Application to Review Pursuant to Constitution s155(2)(b); Application by David Lambu v Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3) (1999) SC601

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 30 April 1999
• Citation: [1999] PNGLR 207
• Docket Number: SC Review No 11 of 1999
• Year: 1999

Full Title: SC Review No 11 of 1999; Application to Review Pursuant to Constitution s155(2)(b); Application by David Lambu v Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3) (1999) SC601

Supreme Court: Kapi DCJ, Salika J, Injia J

Judgment Delivered: 30 April 1999

1 Judicial Review pursuant to s155(2)(b) of the Constitution—Application for security for costs pending review—proper principles for exercise of discretion.

___________________________

The Court: This is an application for security for costs pending the hearing of the judicial review pursuant to s155(2)(b) of the Constitution. It is necessary to set out the background to the application.

Mr David Lambu (the applicant) filed a petition against the result of the election of the member for the seat of Enga Regional in the last National General Elections (EP No 74 of 1997). On a preliminary application, Sakora J dismissed the whole petition. The applicant then applied for judicial review of the decision under s155(2)(b) of the Constitution (SCR No 30 of 1998). He raised several grounds but relied mainly on two grounds:

"1. That the learned trial judge erred in law: in holding that the first respondent was entitled to nominate to contest for a seat in the National Parliament whilst still holding or occupying another elective public office created under the provisions of the Organic Law on Provincial Governments and Local–level Governments.

2. The learned trial judge erred in law in holding that s254(b) of the Constitution did not prevent or prohibit the first respondent from being declared a member of the National Parliament whilst still holding or occupying another elective office created or established pursuant to the provisions of the Organic Law on Provincial Governments and Local–level Governments."

The Supreme Court dealt with these two grounds in its decision dated 5 June 1998 (the first review) in the following passage:

"We are of the opinion that these two grounds, ought to be dealt with together as they raise similar grounds. We accept the submissions put by the respondents for two reasons. First, at the time Mr Ipatas nominated to contest the election he was not holding 'another public office'. At that point in time, he was holding one elective public office. The nomination cannot be regarded as 'another public office' as provided under s254(b) of the Constitution. The second reason is that we do not consider that the provisions of s254(b) of the Constitution can be said to be a factor for disqualification for the purposes of s103(3) of the Constitution. We are of the view that there is no law, either in the Constitution, the Organic Law or any other law, in so far as this case is concern requiring a person holding an elective public office to resign that office prior to nominating to contest the National Election. We find that the trial judge had carefully considered the principles and authorities came to the proper conclusion. We find no errors and we dismiss these grounds of the review."

The applicant not being satisfied with the decision, filed a further judicial review to re–open the matter on the basis that the Supreme Court failed to deal with the second of the two grounds of review referred to above. In its decision dated 27th November 1998 (the second review) the Court ruled:

"We have considered all the submissions...