Dekena v Kuman [2018] PGSC 87; SC1744 (23 November 2018)

SC1744

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 6 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 ELECTIONS

BETWEEN:
LUCAS DEKENA
Applicant

AND:
NICK KUMAN
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kandakasi J.
2018: 02^nd and 23^rd November

CONTEMPT OF COURT - Contempt in the face of the Court - Counsel for a party expressly abandoning an issue - Seeks to have the issue revisited under an application for leave for slip rule claiming the Court slipped - Transcript confirming decision to abandon the issue provided to all parties and their counsel - Applicants counsel maintaining claim of the Court slipping and effectively seeking to justify and blame the Court for his decision - Conduct clearly contempt of Court in the face of the Court - Counsel found guilty of contempt of Court.

JUDGEMENT & ORDERS – When does an order or a judgment take effect - The date when the judgment or order is pronounced and not when a formal minute is taken out – Formal minutes are based on a pronouncement of an order or a judgment and has no life on its own.

PRACTICE & PROCEDURE – Application for leave to proceed with Slip Rule Application - Applicant has burden to show substantive application likely to succeed and not an arguable case - Principles governing slip rule application - Basis for claiming slip - Preliminary issue of competency against objection to competency of substantive review application - Preliminary issue disposed off through the party raising the issue abandoning it – Subject matter of slip claim in disregard of party’s own decision to abandon issue - Provision of transcript of proceedings confirm decision to abandon - Counsel still insisting on the Court slipping - No slip by Court but by counsel - Issue raised not likely to succeed - Application for leave dismissed - O.11, 32(1) Supreme Court Rules.

WORDS & PHRASES - “Orders” and “judgment” - Meaning of – The terms “judgement” and “order” in the widest sense may include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court – When the terms are considered separately, they overlap considerably and are incapable of exact definition - Order is a generic term which includes a judgement, and there are distinctions between the two terms .

Cases Cited:
Papua New Guinea Cases

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Gima Raka v. Philip Maimu (2013) N5200
Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88
Jimmy Maladina v. The State (2015) SC1572
Lord & Co Ltd v. Timothy Inapero (2009) SC1042
Kandapaki v. Enga Provincial Government (2015) SC1463
Agiru v. Kaiabe (2015) SC 1412
The State v. Transferees (2016) SC1488
Kelly Kilyali Kalit v. John Pundari and The Electoral Commission (1998) SC569
Peter Wararu Waranaka v. Richard Maru (2018) N7346
Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334
Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission (1997) N1694.
Labi Amaiu v. John Kaupa (2017) N7004
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission (EP No 37 of 2012 - Unnumbered & Unreported Judgment of 6th March 2015)
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Paru Aihi v Peter Isoaimo (2013) SC1276
Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063
Francis Kunai & Ors v. Papua New Guinea Forest Authority & Ors (2018) N7570.

Overseas Case Cited:

R v. Ireland (1970) [1970] HCA 21; 44 ALJR 263

Counsel:

Mr. D. Yariyari, for the Applicant
Mr. A. Kongri, for the First Respondent
Mr. H. Nii, for the Second Respondent

23^rd November, 2018

1. KANDAKASI J: This is an application by Mr. Lucas Dekena (Dekena) under Order 11, Rule 32(3) of the Supreme Court Rules (SCR), which is an application for leave for a “slip rule” application.
   
2. The main and determinative argument for Mr. Dekena is that, the full Court did not address his objections to the competency of the Respondents, Hon. Nick Kuman and the Electoral Commission objections to the competency of his substantive review application. In response, Hon. Kuman and the Electoral Commission argue for a dismissal of this application saying the Court did deal with the issue and disposed it off on 27^th June 2018 at the hearing of their objections. They also point out that this application is incompetent because it has been filed outside the 21 days prescribed by O.11, r.32(1). Further they argue that, Mr. Dekena’s application does not otherwise meet the requirements for a successful slip rule application.
   

Relevant issues

3. Clearly therefore the issues for this Court to deal with are these:
   

(1) Is the Application incompetent for it being filed outside the 21days prescribed by O.11, r.32 (1) of the Supreme Court Rules?

(2) Has Mr. Dekena made out a case for grant of leave for him to proceed with an application under the slip rule?

