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
• Judge: Ability to Pay the Costs of the Review
• Judgment Date: 30 April 1999
• Court: Supreme Court
• Citation: [1999] PNGLR 207
• Docket Number: SC Review No 11 of 1999
• Year: 1999
• Judgement Number: SC601

Supreme Court: Kapi DCJ, Salika J, Injia J

Judgment Delivered: 30 April 1999

PAPUA NEW GUINEA SC601

[IN THE SUPREME COURT OF JUSTICE]

SC Review No. 11 of 1999

Application to Review Pursuant to

Constitution Section 155 (2) (b)

Application by DAVID LAMBU

AND:

PETER IPATAS

First Respondent

AND:

EDWARD KONU

(The Provincial Returning Officer)

Second Respondent

AND:

THE ELECTORAL COMMISSION

Third Respondent

(No. 3)

Waigani: Kapi DCJ., Salika J., Injia J.

23rd March, 30th April, 1999

Judicial Review pursuant to s 155 (2) (b) of the Constitution — Application for security for costs pending review — proper principles for exercise of discretion.

D. Lambu in person

C. Coady for the first respondent

A. Kongri for the second respondent

30th April 1999

By The Court: This is an application for security for costs pending the hearing of the judicial review pursuant to s 155 (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 s 155 (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 and Local-level Governments.

2. The learned trial judge erred in law in holding that s 254 (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 and Local-level Governments."

The Supreme Court dealt with these two grounds in its decision dated 5th 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 s 254 (b) of the Constitution. The second reason is that we do not consider that the provisions of s 254 (b) of the Constitution can be said to be a factor for disqualification for the purposes of s 103 (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 submitted by all the parties. In our decision in SCR 30 of 1998, we considered those grounds and we said at p.3: 'We are of the view that those two grounds, ought to be dealt with together as they raise similar grounds…'. We set out our reasons why we accepted the submissions by the two respondents and dismissed those two grounds.

In the present case, we conclude that these two grounds were in fact considered by the Court and the Court's ruling is in the paragraph we have referred to. It is our firm view that the Court has made a ruling or decision in regard to the second ground already. It follows that we consider the present application to be unmeritorious, mischievous and without any foundation in law"

The applicant has filed the present review to re-open the decision of the Supreme Court the second time on the basis that the Court refused to acknowledge its mistake in failing to deal with the second point in the second review.

Pending the hearing of this review, counsel for Mr Ipatas (the First Respondent) has applied for security for costs. Counsel for the Electoral Commission (the Third Respondent) supports the application.

The appeal procedure and preliminary issues are regulated by the Supreme Court Act (Cap. 37 (Act)). Security for costs pending an appeal is regulated by s 18 of the Act. A judicial review under s 155 (2) (b) of the Constitution is different in nature from an appeal to the Supreme Court (see Avia Aihi v The State [1981] PNGLR 81). Therefore, the provisions of the Act are not applicable to a judicial review under s 155 (2) (b) of the Constitution ( Dick Mune v Pail Poto, Unreported judgment of the Supreme Court dated 23rd April 1996 SC499; Viviso Seravo & Electoral Commission v John Giheno, Unreported judgment of the Supreme Court...