I, Mek H. Kamongmenan, Senior Tutor of Law at the School of Law, University of Papua New Guinea and a Lawyer- Parkil Lawyers.
Mandatory requirements provided under section 208 and 209
Papol v. Temo and the Electoral Commission  PNGLR 178. The National Court had cause to consider whether compliance with an equivalent section to s. 208 (i.e. 184 of the Provincial Government (Electoral Provisions) Regulation 1977) was mandatory or not. In this case the petition did not contain the signatures of attesting witnesses. The Court found that the equivalent to s. 210 meant that unless the requirements of the equivalent provisions of s. 208 and s.209 are conditions precedent to instituting proceedings by way of petition to the National Court. In the courts view it was clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Lawon National Elections it is a Constitutional Law. Section 210 simply preludes any proceedings unless s. 208 and s. 209 are complied with.
Biri v. Re Ninkama, Electoral Commission, Bande and Palumea  PNGLR 342. This was an election petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208. On hearing of the petition under s. 206 of the Organic Law, the National Courtmade a reference to the Supreme Court, pursuant to s. 18(2) of the Constitution two question of law which arose on the hearing of the disputed election petition. The two questions were:
- 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 NationalElections comply with s. 208 of that law?
- To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s. 206 of the Organic Law on National Electionspermit or allow an amendment of an electoral petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections:
- Within two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections; and
- After the period of two months following the declaration of the result of the election in accordance with s. 176 of the Organic Law on National Elections.
The Court answered the questions as follows:
An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that law.
On hearing of an Electoral Petition under s. 206 of the Organic Law on National Elections the National Court:
- May allow an amendment of a petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections provided that the application for amendment is made within the period of two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections; and
- b. Shall not allow and does not have the power to allow an amendment of a petition after the period of two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections.
Badui v. Philemon, Pogo and Electoral Commission  PNGLR 451. The respondents applied to have an election petition struck out on the ground that the mandatory requisites of s 208(d) of the Organic Law on National Elections have not been complied with. Section 208(d) provides: "A petition shall (d) be attested by two witnesses whose occupations and addresses are stated...." In the petition, two people have attested to it but their addresses have not been included.
In striking the petition out, the Court held that:
- An election petition disputing the validity of an election addressed to the National Court and filed pursuant to s 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s 208 of that law.
- By the terms of s 210 of the Organic Law, the petition cannot proceed to a substantive hearing for failure to comply strictly with the requirements of s 208(d) of the Organic Law.
Paua v. Ngale and Electoral Commissioner  PNGLR 563.The respondents moved the Court to strike out the petition by the applicant disputing the validity of the election for the Mul Baiyer Open seat in the 1992 National Elections on the basis that the petition does not comply with the provisions of s 208 of the Organic Law on National Elections.
In dismissing the petition, the Court held that strict compliance with the Organic Law on National Elections is required in the filing and hearing of election petitions. Clear evidence of errors and omissions are required. The Court cannot merely draw possible conclusions or infer possible situations and assume that there may be a possibility of errors and/or omissions: Laina v Tindiwi (1991) unreported N979 referred to.
Agonia v. Karo and Electoral Commission  PNGLR 463.The first respondent applied to have struck out an election petition which challenged his return as the duly elected member for the Moresby South Open Electorate. The grounds were, first, the attesting witnesses did not supply their proper addresses contrary to s 208(d) of the Organic Law on National Elections; and second, the petition failed to set out sufficient relevant material facts to establish bribery on his part, contrary to s 208(a) of the Organic Law.
The court held that:
- "...The whole purpose of requiring that an attesting witness supply name, occupation and address is so that the witness is readily identified and able to be located. Accordingly ... the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even section, lot number and suburb. In the case of a villager, simply his village." (The Court proceeded to rule that the attesting witnesses' addresses in the petition were sufficient for the purpose of s 208(d) of the Organic Law.)
- The paragraphs in the petition alleging bribery should be struck out for failure on the part of the petitioner to plead specific elements of the offence in the petition, contrary to s 208(a) of the Organic Law. The petitioner failed to plead the element of intention to interfere unlawfully in the free voting in elections by voters and/or failed to plead whether the persons named were voters or eligible to vote in the said electorate.
Mond v. Okoro, Tualir and Electoral Commission; Re Sinasina  PNGLR 501.This was a preliminary application in respect of the validity of the election and return of the Sinasina-Yonggamugl Open Electorate for the 1992 national elections. The respondents applied to have the petition struck out for non-compliance with s 208 of the Organic Law on National Elections, in particular, that grounds 5, 6 and 7 of the petition do not contain or demonstrate sufficient facts to support the allegation contained in the petition.
The Court in upholding the application held that:
- There was sufficient factual basis to support the petition.
