Re Delba Biri; Delba Biri v Bill Gimbogl Ninkama, Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ, Andrew J
• Judgment Date: 05 October 1982
• Court: Supreme Court
• Citation: [1982] PNGLR 342
• Docket Number: Supreme Court Reference No 4 of 1982
• Year: 1982
• Judgement Number: SC235

Full Title: Supreme Court Reference No 4 of 1982; Re Delba Biri; Delba Biri v Bill Gimbogl Ninkama, Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 5 October 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 4 OF 1982

RE DELBA BIRI

PETITIONER

V

BILL GINBOGL NINKAMA

FIRST RESPONDENT

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

SECOND RESPONDENT

BEN BANDE

THIRD RESPONDENT

BONOAN PALUME

FOURTH RESPONDENT

Waigani

Kidu CJ Kapi DCJ Andrew J

29 September 1982

5 October 1982

PARLIAMENT — Elections — Disputed election petition — Form of petition — Compliance with requirements as to form etc. mandatory — Organic Law on National Elections, ss 208Infra p. 343.1, 209, 210Infra p. 345.2, 217.

PARLIAMENT — Elections — Disputed election petition — Practice and procedure on — Amendment of — Statutory time limit for — No amendment outside time limit — Organic Law on National Elections, ss. 2 (2), 208 (e) Infra p. 343.3 Constitution, s. 126 (7) (d), 155 (4), 158 (2), Sch. 1.1, Sch. 1.16.

An election petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.

On the hearing of an election petition under s. 206 of the Organic Law on National Elections, the National Court:

(a) may allow an amendment of a petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections provided that the application for amendment is made within the period of two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on National Elections.

(b) shall not allow and does not have power to allow an amendment of a petition after the period of two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on National Elections.

Cases Cited

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

Clark v. Lowley (1883) 48 L.T. 762.

Crafter v. Webster (1979) 23 S.A.S.R. 61.

Cremer v. Lowles [1896] 1 Q.B. 504.

Ithaca Election Petition; Webb v. Hanlon [1939] Q.S.R. 90.

Manus Provincial Parliamentary Election, In re [1977] P.N.G.L.R. 354.

Mapun Papol v. Antony Temo and the Electoral Commission [1981] P.N.G.L.R. 178.

Maude v. Lowley (1874) L.R. 9 C.P. 165.

Norwich v. Election Petition, Re; Birbeck v. Bullard (1886) 2 T.L.R. 273; L.T. Jo. 253.

Pomio Open Elections, Re (Unreported National Court judgment dated 18th October, 1977).

St. Paul Provincial Election, Re (1913) 25 W.L.R. 377 (Winnipeg L.R.).

Senanayake v. Navaratne [1954] A.C. 640.

Shaw v. Reckitt [1893] 2 Q.B. 59.

Tessier v. Lessard (1914) 29 W.L.R. 646 (Winnipeg L.R.).

Reference

This was a reference to the Supreme Court, pursuant to s. 18 (2) of the Constitution, by the National Court of two questions of law set out in the judgment hereunder, which arose on the hearing of a disputed election petition.

Counsel

P. Sam, for the petitioner.

J. Everingham, for the second respondent.

Cur. adv. vult.

5 October 1982

KIDU CJ KAPI DCJ ANDREW J: This is a reference to the Supreme Court pursuant to s. 18 (2) of the Constitution by the National Court upon the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections (also hereinafter referred to as the Organic Law).

The two questions so referred are as follows:

Question (1):

To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s. 208 of that law.

Question (2):

To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s. 206 of the Organic Law on National Elections permit or allow an amendment of an electoral petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections:

(a) within two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on National Elections; and

(b) after the period of two months following the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on National Elections.

Before turning to a consideration of the questions we think it should be said that where the National Court hears an election petition disputing the validity of an election or return under s. 206 of the Organic Law on National Elections, it is sitting as the National Court and whilst it is commonly referred to as a "Court of Disputed Returns", this title may be misleading for the petition is addressed to the National Court and not otherwise.

QUESTION 1

Section 208 of the Organic Law on National Elections is as follows:

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).

Section 210 is in these terms:

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH

Proceedings shall not be had on a petition unless the requirements of s. 208 and s. 209 are complied with.

In a petition dated 16th July, 1982, and filed in the Registry of the National Court pursuant to s. 208 of the Organic Law an National Elections the petitioner has disputed the validity of the election of the first-named respondent as member for the electorate of Gumine Open. That result had been declared on 28th June, 1982.

There is no dispute that the petition does not contain the occupations of the attesting witnesses as required by s. 208 (d) of the Organic Law.

In Mapun Papol v. Antony Temo and The Electoral Commission [1981] P.N.G.L.R. 178, the National Court had cause to consider whether compliance with an equivalent section to s. 208 (i.e. s. 184 of the Provincial Government (Electoral Provisions) Regulations 1977) was mandatory or not. In that case the petition did not contain the signatures of attesting witnesses. The court there found that the equivalent to s. 210 meant that unless the requirements of the equivalent of s. 208 and s. 209 were complied with, there could be no proceedings in the National Court as a matter of law. The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with.

It may be said that the requirement that a witness's occupation must be stated is not important or that it is not suitable to the circumstances of the country. But the method of disputing an election given by s. 206 and s. 208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra) ).

Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with...