Review Pursuant to s155(2)(b) Constitution; Application by Anderson Agiru and Application by The Public Prosecutor to Set Aside The Interim Orders (2003) SC704

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Salika J, Sakora J
• Judgment Date: 11 April 2003
• Citation: (2003) SC704
• Docket Number: SCR 8 of 2003
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC704

Full Title: SCR 8 of 2003; Review Pursuant to s155(2)(b) Constitution; Application by Anderson Agiru and Application by The Public Prosecutor to Set Aside The Interim Orders (2003) SC704

Supreme Court: Kapi DCJ, Salika J, Sakora J

Judgment Delivered: 11 April 2003

1 JUDICIAL REVIEW—s155(2)(b) of Constitution—Inherent Power of Supreme Court to review decision of a National Court—Second application for Judicial review under s155(2)(b) of the Constitution—Same parties—Same facts—Same relief sought—Principles of res judicata and estoppel apply—Abuse of process.

2 Application to set aside interim orders—s155(4) of Constitution—Power to review decision of a single judge of Supreme Court—Interim Orders by a single judge of Supreme Court—Jurisdiction of a single judge of the Supreme Court to issue interim orders—Interim orders set aside.

3 Avia Aihi v The State (No 1) [1981] PNGLR 81, Avia Aihi v The State (No 2) [1982] PNGLR 44, SCR No 8 of 1996: Application by Jeffrey Balakau (1996) SC529, Peter Ipu Peipul v Hon Justice Sheehan, Mr Orim Karapo and Iova Geita (constituting the Leadership Tribuhal), The Ombudsman Commission and The Independent State of Papua New Guinea State (SCM 2 of 2002) (Unreported and Unnumbered judgment dated 1 May 2002), SCR No 13 of 2002: Application by Anderson Agiru (2002) SC686, Titi Christian v Rabbie Namaliu (1995) OS No 2 of 1995, Isidore Kaseng v Rabbie Namaliu and The Independent State of Papua New Guinea (No 1) [1995] PNGLR 481, Viviso Seravo v John Giheno (1998) SC539, Viviso Seravo and Electoral Commission v John Giheno (1998) SC555), Wauni Wasia Ranyeta v Masket Iangalio (1998) SC562 and David Lambu v Peter Ipatas (No 3) (1999) SC601 referred to

___________________________

SC704

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCR 8 of 2003

REVIEW PURSUANT TO

SECTION 155(2)(b) CONSTITUTION

APPLICATION BY ANDERSON AGIRU

AND:

APPLICATION BY THE PUBLIC PROSECUTOR

TO SET ASIDE THE INTERIM ORDERS

Waigani: Kapi DCJ., Salika J., Sakora J

1st & 11th April 2003.

JUDICIAL REVIEW – S 155(2)(b) of Constitution – Inherent Power of Supreme Court to review decision of a National Court – Second application for Judicial review under s 155(2)(b) of the Constitution – Same parties – Same facts – Same relief sought – Principles of res judicata and estoppel apply – Abuse of process.

Application to set aside interim orders – S 155(4) of Constitution – Power to review decision of a single judge of Supreme Court – Interim Orders by a single judge of Supreme Court – Jurisdiction of a single judge of the Supreme Court to issue interim orders – Interim orders set aside.

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81

Avia Aihi v. The State [1982] PNGLR 44

Application by Jeffery Balakau (Unreported judgment of Supreme Court dated 25 October 1996, SC529).

Peter Peipul v. Hon Justice Sheehan, Mr Orim and Iova Geita (Leadership Tribuhal), the Ombudsman Commission and the State (SCM 2 of 2002) (Unreported judgment dated 1 May 2002).

SCR 13 of 2002 (Unreported Judgment of the Supreme Court dated 24th May 2002, SC686).

Titi Christian v. Rabbie Namaliu and the State (Unreported Supreme Court Judgment dated 18 July 1996).

Isidore Kaseng [1995] PNGLR 481

Viviso Seravo & Electoral Commission v. John Giheno (Unreported judgment of the Supreme Court dated 15th January 1998, SC539).

Viviso Seravo & Electoral Commission v. John Giheno (Unreported judgment of the Supreme court dated 21 January 1998, SC555).

Wauri Wasia Ranyeta v. Masket Iangalio & Electoral Commission (Unreported judgment of the Supreme Court dated 17 July 1998, SC562).

