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Ame v Kimisopa [2020] PGSC 28; SC1929 (3 March 2020)

SC1929

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 2 OF 2019

BETWEEN
HENRY TUTUWO AME
Applicant

AND
BIRE KIMISOPA
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, Murray & Polume-Kiele JJ
2019: 19^th December
2020: 3^rd March

SUPREME COURT – Practice & Procedure – Election petition review – Application to dismiss review – Non-compliance of Court order – Direction for applicant to compile review book – Want of prosecution – Failure to prosecute review with due diligence – Supreme Court Rules – Order 5, rule 37

Cases Cited:

Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948

Counsel:

Mr. I. Molloy with Mr. P. Othas, for Applicant
Mr. B. Lomai, for First Respondent
Mr. L. Okil, for the Second Respondent

RULING

3^rd March, 2020

1. BY THE COURT: We heard the first respondent’s application to dismiss the election petition review commenced pursuant to Section 155(2)(b) of the Constitution for want of compliance of a Court order of 3^rd June 2019, and for want of prosecution and reserved our ruling to a later date. This is our ruling.

2. The application to dismiss in its amended form was filed on 24^th July 2019 after the first one was dismissed for want of form on 19^th July 2019. The second respondent did not support it. It emanated from the application for review against a decision of the National Court of 7^th February 2019 in an election petition (EP No 2 of 2017) which rejected the result of a recount of votes and declared the election of the applicant null and void. A by-election was to follow suit, but has been stayed by an order of the Supreme Court on 9^th May 2019 pending the determination of the review. The applicant has resumed and continues to hold elective office as Member for Goroka open electorate in the National Parliament.

3. The application for leave to review itself was filed on 15^th February 2019. For some unexplained reason, leave was not granted until 26^th April 2019 by Hartshorn J sitting as a single judge of the Supreme Court. This was more than two months after the application for leave was filed. Pursuant to Order 5, rule 18 of the Supreme Court Rules, (SCR) the substantive application for review was filed on 9^th May 2019. According to Order 5, rule 25 of the SCR, within seven days of filing the application for review, the applicant must serve the application together with the draft index on the respondents. What would have immediately followed were the settlement and filing of an index to the review book which would have paved the way for the preparation and filing of the review book. However, it was not until 3^rd June 2019 when the Chief Justice sitting as the Duty Judge endorsed an order for the preparation and progress of the review which included the draft index and the compilation of the review book. The terms of the order which are pertinent to the issue of non-compliance are set out below:

“1. The draft index to the Review Book filed 6^th May 2019 is endorsed by the Court.

2. The Applicant will compile the Review book by 24 June 2019.
   
3. The matter returned for (sic) Court on 1^st July 2019 at 9:30 am for directions”.
   

4. The non-compliance of this order, it was alleged, formed the basis of the application to dismiss and we have been asked to invoke our powers under Order 5, rule 37 of the SCR to uphold the application and dismiss the review. Order 5, rule 37 reads:

“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; or

(b)..................

(c)..................”. (Emphasis added).

5. It has not been denied by the applicant that by 24^th June 2019, a review book had not been served on the respondents. One view which the first respondent pressed upon us to accept was, it could be inferred that the lack of service was because the review book had not been compiled by the applicant by the due date. The consequence of the non-compliance, it was argued, was a breach of the Court order and as no leave had been sought by the applicant to extend time to compile the review book, the Court exercise its powers under Order 5, rule 37 (supra) and order that the application for review be dismissed.

6. The opposite of that was a narrower view, where it was argued, the Court order had not been expressed to include the review book to be filed and served by 24^th June 2019 and it was wrong to accuse the applicant of not filing and serving the review book by that date. He was only required to compile the review book.

7. The applicant took this view and proceeded to compile and forwarded the review book to the respondents on 27^th June 2019 after obtaining and including the delayed transcript of the National Court proceeding of the hearing and decision, the subject of the review. He asserted that the delay in obtaining the transcript was due to “critical technical issues with the information systems” experienced by the Court Reporting Office since 30^th May 2019 as reported by the Director of Court Reporting Office.

