The court-ordered by-election for Kabwum Open will now be reviewed following the decision by the Supreme Court yesterday.
Granting a leave to Patrick Basa to review the court decision of 26 May 2023 that declared his election null and void.
Basa, who was declared under special circumstances but ousted in the court of disputed returns in May this year will now file a stay application to set aside the orders of May for a by-election while the review proceeds to trial.
On Monday Justice Canning granted the leave to review the application filed by Kabwum MP Patrick Basa after the National Court declared his election null and void, ordering a by-election for the Kabwun Open Electorate.
Justice Cannings said the decision by Justice Manuhu on 26 May 2023, in the election petition in which the petitioner Haring Quoreka challenged the return of Base as the MP in the 2022 election was not proper.
Justice Manuhu ruled in May that the Electoral Commission’s reliance on section 175 (1A) of the Organic Law on National and Local-Level Government Election to declare the first respondent as the successful candidate under special circumstances was proper. His decision was made with references to the Southern highlands Provincial Seat in the Powi vs Kaku case.
However, Basa’s lawyers in their application for review of the decision argued that Justice Manuhu should not have relied on the Powi vs Kaku case as the three-men bench in that case gave different rulings.
They argued that the court cannot use Justice Kandakasi’s judgement alone in the Powi vs Kaku matter as being the opinion of the Supreme Court to use as reference for the decision.
Justice Cannings therefore upheld Basa’s application also noting that there is little National or Supreme Court authority on the question of the circumstances in which the Electoral Commission, as distinct from the returning officer may invoke Section 175 (1A).
Basa’s lawyer Steven Ranewa outside of court said that the granting of the leave now means Basa can file a stay application.
“This in effect means that we will then have to file an application for stay and have it listed sometime next week for hearing. Basa can then represent his people pending the hearing of the substantive review. Basa has been out of Parliament since the order was made by the National Court in Lae.”
“This decision is good for Basa and hopefully the court grants stay in relation to the proposed stay application that we intend to file.”
Basa said the decision is a relief for him and his people.
“It is a fair decision, my people back home are worried they have no representation since this petition was lodged. Now I can go home and see them.”