SC2668

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO s. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

SCREV (EP) 6 OF 2023

BETWEEN:
GENGEWE NERITHA GANZIK
Applicant

AND:
HON. KONI IGUAN, MP
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J, Anis J, Numapo J
2024: 29th October, 5th December

Substantive review of a decision in an Election Petition pursuant to s.155(2)(b) Constitution

SUBSTANTIVE REVIEW UNDER s.155(2)(b), CONSTITUTION – s. 220 Organic Law on National and Local-level Government Elections (Organic Law) – whether applicable after leave to review a decision in an election petition granted – whether review of a decision in an election petition permissible given wording of 220 Organic Law -  whether when the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.

SUBSTANTIVE REVIEW UNDER s.155(2)(b), CONSTITUTION – review against decision that granted or upheld application for objection to competency of an election petition – consideration – whether review grounds are premised on decisions made by the primary Judge - whether the review grounds are baseless – if not, whether the primary Judge committed errors in the exercise of his judicial discretion – purpose or function of a review Court – identifying various criteria where the Court may exercise its power as a review Court - consideration - ruling

Cases Cited:
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State (No.2) [1981] PNGLR 44
Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157
Anisi v. Aimo (2013) SC1237
Waranaka v. Dusava (2009) SC980
Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935
Application by Ben Semri (2003) SC723
Bourne v. Voeto [1977] PNGLR 298
Tulapi v. Lagea (2013) N5235
Alred Manase v. Don Polye (2009) N3718
Kikala v. Electoral Commission (2013) SC1295
Sir Barry Holloway v Aita Ivarato & Another [1988-89] PNGLR 99
Kamma v Itanu (No 2) (2008) N3261
Kimave v Tore (2013) SC1303
Nomane v. Mori (2013) SC1242 
Sir John Pundari v. Peter Yakos (2023) SC2345
Sir Peter Ipatas v. Aigilo and Ors (2023) SC2447

Counsel:
K. Kulip, for the Applicant
B. S. Lai, for the First Respondent
H. Nii, for the Second Respondent

5th December 2024

1. HARTSHORN J: I have read the draft judgment of Justice Anis and agree with His Honour that this Review should be dismissed.

2. This judgment sets out my own reasoning. I gratefully rely upon the background to the matter as detailed by Justice Anis.

3. At the hearing the Court raised the issue of s. 220 Organic Law on National and Local-level Government Elections (Organic Law) and whether that section is applicable.  The parties had not covered this issue in their submissions but did not object to the issue being raised by the Court. The parties did not seek an adjournment of the hearing for them to be better prepared to argue the issue. 

4. Section 220 Organic Law is as follows:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.”

5. The fair and liberal meaning of s.220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal and shall not be questioned in any way. Section 220 is in the part of the Organic Law which is concerned specifically with election petitions. It is not a general provision and is expressed in mandatory terms: Sir John Pundari v. Peter Yakos (2023) SC2345.

6. That leave to review has been granted, does not detract from the relevance and operation of s.220. A decision of a single Supreme Court judge does not have the effect of negating, or setting aside a statutory provision or a section of an Organic Law. Order 5 Rule 17 Supreme Court Rules in providing that a decision to grant or a refusal to grant leave is final and not subject to further review, does not and is unable to prevent the operation of s. 220 Organic Law. 

7. As this Review is brought pursuant to s. 155(2)(b) Constitution, a consideration of the interpretation of s. 155(2)(b) Constitution and s.220 Organic Law is necessary. In Sir Peter Ipatas v. Laken Lepatu Aigilo (2023) SC2447, I considered the interpretation of these two provisions and at [13] and [14] stated:

