and in re: A Disputed Return in a General Election for the West New Britain Provincial Electorate in the 1997 General Elections; Greg Mongi v Bernard Vogae and The Electoral Commission (1997) N1635

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 24 October 1997
• Court: National Court
• Docket Number: In re The Organic Law on National and Local-level Government Elections
• Citation: (1997) N1635
• Year: 1997
• Judgement Number: N1635

Full Title: In re The Organic Law on National and Local-level Government Elections; and in re: A Disputed Return in a General Election for the West New Britain Provincial Electorate in the 1997 General Elections; Greg Mongi v Bernard Vogae and The Electoral Commission (1997) N1635

National Court: Injia J

Judgment Delivered: 24 October 1997

N1635

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 49 OF 1997

IN RE: THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN RE: A DISPUTED RETURN IN A GENERAL ELECTION FOR THE WEST NEW BRITAIN PROVINCIAL ELECTORATE IN THE 1997 GENERAL ELECTIONS

BETWEEN

GREG MONGI — PETITIONER

AND

BERNARD VOGAE — FIRST RESPONDENT

AND

THE ELECTORAL COMMISSION — SECOND RESPONDENT

Waigani

Injia J

21 October 1997

24 October 1997

Counsel

J Sirigoi for the Petitioner

G Manda for the First Respondent

J Nonggorr for the Second Respondent

24 October 1997

INJIA J: The respondents by separate motions apply to dismiss the election petition filed pursuant to s. 206 of the Organic Law on National and Local-level Government Elections No. 3 of 1997 (hereinafter abbreviated OLNE) on 8 August 1997. The applications are based on two grounds namely: (1) that the Petition fails to comply with OLNE s. 208 (a) in that the petition does not set out sufficient facts to support the grounds of bribery and errors or omissions; (2) that the petition fails to comply with s. 208 (b) in that the petition does not set out the correct relief the petitioner is entitled to seek under OLNE, s. 215 (1). I will deal with the latter ground first. If I decide to dismiss the petition on this ground alone, it may become unnecessary to decide the first ground.

The provisions of the OLNE relevant for the purpose of this exercise are s. 208 (a) & (b) and s. 210 but for completeness sake I set out Ss. 208, 209 & 210 in full:

"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."

The principles relating to the construction and application of the above provisions are well settled in this jurisdiction. An election petition must strictly comply with the mandatory requirements of s. 208 and no petition can proceed to a substantive (evidentiary) hearing unless each and every requirement in s. 208 is strictly complied with. Failure to comply with s. 208 can result in an election petition being struckout or dismissed at a preliminary stage of the proceedings: see Biri v Ninkama [1982] PNGLR 342; Holloway v Ivarato [1988] PNGLR 99, SC Rev. No. 45 of 1994 re: William Elaip Wii, Unreported Supreme Court judgment dated 26 July 1994. The decision in Re William Wii is an unnumbered decision which means the decision was not published or circulated outside of the judiciary.

The principles in relation to s. 208 (b) specifically were settled by the Supreme Court in Re William Wii. In that case, the Petitioner, Mr Michael Mel, filed a petition disputing the election of Mr Wii as the member for the Aglimp South Whagi open electorate in the Western Highlands Province in the 1992 general elections. The petition contained allegations of bribery committed by Mr Wii. These allegations fell under OLNE, s. 215 (1) which provided that "If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate shall be declared void". The relief set out in the petition were inter alia, an order "that the First Respondent was not duly elected" and "that the election for the Aglimp — South Whagi Open electorate is null and void". After conducting a substantive evidentiary hearing, the National Court found the allegations of bribery made...