Albert Karo v Lady Carol Kidu and the Electoral Commission [1997] PNGLR 28

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 09 October 1997
• Citation: [1997] PNGLR 28
• Docket Number: In the matter of the Organic Law on National and Local–level Government Elections 1996 and In the matter of a Disputed Return in a General Election for the Moresby South Open Electorate in the National Capital District
• Year: 1997

Full Title: In the matter of the Organic Law on National and Local–level Government Elections 1996 and In the matter of a Disputed Return in a General Election for the Moresby South Open Electorate in the National Capital District; Albert Karo v Lady Carol Kidu and the Electoral Commission [1997] PNGLR 28

National Court: Injia J

Judgment Delivered: 9 October 1997

1 Elections—Parliament—Petition disputing election—Grounds in a Petition—Allegations of bribery and undue influence—Application to strike out—Failure to comply with s208(a) of the Organic Law on National and Local–level Government Elections (Organic Law on National Elections)—Whether facts material or relevant—Whether pleading of evidence permitted—Organic Law on National Elections, s208(a)

2 Elections—Parliament—Petition disputing election—Attestation of Petition by witness—Address of witness—Provision of work place and postal address only—Whether sufficient compliance with "Address" requirement in Organic Law on National Elections, s208(d).

3 Elections—Parliament—Petition disputing election—Allegations of bribery, undue influence, illegal practices, errors and omissions—Application to strike out—Appearance of counsels—Two different Respondents—Electoral Commission and Winning candidate as Respondents—Different counsels appearing for each Respondent—Whether one counsel can represent both Respondents—Organic Law on National Elections, s222(2)

4 Elections—Parliament—Petition disputing election—Grounds in a Petition—"Illegal acts" committed by polling officials—Polling officials failed to allow scrutineers into polling area—Whether failure constitutes "Illegal practice" under Organic Law on National Elections, s215 or "errors and omission" under Organic Law on National Elections, s218

5 Election—Parliament—Petition disputing election—Grounds in a Petition—Polling schedule—Variation of—Date not altered but time changed—Whether election open to challenge—Organic Law on National Elections, s117

6 Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Mapun Papol v Antony Temo and The Electoral Commission [1981] PNGLR 178, SCR No 4 of 1982; SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Holloway v Ivarato [1988] PNGLR 99, Poia v Valai [1990] PNGLR 388, Michael Badui v Bart Philemon, Alfred Pogo and Electoral Commission [1992] PNGLR 451 and Agonia v Karo [1992] PNGLR 463 referred to

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Injia J: These proceedings relate to the election of the First Respondent as the new member for the Port Moresby South Open Electorate in the National Parliament on 21 June 1997. In the election, the First Respondent polled 3906 and the Petitioner polled 2266, a difference of 1640 votes. The election was conducted by the Second Respondent.

The two Respondents in this election petition have filed separate motions seeking to strike out various grounds of the Petition for failing to comply with inter alia s208(a) and (d) of the new Organic Law on National and Local–Level Government Elections No 3 of 1997, (hereinafter abbreviated Organic Law on National Elections), and other relevant provisions of that Law. Before 15 March 1997, the law that prevailed was the Organic Law on National Elections. With the passing of the Provincial Government and Local–Level Government reform laws, the Organic Law on National Elections was passed by the National Parliament in March 1997 and it came into force on 9 April 1997. However, the two laws in most respects are similar. For instance, except for a few changes, Part XVIII Division 1 (s206–s227) of this new Organic Law which relates to disputed elections and returns is almost identical to Part XVIII (s206—s227) of the old Organic Law.

These motions to strike out the grounds of the Petition are filed in accordance with practice developed by this Court in the past in respect to previous National elections. The National Court has entertained such applications and in some cases struck down election petitions filed under s206 as offending the mandatory provisions of Organic Law on National Elections, s208. These applications are made by the Respondent(s) at the preliminary stage referred to as "compulsory conference". In the past, many election petition cases have come before the National Court some of which have ended up in the Supreme Court.

The principles relating to the Court's scrutiny of election petitions at a preliminary stage have been settled by the Supreme Court in two cases namely, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99. The provisions of Organic Law on National Elections applicable to preliminary applications and considered by the Supreme Court are s208, s209, s210 and s217 which provide:

"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 entitlled; 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 or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with s175(1)(a).

"209. DEPOSIT AS SECURITY FOR COSTS

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs.

"210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH

Proceedings shall not be heard on a petition unless the requirements of s208 and s209 are complied with.

"217. REAL JUSTICE TO BE OBSERVED

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."

The Supreme Court in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, decided that an "electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s206 of the Organic Law on National Elections must strictly comply with each and every requirement of s208 of that Law" (at p. 346, underlining is mine). At 345, the Supreme Court unanimously decided that "all the requirements in s208 and 209 must be complied with. S208 is in mandatory terms and being the Organic Law on National elections, it is a Constitutional Law. S210 simply precludes any proceedings unless s208 and s209 are complied with". If "a petition does not comply with all the requirements of s208, then there can be no proceedings on the petition because of s210" (at p. 345). The application of s217 is "only relevant when the National Court determines the merits of the case and when dealing with evidence before it as relevant to the merits" (at p. 346), that is, when the substantive petition is heard. S217 does not apply at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of s208.

In Holloway v Ivarato [1988] PNGLR 99, the Supreme Court considered the meaning of the word "facts" in s208(a). Although the Supreme Court did not refer to the principles enunciated by the Supreme Court in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, the Court did interpret s208 (a) strictly. Kapi DCJ with whom Los J and Hinchliffe J agreed said at 101:

"The facts which must be set out under s208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated." (My underlining).

A little later at 101 His Honour said:

"I conclude that s208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved." (My underlining).

As to what are sufficient facts, His Honour said at 102:

"Setting out grounds without more does not satisfy the requirement of s208 (a) . . . . What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."

The Supreme Court's decision in the above two cases have been used by the National Court to strike down election petitions at the preliminary or "Compulsory Conference" stage. To begin with, the Supreme Court in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342 was of the view that the Petition which did not contain the signatures of attesting witnesses failed to comply with s208 (d). In Michael Badui v Bart Philemon, Alfred Pogo and Electoral Commission [1992] PNGLR 451, the National Court struck out a...