- The particulars and details insisted upon by the respondents are, in fact, the evidence necessary to establish the allegation.
- The applications by the respondents to have the petition struck out for non-compliance with s 208 of the Organic Law on National Election are not entertainable.
Karani v. Silupa and the Electoral Commission  PNGLR 9. This was an election petition grounded on bribery, undue influence, illegal practices and errors or omissions by electoral officials. The respondent to the petition, Mr Silupa and the Electoral Commission object to the petition in the form it is. The objection was grounded on their claims that material facts have not been pleaded by the petitioner as required by s. 208 (a), s. 215 and other provisions of the Organic Law on National and Local-Level Government Elections (the Organic Law) and S. 100, 102, 103 and other provisions of the Criminal Code.
The Court in dismissing the petition held that by looking at all the paragraphs either individually or together, it was quite clear in my view that the allegations are too general, confusing and do not plead several material facts.
Mond v. Nape and the Electoral Commission  (Unreported National Court Judgment N2318, 14 January 2003).This is an election petition by Mr. Ludger Mond (Petitioner) against Mr. Jeffery Nape’s election as Member of Parliament for the Sinasina Yongamugl Open Seat in the 2002 National General Elections. The Respondents to the petition, Mr. Nape and the Electoral Commission object to the petition in the form it is. That objection is taken on their claim that material facts relied on by the Petitioner have not been pleaded with sufficient particulars, in terms of ss.208 (a) and 215, of the Organic Law on Provincial and Local-level Government Elections (the Organic Law) and ss. 102 and 103 of the Criminal Code.
The court in dismissing the petition said:
- It is necessary within the context and ambit of s.208 (a) of the Organic Law to plead specifically the ground or grounds as may exist either under the Organic Law, the Criminal Code or any other law, that are disclosed by the facts pleaded to void an election. The ground or grounds thus pleaded should be the conclusion based on the facts pleaded and the relevant provisions of the Organic Law or the Criminal Code or any other law. This is necessary to enable respondents to a petition and the Court to know from the outset on the face of the petition the grounds for the petition.
- In the case of an election petition presented on the bases of a bribery or undue influence, it is necessary to plead that the person or persons allegedly bribed are voters or electors. This is necessary because to alleged bribery it is a serious matter. As such it is important that all the elements of the offence must be pleaded. A failure to plead all of the elements of the offence means a failure to state the facts in terms of s. 208 (a) and so therefore it cannot proceed to trial by reason of s. 210 of the Organic Law.
In the matter of the Organic Law on National and Local Level Government Elections, Aihi v. Avei  (Unreported National Court Judgment N2330, 17th February 2003).An objection has been raised that the two attesting witnesses of the petitioner did not comply with s. 208 (d) of the Organic Law on National and Local Level Government Election on the basis that the two witness put themselves up as "villagers" as their occupation. Section 208 (d) of the Organic Law on National Local Level Government Election says, “A Petition shall be attested by two witnesses whose occupations and addresses are stated"
The Court in dismissing the petition and ruling that that "villager" is not an occupation as required under s. 208 (d) of the Organic Law on National and Local Level GovernmentElections said that:
“Strictly speaking a "villager" is not an occupation. A "villager" simply means someone who lives in a village. An occupation is what one does usually. In PNG a "villager" does so many things. A villager maybe a subsistence gardener or a fisherman. That is he does gardening most of the time or goes fishing most of the time. If he does that then "gardening" becomes his occupation. Is the word "villager" sufficient for the purposes of s. 208 (d) of the Organic Law. If the two witnesses are gardeners then they must write "gardener" as their occupation”.
Diau v Gubagand the Electoral Commission  (Unreported National Court JudgmentN2352, 5 March 2003).The proceedings in this matter relate to the election of the First Respondent as the Member of Parliament for the Sumkar Open Electorate in the 2002 General Elections. There were allegations of bribery against first respondent and the second respondent, its agents and or servants or third parties whose action were within or ought to have been within the knowledge of the Second Respondent illegally interfered and influenced the conduct of the elections and that such interference unduly affected the outcome of the election contrary to s.108 of the Criminal Code.Further it was alleged that the second respondent and or its agents unlawfully and illegally placed un-rejected votes of a candidate, Mr Steven Nambon in the tray of another candidate contrary to s.154 of the Organic Law on National and Local Level Government Elections. Furthermore it was alleged that during the counting the Second Respondent, its agents and or servants unlawfully and illegally conducted the counting of votes without proper scrutineering which interfered and influence the election results of the Sumkar Open Electorate election in that the scrutiny proceeding were not open to the inspection of the scrutineers contrary to s.152 of the Organic Law.
