Review Pursuant to the National Constitution; In the Matter of the Organic Law on the Nomination of Governor–General and In the Matter of an Application to Recall and Review a Supreme Court Decision in Relation to the Nomination of Governor General of Papua New Guinea; Application by Sir Pato Kakaraya; Sir Pato Kakaraya v Sir Albert Kipalan, Ila Geno, Chief Ombudsman, The National Parliament, Jeffrey Nape—Acting Speaker of National Parliament, Ano Pala, Clerk of National Parliament, The National Executive Council and The Rt Hon Sir Michael Somare, Prime Minister (2004) SC752

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sawong J
• Judgment Date: 18 June 2004
• Citation: (2004) SC752
• Docket Number: SC Review No 23 of 2004
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC752

Full Title: SC Review No 23 of 2004; Review Pursuant to the National Constitution; In the Matter of the Organic Law on the Nomination of Governor–General and In the Matter of an Application to Recall and Review a Supreme Court Decision in Relation to the Nomination of Governor General of Papua New Guinea; Application by Sir Pato Kakaraya; Sir Pato Kakaraya v Sir Albert Kipalan, Ila Geno, Chief Ombudsman, The National Parliament, Jeffrey Nape—Acting Speaker of National Parliament, Ano Pala, Clerk of National Parliament, The National Executive Council and The Rt Hon Sir Michael Somare, Prime Minister (2004) SC752

Supreme Court: Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sawong J

Judgment Delivered: 18 June 2004

1 Supreme Court—Jurisdiction to reopen—Application under slip–rule principle—Decision in an action brought under Constitution, s18(1) (Original jurisdiction)—Misapprehension of fact, mixed fact and law or law alone—Process of electing National Parliament's nominee to position of Governor–General—No misapprehension established—Application an abuse of process—Application dismissed with costs.

2 Charles Maino v Moi Avei (2000) SC648, Avia Aihi v The State (No 1) [1981] PNGLR 81, Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300, SC Review No 54 of 1998; Sir Julius Chan v Ephraim Apelis (No 2) (1999) SC591, Haiveta v Wingti (No 1) [1994] PNGLR 160, Haiveta v Wingti (No 3) [1994] PNGLR 197, SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214, Yakham v Merriam [1998] PNGLR 555, David Lambu v Peter Ipatas (1999) SC645, Don Pomb Pullie Polye v Jimson Sauk Papaki (1999) SC643, SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170, Richard Dennis Wallbank and Jeannette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78, Re Election of Governor–General (2003) SC721, SCR No 3 of 1999; Re Calling of Meeting of the Parliament (1999) SC628, SCR No 3 of 1999 (No 2) (Unreported and Unnumbered Judgment of the Supreme Court dated 23 February 2001 or 23 July 2001), SCR 3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722 referred to

___________________________

SC752

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO. 23 OF 2004

REVIEW PURSUANT TO THE NATIONAL CONSTITUTION

IN THE MATTER OF THE ORGANIC LAW ON THE NOMINATION OF GOVERNOR-GENERAL

AND IN THE MATTER OF AN APPLICATION TO RECALL AND REVIEW A SUPREME COURT DECISION IN RELATION TO THE NOMINATION OF GOVERNOR GENERAL OF PAPUA NEW GUINEA

APPLICATION BY SIR PATO KAKARAYA

BETWEEN:

SIR PATO KAKARAYA

- Applicant

AND:

SIR ALBERT KIPALAN

- First Respondent

AND:

ILA GENO, CHIEF OMBUDSMAN

- Second Respondent

AND:

THE NATIONAL PARLIAMENT

- Third Respondent

AND:

JEFFREY NAPE – ACTING SPEAKER OF NATIONAL PARLIAMENT

- Fourth Respondent

AND:

ANO PALA, CLERK OF NATIONAL PARLIAMENT

- Fifth Respondent

AND:

THE NATIONAL EXECUTIVE COUNCIL

- Sixth Respondent

AND:

THE RT. HON. SIR MICHAEL SOMARE, PRIME MINISTER

- Seventh Respondent

Waigani: Kapi CJ, Injia DCJ, Hinchliffe, Salika & Sawong JJ

2004: 11th, 18th June

Supreme Court – Jurisdiction to re-open – Application under slip-rule principle – Decision in an action brought under Constitution, s.18(1) (Original jurisdiction) – Misapprehension of fact, mixed fact and law or law alone – Process of electing National Parliament’s nominee to position of Governor-General – No misapprehension established – Application an abuse of process – Application dismissed with costs.

Cases cited in the judgment:

Avei v Maino SC 648 dated 7th July 2001

Aviah Aihi v The State [1981] PNGLR 81

Autodesk Inc v Dyason (No. 2) (1992 - 1993) 176 CLR 300

Chan v Aphraim Apelis & Another (No. 2) SC 591 dated 19th April 1999.

