Aihi v Avei [2003] PGSC 11; SC720 (3 July 2003)

SC720

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR 11 OF 2003

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)

Between

PARU AIHI

Applicant

And:

SIR MOI AVEI

First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

WAIGANI : Amet CJ, Los, Sakora, Injia & Sawong JJ

2003. : 17th June, 3rd July
      

Counsel:
I. Sherpherd the Applicant.
G. Sheppard for the First Respondent.
D. Kombagle for the Second Respondent.

AMET CJ, LOS, INJIA & SAWONG JJ: The applicant seeks a review of the National Court’s decision to strike out his election petition filed under s. 206 of the Organic Law on National Government and Local-level Government Elections (hereafter referred to as OLNE), for failing to comply with s 208 (d) of the OLNE.

The challenge is mounted on two grounds, namely:- (1) the Court erred in refusing to uphold the applicant’s objection to the late filling and service of the first respondent’s amended notice of objection after the expiry of the time limit set by the Court; and, (2) the Court erred in law in ruling that the requirement of s. 208 (d) of the OLNE.

It is settled that pursuant to s. 210, a Petition must strictly comply with the mandatory requirements of s. 208, before the petition qualifies for a substantive hearing. The requirements in s. 208 are formal and technical procedural requirements, the determination of which is based on the information endorsed on the face of the petition. As Mr Sheppard submitted, a determination of these matters do not involve any discussion and consideration of the merits of the grounds in the petition. The merits of the grounds in a Petition are determined at the substantial hearing only after the petition survives the formal scrutiny under s. 210. At the substantive hearing, the procedural and evidentiary rules in s. 212 and s. 217 apply, in determining the merits of the grounds in a petition. These principles to me are the clear import of the five-man Supreme Court bench decision in Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342. As counsel for the Second Respondent, Mr Kombagle submitted, there is no reason to water down the principles in Delba Biri until that decision is properly re-visited and overruled by a subsequent Supreme Court of equal or greater composition, in an appropriate case. This Court is not invited to perform that task.

All three counsel refer us to two cases in which the meaning of the word "self-employed" and "villager" were raised in the context of the definition of "occupation" in s. 208 (d). In re Herowa Agiwa [1993] PNGLR 136, the issue before the Supreme Court was whether "self-employed" is an adequate description of a witness’ occupation in a petition. The Supreme Court comprising of Woods, Andrew and Sheehan JJ concluded that it was a very minor point which had nothing to do with the merit of the matter, and therefore, they were unable to find an important point of law to be determined which had merits. The application for review was therefore dismissed. In Charles Miru v. David Basua and Ors, unpublished National Court Judgment N1628, the issue before Justice Sawong was whether the term "villager" is sufficient description of the witnesses’ occupation. His Honour adopted the relevant passage from Agiwa’s case and ruled that the term "villager" as used by the witness to describe his occupation was a "minor and insignificant point which has nothing to do with the merit of the petition". His Honour considered the submissions to be trivial and without substance and dismissed the objection to competency and allowed the petition to proceed to a hearing.

We accept the submission by Mr Kombagle that the Courts in these two cases did not make any attempt to define the word "occupation" or the words "self-employed" and "villager". We also accept his submission that the requirement in s. 208 (d) is significant and substantial because the Petitioner’s non-compliance with those requirements can determine the fate of the Petition. I also accept Mr Sheppard’s submission that the importance or otherwise of the grounds in a Petition is irrelevant to issues of competency under s. 208. To that extent on the strength of the Supreme Court decision in Biri v. Ninkama, I am of the view that the principles on this point in re Agiwa and Charles Miru’s case should be overruled.

It is accepted by all the parties before us that the approach to be taken is one which I suggested during argument, and that is to first settle the meaning of the term "occupation" in s. 208 (d) and then decide if the word "villager" fits the meaning of "occupation". The term "occupation" is the word used in the OLNE, a constitutional law provision, which this Court needs to define. The word "villager" is not a Constitutional law provision which requires judicial interpretation.

The learned trial judge considered the meaning of "occupation" and "villager" together as follows:

"Strictly speaking a "villager" is not an occupation. A "villager" simply means someone who lives in a village. An occupation is what one does usually. In PNG a "villager" does so many things. A villager maybe a subsistence gardener or a fisherman. That is he does gardening most of the time or goes fishing most of the time. If he does that then "gardening" becomes his occupation.

