Takai Kapi v Daniel Don Kapi and Electoral Commission

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Los J, Salika J, Kirriwom J
• Judgment Date: 07 October 1998
• Citation: (1998) SC570
• Judgment Number: SC570
• Year: 1998

Supreme Court: Los J, Salika J, Kirriwom J

Judgment Delivered: 7 October 1998

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCA NO. 48 OF 1997

BETWEEN:

MOTOR VEHICLES INSURANCE

(PNG) TRUST

Appellant

AND:

MATRINUS NUNU

Respondent

SC 570

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 69 OF 1998

BETWEEN

TAKAI KAPI

Applicant

AND

DANIEL DON KAPI

First Respondent

AND

ELECTORAL COMMISSION

Second Respondent

Waigani: Los, Salika & Kirriwom, JJ

1998: 29th July

7th October

N Kubak, for the Applicant

R Leo, for the First Respondent

A Kongri, for the Second Defendant

BY THE COURT: Takai Kapi applies to review the decision of the court of disputed return in EP No. 75 of 1997 where he was the First Respondent in the Proceedings. That petition was taken out by the runner up Daniel Don Kapi. The issue that determined the petition was whether he, Takai Kapi, was eligible to vote hence was also eligible to stand for Wabag Open Electorate. The trial court found that as Takai Kapi had taken sufficient steps to enroll himself he had satisfied the procedure under s 58 of the Organic Law. That is he was qualified to vote hence he was also qualified to be elected. The petition against him therefore was dismissed.

Don Kapi, the runner up, then applied to review that decision in the proceedings SCR 88 of 1997. The Supreme Court granted the review. The basis of the decision was that the First Respondent, Takai Kapi, had applied for enrollment six days after the Writ was issued which was in breach of s 60 of the Organic Law. Takai Kapi was not therefore eligible to stand for Parliament.

In the proceedings before us now, Takai Kapi is not questioning the Supreme Court decision directly; he says the trial judge was wrong any way. He says his name was on the Roll earlier in the 1992 and therefore by virtue of s 47(4) of the Organic Law, he did not need to enroll anymore. In this respect he seeks to produce a document as a proof that he was in the Roll. We did not rule on that application.

On behalf of Daniel Kapi serious objection was raised against this application for review. These objections are based on:

(1) Undue delay

(2) Abuse of process

(3) Attempt to rely on matters not at the trial

(4) Res Judicata and issue estoppel

Delay may be a factor but not in a determinative way as it would be in an application for review under Order 16 of the National Court Rules. Especially if there is a serious issue of law to be reviewed.

In relation to abuse of process, it is argued on behalf of the respondent that the applicant cannot be allowed a review when all he is trying to do is to have a second bite of the same cherry. In an overview, indeed there was a Supreme Court review of the decision where the applicant and the respondent were parties. The Respondent is therefore entitled to argue that the same issues were dealt with there and then by the Supreme Court and indeed to support the argument the Respondent relies heavily on the decisions in TST Holdings Pty Ltd and anor -v- Tom Pelis and...