Kapi v Kapi and Electoral Commission [1998] PGSC 40; SC570 (7 October 1998)

Unreported Supreme Court Decisions

SC570

PAPUA NEW GUINEA

[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
29 July 1998
7 October 1998

Counsel

N Kubak for the Applicant

R Leo for the First Respondent

A Kongri for the Second Defendant

7 October 1998

LOS SALIKA KIRRIWOM JJ: 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:

· Undue delay.

· Abuse of process.

· Attempt to rely on matters not at the trial.

· 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 another (1997) SCR 534, and unnumbered decision in SCR 47 of 1998 - Yoshua Y Avini v The State 5th June 1998.

It is the view of this court that, TST Holdings case and Avini’s case are different procedurally because they had gone through the appeal process first and then they were brought to the court by invocation of s. 155 (2) of the constitution to argue the same issue. Here one needs to see whether the same issues were dealt with by the Supreme Court. The issue for determination before the Supreme Court was whether the National Court was correct in holding that Takai Kapi was qualified to stand for election. The National court said he was so qualified because he did everything possible under s. 58 of the Organic Law to be enrolled as a voter. As such he was qualified to be elected. The Supreme Court held otherwise. That is Taki Kapi enrolled outside the time limit, that is six days after the Writ was issued. The question then is whether Takai Kapi is estopped from raising this issue before this court. In Titi Christian v Rabbie Namaliu and the State OS No 2 of 1995, 18th July 1996 res-judicata and issue estoppel were raised and the Court re emphasised that if the cause of action, the issue of fact and law were the same, the principles of res-judicata and issue estoppel applied.

In a generic way, it would appear Takai Kapi is raising the same issue. That is the Supreme Court said he was not qualified to be elected where as he says he was qualified. But closer look at the argument would show that neither the Supreme Court nor the applicant is in error in law. That is he says he was on the Electors roll in 1992 as such he needed not re enroll. As a matter of law he is correct. That is what, s. 46 (4) of the Organic Law says and an Australian High Court decision in Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449 also supports this view. Section 46 (4) says:

“Notwithstanding anything in subsection (3), where an elector is enrolled in respect of an address in an electorate for which he is entitled to be enrolled, he shall not be required to sign and send in any further claim for enrolment in connection with the preparations of a new Roll under this section.”

The head note (4) in Kean v Kerby reads:

“An electoral roll is a constant record of enrolment, and, a valid claim for enrolment having once been made, the claimant is entitled to be on the roll until his right to be there is lost...”

The law, that is section 47 (4), is so clear that no court would deliberately violate it. Further the evidence is so clear that Takai Kapi had the majority votes and unless attacked on some other reasons like bribery etc, he has the people constitutional wish to be their member of the Parliament.

However the next question is whether we should deal with this issue. We think that the appropriate Bench to have dealt with this issue would have been the Bench constituted in SCR 88 of 1997. Had the issue of 1992 Common Roll and the application of section 47 (4) of the Organic Law been directed to the attention of that Court the decision as a matter of law might have been different. In saying that of course we assume that the name Takai Kapi is on the 1992 Roll. That is a matter of evidence. Similar issue was raised in 1997 Roll but the trial judge was not satisfied that he was on the Roll because the name he referred to as his was the name of a female.

At the end, we are of the view that it was incumbent upon Takai Kapi to raise the issue of 1992 Common Roll as an alternative argument and the application of section 46 (4) of the Organic Law before the Bench in SCR 88 of 1997. Instead he remained tight lipped wishing for a wind fall. As he had a ‘free ride’ he cannot now be allowed to abuse the process. We therefore refuse his application to review.

The cost must follow the event.

Lawyer for Applicant: Kubak Lawyers

Lawyer for First Respondent: Pato Lawyers

Lawyer for Second Respondent: Nonggorr & Associates Lawyers

ORDER

Upon hearing the application to review the decision of the Court of disputed return in EP 75 of 1997, the Supreme Court orders that:

· The application be dismissed.

· Cost must follow the event.