Joel Pepa Paua v Robert Timo Ngale and Electoral Commissioner [1992] PNGLR 563

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 22 October 1992
• Court: National Court
• Citation: [1992] PNGLR 563
• Year: 1992
• Judgement Number: N1119

Full Title: Joel Pepa Paua v Robert Timo Ngale and Electoral Commissioner [1992] PNGLR 563

National Court: Woods J

Judgment Delivered: 22 October 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOEL PEPA PAUA

V

ROBERT TIMO NGALE AND ELECTORAL COMMISSIONER

Mount Hagen

Woods J

22 October 1992

PARLIAMENT — Elections — Disputed elections petition — Practice and procedure — Form of petition — Statutory requirements — "Facts" relied upon to invalidate petition — Errors and omissions — Failure to plead material facts — Organic Law on National Elections Ch 1, s 208.

Facts

The respondents moved the Court to strike out the petition by the applicant disputing the validity of the election for the Mul Baiyer Open seat in the 1992 National Elections on the basis that the petition does not comply with the provisions of s 208 of the Organic Law on National Elections (Ch 1) that reads:

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

Held

1. Strict compliance with the Organic Law on National Elections Ch 1 is required in the filing and hearing of election petitions. Clear evidence of errors and omissions are required. The Court cannot merely draw possible conclusions or infer possible situations and assume that there may be a possibility of errors and/or omissions: Laina v Tindiwi (1991) unreported N979 referred to.

2. If the main trust of the petition is errors and omissions of electoral officials then the law is quite clear that such can only vitiate the election if it is established before the Court that the result of the election is likely to have been affected and that the candidate is considered not to be duly elected.

3. In the circumstances of the case, the petitioner failed to sufficiently and adequately plead material facts which if proved, would have affected the result of the election so as to vitiate the election. Petition dismissed accordingly.

Obiter: "Too often the time of the Court has been wasted when clear evidence has not been presented and the parties have asked the Court to infer more than (what) the evidence shows" per Woods J at p 565.

Cases Cited

Holloway v Ivarato [1988] PNGLR 99.

Laina v Tindiwi (1991) unreported N979.

Counsel

J Wal, for the petitioner.

S Norum, for the first respondent.

R Bray, for the second respondent.

22 October 1992

WOODS J: This is a petition disputing the validity of the election for the Mul Baiyer Open seat in the Western Highlands Province in the 1992 National Elections.

The respondents have moved the Court to strike out the petition on the basis that the petition does not comply with the provisions of s 208 of the Organic Law on National Elections Ch 1.

Generally the submissions raised by the respondents have been that the various clauses in the petition fail to specify the facts relied on to invalidate the election. As to what facts are required has been determined by the National and Supreme Courts in various cases the main statements being in the case Holloway v Ivarato [1988] PNGLR 99. I will not repeat these statements here but note that I rely on the principles so stated.

Most of the allegations raise questions as to the actions of electoral officials in the conduct of the poll and the counting and the overall impression of the petition, and this is supported by the submissions of the lawyer for the petitioner, that the petitioner initially wants a recount of the votes to be sure that the checking of the votes and the counting of the votes were done properly. So it is not so much clear allegations that there have been omissions and errors by the officials which must invalidate the election, but rather that certain things happened which have raised doubts. I am not so sure that the Court is here just to make everybody happy that the counting was done properly, we are here to consider whether an election should be...