Moresby Northeast Parliamentary Election: Damena v Lowa [1977] PNGLR 448 (7 November 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 448 - Re Moresby Northeast Parliamentary Election: Goasa Damena v Patterson Lowa 

[1977] PNGLR 448

N113

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE MORESBY NORTH EAST PARLIAMENTARY ELECTION

(NO. 2)

GOASA DAMENA

V

PATTERSON LOWA

Waigani

Frost CJ

29-30 September 1977

7 November 1977

PARLIAMENT - Elections - Disputed election petition - Lack of residential qualifications - “Reside” - Whether constructive residence where house occupied by tenant - Meaning of “electorate” - Constitution s. 103(2)[cdlxxxi]1 Organic Law on National Elections Pt. XVIII Div. 1.

PARLIAMENT - Elections - Disputed election petition - Standard of proof required - Lack of residential qualifications.

On the hearing of a disputed election petition brought under s. 206 of the Organic Law on National Elections, by a losing candidate for relief on the ground that the elected member did not have the necessary residential qualifications as required by s. 103 of the Constitution,

Held

(1)      The onus of proof was on the petitioner to prove that the elected candidate was not qualified to stand;

(2)      The standard of proof required is such that the 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;

Rejfek & Anor v. McElroy & Anor [1965] HCA 46; (1965) 112 C.L.R. 517 at p. 521 and Helton v. Allen [1940] HCA 20; (1940) 63 C.L.R. 691 adopted and applied.

In re Menyamya Open Parliamentary Election [1977] P.N.G.L.R. 298 not followed.

(3)      To give effective operation to the provision in s. 103 of the Constitution for a candidate’s qualification whether by birth or residence, it is necessary for the word “electorate” in s. 103(2) of the Constitution to be given the meaning of “area of an electorate”;

(4)      In determining the operation of the residential qualifications under s. 193 of the Constitution, continuous residence for a period of two years being required, the test to be applied is whether the person had a fixed place of abode, whether he was absent from time to time or not; and where constructive residence is relied upon whether the person had an available residence, from which he had not debarred himself from the liberty of returning;

Levene v. Inland Revenue Commissioners [1928] UKHL 1; [1928] A.C. 217 at p. 222,

Fox v. Stirk [1970] 2 Q.B. 463 at p. 475,

R. v. Gillies (1912) 6 Q.J.P.R. 138 at p. 140,

Durant v. Carter [1873] UKLawRpCP 71; (1873) L.R. 9 C.P. 261 at p. 266,

The Queen v. The Midland Licensing Court [1959] S.A.S.R. 229,

Tanner v. Carter (1885) 16 Q.B.D. 231,

Powell v. Guest [1864] EngR 788; (1864) 18 C.B. (N.S.) 72; (1864) 144 E.R. 357 at pp. 370-371 and

Bond v. Overseers of St. George, Hanover Square [1870] UKLawRpCP 69; (1870) L.R. 6 C.P. 312 at p. 314 referred to.

(5)      The elected candidate could not be said to “reside” in a dwelling house which was retained during the beginning of the period of two years’ residence required by s. 103 of the Constitution for the purpose of an investment and not as a residence and from which he had debarred himself from the liberty of returning because of the continuance of tenancies during that period.

(6)      Accordingly, the elected candidate was not qualified to be nominated as a candidate or to be a Member of Parliament for that electorate, and the election should be declared absolutely void under s. 21 of the Organic Law on National Elections.

Petition

This was a petition to the National Court sitting as a court of disputed returns, pursuant to s. 206 of the Organic Law on National Elections contesting the validity of an open parliamentary election on the ground that the elected candidate did not have the necessary residential qualifications as required by s. 103 of the Constitution.

Counsel

G. J. Lay, for the petitioner.

W. J. Andrew, for the respondent.

K. N. Gregory, for the Electoral Commissioner.

Cur. adv. vult.

7 November 1977

FROST CJ: In this petition, Dr. Goasa Damena disputes the validity of the election and return of the candidate Mr. Patterson Lowa, at the 1977 general elections for the Open Electorate of Moresby Northeast. At the final scrutiny Mr. Lowa with 1,423 votes had gained a clear majority over his nearest rival, Mr. H. Hoerler, with 705 votes. The petitioner was fourth with 641 votes.

The ground of the petition is that Mr. Lowa was not qualified to nominate as a candidate for the electorate because, not having been born in the electorate, he had not resided in it for a continuous period of two years immediately preceding his nomination, or for a period of 5 years at any time, as the Constitution requires, s. 103(2).

