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Application by Agiwa [1993] PNGLR 136 (28 May 1993)

PNG Law Reports 1993

[1993] PNGLR 136 - Application by Agiwa 

[1993] PNGLR 136

SC442

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REVIEW NO 14 OF 1992

REVIEW PURSUANT TO THE CONSTITUTION SECTION 155(2)(B);

APPLICATION BY HEROWA AGIWA

Waigani

Woods Andrew Sakora JJ

28 May 1993

PARLIAMENT - Elections - Disputed Election Petition - Judicial Review - When available - Constitution s 155(2)(b) - Organic Law on National Elections.

ADMINISTRATIVE LAW - Judicial Review of Judicial Acts - Application to review National Court orders on election petition - Where no appeal to Supreme Court - When review available - Where important point of law - Where gross error - Constitution s 155(2)(b) - Organic Law on National Elections.

Facts

This is an application for review of a decision of the National Court wherein the Court found that the petition disputing an election results had complied with the provisions of s 208 of the Organic Law on National Election and it refused to strike it out. The Organic Law provides that an election or return may be disputed by petition addressed to the National Court and not otherwise. Section 220 of the Organic Law states that the decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

Held

1.       Where a person or a party to proceedings has no right of appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under s 155 (2)(b) of the Constitution is available without the need to meet any other established criteria.

2.       The Supreme Court Act and the Rules of the Supreme Court are silent on the question of the requirement for leave on an application pursuant to s 155(2)(b) of the Constitution. But clearly, in the circumstances where an applicant must show that there is an important point of law to be determined before the Supreme Court will review a judicial act of the National Court, for all practical purposes the requirement is little different to the usual requirements commonly adopted when leave is required to appeal. This is a natural consequence of the fact that there is no right of review but only the right to make application to the Supreme Court to invoke its inherent power to review a judicial act of the National Court.

3.       That power is discretionary.

Cases Cited

Balakau v Torato [1983] PNGLR 242.

SC Review No 5 of 1988; Kasap and Yama [1988-89] PNGLR 197.

SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.

SCR No 4 of 1982; Biri v Ninkama [1982] PNGLR 342.

Counsel

A D Lora, for the applicant.

S Soi, for the respondent.

28 May 1993

WOODS ANDREW SAKORA JJ: This is an application for review of a decision of the National Court wherein the Court, at the hearing of a compulsory conference as to an electoral petition disputing the election results for the Koroba-Kopiago Open Electorate in the 1992 national elections, found that the petition complied with the provisions of s 208 of the Organic Law On National Elections (hereafter, the Organic Law) and refused to strike it out.

The Organic Law provides that an election or return may be disputed by petition addressed to the National Court and not otherwise. Section 220 of the Organic Law provides: "A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way."

The Constitution s 155(2)(b) provides that the Supreme Court has an inherent power to review all judicial acts of the National Court.

The Supreme Court has found in SC Review No 5 of 1988; Kasap and Yama [1988-89] PNGLR 197 that, in a case where a person or a party to proceedings has no right of appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedure under s 155 (2)(b) of the Constitution is available without the need to meet any other established criteria: following SC Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 at 437 and referring to Balakau v Torato [1983] PNGLR 242. The Supreme Court also found that there must be a gross error clearly apparent on the face of the evidence before the Court should review.

The Supreme Court Act and the Rules of the Supreme Court are silent on the question of the requirement for leave on an application pursuant to s 152(2)(b) of the Constitution. But clearly, in the circumstances where an applicant must show that there is an important point of law to be determined before the Supreme Court will review a judicial act of the National Court, for all practical purposes the requirement is little different to the usual requirements commonly adopted when leave is required to appeal. This is a natural consequence of the fact that there is no right of review but only the right to make application to the Supreme Court to invoke its inherent power to review a judicial act of the National Court. That power is discretionary.

In this application, the important point of law to be determined is said to be the fact that a witness to a petition has failed to adequately attest a petition by describing his occupation as "self-employed" and has, therefore, failed to adequately comply with s 208 of the Organic Law. In our judgment, the application has no merit. There is no dispute that there must be strict compliance with s 208 of the Organic Law. That is well established law: see SCR No 4 of 1982 Biri v Ninkama [1982] PNGLR 342. That principle is not being challenged. The only issue is whether "self-employed" is an adequate description of the occupation of a witness to a petition. It is a very minor point which has nothing to do with the merits of the matter. The finding that s 208 of the Organic Law had been complied with was open to the learned trial Judge, and there being a challenge only to that interpretation and finding, we are unable to find an important point of law to be determined which has merit.

In the circumstances where the Organic Law has stated that the decision of the National Court is final and conclusive and without appeal and shall not be questioned in any way, the inherent power of the Supreme Court may only be invoked in very exceptional circumstances, and that has not been shown here.

We dismiss the application together with costs.

Lawyer for the applicant: A D Lora.

Lawyer for the respondent: Sarea Soi.