Badui v Philemon, Pogo, and Electoral Commission [1992] PGNC 75; [1992] PNGLR 451 (22 September 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 451 - Michael Badui v Bart Philemon, Alfred Pogo, and Electoral Commission 

[1992] PNGLR 451

N1114

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MICHAEL BADUI

V

BART PHILEMON,

ALFRED POGO AND

ELECTORAL COMMISSION

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.

Facts

The respondents applied to have an election petition struck out on the ground that the mandatory requisites of s 208(d) of the Organic Law on National Elections have not been complied with. Section 208(d) provides: "A petition shall (d) be attested by two witnesses whose occupations and addresses are stated...." In the petition, two people have attested to it but their addresses have not been included.

Held

N1>1.       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.

N1>2.       By the terms of s 210 of the Organic Law, the petition cannot proceed to a substantive hearing for failure to comply strictly with the requirements of s 208(d) of the Organic Law.

N1>3.       Section 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. It is a procedural section only.

Cases Cited

Biri v Ninkama [1982] PNGLR 342.

Counsel

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. Section 208(d) provides:

N2>"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:

N2>"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 above mentioned sections of the Organic Law were considered by the Supreme Court in Biri v Ninkama [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 the Court said:

"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 the Court said:

"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."

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

N2>"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 Biri's case and at p 346 of the said report, the Supreme Court said:

"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 Biri's case. Clearly, s 208 of the Organic Law has not been strictly complied with, and it is too late to make any amendments. In accordance with s 210, the petition cannot proceed.

I, therefore, order that this petition be struckout.

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. 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 first respondents: Don Sawong & Associates.

Lawyers for the second and third respondents: Pato Lawyers.