Danaya v Wobiro [2013] PGSC 41; SC1292 (4 November 2013)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Papua New Guinea

APPLICATION
UNDER SECTION 155(2)(b) OF THE CONSTITUTION
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(d): petition to be attested by two witnesses whose occupations and addresses are stated – whether a witness had correctly stated his occupation – whether incorrect statement of occupation is a matter going to competency of petition.

The National Court upheld objections to the competency of an election petition and dismissed the petition for failure to comply with the requirements of Section 208(d) of the Organic Law on National and Local-level Government Elections: a petition shall "be attested by two witnesses whose occupations and addresses are stated". One of the attesting witnesses stated his occupation as "Second Secretary to the office of the former Governor Western Province". This was held to be an incorrect statement of his occupation as, at the date of filing of the petition, no such office existed. Therefore Section 208(d) was not complied with and by virtue of Section 210 of the Organic Law – "proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with" – the petition was dismissed. The petitioner (the applicant) applied to the Supreme Court under Section 155(2)(b) of the Constitution to review the decision of the National Court, arguing that it erred in law by finding that the witness had incorrectly stated his occupation and that the requirements of Section 208(d) had not been complied with.

Agonia v Karo [1992] PNGLR 463
Aihi v Avei (2003) SC720
Dr Bob Tawa Danaya v Ati Wobiro & Electoral Commission EP No 70 of 2012, 05.03.13, unreported
Galem Falide v Registrar of Titles (2012) N4775
Karo v Kidu [1997] PNGLR 28
Miru v Basua (1997) N1628
Puaria v Lera (2013) N5148
Re Herowa Agiwa [1993] PNGLR 136
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Tulapi v Lagea (2013) N5235

This was an application for review of a decision of the National Court to uphold an objection to competency of an election petition and dismiss the petition.

A Furigi, for the applicant
I Molloy & G Gileng, for the first respondent
M Kuma, for the second respondent

1. BY THE COURT: Dr Bob Tawa Danaya applies for review of the decision of the National Court to dismiss his petition which disputed the validity of the election of Ati Wobiro as member for Western Provincial in the 2012 general election. The National Court, constituted by Justice Hartshorn, upheld objections by Mr Wobiro (the first respondent) and the Electoral Commission (the second respondent) to the competency of the petition and dismissed the petition in its entirety (Dr Bob Tawa Danaya v Ati Wobiro & Electoral Commission EP No 70 of 2012, 05.03.13, unreported).

2. His Honour dismissed the petition due to its failure to comply with the requirements of Section 208(d) (requisites of petition) of the Organic Law on National and Local-level Government Elections, which states:

A petition shall ... be attested by two witnesses whose occupations and addresses are stated.

4. His Honour held that that was an incorrect statement of the witness's occupation as, at the date of filing of the petition, no such office existed. Therefore Section 208(d) was not complied with and by virtue of Section 210 of the Organic Law – "proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with" – the petition shall not be heard and was dismissed. There were a number of other grounds of objection to the competency of the petition but his Honour, having reached the conclusion that Section 208(d) was not complied with, found it unnecessary to consider them.

5. The sole question raised by the application for review is whether his Honour erred in law in finding that Section 208(d) was not complied with. We have concluded, with respect, that his Honour did err, for the following reasons.

6. The attesting witness's description of his occupation was a sufficient statement of his occupation. We adopt the meaning of the term "occupation" favoured by the Supreme Court (Amet CJ, Los J, Sakora J, Injia J, Sawong J, Sakora J dissenting) in Aihi v Avei (2003) SC720:

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.

7. We note that in Re Herowa Agiwa [1993] PNGLR 136 and Puaria v Lera (2013) N5148, "self employed" was regarded as a sufficient description of occupation. In Miru v Basua (1997) N1628 "villager" was considered sufficient. We note that the learned primary judge actually found that the statement "Second Secretary to the office of the former Governor Western Province" would have been a sufficient description – if it were a correct description – of the witness's occupation as it was a statement of what he did for a living. So his Honour did not fall into error in his assessment of the sufficiency of the description.

8. However, his Honour erred by delving, unsupported by any evidence, into the correctness of the description. After noting that it was uncontentious that the petitioner, Dr Danaya, was the former (immediate past) Governor of Western Province, his Honour held:

A member of Parliament ceases to hold the office of a member of Parliament when he ceases to be a member of Parliament – likewise the Governor of a province. Sanaka Kela is able to be the second secretary to a former Governor of a province but not the second secretary to the office of a former Governor of a province as such an office does not exist. Further, if Sanaka Kela was the second secretary to the office of the Governor of Western Province, his appointment was terminated when the member of Parliament who was the Governor of Western Province ceased to hold the office of a member of Parliament pursuant to s 4(2) Parliamentary Members' Personal Staff Act 1988. ...

