Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PGSC 10; [1982] PNGLR 342 (5 October 1982)

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[1982] PNGLR 342 - SCR No 4 of 1982; Delba Biri v Re Bill Ninkama, Electoral Commission, Ben Bande, and Bonoan Palumea

PARLIAMENT - Elections - Disputed election petition - Form of petition - Compliance with requirements as to form etc. mandatory - Organic Law on National Elections, ss 208[liii]¹, 209, 210[liv]², 217.

N1>PARLIAMENT - Elections - Disputed election petition - Practice and procedure on - Amendment of - Statutory time limit for - No amendment outside time limit - Organic Law on National Elections, ss. 2(2), 208(e)[lv]³ Constitution, s. 126(7)(d), 155(4), 158(2), Sch. 1.1, Sch. 1.16.

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.

On the hearing of an election petition under s. 206 of the Organic Law on National Elections, the National Court:

N2>(a) may allow an amendment of a petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections provided that the application for amendment is made within the period of two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections.

N2>(b) shall not allow and does not have power to allow an amendment of a petition after the period of two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections.

Norwich v. Election Petition, Re; Birbeck v. Bullard (1886) 2 T.L.R. 273; L.T. Jo. 253.

Pomio Open Elections, Re (Unreported National Court judgment dated 18th October, 1977).

This was a reference to the Supreme Court, pursuant to s. 18(2) of the Constitution, by the National Court of two questions of law set out in the judgment hereunder, which arose on the hearing of a disputed election petition.

KIDU CJ KAPI DCJ ANDREW J: This is a reference to the Supreme Court pursuant to s. 18(2) of the Constitution by the National Court upon the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections (also hereinafter referred to as the Organic Law).

To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s. 208 of that law.

To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s. 206 of the Organic Law on National Elections permit or allow an amendment of an electoral petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections:

(a) within two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections; and

(b) after the period of two months following the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections.

Before turning to a consideration of the questions we think it should be said that where the National Court hears an election petition disputing the validity of an election or return under s. 206 of the Organic Law on National Elections, it is sitting as the National Court and whilst it is commonly referred to as a “Court of Disputed Returns”, this title may be misleading for the petition is addressed to the National Court and not otherwise.

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court ... within two months after the declaration of the result of the election in accordance with s. 176(1)(a).

Proceedings shall not be had on a petition unless the requirements of s. 208 and s. 209 are complied with.

In a petition dated 16th July, 1982, and filed in the Registry of the National Court pursuant to s. 208 of the Organic Law an National Elections the petitioner has disputed the validity of the election of the first-named respondent as member for the electorate of Gumine Open. That result had been declared on 28th June, 1982.

There is no dispute that the petition does not contain the occupations of the attesting witnesses as required by s. 208(d) of the Organic Law.

In Mapun Papol v. Antony Temo and The Electoral Commission [1981] P.N.G.L.R. 178, the National Court had cause to consider whether compliance with an equivalent section to s. 208 (i.e. s. 184 of the Provincial Government (Electoral Provisions) Regulations 1977) was mandatory or not. In that case the petition did not contain the signatures of attesting witnesses. The court there found that the equivalent to s. 210 meant that unless the requirements of the equivalent of s. 208 and s. 209 were complied with, there could be no proceedings in the National Court as a matter of law. 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.

It may be said that the requirement that a witness’s occupation must be stated is not important or that it is not suitable to the circumstances of the country. But the method of disputing an election given by s. 206 and s. 208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra)).

Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

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 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.

This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v. Antony Temo (supra) and we are in agreement with what was said there, namely (at p. 180):

“However, in my view, this provision is not applicable in considering the preliminary point raised here. This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss. 184 and 185 equivalent to ss. 208 and 209 of the Organic Law of the Regulation (as applied). This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit. To read s. 193 of the Regulation [identical to s. 217 of the Organic Law] as applicable to this preliminary point is to bring it in conflict with the intentions of s. 186 [s. 210 of the Organic Law]. These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statutes that an Act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another; see Maxwell on the Interpretation of Statutes (12th ed. 1969), Ch. 9 ‘Construction to Avoid Collision with Other Provisions’. Sections 186 [s. 210 Organic Law] and 193 [s. 217 Organic Law] deal with different subject matters.”

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: See Ithaca Election Petition; Webb v. Hanlon [1939] Q.S.R. 90.

Mr. Sam submitted on the strength of s. 217 of the Organic Law that it is sufficient that s. 208 is substantially complied with. If the legislature intended that substantial compliance was sufficient it would have said so in the provisions. Substantial compliance is intended for other matters in the Organic Law. As an illustration, s. 86 sets out the requisites of nomination as candidate. There is a clear intention by the Parliament that substantial compliance with the requisites would be satisfactory. This intention is clearly expressed in s. 88. In our view, the absence of a similar provision. In relation to requisites for a petition shows the contrary intended that every one of the requisites must be complied with strictly.

An electoral 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.

Section 2(2) of the Organic Law provides that notwithstanding any other law, where a time limit is imposed under this law for the taking of an action, then unless the contrary intention appears, that time is mandatory. When this is read in conjunction with s. 208(e) of the Organic Law, it is clear that the limit of two months following the declaration of the result of the election, in which to file the petition, is a rigid limit of time and the petition must contain each and every requirement set out in s. 208(a), (b), (c) and (d).

Again we are in agreement with the judgment in Mapun Papol v. Antony Temo (supra) at p. 180 that these provisions were intended to make a definite cut-off point after which there would or could be no further questions about the results of elections. The electorate is entitled to be in no doubt as to who is its member. The peculiar nature of this jurisdiction and the importance of the public interest of securing an early determination of the matter are relevant considerations against extensions of time and amendments of petitions. See Senanayake v. Navaratne [1954] A.C. 640.

