Wakerkwa v Zongonau [2024] PGSC 135; SC2667 (13 November 2024)

SC2667

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 174 OF 2022

BETWEEN:
LEO WAKERKWA
for himself and on behalf of 36 others
Appellant

AND:
JOHN PAUL ZONGONAU
First Respondent

AND:
PORT MORESBY DEVELOPMENT
GROUP INC.
Second Respondent

AND:
BONITA WAROME
Third Respondent

AND:
LOS KAPO
Fourth Respondent

Waigani: Gavara Nanu J, David J, Hartshorn J,
2024: 13^th November

SUPREME COURT APPEAL – practice and procedure - Application for leave to make a slip rule application pursuant to Order 11 Rules 25 and 26 Supreme Court Rules following a refusal of such an application by a single Supreme Court Judge

Cases Cited:
Special Reference by Hon. Davis Steven (2020) SC2041

Counsel:
J. Gene, for the Appellant
T. Yamarahi, for the Fourth Respondent

Oral decision delivered on`
13^th November 2024

1. BY THE COURT: What is before the Court is a contested purported application made pursuant to Order 11 Rules 25 and 26 Supreme Court Rules. The applicant submits that it is an application de novo for this Court to consider an application for leave to make a slip rule application.

2. A full Supreme Court delivered a decision on 31^st October 2024 and amongst others, dismissed an appeal in its entirety for want of prosecution. A single Supreme Court judge of that full Supreme Court refused an application to make a slip rule application on 6^th November 2024.

3. The applicant seeks to have that application for leave to make a slip rule application heard by this Court de novo and reliance is placed upon amongst others, Order 11 Rules 25 and 26 Supreme Court Rules. They are:

“25. A party dissatisfied with a direction or order given by a Judge under these rules or s. 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.”

4. The intent of Order 11 Rule 26 and s. 5 Supreme Court Act referred to in Order 11 Rule 25 is clear, in our view. It is that they concern a pending appeal or proceedings. This is because s. 5 Supreme Court Act provides that “Where an appeal is pending before the Supreme Court- ...” and Order 11 Rule 26 refers to “proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings ...”. In this instance, the proceeding is not pending as it has been heard by the full Court and a judgment given. The proceeding is completed and is no longer active.

5. Order 11 Rule 25 and Rule 26 Supreme Court Rules cannot be relied upon for relief sought after a proceeding has been completed or when a proceeding is no longer pending. This application should be refused as the relief sought here is concerned with a purported slip rule application after a proceeding has been completed and not when proceedings are pending.

6. Secondly, we remark that an application for leave to make a slip rule is heard before a judge of the Supreme Court which is alleged to have made a slip. It remains within that Supreme Court’s jurisdiction, which includes the control of its own affairs. If leave is granted to make a slip rule application then that full Supreme Court considers it - not another Supreme Court differently constituted.

7. The leave requirement in the Supreme Court Rules is part of a mechanism provided to regulate “slip rule applications”. The Rules do not and cannot remove that Supreme Court’s jurisdiction to adjudicate on a matter that it has already heard, a matter of which it is seized and in respect of which a slip rule application is made. The removal of this proceeding from the original Supreme Court which has given a final judgment in the proceeding, is in effect, what the application now before this court, seeks to do.

8. Further, there is no provision in the Constitution which gives jurisdiction to the Supreme Court to review the decision of another Supreme Court. For this Court to consider de novo an application for leave to make a slip rule application in respect of a differently constituted Supreme Court, is requesting it to in effect review a decision of another Supreme Court. This Court does not have that jurisdiction.

9. In Special Reference by Hon. Davis Steven (2020) SC2041, in the judgment of Hartshorn J with which the other four members of the Court agreed, it is stated at [10] – [13]:

“10. A Rule of Court is not able to provide a jurisdiction to the Supreme Court which the Constitution does not.

11. Pursuant to s. 155 (2) Constitution:

(2) The Supreme Court—

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

12. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.

13. The Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court. As the Supreme Court does not have this jurisdiction or power it does not have the jurisdiction or power to be able to make interim or interlocutory orders in respect of a final Supreme Court’s judgment or orders.”

10. In this instance the applicant seeks to rely on Order 11 Rules 25 and 26 Supreme Court Rules, Order 2 Rule 1(h) Supreme Court Rules and Order 12 Rule 8(4) National Court Rules. As referred to, these Rules relied on and indeed, any Rule of Court, is not able to provide jurisdiction to the Supreme Court which the Constitution does not.

11. Section 155(4) Constitution is also relied upon. Section 155(4) Constitution does not confer a primary right and may only be utilised to assist in enforcement of an existing primary right. In this instance, the applicant does not have a primary right to seek the relief which he does as the Supreme Court has delivered a final judgment and so s. 155(4) Constitution may not be relied upon in this instance.

12. Further, as the 4^th respondent submitted, it is a well founded and long standing principle that there has to be finality in litigation. Once an appeal or review has been determined by the Supreme Court the rights of an appellant or applicant are finalised. The Constitution does not confer any other right or remedy to an appellant or applicant. Only in exceptional circumstances may an appellant or applicant be successful in a slip rule application.

13. Given the above, it is not necessary to consider the other submissions of counsel. The application before this Court is refused.

Orders

a) The application before this Court is refused.
b) The applicant shall pay the costs of the 4^th respondent of and incidental to the said application on a party/ party basis to be taxed if not otherwise agreed.

_____________________________________________________________
Public Solicitor: Lawyers for the Appellant
Supasonix and Alu Lawyers: Lawyers for the Fourth Respondent