Amaiu v Kaupa [2019] PGSC 66; SC1843 (3 September 2019)

SC1843

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 37 OF 2018

APPLICATION UNDER SECTION 155(2) OF THE CONSTITUTION

IN THE MATTER OF PART XVIII OF THE
ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIOS, 1997

BETWEEN
LABI AMAIU
Appellant

AND
JOHN KAUPA
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2019: 3 September

SUPREME COURT REVIEW – practice and procedure – applications filed by both applicant and first respondent - applicant seeks to dispense with the requirement of the respondents under Order 5 Rule 32 of the Supreme Court Rules to sign Certificate of Correctness of the Review Book –first respondent seeks to dismiss entire Supreme Court Review on the grounds of, among others, the applicant failed to file the amended Review Book within 28 days as ordered by the Supreme Court - review application properly before the Supreme Court - it would be inappropriate for a single judge of Supreme Court to usurp powers of full Supreme Court – application by applicant upheld – application by first respondent refused

Counsel:

Mr. Stanley Liria, for the Appellant/Applicant
Mr. Camillus Gagma, for the First Respondent
Mr. Steven Ranewa, for the Second Respondent

3 September, 2019

1. DINGAKE J: Before this Court are two applications by Labi Amaiu, the applicant and first respondent, Hon. John Kaupa. The applications are interrelated. It is convenient to deal with the application by the applicant first.
2. The first application by Labi Amaiu, seeks to dispense with the requirement of the respondents under Order 5 Rule 32 of the Supreme Court Rules to sign the Certificate of Correctness of the Review Book annexed as Annexure ‘A’ to the affidavit of Labi Amaiu sworn on the 25^th of July, 2019.
3. The application is brought in terms of Order 5 Rule 6 and 39 of the Supreme Court Rules and Section 5(1) (a) and (b) of the Supreme Court Act and Section 155(4) of the Constitution.
4. The second application by the first respondent filed on the 9^th of August, 2019, seeks to dismiss the entire Supreme Court Review on the grounds stated in the application, the main one being that the applicant failed to file the amended Review Book within 28 days as ordered by the Supreme Court.
5. The material background to these two applications deserves being stated briefly.
6. Sometime in January 2019, Batari J., sitting as a single Judge of the Supreme Court granted leave to the applicant to bring the review proceeding before the Supreme Court.
7. The review application was set to be heard by the Supreme Court on the 26^th of June, 2019. However, the Supreme Court vacated the hearing of the review application brought by the applicant and issued Orders, requiring, inter alia, that within 21 days from the date of the Order (26^th June, 2019) the Index to the Review Book and the Review Book be amended by the applicant and certified by all parties.
8. The Supreme Court also ordered that three (3) copies of the amended and certified Index to the Review Book and amended Review Book referred to earlier be filed by the applicant for the Supreme Court within 28 days of the date of the Orders.
9. The Court also ordered that copies of the amended and certified Index to the Review Book and amended Review Book referred to in Order 5 be served on all parties by the applicant within 28 days of the date of the Orders.
10. The balance of the Orders of Supreme Court issued on the 26^th of June, 2019, evince a clear intention to avail to the Supreme Court all material relevant documentation necessary for the effectual determination of the dispute between the parties.
11. The applicant served the respondents with the amended Index to the Review Book and the amended Review Book for them to certify same as per the Orders of the Supreme Court, within time, on 17^th of July, 2019.
12. There is no evidence that the amended Index to the Review Book and the amended Review Book were served on the respondents on 24^th of July, 2019 or any other date than the 17^th of July, 2019, as occasionally contended by the respondents in their oral submissions. In any event even if service was effected on the 24^th of July, 2019, such would have been within time, alternatively substantially compliant.
13. Upon being served or presented with the amended Index to the Review Book and the amended Review Book, the respondents took issue with the inclusion of the Order of the National Court of the 25^th of July, 2018. Upon being presented with the amended Index to the Review Book and the amended Review Book the parties hereto exchanged letters up and until the 24^th of July, 2019, which contested the correctness or otherwise of including the Order of the National Court of the 25^th July, 2018, in the amended Review Book.
14. The respondents oppose the applicant’s application to dispense with the respondents certifying the amended Index to the Review Book and or the amended Review Book on principally three (3) grounds.
15. The first ground is that the applicant’s application does not comply with Form 4 of the Supreme Court Rules 2012, in that instead of stating grounds upon which he relies for relief, the applicant makes submissions or states facts.
16. In my mind the grounds required by Form 4 are reasons or cause for the relief sought. I have considered carefully the manner in which the applicant couched what he says are the grounds of the application. I must say that although one or two grounds appear as a statement of fact, on the whole, I am satisfied that the applicant has complied with Form 4 as he stated the reasons and or cause for the relief sought. There is no merit to this complaint, which I find overly technical.
17. The second ground upon which the respondents oppose the relief sought by the applicant is that the application refers to Review Book for dispensation with the requirements for certification of the correctness of the Review Book but not about “Amended Review Book” as it is supposed to be. Again this ground is overly technical and has no merit.