The respondent objected to the competency of the petition on the grounds that the petition that the petition does not comply with s.208 of the Organic Law on National and Local Level Government Elections.
The court struck 13 of the allegations out and proceeded to court on three counts.
In the Matter of The Organic Law on National and Local-Level Government Elections, Beseoh v Bao  (Unreported National Court Judgment N2348, 10 March 2003).Both respondents object to the competency of the remaining grounds of the Election Petition filed by the Petitioner under s.206 of the Organic Law on National and Local-Level GovernmentElections ("OLNE"), on 28 August 2002 on two grounds, namely:-
1.The Petitioner fails to comply with the mandatory requirements of OLNE s.208(e) because the petition was "filed" outside the 40 days, in that although the petition itself was filed within time and security for costs deposit was also paid within time, the filing fee of K500.00 was paid outside the 40 days.
2. The facts pleaded in Clause 1.1 and 1.2 fail to comply with the mandatory requirements of OLNE s.208 (a) to plead facts.
The objections are taken in accordance with principles laid down by the courts in relation to s.210 of the OLNE, that is, no petition proceeds to a substantive hearing unless the requirements of OLNE, s.208 (Requisites of Petition) and s.209 (Deposit as Security for Costs) are first complied with. The practice has developed that if a Petitioner fails to strictly comply with the mandatory requirements of s.208 and s.209, the petition is struck out at the preliminary stage: see Biri v. Ninkama  PNGLR 342.
The principles under s.208 (e) have not been fully established. Section 208(e) and the OLNE generally is silent as to the payment of any filing fee for the petition and the time limit for the payment of that filing fee. The payment of the filing fee is prescribed by the rules of Court: see r.4 of National CourtElection Petition Rules 2002 ("EPR"). The issue is whether the word "file" in S.208 (e) entails or includes the payment of the "filing fee" prescribed by the rules of the National Court. That same issue arises from the facts of the present case. Whilst the petition was filed and the security for costs was paid within the 40 days period, the filing fee was paid and evidence of the payment provided to the registrar outside the 40 day period prescribed by s.208 (e).
There is no provision in s.208 (e) or any other provision in the OLNE, which prescribes the payment of the "filing fee"and/or the production of evidence of payment of the filing fee to the Registrar within the same 40 day period. A provision of the kind in s.209 with respect to filing fee is wanting in the OLNE. Section 209 provides:
"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".
The court in finding that the petition was filed outside the 40 day period prescribed by OLNE,s.208 (e) and striking out the petition said:
- In my view, the words "a petition shall be filed at the Registry of the NationalCourt" in s.208 (e) by necessary implication, means a petition filed in accordance with the rules of Court pertaining to filing of Court documents by parties at the Court’s registry. And tradition has it that the rules of the Court make provision for "filing" of Court documents at its registry, and acceptance of the document by the Registrar, upon payment of the filing fee, except where the rules make provision for waiver or dispensation of the filing fee requirement by the Registrar. The rule is in fact very simple: No fees paid means no document accepted by the Registrar which in turn means no documents are filed with the Registry. Therefore, a Petition lodged in the Registry in breach of the rules of Court pertaining to filing of the petition cannot be said to have been validly filed.
- In the present case, there is no provision in the EPR empowering the A/Registrar to accept a Petition without evidence of the security deposit and filing fee being first paid. There is also no provision in the EPR empowering the A/Registrar to waive or dispense with the requirements for a filing fee. The Assistant Registrar cannot exercise a power which he does not possess or hold himself out as having such powers and raise false hopes in the minds of petitioners that he has such powers. Any steps taken by the petitioner in reliance upon such erroneous assumption of power by the Assistant Registrar cannot be a valid exercise.
Review Pursuant to Constitution Section 155(2)(b); Kopaol v Embel  (Unreported Supreme Court Judgment SC727 (17 December 2003). The Applicant was returned winner as elected Member of Parliament for Nipa/Kutubu Open Electorate in 2002 National Elections. He ousted the sitting Member the Respondent herein. A petition challenging the result was filed in the National Court and after preliminary objection was raised objecting to the competency of the petition, all grounds were struck out as incompetent except for two (ground 9 and 13). Those two grounds proceeded to trial and election was overturned and by-election was ordered.
Applicant applied for judicial review under s.155 (2)(b) of the Constitution challenging the decision on two grounds: firstly, both grounds ought not have been allowed to go to trial as they violated s. 208(a) of the Constitution in that no proper facts were pleaded and pleading was poor and inconsistent hence, petition was prohibited by s.210 from being heard; and secondly, there was hardly any credible evidence showing whether results of the election were affected if errors or omissions under s.218 were relied upon.