"Is the word "villager" sufficient for the purposes of s. 208 (d) of the Organic Law. If the two witnesses are gardeners then they must write "gardener" as their occupation. If they are fisherman in the village and spend most of the time in that activity then they must write "fisherman" as their occupation. If they hunt or spend most of their time hunting then they must write "hunter" as their occupation.

I am aware of what we Papua New Guineans think of a villager. When a person in PNG says he is a villager, we normally presume him to do his own things like gardening, fishing, running a small trade store at his own time. He is a master of his time. A "villager" is usually referred to as someone like that. So what does s. 208 (d) require. In my view s. 208 (d) requires an attesting witness to state what he does even if that person is a villager.

"I appreciate that the purpose for which the attesting witnesses state their addresses and their occupation is so that if they were asked to be located they will be there. I appreciate that but those person must state what they do. To state that they are villagers in my view is not complying with s. 208 (d) of the Organic Law."

It is the case for the applicant as put by Mr Shepherd that the word "villager" falls into the definition of "occupation". He heavily relied on the strength of Agiwa’s case and Miru’s case. No attempt was made to define what "occupation" is because it seems to us, the applicant is content with relying on the decisions in those two cases.

Mr Sheppard argued that when the word occupation is given a fair and liberal meaning, as required by Schedule 1.5 of the Constitution, it means one’s trade, business or calling. Reliance was placed on the definition of "occupation" in the Oxford Advanced Learners Dictionary and LB Curzon, the Dictionary of Law. A "villager" he submitted referred to the residential locality where a person comes from and not his calling, trade or business. Mr Kombagle supported Mr Shepherd’s arguments.

We are invited to interpret this word "occupation" in the context of s. 208 (d) but we cannot see why a word as plain as "occupation" requires a legal mind to extrapolate its meaning. Only if the meaning of a word used in a Constitutional provision is in doubt, can the Courts set about the task of interpreting that word using established cannons of constitutional interpretation such as applying the fair and liberal meaning (Schedule 1.5 of the Constitution) and ascertaining the purpose, intent and spirit of the provision SCR No. 3 of 1986, Ref by Simbu Provincial Executive [1989] PNGLR 154 and Haiveta v. Wingti [1994] PNGLR 197).

The term "occupation" simply means one’s trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one’s occupation. It cannot mean one’s place of origin such as Western Highlanders or New Irelander; a linguistic group such as Motuan or Engan; national status such as citizen or non-citizen, and racial origin such as Chinese or African and so on.

The purpose of the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process. An election by its very nature involve the masses with polarized political ideologies and a final ties. One’s election loss can easily spur trouble or mischief if the procedural requirements for challenging an election are not strictly adhered to. The importance of the requirement in s. 208 (d) to state the attesting witness’ occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witnesses attaches to the witness’ capacity to verify the petition. For instance, an infant or mute person lacking full capacity would not be expected to verify or attest a petition.

The word "villager" has an ordinary meaning to which resort to learned anthropological texts, legal treaties and English dictionaries to ascertain its meaning is unnecessary. Any ordinary Papua New Guinean will tell you what this word "villager" means or entails. To us, a villager is a person who comes from or lives in the village and does all the things a villager living in the village would do to make a living – gardening, fishing, hunting, raising animals, planting cash crops, or simply lazing away and uses his wits to make a living off his relatives, etc. He is not engaged in any paid employment as those living in towns and cities. The Courts too have had no difficulty in accepting this word "villager" to refer to a person who lives in a village and is engaged in all these kinds of activities to make a living. We simply refer to those cases cited to us by Mr Sheppard: Wai Gende Elewin v. MVIT [1993] PNGLR 37; Make Kewe v. Thomas Kundjip [1986] PNGLR 279; Kama Puti v. Thomas Kundi [1986] PNGLR 283; Pelge v. MVIT [1991] PNGLR 776.

The learned trial judge gave a technical and restricted meaning of "occupation" to activity which a person in the village usually does. He also took a restrictive view of the term "villager" for purpose of his "occupation". With respect, I do not think that is the correct approach to defining a constitutional provision and the simple word as "villager" in Papua New Guinea.