“13. Section 155(2)(b) Constitution does not give a right to review. It provides generally, that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Constitution is silent as to when the Supreme Court may exercise that inherent power to review and as to who has the right to request the Supreme Court to exercise that inherent power and when. Given this, the Supreme Court, beginning with Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No. 2) [1982] PNGLR 44, developed factors to be considered before the Court will exercise its inherent power under s. 155(2)(b) Constitution. Under s. 220 Organic Law, a decision of the National Court is final and conclusive and without appeal and shall not be appealed or questioned in any way. As a review of a decision is a questioning of a decision in some way, s. 220 Organic Law may be interpreted to mean that there is no right to request the Supreme Court to exercise its inherent power of review of an election petition under s.155(2)(b) or if there is such a right to request, however that right may have arisen, that right cannot be exercised in respect of a National Court decision covered by s.220 Organic Law. If it were otherwise and an election petition could be questioned, this is contrary to s.220 Organic Law and renders the wording of s.220 Organic Law otiose. The factors that have been developed in judgments by the Supreme Court to be considered before the Court will exercise its inherent power under s. 155(2)(b) do not have the effect of overriding the provisions of a statute, an Organic Law.

14. The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law.”

8. As pursuant to s. 220 Organic Law there is no right to request a review or a right to review a decision of a National Court in an election petition pursuant to s. 155(2)(b) Constitution, this review should be dismissed.

9. If to any extent this Court pursuant to s. 155(2)(b) Constitution, may be able to review a decision of the National Court in an election petition, it has not been shown in this instance that there exist extraordinary circumstances and that it is in the interests of justice that a review be undertaken. Consequently, this Review should be dismissed.

10. I would order that this Review be dismissed and that the applicant shall pay the costs of and incidental to the Review proceedings to both respondents, such costs to be taxed if not otherwise agreed.

11. ANIS J: This was a hearing of a review filed under s.155(2)(b) of the Constitution.  We heard the matter on 29 October 2024 and reserved our decision to a date to be advised.

BACKGROUND

12.	The review stems from a decision by the primary Judge that dealt with the matter in the National Court.  The proceeding was described as EP No. 70 of 2022, Gengewe Neritha Ganzik v. Hon. Koni Iguan, MP and Electoral Commission (EP No. 70).  The applicant and the first respondent were contestants for the Markham Open Electorate seat in the 2022 General Elections.  The applicant was aggrieved by the decision of the second respondent in declaring the first respondent as the duly elected member for the said electorate, and thus on 14 September 2022, she filed her petition in EP No. 70 (Petition).

13.	The applicant alleged in her Petition that on 15 July 2022, during the counting of the ballots and before the completion of scrutiny conducted in a tally room at the Markham Secondary School in Mutzing Station in Morobe Province, unknown persons burnt and destroyed all the ballot papers and boxes for the entire electorate including the progressive records of the count up to the said date.  The applicant alleged that the incident occurred between 3am and 4am on 15 July 2022.  The applicant further alleged that on 5 August 2022, the second respondent declared the first respondent as member elect for the Markham Electorate.  She pleaded 3 grounds for review in the Petition which were as follows:

1.	The declaration by the Second Respondent under s.175(1A)(b) of the Organic Law of the First Respondent as the elected member was unconstitutional for the reasons set out in paragraph B.15 of this Petition, and consequently invalid, ineffectual and inoperative.

2.	The declaration by the Second Respondent under s.175(1A)(b) of the Organic Law of the First Respondent as the elected member was unconstitutional for the reasons that it was not a fair, free or genuine election contrary to ss.50,59 and 126 of the Constitution.

3.	The declaration of the Second Respondent under s.175(1A)(b) of the Organic Law of the First Respondent as the elected member was void as being unconstitutional, as pleaded in paragraph B of this Petition.

14.	However, on 14 February 2023, the primary Judge, after hearing an objection to competency of the Petition (i.e., petition filed in EP No. 70), handed down his decision where his Honour dismissed EP No. 70.  His Honour’s final decision reads:

1.	The First and Second Respondent’s objections to the competency of the Petition is upheld and the Petition is dismissed in its entirety.

2.	The petitioner shall pay the First Respondent’s costs of the objections to competency, on a party-party basis, to be taxed, if not agreed.

3.	The Second Respondent shall bear its own costs of the Petition.

4.	The K5,000 security deposit paid into Court by the Petitioner shall be paid to the First Respondent in its entirety.

15.	On 18 May 2023, Gavara-Nanu J, sitting as a single Judge of the Supreme Court, granted leave to review, to the applicant.  

