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Bouraga v Berghuser [1987] PGNC 24; [1987] PNGLR 381; N644 (1 December 1987)

N644

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL ELECTIONS
AND DISPUTED RETURNS FOR NATIONAL CAPITAL DISTRICT ELECTORATE

PHILIP BOURAGA

V

HUGO BERGHUSER

Waigani
Woods J

30 November 1987
1 December 1987

PARLIAMENT - Elections - Disputed election petition - Residential qualifications - Resided in electorate "for period of five years at any time" - Pre-independence residence qualifying - Citizenship benefits qualifying - Constitution, ss 69(1)(a), 103(2).

Held:

That for the purposes of satisfying the residential qualification for nomination for election to Parliament under s 103(2) of the Constitution of "residence in the electorate for a period of five years at any time" residence in the electorate for the period between 1960 and 1969 satisfied the requirements, where the petitioner had applied for citizenship under s 69(1)(a) of the Constitution within two months of Independence and was thus entitled to the benefit of eight years or more residence at any time prior to Independence.

In re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448 and SCR No 3 of 1984; Masive v Okuk [1984] PNGLR 390, applied.

Cases Cited

The following cases are cited in the judgment:

In re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448.
SCR No 3 of 1984; Masive v Okuk [1984] PNGLR 390.

Petition

This was the hearing of a petition to the National Court pursuant to the Organic Law on National Elections contesting the validity of the election of a candidate on the ground that the candidate lacked the necessary residential qualifications for nomination for election under s 103(2) of the Constitution.

Counsel:

P Donigi, for the petitioner.
P Steele, for the respondent.
Cur adv vult

1 December 1987

WOODS J.: The petitioner, Philip Bouraga, is disputing the validity of the election of the respondent, Hugo Berghuser, to the National Parliament following the results of the election for the National Capital District electorate in 1987. The sole matter raised in the petition is that the respondent was not qualified to be nominated as a candidate for the National Capital District electorate by virtue of the fact that he did not comply with the residence requirements in s 103(2) of the Constitution.

The petitioner whilst admitting that the respondent lived in Port Moresby and therefore in the now National Capital District electorate from 1960 to 1969 submits that this residence does not qualify him and that since that date namely 1969 until 1987 the respondent has been resident at 16 Mile which is outside the boundaries of the National Capital District.

The onus of proof in an election petition has been clearly laid down in the case In re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448 where it was stated that the onus of proof was on the petitioner to prove that the elected candidate was not qualified to stand. 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.

The only evidence presented by the petitioner in this case were some assumptions that he knew of a residence at 16 Mile and that at a number of times between 1979 and 1986 he saw the respondent Mr Berghuser at his residence at 16 Mile and it appeared that this residence was the respondent’s home.

The respondent gave evidence, first, that he was resident in Port Moresby from 1960 to 1969, then he admitted that he moved out to 16 Mile and set up a business out there and built a house there. This house still exists and is still owned by him and is where his wife and family resides and have been residing ever since. However, the respondent then gave evidence of various periods of residence in different parts of the National Capital District between 1978 and 1987 which total up to five years altogether and which also cover the period two years prior to his nomination for the seat of the National Capital District electorate in 1987.

There is no dispute on the facts that the places of residence between 1960 and 1969 are within the boundaries of the now National Capital District electorate, also that the residence at 16 Mile is outside the boundaries of the National Capital District electorate and further that the places mentioned by the respondent where he alleges he has resided between 1978 and 1987 are within the boundaries of the National Capital District electorate.

Section 103(2) of the Constitution provides as follows:

"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 2 years immediately preceding his nomination or for a period of 5 years at any time."

SCR No 3 of 1984; Kevin Masive v Iambakey Okuk [1984] PNGLR 390 clearly laid down that the five years residence required by s 103(2) of the Constitution need not be continuous. It can be discontinuous or intermittent. It can be an aggregate of different periods of intermittent residence.

The period from 1960 to 1969 about which there is no dispute between the petitioner and the respondent clearly provides the five years required by s 103 of the Constitution. The respondent applied for his citizenship by an application made under s 69(1)(a) of the Constitution and the prerequisite for this was a residence of eight years or more prior to Independence Day. The petitioner submitted that the respondent can only claim any period within eight years and he does this by referring to s 69(1)(b) of the Constitution which covers applications for citizenship by people who do not claim it by virtue of eight years or more residence prior to Independence Day. I set out s 69(1) of the Constitution.

"(1) Subject to Subsection (2), an application for naturalization under Section 67 (citizenship by naturalization) must be made —

(a) in the case of a person who has resided continuously in the country for eight years or more before Independence Day — within two months after Independence Day; and

(b) in the case of any other person — within two months after the completion by him of eight years continuous residence in the country."

However, it is quite clear and admitted by the parties that the petitioner did apply for his citizenship within two months after Independence Day as set down in s 69(1)(a) even though he only actually acquired the citizenship sometime in 1976 presumably after the application had been processed. As he had applied within the two months period and s 69(1)(a) does include the words "eight years or more" it must have been the purpose of the Constituent Assembly when it passed the Constitution that any person who so applied within that two months period of Independence Day would be entitled to any advantages of any residence prior to 1975 and therefore if there was more than eight years residence he must be entitled to the benefit of the whole of the prior residence. Thus there is no cut-off period of eight years prior to 1975 and I am sure that it was the intention that persons in the position of the respondent be entitled to any benefits of the total period that is referred to in his application under s 69(1)(a). Therefore I find that his residence from 1960 to 1969 within the boundaries of the now National Capital District electorate does satisfy the requirements of s 103(2) of the Constitution.

I will go further and note in passing that, based on the principles for residence laid down in Kevin Masive v Iambakey Okuk, the evidence given by the respondent of his residing in Port Moresby in various places between 1978 and 1987 shows a "very real connection", "not a sham", "a very real presence to develop the interests" of the National Capital to "really know and be involved in" the National Capital District such that these periods of residence were very real permanent residence to satisfy the requirements of s 103(2) of the Constitution. That is, they were more than the concept of constructive residence which has been developed in other countries but which is now not accepted as such in our country. There is no doubt that he had a home at 16 Mile in which his wife and family lived and where he visited occasionally at weekends and where he entertained. However, that home did not exclude these other periods of residence in the National Capital which were connected with his business interests in the National Capital and were clearly within the principles laid down by the Supreme Court.

I therefore dismiss this petition and I order that the petitioner pay the respondent’s costs and further that the K200.00 paid into Court as security for costs by the petitioner be paid to the respondent towards his costs.

Orders accordingly

____________________

Lawyers for the petitioner: Warner Shand Wilson Donigi Reiner.
Lawyers for the respondent: Steeles.