Haiveta v Wingti (No. 1) [1994] PNGLR 160

Henzy Yakam v. Michael Nali & Others, SC 553 27th November 1997.

Lambu v Ipatas, and Others SC645 dated 28th May 1999.

Polye v Sauk and the Electoral Commissioner SC 643 dated 24th November 1999

Re Wili Kili Goiya [1991] PNGLR 170

Richard Dennis Wallbank & Jeanette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78

SC OS No. 2 of 2003, SC 721 dated 21 November 2003

SCR No. 3 of 1999 (No. 2) Unreported, Unnumbered Supreme Court Judgement dated 23 July 2001

SCR No. 3 of 2000 SC 722 dated 31 December 2002

Counsel:

B. Narakobi with C. Narakobi for the Applicant

L. Henao for the First Respondent

L. Yalo for the Second Respondent

J. Nonggorr for the Third, Fourth and Fifth Respondents

S. Singin for the Sixth and Seventh Respondents

DECISION

18th June 2004

BY THE COURT: This is an application to the Supreme Court by Sir Pato Kakaraya (“the Applicant”) for the Court to re-open and review this Court’s decision delivered on 31st March 2004 in SC 03 of 2003, (Unreported judgment of the Supreme Court No. SC 728). The application is made in the nature of what is commonly referred to in our jurisdiction as a “slip-rule application.”

The orders sought to be reviewed are as follows:

1. The decision of the National Parliament made on 4th December 2003 that Sir Pato Kakaraya is the Parliament’s nominee for appointment as the next Governor- General

of Papua New Guinea is declared null and void ab initio.

2. Consequently, the National Executive Council’s advice given to the Queen and Head of State, Her Majesty Queen Elizabeth the Second under s 88(1) of the Constitution, on 16th December, 2003 and the appointment by Her Majesty of Sir Pato Kakaraya as the Governor-General, are both declared null and void ab initio.

3. The National Executive Council advise Her Majesty, the Queen and Head of State that as a result of this decision, there is a vacancy in the officer of Governor-General.

4. The Acting Speaker of the Parliament, advice the Parliament in accordance with Section 3 of the Organic Law on the Nomination of the Governor-General that as a result of this decision, there is a vacancy in the office of the Governor-General.

5. The Clerk of the Parliament Mr Ano Pala and the Speaker of the Parliament, the Honourable Bill Skate shall conduct and supervise a new election for the Parliament’s nominee for the office of the Governor-General in accordance with the Constitution and the Organic Law on the Nomination of the Governor-General, as interpreted by this Court.

6. …….”

FACTS

The background facts to this application are that on 4th December 2003, the National Parliament voted on three candidates

and elected the Applicant as its nominee for the post of Governor-General of Papua New Guinea. On 16th December 2003, the Queen and Head of State executed an instrument of appointment, appointing

the Applicant as Governor-General, with effect from midnight 19th November 2003. On the next day, Sir Albert Kipalan (the First Respondent) filed proceedings in the Supreme Court in SCOS No. 3 of 2003 challenging the election of the Applicant as Governor-General. On 31st March 2004, the Supreme Court handed down its decision declaring that the Parliament’s decision to nominate the Applicant as Governor-General and his subsequent appointment as such, was null and void. The Court also made some consequential orders and for a fresh election to be conducted for the post of Governor-General.

On Wednesday 21st April 2004, the Applicant filed a Notice of Motion seeking to re-open and review the Supreme Court judgment of 31st March 2004. That matter came up before Sakora, J as a single judge of the Supreme Court. His Honour heard the application and on 26th April 2004 he dismissed the application as being mischievous and without any merit. This decision is not the subject of review before us.

On Tuesday 27th April 2004, the Parliament was recalled by the Acting Speaker and proposals for nominations were called for. The Applicant was one of the persons proposed. The Clerk of the Parliament was to conduct a ballot on 11th May 2004.

On 29th April 2004, the Applicant filed the present application. On Tuesday 11th May 2004 the National Parliament met to elect its nominee but the Acting Speaker notified Parliament that all proposals had been rejected by the Clerk. Two days later on 13th May 2004, the Acting Speaker recalled the Parliament and it met and fresh proposals were called for. The closing date for the proposals was set for 20th May 2004 and the election was set for 27th May 2004.

On 13th May 2004, the matter came before Kapi CJ for directions hearing. Pursuant to directions issued, the Applicant filed an Amended Application on 19th May 2004.

The Applicant did not seek an order restraining the Parliament from proceeding to elect its nominee. The Applicant was proposed as a candidate in this election. It is agreed between the parties before us that the Applicant through his counsel indicated to the Chief Justice during the directions hearing that if his client won this election, he...