Review Pursuant to Constitution Section 155 (2) (B) Application by Ezekiel Sigi Anisi v Tony Waterupu Aimo and Electoral Commission of Papua New Guinea (2013) SC1237

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 28 June 2013
• Citation: (2013) SC1237
• Docket Number: SCR NO. 41 OF 2012
• Year: 2013

Full Title: SCR NO. 41 OF 2012; Review Pursuant to Constitution Section 155 (2) (B) Application by Ezekiel Sigi Anisi v Tony Waterupu Aimo and Electoral Commission of Papua New Guinea (2013) SC1237

Supreme Court: Salika, DCJ, Manuhu, J, Poole, J.

Judgment Delivered: 28 June 2013

ELECTIONS—Review—Distinction between appeals and review—Age of successful candidate—Enrolment on Common Roll—Appropriate relief upon invalidation of result.

Cases cited

Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 Waranaka v Dusava [2009] SC980 Powes Parkop v Wari Vele (No. 2) of 2007 (N3321)

1. BY THE COURT: The Applicant seeks judicial review of the decision of Kawi, J invalidating his election as Member for Ambunti-Drekikir Electorate (Electorate) in East Sepik Province, in proceedings EP No. 1 of 2012, Tony Waterupu Aimo v Ezekiel Sigi Anisi & Electoral Commission of Papua New Guinea.

2. His Honour delivered his decision on 24th October 2012. It was found that the Applicant was not qualified to become a Member of Parliament as he was below the age of 25 years. The trial Judge also found that the Applicant’s name was not on the Common Roll. His Honour then proceeded to declare the First Respondent, who was the first runner-up, as the duly elected Member for the Electorate.

3. The Court is indebted to Mr. Varitimos for reminding the Court that this is a review, not an appeal. The distinction was explained in Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157, thus:

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

“In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

“Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisor jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of...