At the outset of the hearing the respondent raised a preliminary objection that the petitioner was not entitled to rely on such a ground. The question of lack of qualifications, it was argued, could only be heard and determined by the National Court on a reference by the Parliament under Pt. XVIII, Div. 2, of the Organic Law on National Elections. The objection was disallowed, the evidence for both the petitioner and the respondent was taken and the decision was reserved. The ruling was then challenged in proceedings for a writ of prohibition and by way of appeal brought by the respondent in the Supreme Court. On 4th November, 1977, both proceedings were dismissed by the Supreme Court. Accordingly, the way is now open to the petitioner to seek that the Court exercise its power under the Organic Law, s. 212(1)(h), of declaring the election absolutely void.

ONUS OF PROOF

The onus of proof clearly rests on the petitioner to prove that Mr. Lowa was not qualified to stand. Mr. Gregory, for the Electoral Commissioner, submitted that proof upon the balance of probabilities is sufficient upon such a ground. The view I took in In re Menyamya Open Parliamentary Election[cdlxxxii]² was that an election is a serious and expensive matter and is not lightly to be set aside. I then went on to say that the case should be proved at least to the entire satisfaction of the judge.

Since then Helton v. Allen[cdlxxxiii]³ and Rejfek & Anor v. McElroy & Anor[cdlxxxiv]⁴, both decisions of the High Court of Australia, have come to my attention. These decisions support Mr. Gregory’s submission. In the latter case it was held that in the absence of statutory provisions to the contrary, proof in civil proceedings of facts amounting to the commission of a crime has only to be made upon a balance of probabilities, which is of course the civil onus. That statement would extend to election petitions brought on the ground of an illegal practice or any other ground. The cases are relevant also because reference is made to the distinction to be made between the standard of proof in a civil case and the effect of the gravity of the issues, such as fraud or the commission of a crime, upon the process of decision. In the earlier case the High Court was content to approve Professor Wigmore’s “simple statement that in a civil case the same high degree of certainty is not required as in a criminal case, but reasonable satisfaction according to the nature of the case” — at p. 710.

In my opinion these statements of the law are applicable to the circumstances of Papua New Guinea, and I would adopt them in relation to the determination of election petitions. Accordingly, in a case such as the present where the issues are of real gravity, the 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. Rejfek & Anor v. McElroy & Anor[cdlxxxv]⁵.

MR LOWA'S CAREER AND RESIDENCE AT MURRAY BARRACKS

Mr. Lowa was born in the West New Britain Province, where he went to primary school. He then attended Sogeri High School, in the Central Province, where in 1962 he completed his secondary education. He went straight into the Army, and in a distinguished career attained the rank of Colonel. In 1975 as Papua New Guinea approached Independence he decided to resign and stand for the elections. In the years after he left school, because of his Army service he had become associated with the Port Moresby area. His service was of course not confined to that area. He had two extended periods of training and service in Australia, and nearly three years’ service with the Pacific Islands Regiment at Wewak. But at the end of 1973 he returned to Murray Barracks in Port Moresby where he completed his Army career.

On 26th May, 1975, Mr. Lowa submitted his resignation for the second time; earlier it had been refused. One of the reasons he gave in his letter to the Defence Council was that he wished to enter private life to be able to help the people in his own area of West New Britain, and to assist in the development of the area and its people. This suggests that he then had in mind standing for one of the West New Britain electorates. However, upon the electoral law as it then existed he was qualified to stand certainly for Moresby Inland. For Murray Barracks was situated in that electorate, and he had the necessary qualifications of 12 months’ residence (Electoral Act 1963, ss. 38(1), 66). Under that Act the general elections were due to be held not later than 1976, that is, when the four-year term of the House of Assembly was to come to an end.

THE CHANGES IN THE LAW UNDER THE CONSTITUTION

But as it transpired in three respects which affected Mr. Lowa’s plans, upon the Constitution coming into force on 16th September, 1975, the electoral law was changed. First, the general elections were postponed until May and June 1977; secondly, the qualification for continuous residence was extended, in respect of the period immediately preceding a candidate’s nomination, to 2 years, and thirdly, redistribution of electorates, which is a hazard to all involved in a political career, was to be recommended by the Boundaries Commission as soon as possible after Independence Day, Constitution s. 269(4), s. 103(2), s. 269(3).

