagama v Peter Charles Yama (supra) where the Court was quite emphatic in stating that a review of an interlocutory ruling in an election petition proceeding should be allowed only where there is clear error which has very high chance of success.

In a nutshell, what this boils down to is that the Supreme Court is not deprived of jurisdiction in any way to deal with all judicial acts of the National Court including interlocutory rulings or decisions in election petition cases by virtue of s. 155 (2)(b) of the Constitution."

(underlining added)

12. In, Anton Yagama v Peter Yama (2013), SC 1219 the Supreme Court in endorsing the view that an application for leave to seek a judicial review of an interlocutory decision can only lie to the Supreme Court after dispensation of the requirement in Order 5 rule 7, 8 and 39 of the Supreme Court Rules stated that:
    

"With regard to our exchanges with counsel as to whether or not an interlocutory ruling (such as on an objection to competency), may be subject to review by this Court under s 155 (2) (b) of the Constitution, we respectfully agree with and endorse the view expressed by Injia DCJ (as he then was) in Waranaka v Dusava (Unreported SC 942 of 2008) that the only way by which leave to review can be sought is for an applicant to seek an order under Rule 32, dispensing with the requirement of Rule 1, as was done here.

We would add here, however, that such dispensation with the requirement should only be granted where the trial judge had clearly erred on the face of the record and that, therefore, the review would succeed. We suggest such clear instances to be: where the petition had not been signed and attested under (s 208 (c) and (d)), and the security for costs had not been deposited under (s 209) of the Organic Law and the petition proceeded to substantive hearing despite these clear breaches."

13. The foregoing clearly demonstrates two lines of judicial pronouncements on whether leave is required where the applicant files for a judicial review against an interlocutory decision. The argument that the requirement to seek dispensation with the requirement of Supreme Court Rules is mandatory is misconceived because the two differing Supreme Court decisions have not settled the issue.
    
14. It is trite that a contrary opinion of one Supreme Court bench does not necessarily override, review or supersede the other equally constituted court because of s. 162 and Sch. 9.2 of the Constitution. Schedule 9.2 (1) makes it abundantly clear that all decisions of law by the Supreme Court are binding on all other courts, but not on itself.
    
15. Until an amendment to the Supreme Court Rules is made, or the tension between the two differing views is settled by a five-member bench, it is for the time being, open to this Court and the Court is at liberty to follow one or the other.
    
16. In this case, it is apparent from my acceptance of the applicant/respondent's argument, that I had preferred and followed the view in, SCR 55of 2012, Anton Yagama v Peter Yama & Anor, (supra) to utilise Constitution s. 155 (2) (b). I had then proceeded to consider and determine the leave application for judicial review of an interlocutory ruling on that constitutional basis.
    
17. I also find the application by Alfred Kaiabe fundamentally flawed first, for the reason that it seeks to rehash the arguments already raised at the leave application, contrary to the slip rule principle. Furthermore, the slip rule application was clearly a veiled attempt to sway this Court into making a further ruling or for the Court to deliver on the undertaking to publish the full reasons for the ruling against the objection to competence of the leave application. This is a mischievous misconception. The failure to rule, or give reasons for a decision is a matter that goes to the substance and merits of the case. Its outside those matters reserved for the slip rule application.
    
18. Second, a failure to give reasons or a failure to deliver on an undertaking to publish detail reasons means there is no or no good reason for the decision. Consequently, the decision-maker will have acted in excess of jurisdiction. It is the paramount duty bestowed by the Constitution on a public official to give reasons as part of according natural justice to those affected by the official's decisions. See, Ombudsman Commission v Peter Yama (2004) SC747 (Injia DCJ, Sakora J, Sawong J); Mision Asiki v Manasupe Zurenuoc (2005) SC797 (Jalina J, Cannings J, Manuhu J).
    
19. Hence, the failure to give reasons for the decision is an appealable or reviewable point. It does not come within the ambit of the slip rule principle. The Supreme Court in, Sir Arnold Amet v. Peter Yama (2010) SC1064, made it clear that:
    

"1. Having the right to appeal or review of a decision of the National Court necessarily comes with a right to be informed orally or in writing of the reasons for decision.

2. A pronouncement by the Court falling short of giving reasons will inevitably lead to the conclusion that the Court or decision maker has no good reasons for the decision made."
   
20. In that case, the Supreme Court was dealing with an appeal or review of the National Court decision. The trial judge gave an oral judgment upholding the election petition and undertook to publish detailed reasons later. At the time of the review application, the trial judge had not published the reasons. That was not a case where the court gave no reasons for the decision. The only concern was whether the oral reasons for the decision were consistent with the facts proved at the trial.
    
21. In the case before this Court, the cause open to the respondent/applicant was to apply for an order in the nature of mandamus. That process is available to the aggrieved person to compel the performance of duty by a person, body or authority or an inferior court empowered by law, to perform that duty. Another process open to the respondent/applicant is a writ of certiorari seeking orders to remove the proceedings to the full Supreme Court to rule on his objection so that justice may be done. If unsure of the process to follow, the aggrieved party can seek court directions under s. 185 of the Constitution.
    
22. The respondent/applicant should have come by way of a judicial review application possibly under s. 155 (2) (b) and s. 185 of the Constitution to seek orders for mandamus or certiorari. He did not do that.
    
23. Supposing that the complaint by the respondent/applicant fall within the ambit of a slip rule application, it will not change the outcome of the decision. I granted the applicant/respondent leave based on the merits of the application. The Court made that decision in assuming jurisdiction under s. 155 (2) (b) of the Constitution. That decision also disposed of the objection to competency.
    
24. On the other hand, even if I were to accept the arguement that the applicant/respondent should have proceeded under the Supreme Court Rules and sought dispensation of the requirements in Order 5 rules 7, 8 and 39, there would have been no real utility in that because Anderson Agiru would have simply re-filed for leave. If he did, that will not only procrastinate the hearing of the substantial issues but the fact also remains, that there are substantial questions of law, not without merit that required a review of the decision.
    
25. Nevertheless, there is an overriding consideration of public interest in the finality of this election petition. I am also not satisfied that this Court made a clear and manifest, not an arguable, error of law or fact on a critical issue: James Marabe v. Tom Tomiape & Anor (No. 2) (2007) SC 856. Furthermore, the respondent/applicant still has the opportunity to defend the review application.
    
26. The other points raised by Counsel were simply rehashing the respondent/applicant's case. They do not qualify as a slip under the slip-rule principles. They are dismissed for being misconceived.
    
27. Orders of the Court.
    
    1. The Slip-Rule application by the respondent/applicant is without substance and without merits. It is dismissed for being misconceived.
    2. Costs to the applicant/respondents in this application are to be borne by the First Respondent/Applicant.
    3. The substantive matter shall be listed for directions in the next Directions Hearings of the Supreme Court.

________________________________________________________________
Young & Williams Lawyers: Lawyer for the Applicant/Respondent
Warner Shand Lawyers: Lawyer for the First Respondent/Applicant
Niugini Legal Practice: Lawyer for the Second, Third & Fourth Respondents