Review Pursuant to Constitution Section 155(2)(b); Paru Aihi v Sir Moi Avei and The Electoral Commission of Papua New Guinea (2003) SC720

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Los J, Sakora J, Injia J, Sawong J
• Judgment Date: 03 July 2003
• Court: Supreme Court
• Citation: (2003) SC720
• Docket Number: SCR 11 of 2003
• Year: 2003
• Judgement Number: SC720

Full Title: SCR 11 of 2003; Review Pursuant to Constitution Section 155(2)(b); Paru Aihi v Sir Moi Avei and The Electoral Commission of Papua New Guinea (2003) SC720

Supreme Court: Amet CJ, Los J, Sakora J, Injia J, Sawong J

Judgment Delivered: 3 July 2003

SC720

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR 11 OF 2003

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)

Between

PARU AIHI

Applicant

And:

SIR MOI AVEI

First Respondent

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

WAIGANI : Amet CJ, Los, Sakora, Injia & Sawong JJ

2003 : 17th June, 3rd July

I. Sherpherd the Applicant.

G. Sheppard for the First Respondent.

D. Kombagle for the Second Respondent.

AMET CJ, LOS, INJIA & SAWONG JJ: The applicant seeks a review of the National Court’s decision to strike out his election petition filed under s. 206 of the Organic Law on National Government and Local-level Government Elections (hereafter referred to as OLNE), for failing to comply with s 208 (d) of the OLNE.

The challenge is mounted on two grounds, namely:- (1) the Court erred in refusing to uphold the applicant’s objection to the late filling and service of the first respondent’s amended notice of objection after the expiry of the time limit set by the Court; and, (2) the Court erred in law in ruling that the requirement of s. 208 (d) of the OLNE.

It is settled that pursuant to s. 210, a Petition must strictly comply with the mandatory requirements of s. 208, before the petition qualifies for a substantive hearing. The requirements in s. 208 are formal and technical procedural requirements, the determination of which is based on the information endorsed on the face of the petition. As Mr Sheppard submitted, a determination of these matters do not involve any discussion and consideration of the merits of the grounds in the petition. The merits of the grounds in a Petition are determined at the substantial hearing only after the petition survives the formal scrutiny under s. 210. At the substantive hearing, the procedural and evidentiary rules in s. 212 and s. 217 apply, in determining the merits of the grounds in a petition. These principles to me are the clear import of the five-man Supreme Court bench decision in Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342. As counsel for the Second Respondent, Mr Kombagle submitted, there is no reason to water down the principles in Delba Biri until that decision is properly re-visited and overruled by a subsequent Supreme Court of equal or greater composition, in an appropriate case. This Court is not invited to perform that task.

All three counsel refer us to two cases in which the meaning of the word “self-employed” and “villager” were raised in the context of the definition of “occupation” in s. 208 (d). In re Herowa Agiwa [1993] PNGLR 136, the issue before the Supreme Court was whether “self-employed” is an adequate description of a witness’ occupation in a petition. The Supreme Court comprising of Woods, Andrew and Sheehan JJ concluded that it was a very minor point which had nothing to do with the merit of the matter, and therefore, they were unable to find an important point of law to be determined which had merits. The application for review was therefore dismissed. In Charles Miru v. David Basua and Ors, unpublished National Court Judgment N1628, the issue before Justice Sawong was whether the term “villager” is sufficient description of the witnesses’ occupation. His Honour adopted the relevant passage from Agiwa’s case and ruled that the term “villager” as used by the witness to describe his occupation was a “minor and insignificant point which has nothing to do with the merit of the petition”. His Honour considered the submissions to be trivial and without substance and dismissed the objection to competency and allowed the petition to proceed to a hearing.

We accept the submission by Mr Kombagle that the Courts in these two cases did not make any attempt to define the word “occupation” or the words “self-employed” and “villager”. We also accept his submission that the requirement in s. 208 (d) is significant and substantial because the Petitioner’s non-compliance with those requirements can determine the fate of the Petition. I also accept Mr Sheppard’s submission that the importance or otherwise of the grounds in a Petition is irrelevant to issues of competency under s. 208. To that extent on the strength of the Supreme Court decision in Biri v. Ninkama, I am of the view that the principles on this point in re Agiwa and Charles Miru’s case should be overruled.

It is accepted by all the parties before us that the approach to be taken is one which I suggested during argument, and that is to first settle the meaning of the term “occupation” in s. 208 (d) and then decide if the word “villager” fits the meaning of “occupation”. The term “occupation” is the word used in the OLNE, a constitutional law provision, which this Court needs to define. The word “villager” is not a Constitutional law provision which requires judicial interpretation.

The learned trial judge considered the meaning of “occupation” and “villager” together as follows:

“Strictly speaking a “villager” is not an occupation. A “villager” simply means someone who lives in a village. An occupation is what one does usually. In PNG a “villager” does so many things. A villager maybe a subsistence gardener or a fisherman. That is he does gardening most of the time or goes fishing most of the time. If he does that then “gardening” becomes his occupation.

“Is the word “villager” sufficient for the purposes of s. 208 (d) of the Organic Law. If the two witnesses are gardeners then they must write “gardener” as their occupation. If they are fisherman in the village and spend most of the time in that activity then they must write “fisherman” as their occupation. If they hunt or spend most of their time hunting then they must write “hunter” as their occupation.

I am aware of what we Papua New Guineans think of a villager. When a person in PNG says he is a villager, we normally presume him to do his own things like gardening, fishing, running a small trade store at his own time. He is a master of his time. A “villager” is usually referred to as someone like that. So what does s. 208 (d) require. In my view s. 208 (d) requires an attesting witness to state what he does even if that person is a villager.

“I appreciate that the purpose for which the attesting witnesses state their addresses and their occupation is so that if they were asked to be located they will be there. I appreciate that but those person must state what they do. To state that they are villagers in my view is not complying with s. 208 (d) of the Organic Law.”

It is the case for the applicant as put by Mr Shepherd that the word “villager” falls into the definition of “occupation”. He heavily relied on the strength of Agiwa’s case and Miru’s case. No attempt was made to define what “occupation” is because it seems to us, the applicant is content with relying on the decisions in those two cases.

Mr Sheppard argued that when the word occupation is given a fair and liberal meaning, as required by Schedule 1.5 of the Constitution, it means one’s trade, business or calling. Reliance was placed on the definition of “occupation” in the Oxford Advanced Learners Dictionary and LB Curzon, the Dictionary of Law. A “villager” he submitted referred to the residential locality where a person comes from and not his calling, trade or business. Mr Kombagle supported Mr Shepherd’s arguments.

We are invited to interpret this word “occupation” in the context of s. 208 (d) but we cannot see why a word as plain as “occupation” requires a legal mind to extrapolate its meaning. Only if the meaning of a word used in a Constitutional provision is in doubt, can the Courts set about the task of interpreting that word using established connons of constitutional interpretation such as applying the fair and liberal meaning (Schedule 1.5 of the Constitution) and ascertaining the purpose, intent and spirit of the provision SCR No. 3 of 1986, Ref by Simbu Provincial Executive [1989] PNGLR 154 and Haiveta v. Wingti [1994] PNGLR 197).

The term “occupation” simply means one’s trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one’s occupation. It cannot mean one’s place of origin such as Western Highlanders or New...