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; Dr Bob Tawa Danaya v Ati Wobiro And Electoral Commission (2013) SC1292

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Sawong J, Poole J
• Judgment Date: 04 November 2013
• Court: Supreme Court
• Citation: (2013) SC1292
• Docket Number: SC REV (EP) NO 24 OF 2013
• Year: 2013
• Judgement Number: SC1292

Full Title: SC REV (EP) NO 24 OF 2013; 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; Dr Bob Tawa Danaya v Ati Wobiro And Electoral Commission (2013) SC1292

Supreme Court: Cannings J, Sawong J, Poole J

Judgment Delivered: 4 November 2013

SC1292

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 24 OF 2013

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

DR BOB TAWA DANAYA

Applicant

V

ATI WOBIRO

First Respondent

ELECTORAL COMMISSION

Second Respondent

Waigani: Cannings J, Sawong J, Poole J

2013: 29 October, 4 November

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.

Held:

(1) The attesting witness’s description of his occupation was a sufficient statement of his occupation.

(2) There was no evidence before the National Court to warrant the conclusion that it was an incorrect factual statement.

(3) 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.

(4) Even if the statement could be determined in the absence of evidence to be clearly incorrect, the requirements of Section 208(d) will only be breached if the misstatement of occupation substantially defeats the purpose of Section 208(d), which is to enable the attesting witness to be easily located so that he can vouch for the genuineness of the petition.

(5) The application for review was granted, the decision of the National Court quashed, the petition reinstated and remitted to the National Court.

Cases cited

The following cases are cited in the judgment:

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

APPLICATION

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.

Counsel

A Furigi, for the applicant

I Molloy & G Gileng, for the first respondent

M Kuma, for the second respondent

4th November, 2013

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).

REASONING OF NATIONAL COURT

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.

3. One of the attesting witnesses, Sanaka Kela, stated his occupation as:

Second Secretary to the office of the former Governor Western Province.

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.

WAS SECTION 208(d) BREACHED?

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...