Background facts

4. The background to this application is straight forward. The then Chief Justice, Sir Salamo Injia sitting as a single judge of the Supreme Court granted Mr. Dekena leave to pursue a substantive review application against a decision of the National Court which dismissed his election petition against the Hon. Kuman’s election victory out of the 2017 National General Elections. The petition preceded both men claiming victory with two writs surfacing and both men turning up on the first sitting of Parliament after the Elections claiming the same seat, namely, Gumini Open Electorate in the Simbu Province. The Electoral Commission recognized the Hon. Kuman as the duly elected member for the relevant seat.
   
5. After the grant of leave, Mr. Dekena filed a substantive review application. That application was met with objections to its competence from Hon. Kuman which was supported by the Electoral Commission. The main ground for the objection was that, the grounds for review were not the same grounds for which leave was granted and that, completely new grounds for which leave were not sought and granted, were included. The Respondents proceeded with their arguments in support of the objection. At the end of their arguments, Mr. Dekena first took issue with the competency of the objection to competency. The main basis for that objection (preliminary issue) was that Hon. Kuman in his objection cited the wrong reference, namely, O.5, r.35 instead of r.36 of the SCR. By reason of that wrong reference, so argued learned Counsel for Mr. Dekena, the objection to his client’s review application was incompetent and failed to correctly invoke the jurisdiction of the Supreme Court.
   
6. The Court meaningfully engaged with learned Counsel for Mr. Dekena bearing in mind the law on point as represented for instance, by the decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama^[1] where the Court said:
   

“27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v. Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

‘It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.’”

7. The full Court was also aware of the circumstances in which the principle was applied in the above case. There the competency issue allowed to be raised at the review level concerned competency of the petition and not the processes that was before the Supreme Court. That as far as the Court was concerned meant that it is not too late to raise competency issues concerning originating process at the Supreme Court level reviewing on appeal or review a decision of a trial court.
   
8. The discussion between the Court and learned counsel resulted in Counsel for Mr. Dekena deciding to abandon his client’s preliminary argument. Having resolved the preliminary issue in that way, the Court proceeded to hear all the parties on the Respondents’ objection to the competency of the substantive review application. After reserving its decision, the Court finally came to its decision on 20^th September 2018, when the Court delivered its written judgment consisting of 19 pages. That judgment did not include the Courts earlier dealing with and disposal of the preliminary issue raised by Mr. Dekena because the Court had that issue resolved on 27^th June 2018.
   
9. The current application was filed on 11 October 2018, which was 22 days after the delivery of the Courts formal decision on the substantive review application on 20^th September 2018. This has given rise to the first issue. I will deal with that issue now.
   

Issue 1 – Whether the Application was filed out of time?

10. Slip rule applications are governed by O.11, r.32 of the SCR. Of that, sub-rule (1) is the most relevant provision. The provision reads:
    

“(1) An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.”

(Underlining supplied)

(a) Meaning of the term “order” in O.11, r.32(1)

11. The Applicant argues that the time limitation under this provision should run from the date when the formal minutes of the orders were entered. He argues for the word “order” as used in this rule to mean a formal minute taken out on a judgment. Reliance is placed on O.12, r.3 of the National Court Rules which counsel for the Applicant argues comes into play by virtue of O.2, r.1(h) of the SCR. Reliance is also placed on the National Court decision in Gima Raka v. Philip Maimu,^[2] which adopted or followed R v. Ireland.^[3] These rules and authorities deal with the question of when an order takes effect. Proceeding on that basis, he argues that the time under O. 11, r. 32(1) should run from the date when the formal minutes were taken out. Applying his proposition to the case at hand, Mr. Dekena argues that his application was filed within time working from 24^th September 2018, when the formal minutes of the judgment and orders were taken out and the filing of his application on 11^th October 2018.
    
12. On the other hand, the combined effect of the separate submissions of the Respondents is that, the term “order” means to include a judgment of a Court. In support of their submissions, the Respondents referred to several authorities. Learned counsel for the Electoral Commission assisted with a reference to definitions of the term “order” and “judgment” as given by Halsbury’s Law of England.^[4] The relevant parts are at p. 237, para. 501, 545 and 546 in following terms:
    

“The terms ‘judgement’ and ‘order’ in the widest sense may be said to include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court. When the terms are considered separately, they overlap considerably and are incapable of exact definition. Order is a generic term which includes a judgement, and there are distinctions between the two terms”.

