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National Court of Papua New Guinea |
[1979] PNGLR 160 - Dixon Daduwe v Joe Area, Electoral Commission of PNG and Mark Marao
N190
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
DIXON DADUWE
V
JOE AREA, THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA, AND MARK MARAO
Waigani
Raine DCJ
4-5 April 1979
4 May 1979
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, s. 11[clxxvi]1.
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 regs. 184 and 185 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 s. 11(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
N1>(1) The question of the operation of residential qualifications under s. 11 of the Constitution of the Milne Bay Provincial Government, is a mixed question of fact and law.
N1>(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] P.N.G.L.R. 448, at p. 454, followed.
N1>(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] P.N.G.L.R. 448, at p. 450, followed.
N1>(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.
N1>(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 regs. 184 and 185 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 s. 11(3) of the Constitution of the Milne Bay Provincial Government.
Counsel
S. G. Cory, for the petitioner.
A. M. Pert, for the first and third defendants.
D. S. Awaita, for the defendant Guise.
Cur. adv. vult.
4 May 1979
PRELIMINARY
RAINE DCJ: 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 regs. 184 and 185 of the Provincial Government (Electoral Provisions) Regulations 1977. The petition prays for the relief available under reg. 188(1) and cll. 7, 8 and 9 read:
N2>“7. About 19th 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 Section 11 (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 s. 184 of the Provincial Government (Electoral Provisions) Regulations 1977.
N2>8. By Section 11(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.
N2>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.
Section 11 of the Constitution of the Milne Bay Provincial Government (referred to in cl. 8 above).
Clause 8 only sets out s. 11 (3)(c). I will set out the whole of sub-s. (3) and the relevant part of the section reads:
N2>“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 Section (2) — 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 19th October, 1978. Regulation 54 provides:
N2>“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 the 19th 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.
N2>(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.
N2>(2) Alotau, where he was a teacher at very relevant times, is just over the border from the Maramatama Electorate. It is in a different electorate.
N2>(3) From birth until about 1959 the petitioner lived at Gegedaline with his natural parents and their other offspring.
N2>(4) From 1960 or 1961, it matters not, the petitioner went to Solano Mission School on Ferguson Island. He was a boarder there. So he was separated by water, distance, and travel time from his home and people. But he used to come home at Christmas and some other holidays. This continued until 1967. The petitioner remembers, and I accept him, that he went home on holiday in Easter 1966.
N2>(5) In 1967 he went to the Port Moresby Teachers’ College. He was there until December 1968. He came home for Christmas in 1967 and 1968. Apparently he qualified, or finished at the College, in December 1968 or early 1969.
N2>(6) In February 1969 he went back to Solano School, this time as a teacher. He was there until December 1971. However he was not totally divorced from the village, for he had an inboard engine motor boat, and spent the three school holidays at the village. Of course, if one is prepared to take the risk, it is not as far as all that from Ferguson Island to the mainland.
N2>(7) In December 1971, or thereabouts, his father became ill, dying in June 1972. In this period the petitioner came to and stayed in the village. He was then unmarried.
N2>(8) As per village or line custom, his mother then went back to her home village. The petitioner built a house, I gather not a pretentious one, on her land, and they moved in. He installed belongings that would have been quite precious to him, for he was young, and probably not very well off, namely, his dining table, two coffee tables, two forms for seating, and mattresses. He did not say so, but obviously he would have brought a few other bits and pieces.
N2>(9) In February 1973 the petitioner was posted to or accepted a position at Martyrs’ Memorial School, out of the electorate.
N2>(10) From December 1973 to late January or early February 1974, he was with his mother in her village, for the rest of 1974 he was at Martyrs’, until his return at Christmas in December 1974, where he remained in the village until about February 1975.
N2>(11) In February 1975 he became a master at Cameron High. It is in Alotau, and, as I have said, just across the electoral border.
N2>(12) Prior to this, in March 1973, he married. This is important for, as has been said, chickens are apt to leave the nest, on marriage a man often tends to leave the parental home.
