[1998] PNGLR

PAPUA NEW GUINEA

[supreme court of justice]

MICHAEL BUKU NALI

V

STEPHEN NAIK MENDEPO; and
ELECTORAL COMMISSION

waigani: woods, sawong, kirriwom jj
23, 26 February 1998

ELECTIONS - Review under s 155 (2)(b) of the Constitution from National Court ruling on objections to a petition under the Organic Law on National and Local-Level Government Elections – Asking Supreme Court to strike out allegations – Role of Supreme Court – No convincing reasons – application dismissed. 

Facts

The first respondent has initiated proceedings before the Court of Disputed Returns established under the Organic Law on National and Local-level Government Elections, disputing the election of the applicant as the Member for the Mendi Open Electorate. At the preliminary hearing the applicant sought to dismiss the proceedings at the first instance. The trial judge refused the application and ordered that the petition proceed to trial. The applicant applied to the Supreme Court to seek a review of the decision of the trial judge.

Held

1.	For an application made pursuant to s 155(2)(b) of the Constitution to succeed the applicant must show that:

(a)	it is in the interest of justice; or 

(b)	there are exceptional circumstances; or 

(c)	there are clear legal grounds.

2.	Preliminary objections are not designed to prevent a petitioner pursuing his right to a hearing but to ensure that the court does not waste its time on trivial and vexatious matters.

3.	Application dismissed.

Papua New Guinea cases cited

Avia Ahia v The State [1981] PNGLR 81.
Balakau v Torato [1983] PNGLR 242.
Sunu & Ors v The State [1984] PNGLR 305.

Counsel

A Manase, for the applicant.
P Kunai, for the first respondent.
W Neil, for the second respondent.

26 February 1998

By the court. This is an application for review of the judgement of the National Court sitting as a Court of Disputed Returns in a preliminary objection to a petition disputing the election of the applicant as the member for the Mendi Open Electorate in the National Elections. 

The National Court sitting as a Court of Disputed Returns is a creature of statute under the Organic Law on National and Local-Level Government Elections. Section 220 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. Whilst this provision appears to preclude any application by way of appeal to the Supreme Court, the Supreme Court has in a number of cases considered its role as the final judicial authority of the people under the Constitution and considered whether this final power or authority can be restricted by any other Act of the Parliament, and the Supreme Court has considered that s 155(2) of the Constitution does give it an overriding power to review all matters from other courts or judicial bodies. We refer here to the principles and reasons expounded in the various cases such as Avia Ahia v The State [1981] PNGLR 81, Balakau v Torato [1983] PNGLR 242, and Sunu & Ors v The State [1984] PNGLR 305. The Supreme Court has ruled in Sunu & Ors v The State (supra) that:

"The discretionary power to grant review of a decision of the National Court under section 155(2)(b) of the Constitution should be exercised only where: it is in the interests of justice, there are cogent and convincing reasons or exceptional circumstances, and there are clear legal grounds meriting a review of the decision."

The applicant is seeking a review of the decision of the National Court to allow the petition to proceed to trial. At the preliminary hearing, objections to the petition claimed that the petition failed to properly comply with the requirements in s 208 of the Organic Law. The applicant asked the Court to strike out the allegations in the petition but the Court found that the allegations did plead sufficient facts and did comply with the requirements of the Organic Law and refused to strike out most of the allegations and ordered that the petition proceed to trial.

The applicant is submitting that the judge erred in law in failing to strike out the paragraphs in the petition and has proceeded to make the same or similar submissions that had been made before the judge. However, whilst there is a right under the Constitution to seek a review of a judicial act (even where the law states that there shall be no appeal), it is still necessary to show clear and convincing reasons. It is not simply a matter of asking the Supreme Court to substitute the decision of the lower court. It is necessary to show the trial judge erred in his analysis or in his reasoning. 

In this case the petitioner has filed a petition challenging the election of the applicant. The Organic Law clearly provides for that right, and whilst not surrounding that right with detailed forms, it does require that the petition meet certain requirements. Those requirements require a Judge to consider the effect of the detail and wording of the allegations in the petition. The court has allowed for a procedure of preliminary objections to ensure that such matters are dealt with as expeditiously as possible. These preliminary objections are not designed to deliberately hinder a petitioner going to trial, they are to ensure that the court does not waste its time with matters that are not formulated clearly. This may of course be a matter of discretion of the judge in his or her analysis. A judge has to be very careful that he or she does not act too arbitrarily in depriving a petitioner of his or her right to a hearing before the Court of Disputed Returns. In this case, the judge clearly had reservations about the manner in which the petitioner in the petition held the election following his perusal of the detailed events related. And these reservations have led him to be cautious and insist that it is necessary for the petitioner to bring the full facts to support the allegations. This is not an error. To be cautious and find that the allegations as pleaded may indicate irregularities and errors and omissions by affected parties and officials, subject of course to the proper evidence being led in due course, is allowing a petitioner his full rights as clearly provided for in the Organic Law. The judge has not determined that these irregularities and errors and omission did occur, he is only ensuring that a party can exercise his rights under the law to try and prove what is alleged.

We find that it is not an error to be cautious and allow matters to proceed to trial in this case. There are no convincing reasons why this court should interfere in what has been an exercise of the judge’s discretion in his analysis of the principles and the petition.

We dismiss the application.

Lawyer for the applicant: Pato Lawyers.
Lawyer for the first respondent: Kunai & Co.
Lawyer for the second respondent: Blake Dawson Waldron.