Raitano v Raminai [2018] PGSC 25; SC1683 (10 May 2018)

SC1683

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCAPP 6 OF 2018

BETWEEN:
JOEL REKE RAITANO
Applicant

AND:
WESLEY ORA RAMINAI, MP
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.,
2018: 10^th May

Whether application for extension of time to apply for leave to review a dismissal of an election petition should be dismissed

Cases Cited:

Boochani v. Independent State of Papua New Guinea (2017) SC1566

Counsel:

Ms. K. P. Nugi, for the Applicant

10^th May, 2018

1. HARTSHORN J: This is a decision on whether the application commencing this proceeding should be dismissed for failing to engage the jurisdiction of this Court for the relief sought. The Court heard from counsel for the applicant on this issue and then reserved its decision. That decision is now delivered.

2. The applicant seeks an extension of time within which to give an application for leave to review a National Court decision that dismissed an Election Petition. The applicant relies upon s. 10 Supreme Court Act and s.155(4) Constitution for the jurisdiction of this Court to grant the extension of time.

3. The applicant submits that these provisions are relied upon as the Supreme Court Rules 2012 do not provide a provision pursuant to which the extension of time which the applicant requires may be granted. Order 5 Rule 14 Supreme Court Rules 2012 provides that:

“14. The application for leave shall be filed, served and heard within 14 days of the decision sought to be reviewed or within such time as extended by the Judge, upon application heard within that 14 days period.”

4. In this instance, the application for extension of time is made outside the requisite 14 days period.

5. Section 10 Supreme Court Act confers any power of the Supreme Court to amongst others, extend time within which notice of appeal or an application for leave to appeal may be given, upon a Judge of the Supreme Court. This section does not confer jurisdiction upon the Supreme Court or a Judge of the Supreme Court in respect of a review pursuant to s. 155(2)(b) Constitution or an application to extend time within which an application for leave to review pursuant to s. 155(2)(b) Constitution, may be given. Consequently, s. 10 Supreme Court Act is not able to be relied upon by the applicant for the relief that he seeks.

6. As to the reliance upon s. 155(4) Constitution, I reproduce the following passage from the joint decision of Salika DCJ and Hartshorn J in Boochani v. Independent State of Papua New Guinea (2017) SC1566 at [39]:

“As was stated in Louis Medaing v. Ramu Nico Management (MCC) Limited (2011) SC1156 at [10] – [12]:

“10. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] PNGLR 401 at 402.

11. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):

“The provision under reference.... does not.... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”

12. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:

“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;

2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;

3. Where remedies are already provided for under other law, the provision does not apply;

4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and

5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”

We respectfully agree with the views expressed in Powi (supra).” ”

7. In this instance, Order 5 Rule 14 Supreme Court Rules 2012 as referred to, provides for amongst others, an extension of time to file and serve an application for leave to apply for review to be granted, upon application heard within 14 days of the decision sought to be reviewed. The right that the applicant did have under this Rule has ceased by effluxion of time. Section 155(4) Constitution is not able to be relied upon for the creation and grant of a new right. Consequently, s. 155(4) Constitution is not able to be relied upon by the applicant for the relief that he seeks.

8. Pursuant to Order 5 Rule 37 Supreme Court Rules 2012, as the applicant has not done an act required to be done by or under the rules of Division 1 of the Supreme Court Rules 2012; in this instance, that is not applying for an extension of time to file, serve and be heard, an application for leave within 14 days of the decision sought to be reviewed; and in not so applying, has not engaged the jurisdiction of this Court for the relief that he seeks, the application filed 30^th April 2018 is dismissed. No order is made as to costs.
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Pang Legal Services: Lawyers for the Applicant