REVIEW GROUNDS

16.	In the Application to Review filed 31 May 2023 (the Review), the applicant pleads a total of 9 grounds for review.  The respondents responded by filing an objection to competency of the Review.  On 8 May 2024, this Court (comprised of Geita J, Lindsay J, Sheppard J) in Gengewe Neritha Ganzik, Hon. Koni Iguan, MP and Electoral Commission (2024) SC2572 (SC2572), partly upheld the objection where the Court removed some of the grounds that were added into the Review where leave had not been sort for their inclusions.  Those excluded were grounds 5.1.2, 5.3.3, 5.5.3 and 5.9.3.

17.	At the present hearing, counsel for the applicant informs the Court that the applicant has decided to discard ground 7 of the review, that is, grounds 5.7.1 to 5.7.6.

18.	The remaining review grounds are 8 in total, that is, grounds 1, 2, 3, 4, 5, 6, 8 and 9. I summarise them as follows into a table:

Ground	Summary	Remarks	

1 (5.1.1 & 5.1.3)	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour found that the facts, as pleaded at paras. 5 to 7 in the petition, were insufficient within the requirement of s.208(a) of the Organic Law to raise questions concerning exercise of power by the second respondent under s.175(1A)(b) of the Organic Law.

The appellant asserts that the primary Judge, premised on the pleaded facts at paras 5 to 7 and findings or assertions made at para. 58 of the judgment, should have referred the issues pursuant s.18(2) of the Constitution, to the Supreme Court to consider and determine.

2 (5.2.1 & 5.2.2)	
The applicant alleges the primary Judge erred in mixed fact and law, that is, by not finding that no valid election was conducted because no proper scrutiny was conducted and completed.  Given that no proper election was conducted because of want of proper scrutiny, application of s.175(1A)(b) was inconsistent with the Constitution.

3 (5.3.1 & 5.3.2)	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour found that the applicant did not plead sufficient facts that existed (i.e., of what transpired or relevant information had before, during, and after the burning of the ballots and boxes) at the material time when the second respondent exercised his powers under s.175(1A)(b), which, had that been done, would have caused his Honour to refer the matter to Supreme Court for consideration under s.18(2) of the Constitution.

No assertion is made under this ground to say why the primary Judge erred.

The relevant assertion appeared to have been included in ground 5.3.3 which was struck out by this Court in SC2572 thus making this purported ground obsolete.

But the ground is related or similar to ground 1.	

4 (5.4.1)	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour found at para 59 in his decision, that the alleged facts in the petition (i.e., the pleadings at paras 5 to 7) did not constitute a requisite factual foundation but instead impressed upon the Petition giving it a hypothetical character.

The applicant asserts that the pleadings, namely, the pleaded facts at paras. 5 to 7 in the Petition, were sufficient in that they had raised valid constitutional questions which the primary Judge should have then referred them for interpretation under s.18(2) of the Constitution.
	
This ground is similar to ground 1 above.	

5 (5.5.1 & 5.5.2)	

The applicant alleges the primary Judge erred in mixed fact and law when his Honour at paras. 67 and 68 of his decision, provided an opinion that constitutes interpretation of s.175(1A)(b) of the Organic Law when his Honour had no jurisdiction to do so pursuant to s.18 of the Constitution.

The applicant asserts that the issue gave rise to a Constitutional Law and that only the Supreme Court, to the exclusion of other courts, has the power to interpret a Constitutional question thus the primary Judge erred in law in that regard.

6 (5.6.1)
	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour at paras. 50 and 52 in his decision, held that the Constitutional Issue raised in the Petition was not captured by the Organic Law.

The applicant asserts the primary Judge erred because the Supreme Court is the final arbiter of Constitutional Law issues.

8 (5.8.1, 5.8.2, 5.8.3 & 5.8.4) 	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour at paras. 63 and 64 of his decision, misapplied the Supreme Court case of Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814.

The applicant asserts that the issues with that case and EP No. 70 were distinct and different from each other.

The applicant asserts that the issue before the primary Judge directly concerned the constitutionality of the use of power that is given to the Electoral Commission by s.175(1A)(b) of the Organic Law and possible conflicts that has or may have on ss.126(1)(6), 50, and 59 of the Constitution.  