13. Then on the question of when does a judgment or order take effect Halsbury says:
    

“A judgement or order of the court takes effect from the day of its date. Such a judgement or order must be dated as of the day on which it is pronounced, given or made, unless the court orders it to be dated as of some other earlier or later date, in which case it will be dated as of that other day.

The date of the judgement or order is important in that the judgement or order generally takes effect from that date.”

14. Counsel makes reference to O. 1, r.7 of the SCR which define the words “order” and “judgment” in the following terms:
    

“‘Order’ where specifically referred to in these rules means an order of a judge of the court...”

.....

“‘Judgment’ means the judgment, decree, order or sentence of a court or a judge under appeal or in respect of which leave to appeal is sought...”

15. As noted by the learned work in Halsbury’s Laws of England, the definitions do not make a clear distinction between the two words. Instead, these words could be used interchangeably. The clarity however, is in the distinction between a formal minute taken out based on an order or a judgment given by a court. A decision of a court can be in the form of an order or a judgment. Sometimes a judgment might contain both a judgment with the reasons for the judgment and formal orders based on a judgment as was the case in this instance. What matters is the giving of a judgment or the making of an order by a court or a judge. Hence, formal minutes or orders follow based only on a judgment or orders of a court once made or arrived at. In other words, formal minutes do not come into operation on their own but based on an order or judgment given by a court.
    
16. The Supreme Court made this clear in the case of Wood v. Watking (PNG) Pty Ltd.^[5] There, the Court had to amongst others, deal with an argument around when the time for the purposes of appeals and s. 17 of the Supreme Court Act runs. The Court said:
    

“It simply means 40 days from the date the judgment was pronounced ...

It is our view that the phrase ‘... after the date of judgment’ in s 17, and in particular the word ‘judgement’, should not be interpreted in accordance with O 12, r 3 because a section in an Act should not be interpreted by a provision in a rule, a piece of delegated legislation. We consider that O 12, r 3 sets out when a judgment or order takes effect for the purposes stated in the National Court Rules only and not generally. Under O 12, not all judgments and orders need to be entered, which means being typed, signed and sealed by the Registrar and filed, see rr 15, 20 and 21. Entry is authorised in certain cases and in certain cases it is not required, see rr 10, 14 and 17. Entry is authorised where, for example, the order is to be served on a person (r 18 (1) (b) ), or where the order is to be enforced (r 18 (1) (c)). The wording of those subrules makes it clear that entry has to be made where the order ‘is to be served’ or ‘is to be enforced’; in other words entry is an essential preliminary to serving or enforcement. Not so with subr (d) where the wording is different.

...

That wording [in O.12, r.18 (a)] suggests that entry is required where there is an appeal, but that the entry need not necessarily be before the lodging of the appeal. If it was intended that entry should precede an appeal, the wording should have read: ‘An order shall be entered ... where an appeal is to be filed.’ ...

We are firmly of the view that entry of a judgment is not an essential preliminary to the lodging of an appeal under the Supreme Court Act, neither does the failure to enter the judgment mean that the appeal period does not run.”

17. Since the decision in Wood v. Watking, the question of when time for appeals or review against a decision of the National Court runs has become settled. Time runs from the date of the pronouncement of the decision, be it in the form of a judgment or order of the Court. Of course, the only exceptions would be cases in which an Act of Parliament expressly provides to the contrary. Recent confirmation of that position can be found in a several recent decisions of the Supreme Court such as the one in Jimmy Maladina v. The State^[6] and Lord & Co Ltd v. Timothy Inapero.^[7]
    
18. Based on the foregoing, I am of the firm view that the term “order” as used in O.11, r. 32(1) of the SCR means the date when a judgment or order is pronounced and not when a formal minute based on a judgment or order is taken out. Hence, time for the purposes of calculating the 21 days would run from the date when the judgment was pronounced.
    

