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Tati v Kapavore [2023] PGSC 158; SC2510 (7 November 2023)

SC2510

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 53 OF 2023

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:
Fr. BENEDICT TATI
Applicant

AND:
ELIAS KAPAVORE
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2023: 4^th October, 7^th November

SUPREME COURT REVIEW – practice and procedure - Objections to competency of application for leave to review

Cases Cited:

Baindu v. Yopiyopi (2019) SC1763

Counsel:

Mr. N Kubak and Ms G. Kubak, for the Applicant
Ms. S. Tadabe, for the First Respondent
Mr. W. Pep, for the Second Respondent

7^th November 2023

1. HARTSHORN J: This is a decision on two contested objections to competency of an application for leave to review the dismissal of an election petition.

Background

2. The applicant, Fr. Benedict Tati, seeks leave to review a final decision of the National Court. That decision dismissed the election petition of Fr. Tati after hearing two objections to competency of the respondents.

3. The election petition of Fr. Tati challenged the election of Mr. Elias Kapavore for the Pomio Open Electorate in the 2022 National General Elections.

This application

4. The two respondents object to the competency of the application for leave to review on the ground that the affidavit filed 20^th June 2023 of the applicant in support of the application fails to annex the order of the National Court which he seeks to review. Such failure is contrary to Order 5 Rule 11 Supreme Court Rules. Further, no application has been made by the applicant for dispensation with the Supreme Court Rules pursuant to Order 5 Rule 39 Supreme Court Rules.

5. The applicant submits amongst others, that as the respondents were successful in the National Court in having the election petition dismissed, the respondents should have taken out the formal order of the Court. In not taking out the formal order, the respondents cannot now argue that the applicant did not annex the subject order to his affidavit as the subject order was not available to annex. Further, the applicant submits that notwithstanding that the subject order was not available to be annexed to the applicant’s affidavit, the order was sufficiently pleaded in the application for leave to review. A copy of the written decision which contains the order of the National Court is also annexed to the applicant’s affidavit and so there has been substantial compliance with Order 5 Rule 11 Supreme Court Rules.

Law

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.”

6. The respondents rely upon the judgment in Baindu v. Yopiyopi (2019) SC1763 in which at [9] and [10] I said:

“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.””

Consideration

7. In this instance it is conceded by the applicant that the order of the court the subject of the application for leave to review is not annexed to the affidavit of the applicant which supports the application for leave. The applicant submits however, that the subject order did not exist at the relevant time for him to be able to annex it and it was the respondents’ responsibility to take out the order.

8. The applicant has not relied on any authority for the above submissions. The Supreme Court Rules do not provide that it is the responsibility of a particular party to take out a formal order. In such circumstance, if a person or party is required to annex or produce an order to be able to take a step in a proceeding, that person or party should take out the formal order. In the absence of a specific provision stating otherwise, to assert that it is the responsibility of someone else to take a step to enable a person or a party to comply with a mandatory requirement is to my mind, counterintuitive.

9. Further, there is no evidence that the applicant applied for a dispensation with compliance of Order 5 Rule 11 Supreme Court Rules.

10. Moreover, I note the submissions of the applicant to the effect that as the Registrar of the National Court may not have forwarded to the Clerk of Parliament the relevant National Court order dismissing the election petition and that this Court granted an extension of time as to service: - that these scenarios somehow excused the applicant from having to comply with the mandatory requirements of the Supreme Court Rules. There is no merit in these submissions.

11. Consequently, from a perusal of the submissions, the evidence and the case law relied upon, I am satisfied that the respondents have satisfactorily made out that they are entitled to the relief which they seek. Given the above it is not necessary to consider the other submissions of counsel.

Orders

a) The objections to competency of the respondents are upheld.

b) The application for leave to review is dismissed.

c) The costs of the first and second respondents of and incidental to the said application for leave to review shall be paid by the applicant.

d) The applicant’s security deposit of K5,000.00 shall be paid equally to the respondents towards the costs to which they are entitled pursuant to order c) above.
_____________________________________________________________
Kubak and Kubak: Lawyers for the Applicant
Mel and Hennry: Lawyers for the First Respondent
Harvey Nii: Lawyers for the Second Respondent