8. The review book was certified by the second respondent while the first respondent returned it without certifying it due to discrepancies in its content. It was eventually certified by the first respondent on 24^th July 2019. This was twenty three days after the return date of 1^st July 2019 for directions hearing.

9. It would have been handy and helpful if we had been provided with a copy of the transcript of the hearing of 3^rd June 2019 to assist us work out what the parties had contemplated when the applicant was directed by the Chief Justice to compile the review by 24^th June 2019. In the absence of the transcript, we can only go by the affidavits that have been filed by the parties and we note that according to the affidavit of the applicant’s counsel filed 24^th July 2019, he was quite clear that the review book was not only to be complied but filed and served by 24^th June 2019. We read this at paragraph 3 of his affidavit where he stated “ On 3^rd June 2019, the Court by Salika CJ.............. directed the Applicant to file the Review Books by 24^th June 2019”. (Emphasis added). Then at paragraph 6, he repeated it when he informed the Court Reporting Division of the urgency of the transcript when he stated that “.........the Applicant was to file the Review Book by 24^th June 2019, and time was running [out]”. (Emphasis added).

10. As to service of the review book, on 27^th June 2019 the transcripts were delivered and at paragraph 11 of his affidavit (supra) counsel was unequivocal about it when he stated that “I then quickly compiled the Review Books on the same day and in the afternoon, I delivered to the Respondents’ lawyers the completed Review Books for their certification of the correctness of the Review Books”. (Emphasis added).

11. The evidence of the applicant’s counsel is also consistent with the position of the first respondent who had always maintained that apart from compiling the review book, the applicant must file and serve it by 24^th June 2019. It also accords well with the overall scheme of the SCR where under Order 5, rule 29, within fourteen days after the directions hearing, an applicant is required to “compile, file and serve a Review Book on each respondent”. A review book is filed at the Supreme Court registry only after it is compiled and certified by the respondents. After it is filed and a sealed copy is served on the respondents. Where these procedural requirements are completed, the review is ready for listing or allocation of a hearing date.

12. Significantly, these different stages of the process sufficiently demonstrate why the parties were to return to Court on 1^st July 2019 for directions. As counsel for the applicant stated at paragraph 3 of his affidavit (supra), “.............matter to return for further directions and listings on 1^st July 2019”.

13. All these matters have led us to conclude that parties had contemplated that the applicant was to compile, file and serve the review book on the respondents by 24^th June 2019. However, it did not occur and we cannot stress enough the importance of obeying a Court order. The direction in the form of a Court order was issued by the Chief Justice and is no trivial matter. The direction reinforced the procedural requirements under Order 5, rule 29 to compile, file and serve a review book by a fixed date in order to expedite the review to a hearing. Where a Court order or a direction of the Court is not complied with, there are serious consequences, one of them is, a dismissal of the review for want of compliance under Order 5, rule 37. The threat can be thwarted if the applicant is able to obtain dispensation under Order 5, rule 39. Rules 39 states:

“The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law.”

14. As the applicant’s first application for dispensation was dismissed for want of form, we are satisfied that the applicant had not sought and obtained leave to dispense with the Court order directing him to compile the review book by 24^th June 2019 under Order 5, rule 39 of the SCR. Where no order for dispensation has been granted, the applicant was bound to comply with the Court order of 3^rd June 2019. We are further satisfied that the applicant had failed to comply with that order when he did not compile, file and serve the review book by 24^th June 2019.

15. The power to dismiss for want of prosecution conferred by Order 5, rule 37 is discretionary and wide enough to capture a number of different scenarios. It has been utilised by the Court in the past to dismiss election petition reviews. One such case was Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948. That was a case where the first respondent applied to the Supreme Court using the equivalent of Order 5, rule 37 under the old SCR to dismiss the review by Mr Hami Yawari for want of prosecution and failure to comply with Court directions to file and serve a review book.

16. Mr Yawari failed to compile and serve a review book within fourteen days after the directions hearing and even within a further three days extension granted by the Court. As he had not sought dispensation, there was no application before the Court to extend time and his application for review was dismissed. We adopt that case, uphold the first respondent’s application and dismiss the application for review for failure to comply with the Court order of 3^rd June 2019.