In our view, it is unrealistic to refer to a villager person by reference to any one particular trade or activity he engages in for his survival. For instance, on the one day, a person may mend the fence around his house, then go to the garden to plant or harvest crops, then go fishing, then attend to the pigs, then attend to his cash crops like coffee garden and so on. He may not be able to complete all these tasks in the one day and so he leaves some to the next day or the next week. The villager is the master of his own time and activity. So does every other villager who just about engages in the same kind of activity. It is unrealistic and impractical to introduce some artificial demarcations between a villager’s main activity and minor activities, his usual and unusual activities, or activities which occupy most of his time and which activities don’t; in order to define his precise occupation in the village.

As the Constitutional Planning Committee in its final Report to the Constituent Assembly in recommending the Fifth National Goal and Directive Principles (Papua New Guinea ways) stated:

"Our ways emphasize the needs of the community. We exercise our rights in the context of our obligation to our community. We consider our village and tribal units as our greatest elements for common care and support. ... In our village and tribal units, no-one is a master and no-one a servant, no-one is an employer and no-one an employee. Most of our societies are classless and egalitarian." (Final CPC Report para 118, p. 2/15).

In our view, once again, no one in the village is the master of any particular trade, profession or calling. Everyone is a master of any and every trade in his own right. He is multi-skilled – a "jack of all trades". Of course the performance quality may vary between individuals, groups or villages, but they just about to do the same thing and everything that is necessary for their survival. And so whilst I agree with His Honour that a "villager" in a narrow sense refers to someone who lives or comes from the village as opposed to someone who comes from an urban centre, it has a much wider meaning in that it naturally entails all the things that a person who lives in the village does for his living, including those who do nothing and live off relatives. For argument purposes, lets say if a person who contributes nothing to his own survival and how is supported by relatives – and there are plenty of this kind of people living in villages – attests a Petition, which he is entitled to do; what kind of activity would he be expected to state in the as his "occupation". We cannot think of any except to describe himself as a simply "villager".

In the final analysis, as we have already concluded, a "villager" is descriptive of a person who comes from or lives in the village, but in our PNG context, it has a much wider meaning; and it includes a person who lives in the village and does all the things a village person in PNG does to make a living. In other words; it is also descriptive of his "occupation". On the basis, I am of the view that that trial judge erred in adopting a restrictive definition of the terms "occupation" in s. 208 (d) and "villager". This is an important point of law in which His Honour erred. As a result substantial injustice was caused to the applicant by His Honour’s decision to strike out the Petition.

For these reasons, we would grant leave to review and grant the application under s. 155 (2) (b) of the Constitution, with costs to the applicant. We would also quash the decision of the National Court; re-instate the petition and order that it proceed to a hearing.

SAKORA J: The applicant, Paru Aihi, was the petitioner in EP No. 17 of 2002 NCD, the National Court decision on which this application for review arises from. That petition challenged the validity of the election and return for the Kairuku-Hiri Open Electorate in the 2002 National General Elections. The first respondent, Sir Moi Avei, was declared as being returned with 6,214 votes whilst the petitioner was the runner-up polling 4,370 votes, difference between the two candidates being 1,844 votes.

The election and return were challenged on two grounds: A. Bribery and Undue Influence; and B. Electoral Irregularities. The National Court entertained the first respondent’s objection to the competency of the petition. It would appear that there were several grounds advanced to object but that the learned trial judge only heard and determined on the issue of non-compliance with the requirement of s 208 (d) Organic Law on the National and Local-Level Government Elections (the Organic Law).

The decision on 17 February 2003 was that the first respondent’s objection to competency based on s. 208 (d) Organic Law was upheld, declaring that this mandatory requirement for specification of an ‘occupation’ for the two attesting witnesses (to the petition) had not been complied with when ‘villager’ had been stated as their occupation.

Before coming to this decision which resulted in the Court declaring the petition incompetent and, therefore, should be dismissed, the learned trial judge had declined to uphold the applicant/petitioner’s preliminary objection to the respondent’s objection to competency on the basis that the Notice of Objection had been filed out of time, thereby not complying with the Court’s direction of 13 December 2002. That direction nominated 20 December 2002 as the date any such objection (or notice of) had to be filed by. The first respondent did file and serve a Notice of Objection to Competency on 19 December 2002, but then, after the Status Conference of 12 February 2003 when all the parties had confirmed their readiness for trial, which was then listed for 17 February 2003, the first respondent had filed on his behalf on 12 and 13 February 2003 a further Notice of Objection to Competency and an Amended Objection to Competency respectively, and without first obtaining leave of the Court.

