The petitioner annexed the published judgment. He did not annex the sealed order. That was enough to end his application for leave to review.
Francis Essacu Baindu v Joseph Jerry Yopiyopi and Electoral Commission [2019] PGSC 5; SC1763
Supreme Court, Waigani — Hartshorn J, 12 February 2019. SCREV (EP) 39 of 2018.
What happened
Mr Yopiyopi won Wosera-Gawi Open in 2017. Mr Baindu’s petition was dismissed in Baindu v Yopiyopi [2018] PGNC 322; N7411 when the National Court upheld a no case to answer submission. On 10 August 2018 he filed an application for leave to review under section 155(2)(b) of the Constitution. His supporting affidavit annexed the petition and the published judgment, but not the formal order. The Electoral Commission applied under Order 5 rule 37(a) of the Supreme Court Rules to dismiss the leave application for non-compliance with Order 5 rule 11.
What was argued
The applicant said the judgment was published, its final paragraphs stated the order, the respondents suffered no prejudice and there had been substantial compliance. He sought to distinguish Waranaka v Maru (2018) SC1718, where neither judgment nor order had been annexed. The Commission said the rule is mandatory, the applicant had not sought dispensation under Order 5 rule 39 or leave to amend, and had offered no explanation.
What the Court decided
1. Order 5 rule 11 requires the affidavit to annex “the judgment and order”. A judgment contains orders, but that was not considered sufficient when the Rules were made, otherwise “order” would not have been included. The formal order is needed so that, among other things, the date the judgment took effect can be ascertained.
2. Kulang v Onglo (2018) SC1714 and Wesley v Leonard (2018) SC1706, where only the order was missing, were followed. The rule is couched in mandatory terms and must be complied with strictly unless the Court excuses non-compliance on good cause shown.
3. Reviews are special matters requiring the applicant’s constant attention; substantial compliance does not cure a failure to meet a mandatory rule (Kandiu v Parkop (2015) SC1597).
4. No application had been made under Order 5 rule 39 to dispense with the requirement. The application for leave was dismissed with costs.
Did it make new law?
The decision did not review the National Court’s reasoning; it turned entirely on the Supreme Court’s own rules. It consolidated a line of single-judge decisions from the 2017 election cycle into a settled rule, and has since been the standard citation whenever an objection to competency of a leave application relies on a missing annexure or a defective form under Order 5.
Why it matters
Obtain the sealed order before filing. If the Registry has not entered it in time, file the application with what exists and apply at once under Order 5 rule 39 for dispensation, explaining why.
Check every Order 5 requirement: the form of the application, a statement of the nature of the case under rule 10(c), the annexures under rule 11, and the 14-day time limit.
Objections come early. A respondent will use Order 5 rule 37(a) before the leave application is heard, and the applicant carries the burden of explaining any default.
What it does not decide
Baindu does not decide when good cause for dispensation exists, because none was sought. It does not consider whether the fair and liberal approach mandated for the National Court by section 217 of the Organic Law and Hagahuno v Tuke extends to the Supreme Court’s own procedural rules, a point later benches have answered by holding that the Supreme Court Rules govern review proceedings. The general test for leave itself is explained in Pundari v Yakos.
Recent cases applying it
- Yakos v Pundari [2024] PGSC 146; SC2680 — the same rule applied to an application to dismiss under Order 5 rule 37(a) for failure to annex the required orders; paragraphs 9 and 10 of Baindu quoted.
- Doa v Alua [2023] PGSC 169; SC2521 — an application that did not state the nature of the case under Order 5 rule 10(c) dismissed; Baindu and Kandiu v Parkop applied.
- Duma v Puk [2019] PGSC 57; SC1817 — the full Court cited Baindu for the mandatory effect of “shall” in rejecting a substantial compliance argument under the Election Petition Rules.
- Tati v Kapavore [2023] PGSC 158; SC2510 and Ibo v Hagahuno [2023] PGSC 156; SC2508 — objections to competency of leave applications decided on the authority of Baindu.
Sources
- Baindu v Yopiyopi [2019] PGSC 5; SC1763 (Hartshorn J, 12 February 2019)
- Baindu v Yopiyopi [2018] PGNC 322; N7411
- Supreme Court Rules 2012 — Order 5 rr 10, 11, 37, 39; Constitution — s 155(2)(b)
- Yakos v Pundari [2024] PGSC 146; SC2680; Doa v Alua [2023] PGSC 169; SC2521; Duma v Puk [2019] PGSC 57; SC1817; Tati v Kapavore [2023] PGSC 158; SC2510; Ibo v Hagahuno [2023] PGSC 156; SC2508
Kulang v Onglo (2018) SC1714, Wesley v Leonard (2018) SC1706, Waranaka v Maru (2018) SC1718 and Kandiu v Parkop (2015) SC1597 are cited as they appear in the judgment and were not separately opened for this brief.
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