Electoral Commission v Kaku [2020] PGSC 7; SC1911 (31 January 2020)

SC1911

PAPUA NEW GUINEA
[IN THE SUPEREME COURT OF JUSTICE]

SCR (EP) No. 4 of 2019 (No. 2)

APPLICATION UNDER SECTION 1552(2)(b) OF THE CONSTITUTION

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

BETWEEN:
ELECTORAL COMMISSION
Applicant

AND
PASTOR BERNARD KAKU
First Respondent

AND
WILLIAM POWI
Second Respondent

Waigani: Anis J
2019: 19^th December
2020: 31^st January

SUPREME COURT – PRACTICE AND PROCEDUE - Leave For Slip Rule Application – Order 11 Rule 32(1), (2) and (3) – Supreme Court Rules – Order of 30 October 2019 – order for cost – whether cost was also awarded in favour of the second respondent – whether final order where cost was awarded only in favour of the Applicant may be a mistake or slip in the judgment by the Court that is not attributed to the conduct of the parties – whether the matter requires leave to make a slip rule application

Cases Cited:

Joseph Kobol v. William Powi (2018) SC1731
The State v. The Transferees (2016) SC1488
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412

Counsel:

Mr H Nii, for the Applicant
Mr R Diweni, for the First Respondent
Mr A Baniyamai, for the Second Respondent/Applicant for Leave

31 January, 2020

1. ANIS J: The second respondent applied for leave to make a slip rule application on 19 December 2019. I heard and reserved my ruling on that day to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. The Electoral Commission of Papua New Guinea (the Commission) had sought to review a National Court’s decision concerning 2 objections to competency applications, that is, in relation to an election petition. The election petition was filed by the first respondent against the election victory of the second respondent Hon. William Powi in the 2017 National General Elections. The declared seat was for the Southern Highlands Provincial Electorate. Hon. Powi is the applicant herein (the applicant). On 30 October 2019, the Supreme Court upheld the review by the Electoral Commission. The matter of contention which this leave application alleges requires rectification, relates to the Supreme Court’s final Order on cost. In its final decision, the Supreme Court awarded cost of the review in favour of the Electoral Commission only.

4. The applicant was aggrieved and filed this application on 12 November 2019 (the application). The applicant intends to argue before the slip rule Court, if leave is granted, that the Supreme Court had made accidental slips at paragraphs 71(vi) and 72(6) of its judgement dated 30 October 2019. The applicant intends to argue that the majority in the Supreme Court have awarded costs of the appeal and the 2 mistrials, to the Electoral Commission and himself as the second respondent. The applicant submits, however, that the majority’s decision was not captured in the final decision. As such, he submits that leave should be granted so that the mistake or slip, as he puts it, must be argued and, if he is successful, corrected.

5. The Electoral Commission supports the applicant’s submission in this application.

COMMON GROUND

6. The parties are firstly at common ground that I, sitting as a single Supreme Court Judge and given the fact that I was part of the 3 men bench that delivered the final Supreme Court’s decision on 30 October 2019, have jurisdiction of hearing the application. I uphold the said view. But regardless of this common ground, I do find that I am capable to sitting as a single Supreme Court Judge in this matter. Order 11 Rule 32(3) of the Supreme Court Rules is express. It states, and I quote in part:

A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed. See also the case: Joseph Kobol v. William Powi (2018) SC1731.

7. The parties are also at common ground of the fact that the application was filed within 21 days from the date of the final review order. The 21 days limitation period is prescribed under Order 12 Rule 32(3) of the Supreme Court Rules. It states, and I quote in part, 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. This jurisdictional provision is one of the two mandatory requirements that must be adhered to, for this leave Court to seize of the matter or to assume jurisdiction. For this case, I find that the said requirement has been met by the applicant, that is, his leave application was filed within 21 days.

8. The first respondent, however, contests, as part of his arguments, compliance in regard to the other mandatory requirement, that is, whether the applicant has quoted or invoked the correct source for this type of application, that is, application for leave to make a slip rule application. I will shortly address this below as a preliminary issue.

