Badui v Philemon [1992] PGNC 56; N1114 (22 September 1992)

N1114

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MICHAEL BADUI
(Petitioner)

AND

BART PHILEMON
1st Respondent

ALFRED POGO
2nd Respondent

ELECTORAL COMMISSION
3rd Respondent

LAE: Hinchliffe J.

21 & 22 September 1992

Parliament - Elections - Disputed election petition - Form of Petition - Compliance with requirements as to form etc. mandatory - Organic Law on National Elections, ss 208, 210, 217.

HELD:-

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

Case Cited:
Delba Biri -v- Bill Gimbogl Ninkama, The Electoral Commission of Papua New Guinea, Ben Bande, Bonoan Polume [1982] PNGLR 342

Application

This was an application to strike out an election petition because it failed to comply with S.208(d) of the Organic Law on National Elections:-

S Norum for the Petitioner
D Sawong for the First Respondent
D Kombagle for the Second and Third Respondents

Cur Ad Vult

Hinchliffe J: The respondents have moved to have the election petition struck out for failure to comply with the requirements for petitions as set out in S.208(d) of the Organic Law on National Elections. S.208(d) provides:

"208. Requisites of petition.

A petition shall -

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

In this petition two people have attested to it but their addresses have not been included. The lawyer for the petitioner has submitted that the words in the attestation clause which read, "we the undersigned do sign and attest to the above petition made at Port Moresby by Michael Badui....", indicate that the address of the two people is Port Moresby and therefore, he submitted, s 208(d) has been complied with. I am unable to agree with his submission. By no stretch of the imagination can I read those said words to mean that the addresses of Messrs. Marc and Kerua are in Port Moresby. It doesn't say that. It says that the petition was made at Port Moresby, it does not refer at all to the addresses of the two said people. That of course creates a serious problem for the petitioner because s 210 of the said Organic Law provides:-

"210 - No proceedings unless requisites complied with.

Proceedings shall not be had on a petition unless the requirements of Sections 208 and 209 are complied with."

The abovementioned sections of the said Organic Law were considered by the Supreme Court in Delba Biri -v- The Electoral Commission of Papua New Guinea, Ben Bande, Bonoan Polume [1982] PNGLR 342. In that case the occupations of the attesting witnesses were missing from the petition so to a certain extent it is very similar to this matter. There is no doubt that the Supreme Court was very clear in what it had to say about the omissions.

At p 345 of the said Report it reads as follows:

"The requisites in s 208 and s 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s 208 and s 209 are complied with."

Later on at p 345 it reads,

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

The lawyer for the petitioner argued that even if the said s 208 has not been fully complied with then the Court may still use its powers under s 217 of the said Organic Law and allow the petition to proceed to a full hearing. The said s 217 provides:-

"217 - Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."

That same argument was raised in the said Delba Biri case and at p 346 of the said Report the Supreme Court said the following:

"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."

Therefore that submission by the lawyer for the petitioner must also fail.

This Court is bound by law to follow the decisions of the Supreme Court and therefore I must follow the decision in the said Delba Biri case. Clearly s 208 of the said Organic Law has not been strictly complied with and it is too late to make any amendments. In accordance with the said s 210, the petition cannot proceed.

I therefore order that this petition be struck-out.

Costs:

I order that the petitioner is to pay the respondents costs. If the costs cannot be agreed then they are to be taxed. I further order that the costs are to be taken out of the deposit monies lodged by the petitioner and after the costs have been settled, any balance of deposit money is to be refunded to the petitioner.

Lawyers for the Petitioner: Joseph Mek Teine
Lawyers for the 1st Respondents: Don Sawong & Associates
Lawyers for the 2nd & 3rd Respondents: Pato Lawyers