The Court held that:
- Both grounds 9 and 13 were incompetent as they failed to meet the requirements of s.208(a) and the trial judge erred in allowing them to go to trial;
- 2. Having allowed them to go to trial, there was hardly any credible evidence showing that the result of the election was affected by the alleged errors or omissions of the election officials;
- 3. There was no credible evidence of any relationship between the Applicant and the officials of the Electoral Commission; and
- 4. There was no credible evidence that the Applicant was in any way involved in a conspiracy with the election officials to interfere with free exercise of elections in the Electorate.
Review Pursuant to Constitution Section 155(2)(b); Saonu v Dadae and Electoral Commission  (Unreported Supreme Court Decision SC763, 1 October 2004). This was 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. The applicant challenged the return of the first respondent in EP15 of 2002. The petition was dismissed. 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.
The Court in finding that the trial Judge fell into error in his findings and quashing the decision of the National Court and ruling that the applicant is entitled to the relief he sought in his application said:
- The fact that the petition states: "To: Bob Dadae, and To: The ElectoralCommissionof Papua New Guinea", in our view, simply and plainly means that the petitioner is giving notice of the petition to the respondent. We accept the applicant’s submission on this aspect. Apart from the petitioner issuing notice to the respondents in the manner the applicant argues, which we have just alluded to, the whole petition does not invoke the jurisdiction of the respondents; they have no power or jurisdiction to be invoked. It did not seek any relief from them because they have no power to grant any relief in the Organic Law, they are not the National Court. The petition did not seek or request the respondents to invoke their powers to deal with it as was erroneously held by the trial Judge. Therefore, it is our opinion that despite the petition being "addressed" to the respondents as contended by the respondents, this whole petition is a document which invokes the jurisdiction of the National Court and seeks relief from that Court.
- We consider that the petition, the subject of this review, should not have been dismissed as incompetent simply because it does not contain the words, "To: The National Court of Justice", but states, "To: Bob Dadae and To: The ElectoralCommission of Papua New Guinea." To have a petition dismissed on that ground, in our view, is not doing real justice as prescribed by Section 217 of the Organic Law.
- We find that the trial Judge had misconstrued s.206 of the Organic Law by holding it to be a provision that must be strictly complied with thereby reaching an erroneous conclusion that the applicant’s petition was incompetent. We conclude that s.206 is not a requisite of a petition for the reasons that we have given, and in particular, because of Sections 208, 209 and 210 of the Organic Law.
Review Pursuant to Constitution Section 155(2)(b); Sauk v Polye and Electoral Commission  (Unreported Supreme Court Judgment SC769, 15 October 2004). This was an application for review of the decision of the National Court in proceedings EP No. 3 of 2002 where the court sitting at Mt Hagen dismissed the petition as being incompetent. The first respondent was returned as the winning candidate with 135099 votes while the applicant came second polling 11763 votes, a difference of 1936 votes. Pursuant to s 206 Organic Law on National and Local Level Government Elections (the Organic Law), the applicant disputed the return by filing with the National Court his petition pursuant to s 208 (e) Organic Law.
The Supreme Court interpreted ss 208, 209 and 210 and laid down the law that unless a party (petitioner) strictly complies with the requirements of ss 208 and 209, pursuant to s 210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s 206 (Method of Disputing Returns), but unless each and every requirement of ss 208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return.
The Court in finding that the petition should not have been dismissed on competency grounds granted the application, reinstated the petition and quashing the decision of the National Court said:
- In respect of the first ground of the competency challenge, we hold that s 206 Organic Law only stipulates the method by which an election or its return can be challenged in the National Court. We accept the applicant’s submission that the stipulated method is by petition "addressed, directed, dispatched or presented to the National Court and no other tribunal". This provision contains no conditions requiring strict compliance as to the form a petition shall take. Nor, indeed, do the Organic Law or the National Court Petition Rules. Section 208 Organic Law alone sets out the essential matters that must be provided for a valid petition invoking the jurisdiction of the National Court.
- With respect, we find that the trial Judge erred in his conclusion. It was erroneous of His Honour to find that the Petitioner failed to plead the effect of the late return of the writ. A close scrutiny of the petition, EP 3 of 2002, revealed that the petitioner had stated that the effect of the late return of the writ was that the election was deemed to have failed concluded that the whole of the petition was incompetent and dismissed it.
- A simple mathematical calculation of the difference of votes cast for the Petitioner and the First Respondent would have clearly shown that the destruction of so many votes would have affected the result of the return. The difference of the votes cast for the First Respondent and the Petitioner was 1,836. The total votes cast but which were destroyed at various polling stations and the Wabag Police Station were 11,247. Obviously the destruction of so many votes was likely to have affected the result of the election. The trial Judge therefore erred in failing to take this into account when considering this issue.
By: Mek Hepela Kamongmenan LLB