(b) Computation of time for the purposes of O.11, r.32(1)

19. Having determined the date when time commences to run, I now turn to the question of whether Mr. Dekena’s application has been filed within time. A determination of this question is dependent on when the Court pronounced its judgment. The full court pronounced its judgment on 20^th September 2018. Hence, the 21 days period under O.11, r. 32(1) SCR ran from that date. As already noted, Mr. Dekena argues for the counting of the days to commence the next day after the formal minutes which I have dismissed for the reasons I have given in the foregoing. Hence, the only issue to consider is whether Mr. Dekena filed his Application within time working from the date when the judgment and orders were pronounced. Mr. Dekena submits that the 21 days fell on 11^th October 2018, calculating from the date after the Court pronounced its judgment and orders. Consequently, since he filed his application on 11^th October 2018, Mr. Dekena submits that he filed his Application within time. The decisions of the Supreme Court in Kandapaki v. Enga Provincial Government;^[8] Agiru v. Kaiabe^[9] and The State v. Transferees^[10] are cited in support of this argument.
    
20. In opposing Mr. Dekena’s submissions, the Respondents argue for a counting of the days to be inclusive of and commence on 20^th September 2018. Going by that, the 21 days limit, they submit, fell on 10^th October 2018. This placed the filing of the Application outside the 21 days limited when it got filed on 11^th October 2018. The decision of the Supreme Court in Kelly Kilyali Kalit v. John Pundari and The Electoral Commission,^[11] as well as my own decision in the matter of Peter Wararu Waranaka v. Richard Maru,^[12] where I applied the decision in Kalit v. Pundari (supra) have been cited in support of this argument.
    
21. The decision in the Kalit v. Pundari (supra) matter, was one of the first cases on reckoning of time to determine if an election petition had been filed outside or within time. As counsel then appearing for Mr. Pundari in those proceedings I am very familiar with the position taken by all the parties in that case on the issues then before the Court. The parties accepted and so did the trial Judge that time for the purposes of s. 208(e) of the Organic Law or National and Local-Level Government Elections ran from the date of the declaration of the results. The 40 days is inclusive of the day of the declaration. Hence, the only contested issue was when was the date of the declaration, the 4^th or 5^th July 1997. After a trial on that issue, the Court found for 4^th July which placed the petition out of time by one day when it was filed on 14^th August 1997. On review, the Supreme Court affirmed the decision of the National Court.
    
22. In Waranaka v. Maru (supra) I had the opportunity to consider the application of s.208(e). There I discussed the law as it developed since Kalit v. Pundari (supra). As I noted there, the decision in Kalit v. Pundari, has been followed by many subsequent decisions of the National Court. One of the first cases to do that was by the decision in Labi Amaiu v. Andrew Mald and Cyril Retau and the Electoral Commission of PNG^[13]. There the late Chief Justice, Sir Mari Kapi held:
    

“The proper approach is as adopted by Salika J and approved by the Supreme Court in Kelly Kilyali Kalit v. John Pundari and Electoral Commission (supra). The issue of when the result of the election was declared is a question of fact and needs to be determined by evidence.

...In this matter, I did not have to hear evidence on the issue as it was accepted by all parties that the result of the election was declared on the 24 July 2007. The 40 days is to be computed from the day of declaration (that is 24 July). This method of computing the 40 days as I have pointed out before, can be deducted from the Supreme Court decision in Kelly Kalit v. John Pundari (supra).”

23. Sawong J. (as he then was) was of a similar view earlier on in Dr Benedict Pisi v. Sam Akoitai and The Electoral Commission^[14]. There His Honour held:
    

“From the foregoing, I find that the declaration for the Central Bougainville Open Seat was made on 1st July 1997. It follows from this finding of fact that the 40 day time limitation commenced to run from that day (i.e. 1st July, 1997) and ended on 10 August, 1997. The petition in this case was dated 11 August, 1997. ... That being the case, there is no doubt that the Petition was filed outside the time period prescribed by law.

24. A departure from that position came about in the recent decision of Makail J., Labi Amaiu v. John Kaupa^[15]. His Honour was of the view that:
    

“...the date of declaration is not inclusive for the purpose of computing the 40 days. The time limit of 40 days starts to run the following day from the date of declaration. In this case, it ran from 29th July and expired on 6th September. The petition was filed on 6th September. It was filed within time.”

25. His Honour said his view was fortified by the decisions in Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission^[16]: and Kaiabe v. Agiru.^[17] The first of these cases was a National Court decision. There the date of declaration of the result was 19^th July 2012. Mr. Kaiabe filed his petition on 27^th August 2012. Then on the next day, 28^th August, he filed an amended petition. The Court computed 40 days from the date of declaration of 19^th July and concluded that, the amended petition was filed on the 41^st day, which was one day late. It was held that the amended petition was filed out of time and therefore incompetent. Accordingly, the petition was dismissed. Aggrieved by that decision, Mr. Kaiabe sought a review of that decision by the Supreme Court.
    