The applicant invokes this Court’s inherent jurisdiction as expressed in 155(2) (b) Constitution, advancing two grounds upon which the decision of the Court below should be reviewed. And these are set out hereunder as follows:

• Ground 3(a)
  

The trial judge erred in the exercise of his judicial discretion in declining to uphold the preliminary objection by the Petitioner in respect of the late filing and serving by the first respondent of his amended notice of objection after the expiration of the time limit set by the Court.

• Ground 3 (b)
  

The trial judge erred in law in ruling that the requirement of section 208(d) of the Organic Law on National and Local-level Government Elections (the "Organic Law") in respect of stating of the occupation of the attesting witnesses was not complied with when the two attesting witnesses to the Petition by the Petitioner had in fact stated their occupation.

Ground 3 (a)

Now, dealing with each of these grounds in turn. It is the applicant’s contention that the first respondent’s objection to the competency of the petition based on non-compliance with s 208 (d) of the Organic Law was a ground added by the Amended Objections filed 12 and 13 February 2003, beyond the time specifically ordered by the Court in the Directions Hearing of 13 December 2003. And time was designated as 20 December 2002. As such, it is argued, the Objection to Competency was itself incompetent and, thus, the learned judge below ought to have upheld the applicant’s preliminary objection so that the petition could proceed to substantive hearing on the merits.

The 17 February 2003 judgment in the court below does not advert to his Honour’s refusal to grant the petitioner’s preliminary objection. And the file (EP No. 17 of 2002) endorsement makes no mention of the preliminary objection and the Court’s ruling on it. Be that as it may, Ground 3 (a) challenges the exercise of judicial discretion by the Court of first instance.

The Oxford Dictionary of Law (4th ed., 1997) defines "judicial discretion" as: The power of the court to take some step, grant a remedy, or admit evidence or not as it thinks fit (underlining mine). Many rules of procedure and evidence are in discretionary form or provide for some element of discretion. The Oxford Paperback Dictionary (3rd ed., 1988) defines "discretion" as: freedom or authority to act according to one’s judgement (sic). It necessarily involves the reasonable exercise of a power or right to act in an official capacity; it involves the idea of choice, of an exercise of the will. And judicial discretion has also been defined to mean: The reasonable use of judicial power, i.e; freedom to decide within the bounds of law and fact (my underlining) (Law Dictionary, 3rd ed., by Steven H Gifis, Barrons, 1991).

It is an established principle of law in this jurisdiction as elsewhere in the common law world that appellate courts are or ought to be reluctant to review the exercise of discretion by trial judges. The reason is clear from the foregoing definitions of the terms "discretion" and "judicial discretion", and an appreciation of the methodology and purpose of their exercise. A classical situation in this jurisdiction, as elsewhere in the common law world, where the need to exercise restraint or reluctance in disturbing (and thereby displacing) the exercise of discretion by a trial court is in the area of sentencing in criminal cases. This is one of the reasons why an application for leave to appeal is a necessary prerequisite to challenging the trial judge’s exercise of discretion as to the sentencing option adopted or the length of any custodial sentence. Another instance is, of course, when considering and determining costs of litigation, as to which party should bear it.

In his submissions on this ground for review, learned counsel for the applicant would seem to have confused himself with what exactly it was (or they were) that the first respondent objected to as being incompetent when he had filed on his behalf on 12 and 13 February 2003 a further Notice of Objection to Competency and an Amended Objection to Competency respectively, without leave. The objection was as to the competency of the petition, not as to a judicial review. This is now the review pursuant to the Supreme Court Election Petition Review Rules (the Petition Review Rules) promulgated on 29 November 2002 pursuant to s 184 of the Constitution. And as I understand the applicant’s case, he is seeking review of the trial judge’s refusal to uphold his objection to the late filing of the Notice of and Object to Competency of the petition (under his first ground, Ground 3 (a)).

I do note, however, that the first respondent’s written Extract of Argument starts with a brief comment about what is termed the "Competency of Review Challenge", whatever that may mean, but in the process suggesting that the applicant lacked standing to seek review because he lacked standing to bring a petition under the Organic Law. This just does not make sense, and that is probably why Mr Sheppard of counsel for the first respondent did not pursue it in his oral submissions.

