Review Pursuant to Constitution s155(2)(b); Ginson Goheyu Saonu v Bob Dadae and The Electoral Commission of Papua New Guinea (2004) SC763

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Gavara–Nanu J, Davani J
• Judgment Date: 01 October 2004
• Court: Supreme Court
• Citation: (2004) SC763
• Docket Number: SCR No 26 of 2003
• Year: 2004
• Judgement Number: SC763

Full Title: SCR No 26 of 2003; Review Pursuant to Constitution s155(2)(b); Ginson Goheyu Saonu v Bob Dadae and The Electoral Commission of Papua New Guinea (2004) SC763

Supreme Court: Sevua J, Gavara–Nanu J, Davani J

Judgment Delivered: 1 October 2004

PAPUA NEW GUINEA[Supreme Court of Justice]SCR 26 of 2003REVIEW PURSUANT TO CONSTITUTION s.155 (2) (b)BETWEENGINSON GOHEYU SAONUApplicantANDBOB DADAEFirst RespondentANDELECTORAL COMMISSION OF PAPUA NEW GUINEASecond Respondent

Waigani : Sevua, Gavara-Nanu & Davani, JJ2003 : 1st October2004 : 1st October

ELECTION – Practice and procedure – Parliamentary elections – Election petition – Address - Whether an election petition addressed to the respondents instead of the National Court comply with s.206 of the Organic Law on National & Local Level Government Elections – Whether s.206 is a strict or requisite requirement as s.208.Whether a petition addressed to the respondents is incompetent.Organic Law on National & Local-Level Government Elections; ss 206, 208, 210.Cases cited:Mathias Ijape v. Bire Kimisopa and Electoral Commission; unreported N.2344, 6th March 2003.Ginson Saonu v. Bob Dadae and Electoral Commission; unreported and unnumbered, (EP 15 of 2002), 2nd April 2003.Masket Iangalio v. Yangakun Miki Kaeok and Electoral Commission (EP68 of 2002) and Rimbink Pato v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeok; (EP 65 of 2002), unreported and unnumbered, 16th June 2003.Herowa Agiwa v. The Electoral Commission and Benias Peri; unreported, (OS 29 of 2003) 18th February 2003.The Independent State of Papua New Guinea v. Zachary Gelu and Manoburn Earthmoving Limited, unreported, N.2322, 13th December 2002.Jimson Sauk v. Don Pomb Polye and Electoral Commission; unreported and unnumbered, (EP 3 of 2002) 23rd May 2003G. Sheppard with H. Leahy for ApplicantA. Manase with T. Dawidi for First RespondentR. William for Second Respondent1st October, 2004

BY THE COURT : This is an application for review pursuant to Section 155 (2) (b) of the Constitution relating to the election of the first respondent as the elected Member of Parliament for the Kabwum Open Electorate in Morobe Province during the 2002 National Elections.

The applicant challenged the return of the first respondent in EP15 of 2002. The petition was heard by Salika, J in Lae on 2nd April 2003. His Honour dismissed the petition and ordered that the applicant pay the respondents’ costs. The basis for dismissing the petition was that, it was not “addressed to” the National Court as required by s.206 of the Organic Law on National and Local Level Government Elections (hereinafter the Organic Law). There are six (6) grounds for review.

1. The learned judge erred in law and in fact in dismissing the petition by finding that the petition was not properly addressed to the National Court by reference to Section 206 of the Organic Law on National and Local Level Government Elections.

2. The learned judge in his finding failed to consider that:

(a) The form of the Petition that was filed in the National Court at Waigani contained backing sheets, which were sufficiently addressed to be in the National Court.

3. The learned judge in making the findings and conclusions, in paragraph 1 failed to properly apply:-

(b) Section 217 of the Organic Law, when Section 208 (a)

deals with the legal form technicalities.

(c) The learned judge failed to read in conjunction with

Section 217, Section 158 and Schedule 1.5 of the

Constitution and apply a fair and liberal meaning of the

law.

4. The learned judge ought to have considered that Section 217 of the Organic Law is not applicable to the form of the Petition and therefore ought not to have allowed the First Respondent’s objection on that basis.

5. Circumstances warranting the review.

The Organic Law on National Elections makes the decision of the National Court final. The only avenue available is the review procedure under Section 155 (2) (b) of the Constitution.