26. In his ruling on the application for leave, Kirriwom J sitting as a single Judge of the Supreme Court held that the calculation of 40 days from the date of declaration of 19^th July was wrong. The reckoning of time should have started on the following day which was 20^th July 2012. Hence, His Honour found there was a clear error of law which would have resulted in the petition been re-instated. However, leave was refused because the pleadings were bad.
    
27. Makail J. thought the single Judge Supreme Court decision in Kaiabe’s case was consistent with the literal interpretation of s. 208 (e) of the Organic Law on Elections and represented the correct legal position in terms of computing the time limitation of 40 days to file a petition. At the same time, His Honour was of the view that the decisions in Kelly Kalit and Labi Amaiu are distinguishable on their facts. According to His Honour, both these decisions did not see a serious contest on the computation of time for the purposes of s. 208(e) of the Organic Law on Elections.
    
28. I was not provided with a copy of the Supreme Court decision, Makail J. referred to in His decision in the second of the Labi Amaiu case. A search for a copy of the decision did not and does not yield any fruit. Counsel for the petitioner, in the case did not assist the Court with any published Supreme Court decision on point which takes a different view to the one expressed in the Kalit v. Pundari matter. Hence, I decided to go by the decision of the Supreme Court in that case. In so deciding, I had regard to the specific wording of the provisions of s. 208 (e) of the Organic Law Law on Elections. I also had regard to the decision of the Supreme Court in Delba Biri v. Bill Ninkama^[18] which settled the principles of law in relation to the interpretation of the Organic on Elections s. 208 (e) and s. 3 (2) and Constitution Sch. 1.1 and Sch. 1.16. There can be no dispute as to what those principles are as they are now well settled and accepted. The Organic Law on Elections being a Constitutional Law, the provisions of s. 11 of the Interpretation Act (Chapter No.2) which applies to interpretation of ordinary statutes, do not apply to interpreting the provisions of the Organic Law on Elections. Instead, Constitution Schedule 1 (which includes Sch. 1.1 and Sch. 1.16) applies to interpreting the provisions of the Organic Law on Elections, such as s. 208 (e). The combined effect of Constitution Sch. 1.1 and Organic Law on Elections s. 3 (2) and s. 208 (e) is a prescription of a mandatory time limit of 40 days within which a petition against an election result must be filed.
    
29. I also observed that, there can be no dispute that the time limit of 40 days imposed by s.208 (e) of the Organic Law on Elections, includes all seven (7) days of the week which means, both the five (5) weekdays or working days and the two week-end days. I expressed the view that, this is why Rule 2 (2) of the Practice Directions for Presentation and Conduct of Elections N/C 2/97 issued by the National Court on 27 June 1997 provided that “the reckoning of the time limit in sub-section (1) (40 days limit) includes all days of the week, and the time limit cannot be extended”. The current Election Petition Rules 2017 does not have a similar provision. That I said was of no consequence as the Organic Law on Elections as interpreted and applied by the Supreme Court led by the decision in Biri v. Ninkama is very clear on this point.
    
30. Going by this clear law, I was respectfully mindful of the fact that following the view expressed by his honour Makail J, would be taking us back to what s. 11 of the Interpretation Act provides for, which the Supreme Court in the Biri v. Ninkama case and the long list of Supreme Court decisions that follow that decision clearly and have repeatedly held, does not apply to s. 208 (e) of the Organic Law on Elections. For clarity in understanding, I reproduce the provisions of s. 11(1) which read as follows:
    

“11. Computation of time

(1) In computing time for the purposes of a statutory provision, a period of time from—

(a) a certain day; or

(b) the happening of an event; or

(c) the doing of an act or thing,

shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done.”
(Emphasis supplied)

31. Further, I was also mindful of the fact that all decisions of the Supreme Court are not binding on itself, but all lower courts are. That does not, however, mean that the Supreme Court can arrive at decisions that contradict each other. In Paru Aihi v Peter Isoaimo,^[19] I discussed in detail with the full agreement of my brother Yagi J., who was one of the other members of the Court, the law governing the question of when and how the Supreme Court could depart from its earlier decisions or judgment. Based on the numerous authorities discussed and considered in that judgment I summarized the law as follows:
    

