John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 29 September 1997
• Court: National Court
• Docket Number: In the Matter of the Election for the Karimui-Nomane Electorate
• Citation: [1997] PNGLR 645
• Year: 1997
• Judgement Number: N1618

Full Title: In the Matter of the Election for the Karimui-Nomane Electorate; John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645

National Court: Woods J

Judgment Delivered: 29 September 1997

N1618

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 24 OF 1997

IN THE MATTER OF THE ELECTION FOR THE KARIMUI-NOMANE ELECTORATE

JOHN WEMIN MILI — PETITIONER

SIMON PHILIP GAIMA — FIRST RESPONDENT

ELECTORAL COMMISSION OF PAPUA NEW GUINEA — SECOND RESPONDENT

Goroka

Woods J

18 September 1997

29 September 1997

ELECTION PETITION — application to strike out Petition — compliance with S 208 of Organic Law on National and Local-level Government Elections — pleading facts on which petition grounded — pleading the appropriate relief.

Counsel

S Wagaro for the Petitioner

J Nonggorr for the First Respondent

W Neil for the Second Respondent

29 September 1997

WOODS J: This is a Petition disputing the validity of the Election for the Karimui-Nomane Open seat in the Chimbu Province in the 1997 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 section 208 of the Organic Law on National and Local-level Government Elections.

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, and the case Agonia v Karo & Electoral Commission [1992] PNGLR 463. And the principles outlined and highlighted in those cases are guided by the fundamental principles outlined by the Supreme Court in the Case Biri v Ninkama [1982] PNGLR 342 which I will repeat here. This Court in acting under the Organic Law as what is often called a Court of Dispute Returns is not an open forum for unspecified complaints where after all parties have aired their dissatisfaction the Court sifts the complaints and report whether on a balance of probabilities the election can be considered satisfactory or whether a new election should be held. A Court of Disputed Returns has the duty of earing and determining only those petitions which challenge an election by specific charges that, if proved, will result in an election being set aside. As the Supreme Court said:

The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with S.208. It is not difficult to see why. An election petition is not an ordinary cause…it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expressing of the will of the majority. In our opinion it is beyond argument that if a petition does not comply with all of the requirements of S 208 of the Organic Law then there can be no proceedings on the petition because of S 210.

So what are the objections here.

There is some initial difficulty in that the Petition itself seems to have been drafted by the applicant himself, not by a lawyer. This of course is in line with the suggestion in the Organic Law that Petitions do not necessarily need the expertise of lawyers, see Section 222 (1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor. Since the Petitioner drafted and filed the petition he has obtained the services of a lawyer so now before me all parties are represented by counsel and leave has been given. However Section 222 of the Organic Law works two ways. Whilst there should not be overdue emphasis on legalities and pleadings and strict rules of law, then also the petition itself must clearly put all parties on appropriate notice of what the complaint is all about, thus the facts on which the allegations are grounded must be clearly expressed so there is no need for complicated applications for particulars.

I will now consider the various allegations made in the Petition and consider the objections raised. Even if there may be some clumsiness in the drafting of the allegations and the petition generally, because of the implications of section 222, clumsiness itself does not mean the petition is bad, so long as the allegations comply with the Organic Law and the principles enunciated by the Court and clearly set out the facts necessary to establish offences or irregularities then a petition must be heard.

Allegation A is not really allegations to void an election. They are more background statements. Although A 3 seems to go a bit further and appears to be an...