Review Pursuant to Constitution s155(2)(b); Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548

• Jurisdiction: Papua New Guinea
• Judge: Woods J, Sawong J, Kirriwom J
• Judgment Date: 01 April 1998
• Court: Supreme Court
• Citation: (1998) SC548
• Docket Number: SCR 88 of 1997
• Year: 1998
• Judgement Number: SC548

Supreme Court: Woods J, Sawong J, Kirriwom J

Judgment Delivered: 1 April 1998

SC548

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 88 OF 1997

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2)(b)

DANIEL DON KAPI — Applicant

V

TAKAI KAPI — First Respondent

ELECTORAL COMMISSION — Second Respondent.

Waigani: Woods, Sawong, Kirriwom JJ

24 February 1 April 1998

1 April 1998

BY THE COURT. This is an application under s155(2)(b) of the Constitution to review the decision of the National Court sitting in its electoral jurisdiction to Petition disputing the election of the election of the First Respondent for the Wabag Open Electorate in the National Elections.

The National Court sitting in its electoral jurisdiction is a creature of Statute created by the Organic Law on National and Local-Level Government Elections (the Organic Law). Section 220 of the Organic Law states that a decision of the National Court is final and conclusive and without Appeal and shall not be questioned in any way. This provision precludes any application by way of an appeal to the Supreme Court. However, the Supreme Court has in a number of cases held that s.155(2)(b) does give it inherent jurisdiction to review all judicial acts of the National Court. We refer here to the principles and reasons expounded in the various cases such as Avia Ahia v The State [1981] PNGLR 81, and Balakau v Torato [1983] PNGLR 242, and Sunu & Os v The State [1984] PNGLR 305. These authorities provide that the discretionary power of the Supreme Court to grant a review of a decision of the National Court under S 155 (2) (b) of the Constitution should be exercised only where (a) it is in the interests of justice (b) there are cogent and convincing reasons or exceptional circumstances, and (3) there are clear legal grounds meriting a review of the decision.

The Applicant, who was a candidate in the 1997 National Elections, was the runner-up in the final tally to the First Respondent. He has filed a Petition under the Organic Law on National and Local-Level Government Elections disputing the election of the First Respondent for the Wabag Open Electorate in the National Parliament. One of the matters challenged in the Petition was the right of the First Respondent to be nominated and stand for the Wabag Open Electorate it being alleged that he was not properly qualified under the Constitution by reason of the fact that he was not enrolled as a voter in that Electorate. At a hearing of certain matters under the Petition the trial Judge found that the First Respondent and winning candidate Takai Kapi was enrolled on the Common Roll and therefore was entitled to nominate for Parliament and the trial Judge thereupon dismissed the Petition.

The Applicant has now sought review of that finding and the Order dismissing the Petition. There are a number of grounds raised for this Court to exercise its discretion and hear the review. Generally the grounds are that the Judge erred in law in finding that the First Respondent was correctly on the roll and that there was more than one roll. This review is therefore asking this Court to review findings of fact made by the Trial Judge. The evidence before the Trial Judge was that the First Respondent had sought to become enrolled at Wabag and that he completed the appropriate application form which was accepted by the Returning officers who then placed his name on the records kept at Wabag. The evidence suggests that the application was then forwarded to Port Moresby for inclusion in what is called the Principal Roll of Electors. It is submitted on the evidence that due to some error Mr Takai's name was not placed on the published Common Roll which appears in the form of a large book. It is clear in the evidence that the First Respondent does not appear in the Principal Roll under the name of Takai Kapi. However there was evidence that he did claim...