“A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for (sic) its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:

(i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

32. I then concluded that, unless the decision of the Supreme Court in the Kelly Kalit v. John Pundari and the one in Biri v. Ninkama as well as the long line of cases that follow them are reversed or altered in accordance with the principles summarized in the above passage, Kelly Kalit v. John Pundari and Biri v. Ninkama are the law on point. With respect, the decision in the second Labi Amaiu case and the unpublished single Judge decision of the Supreme Court referred to in that decision, run contrary to established principles of law. I then decided to follow the law as represented by the decisions of the Supreme Court in Kelly Kalit v. John Pundari and Biri v. Ninkama, not because I was obliged to but also and most importantly because of the soundness of the principles they represent.
    
33. In the present case, learned Counsel for Mr.Dekena did not cite the relevant parts of each of the cases he has referred to. My perusal of those cases shows nothing useful on the question of correctly computing time for the purposes of O.11, r.32(1) of the SCR. In the first case, Kandapaki v. Enga Provincial Government (supra) there was no meaningful discussions on the issue. The same was the case for the second case of Agiru v. Kaiabe (supra). There were only quick mentions and conclusions in both cases that the respective applications were filed within time. It is not clear if the parties argued the point. The same applies to the third case of The State v. Transferees (supra). There is no mention of any argument on the issue of time computation. Instead, there was no contest between the parties that the applicants in that case filed their application outside the 21 days prescribed limit. That being the case, we are left with the decision in Kalit v. Pundari, and the cases that followed it, including my own decision in the Waranaka v. Maru case.
    
34. To what I have discussed in the Waranaka v. Maru case, I add this. If we count the days for the purposes of s. 208 (e) of the Organic Law on Elections or O.11, r.32 (1) of the SCR from the next day after the event respectively of a declaration or a decision, we would be effectively saying the event did not happen on the day of the event which was the day before. This defies logic and common sense in the sense that the relevant day of the event giving rise to an appeal or a review does not get counted. I am not prepared to allow such an approach in the absence of any convincing argument against the position taken by the cases following the Kalit v. Pundari line of authorities.
    
35. In the present case learned Counsel for Mr. Dekena did not present any arguments and or submissions to the contrary to the view I have expressed in Waranaka v. Maru. Since the delivery of the above decision, I have neither been presented with any arguments to the contrary nor has there been any judgment taking a different view. Accordingly, I am of the view, that the views I expressed in the Waranaka v. Maru is still good law and are applicable here.
    
36. Accordingly, I maintain the view that the computation of time for the purposes of s. 208 (e) of the Organic Law on Elections and O.11, r.32(1) SCR runs from the day of the event, be it the declaration of election results or for the filing of a slip rule application under O.11, r.32 (1) of the SCR. Applying this method of commutating time, the 21 days for the purpose of the application now before this Court I find that the time ran from the day of the decision which was 20^th September 2018. The 21^st day fell on 10^th October 2018. The Application before the Court was filed on 11^th October 2018. That was a day late. No doubt, this renders this Application incompetent for being filed out of time, on which basis the Applicant should be dismissed.
    

Issue 2 - Has the Applicant made out a case for grant of leave?

37. There is however a further basis, which is the subject of the remaining issue. This requires firstly, a consideration of the principles governing slip rule applications, and followed by an application of those principles to determine the issue.
    
38. The principles governing slip rule applications are well settled. In the five-member Supreme Court decision in Andrew Trawen and Anor v. Stephen Pirika Kama and Ors,^[20] the Court after a review of the authorities, settled the following as the principles that govern all slip rule applications:
    

(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) 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.

39. These principles have been consistently applied in many earlier and subsequent decisions of the Supreme Court, such as the decision in Moses Manwau v. Andrew Trawen^[21] with followings in the National Court as in my own recent decision in Francis Kunai & Ors v. Papua New Guinea Forest Authority & Ors.^[22]
    
40. Bearing these principles in mind, I note that the main determinative argument in the present case by Mr. Dekena is that, this Court did not consider arguments he raised against the competence of the Respondents objections to his substantive review application. As noted earlier, Mr. Dekena did not take issue at the outset of the hearing of the Respondents’ arguments against the competency of is substantive judicial review application. Instead, he first took issue by way of a preliminary point which concerned the competency of the objection to competency after the Respondents completed their arguments and as Mr. Dekena commenced his arguments in response. The main basis for that preliminary issue was that Hon. Kuman in his objection cited the wrong reference, namely, O.5, r.35 instead of r.36 of the SCR. By reason of that wrong reference, so argued learned Counsel for Mr. Dekena, the objection to his client’s review application was incompetent and failed to correctly invoke the jurisdiction of the Supreme Court.
    