N2>(13) He was at Cameron High from February to July 1975, during which time he obtained or bought a motor cycle. In July 1975 he went to Port Moresby until November or December 1975, where he did some special educational semester at U.P.N.G.
N2>(14) From December or thereabouts in 1975 he was at the village until February 1976.
N2>(15) From February 1976 until December 1976 he was at Cameron High School.
(Note: While at Cameron the petitioner always had a home supplied by the Department or the school. Apparently this was a perfectly satisfactory home, he makes no complaint. Of course it was “across the border”. He lived there with his wife and the baby that eventuated from their marriage.)
N2>(16) The petitioner’s wife came from the village of the petitioner’s mother.
N2>(17) From December 1976 to February 1977 the petitioner lived in his mother’s village with her.
N2>(18) In February 1977 he went back to Cameron High.
N2>(19) In April 1977 the petitioner heard about the imminence of provincial elections. Largely because of political considerations, he bought building materials, and between April and August built a larger and better house, and he and his mother moved into it. He took with him his “lares et penates” from the old house.
N2>(20) In November 1977 he moved his wife and small child into the new house.
N2>(21) From December 1977 to February 1978 he lived in the village.
N2>(22) For political reasons he sought some sort of leave from the Education Department in February 1978. He received a reply in March. This caused him to continue as a teacher until 19th April, 1978, when he finally left. Between February and April 1978 the petitioner visited his mother’s village, and her, once in February and twice in March. I mention this, because, as a matter of law, or mixed fact and law, as will become apparent later, questions of “constructive” residence, dual residence, or no residence, will later have to be considered. This is a convenient time to say that just as I largely accept all the foregoing facts, I also accept that when at Cameron High the petitioner was at pains to visit his mother once, and often twice a month, this with the help of his motor cycle. Apparently he could not drive the whole way. The trip, driving and walking, took him about four hours, an indication of some doggedness on his part. Sometimes he would go on Friday night. Sometimes early on Saturday morning. Of course, he had to return on Sunday, for school started on Monday morning. Some weeks he could not go, being on full duty at the school over the weekend on a roster basis. He used to leave his wife and baby at Alotau, for obvious reasons.
N2>(23) From 19th or 20th April, 1978, until the present time the petitioner has lived in his mother’s village.
N2>(24) The petitioner is still fully resident in the village.
N2>(25) I accept that the petitioner has had a very real feeling of responsibility for his mother since the death of his father. I accept that he has wished, to the extent necessary, to shoulder her burdens, and has given her moral and physical support, helping with her gardens as to the latter.
N2>(26) Finally, whilst I do not see that questions of credit were raised, or arise, I accept the petitioner as a witness of truth as to his general movements over the years as set out above.
N2>(27) Since his father’s death I find that the petitioner has been domiciled in his mother’s village. Of course, domicile and residence do not always coincide. Before the father’s death his domicile was in Gegedaline. Both villages are within the Maramatama Electorate. The petitioner’s roots are in Maramatama. Robert Louis Stephenson sums up what I have in mind in the following lines:
“Here he lies where he longed to be, Home is the sailor, home from sea, And the hunter home from the hill.”
CONSTRUCTIVE RESIDENCE
Mr. Cory, who appears for the petitioner, relies on the principle of “constructive” residence. This principle, or doctrine, as Frost C.J. describes it, is clearly and well explained by his Honour in Re Moresby North East Parliamentary Election (No. 2); Goasa Damena v. Patterson Lowa. The learned Chief Justice said[clxxvii]2:
“What does ‘reside’ mean?
As I have indicated, it is for the petitioner to prove that Mr. Lowa had not resided in the electorate for a continuous period of two years immediately preceding nomination. That was the qualification relied on by Mr. Lowa in his nomination form, and the only qualification relied on by his counsel, Mr. Andrew. The period goes back to 12th April, 1975, when Mr. Lowa was living in the house at Murray Barracks.