EFFECT UPON MR LOWA

The postponement of the general elections made it necessary for Mr. Lowa to seek employment after his resignation was to take effect in August 1975. He accepted an appointment in Lae. So on 1st September, 1975, he left the married quarters which he had occupied in Murray Barracks with his wife and family, and went to Lae to live. Arguments seem to have developed with his employer’s management, and he was offered a new appointment in Port Moresby. At some time in January 1976 — Mrs. Lowa said it was just after New Year and Mr. Lowa at about the end of the month — he returned to Port Moresby where, after a few days at Murray Barracks, he moved into a house which was made available for him at Gordon’s.

THE 1977 REDISTRIBUTION IN THE NATIONAL CAPITAL DISTRICT

During 1976 the Boundaries Commission was occupied with the redistribution. A recommendation was made in due course affecting the National Capital District, under which the electorate of Moresby Inland was to disappear. The recommendation was for two new electorates of Moresby Northwest and Moresby Northeast. But the new boundaries were not formally determined until 7th February, 1977, when the required resolution was passed by Parliament.

The late determination of the new boundaries, in my opinion can have no bearing on the case. In the pre-Independence Electoral Act 1963 there was express provision for entitlement to enrolment and candidature not only for persons who lived in the electorate for the required period but also for persons who before or after the commencement of the Act “continuously lived in the area of the electorate” for that period (s. 38(1)(a) and (b)). That Act, which was the first enactment to provide for elections to the House of Assembly, remained in force after Independence only for the purposes of any by-election to be conducted before the first general election, Organic Law on National Elections s. 244, 246. However, to give effective operation to the provision for a candidate’s qualification, whether by birth or residence, it is necessary for the word “electorate” in Constitution, s. 103(2), to be given the meaning of “the area of an electorate”.

The redistribution presented Mr. Lowa with a dilemma if he had decided not to stand for the electorate where he had been born. Murray Barracks was in Moresby Northwest, and Gordon’s, where he had lived throughout most of 1976, was in Moresby Northeast. If he were to nominate for Moresby Northwest, plainly he could not show continuous residence for two years immediately preceding nomination. And there was the difficulty, so far as Moresby Northeast was concerned, that in 1975 he had lived outside that electorate, first at Murray Barracks and later at Lae.

His correspondence with the Electoral Commission shows that in early December 1976 he was considering standing for Moresby Northeast. It was for that electorate that he nominated when, on 12th April 1977, he put in the requisite form.

WHAT DOES “RESIDE” MEAN?

As I have indicated, it is for the petitioner to prove that Mr. Lowa had not resided in the electorate for a continuous period of 2 years immediately preceding nomination. That was the qualification relied on by Mr. Lowa in his nomination form, and the only qualification relied on by his counsel, Mr. Andrew. The period goes back to 12th April, 1975, when Mr. Lowa was living in the house at Murray Barracks.

There is no difficulty in arriving at the meaning of “reside”. In a tax case, it was said:

“. . . the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.’ “

Levene v. Inland Revenue Commissioners[cdlxxxvi]⁶. That definition was applied by Lord Denning M.R. in the election case of Fox v. Stirk[cdlxxxvii]⁷, cited by Mr. Andrew.

Mr. Andrew relied also on a passage from a Queensland case, R. v. Gillies[cdlxxxviii]⁸, where a similar problem arose and the candidate had to show 12 months’ residence in Queensland. This is what the learned judge said:

“. . . continuous residence did not mean that the applicant had to be every day of that twelve months in Queensland. It was sufficient if a man, during that twelve months had his house or fixed place of abode in Queensland, whether he was absent from time to time or not.”

It is clear that during 1975 — except possibly for a period of one week to which I shall later refer — Mr. Lowa had in fact resided outside Moresby Northeast. Accordingly, the only way Mr. Andrew could put forward a case of two years’ continuous residence was to rely on the doctrine, as it has been called, of “constructive” residence, which has been developed by the courts under the electoral legislation of England. That is the legal term for the simple notion that “a man may have more than one residence at a time. He may corporeally be residing at one place, and yet have a residence at another. He may have a place of residence to which he is free to go during the whole period.” Durant v. Carter[cdlxxxix]⁹. Thus if a man spends his life at sea, he is considered resident at the house where his wife and family live ashore, even although his wife has moved and is living in a house which her husband has never seen — The Queen v. The Midland Licensing Court[cdxc]¹⁰, a case also relied on by Mr. Andrew. As Lord Denning M.R. said in Fox v. Stirk[cdxci]¹¹, a man may have two residences, a flat in the city and a house in the country, and be resident in both.

