In the Matter of The Organic Law on National and Local-Level Government Elections; Mongi v Vogae [1997] PGNC 140; N1635 (24 October 1997)

Unreported National Court Decisions

N1635

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 49 OF 1997
IN RE: THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN RE: A DISPUTED RETURN IN A GENERAL ELECTION FOR THE WEST NEW BRITAIN PROVINCIAL ELECTORATE IN THE 1997 GENERAL ELECTIONS
BETWEEN
GREG MONGI - PETITIONER
AND
BERNARD VOGAE - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
21 October 1997
24 October 1997

Counsel

J Sirigoi for the Petitioner

G Manda for the First Respondent

J Nonggorr for the Second Respondent

24 October 1997

INJIA J: The respondentseparate mote motions apply to dismiss the election petition filed pursuant to s. 206 of the Organic Law on National and Local-level Government Elections No. 3 of 1997 (hereinafter abbreviated on 8 August 1997. Th0; The appions are basedbased on two grounds namely: (1) that the Petition fails to comply with OLNE s. 208 (a) in that the petition does not set out sufficient facts to support the grounds of bribery and errors or omissions; (2) that the petition fails to comply with s. 208 (b) in that the petition does not set out the correct relief the petitioner is entitled to seek under OLNE, s. 215 (1). I will deal with the latter ground first. If I decide to disthe peti petition on this ground alone, it may become unnecessary to decide the first ground.

The provisions of the OLNE relevant for the purpose of exerare s. 208 (a) &aa) & (b) and s. 210 but for completeneeteness sake I set out Ss. 208, 209 & 210 in full:

“208. Requisites of PetitionA petition shall:

(a) set out the facts relied n to invalidate the election or return; and

(b) &##160;; specifyecify the rthe relief to which the petitioner claims to bitled

)ټ&##160; be signed byed by a ca a ca a candidandidate atte at the election in dispute or by a person who was qualified to vote at the electind

(d) ; be attested b two witnesitnesses whose occupations ions and addresses are stated; and

(e) ـ&#1e file filed in t in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarterhin 4s after the declaration of the result of the election in accordance with Section tion 175(1175(1)(a).

209. Dt as ityuror Cfor Costs

At the time of filing the petition the petitioner shall deposit with the Registrar of the Nal Coue sum2,500.00 as security for costs.

210. No Proceedingsdings unle unle unless Requisites Complied with

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

The iplesting e constconstructiruction anon and application of the above provisions are well settled in this jurisdiction. An election petitist stricstrictly comply with the mandatory requirements of s. 208 and no petition can proceed to a substantive (evidentiary) heaunless each and every requirement in s. 208 is strictly complied with. Failure to como comply w. h s. 208 can result in an election petition being struckout or dismissed at a preliminary stage of the proceedings: see Biri v Ninkama [1982] PNGLR 342; Hollo Ivarato [1988] PNGLR 99, SC Rev. No. 45 of 1994 re: Williailliam Elaip Wii, Unreported Supreme Court judgment dated 26 July 1994. The decision in Re William Wii is an unnumbered decision which means the decision was not published or circulated outside of the judiciary.

The principles in relation to s. 208 (b) specifically were settled by the Supreme Court in Re William Wii. In that case, the Petitioner, Mr Michael Mel, filed a petition disputing the election of Mr Wii as the member for the Aglimp South Whagi open electorate in the Western Highlands Province in the 1992 general elections. Thition contained allegatiegations of bribery committed by Mr Wii. These allegations fell under OLNE, s. 215 (1) which provided that “If the National finds that a candidate has committed or attempted to commicommit bribery or undue influence, his election, if he is a successful cane shall be declared voidid”. The relief set out in thetpetition were inter alia, an order “that the First Respondent was not duly elected” and “that the election for the Aglimp - South Whagi Open electorate is null and void󈮐 After conducting a suba substantive evidentiary hearing, the National Court found the allegations of bribery made out by the Petitioner and declared “the election of the First Respondent for the Aglimp South Whagi Open Electorate to be void”. Upon review of this decision, the Supreme Court unanimously allowed the review and quashed the decision of the National Court and consequentially, dismissed the original petition. The Su Court discussed thed the relevant provisions of the OLNE relating to the pleading of the correct relief to be sought, in particular s. 208 (b), s. 217, s. 215 (1) & (3), s. 212 & s. 2160; The Supreme Court deci decided that the Petitioner is only entitled to seek in the petition the correct relief available to him under OLNE, s. 215 (1). Thrt decided that pursuantsuant to OLNE, s. 215 (1), on an allegation of bribery committed by the Petitioner, the Petitioner was only entitled to seek a declaration, and the National Court could only properly declare, that the election of the successful candidate, the First Respondent, was void. In arriving at this deci ton, the Supreme Court, at p. 12 of their judgment said this of OLNE, s. 208 (b):

“Section 208(b) of the OLNE says that “the petitioner shalcify the relief to which the petitioner claims to be entitlntitled”. We are of the view that doat does not mean that the petitioner can select a relief to his own liking. Certainly in on 212 of thef the OLNE the Court has certain discretionaryrs, one of which is to “declare that a person who waso was returned as elected was not duly elected”. But we are saed then a seca section such such as the said 215 spells out the relief precisely then that is the relief that the petitioner is ̶itled” to in the event that he is successful. He cannot aat a person be n be fobe found to be not duly elected when the section says that it be found that his election be declared void. Where bribery and undue influence is committed and proved the Court can only find thnd that his election be declared void.”

