In the Matter of The Organic Law on National Elections and Disputed Returns for the Abau Open Seat; Mae v Genia [1992] PGNC 34; N1105 (30 August 1992)

Unreported National Court Decisions

N1105

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. 147 OF 1992
IN THE MATTER OF:
THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND DISPUTED RETURNS FOR THE ABAU OPEN SEAT IN THE ABAU ELECTORATE
BETWEEN:
VAGI MAE
PETITIONER
AND:
JACK GENIA
FIRST RESPONDENT
AND:
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
SECOND RESPONDENT

Waigani

Sheehan J
21 August 1992
30 August 1992

ELECTION PETITION - motion to strike out petition - failure to comply with s 208 of Organic Law on National Elections - failure to supply facts on which petition grounded.

Cases Cited:

The following cases were cited in this judgement.

Thomson v Pokasui (1988) PNGLR 210.

Allan Ebu v Roy Aua Evara (1983) PNGLR 201 at 202.

Biri v Ninkama (1982) PNGLR 324.

Holloway v Ivarato (1988) PNGLR 99.

Bourne v Voeto (1977) PNGLR 298.

Palme v Mel in unreported judgment No. N808.

Counsel:

Mr S. Kemaken for Petitioner

Mr J. Sleight for First Respondent

Mr R. Pato for the Second Respondent

DECISION

SHEEHAN J: The petition before the Court disputes the validity of the Election for the Abau Open seat in the Abau electorate. The first respondent, the successful candidate in the election, has filed a motion to strike out the pen on the basis that the pete petition does not comply with the provisions of s 208 of the Organic Law on National Elections, in that it fails to specify “the facts relied on to invalidate the election”. The Electoral Commissioner, the second respondent supports the motion.

In compliance with sections 211 and 222 of the Act, by consent all parties were represented by counsel.

In hearing petitions under Part XVIII of the Organic Law on National Elections, the National Court has the powers under s 212 and by section 217 is not bound by particular procedure but enjoined to be guided by the substantial merits and good conscience in each case. In particular, procedure in a petition is not fixed according to the National Court Rules, nor do those rules provide parties with procedure for invoking the jurisdiction of the Court of Disputed Returns whether for discovery better particulars or the like. See Thomson v Pokasui (1988) PNGLR 210.

But not withstanding that decision, the fact that the National Court Rules do not apply does not mean that when sitting as a Court of Disputed Returns the Court is inaccessible. An appropriate application touching on the petition, duly served on all parties, may with leave of the Court be considered. The discretion does however always remain with the Court to hear or decline to hear such applications. See Allan Ebu v Roy Aua Evara (1983) PNGLR 201 at 202 which acknowledges that in appropriate circumstances a stage by stage approach to a petition may be adopted.

Mr Sleight, counsel for the first respondent/applicant relied on this in bringing this motion.

There was no objection to the propriety of this motion, and because it is an application aimed, not just at clarifying issues, with the distinct possibility of doing at least that, but also even disposing of the petition, the Court accepted that it was therefore appropriate to hear and deal with it.

Mr Sleight made a detailed submission on the law appropriate to the proper presentation of electoral petitions, and the consequences of failing to comply with the procedure prescribed by the Organic Law on National Elections. I am most grateful to him for his research and accept and adopt the submissions as accurate summary of the law.

The application correctly asserts that all petitions must comply with s 208 of the Organic Law on National Elections which governs the essential requirements of a petition. That section states:

208. &#REQUI OF PETITPETITION

A petition shall -

a) ـ s60; set out the facts relied on to invalidate the election or re and

b) ҈& s60;ifyecify cify cify the rthe relief to which the petitioner claims to be entitled; and

c) &##160;;ټ be signed by a candidate at the election in dispute or by a person who was qualifialified toed to vote vote at the election; and

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

e) ټ ile fin d e Reg stry of thef the National Court at Port Moresby within 40 da40 days after the declaration of the result of the eon inrdanch Sec176(1)(a).

And s 210 goes on to say proceedings shall hall not bnot be heae heard onrd on a petition unless the requirements of sections 208 and 209 (which deals with security for costs) are complied with.

There can be no doubt as to the meaning and implications of s 208 because the Supreme Court in Biri v Ninkama (1982) PNGLR 342 Supreme Court in answering the question:

“To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s. 208 of that law?”

Determined that:

“An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to section 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s 208 of that law.”

Section 208 (a) stipulates that particulars of facts must be given. That is, a petition can not just allege grounds in general terms, but must assert the base facts on which the grounds are founded.

