Ipe v Napas [1981] PGNC 76; [1981] PNGLR 128 (16 April 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 128 - Re Provincial Election, Southern Highlands Province, Poroma Constituency: Nakop Ipe v Mana Napas 

[1981] PNGLR 128

N298(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT ELECTION - POROMA CONSTITUENCY NAKOP IPE

V

MANA NAPAS

Mendi

Miles J

15-16 April 1981

PARLIAMENT - Elections - Disputed election petition - Form of petition - Compliance with Regulations as to form etc. mandatory - Allegation of bribery - Necessary implication of claim to avoid election - Provincial Government (Electoral Provisions) Regulations 1977 (as applied to Southern Highlands Province) ss. 184[cxcii]¹, 185, 186.

A petition to the National Court contesting the validity of an open parliamentary election in the Southern Highlands Province must comply with the requirements as to form and contents prescribed in s. 184 and s. 185 of the Provincial Government (Electoral Provisions) Regulations 1977 (as applied to Southern Highlands Province).

Where such a petition alleges bribery, it must, by necessary implication, claim that the election should be declared void and the direction in s. 184(1)(b) to specify the relief to which the petitioner claims to be entitled will accordingly be satisfied.

Petition.

This was a petition (or purported petition) to the National Court contesting the validity of an open parliamentary election in the Southern Highlands Province.

Counsel:

The petitioner (losing candidate) in person.

The respondent (winning candidate) in person.

A. Tadabe, for the Electoral Commission intervening by leave.

16 April 1981

MILES J:  This is a petition under Pt. 18 of the Provincial Government Electoral Law for the Southern Highlands Province, being Provincial Government (Electoral Provisions) Regulations 1977 as applied to the Southern Highlands Province by Provincial Election Act 1979, of the Southern Highlands Provincial Government. The relevant provisions are identical to their counterparts in Pt. XVIII of the Provincial Government (Constituencies) Regulation 1977, being Papua New Guinea Statutory Instrument No. 1 of 1977. The petitioner is Mr. Nakop Ipe and the respondent is the sitting member Mr. Mana Napas. Each of these two gentlemen has appeared on his own behalf and the Electoral Commission has intervened by leave and is represented by Mr. Tadabe of counsel. The petition is in the following terms:

“I, Nakop Ipe, a candidate of the Southern Highlands Provincial Government Elections wish to appeal and dispute the results of the Poroma Constituency on the grounds that—

1.       One, Mana Napas, offered the Electoral Officer at Tindom Village:

(a)      two cartons of beer;

(b)      K100 cash; and

(c)      a leg of pig

and that being bribery.

2.       He offered money and goods to villagers when the election was in progress.

3.       One ballot box was left at Poroma Station without reason or excuse.

4.       Eligible voters of Kungul Village were denied their rights to vote without reason or excuse by the electoral officers.”

The petition is signed for Nakop Ipe, candidate of the Poroma Constituency, and underneath that appear the words “Witnesses: Kiru Ali, Pone Nesa”.

The elections for the Poroma Constituency commenced on 31st May, 1980 and finished on 19th June, 1980. The petition bears the stamp of this Court dated 9th July, 1980 and the petition is therefore lodged within time. Evidence has been called by all parties and no point has been taken until after the conclusion of evidence as to formal aspects of the petition. I propose therefore to deal first with the evidence as it was called and in this respect I note the remarks of Frost C.J. in In re Menyamya Open Parliamentary Election, Neville Bourne v. Manesseh Voeto[cxciii]². The allegations which are to be proved on behalf of a petitioner are to be proved “to my entire satisfaction” and this may be again “just short of the criminal standard, although in application I consider there would be no real practical difference”. I intend to apply this standard of proof to the matters that are raised before me.

N1>(His Honour went on to discuss the evidence and concluded that the grounds alleged in the petition had not been proved.)

N1>I turn now to more formal matters. First, it has been put on behalf of the Electoral Commission that the petition does not on the face of it comply with s. 184(b) or (d) of the Electoral Law. The relevant provisions are as follows:

N2>“184.   REQUISITES OF PETITION

(1)      A petition shall—

...

(b)      specify the relief to which the petitioner claims to be entitled; and

...

(d)      be attested by two witnesses whose occupations and addresses are stated;

...”

I would be prepared to hold that where a petition alleges bribery as this petition clearly does, then it must by necessary implication claim that the election should be declared void. Further, if an allegation of bribery is made in the petition and bribery is in fact proved, s. 191(1) requires the court to declare the election void. Section 191(1) is in the following terms:

N2>“191.   VOIDING ELECTION FOR ILLEGAL PRACTICES

(1)      If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.”

There is no discretion in the court in this respect and the duty of the court is plain regardless of what relief is claimed by the petitioner. However in regard to the other grounds, that is grounds 3 and 4 of the petition, no relief is specified and the petition does not comply with s. 184(1)(b) in this regard. In my view the court is debarred by s. 186 from entertaining the petition on those grounds in any event. Section 186 provides as follows:

N2>“186.   NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH

Proceedings shall not be had on a petition unless the requirements of Sections 184 and 185 are complied with.”

Furthermore, the petition bears the names of two witnesses as I have already indicated. Those names are printed and do not appear to be signatures. The petitioner says from the floor of the court that the witnesses cannot write. If there was evidence of this I would be prepared to hold that the petition has been attested in accordance with s. 184(d). It is true however that the occupations and addresses of the witnesses are not stated and this is in violation of the section. It would be unfortunate indeed if the petition were to fail solely on the ground that the occupations and the addresses of the attesting witnesses are not stated, particularly in view of the duty of the National Court under the Constitution to give paramount regard to the interests of justice and also in view of the court’s powers under s. 151 of the Constitution. However I make no positive decision on this aspect of the case because of my findings on the facts.

I will now turn to the question of costs. Mr. Napas has claimed his expenses totalling about K400 which he says are for accommodation and transport including witnesses’ expenses. However in this case I do not propose to make any order for expenses. I have not rejected anything that has been said by Mr. Nakop. He has called witnesses on his behalf and they gave evidence in the witness box here. I have rejected their evidence but on the other hand I have not rejected anything said by Mr. Nakop. I think he was entitled to come to court and ask the court to see whether or not these witnesses could be believed. For that reason, this I think is an unusual case. For those reasons I will not order Mr. Nakop to pay any expenses.

The order of the court will be: petition dismissed, no order as to costs.

Petition dismissed: No order as to costs.

Solicitor for Electoral Commission: B. Emos, Acting State Solicitor.

[cxcii]Infra p. 130.

[cxciii][1977] P.N.G.L.R. 298 at pp. 301, 302.