Application for Review Pursuant to Section 155(2)(b) of The Constitution; Viviso Seravo and Electoral Commission v John Giheno [1998] PGSC 1; SC539 (15 January 1998)

Unreported Supreme Court Decisions

SC539

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW NO 78 OF 1997
APPLICATION FOR REVIEW PURSUANT TO SECTION 155 (2) (b) OF THE CONSTITUTION
VIVISO SERAVO & ELECTORAL COMMISSION V JOHN GIHENO

Waigani

Kapi DCJ
14-15 January 1998

STAY OF EXECUTION PENDING JUDICIAL REVIEW UNDER S. 155 (2) (B) CONSTITUTION - Inherent jurisdiction of the Supreme Court under s. 155 (2) (b) of the Constitution - no jurisdiction granted to a single judge of the Supreme Court to exercise power of stay.

THE ORIGINAL JURISDICTION OF SUPREME COURT - Supreme Court Rules, O 3 - Judicial Review under s. 155 (2) (b) does not fall within original jurisdiction of the Supreme Court.

Counsel

G Sheppard for the applicants

C Coady for the respondent

15 January 1998

KAPI DCJ: A petition (EP 27 of 1997) was filed by Mr John Giheno (hereinafter referred to as the Respondent) in the National Court disputing the election of Mr Viviso Seravo (hereinafter referred to as the First Applicant) as elected member for the Henganofi Open Electorate. An application was made in the National Court to dismiss the whole of the petition. This application was heard by Woods J and on 30th September 1997 he refused to dismiss the petition in its entirety and directed that paragraphs 5 (b), (d), (e), (f), (g), (l) and (j) of the petition should proceed to trial.

The first applicant and the Electoral Commission have sought judicial review of this decision pursuant to s. 155 (2) (b) of the Constitution. The review was filed on 22nd December 1997. An amended review was filed on 7th January 1998. In essence the issue raised is one of law, namely, that the decision of the trial judge was contrary to law in that the petition did not comply with s. 208 of the Organic Law on National and Local Level Government Elections.

On 7th January 1998, the applicants filed an application to stay the proceedings in the National Court in respect of the petition and to vacate the fixed hearing of the petition on 26th January 1998 pending the determination of the review.

An appeal process and a judicial review under s. 155 (2) (b) are quite distinct processes under our law. The appeal process is regulated by the Supreme Court Act. In so far as stay proceedings are concerned, s. 19 of the Supreme Court Act regulates the issue. The discretion to stay is given to the Supreme Court or single judge of the Supreme Court to exercise. There are no similar provisions in relation to stay of proceedings pending a review under s. 155 (2) (b) of the Constitution.

Counsel for both parties do not contest the proposition that the Supreme Court has jurisdiction to determine an application for stay pending a s. 155 (2) (b) review. With respect I agree with counsel. In a similar application in Dick Mune v Paul Poto (Unreported judgement of the Supreme Court dated 23rd April 1996, SC499) the Supreme Court concluded that there is inherent power pursuant to s. 155 (2) (b) and s. 155 (4) of the Constitution to consider an application to stay proceedings pending a review.

However, that is not the end of the matter as far as jurisdiction is concerned. The power of the Supreme Court to stay proceedings pending an appeal is specifically granted to either the full Supreme Court or a single judge of the Supreme Court by s. 19 of the Supreme Court Act. The inherent jurisdiction under s. 155 (2) (b) is specifically granted to the Supreme Court and there is no other provision either in the Constitution or any other law which stipulates that this jurisdiction may be exercised by a single judge of the Supreme Court.

Counsel for the applicants purported to rely on O 3 of the Supreme Court Rules. Where a proceeding within the original jurisdiction of the Supreme Court is commenced (O 3 r 1) and is pending, a single judge may make an interim order to prevent prejudice to the claim of parties (O 3 r 2 (b)). He submitted that a stay of petition in the National Court is an interim order to present prejudice to the claim of the parties.

In the present matter, the original jurisdiction in question is a dispute relating to the result of the national elections. The original jurisdiction in these matters is granted to the National Court under the Organic Law on National and Local Level Government Elections. This matter has only come before the Supreme Court by way of review under s. 155 (2) (b). This does not come within the meaning of the original jurisdiction of the Supreme Court under O 3 of Supreme Court Rules. Therefore this order is not applicable.

In the circumstances I cannot exercise the power of the Supreme Court as a single judge. Consequently I cannot deal with this application. The application should be set down for hearing before the full Supreme Court.

Lawyers for the Applicants: Maladinas

Lawyers for the Respondent: Henaos