It is to be noted however that Fox v. Stirk[cdxcii]¹² was concerned with a statute in which there was no qualifying period of residence but only a qualifying date, namely one fixed day in the year. For the purposes of the present case therefore in which a continuous period of residence is required, Lord Denning’s general statement is to be taken subject to the qualification laid down in the earlier English case of Tanner v. Carter[cdxciii]¹³, a case where continuous residence for a prescribed period was required, that a person’s claim to be a resident will be defeated if it is shown that he did not have the power to go to the house in question when he pleased throughout the period. See also Halsbury, Laws of England, 3rd ed., Vol. 14, p. 14, where the cases are collected. The doctrine is further explained by Erle C.J. in Powell v. Guest[cdxciv]¹⁴ as follows:

“I entirely subscribe to the doctrine so clearly laid down in Elliott on Registration, 2nd edit. 204, where the learned author says that, ‘in order to constitute residence, a party must possess at the least a sleeping apartment, but that an uninterrupted abiding at such dwelling is not requisite.’ ‘Absence,’ he continues, ‘no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party’s pleasure or convenience so to do, will not prevent a constructive legal residence. But, if he has debarred himself of the liberty of returning to such dwelling, by letting it for a period, however short, or has abandoned his intention of returning, he cannot any longer be said to have even a legal residence there.’ The learned author says he loses his character of resident ‘if he has debarred himself of the liberty of returning to such dwelling,’ and he gives two examples, viz. letting the house, or abandoning the intention of returning.”

That passage was applied also in Bond v. Overseers of St. George, Hanover Square[cdxcv]¹⁵.

It is plain that constructive residence implies an available residence, from which the claimant has not debarred himself from the liberty of returning.

There is no reason to suppose that the doctrine is not suitable or appropriate to the circumstances of Papua New Guinea, and accordingly it is applicable in determining the operation of the residential qualifications under the Constitution s. 103.

WAS MR LOWA DURING 1975 RESIDENT IN MORESBY NORTHEAST?

The house in Moresby Northeast where it was submitted that for the purposes of the Constitution, s. 103(2), Mr. Lowa was resident, both whilst he was living at Murray Barracks and later at Lae, is a house in Bittern Place off Boroko Drive, Boroko. It was owned by Mrs. Lowa before marriage and apparently purchased for investment. To establish Mr. Lowa’s interest in the house it was elicited that from about the end of 1973 Mr. Lowa contributed one-half of the mortgage repayments and that, following requests made to solicitors late in 1975, the house was finally in 1976 registered in the joint names of both. The house was retained by Mr. Lowa for two purposes, as an investment and also to move into when he left the Defence Force. Except for a period of about a week, said to have been towards the end of 1975, at all times the house was occupied by tenants. If the house was occupied by Mr. Lowa during that break in the tenancy, it was only for repairing and maintenance and to get it ready to let to a new tenant. The evidence is not satisfactory as to when it occurred, but in view of the requirement for two years’ continuous residence, occupancy or residence for an isolated week cannot avail Mr. Lowa.

The way the argument is put is that because it was intended by Mr. Lowa that he would occupy the house when he left the Defence Force he was constructively resident in it. So put, the argument is not really to the point so far as concerns the period during which Mr. Lowa remained at Murray Barracks. However, Mr. Andrew sought to get around his difficulties by arguing that it was open to Mr. Lowa to give the tenant notice to quit at any time, including the period when Mr. Lowa was living at Murray Barracks.

I have indicated the way in which Mr. Lowa’s case was put, but that does not mean that there is any onus of proof upon him. The onus remains on the petitioner, if there is some evidence to raise the issue, to exclude during the relevant period the constructive residence relied on by Mr. Lowa.

