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In the Matter of The Organic Law on National and Local-Level Government Elections; Mongi v Vogae [1997] PGNC 140; N1635 (24 October 1997)

Unreported National Court Decisions

N1635

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 49 OF 1997
IN RE: THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN RE: A DISPUTED RETURN IN A GENERAL ELECTION FOR THE WEST NEW BRITAIN PROVINCIAL ELECTORATE IN THE 1997 GENERAL ELECTIONS
BETWEEN
GREG MONGI - PETITIONER
AND
BERNARD VOGAE - FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
21 October 1997
24 October 1997

Counsel

J Sirigoi for the Petitioner

G Manda for the First Respondent

J Nonggorr for the Second Respondent

24 October 1997

INJIA J: The respondents by separate motions apply to dismiss the election petition filed pursuant to s. 206 of the Organic Law on National and Local-level Government Elections No. 3 of 1997 (hereinafter abbreviated OLNE) on 8 August 1997. The applications are based on two grounds namely: (1) that the Petition fails to comply with OLNE s. 208 (a) in that the petition does not set out sufficient facts to support the grounds of bribery and errors or omissions; (2) that the petition fails to comply with s. 208 (b) in that the petition does not set out the correct relief the petitioner is entitled to seek under OLNE, s. 215 (1). I will deal with the latter ground first. If I decide to dismiss the petition on this ground alone, it may become unnecessary to decide the first ground.

The provisions of the OLNE relevant for the purpose of this exercise are s. 208 (a) & (b) and s. 210 but for completeness sake I set out Ss. 208, 209 & 210 in full:

“208. Requisites of Petition

A petition shall:

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

209. Deposit as Security for Costs

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.

210. No Proceedings unless Requisites Complied with

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

The principles relating to the construction and application of the above provisions are well settled in this jurisdiction. An election petition must strictly comply with the mandatory requirements of s. 208 and no petition can proceed to a substantive (evidentiary) hearing unless each and every requirement in s. 208 is strictly complied with. Failure to comply with s. 208 can result in an election petition being struckout or dismissed at a preliminary stage of the proceedings: see Biri v Ninkama [1982] PNGLR 342; Holloway v Ivarato [1988] PNGLR 99, SC Rev. No. 45 of 1994 re: William Elaip Wii, Unreported Supreme Court judgment dated 26 July 1994. The decision in Re William Wii is an unnumbered decision which means the decision was not published or circulated outside of the judiciary.

The principles in relation to s. 208 (b) specifically were settled by the Supreme Court in Re William Wii. In that case, the Petitioner, Mr Michael Mel, filed a petition disputing the election of Mr Wii as the member for the Aglimp South Whagi open electorate in the Western Highlands Province in the 1992 general elections. The petition contained allegations of bribery committed by Mr Wii. These allegations fell under OLNE, s. 215 (1) which provided that “If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate shall be declared void”. The relief set out in the petition were inter alia, an order “that the First Respondent was not duly elected” and “that the election for the Aglimp - South Whagi Open electorate is null and void”. After conducting a substantive evidentiary hearing, the National Court found the allegations of bribery made out by the Petitioner and declared “the election of the First Respondent for the Aglimp South Whagi Open Electorate to be void”. Upon review of this decision, the Supreme Court unanimously allowed the review and quashed the decision of the National Court and consequentially, dismissed the original petition. The Supreme Court discussed the relevant provisions of the OLNE relating to the pleading of the correct relief to be sought, in particular s. 208 (b), s. 217, s. 215 (1) & (3), s. 212 & s. 226. The Supreme Court decided that the Petitioner is only entitled to seek in the petition the correct relief available to him under OLNE, s. 215 (1). The Court decided that pursuant to OLNE, s. 215 (1), on an allegation of bribery committed by the Petitioner, the Petitioner was only entitled to seek a declaration, and the National Court could only properly declare, that the election of the successful candidate, the First Respondent, was void. In arriving at this decision, the Supreme Court, at p. 12 of their judgment said this of OLNE, s. 208 (b):

“Section 208(b) of the OLNE says that “the petitioner shall specify the relief to which the petitioner claims to be entitled”. We are of the view that that does not mean that the petitioner can select a relief to his own liking. Certainly in Section 212 of the OLNE the Court has certain discretionary powers, one of which is to “declare that a person who was returned as elected was not duly elected”. But we are satisfied that when a section such as the said 215 spells out the relief precisely then that is the relief that the petitioner is “entitled” to in the event that he is successful. He cannot ask that a person be found to be not duly elected when the section says that it be found that his election be declared void. Where bribery and undue influence is committed and proved then the Court can only find that his election be declared void.”

In the present case, there is two types of allegations. The first type is that there is allegations of bribery committed either by the First Respondent, or by his agents, with the knowledge of authority of the First Respondent. These are set out in clauses 5 (a)-(j) of the petition. For purposes of s. 215 (1), if these allegations were to be proved at the substantive hearing, the result will be that the election of the First Respondent will be declared void: see Karo v Kidu N1626 (9/10/97), at p. 12. The second type is that there is two (2) allegations of errors and omissions by servants or agents of the Second Respondent. These appear in Clauses (K) & (L). If these allegations were to be proved at the substantive hearing, then under s. 215 (3), the National Court can “declare that a person returned as elected was not duly elected or declare the election void”.

