Baindu v Yopiyopi [2019] PGSC 5; SC1763 (12 February 2019)

SC1763

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 39 OF 2018

APPLICATION UNDER S. 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:
FRANCIS ESSACU BAINDU
Applicant

AND:
JOSEPH JERRY YOPIYOPI
First Respondent

AND:
THE ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2019: 7^th & 12^th February

Application for dismissal of Application for Leave for Review pursuant to Order 5 Rule 37(a) Supreme Court Rules for failure to comply with Order 5 Rule 11 Supreme Court Rules

Cases Cited:

Peter Waranaka v. Richard Maru (2018) SC1718
Tobias Kulang v. William Gogl Onglo (2018) SC1714
Gordon Henry Leslie v. Isi Henry Leonard (2018) SC1706

Counsel

Mr. A. Jerewai, for the Applicant
Mr. J. Simbala, for the Second Respondent

12^th February, 2019

1. HARTSHORN J: This is a decision on a contested application for the dismissal of this application for leave for review.

Background

2. The first respondent was declared the elected Member of Parliament for the Wosera-Gawi Open Electorate in the 2017 General Elections. The applicant challenged that result by Election Petition. The primary judge upheld the respondents’ no case to answer submission and dismissed the applicant’s Election Petition with costs. The applicant filed this application for leave to review on 10^th August 2018.

Application to dismiss

3. The second respondent applies pursuant to Order 5 Rule 37(a) Supreme Court Rules, by application filed 29^th August 2018, for the application for leave to review to be dismissed on the grounds that the applicant:

a) at the date of filing the application for leave to review, did not annex a copy of the formal order of the National Court to the affidavit of the applicant, as required by Order 5 Rule 11 Supreme Court Rules, rendering the application for leave to review incompetent;

b) did not pay attention in identifying the non-compliance with Order 5 Rule 11 Supreme Court Rules, and so did not seek dispensation with having to comply with Order 5 Rule 11, under Order 5 Rule 39 Supreme Court Rules or seek to amend under Order 11 Rule 11 Supreme Court Rules;

c) has not demonstrated or explained the said non-compliance and why dispensation with the requirements of Order 5 Rule 11 is not necessary.

4. The applicant submits that the application for dismissal should be refused as:

a) the judgment of the National Court was a published judgment;

b) the order of the National Court was clearly stated in the final two paragraphs of the said published judgment;

c) consequently, the application for leave to review is competent.

Consideration

5. Order 5 Rule 37 (a) Supreme Court Rules, upon which the second respondent relies is as follows:

“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;....”

6. Order 5 Rule 11 is as follows:

“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.”

7. The applicant concedes that the order of the National Court is not annexed to the affidavit of the applicant that supports the application for leave to review. However, the applicant submits that the judgment from the National Court is annexed and that the judgment contains the order of the National Court. Consequently, submits the applicant, the respondents are not prejudiced, there has been substantial compliance with Order 5 Rule 11 and so the application for leave for review is competent. Further, submits the applicant, this case may be distinguished from the fact situation in Peter Waranaka v. Richard Maru (2018) SC1718. In that case the application for leave to review was dismissed for failure to comply with Order 5 Rule 11 Supreme Court Rules. The applicant therein had not annexed a copy of the formal order of the National Court and had not annexed a copy of the written judgment. In this instance, only the order has not been annexed.

8. Notwithstanding that in this case only the order and not the judgment and order are not annexed to the supporting affidavit, in Tobias Kulang v. William Gogl Onglo (2018) SC1714 and Gordon Henry Leslie v. Isi Henry Leonard (2018) SC1706, only the order was not annexed, in fact situations similar to this case. In both cases the applications for leave were dismissed for failure to comply with Order 5 Rule 11 Supreme Court Rules.

9. As to the submission that there has been substantial compliance with Order 5 Rule 11, as only the order was not annexed and the judgement contains the order, as I said in Tobias Kulang v. William Gogl Onglo (supra) at [19]:

“As to this submission, as a judgment will contain orders made by the judge in the course of making his judgment, this fact was not considered sufficient when the Supreme Court Rules were made otherwise, “order” would not have been included in Order 5 Rule 11. Further, it is necessary to have a copy of the order of the National Court so that, amongst others, the date when the judgment took effect may be ascertained whether on the date of direction by the Court or the date of entry. I am not satisfied that Order 5 Rule 11 Supreme Court Rules has been complied with.

20. In Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko Toliken JJ), the Supreme Court at [50] said:

“50. Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51. The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917). Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).” ”

10. Further, no application has been made by the applicant pursuant to Order 5 Rule 39 Supreme Court Rules to dispense with the requirement of Order 5 Rule 11 to annex a copy of the order to the supporting affidavit of the applicant. I concur, respectfully, with the following remarks of Dingake J in Wesley v. Leonard (supra) at [23]:

“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.”

11. I am satisfied from a perusal of the evidence and a consideration of the submissions made that the second respondent is entitled to the relief that he seeks.

Orders

12. The formal orders of the court are:

a) The application for leave for review is dismissed;

b) The costs of the second respondent of and incidental to the application for leave to review shall be paid by the applicant.
_____________________________________________________________
Jerewai Lawyers: Lawyers for the Applicant
Harvey Nii Lawyers: Lawyers for the Second Respondent