18. Although it is true that the applicant’s application refers to review book and not amended review book, document No. 74, the application, indicates that the review book referred to is Annexure ‘A’ to the affidavit of Labi Amaiu sworn on the 25^th of July, 2019. Annexure A makes it clear that what is being attached is the amended Review Book. This ground is plainly without merit.
19. The third ground is that the applicant failed to comply with the Supreme Court Orders of the 26^th of June, 2019, in relation to terms 5, 6 and 7 thereof.
20. In my respectful and considered opinion there is no merit to this ground because the respondents were served with the amended Index to the amended Review Book and the amended Review Book on the 17^th of July, 2019, within the time frames ordered by the Court. Upon presentation with the amended Index and amended Review Book the respondents unreasonably refused to sign on the basis that that Order of the National Court of 25^th of July, 2018 was included. They wanted the Order to be excluded.
21. There are two reasons why the respondents’ refusal was unreasonable. Firstly, on the evidence it is plain that in fact the Order of the National Court dated 25^th of July, 2018 was included in the application for leave for review, annexed to the supporting affidavit of the applicant but was not explicitly referred to in that affidavit and not duly sworn. There can be no credible objection if the record reflects that Order as it appeared in the application for leave to review, as indeed is the case.
22. Secondly, a perusal of the transcript of the proceedings for the leave to review application that came before my brother Batari J, (Doc. 75 – page 57 of the transcript) seems to suggest that the issue was mentioned or debated before Batari J, but did not prevent the judge granting the leave sought.
23. On non compliance with time frames generally, I emphasize that I do not find that same were breached. In any event even if such breach was proven, which is not so in this case, the applicant, in the alternative would easily be found to have substantially complied. Ordinarily, unless a Court so directs, it would seem, having regard to Order 1 Rule 14 of the National Court Rules, which would be applicable to the Supreme Court matters, by virtue of Order 2, Rule 1(h) of the Supreme Court Rules, that reference to ‘days’ in this case meant Court days and not calendar days.
24. Based on the above expansive definition of what constitutes a ‘day’ or understanding of what a ‘day’ is, it seems clear that the application complied with all requisite time frames. In any event having regard to the seriousness of the issues implicated in the review, that leave has already been granted and that the Orders of the Supreme Court of the 26^th of June, 2019, clearly evince an intention to include all material and relevant documentation that would help the Court to effectually determine the dispute between the parties, I would not be persuaded to refuse the relief sought on any of the grounds advanced by the respondents.
25. I find that the application for dispensation and for a further extension of seven (7) days within which to file the amended review book were made within time, alternatively substantially within the time frame required by the Supreme Court Order of 26^th June, 2019, or the rules of the Supreme Court.
26. The application to apply for further extension was necessitated by the conduct of the respondents who unreasonably refused to sign the amended Index to the Review Book and the amended Review Book. It would be unjust to allow them to benefit from their conduct. I find that the applicant applied for dispensation and extension within time. The application was filed on the 26^th of July, 2019.
27. I turn now to the first respondent’s application for dismissal of the Supreme Court Review.
28. I have already found that the applicant has complied with all the required time frames by the Supreme Court Order of 26^th of June, 2019 and the Rules of the Supreme Court.
29. The respondents by their conduct are the cause of any delay in progressing this matter to finality. Without signing the Index for the Review Book and the amended Review Book there is very little that the applicant would have done other than approach this Court for the relief he seeks.
30. Additionally, the review application is now properly before the Supreme Court and it would, in my mind, be inappropriate for a single judge of Supreme Court to usurp the powers of the full Supreme Court, that is already seized of the matter, certainly not in the circumstances and for the reasons advanced by the respondents, and dismiss the substantive review, now before the full bench of the Supreme Court as prayed. If the respondents take the view that there is any merit in some of the issues they raise, particularly the inclusion of the Order of the National Court of the 25^th of July, 2018, in the amended Review Book, it may raise same with the Court.
31. In the result it is ordered that:
    1. The application to dismiss the substantive review before the Supreme Court is dismissed.
    2. Pursuant to Order 5 Rules 6 and 39 of the Supreme Court Rules and Section 5(1) (a) and (b) of the Supreme Court Act and Section 155(4) of the Constitution, the requirement of the respondents under Order 5 Rule 32 of the Supreme Court Rules to sign Certificate of Correctness of the Review Book annexed as Annexure A to affidavit of Labi Amaiu sworn on 25^th of July, 2019 is dispensed with and the applicant is directed to file and serve the Review Book forthwith.
    3. Pursuant to Order 5 Rules 6 and 39 of the Supreme Court Rules ad Sections 5(1) (a) and (b) of the Supreme Court Act and Section 155(4) of the Constitution, the time required to file and serve the Review Book is extended by further seven (7) days, from today, the 4^th of September, 2019.
    4. The respondents shall pay the applicant’s costs of and incidental to both applications.
    5. The time for entry of these orders be abridged to the date of settlement which shall take place forthwith.\
       

___________________________________________________________
Liria Lawyers: Lawyers for the Appellant
Gagma Lawyers: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent