In the Matter of The Organic Law on National and Local-Level Government Elections; Kela v Lafanama [1997] PGNC 130; N1633 (14 October 1997)

Unreported National Court Decisions

N1633

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS NO 3 OF 1997
AND
IN THE MATTER OF A DISPUTED RETURN IN A GENERAL ELECTION FOR THE EASTERN HIGHLANDS PROVINCIAL ELECTORATE
BETWEEN
MALCOLM SMITH KELA - PETITIONER
AND
PETI LAFANAMA - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
13-14 October 1997

ELECTIONS - Parliament - Petition disputing election - Application to strike out - Failure to comply with “attestation” and “address” requirement of s. 208(d) of Organic Law on Nat and Local Level Govl Government Elections - Failure to sign petition by attesting witnesses - Failure to provide adequate addresses of witnesses - Petitioner’s obligation to strictly cowith requirements of s. 208. 208(d) on face of Petition - Whether material defects on face of petition may be remedied from assertions from the bar table by counsels or parties - Petition struck out - Organic law on National and Local-level Government Elections No. 3 of 1997, s. 208(d).

Cases Cited

Papol v Temu [1981] PNGLR 178

Biri v Ninkama [1982] PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Agonia v Karo [1992] PNGLR 463

Badui v Philemon [1992] PNGLR 451

Karo v Kidu N1626 [1997]

Counsel

Ms V Styllinou for the Petitioner

Mr N Tenige for the 1st Respondent

Mr G Shepherd for the 2nd Respondent

14 October 1997

INJIA J: The rdents apply to striketrike out or dismiss the Petition filed in the National Court Registry at Goroka on 8 August, 1997 pursuant to s. 206 of the Organic Law on National and Local-level Government Elections No. 3 of 1997 (hereinafter abbreviated OLNE). Thund in support of the aphe application, inter alia, is that the two witnesses attesting the Petition pursuant to OLNE s. 208(d) did not sign on the Petition and did not provide their full addresses.

The Petition disputes the election of the First Respondent as the member for the Eastern Highlands Provincial Electorate in the National Parliament. On the last two pages of the Petition, the particulars provided pursuant to OLNE s. 208 (d) are as follows:

“ATTESTED BY:

We the under signed attest to the Petition herein made by Malcolm Smith Kela, a businessman of PO Box 342, Goroka, EHP.

Name: Simon Parak

Address: C/- PO Box 996

Occupation: Administration Clerk

Name: Raphael Mae

Address: C/- PO Box 662

Occupation: Mechanic”

OLNE, s. 208 (d) provides that “A Petition shall...be attested by the witnesses whose occupations and addresses are stated”.

In the Petition, the names, addresses and occupation of the two witnesses are in handwritten print. Counsels for the respondents submit that a signature is an intergral part or form of attestation and these two witnesses simply have not signed the petition. rely on the principlesciatsciated by the Supreme Court in Biri v Ninkama [1982] PNGLR NGLR 342 and decisions of the National Court in Badui v Philemon [1992] PN51 and Papol v Temu [1981] PNGLR 178 which was approved by d by the Supreme Court in Biri v Ninkama, supra. All of these cases hat thet the requirements of s. 208 (d) is mandatory and they must be strictly complied with. Fe to do so can result e Pt e Petition being dismissed before a evidentiary hearing of the substantive petition, under nder OLNE, s. 210. Counsel for the Poner ts tits that the handwritten names of the two witnessenesses appearing on the petition is a form of their respective signatures herefore, s. 208 (d) has been compiled with.

Another argument going to s. 208 (d) rad) raised by the respondents is that the address given in the Petition is not a complete address which would enable the two witnesses to be easily located and identified. They rely on Biri v Ninkada and an extension of the principles in that case in Agonia v Karo [1992] PNGLR 463. Counsel fe Petitioner admi admits that the name of the Post Office where Box 996 and 662 are situated were not provided due to certain typhical errors. She submits thathe circumsrcumstances of the present case, the post ofst office intended is the Post Office at Goroka and asks the Court to draw this inference. She submits those relevantevant circumstances include the fact that this Petition involves the dispute to the election of the First Respondent as member for the Eastern Highlands Provincial electorate, thatPetition was filed in the Nthe National Court Registry at Goroka which is the Provincial headquarters for the Eastern Highlands Province, that there is only one Post Office in Goroka, that Goroka is a small town, and the two witnesses are well known persons who could easily be identified and located.

The law in relation to the requirement of OLNE s. 208 including s. 208 (d) is settled by the Supreme Court in cases like Biri v Ninkama, supra, and Holloway v Ivarato [1988] PNGLR 99. The requirements oE s. 208. 208 are mandatory and they must be strictly and fully compiled with. Failure to do soresult in t in the petitiong struck out or dismissed pursuant to OLNE, s. 210.

The purpose of the address requirequirement in OLNE s. 208 (d) was correctated by Sheehan, J in Agonia v Karo supra, at p. 465 as fols follows:

“The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordi I believe that thet the address requirement of the subsection is that an attesting witness should state his normal residential ss. The adequacy of that address, however, might well be dertmined by a witnessesRs’ personal circumstances, but it should be the best succinct description available. In a large cit may requirequire a street address or even Section, Lot number and Suburb. In the case of a vil, simp simply his village.”

Recently in the case of Albert Karo v Lady Kidu N1ated 9 October 1997, the ishe issue of “residential address” was raised. In that case, I at p.8:

“In my view, OLNE s. 208(d) simply requires an “address”. Section 208 (d) does not require a residential address.&#I agree with Sheehan, J’s statement of the purpose ofse of s. 208 (d). I would also agree withHons Honour that the requir to specify “residential address” on a Petitionition may depend on the “personal circumstances” of the witnes60; In my view, s. 208 (d) should be looked at as a whole.&ole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not nary for the witness to give his residential address. 160; For ee, in the presenresent case, Mr Mahuru’s address is:

Allen Mahuru

Administrative Officer

Motu-Koita Assembly

PO Box 81

KONEDOBU

National Capitalrict

If one were looe looking for Mr Allen Mahuru, then it would not be difficult to locate him. One would simply call ithet the office of the Motu-Koita Assembly at Konedobu during working hours and ask for its Administrative Officer, Mr Allen Mah/p>

In the present case, I am of the view that the address given in the Petition sufficifficiently complies with OLNE s. 208 (d).”

In relation to the objection relating to the signatures of the two attesting witnesses, the principle is that the petition must be signed by the witnesses. On the face of ttition in n in this case, it does not bear the signature of the two witnesses. I am pressed fro bar tabletable by counsel for the Petitioner to accept the printed names as a form of theinature. However, I wo I would have required evidence from the two witnesses themselves to persuade me that they are their forms of signatures. In the absence of anh evid evidence, I am left with the conclusion that their printed names do not constitute their signatures. Therefore, this Pet fails ails to comply with the “attestation” requirement in s. 208 (d) and it should be dismissed under OLNE s. 210.

In the alternative, the Petition should be dismissed for failing to comply with the address requirement in s. 208 (d). ame of the post office whee where those box numbers are situated is not provided. No residentiaress is proviprovided. The worke addresses where here the two witnesses work as a Mechanic and Administration Clerk respecy are not provided. In my view, the sses proviprovided in the petition on their own aown are totally inadequate to identify and locate the witnesses. Further, the ned effect ofct of the name, occupation and postal address stated in the petition takes us no further. An address of the kind ginen in this petition serves no useful purpose to this Court and the parties to the Petition. T8220;address” requirequirement in OLNE s. 208 (d) must be compiled with on the face of the Petition. An error or defn the of thof the Petition which amounts to a failure to comply with OLNE, s. 208 cannot beot be rectified from assertions by counselparties from the bar table. I c properly infer that that the Post Office intended wasd was Goroka and no others.

For these reasons, I dismiss the whole Petition. Having come to this vit isit is not necessary to consider the respondent’s objections based on OLNE, s. 208 (a). Costs of these proceedings is awarded to the Respondents, as agreed, if not to be taxed.; The said costs shall be p be paid out of the K2,500.00 deposit for security for costs paid into Court by the Petitioner.

Lawor the Petitioner: Warner Sner Shand Lawyers

Lawyer for the 1st Respondent: Nosohuro Tenige

Lawyer for the 2nd Respondent: Maladinas Lawyers