ISSUES

9. The main issues are, (i), whether the source of the application should have been under Order 12 Rule 4 of the Supreme Court Rules and not Order 11 Rule 32(3) of the Supreme Court Rules, and (ii), whether the reasons stated for the proposed slip rule application are valid or have strong chances of success therefore whether leave should be granted.

JURISDICTIONAL CHALLENGE

10. Term 1 of the leave application reads, and I quote in part, Pursuant to Order 11, Rule 32(3) of the Supreme Court Rules, leave be granted to the Second Respondent to proceed with the application herein and or to make the slip rule application herein before the Supreme Court.

11. Order 11 Rules 1 and 32(3) of the Supreme Court Rules read, and I quote in part:

PART 4—GENERAL PROVISIONS

ORDER 11—RULES OF GENERAL APPLICATION

Division 1.—Application

1. The rules contained in this part apply to all matters brought under these rules unless in these rules, the contrary intention appears.

......

Division 16. —Applications subsequent to disposal of proceedings

32. (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.

(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.

(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.

12. The first respondent, in opposing the leave application, submits that the correct source should have been Order 12 Rule 4, and not Order 11 Rule 32(3) of the Supreme Court Rules. Order 12 Rule 4 states and I quote in part:

Division 4.—Time for dealing with costs

4. The Court or a Judge may in any proceeding of which the Court or Judge is seized exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding.

(a) Where the Court or a Judge makes an order in any proceeding for the payment of costs the Court or a Judge may require that the costs be paid forthwith notwithstanding that the proceeding is not concluded.

(b) An order for costs of an interlocutory proceeding shall not, unless the Court or a Judge otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.

(i) When, pursuant to Section 3 or 12 of the Act judgment is delivered by less than the full number of Judges who heard the proceeding, if no final order for costs of that proceeding is included in the judgment, the Judges or Judge delivering the decision of the Court may hear the parties on costs and make such order for costs, as is considered just.

(ii) After hearing argument the Judge or Judges may consult the available absent members of the Court, in which case the order made shall be the order of the majority of the Court.

13. “So is the first respondent correct? Did the applicant invoke an incorrect source, and if so, whether the application is incompetent and must be dismissed?” To me, I find the argument baseless. I refer to Order 12 Rule 2 of the Supreme Court Rules. It states, and I quote:

Division 2. — Application

2. The provisions of this Order apply to costs payable or to be taxed under any order of the Court, or under these Rules, and costs to be taxed in the Court under any Act.

(Underlining mine)

14. The provisions of Order 12, as stated under Rule 2, apply to costs payable or to be taxed. And Order 12 Rule 4 applies in situations where the Supreme Court still has carriage of a matter that is before it, that is, from the start of an appeal or a review, right through to its conclusion including its final decision, whereby it may make its ruling on cost. This is, however, not the same here. In the present case, the Supreme Court had gone past that stage. It had already decided on cost in its final order. The present application is made after the disposal of the substantive matter by the Supreme Court, not before. And the applicant in this case intends to correct what he claims was a mistake or slips which were allegedly committed by the Supreme Court in its final decision on cost.

15. Therefore, Order 11 Rule 32(3), in my view, is the correct cited source. I find that to be the case herein. I would also refer to the case of The State v. The Transferees (2016) SC1488 (Sakora, Gavara-Nanu, Ipang JJ) which has held that to be the case.

STRONG CHANCE OF SUCCESS

16. The tests to grant leave to make a slip rule application are settled. The Supreme Court in the case of Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412, states the 2 pre-conditions. Firstly, the applicant must, under Order 11 Rule 32(1) of the Supreme Court Rules, seek leave within 21 days after the order disposing of the proceedings. Secondly, the applicant must satisfy the Court that the slip rule application would have a strong chance of success.

17. In this case, I have already dealt with the first requirement. The application was filed within 21 days.

18. Moving on, I ask myself this. “Does the applicant have a strong chance of success?” In my view, I think Mr Diweni and Mr Baniyamai captured the contested parts of the Supreme Court’s judgment, in their submissions. Let me address them now. A copy of the judgment is marked as annexure A to the affidavit of the applicant filed on 12 November 2019.

