Unreported National Court Decisions
N1108
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP 31 OF 1991
JACOB INAMUKA - PETITIONER
V
KASEN NAHE - 1ST RESPONDENT
AND
ELECTORAL COMMISSION - 2ND RESPONDENT
Goroka
Newell AJ
13 May 1992
22 June 1992
ELECTIONS - Provincial Elections - Validity of Provincial Electoral Law - (Eastern Highlands Provincial) Electoral Act 1978.
ELECTIONS PROVINCIAL ELECTIONS - Requirements of Petition.
The 1st Respondent by Motion sought to have the Petition struck out because it did not comply with the requirements of the Electoral Act 1978 (Eastern Highlands). The Petitioner responded by alleging that the Electoral Act 1978 did not apply to Petitions filed in the Eastern Highlands in respect of Elections to the Provincial Assembly.
Held
1)       The Electoral Act 1978 was enacted in accordance with the requirements of the Organic Law on Provincial Government and the Constitution of the Eastern Highlands Province;
2)       The Electoral Act 1978 applies to all Petitions filed in respect of Eastern Highlands Provincial Government Provincial Assembly Elections;
3)       There is no requirement in the Electoral Act 1978 that a Petition must refer to which law the Petition is filed under, and the reference to the legislation (albeit the wrong legislation) is superflous and does not mean that the Petition is invalid;
4)       Costs of this Motion and a half day in Court be paid by the Petitioner to the First and Second Respondents to be taxed if not agreed, and the matter shall proceed at a date to be fixed after those costs are paid by the Petitioner.
Cases Cited:
The following case is cited in this decision:
Re Delba Biri [1982] PNGLR 342
Counsel:
J Aisa for the Petitioner
D A Umba for Respondent
R Rea for the Electoral Commission appearing as Friend of the Court.
Cur adv vult
22 June 1992
NEWELL AJ:  There have been a number of preliminary objections to the validity of the proceedings raised by a number of Notices of Motion:
Whether the Petition was served - in an interim order it was resolved that there was proof of service;
Whether the Petition was filed in Port Moresby - in an interim order it was made that it was resolved that there was sufficient proof that it was filed in Port Moresby;
Whether the Petition was brought under the correct Act or Regulation - the subject of this decision.
The 1st Respondent by Motion sought to have the Petition struck out because it did not comply with the requirements of the Electoral Act 1978 (Eastern Highlands). The Petitioner responded by alleging that the Electoral Act 1978 did not apply to Petitions filed in the Eastern Highlands in respect of Elections to the Provincial Assembly.
DECISION
I am satisfied that the Electoral Act 1978 made by the Eastern Highlands Province is made in accordance with the relevant provisions of the Organic Law on National Elections and the Eastern Highlands Provincial Constitution, and Judicial Notice can be taken of it. Section 112 of the Organic Law on Provincial Government permits a provincial constitution and a provincial law to replace the Provincial Government (Electoral Provisions) Regulation (Ch 56) as the law relating to elections to that Provincial Government.
The lawyers for the Respondents have made available to the Court correspondence which indicates that the Eastern Highlands Electoral Act 1978 was:
Passed by the Provincial Assembly on 27 September 1978; It was sent to the Minister for Decentralisation by the Provincial Secretary on 28th September 1978 - with a request that 30 days notice under Section 36 of the Organic Law be waived;
The Secretary forwarded the Act to the Minister on 2nd October 1978 seeking a waiver under Section 36;
The Minister gave approval for it to be brought into effect on 2nd October 1978 (in a letter dated 4/10/78).
I have no evidence before me of any disallowance of the Eastern Highlands Electoral Act 1978.
The Writs for a general provincial election are issued under Section 43 of the Eastern Highlands Provincial Constitution, and that Constitution has other general provisions relating to the holding of Elections. These are supplemented by the Electoral Act 1978 (Eastern Highlands).
With respect to whether there has been necessary Notice of the Motion under the National Court Rules, I rule that such Rules do not apply as per the decision of the Supreme Court in Re Delba Biri [1982] P.N.G.L.R. 342. However even though the rules do not apply there would have course be a requirement that some form of notice or opportunity to reply be given.
