Dixon Daduwe v Joe Area, The Electoral Commission of Papua New Guinea and Mark Marao [1979] PNGLR 160

• Jurisdiction: Papua New Guinea
• Judge: Raine DCJ
• Judgment Date: 04 May 1979
• Citation: [1979] PNGLR 160
• Court: National Court
• Year: 1979
• Judgement Number: N190

Full Title: Dixon Daduwe v Joe Area, The Electoral Commission of Papua New Guinea and Mark Marao [1979] PNGLR 160

National Court: Raine DCJ

Judgment Delivered: 4 May 1979

1 Elections—provincial—Milne Bay—question of constructive residence considered—dual residence considered possible

2 PARLIAMENT—Provincial Assembly—Elections—Disputed election petition—Residential qualifications—"Lived in the area comprised in the electorate"—Whether constructive residence where house occupied by mother—Constitution of the Milne Bay Provincial Government, s11.

3 PARLIAMENT—Provincial Assembly—Elections—Disputed election petition—Standard of proof—Onus of proof—Proof of residential qualifications.

On the hearing of a disputed election petition brought under reg184 and reg185 of the Provincial Government (Electoral Provisions) Regulations 1977, by a person rejected as a candidate for election, on the ground that his application for nomination as a candidate was wrongly rejected under s11(3) of the Constitution of the Milne Bay Provincial Government, which section requires candidates for election to "have lived in the area comprised in the electorate for which he intends to stand", for certain specified periods varying according to other specified qualifications,

Held:

(1) The question of the operation of residential qualifications under s11 of the Constitution of the Milne Bay Provincial Government, is a mixed question of fact and law.

(2) Where constructive residence is relied upon as fulfilling the requirements of residential qualifications, the test to be applied is whether the person had an available residence, from which he had not debarred himself from the liberty of returning.

Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448 at 454, followed.

(3) The onus of proof was on the petitioner to prove that he was qualified to nominate as a candidate for election and that his request had been made as required and refused.

Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448 at 450, followed.

(4) The petitioner, who owned a house within "the area comprised in the electorate" built for himself and his mother in his mother's village on her being widowed in 1972, and who from 1973 worked at schools outside the electorate area returning to his house during holidays and on weekends, could be said to have an available residence from which he had not debarred himself from returning by reason of his employment.

(5) On the balance of probabilities the petitioner had not established that his request for nomination as a candidate for election had been made as required and the petition should be dismissed.

Petition.

This was a petition to the National Court, pursuant to reg184 and reg185 of the Provincial Government (Electoral Provisions) Regulations 1977, disputing the rejection of an application for nomination as a candidate for election to a Provincial Assembly on the ground that the applicant for nomination did not have the necessary residential qualifications required by s11(3) of the Constitution of the Milne Bay Provincial Government.

___________________________

Raine DCJ:

Preliminary

I think this electoral petition is the first of its kind, for it involves an election to a Provincial Assembly, as opposed to the National Parliament. Of course, most of the judges have had petitions relating to the National Parliament.

In November 1978, Mr Vernon Guise was elected member for the Maramatama Electorate of the Milne Bay Province Provincial Government. He defeated Mr Komo Komo Ilade. Mr Ilade does not figure in this matter. Apparently he accepted his defeat. However, the petitioner does complain, not, as is usual, at the manner of the polling, and so on, but because he asserts that he was rejected as a candidate for election "ab initio". He says, in short, that he was an eligible candidate, and should have been admitted by the respondents as such. Mr Joe Area, the first–named respondent, was the assistant returning officer. The returning officer was the third–named respondent, Mr Mark Marao.

The petition.

It is in proper form and complies with reg184 and reg185 of the Provincial Government (Electoral Provisions) Regulations 1977. The petition prays for the relief available under reg188(1) and cll. 7, 8 and 9 read:

"7. About 19 October 1978, the petitioner applied to the assistant returning officer, Joe Area, to nominate as a candidate, but his application was rejected on the ground that he was disqualified under s11(3)(a) of the Constitution of the Milne Bay Provincial Government namely that he had not lived in the Maramatama Electorate for the two consecutive years immediately before the closing date for nominations.

Facts Relied on to Dispute or Invalidate the Election or Return, for the Purposes of s184 of the Provincial Government (Electoral Provisions) Regulations 1977.

8. By s11(3)(c) of the Constitution of the Milne Bay Provincial Government it is provided that a person is eligible to be a candidate:

'If he is a person both of whose parents were born in the Province and he has lived in the Province continuously since his birth—for 12 consecutive months immediately before the closing date for nominations for the election in which he intends to stand', and the petitioner was so eligible.

9. Therefore, the petitioner will allege and contend that his application for nomination was wrongly rejected by Joe Area, the first–named respondent and that this rejection was not corrected by Mark Marao, the third–named respondent."

The respondents take no point as to the form of the petition.

S11 of the Constitution of the Milne Bay Provincial Government (referred to in cl. 8 above).

Clause 8 only sets out s11(3)(c). I will set out the whole of subsection (3) and the relevant part of the section reads:

"11. QUALIFICATIONS FOR AND DISQUALIFICATIONS FROM MEMBERSHIP.

(1) A member of the Assembly—

(a) shall be a citizen of Papua New Guinea; and

(b) shall be not less than 25 years of age; and

(c) shall, if an Act of the Assembly so provides, be a Milne Bay person as defined in the Act.

(2) An Act of the Assembly may define a Milne Bay person for the purposes of Subsection (1)(c) and may prescribe the means (including, if necessary, the establishing of a tribunal with adequate powers) for determining whether a person is a Milne Bay person as so defined.

(3) A candidate for election to the Assembly must have lived in the area comprised in the electorate for which he intends to stand—

(a) for the two consecutive years immediately before the closing date for nominations for the election in which he intends to stand; or

(b) if he is a Milne Bay person as defined in an Act referred to in s2—for five consecutive years at any time; or

(c) if he is a person both of whose parents were born in the Province and he has lived in the Province continuously since his birth—for 12 consecutive months immediately before the closing date for nominations for the election in which he intends to stand.

(4) . . ."

Date of writ.

It was executed by the Electoral Commissioner in Port Moresby on 19 October 1978. Reg54 provides:

"54. DATE OF NOMINATION.

The date fixed for the nomination of the candidate shall be not less than 14 days nor more than 21 days after the date of the writ."

Thus, any approach to the respondents prior to 19 October by the petitioner was informal only, they had no power to accept or reject him as a candidate. Their role would have been an advisory one only. An issue of fact arises as to this. The petitioner says that he presented himself as a would–be candidate on the very day of the writ, the respondents say it was much earlier in the month.

Facts.

Before coming to the legal issues, I think it would help were I to set out, with some care, a good deal of the facts as I find them.

(1) The petitioner was born in the Maramatama Electorate in Gegedalina village, in 1947 or 1948. Thus he was old enough to be a candidate.

(2) Alotau, where he was a teacher at very relevant times, is just over the border from the Maramatama...