Again, just what “facts” are required to be supplied has been determined by the Supreme Court in Holloway v Ivarato (1988) PNGLR 99 where the head note states:

“The “facts” which must be set out under s 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved”.

In that decision Kapi, DCJ enlarges on this at page 101 where he says:

“the grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitutes the grounds upon which election or return may be declared invalid. Setting out the grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the grounds on which a petitioner relies. The facts which must be set out in s 208(a) of the Organic Law are material or relevant facts which will constitute the ground or grounds upon which an election or return may be invalidated”.

“In the setting out the facts there must be sufficient so as to indicate or constitute the ground which an election maybe invalidated. What are sufficient facts depends on the facts allege and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved”.

It is also contended by counsel that when electoral offences such as undue influence or bribery are alleged (they are also criminal pursuant ss 102 and 103 of the Criminal Code) then in such case the facts upon which such allegations are to be founded should be stated with particular clarity.

That is so but it is not only the criminal nature of the allegation against a successful candidate that requires precise details as to the charge. In electoral terms, it is because under the Organic Law on National Elections, one such an offence on its own, is sufficient to invalidate an election, even though in terms of s 215 of the Act the actual effect of the criminal act might not have a significant affect on voting numbers.

In Bourne v Voeto (1977) PNGLR 298. Frost, CJ said at p 300:

“the Organic Law thus give full recognisance to the Common Law principle that the Parliamentary elections must be free. The people must be free to exercise their vote honestly, and be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate requires the election to be declare void.”

Again in Palme v Mel in unreported judgment No. N808 Woods, J said:

“..... It was submitted that certain allegations were too vague and therefore cannot be held to set out the facts relied upon under s 208. In this instance, certain allegations do not specify the person alleged to have been bribed and it is submitted that without any identification of who was been bribed there were insufficient facts upon which a challenge can be relied.

Bribery is a criminal offence as well as a statutory offence and it is therefore a serious allegations and as such facts must be alleged in sufficient particularity to allow parties to fully answer the charge. A person is guilty of bribery if he gives any money, or procures any office to or for any voters in order to induce any voter to vote or to refrain from voting. Therefore any allegations of bribery must be specific enough to enable the defendant or respondent to know who was offered the bribed or inducement. Therefore such allegations must specific the persons bribed”.

The learned Judge then went on to strike out various grounds alleged in the petition before him, that failed to meet the required criteria.

In the petition before this Court, the grounds of the petition are as follows:

GROUND 1. That the first respondent was both directly and indirectly involved in the following illegal practices:-

(a) ټ bribingibing the voters to cast their votes in his favour inAbau seat e Abau ElectElectorateorate;

;

(b) &ـ unduly duly influenfluencing voters to cast their votes in his favour in the Apen sn the Abau Electolectorate.rate.

GROUND 2.

GROUND 3. & Persons wons were guilty of illegal practices in circumstance under which the result of the election was likely to be affected and which makes it just and equitable that the rs of lecti declareclared void and your Petitioner repeats tats the alhe allegations contained in paragraphs 1(a) and 1(b).

GROUND 4. Actions o thetolec Coal Commission, its officials or representatives were not conducted in accordance with or in the alternate were ultra vires the ELECTORAL (AMENDMENT) REGULATIONS 1987 (the “Regulations”) and the ORGANIC LAW ON NATIONAL ELECTIONS (the “Law”).

GROUND 5. Errors or omissions of officers of the second respondent conducting the election affected the results of the Election.

GROUND 6. & e,rsrorsioorsionsfficsfficers of the second respondspondent cent conduconducting ting the election affected the results of the Election as they relate to vcast ant ttion 141 of the Law.

GROUND 7UND 7.&#16. &##160;That>That the secondecond respondent failed to correctly identify authentic votes cast in all the 74 ballot boxes, many of which were not the same as those originally placed in the ballots by ly identified votd voters, ers, thus depriving many eligible voters of their choice of candidate when casting their vote.

In Ground one(1) it is alleged that the first respondent is guilty of bribery and undue influence yet there are no facts detailing the names of persons bribed, the date, place or manner of bribery. Similarly there are no facts as to who was unduly influenced the time and place of any such offences, nor the manner in which they were effected. Counsel for the first respondent pointed out that this ground is similar in form to that under scrutiny and subsequently struck out by the Court in Siaguru v Unagi.

