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 (1998) SC569

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 07 October 1998
• Citation: (1998) SC569
• Docket Number: SC Review No 49 of 1998
• Year: 1998

Full Title: 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 (1998) SC569

Supreme Court: Los J, Hinchliffe J, Injia J

Judgment Delivered: 7 October 1998

1 Judicial Review—Constitution s155(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, s155(2)(b), Organic Law on National and Local–level Government Elections, s73—s82, s175, s208(e), s217.

2 Avia Aihi v The State (No 1) [1981] PNGLR 81, Malipu Balakau v Paul Torato [1983] PNGLR 242, Danny Sunu v The State [1984] PNGLR 305, SCR No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433, SCR No 5 of 1998; Re Kasap v Yama [1988] PNGLR 197, Korak Yasona v Castan Maibawa (1998) SC552, Daniel Don Kapi v Takai Kapi (1998) SC548 and Peter Yama v Mathew Gubag [1998] PNGLR 146 referred to

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By the Court: This is an application by the Applicant pursuant to Constitution, s155(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 s208(e) of the Organic Law on National and Local–level Government Elections (hereinafter abbreviated Organic Law on National Elections.). At the...