Vagi Mae v Jack Genia and Electoral Commissioner of PNG; Re Abau Open Seat

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 30 August 1992
• Citation: (1992) N1105
• Court: National Court
• Year: 1992
• Judgement Number: N1105

National Court: Sheehan J

Judgment Delivered: 30 August 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. 147 OF 1992

IN THE MATTER OF:

THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND DISPUTED RETURNS FOR THE ABAU OPEN SEAT IN THE ABAU ELECTORATE

BETWEEN:

VAGI MAE

PETITIONER

AND:

JACK GENIA

FIRST RESPONDENT

AND:

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

SECOND RESPONDENT

Waigani

Sheehan J

21 August 1992

30 August 1992

ELECTION PETITION — motion to strike out petition — failure to comply with s 208 of Organic Law on National Elections — failure to supply facts on which petition grounded.

Cases Cited:

The following cases were cited in this judgement.

Thomson v Pokasui (1988) PNGLR 210.

Allan Ebu v Roy Aua Evara (1983) PNGLR 201 at 202.

Biri v Ninkama (1982) PNGLR 324.

Holloway v Ivarato (1988) PNGLR 99.

Bourne v Voeto (1977) PNGLR 298.

Palme v Mel in unreported judgment No. N808.

Counsel:

Mr S. Kemaken for Petitioner

Mr J. Sleight for First Respondent

Mr R. Pato for the Second Respondent

DECISION

SHEEHAN J: The petition before the Court disputes the validity of the Election for the Abau Open seat in the Abau electorate. The first respondent, the successful candidate in the election, has filed a motion to strike out the petition on the basis that the petition does not comply with the provisions of s 208 of the Organic Law on National Elections, in that it fails to specify "the facts relied on to invalidate the election". The Electoral Commissioner, the second respondent supports the motion.

In compliance with sections 211 and 222 of the Act, by consent all parties were represented by counsel.

In hearing petitions under Part XVIII of the Organic Law on National Elections, the National Court has the powers under s 212 and by section 217 is not bound by particular procedure but enjoined to be guided by the substantial merits and good conscience in each case. In particular, procedure in a petition is not fixed according to the National Court Rules, nor do those rules provide parties with procedure for invoking the jurisdiction of the Court of Disputed Returns whether for discovery better particulars or the like. See Thomson v Pokasui (1988) PNGLR 210.

But not withstanding that decision, the fact that the National Court Rules do not apply does not mean that when sitting as a Court of Disputed Returns the Court is inaccessible. An appropriate application touching on the petition, duly served on all parties, may with leave of the Court be considered. The discretion does however always remain with the Court to hear or decline to hear such applications. See Allan Ebu v Roy Aua Evara (1983) PNGLR 201 at 202 which acknowledges that in appropriate circumstances a stage by stage approach to a petition may be adopted.

Mr Sleight, counsel for the first respondent/applicant relied on this in bringing this motion.

There was no objection to the propriety of this motion, and because it is an application aimed, not just at clarifying issues, with the distinct possibility of doing at least that, but also even disposing of the petition, the Court accepted that it was therefore appropriate to hear and deal with it.

Mr Sleight made a detailed submission on the law appropriate to the proper presentation of electoral petitions, and the consequences of failing to comply with the procedure prescribed by the Organic Law on National Elections. I am most grateful to him for his research and accept and adopt the submissions as accurate summary of the law.

The application correctly asserts that all petitions must comply with s 208 of the Organic Law on National Elections which governs the essential requirements of a petition. That section states:

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 at Port Moresby within 40 days after the declaration of the result of the election in accordance with Section 176 (1) (a).

And s 210 goes on to say proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 (which deals with security for costs) are complied with.

There can be no doubt as to the meaning and implications of s 208 because the Supreme Court in Biri v Ninkama (1982) PNGLR 342 Supreme Court in answering the question:

"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?"

Determined that:

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

Section 208 (a) stipulates that particulars of facts must be given. That is, a petition can not just allege grounds in general terms, but must assert the base facts on which the grounds are founded.

Again, just what "facts" are required to be supplied has been determined by the Supreme Court in Holloway v Ivarato (1988) PNGLR 99 where the head note states:

"The "facts" which must be set out under s 208 (a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved".

In that decision Kapi, DCJ enlarges on this at page 101 where he says:

"the grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitutes the grounds upon which election or return may be declared invalid. Setting out the grounds without more does not satisfy the requirements of s 208 (a) of the Organic Law. The facts set out under s 208 (a) of the Organic Law would necessarily indicate the grounds on which a petitioner relies. The facts which must be set out in s 208 (a) of the Organic Law are material or relevant facts which will constitute the ground or grounds upon which an election or return may be invalidated".

"In the setting out the facts there must be sufficient so as to indicate or constitute the...