19. The first relevant part in the judgment is contained at paragraph 1. Deputy Chief Justice, Justice Kandakasi stated and I quote in part:

I have had the privilege of reading the draft judgment of His Honour Anis J. I agree with the orders His Honour proposes for the reasons he gives. However, given the importance of the issues raised in this review, I will express my own views.

20. The second relevant part in the judgment is contained at paragraphs 33 and 34. The Deputy Chief Justice stated at paragraph 33, and I quote in part, The Commission and Hon. Powi have succeeded on this review application, they are entitled to their costs of both the process before this Court and the trial in the Court below. Those costs could have been avoided had Pr. Kaku and his lawyer appreciated the correct legal and logical position as I sought to elaborate in the foregoing and worked with the Commission and Hon. Powi to have the Commission’s decision also determined first before pressing on for the trial. And at the following paragraph, that is, paragraph 34, His Honour stated, and I quote, In the end, I would also make the orders proposed by His Honour Anis J.

21. The third relevant part in the judgment is contained at paragraph 35. His Honour Justice David stated, and I quote in part:

I have had the privilege of reading the draft judgment of the Honourable Deputy Chief Justice and my brother Anis J. I agree with the outcome their honours propose for the reasons they give.

22. The fourth relevant part in the judgment is contained at paragraphs 69, 70, 71 and 72. I stated therein, and I quote in part:

69. I note that the applicant is asking for costs of both the Supreme and the National Court proceedings, to be met by the first respondent. In this case, I note that I have not dismissed the substantive petition which is still pending before the National Court. I will refrain from making any substantive orders in relation to the cost of the National Court proceeding, that is, all except in relation to the costs of the two (2) mistrials, and I would refer to and adopt His Honour the Deputy Chief Justice’s reasoning given above on the subject matter.

70. I will therefore order that costs of this Review and costs of the two (2) mistrials in the Court below, shall follow the event on a party/party basis to be taxed if not agreed.

Formal Orders

71. I make the following orders:

......

(vi) The First Respondent shall pay the Applicant’s cost of the Review and costs of the 2 mistrials in the Court below, on a party/party basis which may be taxed if not agreed.

FINAL ORDERS OF THE COURT

72. Accordingly, this Court makes the follow orders:

......

(6) The First Respondent shall pay the Applicant’s costs of the Review and the National Court proceedings in respect of terms (3) and (4) of these orders, on a party/party basis which may be taxed if not agreed.

23. Having considered all these, I reach this conclusion. Firstly, I note that the Deputy Chief Justice had expressed his agreement with the draft orders that I had proposed at paragraph 71 of the judgment. But I think the turning point may be at paragraph 69. In my decision therein, I had agreed with the decision of the Deputy Chief Justice in relation to cost. And His Honour’s decision on cost is captured at paragraph 33 of the judgment. In the said judgment, His Honour appeared to award cost to both the Electoral Commission and the applicant herein. And because I have indicated that I would adopt the said decision as my own at paragraph 69 of the judgment, it may very well amount to a mistake or a slip not to include, reflect or capture that into the final orders, that is, at paragraphs 71 and 72 of the judgment.

CONCLUSION

24. This therefore means or suggest that the substantive slip rule application may have meritorious basis; that there may be a mistake or a slip by the Supreme Court by not fully capturing its unanimous decision on cost in its final decision. I find that to be the case, that is, that there is or may be a strong chance of success in this intended slip rule application. As such, I intend to and I hereby grant leave to the applicant, namely, the second respondent, to make his slip rule application. I make a further order that the matter shall be listed onto the first Directions Hearing List in February 2020 for listings.

________________________________________________________________

Harvey Nii Lawyers: Lawyers for the Applicant
Diwenis Lawyers: Lawyers for the First Respondent
Baniyamai Lawyers: Lawyers for the Second Respondent