I, therefore, with respect see no relevance in the discussions of the Supreme Court Rules (O. 7, rr 14 – 18) dealing with objection to competency of appeals. This is a review pursuant to s 155(2)(b) Constitution, and the review is sought in respect of the National Court’s exercise of powers pursuant to the combined effects of ss 206, 207, 208, 210 and 212 of the Organic Law. In this respect, therefore, it is not correct to say that the 13 December 2002 directions were given in accordance with the Supreme Court Election Petition Review Rules. They were not; they were given or made pursuant to the National Court Election Petition Rules (Petition Rules) 2002, in my opinion Rule 12 (3) (j) and (k). That particular sub-rule is in the following terms (citing only those pertinent to this ground):

(3) At the Directions Hearing, the judge shall consider amongst other things, the following:

• (a) . . .
  

to

(i) . . . (inclusive)
(j) determination of any interlocutory matter; and
(k) such other matters as may aid in the prompt disposition of the petition.

Except for prescribing time limits for the undertaking of the various stages of the Court’s supervision and control of the preparation of an election petition for trial, for instance, a Directions Hearing (Rule 12 (1)) within 28 days of the date of filing the petition, a Pre-Trial Conference 28 days from the date of the Directions Hearing (Rule 13 (1), and a Status Conference 5 days before the hearing date (Rule 14(a)), there is no rule providing for Notice(s) of and Objection(s) to Competency of election petitions. Nor is there any such provision found in the Organic Law. Because the issue of competency of the petition can be one of the many interlocutory matters that can arise, as envisaged by Rule 12 (3) (j) and (k) of the Petition Rules, the Court is empowered to give such directions or make such orders as are necessary.

In my opinion this power comes from sub-ss (2) and (3) of s 212 Organic Law. Section 212 (1) provides for the powers of the court once the petition overcomes the jurisdictional scrutiny of s 210 Organic Law and the court actually embarks upon the substantive hearing as to the validity of the election or return. Subsections (2) and (3) are in the following terms:

(2) The judges of the National Court may make rules of court with respect to pre-trial conferences and procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

Pursuant to Rule 12 (3) (j) of the Petition Rules, the Court directed on 13 December 2002 that any Objection to Competency would be heard at the trial and that the first respondent had to file and serve his notice(s) in respect of this by 20 December 2002. It is my opinion that the seven (7) days given to do this is not the time limit envisaged by s 3 (2) Organic Law that learned counsel for the applicant referred to for support. The Organic Law as noted already (supra) imposes no time limit for the filing and service of any Notice(s) of and Objection(s) to Competency of election petitions.

Thus, in my opinion, where orders and directions are given, as was done at the Directions Hearing on 13 December 2002, pursuant to Rule 12 (3) (j) and (k) (supra), these orders and directions cannot have arrogated to them the same mandatory status as the imposition of time limits as envisaged by s 3 (2) Organic Law. This provision is in the Interpretation part, and reads:

(2) Notwithstanding any other law, where a time limit is imposed under this Law for taking of an action, then unless the contrary intention appears, that time limit is mandatory. (underlining mine).

This conclusion would make sense in my respectful opinion because all orders and directions of the Court in relation to pre-trial conferences and procedures are matters of discretion vested in the Court by the Petition Rules, with the freedom to manoeuvre taking due account of the vicissitudes of organising or setting down legal proceedings and actually convening and conducting these in recent times in this jurisdiction, as evidenced by the perennial interruptions instigated not by acts of God such as natural disasters but man-made extracurricular or extra-judicial activities. In this respect, it is only a matter of record that the 28 days for conducting the Directions Hearing (after filing the petition) and the Pre-Trial Conference (after the Directions Hearing) under the Petition Rules (supra) were not faithfully adhered to in this case, despite the use of the imperative shall on both occasions.

For these very reasons, I would suggest, no provisions are made in the Petition Rules for amendments and the seeking and obtaining of leave, such as adverted to and insisted upon in the submissions of counsel for the applicant. In any case, discretion is to be exercised judicially according to principles laid down by precedent or statute. Thus a judge’s decision will not be disturbed on appeal, or indeed upon review such as here, unless he has followed a wrong principle.

It is my judgment, therefore, that the learned trial judge did not err in the exercise of his judicial discretion in declining to uphold the preliminary objection by the petitioner in respect of the late filing and serving by the first respondent of his amended notice of objection after the expiration of the seven (7) days time limit set by the Court.