The weight of authority both in our jurisdiction and in other jurisdictions with very similar electoral laws is clearly on the side of disallowing any amendment after the time limit for filing the petition has expired. See In re Manus Provincial Parliamentary Election [1977] P.N.G.L.R. 354, and per Kearney J. (as he then was) in Re Pomio Open Election (Unreported judgment, dated 18th October, 1977), delivered at Rabaul.

There is a long line of authority for the proposition that there can be no amendment to a petition after the expiration of the time limit, commencing with Maude v. Lowley [1874] UKLawRpCP 10; (1874) L.R. 9 C.P. 165. Then see Clark v. Lowley (1883) 48 L.T. 762, where the court indicated that an amendment would not be allowed where there was “a rigid limit” of time for the presentation of the petition. In In re Norwich Election Petition; Birbeck v. Bullard (supra) the court indicated that if an election petition were an ordinary cause, probably an amendment introducing additional grounds might be allowed but the court was obliged to have regard to the limitation within which a petition must be presented. In Crafter v. Webster (1979) 23 S.A.S.R. 61, the Full Court of the Supreme Court of South Australia said at p. 63:

“A rigid limit of time similar to that falling for consideration in the cases to which we have referred is provided in s. 170(1)(e) of the Electoral Act (S.A.). In our view the mere fact that the Court has the same powers, jurisdiction and authority as a Judge of the Supreme Court presiding at the trial of a civil cause does not entitle the Court of Disputed Returns to allow an amendment after the expiry of the time limited for filing the petition. For the sake of completeness we refer to Cameron v. Fysh [1904] HCA 49; (1940) 1 C.L.R. 314, in which Griffith C.J. refused an application to amend a petition under the Electoral Act 1902 (Cth) upon the ground that if he were to allow the amendment he would ‘practically be extending the time for filing the petition’.”

Unlike the Electoral Act 1929-1976 (S.A.), the Organic Law contains no such provision that the National Court hearing disputed returns under s. 206 has the same power, jurisdiction and authority as it would have on the trial of a civil suit, so that the position in our jurisdiction is even stronger, that there can be no amendment by calling in aid such a provision as for example O. 32, r. 13 of the National Court Rules of Court which gives to a judge in an ordinary cause a discretionary power of amendment of any defect or error in any proceedings.

In our view, the National Court Rules can have no application to election petitions. The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court (see Application of Rules provision in The Rules of the National Court).

On appeals or petitions of the National Court in electoral matters, s. 126(7)(d) of the Constitution specifically directs that this shall be provided for by an organic law. The Organic Law on National Elections is a law in accordance with this provision. There is nothing in the Organic Law which adopts the application of the National Court Rules. The Organic Law, in setting out its own provisions in Pt. XVIII, Div. 1 (which are different in character from the rules), is clear that the rules can have no application. The law is to be found in the Organic Law and any regulations made under it.

Section 155(4) of the Constitution and s. 158(2) are sought to be relied upon by the petitioner.

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

As held in Mapun Papol v. Antony Temo (supra), this section was interpreted in the recent case of Avia Aihi v. The State [1981] P.N.G.L.R. 81, and by majority the court ruled that s. 155(4) of the Constitution could not be interpreted in a way which would give the court the power to override the provisions of an Act passed by Parliament. This would be giving a power to the court greater than the unlimited legislative power given to the Parliament by the Constitution. A fortiori, in our view, the court would not have the power to override the provisions of an organic law which is a constitutional law and even more so again to override the provisions of a constitutional law which is in mandatory terms.

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

It was submitted that failure to include an attesting witness’s occupation was a minor matter and that it would be unjust that a petition should fail for this reason and that accordingly there is or should be power to grant an amendment to cure the defect. But in our opinion the requirements of s. 208 reflect the special nature of electoral petitions. Those requirements are, as we have said, strict and mandatory and we think they serve, inter alia, or attempt to limit the frivolous petition and to ensure as far as is possible that the petition is genuine.

It is also our view that s. 158(2) of the Constitution must mean the dispensation of justice according to law. It cannot mean the dispensation of justice in accordance with some notion of what is thought to be fair and reasonable to the exclusion of the stated intention of Parliament. In our opinion, the section means justice according to law and the law here is that as set out in a Constitutional law.

Finally, although it was not raised in argument, we refer to Sch. 1.16 of the Constitution:

(1) Where in a constitutional law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of sub-section 1 is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.

(1) The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.

We have already found that the Organic Law expresses a rigid limit of time and this is clearly a contrary intention to Sch. 1.16 and it therefore makes Sch. 1.16 inapplicable.

There is no dispute that an electoral petition may be amended within the period of two months defined in s. 208(e) of the Organic Law. See Shaw v. Reckitt [1893] UKLawRpKQB 92; [1893] 2 Q.B. 59.

We think the real basis for this is that a petitioner who does not comply with any of the requirements of s. 208 can file a completely new petition complying with all requisites within the two months period.

As a matter of common sense it would be sufficient to amend the original petition to save time and costs.

On the hearing of an Electoral Petition under s. 206 of the Organic Law on National Elections the National Court:

style='font-size:12.0pt;font-family:Verdana'>[liii]Infra p. 343.

[liv]Infra p. 345.

[lv]Infra p. 343.

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Supreme Court of Papua New Guinea

Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PGSC 10; [1982] PNGLR 342 (5 October 1982)

Papua New Guinea Law Reports - 1982