In Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ
• Judgment Date: 07 November 1977
• Citation: [1977] PNGLR 448
• Judgement Number: N113

Full Title: In Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448

National Court: Frost CJ

Judgment Delivered: 7 November 1977

1 Elections—Parliament—disputed election petition—lack of residential qualifications on part of the candidate returned elected—whether constructive residence in house occupied by tenant—meaning of electorate—see also SC127

2 PARLIAMENT—Elections—Disputed election petition—Lack of residential qualifications—"Reside"—Whether constructive residence where house occupied by tenant—Meaning of "electorate"—Constitution s103(2)—Organic Law on National Elections Part XVIII Div. 1.

S103(2) of the Constitution provides: (2) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination, or for a period of five years at any time.

PARLIAMENT—Elections—Disputed election petition—Standard of proof required—Lack of residential qualifications.

On the hearing of a disputed election petition brought under s206 of the Organic Law on National Elections, by a losing candidate for relief on the ground that the elected member did not have the necessary residential qualifications as required by s103 of the Constitution,

Held:

(1) The onus of proof was on the petitioner to prove that the elected candidate was not qualified to stand;

(2) The standard of proof required is such that the Court should require clear and cogent proof so as to induce, on a balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications;

Rejfek v McElroy (1965) 112 CLR 517 at 521 and Helton v Allen (1940) 63 CLR 691 adopted and applied.

Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298 not followed.

(3) To give effective operation to the provision in s103 of the Constitution for a candidate's qualification whether by birth or residence, it is necessary for the word "electorate" in s103(2) of the Constitution to be given the meaning of "area of an electorate";

(4) In determining the operation of the residential qualifications under s193 of the Constitution, continuous residence for a period of two years being required, the test to be applied is whether the person had a fixed place of abode, whether he was absent from time to time or not; and where constructive residence is relied upon whether the person had an available residence, from which he had not debarred himself from the liberty of returning;

Levene v Inland Revenue Commissioners [1928] AC 217 at 222, Fox v Stirk [1970] 2 QB 463 at 475, R v Gillies (1912) 6 QJPR 138 at 140, Durant v Carter (1873) LR 9 C.P. 261 at 266, R v The Midland Licensing Court [1959] SASR 229, Tanner v Carter (1885) 16 QBD 231, Powell v Guest (1864) 18 CB (NS) 72; (1864) 144 ER 357 at 370–371 and Bond v Overseers of St. George, Hanover Square (1870) LR 6 C.P. 312 at 314 referred to.

(5) The elected candidate could not be said to "reside" in a dwelling house which was retained during the beginning of the period of two years' residence required by s103 of the Constitution for the purpose of an investment and not as a residence and from which he had debarred himself from the liberty of returning because of the continuance of tenancies during that period.

(6) Accordingly, the elected candidate was not qualified to be nominated as a candidate or to be a Member of Parliament for that electorate, and the election should be declared absolutely void under s21 of the Organic Law on National Elections.

Petition.

This was a petition to the National Court sitting as a court of disputed returns, pursuant to s206 of the Organic Law on National Elections contesting the validity of an open parliamentary election on the ground that the elected candidate did not have the necessary residential qualifications as required by s103 of the Constitution.

___________________________

Frost CJ: In this petition, Dr Goasa Damena disputes the validity of the election and return of the candidate Mr Patterson Lowa, at the 1977 general elections for the Open Electorate of Moresby Northeast. At the final scrutiny Mr Lowa with 1,423 votes had gained a clear majority over his nearest rival, Mr H Hoerler, with 705 votes. The petitioner was fourth with 641 votes.

The ground of the petition is that Mr Lowa was not qualified to nominate as a candidate for the electorate because, not having been born in the electorate, he had not resided in it for a continuous period of two years immediately preceding his nomination, or for a period of 5 years at any time, as the Constitution requires, s103(2).

At the outset of the hearing the respondent raised a preliminary objection that the petitioner was not entitled to rely on such a ground. The question of lack of qualifications, it was argued, could only be heard and determined by the National Court on a reference by the Parliament under Part XVIII, Division 2, of the Organic Law on National Elections. The objection was disallowed, the evidence for both the petitioner and the respondent was taken and the decision was reserved. The ruling was then challenged in proceedings for a writ of prohibition and by way of appeal brought by the respondent in the Supreme Court. On 4 November, 1977, both proceedings were dismissed by the Supreme Court. Accordingly, the way is now open to the petitioner to seek that the Court exercise its power under the Organic Law, s212(1)(h), of declaring the election absolutely void.

Onus of proof

The onus of proof clearly rests on the petitioner to prove that Mr Lowa was not qualified to stand. Mr Gregory, for the Electoral Commissioner, submitted that proof upon the balance of probabilities is sufficient upon such a ground. The view I took in Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298 was that an election is a serious and expensive matter and is not lightly to be set aside. I then went on to say that the case should be proved at least to the entire satisfaction of the judge.

Since then Helton v Allen (1940) 63 CLR 691 and Rejfek v McElroy (1965) 112 CLR 517, both decisions of the High Court of Australia, have come to my attention. These decisions support Mr Gregory's submission. In the latter case it was held that in the absence of statutory provisions to the contrary, proof in civil proceedings of facts amounting to the commission of a crime has only to be made upon a balance of probabilities, which is of course the civil onus. That statement would extend to election petitions brought on the ground of an illegal practice or any other ground. The cases are relevant also because reference is made to the distinction to be made between the standard of proof in a civil case and the effect of the gravity of the issues, such as fraud or the commission of a crime, upon the process of decision. In the earlier case the High Court was content to approve Professor Wigmore's "simple statement that in a civil case the same high degree of certainty is not required as in a criminal case, but reasonable satisfaction according to the nature of the case"—at p 710.

In my opinion these statements of the law are applicable to the circumstances of Papua New Guinea, and I would adopt them in relation to the determination of election petitions. Accordingly, in a case such as the present where the issues are of real gravity, the Court should require clear and cogent proof so as to induce, on a balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications. Rejfek v McElroy (1965) 112 CLR 517 at 521.

Mr Lowa's career and residence at Murray Barracks

Mr Lowa was born in the West New Britain Province, where he went to primary school. He then attended Sogeri High School, in the Central Province, where in 1962 he completed his secondary education. He went straight into the Army, and in a distinguished career attained the rank of Colonel. In 1975 as Papua New Guinea approached Independence he decided to resign and stand for the elections. In the years after he left school, because of his Army service he had...