There is of course no assertion or allegation of abuse of discretion, only that there was an error in the exercise of it. If it were the former situation then the applicant would have had to satisfy the Court that the judgment or ruling challenged demonstrated perversity of will, a defiance of good judgment.

I am satisfied that the error complained of here is nothing more than an expression of dissatisfaction or grievance that the discretion was not exercised in the applicant’s favour. No error as such has been demonstrated to my satisfaction and I would, therefore, decline to interfere with his Honour’s exercise of his discretion.

Before leaving this ground, it has to be noted that the petitioner’s application for review under s 155 (2) (b) Constitution was filed on 01 April 2003, though learned counsel for the second respondent suggested 3 March 2003. The decision of the National Court under review here was handed down on 27 February 2003. The Supreme Court Petition Review Rules provide under Rule 3 (ii) that:

An application under this Rule shall be filed within fourteen (14) days from the date of the National Court decision in an Election Petition or within such other extended period as the Court determines on application made within that fourteen (14) days period from the National Court decision.

The mandatory nature of this requirement is emphasised by the use of the imperative shall in the Rule. Perhaps this is the demonstration of incompetency of the review application that learned counsel for the first respondent adverted to in the written Extract of Argument somewhat vaguely and did not pursue.

Unlike the first respondent’s failure to comply with a time limit set by the Court during the Directions Hearing for the future conduct of the petition, here is a clear breach of a specific time limit imposed by the Rules, taking the date of filing as 01 April 2003.

So what is the petitioner up to here, complaining about time limits under this ground whilst at the same time, and conveniently, omitting to acknowledge his own default in respect of same? Is not this a classical case of the pot calling the kettle black, or words to such effect? One cannot help but be reminded of a very useful admonition of equity which goes something like: He who comes to equity must come with clean hands. I would suggest that the applicant/petitioner is engaged in mischief here, wanting to have his cake and eat it.

Whilst Rule 3 (ii) of the Petition Review Rules cannot have arrogated to it the same mandatory status as, for instance, the 40 days time limit for filing a petition under s 208 (e) Organic Law, as s 3 (2) Organic Law demands (supra), nevertheless, the 14 days time limit under the Petition Review Rules (supra) enjoys a higher and a more imperative status than a direction in respect of filing and service of documents in the course of conducting pre-trial proceedings.

Ground 3 (b)

This ground relates to the learned trial judge’s conclusion that the mandatory requirement of s 208 (d) Organic Law had not been complied with when the two attesting witnesses to the petition stated their respective occupation as "villager". What is the complaint here? It is that, the two attesting witnesses having stated their respective "occupation" to be "villager", the learned trial judge fell into error in determining that this was not an adequate description of one’s occupation to satisfy the requirement of s 208 (d) Organic Law.

The mandatory nature of the requisites of a petition set out under s 208 Organic Law has been consistently acknowledged and applied since the seminal decision of the Supreme Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342. It is good law, and it is sensible law, in the light of the importance of the subject matter. And the subject-matter is the serious one of disputing the validity of an election and its return. The dispute through a formal petition pursuant to the provisions of the Organic Law and the Petition Rules challenges the integrity of the electoral process.

As the Constitutional Planning Committee (CPC) took great pains to explain, emphasise and make recommendations on for inclusion in the Independence Constitution (CPC Report Ch. 5, p. 13; Ch. 16, pp. 2 & 3), and as numerous judicial decisions have stressed over the years, considerable importance is attached to the electoral system; the system, as we all know full well, by which members of Parliament are chosen; the aim of which system is to make Parliament representative of the views of the people.

And as one author (whose name escapes me right now so I am unfortunately unable to properly and respectfully acknowledge) has put it: "Democracy is not a spectator sport". Section 50 Constitution ensures this in its provision for participatory democracy, in consonance with Goal 2 of the National Goals and Directive Principles under the Preamble to the Constitution: Equality and Participation.

It is only stating the obvious to note that elections are very important and popular events. They raise very high expectations in ordinary people in both rural and urban areas, so much so these days with the increasing awareness of the seemingly untold benefits that can flow from the results of these. High expectations both for the voters (with their power of the ballot box) and possible direct beneficiaries, the nominated candidates, of the results of those elections.

It is important to the candidates for two possible reasons or motives. Firstly, as a genuine concern for and about the welfare and interests of the voters, the electorate. Thus, a selfless desire to be a channel, a conduit, for the provision of needy social services and the injection into the electorate of equally needy economic activities and development. Secondly, there are the purely personal considerations. Success at the polls may be the realisation of a dream, an aspiration, to reach the highest echelons of the national political leadership. Thus, it can be an achievement to enable one to reap the personal benefits of such a position or status.

