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Lambu v Ipatas [1999] PGSC 45; [1999] PNGLR 634 (28 May 1999)

[1999] PNGLR 634

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

APPLICATION TO REVIEW PURSUANT TO CONSTITUTION SECTION 18, 155(2)(b) AND SECTION 155(4);

DAVID LAMBU

V

PETER IPATAS, EDWARD KONU AND THE ELECTORAL COMMISSION

WAIGANI: LOS, HINCHLIFFE, SHEEHAN, JALINA, AKURAM JJ
25, 28 May 1999

Facts

The applicant David Lambu seeks to review a decision of the Supreme Court made 27 November 1998 (Review No: 116/1998), which was itself, a review of an earlier Supreme Court review judgement of the 5 June 1998 in SCR 30/98. That judgement itself followed a review of a decision of the National Court striking out a petition brought by the applicant.

In this application the Court is asked to review the decision in SCR 116 of 98 on grounds that the learned judges in SCR 116 of 98 "were more concerned in defending their own ruling and had hastily ... considered and ruled ... the application ... without foundation in law. This had caused them to evade answering or ruling upon the pertinent constitutional issues ... They had accordingly reached "erroneous conclusion of law ...."

Held

1. Under the Constitution the Supreme Court is the final court of appeal. Once the Supreme Court has made a determination on any issue, that is final. While there resides a discretionary power in the Court to correct its own mistakes, that power does not constitute a further extension of the appeal process. The issues have been fully explained in Willie Kili Goiya [1991] PNGLR 170; Wallbank & Manifie v The Independent State of Papua New Guinea [1994] PNGLR 78 and Apelis v Chan [1999] PNGLR 591. These decisions make it clear that only where there have been mistakes which "could be seen to be little short of extra ordinary" will the Court entertain an application to revisit its decision.
   
2. Thus, the very issue the applicant in this review seeks to reopen has already been determined by the Supreme Court. His application is a challenge, not that a mistake had been made, or that a decision was made based on some mistake of fact or law not put before the Courts, the applicant says that the decision was wrong. In such a case, any further proceedings can only amount to an appeal. That is, a Supreme Court sitting on an appeal on itself. That is not possible. The application must for this reason also be struck out.
   
3. It is the Court’s firm view that it had made a ruling or decision in regards to the second ground already and therefore the present application to be unmeritorious, mischievous and without any foundation in law.
   
4. This Court does not sit on appeal of its own decisions. The final decision in this matter was made in SC 116/98. The application is therefore struck out with cost to the respondents.
   

Papua New Guinea cases cited

Apelis v Chan [1999] PNGLR 591.

David Lambu v Peter Ipatas (No. 3) [1999] PNGLR 207.

Wallbank & Manifie v The Independent State of Papua New Guinea [1994] PNGLR 78.

Willie Kili Goiya [1991] PNGLR 170.

Counsel

(undisclosed)

28 May 1999

The applicant David Lambu seeks to review a decision of the Supreme Court made 27 November 1998 (Review No: 116/1998) which was itself a review of an earlier Supreme Court review judgement of 5 June 1998 in SCR 30/98. That judgement itself followed a review of a decision of the National Court striking out a petition brought by the applicant.

The basis of the applicant’s first review by the Supreme Court (SCR 30/98) was brought on the grounds that first respondent’s nomination as a candidate in the National Elections was invalid since he was already holding an elective public office. Alternatively upon succeeding in the election and becoming a member of Parliament because he was effectively holding another elected public office at that time his election was rendered void. The Supreme Court in SCR 30 of 1998 rejected those grounds and dismissed the application. The applicant however brought a fresh application for review of that Supreme Court decision on grounds that while one of the two grounds that he had relied on had been determined the second had not.

The same bench of Supreme Court that heard SCR 30/98 was reconstituted and heard this application (SCR 116/98) and dismissed it as has having no merit. They determined that a decision had been given in respect of the second ground that the applicant relied on in the first review. That being so they considered the application as without any foundation.

The applicant not satisfied with that ruling, has now brought this the third application before the Supreme Court. In this application the Court is asked to review the decision in SCR 116 of 98 on grounds that the learned judges in SCR 116 of 98 "were more concerned in defending their own ruling and had hastily ... considered and ruled ... the application ... without foundation in law. This had caused them to evade answering or ruling upon the pertinent constitutional issues ... They had accordingly reached "erroneous conclusion of law ...".