The substantive application is whether the Petition has been brought under the correct legislation. Reference is made to the similarity between the (Eastern Highlands) Electoral Act and the Provincial Government (Electoral Provisions) Regulation (Ch 56). In addition reference is made to the requirements of the Petition in both the Act and the Regulation which indicate that there is no requirement in either that there be any reference to the Act/Regulation under which the Petition is brought in the Petition.
There have been no decision in respect of the Provincial Government (Electoral Provisions) Regulation nor the Electoral Act, that have been laid down that the Act or Regulation be specified. However there is a number of other decisions that relate to the requirements of a Petition in the Organic Law on National Elections and in Re Delba Biri decides that any amendments must be made in the 2 months for filing the Petition. Re Delba Biri also decides the question of what are the requirements, as the Court says at 348:
“But in our opinion the requirements of s 208 reflect the special nature of electoral petitions. Those requirements are, as we have said, strict and mandatory and we think they serve, inter alia, or attempt to limit the frivolous petition and to ensure as far as is possible that the petition is genuine.”
Whilst I agree that the insertion of the name of the wrong legislation in an Election Petition indicates a lack of knowledge of the provincial legislation, it must be realised that the insertion of the name of the legislation is not a requirement of Section 133 of the Electoral Act 1978 which states the requirements for Petitions, the inclusion of the name of the legislation (albeit the wrong legislation) is superfluous, and the Petition is valid. It is not for me at this stage of the proceedings to give any opinion with the respect to whether the Petition is genuine or of a frivolous nature. I add that I do not consider that this Motion is in any way of a frivolous nature, as suggested by the Petitioner, in fact his failure to refer to the correct legislation is a proper matter to be queried by way of Motion.
Costs of this Motion be paid by the Petitioner to the First and Second Respondents to be taxed if not agreed, and the matter shall proceed at a date to be fixed after those costs are paid by the Petitioner.
PREVIOUS MOTIONS - REASONS FOR DECISION
In handing decisions on why I was satisfied that the Petition was served on the First Respondent and was filed in Port Moresby I gave no reasons why I was so satisfied. So to avoid confusion I at this time give my reasons.
SERVICE ON THE FIRST RESPONDENT
I refer to the affidavit of service filed on behalf of the petitioner dated 15th February 1991 sworn by Boniface Nabura and filed on 18th February 1991, and deem this to be sufficient proof of service. The Affidavits of Dennis Umba and Kasen Nahe dated 12th May 1992 refer to a Notice to set down for hearing served on the 1st Respondent in late February 1991, yet such notice was not dated until 28th May 1991, and not filed until 25th June 1992. The 1st respondent is obviously mistaken, and his memory of when he was served with the Petition is faulty.
FILING IN PORT MORESBY
The letter from the Acting Registrar dated 23rd April 1992 annexed to the Affidavit of Reme Rea dated 12th May 1992 merely says that the file is in Goroka, and can no way be said to indicate that the Petition was not filed in Port Moresby, the letter dated 14th April 1992 from the Assistant Registrar-Goroka, also attached to that Affidavit indicates confusion with respect to where the file for this matter is located, not where the Petition if filed. It should be noted also that Konilio,, J on 19th February 1991 had the matter before him on Motion and transferred the matter to Goroka.
I should add that the question of where and when the Petition was filed should be resolved in the future after all procedural requirements for a Petition have been met, by the Petitioner on the filing of the Petition also filing an Affidavit for swearing by the Registrar stating the date and place where the Petition is filed. The presence of such an Affidavit on the relevant Electoral Petition (M.P.) file will in future resolve matters with respect to where and when the Petition is filed.
In view of the decentralisation of the National Court and the establishment of a Registry of the National Court in the Eastern Highlands I would suggest that the Eastern Highlands Provincial Assembly give some thought to amending Section 133(e) of the Electoral Act 1978, by committing the reference to “Port Moresby” and inserting in its place “Port Moresby or Goroka”.
Lawyer for the Petitioner: J F Aisa and Associates
Lawyer for the Respondent: Dennis Anton Umba
Lawyer for Electoral Commission: Solicitor General