No disrespect to the parties before me is intended at all in stating a fact of political life that this Constitutional process, through the provisions of the Organic Law once every 5 years, has the potential to foist onto national and international prominence, to the dizzy heights of powerful national leadership, one from relative obscurity, from humble roots. A leadership position that necessarily attracts the possession and exercise of enormous powers, as well as the enjoyment of certain material benefits and privileges not normally available or accessible to ordinary citizens. There is the power to make or unmake laws that affect the lives and interests of ordinary citizens. Power to decide policies and strategies as to what direction the country should be heading, how it should be governed, by whom and for what reasons or purposes. The power to decide the fate of ordinary people, as to their health, safety and lives, not to mention their social and economic well-being.

The terms and conditions of such leadership status and positions are comparatively over-generous. But, once again, the law must have a final say on this. The enjoyment of the material benefits is restricted by law as to the duration of the benefit or enjoyment. And it is 5 years, the life of a Parliament. But it should be noted also that by the operation of other laws (both ordinary and Constitutional) such enjoyment or benefit can be prematurely terminated. Hence the very high stakes involved.

Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered as, such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild, sensationalist, unmeritorious and unsustainable allegations. It is respectfully acknowledged that the preceding comments on the serious nature of elections and their consequences is borrowed from the comments I made in my determination of a similar challenge to the competency of another election petition: EP No. 01 of 2002 ENBP: Francis Koimanrea v. Alois Sumunda, Electoral Commission & Paul Tientsen (Unreported Judgment of 8 May 2003).

There is an unfortunate and a grievous error, in my respectful opinion, in understanding what it was exactly that the Supreme Court was considering in the Application by Herowa Agiwa [1993] PNGLR 137. I was a member of that Bench. This error has resulted in adopting the view that the Court there found and declared that the description of ‘occupation’ as being "self-employed" was a minor matter not going to the merits of the petition. The passage that has been extracted and relied upon, in my opinion, out of context reads:

The only issue is whether "self-employed" is an adequate description of the occupation of a witness to a petition. It is a very minor point which has nothing to do with the merits of the matter.

And the matter for consideration and determination was whether the National Court’s decision that the petition complied with s 208 Organic Law and so refused to strike it out was an important point of law for determination by the Supreme Court in its inherent review jurisdiction under s 155 (2) (b) Constitution when the Supreme Court Act and the Rules of the Supreme Court were silent on the question of the requirement for leave. This was so in the light of the fact that there was "no right of review but only the right to make application to the Supreme Court to invoke its inherent power to review a judicial act of the National Court. That power is discretionary" (p. 138).

It will be noted that the Court acknowledged, immediately before the extract that has been relied on, that there is "no dispute that there must be strict compliance with s 208 of the Organic Law. That is established law: see SCR No. 4 of 1992 Biri v. Ninkama [1982] PNGLR 342. That principle is not being challenged" (p. 138). With respect, another passage from the Herowa Agiwa decision that seems to be conveniently ignored in promoting the view (supra) is the one that reads (p. 138):

The finding that s 208 of the Organic Law has been complied with was open to the learned trial Judge, and there being a challenge only to that interpretation and finding, we are unable to find an important point of law to be determined which has merit.

It is of course settled law that the Supreme Court’s inherent jurisdiction to review under s 155 (2) (b) Constitution is an unfettered discretionary jurisdiction that can be exercised "only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being on the applicant" (in the words of the majority in another seminal Supreme Court decision of Avia Aihi v. The State [1981] PNGLR 81.

In the case before us, the learned trial judge held that "villager" is not an occupation for the purpose of s 208 (d) Organic Law. I find no error in this determination. Such a conclusion was open to his Honour when interpreting "villager" in the context of the mandatory requirement for attesting witnesses to a petition to indicate their "occupation". The learned trial judge did direct his mind to the various activities, more particularly for subsistence, that a villager can and does engage in. And his Honour repeatedly stated that any one of these subsistence activities, such as "fishing" or "gardening" would have sufficed. It was his judgment that a "villager" simply means "someone who lives in the village". This is not a strict interpretation of the term. It is, strictly speaking, the statement of an obvious fact. As such, I find nothing wrong in his Honour’s characterisation.

