In the Matter of The Disputed Return For The Moresby North-West Electorate; Ikupuv v Morauta [1998] PGNC 2; N1670 (13 January 1998)

Unreported National Court Decisions

N1670

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 19 OF 1997
IN THE MATTER OF THE DISPUTED RETURN FOR THE MORESBY NORTH-WEST ELECTORATE
MIRIA NAIME IKUPU
PETITIONER
V
SIR MEKERE MORAUTA
FIRST RESPONDENT
THE ELECTORAL COMMISSION
SECOND RESPONDENT

Waigani

Woods J
4 December 1997
13 January 1998

PARLIAMENT – elections – disputed election petition – residential qualification Constitution Section 103 (2) – 5 years at any time.

Cases Cited

Re Moresby North East Parliamentary Election No 2 [1977] PNGLR 448

Supreme Court Reference Masive v Okuk [1984] PNGLR 390

Counsel

J Kari for the Petitioner

J Bray for the First Respondent

J Nonggorr for the Second Respondent

13 January 1997

WOODS J: The Petitioner is challenging the election of the First Respondent as the Member for the Moresby North-West electorate in the National Capital District in the National Elections held in 1997. The only matter remaining in the Petition following certain rulings made is the challenge to his residential qualification.

The residential qualification for membership of the National Parliament is set out in the Constitution Section 103 (2) which states: A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of 5 years at any time,...

In his Petition the Petitioner alleges:

1. ټ That at all materiaterial times up to and after the issue of the Writ for the Moresby North-West Open Electorate the First Respondent was residing at Section 21 allotment 25 Konenamo Crescent, Touaguba Hill, Port Moresby, and that this residence was well within the boundaries for the Moresby South Open Electorate.

2. ـ T60; That the First respondent in his Nomination Form disclosed that his place of residence is Section 148 allotment 2 Tokarara, whereas in he hver lthere

The onus of proof in an E an Election Petition is on the Petitionerioner and and the Cthe Court should require clear and cogent proof so as to induce on a balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications, see Re Moresby North-East Parliamentary Election No 2 [1977] PNGLR 448 per Frost CJ at 450.

With respect to the first allegation about the residence at Touaguba Hill in the Moresby South Electorate the First Respondent admits that at the time of nomination he was not resident within the Moresby North-West electorate, and it is noted that in his affidavit evidence in the Court he admits he currently resides in the Moresby South Electorate.

The only evidence that the Petitioner has brought is about the respondent’s current residence in the Moresby South Electorate, which is not disputed, and evidence from a neighbour to an allotment in Tokarara in about 1974.

The First Respondent has asserted in evidence that he was resident for a number of years between 1966 and 1973 in or adjacent to the University Campus at Waigani and at Tokarara. There is evidence from the Electoral Commissioner that the residences referred to by the First respondent during those years is within the boundaries of the Moresby North-West Electorate.

It is submitted for the Respondent that the sum total of his residing at the University Campus and adjacent thereto together with the period at Tokarara is well over 5 years which therefore satisfies the requirement in the Constitution Section 103.

The Supreme Court Reference No 3 of 1984 Masive v Okuk [1984] PNGLR 390 clearly laid down that the 5 years residence required by Section 103 need not be continuous, it can be discontinuous or intermittent. It can be an aggregate or different periods of intermittent residence.

There has been no challenge to the evidence by the First Respondent of his residence on the University Campus from the beginning of 1966 to the beginning of 1969, then his absence for 1 year then his resumption of residence from 1970 to 1972 in or near the campus and then in 1973 to 1974 at Tokarara. The total of those periods is well over 5 years. It is suggested by the Petitioner that this residence as a student was not a real residence for the purpose of the electoral qualification requiring a real involvement or relationship with the community. However it is noted that for the latter parts of these periods he was not just resident as a student but as a married graduate. I am satisfied that this type of residence was a real permanent residence and not a constructive or a sham residence.

And it is noted that when the Respondent referred to a Tokarara residence on the nomination form this was clearly referring back and giving notice to the Electoral Commission that he was relying on the residences between 1966 and 1974 at the University and Tokarara addresses for his qualification to stand.

There is sufficient evidence that the First Respondent does satisfy the criteria in Constitution section 103 for candidacy for the open electorate of residence for a period of five years at any time. There has been no evidence produced nor argument submitted to counter that evidence or challenge the effect of those more than 5 years residence.

Any submission that the Respondent’s residential qualifications could not apply because at the material times when he resided there the Moresby North-West Electorate did not exist overlooks the principle that the word ‘electorate’ means the area of an electorate. So long as the current electorate includes the areas where the First Respondent relies on for his residential qualifications then he has satisfied the requirement. The word electorate means ‘the area of an electorate’; See Frost CJ in In re Moresby North-East Parliamentary Election (No 2) [1977] PNGLR 448. Any other interpretation which requires the residence to be in the particular named electorate as against the area of an electorate would if taken to its logical extension mean that whenever there were electoral boundary or name changes then there may be nobody residentially qualified on the basis that the electorate had not existed as such before the boundary or name change. The law has been properly interpreted to mean that residence in an electorate means residence in the area which currently comprises the electorate.

I find that the Petitioner has failed to provide clear and cogent proof that the First Respondent is not qualified. The evidence of the First respondent is clear that he has satisfied the qualifications in Constitution Section 103.

I dismiss the Petition with Costs.