The question of residence, it is quite clear, cannot be determined without consideration of the purposes for which the house was retained, and the circumstances surrounding Mr. Lowa’s absence from it. It was retained during the beginning of the period for the purpose of an investment and not as a residence. Mr. Lowa had no intention of residing in it until he left the Army. Whilst Mr. Lowa was in the Army, Murray Barracks was within the then electorate of Moresby Inland. He had therefore no possible reason for political purposes or otherwise to regard the Bittern Place house as a residence. His case was no different from that of any other landlord who living in Moresby Inland owned another house let to a tenant. In short, Mr. Lowa had during that period one residence only and that was the house in Murray Barracks. There is no evidence one way or the other whether at the time he went to Lae he was aware of or took into account the provisions in the Constitution for a two-year residential qualification or by birth. It is, however, clear that he had no intention of taking up residence in the house until, at the earliest, the time arrived for him to return to Port Moresby to prepare for the election. It was not a case of him abandoning an intention to return to the house, because he had never lived in it, but rather of continuing his intention to retain the house as before for the purpose of an investment and not as a residence.

Apart from the purpose for which the house was retained the fact that Mr. Lowa had let the house to a tenant was sufficient in itself to debar him from being treated as a resident. There is no evidence as to the nature of the tenancy. But if it was let as an investment, even for the shortest period, that is upon a periodic tenancy from week to week, at the very commencement of the tenancy he had debarred himself from the liberty of taking up residence for the period at least of the week’s notice required for termination, and that was enough to break the continuous period of residence required under the Constitution. In fact, of course, the continuance of the tenancies debarring him from the liberty of taking up residence throughout 1975 was precisely what Mr. Lowa intended.

The Organic Law on residence was relied on by Mr. Andrew, but it applies specifically in relation to citizenship by naturalization and is of no assistance.

The conclusion I have come to on the facts is that the petitioner has shown that Mr. Lowa was in no way resident in the house at Bittern Place either for the beginning of the two-year period when he was actually living in Murray Barracks, or when he was living in Lae. Accordingly it has been shown that Mr. Lowa did not reside in Moresby Northeast for that portion of the required two-year period between the 12th April, 1975 and January 1976. I am thus entirely satisfied that Mr. Lowa was not qualified to be nominated as a candidate or to be a Member of Parliament for that electorate. In reaching these conclusions I have applied, in the terms I have indicated, the civil onus of proof, and I have taken fully into account the serious consequences involved and the need for clear and cogent proof of the issues in the case.

Mr. Andrew’s final argument was that if the ground was made out the Court should not in its discretion exercise the power of declaring the election void. He submitted that Mr. Lowa’s very substantial majority and also the real connection he had with the electorate were sufficient to turn the substantial merits and the good conscience of the case in Mr. Lowa’s favour. Organic Law on National Elections, s. 217. But for this Court to give effect to that argument would be to give the go-by to the Constitution. For the principle that the integrity of elections should be safeguarded is fully recognized under the Constitution, s. 126(7)(c). That principle requires strict compliance with the prescribed qualifications on the part of a candidate.

I therefore find that the election and return of Mr. Lowa were invalid. The election is declared absolutely void. The consequence is that a new election shall be held, (s. 226(c)). The deposit is to be returned to the petitioner. A copy of the order will be forwarded promptly to the Clerk of the Parliament by the Registrar.

Orders accordingly.

Solicitor for the petitioner: L. Keith Young & Associates.

Solicitor for the Electoral Commissioner: C. Maino-Aoae, Acting State Solicitor.

Solicitors for the respondent: Craig Kirke & Wright.

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[cdlxxxi]Section 103(2) of the Constitution provides:

(2)        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 five years at any time.

[cdlxxxii][1977] P.N.G.L.R. 298.

[cdlxxxiii](1940) 63 C.L.R. 691.

[cdlxxxiv](1965) 112 C.L.R. 517.

[cdlxxxv][1965] HCA 46; (1965) 112 C.L.R. 517 at p. 521.

[cdlxxxvi][1928] UKHL 1; [1928] A.C. 217, per Viscount Cave L.C. at p. 222.

[cdlxxxvii] [1970] 2 Q.B. 463 at p. 475.

[cdlxxxviii] [1912] 6 Q.J.P.R. 138 at p. 140.

[cdlxxxix][1873] UKLawRpCP 71; (1873) L.R. 9 C.P. 261, per Keating J. at p. 266.

[cdxc][1959] S.A.S.R. 229.

[cdxci] [1970] 2 Q.B. 463 at p. 475.

[cdxcii][1970] 2 Q.B. 463.

[cdxciii] (1885) 16 Q.B.D. 231.

[cdxciv][1864] EngR 788; (1864) 18 C.B. (N.S.) 72; 144 E.R. 357 at pp. 370-371.

[cdxcv][1870] UKLawRpCP 69; (1870) L.R. 6 C.P. 312, per Brett J. at p. 314.