The term "villager" is descriptive only of where one lives or resides. It has the same connotation as describing someone as being an "urban dweller" or, indeed, a "city folk". These are terms of location rather than occupation.

To interpret otherwise would be, in my respectful opinion, engaging in some deft linguistic side-step reminiscent of the best five-eighths in a Rugby match.

The Oxford Paperback Thesaurus defines "occupation" as: a job, work, profession, business, employment, employ, career, calling, metier, vocation, trade, craft, line, field, province, area. All these descriptions do not indicate where one lives or resides. They are used in the same sense as "gardener", "fisherman", "hunter", or, indeed, a "subsistence farmer".

The Australian Oxford Dictionary (new Budget edition) defines "occupation" as: an activity that keeps a person busy; employment. Thus, a "villager" is not an activity, at least not of the subsistence or gainful kind.

The Penguin English Dictionary (2nd ed.) defines the same term as: an activity in which one engages, especially to earn a living.

It is my opinion that both terms "occupation" and "villager" are free from ambiguity. Whilst the terms "village" and "villager" may have had particular anthropological references and connotations to tribal societies, the terms are not exclusive to Papua New Guinea, or any of the other tribal communities of the world.

The term "village" is an English term, a noun, describing "a small group of houses in a country area", and the inhabitants of such a community are described as "villagers": Collins Paperback English Dictionary (supra). It was said in the old English case of Warburton v. Loveland [1831] EngR 74; (1831) 2 Dow. & Cl. 480, at 489 that:

Where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences; for in that case the words of the statute speak the intention of the legislature.

I find myself quite unable to think here that the words "occupation" and "villager" are other than explicit. Under those circumstances, are we here at liberty to extend the ordinary and dictionary meaning to include "villager" in the list of recognised occupational activities? I think not.

Professor Glanville Williams stated that the most important rules for statutory interpretation are those suggested by common sense. Thus, he said, the judge may look up the meaning of a word in a dictionary or technical work, but this ordinary meaning may be controlled by the particular context. And the particular context here is an election petition challenging the integrity of the electoral process, the validity of the particular election and its return.

It was stated by Jessel M. R. in Re Levy, ex p. Walton [1881] UKLawRpCh 160; (1881) 17 Ch D. 746 (at 751) that:

The grammatical and ordinary sense of the words is to be adhered to, unless that would leave to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical or ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further.

The learned Master of the Rolls in another case a year later, Wallis v Smith (1982) 21 Ch. D. 243, said (at 257):

You may depart from the literal meaning of words, if reading the words literally leads to an absurdity.

I respectfully adopt these statements as pertinent to the task before this Court. The view I take here is made glaringly obvious, I would respectfully suggest, when we consider that in cities like Lae and Port Moresby there are people who live in "urban villages" such as Butibam, Hanuabada, Kirakira and Pari and commuting to work in the cities as professionals, tradespeople and unskilled workers. I would be greatly surprised if any of these people would list "villager" as their occupation. Whilst they live in the villages (common reasons being cheapness and availability of accommodation, not to mention personal safety), they are involved in the formal activities of gainful employment. And it is a fact that people from villages further removed from the city, for instance Tubusereia, Gabagaba, Porebada and Boera, also commute to and from work every day. The description of their employment or occupation cannot be "villager".

If the argument favouring "villager" as an occupation is acceptable, which I say it ought not be, then an urban dweller by necessary extension must be an occupation. But this cannot be so. It is descriptive only of, as with "villager", where one lives or resides.

Final support for my view comes from the judgment of Lord Halsbury in another old English case of Leader v Duffy [1888] UKLawRpAC 29; (1888) 13 App. Cas. 294 at 301:

All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view, which is I think in accordance with reason and common sense, that, whatever the instrument, it must receive a construction according to the plain words and sentences therein contained. But I agree that you must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself and having made that fallacious assumption to bend the language in favour of presumption so made (my underlining).

For all of the foregoing reasons, I find that the learned trial judge fell into no error in deciding that the petition did not comply with the requirement of s 208 (d) Organic Law.

I would, therefore, not grant the application on this ground, and would confirm the National Court’s decision with costs.
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Lawyer for the Applicant : Blake Dawson Waldron Lawyers
Lawyer for the First Respondent: Maladinas Lawyers
Lawyer for the Second Respondent: Parua Lawyers