The applicant seeks the following orders:-

1. That the decision of the learned Justice Salika be quashed.

2. That the Petition be reinstated.

3. That all the grounds of Petition proceed to the substantive trial.

4. That the applicant has his costs in the National Court and of this application.

The decision of Salika, J followed that of Kandakasi, J in EP 4 of 2002: Mathias Ijape v. Bire Kimisopa and the Electoral Commission, unreported, N.2344, 6th March 2003. In that case, the trial Judge found that the petition was not properly before the National Court because it had been addressed to Mr. Kimisopa and the Electoral Commission instead of the National Court as prescribed by s.206 of the Organic Law. Therefore the Court did not have before it, a petition that was addressed or directed to it for a proper hearing and determination. The Court therefore found that the petition was incompetent and accordingly dismissed it.

The Organic Law on National and Local Level Government Elections sets out Section 206 as follows:-

206. METHOD OF DISPUTING RETURNS

The validity of an election or return may

be disputed by petition addressed to the

National Court and not otherwise.

In dealing with this issue in EP15 of 2002, Salika, J agreed with Kandakasi, J in Ijape v. Kimisopa and the Electoral Commission (supra) that, where a petition is not addressed to the National Court, there is effectively no petition. Salika, J further held that, by addressing the petition to the National Court which is the only Court that has the power to deal with National Election Petitions, the Petitioner asks the National Court to invoke its jurisdiction and powers to deal with the petition. Bob Dadae and the Electoral Commission had no powers to be invoked to deal with a petition. They are respondents. They cannot do anything other than defend themselves from any allegations that may be made by the petitioner against them. These matters are alluded to on pages 4 and 5 of the Court’s judgment.

With respect, we consider that these statements amounted to errors of fact and law. Firstly, the petition itself, though addressed “To: Bob Dadae And To: The Electoral Commission”, did not ask that they exercise their power to deal with EP15 of 2002. They have no power to exercise. This is an error of fact because nowhere in the petition is there a request by the applicant to the respondents to exercise a power.

In fact, leaving aside the address issue for the moment, the Petition states that it is the petition of the applicant who disputes the validity of the election for the Kabwum Open Electorate in the 2002 General Elections. Then the applicant sets out the background of the petition and then goes on to plead the allegations he relied on to invalidate the election. There is nothing at all in the petition that the applicant had asked the respondents to exercise a power. What power? It is clearly an erroneous statement of fact that the trial Judge had found that the respondents are asked by the applicant to invoke their powers to deal with his petition. Of course, we agree with the trial Judge that the respondents have no power to exercise. However, we find that as a matter of fact, he erred in finding that the applicant had asked the respondents to invoke their power to deal with the petition.

The point to note here is that the Organic Law sets out the powers of the Court in Section 212. The Court in s.212 is the National Court and the Organic Law empowers the National Court to do any of the things enumerated under s.212 (1). There is nothing in that provision which refers to any power to be exercised by a respondent or the respondents in this case for that matter. Accordingly, we find that the trial Judge erred in fact and in law in implying that the applicant, in his petition, EP 15 of 2002, was seeking the respondents to exercise their powers.

In respect of the issue of address to the National Court, the trial Judge said he did not consider the words, “In the National Court of Justice at Waigani, Papua New Guinea,” to be significant for the purpose of addressing the petition to the National Court. He considered that the significant part for the purpose of addressing a petition is the part that reads:

“TO : Bob Dadae

First Respondent

AND TO: The Electoral Commission of Papua New Guinea

Second Respondent”

This is the part he said, that must be specifically addressed to the National Court, failing which the validity of the petition may be raised.

For these reasons, the trial Judge said he reached the same conclusion as Kandakasi, J did in Ijape v. Kimisopa and the Electoral Commission (supra). Accordingly, the trial Judge held that the petition was incompetent as it was not properly before the Court and therefore dismissed it.

We wish to allude briefly to Ijape’s case because the trial Judge in the petition, the subject of this review, had followed the decision in Ijape’s case. In Ijape’s case, the trial Judge, after breaking down Section 206 of the Organic Law into parts, analysed it in the following manner. The first part creates the right to dispute an election or return. The second describes the method to be used, that is, by way of a...