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SCR No 5 of 1982; Re Disputed Returns for the Kairuku-Hiri Open Electorate; Hugo Berghuser, Nicholas Koae, Arere Hitolo and Vovovi Selu v Joseph Aoae [1982] PNGLR 379 (19 November 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 379 - SCR No 5 of 1982; Re Disputed Returns for the Kairuku-Hiri Open Electorate; Hugo Berghuser, Nicholas Koae, Arere Hitolo and Vovovi Selu v Joseph Aoae 

[1982] PNGLR 379

SC238

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 5 OF 1982 IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND DISPUTED RETURNS FOR THE KAIRUKU-HIRI OPEN ELECTORATE HUGO BERGHUSER, NICHOLAS KOAE AUO, ARERE HITOLO, VOVOVI SELU

V

JOSEPH AOAE

Waigani

Kidu CJ Kapi DCJ Andrew J

19 November 1982

PARLIAMENT - Elections - Disputed election petition - Petitions - Whether joint petitions permitted - Organic Law on National Elections, ss. 208, 209 - Constitution, s. 185, Sch. 1.8.

PARLIAMENT - Elections - Disputed election petition - Petitions - Deposit required - Liability for on individual petitioner - Organic Law on National Elections, s. 209.

PRACTICE AND PROCEDURE - Supreme Court - Reference under s. 18 of Constitution - Not to be made on assumed facts - Constitution, s. 18.

A petition disputing the validity of an election or return may not be brought to the National Court by joint petitioners, but must be brought by each and every interested petitioner separately and each must pay the K200 deposit.

A reference under s. 18 of the Constitution cannot be made on assumed or hypothetical facts.

Cases Cited

Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Constitutional Reference No. 2 of 1978; In re The Corrective Institutions Act [1978] P.N.G.L.R. 404.

S.C.R. No. 4 of 1982; Re petition of Delba Biri [1982] P.N.G.L.R. 342.

Reference

This was a reference under s. 18 of the Constitution to the Supreme Court of three questions, set out fully in the fourth paragraph of the judgment hereunder, which questions arose during the hearing of a disputed election petition before the National Court.

Counsel

P. Donigi, for the petitioners.

J. Thirwall, for the respondent.

J. Everingham, for the Electoral Commission.

Cur. adv. vult.

19 November 1982

KIDU CJ KAPI DCJ ANDREW J:  A petition has been filed against the election result of Kairuku-Hiri Open Electorate.

The four petitioners are unsuccessful candidates at the National Elections and they all joined in a single petition. At the filing of the petition in the Registry of the National Court, the petitioners deposited a sum of K200 as required by s. 209 of the Organic Law on National Elections. This deposit is evidenced by the National Court Registry receipt No. 496 dated 9th July, 1982.

At the hearing of the petition on 27th September, 1982, counsel for the Electoral Commissioner raised two preliminary points. As these points related to questions of the interpretation of a constitutional law, the National Court was bound to refer the question under s. 18(2) of the Constitution.

The following questions were referred:

1.       May a petition be brought to the National Court by joint petitioners or must a petition be brought by each and every interested petitioner separately?

2.       If the answer to Q.1 affirms joint petitions, does s. 209 of the Organic Law on National Elections require a deposit to be paid by each petitioner who is a party to a joint petition?

3.       If the answer to Q.2 requires each petitioner to a petition to pay a deposit, can the National Court then order payments by petitioners who have not so complied with s. 209 of the Organic Law on National Elections or alternatively order withdrawal of those petitioners who do not wish to so comply?

QUESTION 1

What does the law say on this particular issue? The law to be applied is the Organic Law on National Elections. This is an Organic Law in accordance with s. 126(7)(d) of the Constitution. The law applicable to this issue is therefore to be found in the Organic Law and any regulations that may be made under it: See S.C.R. No. 4 of 1982; Re petition of Delba Biri [1982] P.N.G.L.R. 342.

The relevant provision to be considered is s. 208 of the Organic Law. It is in the following terms:

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 within two months after the declaration of the result of the election in accordance with s. 176(1)(a).

It is clear that the terms of this provision specify the essential requirements of each and every petition filed. A petition filed in accordance with this provision shall be signed by only one person, either by a candidate at the election or a person who was qualified to vote at the election, see s. 208(c). This interpretation is strengthened when read in the light of ss. 208(b) and 209 of the Organic Law. These provisions refer to “the petitioner”. When reading together s. 208 and s. 209 of the Organic Law, a petition under these provisions shall be signed and filed by a single petitioner. We think the reason for the requirement for petitioners to take out separate petitions is clear. Under s. 208(a), different petitioners may rely on different facts for invalidating an election and under s. 208(b), they may claim different relief. To allow more than one petitioner in one petition may confuse the claim by each petitioner on these matters.

There is simply no provision in the Organic Law for having joint petitions. It can be implied from this that the Legislature did not intend that there should be joint petitions. However, if it is desirable to have provisions for joint petitions, then the Legislature can effect this by amendment to the Organic Law.

