Polye v Papaki [1999] PGSC 36; SC643 (24 November 1999)

SC643

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 22 of 1999

BETWEEN:

DON POMB PULLIE POLYE
Petitioner

AND:

JIMSON SAUK PAPAKI
First Respondent

AND:

ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani : SHEEHAN, JALINA,

SAWONG, JJ.
1999 : 24th November

JURISDICTION – application for Court to review error – application shown to reargue issues – abuse of process.

Counsel:

Mr A. Kwimberi for the Applicant

Mr G. Sheppard for the First Respondent

Mr A. Kongri for the Second Respondent

DECISION

BY THE COURT: We have considered this matter and are unanimous that the appeal is not only incompetent but an abuse of process. We now give reasons for this decision.

The decision that the Applicant Don Pomb Pullie Polye seeks to revisit was a finding by this Court that the Applicant whose name did not appear at all on the Electoral Roll for the Kandep Open Electorate was not eligible to stand as a candidate for that Electorate in the 1997 National Election. Further although he did stand as a candidate, when he failed to be elected he was not eligible or entitled to bring a petition as a candidate under that name to challenge the election. Simply stated, the decision was that if you have one name on electoral roll you can not vote or stand for Parliament in another.

The Applicant now asks this Court to review that decision because although pleading that the Court has made an error in its decision requiring correction, in fact the review sought is because his Counsel when presenting the Applicant’s case to this Court on review, failed to raise a particular argument and wishes to do so now. That purpose has been acknowledged for the Applicant before us today.

The Supreme Court is final court of appeal. That truism is well known. Part of the purpose of the function of final court of appeal is to ensure that there is finality in litigation. There has to be a point when the decisions that are made stand as the final decision. That is, there has to be an end to court action. This purpose is particularly relevant in electoral matters. This Supreme Court as early in the decision of Biri v Ninkama and Ors [1982] PNGLR 342 and since then has made it clear that election petitions have as their priority the early determination of just who the People’s representative for an electorate is. It is not appropriate, that there should be any doubt or uncertainty as to who the person representing the electorate should be.

The Supreme Court does have jurisdiction to correct its own errors, but that jurisdiction is for that purpose, the correction of plain obvious error. It is not available to anybody to simply seek to reargue a decision that went against them. It is not to rehash all arguments or bring new ones that may be thought up after the event, or should have been brought up at the trial or at the appeal process, or indeed the review process itself. To invoke jurisdiction for that reason is an abuse of process. That is what had occurred here.

But before we leave this matter it is not appropriate to do so without commenting on both the application as it stands and the contention that was pleaded, to invoke the courts jurisdiction, that is, that the court acted on wrong principle or that there is something wrong with its decision in dismissing the Appellant’s case. The claim of error put forward in this matter and the argument offered in support is shallow and has no merit. It could never have succeeded. It is based on an entirely erroneous assumption that when the Court refers to previous decisions to show the way the Courts have interpreted the law in the past, it is relying on the facts of those cases rather than the principles to be drawn from those decisions. When a court refers to another decision it is only referring to principles of law to be found in that case, not the facts on which it was decided. That is why in this court’s decision there was reference to an earlier decision of Kapi v Kapi. Though somewhat different in facts, that case had a similar legal consequence.

As we have said this application has no merit in law it should not have been brought and it is an abuse of process. It is dismissed.

We now proposed to deal with matter of costs and given this has been an abuse of process we wish to hear argument why costs in this situation should not be on a solicitor/client basis to be met by Counsel for the Appellant.