41. Again, as I already noted earlier, the Court meaningfully engaged with the learned Counsel for Mr. Dekena bearing in mind the law on point. The discussion between the Court and learned Counsel for Mr. Dekena resulted in Counsel deciding to abandon his client’s preliminary argument. Having resolved the preliminary issue in that way, the Court proceeded to hear all the parties on the Respondents’ objection to the competency of the substantive review application. After reserving its decision, the Court finally came to its decision on 20^th September 2018, when the Court delivered its written judgment. That judgment did not include the Courts earlier dealing with and disposal of the preliminary issue raised by Mr. Dekena because it had that issue resolved on 27^th June 2018.
    
42. Since the issue Mr. Dekena was taking in his slip rule application was the subject of an earlier part of the Court dealing with the substantive matter, the transcript of proceedings before the Court were critical. Counsel for Mr. Dekena claims he was not able to seek and secure the relevant transcript because it was only a leave application and the transcription service was not able to provide them. At the hearing of this application the Court highlighted the importance of the transcript and decided that they be obtained and let them assist in a determination of this matter.
    
43. The transcript has since been secured by the Court with copies provided to the parties. Counsel for Mr. Dekena raising the preliminary issue recorded from pages 39 – 43. The discussions noted in the following part of the transcript is most relevant and conclusive on the issue before the Court:
    

“Kandakasi J: What is the case law on that? I think there are two views. One view is the strict approach as you are saying. If you invoked the wrong provisions to invoke the jurisdiction of the court, everything goes. Another view says, look at the substance. Look at whether the court has jurisdiction to deal with the question presented and if it does then the failure to cite the correct provision should be of no consequence. So which view are you subscribing for and why?

Mr Yariyari: I am subscribing to the earlier.

KandakasI J: Yes, and what is the case law on that and what is the reasoning?

Mr Yariyari: Beg your pardon your Honour, I have not got a case law too.

Kandakasi J: Counsel should come ready to persuade otherwise at the end of the day section 217 of the Organic Law, substantive justice. All right, flexibility.. what is called for?

Mr Yariyari: That is correct, your Honour.

Kandakasi J: So, flexibility does not just go one way, it goes both sides.

Mr Yariyari: Both sides.

Kandakasi J: Both ways. And if it is a matter that the court already has jurisdiction does it really matter that the incorrect rule has been cited or provision has been cited? Does it really matter? Should not the fact of whether the court has jurisdiction be the starting point?

Mr Yariyari: I will agree with you on that, your Honour.

Kandakasi J: What are you agreeing to?

MR Yariyari: I am agreeing that the court will substantially have jurisdiction.

...

Kandakasi J: You are abandoning your arguments on the jurisdictional re wrong provision cited.

Mr Yariyari: Yes, we will leave that aside.

Kandakasi J: Okay, all right, thank you. Then we get on with the essence of the objection then.

Mr Yariyari: That is correct.”

(Underlining supplied)

44. This record of proceedings is very clear. Learned Counsel for Mr. Dekena raised the preliminary argument. As already noted, this was after the Respondents had completed their arguments on their objection raised against the competency of the substantive review application. There was a discussion between Counsel and the Court on the issue. Then at the end, the learned Counsel for Mr. Dekena decided to abandon the preliminary issue and proceed to address the arguments on the substantive objection.
    
45. The step taken by Mr. Dekena’s Counsel was the correct step to take. There are two reasons for this. First Counsel should have raised the objection well before the Respondents proceeded in the substantive objection. Instead, he allowed them to proceed and only after they had finished, he chose to raise the objection. The practice defies proper right of address in the Courts. He should have raised his objections prior to the Respondents proceeding with their arguments on the objection to the competency of the substantive review application. Secondly, on the merits as pointed out in the foregoing, the preliminary point raised by Mr. Dekena could not be sustained.
    
