Albert Karo v Lady Carol Kidu and the Electoral Commission [1997] PNGLR 28

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 09 October 1997
• Court: National Court
• Docket Number: In the matter of the Organic Law on National and Local-level Government Elections 1996 and In the matter of a Disputed Return in a General Election for the Moresby South Open Electorate in the National Capital District
• Citation: [1997] PNGLR 28
• Year: 1997
• Judgement Number: N1626

Full Title: In the matter of the Organic Law on National and Local-level Government Elections 1996 and In the matter of a Disputed Return in a General Election for the Moresby South Open Electorate in the National Capital District; Albert Karo v Lady Carol Kidu and the Electoral Commission [1997] PNGLR 28

National Court: Injia J

Judgment Delivered: 9 October 1997

N1626

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 7 OF 1997

BETWEEN

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS 1996

AND

IN THE MATTER OF A DISPUTED RETURN IN A GENERAL ELECTION FOR THE MORESBY SOUTH OPEN ELECTORATE IN THE NATIONAL CAPITAL DISTRICT

BETWEEN

IN THE MATTER OF ALBERT KARO — PETITIONER

AND

IN THE MATTER OF LADY CAROL KIDU — FIRST RESPONDENT

AND

IN THE MATTER OF THE ELECTORAL COMMISSION — SECOND RESPONDENT

Waigani

Injia J

7 September 1997

9 October 1997

ELECTIONS — Parliament — Petition disputing election — Grounds in a Petition — Allegations of bribery and undue influence — Application to strike out — Failure to comply with S. 208 (a) of the Organic Law on National and Local-Level Government Elections (OLNE) — Whether facts material or relevant — Whether pleading of evidence permitted — OLNE, S. 208 (a).

ELECTIONS — Parliament — Petition disputing election — Attestation of Petition by witness — Address of witness — Provision of work place and postal address only — Whether sufficient compliance with "Address" requirement in OLNE, S. 208 (d).

ELECTIONS — Parliament — Petition disputing election — Allegations of bribery, undue influence, illegal practices, errors and omissions — Application to strike out — Appearance of counsels — Two different Respondents — Electoral Commission and Winning candidate as Respondents — Different counsels appearing for each Respondent — Whether one counsel can represent both Respondents — OLNE, S. 222 (2).

ELECTIONS — Parliament — Petition disputing election — Grounds in a Petition — "Illegal acts" committed by polling officials — Polling officials failed to allow scrutineers into polling area — Whether failure constitutes "Illegal practice" under OLNE, S. 215 or "errors and omission" under OLNE, S. 218.

ELECTION — Parliament — Petition disputing election — Grounds in a Petition — Polling schedule — Variation of — Date not altered but time changed — Whether election open to challenge — OLNE, S. 117.

Cases Cited

Bourne v Voeto [1977] PNGLR 298

Papol v Temo [1981] PNGLR 178

Biri v Ninkama [1982] PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Poia v Valai N 909 (1990)

Badui v Philemon [1992] PNGLR 451

Agonia v Karo [1992] PNGLR 463

Counsel

M Wilson for the Petitioner

R Kubak for the First Respondent

DL Datoana for the Second Respondent

9 October 1997

INJIA J: These proceedings relate to the election of the First Respondent as the new member for the Port Moresby South Open Electorate in the National Parliament on 21 June 1997. In the election, the First Respondent polled 3906 and the Petitioner polled 2266, a difference of 1640 votes. The election was conducted by the Second Respondent.

The two Respondents in this election petition have filed separate motions seeking to strike out various grounds of the Petition for failing to comply with inter alia S. 208 (a) and (d) of the new Organic Law on National and Local-Level Government Elections No. 3 of 1997, (hereinafter abbreviated OLNE), and other relevant provisions of that Law. Before 15 March 1997, the law that prevailed was the Organic Law on National Elections (OLNE). With the passing of the Provincial Government and Local-Level Government reform laws, the OLNE was passed by the National Parliament in March 1997 and it came into force on 9th April 1997. However, the two laws in most respects are similar. For instance, except for a few changes, Part XVIII Division 1 (S. 206-227) of this new Organic Law which relates to disputed elections and returns is almost identical to Part XVIII (S. 206-227) of the old Organic Law.

These motions to strike out the grounds of the Petition are filed in accordance with practice developed by this Court in the past in respect to previous National elections. The National Court has entertained such applications and in some cases struck down election petitions filed under S. 206 as offending the mandatory provisions of OLNE, S. 208. These applications are made by the Respondent (s) at the preliminary stage referred to as "compulsory conference". In the past, many election petition cases have come before the National Court some of which have ended up in the Supreme Court.

The principles relating to the Court's scrutiny of election petitions at a preliminary stage have been settled by the Supreme Court in two cases namely, Biri v Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99. The provisions of OLNE applicable to preliminary applications and considered by the Supreme Court are Ss. 208, 209, 210 and 217 which provide:

"208. REQUISITES OF PETITION

A petition shall:

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

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

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a).

209. DEPOSIT AS SECURITY FOR COSTS

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs.

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH

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

217. REAL JUSTICE TO BE OBSERVED

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."

The Supreme Court in Biri v Ninkama, decided that 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 strictly comply with each and every requirement of S. 208 of that Law" (at p. 346, underlining is mine). At p. 345, the Supreme Court unanimously decided that "all the requirements in S. 208 and 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 proceedings unless S. 208 and S. 209 are complied with. If "a petition does not comply with all the requirements of S. 208, then there can be no proceedings on the petition because of S. 210" (at p. 345). The application of S. 217 is "only relevant when the National Court determines the merits of the case and when dealing with evidence before it as relevant to the merits" (at p. 346), that is, when the substantive petition is heard Section 217 does not apply at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of S. 208.

In Holloway v Ivarato, the Supreme Court considered the meaning of the word "facts" in S. 208 (a). Although the Supreme Court did not refer to the principles enunciated by the Supreme Court in Biri v Ninkama, the Court did interpret S. 208 (a) strictly. Kapi, Dep. CJ with whom Los, J and Hinchliffe, J agreed said at p. 101:

"The facts which must be set out under S. 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated." (My underlining).

A little later at p. 101 His Honour said:

"I conclude that S. 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved." (My underlining).

As to what are sufficient facts, His Honour said at p. 102:

"Setting out grounds without more does not satisfy the requirement of S. 208 (a)... What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."

The Supreme Court's decision in the above two cases have been used by the National Court to strike down election petitions at the preliminary or "Compulsory Conference" stage. To begin with, the Supreme Court in Biri v Ninkama was of the view that the Petition which did not contain the signatures of attesting witnesses failed to comply with s. 208 (d). In Badui v...