In the Matter of the Organic Law on National Elections and Disputed Returns for the Kairuku–Hiri Open Electorate; Hugo Berghuser, Nicholas Koae Auo, Arere Hitolo and Vovovi Selu v Joseph Aoae [1982] PNGLR 379

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Andrew J
• Judgment Date: 19 November 1982
• Citation: [1982] PNGLR 379
• Docket Number: Supreme Court Reference No 5 of 1982
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC238

Full Title: Supreme Court Reference No 5 of 1982; In the Matter of the Organic Law on National Elections and Disputed Returns for the Kairuku–Hiri Open Electorate; Hugo Berghuser, Nicholas Koae Auo, Arere Hitolo and Vovovi Selu v Joseph Aoae [1982] PNGLR 379

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 19 November 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 5 OF 1982 IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND DISPUTED RETURNS FOR THE KAIRUKU-HIRI OPEN ELECTORATE HUGO BERGHUSER, NICHOLAS KOAE AUO, ARERE HITOLO, VOVOVI SELU

V

JOSEPH AOAE

Waigani

Kidu CJ Kapi DCJ Andrew J

19 November 1982

PARLIAMENT — Elections — Disputed election petition — Petitions — Whether joint petitions permitted — Organic Law on National Elections, ss. 208, 209 — Constitution, s. 185, Sch. 1.8.

PARLIAMENT — Elections — Disputed election petition — Petitions — Deposit required — Liability for on individual petitioner — Organic Law on National Elections, s. 209.

PRACTICE AND PROCEDURE — Supreme Court — Reference under s. 18 of Constitution — Not to be made on assumed facts — Constitution, s. 18.

A petition disputing the validity of an election or return may not be brought to the National Court by joint petitioners, but must be brought by each and every interested petitioner separately and each must pay the K200 deposit.

A reference under s. 18 of the Constitution cannot be made on assumed or hypothetical facts.

Cases Cited

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Constitutional Reference No. 2 of 1978; In re The Corrective Institutions Act [1978] P.N.G.L.R. 404.

S.C.R. No. 4 of 1982; Re petition of Delba Biri [1982] P.N.G.L.R. 342.

Reference

This was a reference under s. 18 of the Constitution to the Supreme Court of three questions, set out fully in the fourth paragraph of the judgment hereunder, which questions arose during the hearing of a disputed election petition before the National Court.

Counsel

P. Donigi, for the petitioners.

J. Thirwall, for the respondent.

J. Everingham, for the Electoral Commission.

Cur. adv. vult.

19 November 1982

KIDU CJ KAPI DCJ ANDREW J: A petition has been filed against the election result of Kairuku-Hiri Open Electorate.

The four petitioners are unsuccessful candidates at the National Elections and they all joined in a single petition. At the filing of the petition in the Registry of the National Court, the petitioners deposited a sum of K200 as required by s. 209 of the Organic Law on National Elections. This deposit is evidenced by the National Court Registry receipt No. 496 dated 9th July, 1982.

At the hearing of the petition on 27th September, 1982, counsel for the Electoral Commissioner raised two preliminary points. As these points related to questions of the interpretation of a constitutional law, the National Court was bound to refer the question under s. 18 (2) of the Constitution.

The following questions were referred:

1. May a petition be brought to the National Court by joint petitioners or must a petition be brought by each and every interested petitioner separately?

2. If the answer to Q.1 affirms joint petitions, does s. 209 of the Organic Law on National Elections require a deposit to be paid by each petitioner who is a party to a joint petition?

3. If the answer to Q.2 requires each petitioner to a petition to pay a deposit, can the National Court then order payments by petitioners who have not so complied with s. 209 of the Organic Law on National Elections or alternatively order withdrawal of those petitioners who do not wish to so comply?

QUESTION 1

What does the law say on this particular issue? The law to be applied is the Organic Law on National Elections. This is an Organic Law in accordance with s. 126 (7) (d) of the Constitution. The law applicable to this issue is therefore to be found in the Organic Law and any regulations that may be made under it: See S.C.R. No. 4 of 1982; Re petition of Delba Biri [1982] P.N.G.L.R. 342.

The relevant provision to be considered is s. 208 of the Organic Law. It is in the following terms:

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 within two months after the declaration of the result of the election in accordance with s. 176 (1) (a).

It is clear that the terms of this provision specify the essential requirements of each and every petition filed. A petition filed in accordance with this provision shall be signed by only one person, either by a candidate at the election or a person who was qualified to vote at the election, see s. 208 (c). This interpretation is strengthened when read in the light of ss. 208 (b) and 209 of the Organic Law....