Counsel for the petitioners sought to rely on Sch. 1.8 of the Constitution. It is in the following terms:

Schedule 1.8:

In a constitutional law:

(a)      words importing the masculine gender include females; and

(b)      words in the singular include the plural and words plural include the singular.

He submitted that by applying Sch. 1.8(b) of the Constitution, the words “a candidate” and “a person” in s. 208(c) of the Organic Law can be interpreted to read “candidates and persons”. However, to apply Sch. 1.8 of the Constitution to s. 208(c) of the Organic Law in this manner is contrary to the intention of the Legislature that a petition under the relevant provisions can only be signed and filed by a single petitioner. Where the contrary intention is shown, Sch. 1.8 of the Constitution can have no application. See Sch. 1.1 of the Constitution. See also S.C.R. No. 4 of 1982; Re petition of Delba Biri (supra).

Having interpreted the provisions of the Organic Law in this way there is no gap in the Law as far as joint petitions are concerned. The Organic Law simply does not allow it. Therefore, the considerations in Sch. 2.3 of the Constitution do not arise.

Counsel for the petitioners also sought to rely on s. 185 of the Constitution. It is in the following terms:

185.    LACK OF PROCEDURAL PROVISION

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

We should point out that counsel for the petitioners did not press the argument. In our opinion, s. 185 of the Constitution does not have any application to the circumstances of this reference. This provision is applicable where there is no provision for the practice and procedure for bringing any matter before the court. The court may give ad hoc directions to remedy the lack or inadequacy in bringing these matters before the court. An illustration of an application of this provision can be found in Constitutional Reference No. 2 of 1978; In Re the Corrective Institutions Act 1957 [1978] P.N.G.L.R. 404. The Supreme Court in that case found that s. 30 of the Corrective Institutions Act was invalid as contravening the Constitutional right to appeal under s. 37(15) of the Constitution. The question which arose concerned the practice and procedure relating to the exercise of the right of appeal from a decision of a visiting justice because there was lack of such a provision. The court found s. 185 applicable in the circumstances and directed that an appeal lies to the National Court as in an appeal from the Local Court and ruled that the rules made under the Local Court Appeal Rules would apply.

The situation here is different. The Organic Law has provided not only for the right to petition but under s. 208 and s. 209 has set out the manner in which a petition may be brought before the National Court. As far as numbers of petitioners in the petition are concerned, it is clear that there shall only be one petitioner. In this regard there is no lack of practice or procedure. The Organic Law gives no right to petitioners to bring a joint petition. Section 185 has no application and it cannot be used to give the right of joint petitions contrary to the intention expressed in the Organic Law. That would be using s. 185 of the Constitution to amend the Organic Law. Compare similar arguments in relation to s. 155(4) of the Constitution in Avia Aihi v. The State [1981] P.N.G.L.R. 81.

Further, we do not think that the question of joint petitions can be resolved by regulation under s. 243 of the Organic Law. Joint petitions are excluded by s. 208 and s. 209 of the Organic Law and can only be allowed by an amendment through the Organic Law.

Confining our answer strictly to the question referred, our answer would be that each and every petitioner must take out a separate petition.

QUESTION 2

It is not necessary to answer Question 2. It is clear from the terms of s. 209 of the Organic Law that each petitioner in a separate petition is required to pay a deposit of K200.

QUESTION 3

The question relates to the deposit of K200 under s. 209 of the Organic Law. This question has been referred on two assumptions. First, that the Organic Law authorizes joint petitions. It follows from what we said in Question 1 that this cannot be so.

The second assumption is an assumption of fact. It is assumed that out of the four petitioners in this petition, one petitioner has paid the deposit of K200 and that the other three have not paid any deposit. It is on this assumption that two parts of the question have been referred. With respect there can be no assumptions of facts in a s. 18 reference. Section 18 questions are referred where facts in a case give rise to a question of interpretation or application of a constitutional law. It is the function of the court which refers the question to find the facts which give rise to such questions. It cannot refer questions on assumed facts or hypothetical facts. The right to refer such questions is given under s. 19 of the Constitution. Only those authorities referred to under this provision can refer hypothetical questions.

The proper thing would be to send this matter back to the National Court to decide the facts on whether each of the petitioners have complied with the requirement of a K200 deposit. In this case the facts appear to us to be obvious. It is clear from the receipt of K200 paid into the Registry of the National Court that the sum of K200 accounts for all four petitioners. It would follow from this that each petitioner can only account for part of the K200. The significance of this is that when the K200 is split between the four petitioners, each petitioner deposited less than K200. On such a finding, each failed to comply with the required deposit of K200 under s. 209 of the Organic Law. The National Court would have no power to allow the petitioners to comply with the deposit of the K200 under s. 209 of the Organic Law: See S.C.R. No. 4 of 1982; Re petition of Delba Biri (supra).

However, for the reasons which we have explained above, we would decline to answer the question.

Questions answered as follows:

Question 1.

There is no provision in the Organic Law on National Elections for a joint petition disputing the validity of an election or return.

Question 2.

It is unnecessary to answer this question.

Question 3.

Not answered.

Solicitor for the petitioners: P. Donigi.

Solicitor for the respondent: Kirkes.

Solicitor for the Electoral Commission: The State Solicitor.