There is no difficulty in arriving at the meaning of ‘reside’. In a tax case, it was said:
‘... the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place”.’
Levene v. Commissioners of Inland Revenue[clxxviii]3. That definition was applied by Lord Denning M.R. in the election case of Fox v. Stirk[clxxix]4, cited by Mr. Andrew.
Mr. Andrew relied also on a passage from a Queensland case, R. v. Gillies [clxxx]5, where a similar problem arose and the candidate had to show twelve months’ residence in Queensland. This is what the learned judge said:
‘... continuous residence did not mean that the applicant had to be every day of that twelve months in Queensland. It was sufficient if a man, during that twelve months had his house or fixed place of abode in Queensland, whether he was absent from time to time or not.’
It is clear that during 1975 — except possibly for a period of one week to which I shall later refer — Mr. Lowa had in fact resided outside Moresby Northeast. Accordingly, the only way Mr. Andrew could put forward a case of two years’ continuous residence was to rely on the doctrine, as it has been called, of “constructive” residence, which has been developed by the courts under the electoral legislation of England. That is the legal term for the simple notion that:
‘... a man may have more than one residence at a time. He may corporeally be residing at one place, and yet have a residence at another. He may have a place of residence to which he is free to go during the whole period.’ Durant v. Carter[clxxxi]6.
Thus if a man spends his life at sea, he is considered resident at the house where his wife and family live ashore, even although his wife has moved and is living in a house which her husband has never seen — R. v. Midland Licensing Court; Ex parte Roberts[clxxxii]7, a case also relied on by Mr. Andrew. As Lord Denning M.R. said in Fox v. Stirk[clxxxiii]8, a man may have two residences, a flat in the city and a house in the country, and be resident in both.
It is to be noted however that Fox v. Stirk[clxxxiv]9 was concerned with a statute in which there was no qualifying period of residence but only a qualifying date, namely one fixed day in the year. For the purposes of the present case therefore in which a continuous period of residence is required, Lord Denning’s general statement is to be taken subject to the qualification laid down in the earlier English case of Tanner v. Carter [clxxxv]10, a case where continuous residence for a prescribed period was required, that a person’s claim to be a resident will be defeated if it is shown that he did not have the power to go to the house in question when he pleased throughout the period. See also Halsbury, Laws of England, 3rd ed., vol. 14, p. 14, where the cases are collected. The doctrine is further explained by Erle C.J. in Powell v. Guest[clxxxvi]11 as follows:
‘I entirely subscribe to the doctrine so clearly laid down in Elliott on Registration, 2nd ed., p. 204, where the learned author says that, “in order to constitute residence, a party must possess at the least a sleeping apartment, but that an uninterrupted abiding at such dwelling is not requisite.” “Absence,” he continues, “no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party’s pleasure or convenience so to do, will not prevent a constructive legal residence. But, if he has debarred himself of the liberty of returning to such dwelling, by letting it for a period, however short, or has abandoned his intention of returning, he cannot any longer be said to have even a legal residence there.” The learned author says he loses his character of resident “if he has debarred himself of the liberty of returning to such dwelling,” and he gives two examples, viz. letting the house, or abandoning the intention of returning.’
That passage was applied also in Bond v. Overseers of St. George’s, Hanover Square[clxxxvii]12.
It is plain that constructive residence implies an available residence, from which the claimant has not debarred himself from the liberty of returning.”
Sir Sydney Frost did not refer to two cases in the High Court of Australia, referred to by Mr. Cory. They are revenue cases it is true, cases where two men sought to show they were Territorians rather than Australians, if I might put it as compendiously as that. If the former, then taxation benefits were gained by them. I think the judgments of the High Court assist Mr. Cory. The cases are Gregory v. Deputy Federal Commissioner of Taxation (W.A.)[clxxxviii]13 and Commissioner of Taxation v. Miller[clxxxix]14.