David Lambu v. Peter Ipatas & Electoral Commission (Unreported Judgment of the Supreme Court dated 30 April 1999, SC601).

D. Lora & A. Amet (Jr.) for the Applicant

D. Cannings for the Public Prosecutor

11th April 2003.

By The Court: Two proceedings have been brought before us for determination in a joint hearing as a consequence of a direction given by the Chief Justice on 28th March 2003.

The first proceeding is an application for substantive judicial review (SCR 8 of 2003) filed on 19th February 2003 under s 155 (2) (b) of the Constitution. It seeks a substantive judicial review of a decision of the National Court (Sheehan J) dated 14th March 2002.

The second proceeding is an application to set aside an interim order made by a single judge of the Supreme Court (Los J.) dated 26th February 2003 pending the determination of the substantive judicial review (SCR 8 of 2003).

The two proceedings are related and in order to fully appreciate the issues, it is necessary to set out the history of the proceedings. Anderson Agiru (Applicant), a member of the last National Parliament was charged with fifteen (15) allegations of misconduct in office under the Leadership Code. The Leadership Tribunal (Tribunal) consisting of Sawong J, Magistrates Patrick Baiwan and Peter Toliken found the Applicant guilty of twelve (12) charges and found him not guilty on three (3) charges on 16th January 2002.

Two days later, the Tribunal recommended dismissal of the Applicant from office of Member of Parliament plus a fine of K7,000. On 20th January 2002, the Acting Governor-General acting in accordance with the recommendations of the Tribunal dismissed the Applicant from office and imposed a fine of K7,000.

On 22nd January 2002, the Applicant filed an originating summons (OS 27 of 2002) in the National Court seeking leave to review the decision of the National Court under O 16 of the National Court Rules. The National Court heard the application and on 14th March 2002, refused to grant leave and dismissed the application.

On 19th March 2002, the Applicant filed an application for judicial review (SCR 13 of 2002) in the Supreme Court seeking to review the decision of the National Court. He sought two remedies (i) judicial review under s 155 (2) (b) and (ii) orders under s 155 (4) of the Constitution.

On 29th April 2002 when the application initially came up for hearing, the Supreme Court sought clarification of the nature of the application. Upon this enquiry, counsel for the Applicant amended the application and confined the application to judicial review under s 155 (2) (b) and abandoned the orders sought under s 155 (4) of the Constitution.

The Supreme Court dismissed the review on 24th May 2002 with a majority of 4-1 on the basis that it was an abuse of the process of court.

On 29th May 2002, the Applicant filed a different application (MP 509 of 2002) under s 57 of the Constitution. In this proceeding the Applicant sought to enforce his right to stand for elective office under s 50 of the Constitution by way of seeking to review the decision of the National Court (Sheehan J), and sought orders to effectively allow him to contest the National Elections in June 2002. This application came before Los J. for hearing. He however disqualified himself from hearing the application upon objection by counsel in view of the fact that he had expressed an opinion in favour of the Applicant in a dissenting opinion in SCR 13 of 2002. No reasons for decision were published.

Section 57 application was heard by Gavara-Nanu J and on 12th June 2002 he dismissed the application on the basis that it was an abuse of the process of court.

This decision was appealed to the Supreme Court in SCA 49 of 2002 on 13th June 2002. The Supreme Court consisting of Hinchliffe, Jalina and Batari JJ. dismissed the appeal and found that the appeal was an abuse of the process of court.

The practical result of all these unsuccessful proceedings was that the Applicant remained dismissed from office.

When the National Elections were conducted in June/July 2002, the Applicant did not nominate to stand for election because he was disqualified from doing so by operation of s 31 of the Constitution.

However, the elections in several electorates including the Southern Highlands Provincial Electorate were declared a failure under s 97 of the Organic Law on National and Local-Level Government Elections (Organic Law) and the writ for supplementary elections was issued on 20th February 2003 for nominations to take place on 27th February 2003 with polling commencing on 26th April and ending on 9th May 2003.

On 19th February 2003, the Applicant filed SCR 8 of 2003 a substantive judicial review application under s 155 (2) (b) to review the same decision of the National Court (Sheehan J.).

On the same date, the Applicant filed an application in the Supreme Court seeking orders to permit him to nominate for the Southern Highlands Provincial Electorate. This application came before Los J as a single judge of the Supreme Court, and he granted the relief sought on 26th February 2003 and...