Charles Luta Miru v David Basua, Yapina Mango and Electoral Commission (1997) N1628

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 14 October 1997
• Court: National Court
• Docket Number: In The Matter of The Organic Law on National Elections and In The Matter of The Disputed Returns for The Kagua–Erave Open Electorate
• Citation: (1997) N1628
• Year: 1997
• Judgement Number: N1628

Full Title: In The Matter of The Organic Law on National Elections and In The Matter of The Disputed Returns for The Kagua-Erave Open Electorate; Charles Luta Miru v David Basua, Yapina Mango and Electoral Commission (1997) N1628

National Court: Sawong J

Judgment Delivered: 14 October 1997

N1628

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 16 OF 1997

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND

IN THE MATTER OF THE DISPUTED RETURNS FOR THE KAGUA-ERAVE OPEN ELECTORATE

AND

CHARLES LUTA MIRU — PETITIONER

AND

DAVID BASUA — 1ST RESPONDENT

AND

YAPINA MANGO — 2ND RESPONDENT

AND

ELECTORAL COMMISSION — 3RD RESPONDENT

Waigani

Sawong J

7 October 1997

14 October 1997

GENERAL ELECTIONS — National Parliament — Petition disputing election return — Grounds of Petition — undue influence — attempted bribery — illegal acts — errors and or omissions by Electoral officials — impersonation — double voting

APPLICATION TO DISMISS PETITION — grounds of application — no facts pleaded — insufficient material facts pleaded — Application to dismiss Petition — witness failing to attest properly and or describing his occupation as "villager" — S. 208 (d) of Organic Law.

Counsel

Mr Nandi for the Petitioner

Mr Kuimb for the 1st Respondent

Mr Steven for the 2nd Respondent

DECISION

14 October 1997

SAWONG J: The First, Second and the Third Respondents seek to have the petition dismissed either in the whole or some parts of it.

The respondents' application is on the basis that the petition does not comply with the requirements of S. 208 (a) and (d) of the Organic Law on National and Local Level Government Elections ("the Organic Law").

There are three basic ground upon which the Petitioner seeks to invalidate the election results and the return of the First Respondent as member for the Kagua-Erave Open Electorate.

The first lot of grounds are set out in paragraphs 1.1 to 1.7 inclusive. The allegation in these paragraphs allege undue influences. The next ground is based on alleged act of attempted bribery. This is set out in paragraph 2 of the Petition. The last ground consists of various allegations of illegal acts, errors or omissions committed by the Second Respondent and or by the officials of the Third Respondent.

THE LAW

There is no dispute between counsel as to the proper principles of law to be applied. There is no dispute that there must be strict compliance with each and every requirement under S. 208 of the Organic Law. That is well established law. See Biri v Ninkama [1982] PNGLR 342, Holloway v Ivarato [1988] PNGLR 99. The failure of a petition in not strictly complying with the requisites under S. 208 of the Organic Law will be fatal to the Petitioner. In such a case either the whole or any offending part of the petition will be dismissed.

The first ground of the challenge by the second and third respondents is that a witness to the petition has failed to adequately attest to the petition by describing his occupation as "villager". Thus it has been submitted that the petitioner has failed to adequately comply with S. 208 (d) of the Organic Law.

The law on this issue is quite trite. A petition disputing the validity of an election must comply strictly with each and every requisite of S. 208 of the Organic Law. See Delba Biri v Bill Ninkama [1982] PNGLR 324, Badui v Philemon [1992] PNGLR. The respondents (in particular the second and third respondents) have argued that the term "villager" as used by the witness Yatu Alo to describe his occupation does not comply with the requirement of S. 208 (d). It has been submitted that this is so because the term "villager" does not describe sufficiently what the witness does for a living.

Counsel for the Petitioner concede that the law is quite settled, in that an election petition must comply strictly with each and every element of S. 208 of the Organic Law. In so far as this issue is concerned, he has submitted that the term "villager" was sufficient to describe the witness's occupation. He submits that, in any even it is a minor point, which is of no significance. He submitted that the petition should not be struck out on this minor and insignifical point. He relied on SCR NO. 14 of 1992, In the Application of Erova Agiwa [1993] PNGLR 136.

In that case, it was argued in the National Court that, the witness had failed to adequately attest to the petition by describing his occupation as "self employed" and therefore the petitioner had failed to comply with S. 208 of the Organic Law.

The National Court refused to strike out the petition. The Applicant applied to the Supreme Court on that particular aspect. The Court said the application was without merit. The Court at p. 138 said:

"In our judgement, the application has not merit. There is no dispute that there must be strict compliance with S. 208 of the Organic Law. That is well established law: See SCR 4 of 1982 Biri v Ninkama [1982] PNGLR 342. That principle is not being challenged. The only issue is whether "self employed" is an adequate description of the occupation of a witness to a petition. It is a very minor point which has nothing to do with the merits of the matter."

I would adopt and apply the above passage to the present issue. I am of the view that in this case the term, "villager" as used by a witness to describe his occupation is minor and insignificant point which has nothing to do with the merit of the petition. I consider the application and submission to be frivolous and without substance. I consider that the term "villager" is sufficient or adequate description of the occupation of the witness. It follows that this submission is rejected.

The Petitioner has withdrawn the allegation of attempted bribery as set out in paragraph 2 of the petition. Consequently, the allegations in that paragraph is dismissed.

I now deal with the respective submission in relation to non-compliance of S. 208 (a) of the Organic Law. The respondents submit that the allegations contained in paragraphs 1.1 to 1.7 inclusive be struck out for failing to comply with the requirements of S. 208 (a) of the Organic Law. They submit that relevant material facts have not been stated. I will deal with individual paragraphs in the order that have been adopted by the parties in their respective written submissions.

The allegations in those paragraphs allege essentially the offence of undue influence, impersonation and double voting. Undue influence, impersonation and double voting are all Criminal Offences: See S. 99, 100 and 102 of the Criminal Code Act, Ch. 262. Section 102 reads:

"102. UNDUE INFLUENCE

A person who:

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector:

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year." (underlining is mine).

The offence was judicially considered in Re. Menyamya Open Electoral [1977] PNGLR 298. The elements of the offence are set out in the judgement of Frost, CJ (as he then was) at p. 303. His Honour said:

"It seems that the elements of s. 102 (a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was 'in order to induce (an elector) to vote or refrain from voting at an election...'

Does this refer to the question whether the elector votes or does not vote or does it refer to the manner of voting? As will be seen it is unnecessary for me to decide this point, but I am inclined to the view that an intention to influence the elector or vote in favour of a candidate or to refrain from voting against him, would fall within the section...

Turning to s.102 (b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it."

Thus it can be seen that the section prohibits use of force or threats to electors in an election. Whether those force or threats are made or used on an elector — defined as any person entitled to vote at any election — the corrupt practice are those aimed at those force or threats used or...