9 (5.9.1 & 5.9.2)	
The applicant alleges the primary Judge erred in mixed fact and law when his Honour at para 65 in his decision, considered the evidence of the second respondent which contained an assumption, something that should not have been allowed or permitted at the hearing of Objection to Competency of Petition.

The applicant asserts that the primary Judge’s role or jurisdiction was confined to the material facts as pleaded in the Petition and the requirements that are stipulated under s.208 of the Organic Law.  

THE LAW

19.	I note the submissions of the parties in relation to the grounds of review.

20.	To begin, it is vital to remind myself of reviews that are filed under s.155(2)(b) of the Constitution.  The case law is settled on this.  Unlike normal appeals that are filed as of right or with leave of the Court under the abbreviation SCA, a review of this nature is equivalent to judicial review proceedings.  The Court is tasked to consider and make findings not on the actual decision itself, but rather, on the decision-making process that was applied by the primary Judge to make or arrive at his decision.  See cases: Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157, Anisi v. Aimo (2013) SC1237 and Waranaka v. Dusava (2009) SC980.

21.	What are the types of situations that may permit a review Court to uphold a review that is filed under s.155(2)(b) of the Constitution?  This Court in Moi Avei & Electoral Commission v Charles Maino (supra) stated as follows:

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the (National and the) Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision-maker.

……

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorized to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s 220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process. SC Review No. 1 of 1990; Application by Electoral Commission [1990] PNGLR 441.

The Constitutional provision granting the power of review doesn’t themselves deal with the rights of person seeking to invoke those power or the procedures for doing so. They are provided for elsewhere in the Constitution and by other laws. Nor has the Supreme Court laid down rules for the conduct of applications for judicial review. But by decisions commencing with Avia Ahi it has determined that its inherent powers entrenched by the Constitution will be exercised only with caution. In claims made when parties have failed to exercise appeal rights within time in criminal or civil cases, the Court requires that it be shown that a review sought (a) is in the interest of justice; (b) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and (c) there are clear legal grounds meriting a review of the decision, PNG v Colbert [1988] PNGLR 138.

22.	I also refer to the submissions of the second respondent.  Mr Nii, at para 26, referred to case law [Moi Avei & Electoral Commission v Charles Maino (supra), Anisi v. Aimo (supra) SC1237, Waranaka v. Dusava (supra), Erie Ovako Jurvie v. Bonny Oveyara & Electoral Commission (2008) SC935, and Application by Ben Semri (2003) SC723)] and summarised the relevant criteria for consideration by a review Court as follows:

a)	There is a clear error of law on the face of the record (Avei & EC v Maino; Jurvie v Oveyara & EC)
b)	There is gross error in the findings of fact (Jurvie v Oveyara & EC)
c)	Procedural irregularity. (Anisi v. Aimo; Waranaka v Dusava)
d)	When it is plain that the decision reached is such as to be unsustainable in law or reason. (Avei & EC v Maino)
e)	Or that is considered so outrageous or absurd so as to result in injustice (Application of Ben Semri)

CONSIDERATION

23.	A preliminary argument that was raised by the respondents is this.  They argue that none of the grounds of review constitute findings that were made by the primary Judge which may be subject to a review.  Thus, they argue that the review is baseless and must be dismissed on this premise.

24.	The respondents’ argument is premised on the ruling made by the primary Judge at paras. 70, 71 and 72 where his Honour stated:

70.	On the first issue I find that the petitioner has not pleaded known grounds under the OLNLLGE to challenge the outcome of the Markham Open Electorate.

71.	On the second issue I find that the Petitioner has not adequately pleaded material facts to meet the requirements of s 208(a) of the OLNLLGE.

72.	Given this, I order that the petition should be dismissed with appropriate orders for costs.

25.	I find the respondents’ argument misconceived and baseless.  This is a review, not an appeal.  The applicant, in this instance, is only required to show or prove to this Court, where the primary Judge may have erred in his decision making process which has led to his conclusions or final decision at paras. 70, 71 and 72.  This Court’s attention is not focused or concerned with the actual decision or whether the review grounds are based on them.