46. Once the transcript became available, the Court provided all the parties with copies and gave them the opportunity to make further submission if they wish to. The Respondents submit the transcripts speak for themselves against Mr. Dekena. On the other hand, Mr. Dekena’s Counsel is maintaining his client’s application and makes further submissions in the following terms:
    

“However, the Court slipped (see Transcript, at page 42 between lines 30 and 40 therefore) when it asserted that in the absence of case authorities to be supplied by the Applicant’s counsel it would otherwise rely on Section 217 of the Organic Law on National and Local-Level Government Elections (substantial justice) to overcome the defect by the First Respondent. The force of the Court’s particular assertion under the circumstances, where the Applicant’s counsel was unable to provide the case authorities, made it obsolete to continue with this argument such that the Applicant’s counsel abandoned this argument. The Court slipped and made a manifest error by relying on S.217 of the OLNLGE.”

47. This in my view is contemptuous conduct on the part of Counsel. After having abandoned his argument and hence his client’s preliminary objection in clear and unequivocal terms, he cannot turn around and say the Court slipped. If he was not sure due to not accessing the transcript, he had the opportunity to refresh his mind when the Court provided him with a copy of the transcript after which he should have abandoned his client’s application. Instead, of doing that, Counsel, seeks to justify his decision to abandon his clients’ arguments on the preliminary issue, by claiming the Court made a slip. Apart from possible unethical conduct, he is obvious treating the Court with contempt. Accordingly, I find Mr. Dudley Yariyari, guilty of contempt of Court in the face of the Court. I will return to that issue separately later.
    
48. Now, returning to the decision on the application before the Court, I reiterate the point that has been made in numerous cases in the past that, “there is a substantial public interest in the finality of litigation”, which means litigation cannot go on for ever. Once a final decision has been arrived at, that should be the end of the matter. In this case, when the full Court came to its decision on 20^th September 2018, that put an end to any further litigation or court proceeding. This requirement for finality in litigation is however subject to correcting any apparent injustice occasioned by a clear misapprehension of the facts or the law not by a litigating party but by the Court. The opportunity to revisit by what has now become the process of slip rule application is thus there to take care of such injustice but is certainly not an opportunity to rehash arguments parties have already presented. Similarly, it is not an opportunity for the presentation of new arguments that could have been presented earlier.
    
49. In the present case, the issue Mr. Dekena seeks to raise by way of a slip rule application is an issue he has raised in the hearing by the full Court. Most importantly, after a meaningful discussion between the Court and Mr. Dekena’s learned Counsel, Counsel decided to abandon the argument and hence the preliminary issue. Clearly therefore, if there was any slip it was a slip on the part of the Counsel for Mr. Dekena. As far as the Court records and the Respondents are concerned the preliminary issue no longer became an issue once counsel decided to abandon it without any equivocation about it. Hence, it was not necessary to cover this aspect in the full Court’s judgment. That been the case, the case does not qualify to be an appropriate case of slip rule application.
    
50. Further, an applicant in an application for leave to proceed with a substantive slip rule application has the burden to demonstrate to the satisfaction of the Court that the propose slip rule application meets all the requirements for slip rule. Additionally, the application must demonstrate both factually if facts are involved or required and legally that, there is a strong chance of succeeding in the substantive arguments and is not merely an arguable point. In the present case, the foregoing discussions clearly show that, there is not a chance of Mr. Dekena succeeding in his application.
    
51. For these reasons, I decline to grant the leave sought and instead order that it be dismissed with costs against the Applicant, Mr. Dekena to be taxed, if not agreed.

_______________________________________________________________
DTY Lawyers: Lawyers for the Applicant
Kongri Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

---

^[1](2010) SC1064.
^[2] (2013) N5200.
^[3] (1970) 44 ALJR 263
^[4] 4^th Edition, Vol. 26, 1979
^[5] [1986] PNGLR 88.
^[6] (2015) SC1572
^[7] (2009) SC1042
^[8] (2015) SC1463
^[9] (2015) SC 1412
^[10] (2016) SC1488
^[11] (1998) SC569
^[12] (2018) N7346
^[13] (2008) N3334.
^[14] (1997) N1694.
^[15] (2017) N7004.
^[16] EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015).
^[17] (supra).
^[18] [1982] PNGLR 342
^[19] (2013) SC1276
^[20] (2010) SC1063
^[21] (2011) SC1159
^[22] (2018) N7570