The relief sought in the Petition by the Petitioner in this case is:

“The relief to which the Petitioner claims to be entitled is:

(a) A declaration that the election for the West New Britain Provincial Electorate in the 1997 General Elections is absolutely void.

Costs.”

It is submitted for the respondents that the principal relief sought in para (a) above is not available to the petitioner under s. 215 (1) and therefore, he is not entitled to claim it. This submission is advanced in relation to Clauses 5 (a), (b) & (h) of the petition which set out instances of bribery committed by the First Respondent. The same argument is advanced by counsels for the respondents in relation to clauses 5 (c), (d), (e), (f), (g), (i) & (j) which set out instances of bribery committed by persons other than the First Respondent but committed with the knowledge and authority of the First Respondent. It is submitted that given the Courts construction of s. 215 (3) (a), that an election of the successful candidate can be declared void as in s. 215 (1) if the bribery is committed by persons other than a winning candidate with the knowledge or authority of the winning candidate, the petitioner is not entitled to the relief claimed in the petition. They submit that the appropriate relief which the petitioner was entitled to claim is a declaration that the election of the First Respondent is void and not a declaration that the “elections for the West New Britain Provincial Electorate in the 1997 general elections is void.” Both counsels rely on the authority of Re William Wii. Counsel for the Petitioner appears to accept the premise that the relief pleaded in para (a) above comes squarely within the principles in Re William Wii. He however submits that this Court should not follow the principles in Re William Wii because it was decided “per incurriam” in that the Supreme Court erroneously interpreted s. 208 (a) & s. 215 (1) (3) & s. 212 & s. 226. He submits the principles enunciated by various National Courts in Bourne v Veoto [1997] PNGLR 298, Ipe v Napas [1981] PNGLR 128, Momis v Kor N1014 which set out the correct exposition of the law in relation to these very Sections were not cited to the Supreme Court by counsels in the Re William Wii case, that the decision was made in ignorance of these National Court decisisons and therefore, it should not be followed. Counsels for the respondents contend that the decision of the Supreme Court in Re William Wii is binding on this Court pursuant to Constitution, Sch. 2.9 and it should be followed.

I agree with the respondent’s submissions. The Supreme Court’s decision in Re William Wii is clearly determinative of the point in issue before me in this case. That decision favours the respondent’s arguments. Pursuant to Constitution Sch. 2.9, I am bound to apply those principles. It is not open to this National Court to attempt to rectify any perceived error in a judgment which may have been committed by the Supreme Court. Only the Supreme Court can correct its own mistakes. Alternatively, only the Parliament, through legislation, can rectify an erroneous Supreme Court decision. Therefore all the grounds of bribery pleaded in clauses 5 (a)-(j) of the petitioner cannot stand in law.

The remaining clauses in the petition are clauses 5 (k) & (l). These clauses plead errors and omissions on the part of the Second Respondent’s officials. The relief they have sought in para (a) supra, also applies to these clauses. The question is whether the relief sought is available to the petitioner on those grounds. Although this point was not addressed by the counsels, it is clear to me under s. 215 (3) that an election may be declared void based on the errors or omission of the Second Respondent. Therefore, this relief qualifies under s. 215 (3). It is then submitted for the respondent that even then, the pleadings lack sufficient facts and should be struck out for failing to comply with s. 208 (a). In respect of clause 5 (k), it is submitted this clause fails to show how many votes were in the ballot box which was not counted; that because the number of votes scored by the winning candidate, the First Respondent, and the Petitioner are also not pleaded, it is difficult to see how the omission complained of materially affected the result of the election. They also submit clauses 5 (k) and (l) fail plead whether the result was likely to be affected at all as required by s. 208 (a) in conjunction with s. 215 (3). It is submitted for the petitioner that because the votes in that box were never counted, the exact figures cannot be provided.

I agree with the submissions for the respondents. Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected. Both clauses 5 (k) and 5 (l) meet these requirements. They should be struck out or dismissed as well.

For all these reasons, the whole of the allegations of bribery set out in clauses 5 (a)-(i) inclusive of the Petition insofar as they relate to the incorrect relief are struck out for failing to comply with under s. 208 (b). Having arrived at this view, I do not think it is necessary to consider the arguments under s. 208 (a) raised by the parties in relation to clauses 5 (a)-(j). The allegations of errors and omission under clauses 5 (k) and 5(l) are struckout or dismissed for failing to comply with s. 208 (a) in conjunction with s. 215 (3). The end result is that there is no allegation remaining to proceed to trial. Therefore, the whole petition is dismissed. Cost of these proceedings is awarded to the respondents, to be taxed, if not agreed.

Lawyer for the Petitioner: Henaos

Lawyer for the First Respondent: Warner Shand

Lawyer for the Second Respondent: Nonggorr & Associates