SC Review No 49 of 1998; Review Pursuant to Constitution, s155(2)(b); In Re Application by Kelly Kilyali Kalit to Review Decision of The National Court to dismiss EP No 78 of 1997; Kelly Kilyali Kalit v John Pundari and The Electoral Commission

• Jurisdiction: Papua New Guinea
• Judge: Los J, Hinchliffe J, Injia J
• Judgment Date: 07 October 1998
• Court: Supreme Court
• Citation: (1998) SC569
• Docket Number: SC Review No 49 of 1998
• Year: 1998
• Judgement Number: SC569

Supreme Court: Los J, Hinchliffe J, Injia J

Judgment Delivered: 7 October 1998

SC 569

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SC REVIEW NO. 49 OF 1998

Review Pursuant to Constitution, Section 155 (2)(b)

In Re Application by Kelly Kilyali Kalit to Review Decision of The National Court to Dismiss EP No. 78 of 1997 —

BETWEEN:

KELLY KILYALI KALIT

- Applicant —

AND:

JOHN PUNDARI

- First Respondent -

AND:

THE ELECTORAL COMMISSION

- Second Respondent -

Waigani: Los, Hinchliffe & Injia, JJ

1998: 27th August, 7th October

Judicial Review Constitution s 155 (2)(b) Review of decision of National Court sitting as Court of Disputed Returns Review of trial judges' findings of fact alone as to date of declaration of result of election endorsed on Writ Whether findings of fact alone open to review Constitution, s 155 (2)(b), Organic Law on National and Local-Level Government Election, Ss 73-82, 175, 208(e), 217.

Cases cited in the judgment

Aviah Aihi -v- The State [1981] PNGLR 81,

Balakau -v- Torato [1983] PNGLR 242,

Sunu & Ors -v- The State [1984] PNGLR 305,

SC Rev. No. 5 of 1987: Re Central Banking (Foreign Exchange & Gold) [1987] PNGLR 437.

SCR No. 5 of 1998 Re: Kasap -v- Yama [1988] PNGLR 197,

Korak Yason -v- Castan Maibawa SC552 [1998],

Takai Kapi -v- Don Kapi SC 548 [1998],

Peter Yama -v- Mathew Gubag SC 456 [1998]

Mr. Kuimb, for Applicant

Mr. Kandakasi, for First Respondent

Mr. Kongri, for Second Respondent

7th October 1998

BY THE COURT: This is an application by the Applicant pursuant to Constitution, s 155 (2)(b) seeking a review of the decision of the National Court, sitting as a Court of Disputed Returns, dismissing the applicant's election petition against the First Respondent in EP No. 78 of 1997.

In EP No. 78 of 1997, the petitioner/applicant disputed the election return of the First Respondent as the National Parliament member for the Kompiam-Ambum Open electorate in the June-July 1997 general elections. The petition contained various allegations of illegal acts, errors and omissions and corrupt practices by the Second Respondent on its own or in collusion with the First Respondent in preparing for the elections in the electorate, and the conduct of the elections including the declaration of the result of the election. It also contained allegations of bribery and undue influence by the First Respondent or by his agents.

The trial judge dealt with the preliminary issue of whether the petition was filed within the period of forty days commencing from the date of declaration of the result of the election as required by section 208(e) of the Organic Law or National and Local-Level Government Elections (hereinafter abbreviated OLNE.). At the preliminary hearing before Salika, J the First Respondent contested the date of the declaration stated in the petition and raised the issue of time bar under OLNE, s 208 (e). In the petition, the applicant had stated that the declaration was made on 5th July 1997 whereas the First Respondent maintained it was made on the 4th of July 1997. If the First Respondent's contention was to be upheld, the whole Petition would fail for failing to comply with OLNE, s 208 (e) in that the Petition which was filed on 14 August 1997 was filed outside 40 days. After hearing the evidence and submissions from counsels, the trial judge decided the issue in favour of the First Respondent and dismissed the petition. This application is the subject of that decision.

The principles governing review under Constitution s 155 (2)(b) are settled. Whilst OLNE, s 220 precludes an appeal, it does not preclude the Supreme Court's inherent power of review under s 155 (2)(b). This power is a discretionary one. It is exercised only where it is in the interest of justice to do so, that there are cogent and convincing reasons or exceptional circumstances, and there are clear legal grounds meriting a...