26.	I now move onto the main issues or the grounds of review. 

27.	To begin, I make the following observations on (i) the facts as pleaded in the Petition and (ii) the arguments raised before the primary Court:

•	The material facts pleaded at paras 5, 6 and 7 were brief but relevant for the applicant to then, and as pleaded under paras 8 to 15, set the basis for her constitutional challenge on the validity of exercise of power by the second respondent under s.175(1A)(b) of the OLNLLGE (when the second respondent declared the first respondent as the duly elected member for the Markham Open Electorate).

•	The applicant, however, did not plead any of the stipulated grounds for voiding an election that are expressly provided under the provisions of the Organic Law, that is, whether it be for illegal practice, errors or omissions; see cases: Bourne v. Voeto [1977] PNGLR 298, Tulapi v. Lagea (2013) N5235, Alred Manase v. Don Polye (2009) N3718 and Kikala v. Electoral Commission (2013) SC1295.

•	It appears that there was no intention by the applicant to plead any of the grounds that are stipulated under the Organic Law for invalidating an election outcome.

•	It appears that the was no intention by the application to plead supportive facts to the known grounds for invalidating an election outcome.

•	The petition did not contain know grounds and facts in support of these know grounds as per the requirement of ss.208 or 215 of the Organic Law.

•	It appears that the main purpose of the Petition, as was filed by the applicant, was to seek constitutional interpretation of s.175(1A)(b) with the aim to declare the said provision unconstitutional.

•	The applicant’s intention to refer s.175(1A)(b) to the Supreme Court for interpretation was sought as a substantive relief in the Petition.

•	It would be an abuse of the Court process if the sole intention of the applicant in filing the election petition was to request the election Court to interpret and declare a Constitutional provision unconstitutional; there are express process available for such intention which the applicant could have used.

•	The objection to competency hearing was an interlocutory process; it was not the substantive hearing of the Petition.

•	At the objection hearing, the parties did not argue before the primary Judge whether the constitutionality of s.175(1A)(b) should be referred to the Supreme Court under s.18 of the Constitution for interpretation; the parties did not make any submissions in that regard.

•	There was no interpretation, expressed opinions or views given by the primary Judge of s.175(1A)(b).

•	Substantive arguments or issues raised in a petition must not be considered at the hearing of an objection to competency;

•	However, despite discussing s.175(1A)(b), his Honour did not make any findings on that but rather drew his attention back to the two main issues where his Honour considered and gave his final decision.

28.	When I consider these, I must say that I am unable to reach a conclusion or finding that his Honour committed any of the prescribed errors or situations that would enable me, sitting as review Court Judge, to overturn or disturb the final decision of the Court.  I did not find any clear errors of law on the face of the record nor any gross errors in the findings of fact, by the primary Judge that are sufficient to overturn his decision.  I also do not find any procedural irregularities committed or unobserved by the primary Judge that would warrant an overturn of his decision.  This is despite my observation that the primary Judge may have, to some extent, observed and commented on s.174(1A) of the Organic Law.  Despite that, his Honour managed to focus his findings on the 2 material issues that were before him.  I also do not find his Honour’s final decision to be unsustainable in law or reason.  And finally, his Honour’s decision, in my view, cannot be regarded as so outrageous or absurd to an extent that if it is not set aside then grave injustice would occur or be caused upon the applicant.  The reasons for upholding the objection to competency of the Petition were valid and were within his Honour’s discretion to exercise.  

29.	Insufficiencies in the pleadings, whether it be in the grounds or facts of a petition, are valid basis or reasons for a primary Judge to dismiss an election petition, which has been the law and practice in this jurisdiction.  See cases: Sir Barry Holloway v Aita Ivarato & Another [1988-89] PNGLR 99, Kamma v Itanu (No 2) (2008) N3261, Kimave v Tore (2013) SC1303 and Nomane v. Mori (2013) SC1242.  

30.	In the present matter, the primary Judge found deficiencies in the applicant’s petition, thus it was well within his discretion to dismiss the petition which he did.

