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

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (1998) SC548
• Year: 1998
• Docket Number: SCR 88 of 1997
• Date: 01 April 1998

Full Title: SCR 88 of 1997; Review Pursuant to Constitution s155(2)(b); Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548

Supreme Court: Woods J, Sawong J, Kirriwom J

Judgment Delivered: 1 April 1998

1 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.

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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). S220 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 s155(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 Aihi v The State (No 1) [1981] PNGLR 81, and Malipu Balakau v Paul Torato [1983] PNGLR 242, and Danny Sunu 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 s155(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...