Want of prosecution

17. The second ground mounted to dismiss the review was on want of prosecution under Order 5, rule 37 of the SCR. It was argued in support of the dismissal that the applicant had not prosecuted the application for review with due diligence. We were urged to find that it was on the prompting and repeated reminders of the first respondent after parties had appeared before the Chief Justice on 20^th May 2019 that the applicant was able to eventually produce a draft index to the review book and endorsed by the Chief Justice on 3^rd June 2019. The applicant should not be allowed to escape the scrutiny of the Court for his dilatory conduct.

18. Prior to that, there has been an unexplained delay of two months between the date of filing of the application for leave for review of 15^th February 2019 and grant of leave by Hartshorn J on 26^th April 2019. The applicant had a further fourteen days under Order 5, rule 18 of the SCR to file and serve the application for review on the respondents which he did on 9^th May 2019. Following that, instead of preparing and circulating a draft index to the review book for comments and requesting copies of the relevant transcripts of the National Court proceeding, the applicant did nothing until parties appeared before the Chief Justice on 20^th May 2019. According to the affidavit of the applicant, he said that it was the “very first time” the matter returned to Court. This statement highlights a worrying trend that is developing in the Supreme Court where parties and their lawyers do not perform or comply with procedural requirements under the SCR to prepare a matter for hearing until they attend directions hearing and obtain directions from the Court. They more or less do nothing until they are directed by the Court.

19. This case is one classic example. The applicant and his lawyers did nothing but waited for the matter to return to Court for directions hearing on 20^th May 2019 before they started preparing the draft index and review book. In so doing, the applicant had not only wasted time but acted to his own detriment because except for serving the application for review on the respondents, he had literally done nothing between the date of filing the application for review of 9^th May 2019 and the first directions hearing of 20^th May 2019. A good eleven days was wasted. He has not prosecuted his review with due diligence.

20. The consequence of inaction or lack of activity can be fatal as can be seen from the applicant’s desperate attempts to obtain transcripts of the National Court proceeding between 3^rd June 2019 after the draft index was endorsed by the Chief Justice and 24^th June 2019 when the review book was due. It did not require a great deal of assistance to identify the Court transcripts of the hearing on recount of votes and decision to be relevant to the review and need for immediate requests to the Court Reporting Office for their provision. There is no evidence of the applicant being diligent in this regard. As a consequence, if we were to accept his explanation that the faulty Court’s Information Technology system (IT) had delayed the provision of the Court transcripts, the unexplained delay prior to the IT issue of 30^th May 2019 is overwhelming.

21. As the Supreme Court observed in Hami Yawari’s case (supra) and we endorse:

“When the provisions of the Rules dealing with the management of an application for review are considered and particularly the time limits for direction hearings, the filing and serving of the application, draft index, review book and hearing of the pre-hearing conference, it is evident that the intention of the Rules [SCR] is to treat an election petition review as a special matter that is to be constantly prosecuted with due diligence by the applicant. In addition, the time limits between the various stages are short. This is to ensure that the elected representative for an electorate where the election is disputed, is finally determined as soon as possible, thus allowing the citizens of that electorate to have proper representation in Parliament”.

22. The applicant failed to take heed of this warning by the Supreme Court. The first respondent was well in tune, and we appreciate his concerns and his effort in getting the applicant to get the review ready for hearing. The conduct of the applicant can be best described as far from satisfactory. The application for review is dismissed for want of prosecution.

23. As a stay order has been in force since 9^th May 2019, it is hereby discharged forthwith.

Order

24. The orders are, the application to dismiss the review is upheld and the application for review is dismissed for failing to comply with Court order of 3^rd June 2019 and for want of prosecution. The order for stay of 9^th May 2019 is discharged forthwith. The applicant shall pay costs of and incidental to the application, to be taxed, if not agreed.

Ruling and orders accordingly.

________________________________________________________________
Paul Othas Lawyers: Lawyers for Applicant
Greg Konjib & Associates: Lawyers for First Respondent
Kimbu & Associates Lawyers: Lawyers for Second Respondent