Malcolm Smith Kela v Peti Lafanama and The Electoral Commission [1997] PNGLR 151

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 14 October 1997
• Court: National Court
• Docket Number: In the Matter of the Organic Law on National and Local–level Government Elections No 3 of 1997 and In the Matter of a Disputed Return in a General Election for The Eastern Highlands Provincial Electorate
• Citation: [1997] PNGLR 151
• Year: 1997
• Judgement Number: N1633

Full Title: In the Matter of the Organic Law on National and Local-level Government Elections No 3 of 1997 and In the Matter of a Disputed Return in a General Election for The Eastern Highlands Provincial Electorate; Malcolm Smith Kela v Peti Lafanama and The Electoral Commission [1997] PNGLR 151

National Court: Injia J

Judgment Delivered: 14 October 1997

N1633

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 1997

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS NO 3 OF 1997

AND

IN THE MATTER OF A DISPUTED RETURN IN A GENERAL ELECTION FOR THE EASTERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN

MALCOLM SMITH KELA — PETITIONER

AND

PETI LAFANAMA — FIRST RESPONDENT

AND

THE ELECTORAL COMMISSION — SECOND RESPONDENT

Waigani

Injia J

13-14 October 1997

ELECTIONS — Parliament — Petition disputing election — Application to strike out — Failure to comply with "attestation" and "address" requirement of s. 208 (d) of Organic Law on National and Local Level Government Elections — Failure to sign petition by attesting witnesses — Failure to provide adequate addresses of witnesses — Petitioner's obligation to strictly comply with requirements of s. 208 (d) on face of Petition — Whether material defects on face of petition may be remedied from assertions from the bar table by counsels or parties — Petition struck out — Organic law on National and Local-level Government Elections No. 3 of 1997, s. 208 (d).

Cases Cited

Papol v Temu [1981] PNGLR 178

Biri v Ninkama [1982] PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Agonia v Karo [1992] PNGLR 463

Badui v Philemon [1992] PNGLR 451

Karo v Kidu N1626 [1997]

Counsel

Ms V Styllinou for the Petitioner

Mr N Tenige for the 1st Respondent

Mr G Shepherd for the 2nd Respondent

14 October 1997

INJIA J: The respondents apply to strike out or dismiss the Petition filed in the National Court Registry at Goroka on 8 August, 1997 pursuant to s. 206 of the Organic Law on National and Local-level Government Elections No. 3 of 1997 (hereinafter abbreviated OLNE). The ground in support of the application, inter alia, is that the two witnesses attesting the Petition pursuant to OLNE s. 208 (d) did not sign on the Petition and did not provide their full addresses.

The Petition disputes the election of the First Respondent as the member for the Eastern Highlands Provincial Electorate in the National Parliament. On the last two pages of the Petition, the particulars provided pursuant to OLNE s. 208 (d) are as follows:

"ATTESTED BY:

We the under signed attest to the Petition herein made by Malcolm Smith Kela, a businessman of PO Box 342, Goroka, EHP.

Name: Simon Parak

Address: C/- PO Box 996

Occupation: Administration Clerk

Name: Raphael Mae

Address: C/- PO Box 662

Occupation: Mechanic"

OLNE, s. 208 (d) provides that "A Petition shall...be attested by the witnesses whose occupations and addresses are stated".

In the Petition, the names, addresses and occupation of the two witnesses are in handwritten print. Counsels for the respondents submit that a signature is an intergral part or form of attestation and these two witnesses simply have not signed the petition. They rely on the principles enunciated by the Supreme Court in Biri v Ninkama [1982] PNGLR 342 and decisions of the National Court in Badui v Philemon [1992] PNGLR 451 and Papol v Temu [1981] PNGLR 178 which was approved by the Supreme Court in Biri v Ninkama, supra. All of these cases say that the requirements of s. 208 (d) is mandatory and they must be strictly complied with. Failure to do so can result in the Petition being dismissed before a evidentiary hearing of the substantive petition, under OLNE, s. 210. Counsel for the Petitioner submits that the handwritten names of the two witnesses appearing on the petition is a form of their respective signatures and...