I respectfully agree with Frost C.J. when he says above: “It is plain that constructive residence implies an available residence, from which the claimant has not debarred himself from the liberty of returning.” This was the nub of Miss Pert’s submissions, and she cited very sound authorities in support of her argument.
But it is clear to me that it will always be a question of mixed fact and law, and even more so, in this land, where the ties between a man and his village and its people are immensely strong. Striking and moving evidence of this is found in Sana, the Prime Minister’s autobiography. In Australia men are often different, so often shedding the town or village of their birth when it suits them.
In my opinion it is easy to apply the “constructive” residence principle to the facts of this case, and many others in this country. In my opinion the home in his mother’s village was “available”; and the petitioner was not “debarred” from it by reason of his employment. The dwelling was not an occasional boarding house. It was home. It is quite a different situation than that which arises when one lets one’s house. Were one to seek to re-enter without the lessee’s consent one would be in breach of the covenant for quiet enjoyment and susceptible to an injunction. The house is not available. One is debarred.
It is true that had the petitioner taken French leave, and left school when he was required to be on duty at the school, he might have faced dismissal, or disciplinary action. But this is not to say that he was “debarred” from doing that very thing. Had he heard that his mother was sick, or worried about something, no doubt he could have applied for leave, and probably would have been granted it.
If the petitioner applied, as he says, on 19th October, to be included as one of the candidates for election, then in my opinion his nomination should have been accepted, and if not, then his rejection was wrong, and seriously wrong, and “real justice” would require me to uphold the petition, recognising as I do the seriousness of doing so, and the enormous inconvenience so caused. I believe the petitioner was qualified under both (a) and (c) of s. 11(3) of the Provincial Constitution.
When was it that the petitioner spoke to Messrs. Area and Marao?
I have indicated earlier that the single issue here is, bearing in mind reg. 54, whether it was on 19th October, 1978, or earlier.
The petitioner has to shoulder the burden of proof. This is examined by Sir Sydney Frost under the sub-heading “Onus of proof” in his judgment[cxc]15. I respectfully agree with what fell from the learned Chief Justice. Of course, his Honour was there dealing with a quite different case than I am, his concern was lack of qualification by the victorious candidate. But the principles are the same, the burden of proof must be well and truly borne by the petitioner.
The evidence is quite unsatisfactory. I do not disbelieve the petitioner. I do not say for a minute that he is lying, and tailoring his evidence. In fact I liked him. He is a pleasant man, not a deceitful one in my book.
I incline to the view that the probabilities are that he arrived at Alotau earlier than the 19th, this being so, he fails.
This is unfortunate for him, if I am correct, for otherwise this petition would have succeeded, had he renewed his application at the proper time.
Petition dismissed.
Solicitor for the petitioner: S. G. Cory.
Solicitor for the first and third-named respondents: C. Maino-Aoae, State Solicitor.
Solicitors for Vernon Guise: Craig Kirke & Wright.
[clxxvi]Infra p. 162.
[clxxvii][1977] P.N.G.L.R. 448, at pp. 452-453.
[clxxviii][1928] UKHL 1; [1928] A.C. 217, per Viscount Cave L.C., at p. 222.
[clxxix] [1970] 2 Q.B. 463, at p. 475.
[clxxx] (1912) 6 Q.J.P.R. 138, at p. 140.
[clxxxi] (1873) 29 L.T. 681, per Keating C.J., at p. 683.
[clxxxii][1959] S.A.S.R. 229.
[clxxxiii] [1970] 2 Q.B. 463, at p. 475.
[clxxxiv][1970] 2 Q.B. 463.
[clxxxv](1885) 53 L.T. 663.
[clxxxvi][1864] EngR 788; (1864) 18 C.B. (N.S.) 72, at p. 80; 144 E.R. 367, at pp. 370-371.
[clxxxvii] (1870) 23 L.T. 494, per Brett J., at p. 495.
[clxxxviii](1937) 57 C.L.R. 774.
[clxxxix](1946) 73 C.L.R. 93.
[cxc][1977] P.N.G.L.R. 448, at p. 450.
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