It is the case then that notwithstanding that the statement as to the occupation of Sanaka Kela, in my view, is capable of falling within the interpretation of "occupation" favoured by the majority in Paru Aihi v Sir Moi Avei (2003) SC720, as the statement as to his occupation is not correct at the time that it was made on the date that the petition was filed, he has failed to state his occupation correctly as required under s 208(d) Organic Law. Consequently as s 208(d) has not been complied with, pursuant to s 210 Organic Law which provides that:

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

9. We consider that his Honour was not entitled to make a finding of fact that the description of the witness's occupation was incorrect as there was no evidence before the Court on that issue of fact. His Honour found that there was no such office as "the office of the former Governor of Western Province" but there was no evidence to support or defeat such a finding.

10. His Honour drew the inference that there could be no such office due to Section 4(2) of the Parliamentary Members' Personal Staff Act, which provides that when a member of the Parliament ceases to hold office the appointment of a member of his personal staff is terminated. However, the witness did not state that he was the Second Secretary to the Governor or to the former Governor. He stated that he was the Second Secretary to the office of the former Governor. It could not be concluded safely in fact or in law that such an office did not exist unless there was some evidence before the Court.

11. It was not a fanciful proposition to assert that the applicant, being the immediate past member for Western Provincial and Governor of the Province and having just lost an election, would have maintained an "office" and retained his Second Secretary who held himself out as "Second Secretary to the office of the former Governor Western Province". That was the proposition being advanced by the witness's description of his occupation and the onus of disproving that proposition rested with those who were challenging it, in accordance with the principle underlying any litigation that 'he who asserts must prove' (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Galem Falide v Registrar of Titles (2012) N4775). That onus could only be discharged by presenting evidence to the Court. But there was none.

12. We consider that the question of whether a statement of occupation is factually correct is not a matter going to the competency of the petition. The statement is only open to question after commencement of the trial of the petition and then only upon evidence as to its lack of veracity.

13. Even if the statement could be determined in the absence of evidence to be clearly incorrect, for example if a witness described his occupation as "Prime Minister of Papua New Guinea" and the court took judicial notice of the fact that that was a false statement, it would not necessarily follow that the requirements of Section 208(d) have not been complied with. Those requirements will in our view only be breached if the effect of the misstatement of occupation substantially defeats the purpose of Section 208(d), which is to enable the attesting witnesses to be easily located so that they can vouch for the genuineness of the petition (Agonia v Karo [1992] PNGLR 463, Karo v Kidu [1997] PNGLR 28, Tulapi v Lagea (2013) N5235). In determining whether the purpose of Section 208(d) was defeated it would be relevant to examine the whole of the description of the witness. Here it stated:

I the undersigned witness the signing of the petition by the petitioner and attest to the matters contained in the petition:

NAME	:	SANAKA KELA
RESIDENTIAL ADDRESS	:	SECTION 231, LOT 10, TOKARARA, NATIONAL CAPITAL DISTRICT
VILLAGE	:	BALIMO (OWA)
OCCUPATION	:	SECOND SECRETARY TO THE OFFICE OF THE FORMER GOVERNOR WESTERN PROVINCE
SIGNATURE	:	.... [Signed] ...
DATE	:	3 SEPTEMBER 2012

14. When considered in the context of the whole of the statement by the attesting witness, any misdescription of occupation would not have defeated the purpose of Section 208(d) as the witness would have remained easy to identify and locate.

15. The learned primary Judge erred in finding that the attesting witness's statement was incorrect and that the requirements of Section 208(d) of the Organic Law were not complied with. It follows that the application for review will be granted, the decision of the National Court quashed and the petition reinstated. The petition will be remitted to the National Court. As to whether the petition should be returned to the primary Judge and whether the other grounds of objection to the petition should be reheard, these are matters for the National Court to determine and properly fall within the domain of the Judge Administrator, Election Petitions. Costs will follow the event.

__________________________________________________
Furigi Lawyers: Lawyers for the Applicant
Posman Kua Aisi Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent

Supreme Court of Papua New Guinea

Danaya v Wobiro [2013] PGSC 41; SC1292 (4 November 2013)