This application has been strenuously opposed by the respondents who have argued for the striking out of the application on the basis that ss 18, 155(2)(b) and 155(4) of the Constitution provide no jurisdiction for this Court to entertain what is in fact a matter now finally determined. It is res judicata. That is, that the very substance of what the applicant seeks to review does not constitute any error by the Supreme Court that warrants correction. That decision sought to be reviewed is a final ruling by the Supreme Court.

Under the Constitution the Supreme Court is the final court of appeal. Once the Supreme Court has made a determination on any issue, that is final. While there resides a discretionary power in the Court to correct its own mistakes that power does not constitute a further extension of the appeal process. The issues have been fully explained in Willie Kili Goiya [1991] PNGLR 170; Wallbank & Manifie v The Independent State of Papua New Guinea [1994] PNGLR 78 and Apelis v Chan SCR 99 (unreported). These decisions make it clear that only where there have been mistakes which "could be seen to be little short of extra ordinary" will the Court will entertain an application to revisit its decision.

As was said in the Wallbank case:

"it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments that have already been considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put."

And we will add such a discretion will not be exercised simply because a party is dissatisfied with the ruling.

Turning to the application itself there is merit in the respondents contention that the application is brought without regard to any approved procedure. Because there are no formal rules by which such an application can be made, application should first have been made for directions with all relevant parties notified. The issues of relevant transcripts, decisions and pleadings to be put before the Court could have been determined avoiding uncertainty of documentation and ensuring all parties as well as the Court were fully informed.

Certainly the grounds cited by the applicant in this case would have come under close scrutiny. The grounds as worded in this review are offensive and constitute an attack on the integrity of the Court itself. More unfortunately they fail to provide the grounds for the review the applicant seeks to pursue. For these reasons alone the application should be struck out. However, not withstanding this Court’s concern on the inadequacy of the grounds and their wording, argument was heard on the competence of the application, that is whether this Court could or should entertain the application at all. This Court of 5 Judges has in fact been constituted to enable finality on the issue of jurisdiction to be given in this matter.

Having heard all arguments we are satisfied that there has been a final ruling made in the matter by the Supreme Court and we are satisfied that ruling is not open to any further review.

The application now before the Court for review is in fact better described as an appeal. It seeks to appeal a decision of the Supreme Court which ruled that the applicant’s claim of error in its first ruling was without merit. The decision, the application seeks to overturn purports to be made on the basis that a mistake had been made, that there has been no answer given to one of the grounds that he had sought to review. The Supreme Court in SCR 116 of 1998 said:

"We have considered all the submissions submitted by the parties. In our decision in SCR 30 of 1998 we considered those grounds and said at p.3 ‘we are of the view that those two grounds ought to be dealt with together as they raise similar ground.... We then set out reasons why we accepted the submissions by the two respondents and .... dismissed those two grounds.

In the present case we concluded these two grounds were in fact considered by the Court and the Court’s ruling is in the paragraph we have referred to. It is our firm view that the Court had made a ruling or decision in regards to the second ground already. It follows that we consider the present application to be unmeritorious, mischievous and without any foundation in law".

Thus, the very issue the applicant in this review seeks to reopen has already been determined by the Supreme Court. His application is a challenge, not that a mistake had been made, or that a decision was made based on some mistake of fact or law not put before the Courts, the applicant says that the decision was wrong. In such a case any further proceedings can only amount to an appeal. That is, a Supreme Court sitting on an appeal on itself. That is not possible. The application must for this reason also be struck out.

We must note too the ruling of the Supreme Court in SC 601. The applicant sought to place reliance on its supposed findings. There the Court was entertaining an application for security for costs prior to this hearing. In reaching a decision on the costs issue it referred to the applicant having an "arguable" case.

It must be said very clearly that that application has no relevance or impact on the application before us at all. The only Court seized with the matters of complaint which brought about the application was the Court in SC 30 of 1998 and 116 of 1998. These issues were not before the Supreme Court in SC 601 which was dealing with and also gave a ruling on a wholly different matter. The issues raised by this application were not argued before that Court nor could they have been. For this reason any opinion as to the merits of the plaintiffs argument in this can only have bearing, if at all, on the issue of whether security for costs should have been given. So far as the issue of the substantive application is concerned that ruling has no bearing on these matters at all not even as obiter opinion.

This Court does not sit on appeal of its own decisions. The final decision in this matter was made in SC 116/98. The application is therefore struck out with cost to the respondents.