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Application by the Electoral Commission; Re Southern Highlands Elections Act 1979 [1991] PGSC 6; SC418 (31 October 1991)

Unreported Supreme Court Decisions

SC418

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
REVIEW PURSUANT TO THE CONSTITUTION SECTION 155(2)(B) APPLICATION BY THE ELECTORAL COMMISSION

Waigani

Kapi DCJ Konilio Andrew JJ
24 September 1991
31 October 1991

PARLIAMENT - Elections - Election petition - Form of petition - Compliance with regulations as to filing etc. mandatory - Compliance pre-requisite to jurisdiction - No power to dispense with compliance - Provincial Government (Electoral Provisions) Regulation 1977 (as applied to the Southern Highlands Province) ss 184, 185.

Compliance with s 185(e) is strict and mandatory and an electoral petition must be filed in the Registry of the National Court at Port Moresby.

Cases Cited

Mapun Papol v Antony Temo and The Electoral Commission [1981] P.N.G.L.R. 178.

SC Reference No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] P.N.G.L.R. 342.

Legislation Cited

National Court Act (Ch No 38).

National Court Rules.

Organic Law on National Elections.

Provincial Government (Electoral Provisions) Regulation (Ch No 56).

Southern Highlands Provincial Government Elections Act 1979.

Counsel

P Ame, for the applicant.

R Habuka, for the petitioner.

31 October 1991

KAPI DCJ KONILIO ANDREW JJ: This is a review pursuant to s 155(2)(b) of the Constitution sought by the Principal Legal Adviser and lawyer for the Electoral Commission, seeking the quashing of orders granted by the National Court wherein the court refused to strike out an election petition for not complying with s 185(e) of the Southern Highlands Elections Act 1979 (as adopted).

The grounds for review are as follows:

(1) The learned judge erred in law in holding that the petitioner’s failure to file the petition in the Registry of the National Court at Port Moresby as required by s 185(e) of the Southern Highlands Elections Act 1979 (as adopted) was a question of practice and procedure and could not be questioned.

(2) The learned judge erred in law in holding that detriment or prejudice to either party had to be shown to exist to enable the motion to succeed.

The background to this matter is that an electoral petition was filed at the National Court at Mt Hagen on 22 August 1990 disputing the validity of the election and return of the member for the AIYA Constituency in the 1990 Southern Highlands Provincial Assembly elections, and the required sum of K200 was deposited as security for costs. The petition was inscribed as MP No 116 of 1990 and bears the seal of the National Court.

On 16 May 1991 the Electoral Commission made application by Notice of Motion before the National Court sitting at Mendi seeking orders that the petition be dismissed on the ground of failing to file the petition and deposit the sum of K200 with the National Court Registry at Port Moresby as required by s 185(e) of the Provincial Government (Electoral Provisions) Regulation (Ch No 56) as adopted and applied by s 2 of the Southern Highlands Provincial Government Elections Act 1979. The learned trial judge in his reasons on judgment found as follows:

“The applicant says quite correctly that the document or petition was filed at Mount Hagen but this fails to take account of the fact that this suit has been numbered and bears the seal of the National Court. The practice and procedure of the court is a matter for it and it will not avail a party to seek an advantage where the court officers at Mount Hagen have taken steps to assist all parties. These include accepting the documents as a conduct to facilitate their sealing and the issuing of a miscellaneous proceedings number from Waigani, receipting monies which remain with the court pending furthermore and for parties’ convenience, posting the sealed documents to the respective parties. There is only one Registry, that at Waigani; there is only one national file numbering there, provided by the Waigani National Court Registry and that number is endorsed on documents filed in these proceedings. It is not a question of jurisdiction at all, but rather the practice and procedure personal to the court which has been called in question.

Where no detriment has been shown to exist, rather the facility provided by the Deputy Registrar at Mount Hagen has advantaged the parties by the efficient despatch of such petition, I do not see any need to make particular orders or directions to correct, as it were, any anomaly which may have prejudiced any party. No prejudice has been shown to exist.”

The substance of this review is therefore whether or not the Provincial Government (Electoral Provisions) Regulation (Ch No 56) must be strictly complied with to the extent that an electoral petition can only be filed in the registry of the National Court at Port Moresby. The Southern Highlands Provincial Government Elections Act (1979) adopts the Provincial Government (Electoral Provisions) Regulation (hereinafter referred to as the Regulation) with the necessary modifications as have most of the provincial governments.

Section 185 of the Regulation is as follows:

“185. 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 or by the Electoral Commissioner; 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 within two months after the declaration of the result of the election in accordance with Section 153(1)(a).”

At the time of the passing of the Regulation there was only one National Court Registry at Port Moresby. Subsequently with the advent of the National Court being established in provincial centres, various registries have been opened and deputy registrars appointed. However, the locations of registries have only been gazetted as such under the provisions of the National Court Act (Ch No 38) on 8 August 1991 (Gazette No G.71). Those registries apart from Port Moresby are Lae, Rabaul, Mt Hagen and Goroka.

The Supreme Court has held in numerous decisions that compliance with the Electoral Acts is both strict and mandatory. A case in point dealing with ss 184 and 185 as applied to the Southern Highlands Province was Mapun Papol v Antony Temo and The Electoral Commission [1981] P.N.G.L.R. 178, where the National Court held that a petition contesting the validity of an open parliamentary election must comply with the requirements as to form and contents prescribed in ss 184 and 185 of the Provincial Government (Electoral Provisions) Regulation 1977 and such compliance is a pre-requisite to the jurisdiction of the National Court and the court has no power to dispense with any of the requirements of the section. In discussing the equivalent sections in the Organic Law on National Elections, the Supreme Court in SC Reference No 4 of 1982, Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342, held that the method of disputing an election given by ss 206 and 208 of the Organic Law is a right given by statute. The Organic Law gives no powers to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation. Furthermore, it was held that the National Court Rules can have no application to election petitions. The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court. There is nothing in the Organic Law which adopts the application of the National Court Rules. The Organic Law in setting out its own provisions is clear that the rules can have no application. The law is to be found in the Organic Law and any regulations made under it.

The provisions of s 185 of the Regulation are therefore strict and mandatory and they require that the petition shall be filed in the National Court Registry at Port Moresby. There is no dispute here that the petition was filed in Mt Hagen and accordingly s 185(e) of the Regulation has not been complied with. This may be thought to be an overly harsh and restrictive interpretation especially when registries have been established in provincial centres for the purpose of making access to the law more readily available to all. But in our judgment the Regulation alone establishes the requisites for the filing of a petition and if they are not complied with then the petition will fail. This situation can only be cured by amending the Electoral Acts and is not overcome even by the official establishment of National Court registries in provincial centres under the National Court Act. Also, in our judgment, it is not a question of detriment or prejudice to a party, but a question solely of whether or not the Electoral Act has been strictly complied with.

ORDERS

The grounds for review of the National Court order are upheld and the order of the National Court in an application by Notice of Motion in MP No 116 of 1990 wherein the court refused orders to strike out the petition for not complying with s 185(e) of the Southern Highlands Provincial Government Elections Act, is quashed.

The Election petition inscribed as MP No 116 of 1990 - Paul Akera v Yako Mano and the Electoral Commission is struck out.

Lawyer for the applicant: Principal Legal Adviser.

Lawyer for the petitioner: J McTeine.