Kela v Lafanama [1997] PGNC 186; [1997] PNGLR 151 (14 October 1997)

[1997] PNGLR 151

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

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

MALCOLM SMITH KELA

V

PETI LAFANAMA; AND
THE ELECTORAL COMMISSION

WAIGANI: INJIA J
13, 14 October 1997

Facts

The petitioner a candidate in the National Elections for the Eastern Highlands Provincial Electorate disputed the elections of Mr Peti Lafanama as the Provincial Member for Eastern Highlands. The petition was attested to by two witnesses who supported the petitioner. The two witnesses, however, did not sign the petition and their address was not sufficiently disclosed. The respondents applied to dismiss the petition for non-compliance with s 208(d) of the Organic Law on National and Local-Level Government Elections.

Held

1. Failure to comply with the requirements of s 208 of the Organic Law on National and Local-Level Government Elections is fatal to the petitioner’s case.
   
2. The requirements of s 208(d) on address must be complied with. The address must be provided in full so as to easily identify and locate the witnesses.
   
3. An error or defect in the petition cannot be rectified from the bar table.
   

Cases cited

Agonia v Karo [1992] PNGLR 463

Badui v Philemon [1992] PNGLR 451

Biri v Ninkama [1982] PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Karo v Kidu [1997] PNGLR 28

Papol v Temu [1981] PNGLR 178

Counsel

V Styllinou, for the petitioner.
N Tenige, for the 1st respondent.
G Shepherd, for the 2nd respondent.

14 October 1997

INJIA J. The respondents apply to strike 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 OLNLGE). The ground in support of the application, inter alia, is that the two witnesses attesting the Petition pursuant to s 208(d) of the OLNLGE 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 s 208(d) of the OLNLGE are as follows:

"ATTESTED BY:

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

Name: Simon Parak

Address: C/- P O Box 996

Occupation: Administration Clerk

Name: Raphael Mae

Address: C/- P O Box 662

Occupation: Mechanic"

Section 208(d) of the OLNLGE 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 integral part or form of attestation and these two witnesses simply have not signed the petition. They rely on the principles enunciated by the Supreme Court in Biri v Ninkama [1982] PNGLR 342 and the decisions of the National Court in Badui v Philemon [1992] PNGLR 451 and Papol v Temu [1981] PNGLR 178 which were approved by the Supreme Court in Biri v Ninkama, (supra). All of these cases say that the requirements of s 208(d) are mandatory and they must be strictly complied with. Failure to do so can result in the Petition being dismissed before an evidentiary hearing of the substantive petition, under s 210 of the OLNLGE. Counsel for the Petitioner submits that the handwritten names of the two witnesses appearing on the petition in a form of their respective signatures and therefore, s 208(d) has been compiled with.

Another argument going to s 208(d) 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 Ninkama and an extension of the principles in that case in Agonia v Karo [1992] PNGLR 463. Counsel for the Petitioner admits that the names of the Post Office where Box 996 and 662 are situated were not provided due to certain typographical errors. She submits that in the circumstances of the present case, the post office intended is the Post Office at Goroka and asks the Court to draw this inference. She submits that those relevant circumstances include the fact that this Petition involves the dispute to the election of the first respondent as the member for the Eastern Highlands Provincial electorate. The Petition was filed in the National Court Registry at Goroka, which is the Provincial headquarters for the Eastern Highlands Province. There is only one Post Office in Goroka. Goroka is a small town. The two witnesses are well known persons who could easily be identified and located.

The law in relation to the requirement of s 208 of the OLNLGE 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 of s 208 are mandatory and they must be strictly and fully compiled with. Failure to do so can result in the petition being struck out or dismissed pursuant to s 210 of the OLNLGE.

The purpose of the address requirement in s 208(d) of the OLNLGE was correctly stated by Sheehan, J in Agonia v Karo (supra), at p. 465 as 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. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witness’ personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply, his village".

Recently in the case of Albert Karo v Lady Kidu [1997] PNGLR 28, the issue of "residential address" was raised. In that case, I said at pp 33 - 368:

"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 of s 208(d). I would also agree with His Honour that the requirement to specify "residential address" on a Petition may depend on the "personal circumstances" of the witness. In my view, s 208(d) should be looked at as a whole. 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 necessary for the witness to give his residential address. For example, in the present case, Mr Mahuru’s address is:

Allen Mahuru

Administrative Officer

Motu-Koita Assembly

P O Box 81

KONEDOBU

National Capital District

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

In the present case, I am of the view that the address given in the Petition sufficiently 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 the petition in this case, it does not bear the signature of the two witnesses. I am pressed from the bar table by counsel for the Petitioner to accept the printed names as a form of their signature. However, I would have required evidence from the two witnesses themselves to persuade me that they are their forms of signatures. In the absence of any such evidence, I am left with the conclusion that their printed names do not constitute their signatures. Therefore, this Petition fails to comply with the "attestation" requirement in s 208(d) and it should be dismissed under s 210.

In the alternative, the Petition should be dismissed for failing to comply with the address requirement in s 208(d). The name of the post office where those box numbers are situated is not provided. No residential address is provided. The work place addresses where the two witnesses work as a Mechanic and Administration Clerk respectively are not provided. In my view, the addresses provided in the petition on their own are totally inadequate to identify and locate the witnesses. Further, the combined effect of the name, occupation and postal address stated in the petition takes us no further. An address of the kind given in this petition serves no useful purpose to this Court and the parties to the Petition. The "address" requirement in s 208(d) must be compiled with on the face of the Petition. An error or defect on the face of the Petition which amounts to a failure to comply with s 208 cannot be rectified from assertions by counsels or parties from the bar table. I cannot properly infer that the Post Office intended was Goroka and no others.

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

Lawyer for the petitioner: Warner Shand Lawyers.
Lawyer for the 1st respondent: Nosohuro Tenige.
Lawyer for the 2nd respondent: Maladinas Lawyers.