REMARKS

31.	I will make the following remarks in ending: First, the petitioner appeared to have abused the Court process by filing EP No. 70.  Her aim was not to dispute an election result premised on any of the known grounds that are prescribed or specified in the Organic Law, but rather, to seek a declaration to invalidate a constitutional provision, something which was beyond the purview of the National Court.

32.	My second remark is this.  At the hearing, the Court raised a jurisdictional issue concerning s.220 of the Organic Law, that is, whether s.220 may or shall be interpretated to mean that in relation to election petition, that no review or appeal shall arise after the primary Court makes a final decision.  See case: Sir Peter Ipatas v. Aigilo and Ors (2023) SC2447.  I observe generally that the parties had not come prepared to address the issue or point that was raised by the Court.  The issue was also not raised in the submissions of the parties.  As such, I am not minded to consider this issue or make any findings or remarks in that regard.  

COSTS

33.	The applicant shall pay the cost of the review.

ORDERS OF THE COURT

34.	I make the following orders:

(1)	The review is dismissed and the National Court order of 14 February 2023 is affirmed.

(2)	The applicant shall pay the respondents’ cost of the review proceedings to be taxed if not agreed.

35. NUMAPO J: I have read the draft judgments of Hartshorn J and Anis J. I agree with the conclusion reached by their Honours respectively that the Review should be dismissed.  

36. I rely on the background set out containing the facts as pleaded in the petition and the arguments raised in the Court below and give my opinion accordingly.

37. The issue raised during the hearing of this Review relates to the interpretation of s. 220 of the Organic Law and s. 155(2) (b) of the Constitution.

38. This review relates to a decision in an election petition therefore, s.220 is an important provision for consideration, in my respectful view.

39. Section 220 Organic Law provides:

“A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in anyway.”

40. The section 220 jurisdictional issue was never raised by the parties in their submissions. The parties have not addressed the Court on the issue. The Court however, considered it necessary and relevant to raise it at the hearing of this Review.

41. The Court has a duty to safeguard its processes by raising issues that are not raised and bring them to the attention of parties. Such issues include important points of law or procedure that are necessary and relevant to the proceedings, that the parties ought to know to properly and adequately present their respective cases. This also includes matters that the parties may have ignored or overlooked such as in this case, s.220 of the Organic Law.

42. Section 220 is clear. A decision of the National Court in an election petition is final and conclusive and without appeal. It means that the decision is not subject to any appeal or is incapable of being appealed from. There is no ambiguity or vagueness in the provision.

43. Section 220 of the Organic Law refers to an Appeal. The present case involves a Review (which is primarily concerned with the process of decision making and not necessarily the decision itself). Something akin to the judicial review process.

44. This is a substantive review brought pursuant to s.155(2)(b) of the Constitution. It is a review against the decision of the Court below that granted or upheld an objection to competency of an election petition. I therefore concur with Hartshorn J that a consideration of the interpretation of both s.155(2)(b) of the Constitution and s.220 of the Organic Law is necessary.

45. The Supreme Court in Moi Avei & Electoral Commission v. Charles Maino [2000] PNGLR 157 held that a Review of a decision in an election petition is permitted under s.155(2)(b), as the Supreme Court has a supervisory jurisdiction in the exercise of its inherent power and at its discretion, to review all judicial acts of the National Court. This means that the Supreme Court can intervene where an error of law or procedural irregularity exists, or where the decision that is reached is so unreasonable and is such that it is unsustainable in law or logic.

46. In the present case, the applicant had not shown through the pleadings that an error of law has occurred, or that the Court below had not followed proper procedures resulting in procedural irregularity to call on the Supreme Court to invoke its inherent powers under s.155(2)(b) to review the decision.

47. The main and only ground raised by the applicant was a constitutional challenge under s. 175(1A)(b) of the Organic Law asking the Court below to declare the said provision unconstitutional. This was the only substantive relief sought in the petition.

48. Neither of the parties raised at any stage of the hearing whether the issue regarding the constitutionality of s. 175(1A)(b) should be referred to the Supreme Court under s.18 of the Constitution for interpretation.

49. I note that the primary judge did not make any findings or express any opinion or make any ruling on s.175(1A)(b) and rightly so. The interpretation of a Constitutional Law is exclusively within the jurisdiction of the Supreme Court.