In Ground 2 there are again no facts detailing just what illegal practices are meant or how it was that they were carried out with the authority or knowledge of the first respondent. If persons were guilty of illegal practices likely to affect the result of the elections then once there are no facts stipulates in the petition setting out what those practices were, or in what way there likely to affect the election results.

Similarly Grounds 4, 5, and 6 supply no details whatsoever of the second respondent failing in its duty to conduct the election in a proper manner. Once again and as was submitted the “grounds” are similar in form to clauses struck out in Siaguru v Unagi referred to above.

Ground 7 again shows no positive allegation and is so vague as to be meaningless.

Mr Kamekan for the petitioner conceded that the petition grounds as filed does not disclose specific facts. He contended however, that the facts were supplied in the affidavit of the petitioner filed in support of the petition.

But that affidavit only states:

“The grounds comprising grounds 1 to 7 as detailed in my petition, are true to the best of my knowledge, information and belief, based upon my enquiring with my scrutineers, supporters, various electoral officers, together with enquiry with other unsuccessful candidates in the Abau Open seat in the Abau Electorate. .... That the evidence supporting grounds 1 and 2 of my petition will be presented together with witnesses at any subsequent Court hearing”.

Apart from that, the affidavit contains no details other than to annexe examples of rules and guide-lines to candidates and electoral officers.

Nonetheless, it was Mr Kamekan’s submission that as the petition allegations were indeed serious, they should be heard. He said that the question of whether the member had been duly elected could only be determined after trial of the petition.

He contended that because s 217 of the Organic Law on National Elections stipulated no fixed procedures for the conduct of petitions, this gave the Court ample authority determine its own rules. Accordingly the petition as presented should be heard.

Once again this issue has been argued and a clear determination made by the Supreme Court. In Biri v Ninkama the following passage sets out just how s 217 stands in relation to ss 208, 209 and s 210.

“the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s 210.

Secion 217 of the Organic Law on National Elections is as follows:

217. REATICE O BERVBSERVED

D

“The National Court shall be guided by the substantial merits and good conscience of each withogard gal forms or technicalities or whether the evidence before it is in accn accordanordance wice with the law or evidence or not.

This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v Antony Tem (1981 PNGLR 178)...and we are in agreement with what was said there, namely (at p. 180):”

“This provision becomes relevant only when it has been determined that there is a petition instituted pursuant, to ss 184 and 185 equivalent to ss 208 and 209 of the Organic Law ... This provision becomes applicable when the court is determining the merits of the case and all matter connected with the determination of merit”.

“... It is quite clear to us that s 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only: ... (It was) submitted on the strength of s 217 of the Organic Law that it is sufficient that s 208 is substantially complied with. If the legislature intended that substantial compliance was sufficient it would have said so in the provisions. Substantial compliance is intended for other matters in the Organic Law”.

It can be added that this statement also puts in perspective counsel’s claims that a petition should be heard as a constitutional right on general principles of national justice however presented. The right to be heard on a petition is clearly provided for, but in protection of the franchise and the constitutional rights of all, citizens and candidates alike, the Organic Law determines that petitions clearly state the grounds of their complaints.

The petition does fail to meet the requirements of s 208(a) of the Act. It therefore cannot proceed as it stands (s 210). Nor can it be amended now that the time allowed for the filing of a petition has passed.

Section 208(e) as amended by Organic Law on National Elections (Amendment no 1) Law of 1991, (and which came into force on 12 March 1992) states:

208. &##160; A petition shall:-

(e) 𧇜8e filed in the Rehe Registry of the National Court at Port Moresby within 40 days afte declaration of the result of the election in accordance wice with s 176(1)(a).”

The issue of amendment to petitions was decided in a specific question referred to the Supreme Court in Biri v Ninkama and answered at p. 350 as follows:

“upon hearing of an electoral petition under s 206 of the Organic Law on National Election the National Courts:-

(a) ;&#16......

(b)p>(b) ҈& shall nall not allt allow and does not have the power to allow an amendmenthe pen afte period of 2 months now 40 days after the declaration of the rehe result sult of thof the election in accordance with s 176(1)(a) of the Organic Law on National Elections.” (my emphasis).

Thus if a petition does not set out the details relied on to invalidate an election within the time permitted for filing of the petition then it must fail.

That is the case here. The petition is therefore struck out.

Lawyer for the Petitioner - Kemaken & Associates

Lawyer for the First Respondent - Blake Dawson & Waldron

Lawyer for the Second Respondent - Pato & Associates