In the present case, there is two types of allegation60; The first type is that there is allegations of bribery bery committed either by the First Respondent, or by his agents, with the knowledge of authority of the First Respondent. These are ut in clauses 5 es 5 (a)-(j) of the petition. For purposes of s (1), if , if these allegations were to be proved at the substantive hearing, the result will be that the election of the FRespo will be declaredlared void: see Karo v Kidu N1626 (9/10/97), at p. 12. The second tynd type is that there is two (2) allegations of errors and omissions by servants or agents of the Second Respondent. These appear in ClauK) &am) & (L). Ife allegatiere to be prov proved at the substantive hearing,ring, then under s. 215 (3), the National Court can “declare that a n ret as elected was not duly elected or declare the ethe election void”.

The relierelief sought in the Petition by the Petitioner in this case is:

“The relief to which the Petitioner claims to be entitled is:

(a) &##160;cladetionation that that the election for the West New Britain Provincial Electorate in the 1997 General Elections is absol void

C”

It is submitted for the respondents that the principal rpal reliefelief soug sought in para (a) above is not available to the petitioner under s. 215 (1) and therefore, he is not entitled to claim it. This suion is advanced in d in relation to Clauses 5 (a), (b) & (h) of the petition which set out instances of bribery committed by the First Respondent. The arguis advanced by couy counsels for the respondents in rein relation to clauses 5 (c), (d), (e), (f), (g), (i) & (j) which set nstances of bribery committed by persons other than the First Respondent but committed with with the knowledge and authority of the First Respondent. It is subd that given the the Courts construction of s. 215 (3) (a), that an election of the successful candidate can be declared void as in s. 215 (1) if the bribery is committed by persons other than a winning candidate with the knowledge or authority of the winning candidate, the petitioner is not entitled to the relief claimed in the petition. They submat the appropriatpriate relief which the petitioner was entitled to claim is a declaration that the election of the First Responis void and not a declaration that the “elections for the West New Britain Provincialncial Electorate in the 1997 general elections is void.” Both els rely on the authoruthority of Re William Wii. Counsel for ttitioner appe appears to accept the premise that the relief pleaded in para (a) above comes squarely within the principles in Re William Wii. He however ss thas Court surt should not follow the principles in Re WiRe William Wii because it was decided “per incurriam” in that upreme Court erroneously interpreted s. 208 (a) & s. 215 (1) (3) & s. 212 & s. ; s. 226. He submits the principles enunciated by various National Courts in Bourne v Veoto [1997] PNGLR 298, Ipe v Napas [1981] PNGLR 128, Momis v Kor N1014 which ut the correct exposition of the law in relation to these very Sections were not cited to t to the Supreme Court by counsels in the Re William Wii case, that the decision was made in ignorance of these National Court decisisons and therefore, it should not be followed. Counsels for the ndents cots contend that the decision of the Supreme Court in Re William Wii is binding on this Court pursuant to Constitution, Sch. 2.9 and it should be followed.

I agree with the respondent’s submissions. Theeme Court’s decisdecision in Re William Wii is clearly determinative of the point in issue before me in this case. Tecisivours the respondentndent’s arguments. Pursuant to Constin Sch. 2ch. 2.9, 2.9, I am bound to apply those principles.; It is not open to this National Court to attempt to rectify any perceived error in a judg judgment which may have been committed bySupreme Court. Only tnly the Su Court cant can correct its own mistakes. Alternatively, only trliamrliament, through legislation, can rectify an erroneous Supreme Court decision. Therefore he grounds of brof bribery pleaded in clauses 5 (a)-(j) of etitioner cannot stand in law.

The remaining clausesauses in the petition are clauses 5 (k) & (l). These clauses plerors missomissions on the pthe part of the Second Respondent’s officials. The relief they haveht in t in para (a) supra, applies to these clauses. The questi whether the rele relief sought is available to t to the petitioner on those grounds. ough this was not addresseressed by the counsels, it is clis clear to me under s. 215 (3) that an election may be declared void based on rrors or omission of the Second Respondent. Therefore, this relualifielifies under s.er s. 215 (3). It is then submitted for the respondent that even then, the pleadings lack sufficient facts and should be struck out for failing to comply with s. 20.&#16 respect of clausclause 5 (k), it is submitted this clause fails to show how many votes wers were in the ballot box which was not counted; that because the number of votes scored by the winning candidate, the First Respondent, and the Petitioner are also not pleaded, it is difficult to see how the omission complained of materially affected the result of the election. They also sublauses 5 (k) (k) and (l) fail plead whether the result was likely to be affected at all as required by s. 208 (a) in conjunctioh s. 215 (3). It is submitted fe petitiotitioner that because the votes in that box wbox were never counted, the exact figures cannot be provided.

I agree with the submissions for the respondents. Figures are materi demonstmonstrating the likelihood of the result being affected on the face of the petition. Alt is necessary to plead lead how the errors or omission on art of election officials are material as such that the rese result of the election was likely to be affected. Both clauses 5 (k) and) meet these requirements.&nts. They should be struck out or dismissed as well.

For all these reasons, the whole of the allegations of bribery set out in clauses 5 (a)-(i) inclusive of the Petition insofar as they relate to the incorrect relief areck out for failing to complcomply with under s. 208 (b). Havingved at this view, I w, I do not think it is necessary to consider the arguments under s. 208 (a) raised by the parties in relation to clauses 5 (a)-(j). The alions of errors and oand omi under clauses 5 (k) and 5(nd 5(l) are struckout or dismissed for failing to comply with s. 208 (a) in conjunction with s. 215 (3).&#The end result is that there is no allegation remaining to g to proceed to trial. Therefore, thle petition iion is dismissed. of these proceedings is awis awarded to the respondents, to be taxed, if not agreed.

Lawyer for the Petitioner: Hena>

r for the First Respondent: Warner Shand

L

Lawyer for the Second Respondent: Nong Nonggorr & Associates