50. With respect to the petition itself, the applicant had not pleaded any of the known grounds as required provided under ss.208 and 215 of the Organic Law to void an election result such as illegal practice and errors and omissions: Tulapi v Lagea (2013) N5235; Alfred Manase v Don Polye (2009) N3718.

51. The primary judge, after hearing an objection of competency of the petition, dismissed the petition. His Honour upheld the objection and dismissed the petition in its entirety and ordered costs against the petitioner on a party-party basis, to be taxed, if not agreed.

52. His Honour’s decision to dismiss the petition was premised on the following grounds:

(i)	The petitioner has not pleaded known grounds under the Organic Law to challenge the outcome of the Markham Open Electorate.
(ii)	The petitioner has not adequately pleaded material facts to meet the requirements of s.208 of the Organic Law. 
(iii)	Accordingly, this petition should be dismissed with costs.

53. The applicant sought a review before a single judge of the Supreme Court and was granted leave to review. The respondent filed an objection to the competency of the review. A 3-men Supreme Court bench removed some of the grounds where leave had not been sought for inclusion in the review. The remaining review grounds were proceeded with, in this hearing. The grounds are as set out by Anis J in his Honour’s draft judgment which I rely on. One or two of the grounds are similar and repetitive.

54. Section 155(2)(b) of the Constitution is silent in so far as right to review is concerned. It only talks about the Court’s inherent power to review all judicial acts of National Court in general terms.

55. Whereas s.220 of the Organic Law expresses in mandatory terms that the decision of the National Court in an election petition is final and conclusive and cannot be challenged on an appeal.

56. I must agree with Hartshorn J that a decision to grant leave to review does not necessarily set aside a statutory provision of an Organic Law. The fact that Order 5 Rule 17 of the Supreme Court Rules provides that a decision of the Supreme Court to grant or refuse leave is final and not subject to further review, does not in anyway, prevent the operation of s.220 of the Organic Law.

57. The Supreme Court in Sir Peter Ipatas v. Laken Lepatu Aigilo (2023) SC2447 discussed the interpretation of these two provisions and made it clear that s.155(2)(b) of the Constitution does not give a right to review. It provides generally that the Supreme Court has an inherent power to review all judicial acts of the National Court but as to when and on what grounds or under what exceptional circumstances, the Supreme Court may be called on to exercise its inherent power and by whom, is not clear. Certain factors for consideration were developed through case laws such as Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No.2) [1981] PNGLR 44 upon which, the Supreme Court may invoke its inherent power under s.155 (2)(b).

58. The Organic Law is subject to the Constitution. When the Constitution is silent as to when a provision of the Constitution may be invoked or utilized and if an Organic Law is not silent in relation to that point, a fair and liberal meaning must be given to the relevant provision of the Organic Law: Sir Peter Ipatas v. Laken Lepatu Aigilo (supra).

59. A fair and liberal meaning and application of s. 220 of the Organic Law is that, there is no right to request for a review or a right to review a decision of a National Court in an election petition. There is no ambiguity in this provision.  This Review should be dismissed.

60. The applicant had not shown any exceptional circumstances or matters considered to be in the interests of justice to give the Supreme Court reason to invoke its inherent powers under s.155(2)(b) of the Constitution to review the decision of the National Court. This also includes factors for consideration stated and discussed in Avia Aihi (supra). For this reason, this Review should be dismissed.

61. All in all, I agree with the observation made by Hartshorn J and the conclusion his Honour reached. This Review should be dismissed.

62. Having said that, it is my decision that this Review should be dismissed. The appellant shall pay the costs of this Review to both respondents, to be taxed, if not agreed.

ORDERS OF THE COURT:

1.	This review is dismissed and the National Court order of 14th February 2023 is affirmed.
2.	The applicant shall pay the respondents’ cost of the review proceedings to be taxed if not agreed.

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Emergent Lawyers: Lawyers for the Applicant	
B. S. Lai Lawyers: Lawyers for the First Respondent	
Harvey Nii Lawyers: Lawyers for the Second Respondent