Wesley v Leonard [2018] PGSC 49; SC1706 (21 August 2018)

SC1706

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 47 OF 2018

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

AND

IN THE MATTER OF PART XVIII OF THE ORGANIC
LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT

BETWEEN:
GORDON HENRY WESLEY
Applicant

AND:
ISI HENRY LEONARD
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2018: 4 & 22 June,
9 & 26 July
9, 15 & 21 August

SUPREME COURT – Application for dismissal for application for leave to review – Order 5 Rule 11 of the Supreme Court Rules – held- requirements set out therein mandatory – application upheld.

Counsel:

Mr. I Molly & Ms Emily Kulai, for the Appellant
Ms. Diana Mewerimbe, for the First Respondent
Mr. E Koroa, for the Second Respondent

Case Cited:

Wari James Vele v Powes Parkop (2008) SC945
Hami Yawari v Anderson Agiru & Anor and The Electoral Commission of Papua New Guinea (2008) SC948
GR Logging Limited v Dataona (unregistered, unnumbered, Supreme Court, 12 July 2018
Sir Arnold Amet v Peter Charles Yama (2010) SC1064;

6 September, 2018

1. DINGAKE J: This is an application brought by the first respondent to dismiss the applicant’s application for leave to review filed on the 19^th of June, 2018, pursuant to Order 5 Rule 37(a) of the Supreme Court Rules.
2. Order 5 Rule 37(a) provides as follows:
   • “37. Where a party has not done any act required to be done by or under the rules of this division or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order of the Court or a Judge, the Court or a Judge may on its or his own motion or on application by a party, at any stage of the proceeding:-
     • (a) order that the application for leave or application for review be dismissed where the defaulting party is the applicant; or”
3. The background to this matter is that the first respondent and the applicant were each candidates for Samari Murua Open Electorate in the 2017 General Election for the National Parliament. The first respondent was declared elected and thereafter following an election petition by the applicant, the National Court ordered a recount. Following the conclusion of a recount, the applicant filed an application for leave to review on the 19^th of June, 2018 which the first respondent seeks to have dismissed.
4. The grounds upon which the first respondent seeks to dismiss the application are set out in the application (Doc. 22) filed with this Court on the 7^th of August, 2018.
5. Essentially, the grounds upon which the first respondent seeks to have the applicant’s application for review filed on the 19^th of June, 2018 dismissed are that:
   • (a) The applicant did not comply with Orders 5 Rule 10(c) of the Supreme Court Rules in terms of form and procedure consistent with the principles stated in case of Wari James Vele v Powes Parkop (2008) SC945 and Hami Yawari v Anderson Agiru and David Wakias and The Electoral Commission of Papua New Guinea (2008) SC948.
   • (b) The applicant when filing the application for leave to review on the 19^th of June, 2018 did not annex a copy of the formal Orders of the National Court to the affidavit of the applicant filed on the 19^th of June, 2018, as required by Order 5 Rule 11 of the Supreme Court Rules.
   • (c) The application for leave to review filed on the 19^th of June, 2018, is not in compliance with Order 5 Rule 10(c) of the Supreme Court Rules as it seeks to review an Order of the National Court which is not a formal Order of the Nation Court.
   • (d) That the applicant did not pay detailed attention to the prosecution of this application for leave to review in identifying the error of non compliance of Order 5, Rule 10(c), 11 of the Supreme Court Rules and seek dispensation from compliance of the Supreme Court Rules under Order 5 Rule 39 or seek an amendment under Order 11 Rule 11 of the Supreme Court Rules.
   • (e) The applicant has not demonstrated due diligence in prosecuting application for leave to review in terms of compliance with Order 5 Rule 14 of the Supreme Court Rules.
6. The applicant opposes the application and says the application should be dismissed on jurisdictional and/or substantive grounds.
7. The applicant submits that the first respondent’s application is not competent for want of compliance with Order 7 Rule 15 of the Supreme Court Rules.
8. Order 7 Division 5 Rule 15(a) provides that an objection to competency shall be made by filing “an objection in accordance with Form 9”; must be made within specified time and must correctly identify the Court’s jurisdiction.
9. The applicant submits that the first respondent has not complied with the above requirements and his objection to the competency of the leave application for review is incompetent and should be rejected.
10. The applicant also submits that the first respondent has failed to make out a case for the relief on substantive issues he raised.
11. It is convenient to deal with the applicant’s submission that the first respondent has not complied with Order 7 Rule 15 of the Supreme Court Rules and his reliance on a number of Supreme Court authorities to the effect that an objection to competency of any proceedings in the Supreme Court must comply with the aforesaid Order, including the recent case of GR Logging Limited v Dataona (unregistered, unnumbered, Supreme Court, 12 July 2018).
12. The Supreme Court has also ruled that issues of competency that implicate the jurisdiction of the Court to entertain a matter may be raised at any time. (Sir Arnold Amet v Peter Charles Yama (2010) SC1064).
13. I am of the settled view that issues that go into the competency of the proceedings brought before Court can be raised at anytime, because the issue of competence is to do with the legal and jurisdictional aspects of the Court process.
14. I turn now to consider the grounds upon which the first respondent seeks to have the applicant’s application to review dismissed.
15. The first respondent has failed to lay a clear basis, in its supporting affidavit, and or Notice of Motion, to support reliefs claimed in paragraphs 2.1 (ii) 2.2 and 2.3 of its Notice of Motion.
16. I have considered the cases’ referred to in paragraph 2.1 of the first respondent’s Notice of Motion and do not see their relevance to this matter.
17. However, ground 2.1(i) of the first respondent’s Notice of Motion has caused me some prolonged anxiety.
18. Order 5, Rule 11 of the Supreme Court Rules, which the first respondent claims the applicant has not complied with provides:
    • “11. The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.”
      
19. It is clear from the supporting affidavit of the applicant filed on the 19^th of June, 2018 in support of the application to review that the decision sought to be reviewed is the decision of “His Honour on the 15^th of May, 2018”, not to hear the applicant’s Notice of Motion regarding the recount. At paragraph 14 of his affidavit, Gordon Wesley, the applicant avers that:
    • “14. I believe that the decision by His Honour on 15^th May, 2018, not to hear our Notice of Motion regarding the recount was an error and therefore I would like to seek review of that decision.”
20. A copy of the Order pertaining to that decision as required by Order 5 Rule 11 of the Supreme Court Rules has not been attached and Annexure D referred to in paragraph 9 of the applicant’s supporting Affidavit (Doc No. 6) is not the Order capturing the decision referred to in paragraph 14 of the applicant’s supporting affidavit.
21. The applicant did not move the Court to dispense with the requirement to annex a copy of the judgment and Order of the National Court to the supporting affidavit on the basis that the said Order was not available or delivered, pursuant to Order 5, Rule 39 of the Supreme Court Rules.
22. From a perusal and consideration of the evidence and submissions of the parties, I am satisfied that there has been non compliance with Order 5 Rule 11 of the Supreme Court Rules, entitling the first respondent to the relief sought.
23. Order 5 Rule 11 of the Supreme Court Rules is couched in mandatory terms and ought to be complied with strictly unless excused by the Court on good cause shown.
    
24. In the result:
    • (a) The relief sought in paragraphs 1.1 and 1.2 of the first respondent’s application filed on the 7^th of August, 2018 (Doc No. 22) is granted. The application for leave to review is accordingly dismissed.

___________________________________________________________
Simpson Lawyers: Lawyers for the Applicant
Jerry Kiwai Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent