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Re Application of Arege Yamagu [1986] PGNC 19; [1986] PNGLR 248; N573 (12 December 1986)

N573

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RE APPLICATION OF AREGE YAMAGU

Mount Hagen
Wilson J
11-12 December 1986

PARLIAMENT - Elections - Nomination of candidate - Compliance with statutory requirements mandatory - Time for - Prescribed time expired - No power to extend time - Failure to sign consent to act invalidates nomination - Not formal defect - Eastern Highlands Provincial Government Electoral Act 1978, ss 51, 53.

Held

(1) Compliance with the time limits for nomination of candidates for election prescribed by the Eastern Highlands Provincial Government Electoral Act 1978 are mandatory and the National Court has no power to extend the time prescribed by s 51(b) in which a candidate for election to the Provincial Government may so nominate, once the prescribed period has expired.

In Re Organic Law on National Elections [1982] PNGLR 289 and Billy Jababa v Iambakey Okuk [1983] PNGLR 69, followed.

(2) (Obiter) As a failure to sign the "consent to act if elected" requirement under s 51(a) before the term prescribed by s 51(b) has expired invalidates the nomination, such a failure could not be treated as a formal defect or error within s 53.

Billy Jababa v Iambakey Okuk [1983] PNGLR 69 at 74, followed.

(3) Accordingly, a nomination received two hours after the prescribed closing time for nominations because of a motor vehicle breakdown which prevented the nominee from lodging his nomination in time, was properly rejected.

Cases Cited

Billy Jababa v Iambakey Okuk [1983] PNGLR 69.
Organic Law on National Elections, In Re [1982] PNGLR 289.

Notice of Motion

This was an application on notice seeking a judicial review of a decision of a Returning Officer to reject the nomination of the applicant as a candidate for election to the Eastern Highlands Provincial Government.

Counsel

D Umba, for the applicant.
P Ame, for the Electoral Commission.
Cur adv vult

12 December 1986

WILSON J: This is an application for judicial review of a decision by the Returning Officer of the Agarabi Constituency on 25 November 1986 whereby he rejected the nomination of Arege Yamagu as a candidate for the Eastern Highlands Provincial Elections.

The applicant is the Deputy Premier of the Eastern Highlands Provincial Government. He has successfully contested two previous Provincial elections.

Tuesday, 25 November 1986 was the date at which nominations closed at the hour of 11 am. Mr Yamagu was at his village some nine kilometres from Kainantu, where the Returning Officer was located, and he left at 9 am to make his way there to lodge his nomination form. His vehicle broke down, he tried to repair it but was not successful. At about midday Mr Tonke Pa’eto and Mr Zuraina Bolong came to where his vehicle had broken down and gave him a lift to Kainantu. These two gentlemen had been at the Returning Office and knew that Mr Yamagu was intending to be there. They had set out to look for him when he did not arrive in the morning.

On arriving in Kainantu, Mr Yamagu went to the Returning Office and he says he signed a nomination form which had already been filled out by the Returning Officer, Philipson Sopilagai. He produced a receipt for K50.00 being the nomination fee, which he had paid at Goroka on 21 November 1986.

The time was about 1 pm, two hours after the close of nominations. He says that he was then told to go outside with the other candidates to have his photograph taken for the purpose of being placed on the ballot paper.

About one hour later the Returning Officer put all the nomination papers together to arrange the draw for fixing the appearance of candidates on the ballot paper. At this stage he says that when the Returning Officer came to his nomination form he set it aside and returned it to him advising him that the nomination was rejected because it was out of time. He says that he was advised to take the matter up with the Provincial Electoral Office in Goroka which he says he did and was advised to seek legal advice and to take any challenge to the decision to court, which he did.

Prior to the closing date, Mr Yamagu claims that he was telephoned by the Returning Officer on 20 November, while he was at his office in Goroka, and was advised to pay his nomination fee in Goroka and bring the receipt to Kainantu. He claims that the Returning Officer also advised him, at the same time, that he, the Returning Officer had already filled in the nomination form and had signed as Electoral Officer.

The applicant’s case then is that a nomination form had been received before the close of nominations, the fee had been paid and that his failure to sign the "consent to act if elected" was a formal defect only and that his nomination was improperly excluded.

Apart from an affidavit to the effect of the foregoing by Mr Yamagu, on which he was cross-examined, two affidavits by Zuraina Bolong and Tonke Pa’eto were also relied on. These affidavits confirm that Mr Yamagu’s vehicle had broken down and that they had provided transport to get Mr Yamagu to Kainantu.

It is appropriate to set out here the relevant provisions of the Eastern Highlands Provincial Government Electoral Act 1978:

49. Mode of Nomination

(1) A nomination shall be in the approved form and shall:

(a) name the candidate, his place of residence and occupation; and

(b) set out the qualifications by virtue of which he is qualified for nomination; and

(c) be witnessed by a person to whom the candidate is personally known.

50. To whom nominations made

(1) Nominations of members may be made to the Assistant Returning Officer for the constituency for which the election is to be held, or to a person authorised by the Electoral Commission.

(2) Subject to Subsection (3), nominations may be made at any time after the issue of the writ and before the hour of nomination.

(3) Nomination of a person who is not enrolled for the constituency shall be made at least 7 days immediately proceeding the hour of nomination.

(4) The Assistant Returning Officer or other person referred to in Subsection (1) shall immediately notify the Returning Officer by telegram or other manner approved by the Electoral Commission in the approved form of details of the nomination and deposit and forward a photograph of the candidate to the Returning Officer.

51. Requirement for Nomination

No nomination is valid unless:

(a) the person consents to act if elected and declares that he is qualified under the provincial laws to be elected as a member; and

(b) the nomination paper is received by the Assistant Returning Officer after the issue of the writ and before the hour of nomination; and

(c) at the time of the delivery of the nomination paper the person nominated or some other person on his behalf deposits with the Assistant Returning Officer or other person to whom the nomination is made, the sum of K50.00 in money or in a banker’s cheque.

52. Form of consent to act

The consent and the declaration of qualifications referred to in Section 51(a) shall be sufficient if the candidate signs the form of consent and declaration in the nomination paper, but the Assistant Returning Officer receiving the nomination may accept any other form of consent and declaration, whether accompanying the nomination paper or not, that he considers satisfactory and that acceptance is final.

53. Formal defects

No nomination shall be rejected by reason of a formal defect or error if the Assistant Returning Officer receiving the nomination is satisfied that the provisions of this Act have been substantially complied with.

Mr Philip Ame appeared instructed by the Electoral Commission. He tendered two affidavits contesting the version of events given by Mr Yamagu. These affidavits were by Philipson Sopilagai, the Returning Officer and Tota Izape Namazo, the Assistant Returning Officer. Their version of events as to what occurred in the office at about 1 pm on 25 November is in substantial conflict to Mr Yamagu’s evidence.

Mr Sopiligai says that Mr Yamagu came into the office at about 1 pm. He knew that Yamagu was there to lodge his nomination form and he advised Yamagu immediately that the time for nominations had expired and that he could not receive his form. Yamagu then stated that his form should be filled out because he had paid his nomination fee. He says he asked Yamagu for his nomination form but he said he had not filled one out. He says he raised this with Yamagu because Yamagu telephoned him on 21 November to advise that he had paid his nomination fee and that then he had advised Yamagu that he must bring his nomination form to the Kainantu District Office by 11 am on 25 November.

Sopilagai insisted that he could do nothing about the late nomination. He says that Yamagu would not accept this and demanded that a nomination form be completed. Yamagu was the Deputy Premier and Provincial Minister for Affairs, the Ministry which employed Sopiligai. He was afraid of Yamagu and he says he reluctantly filled out the form which he says he knew was invalid because of the failure to meet the time limit.

Yamagu stayed until 5 pm insisting that his nomination be accepted and Sopilagai maintained his objection. Yamagu then demanded that he be given the completed form which Sopiligai objected to because it was the property of the Electoral Commission.

Finally he gave in and let Yamagu take the form which he claimed he would take to the Electoral Office in Goroka.

Sopilagai says that about 8.15 pm that evening, 25 November, Yamagu came to his house and told him not to advise the Assistant Secretary of Provincial Affairs about the incident. He says that he formed the clear impression that Yamagu was trying to use his position to have his name included in the declared list.

In cross-examination on his affidavit it was put to Sopilagai that he had in fact completed the nomination form on 20 November, the date of the alleged telephone call to Yamagu, and that he had subsequently altered the date the "space to be filled in by Electoral Officer" to 25 November 1986. He denied doing so.

The affidavit of Tota Izape Namazo, the Assistant Returning Officer, who was present when Yamagu came to the office at 1 pm confirmed the version put forward by Sopilagai. He was not called to be cross-examined.

Before proceeding to the legal issues involved it is necessary for me to determine which version of the facts I accept. Before doing so, I note that in answer to my question as to why he had left it to the last day to nominate, Yamagu said that pressure of his work commitments did not give him time to lodge his nomination in the preceeding two weeks.

As I have indicated, both Yamagu and Sopilagai were called and cross-examined on their affidavits. They both stuck to their stories and there was little between them in terms of demeanour and the manner in which they gave their evidence.

I do not have any difficulty in accepting the probability of the version given by Sopilagai about how determined Yamagu was that his nomination should be accepted. He had a great deal at stake and it is not unreasonable to assume that he would be quite forceful in making his demands of a public servant. I find that Sopilagai’s account is the one which I accept. I am strengthened in my finding by the fact that his version is confirmed by the Assistant Returning Officer whose affidavit evidence was not challenged through cross-examination although he was available if so required.

It follows then that I reject the allegation that the nomination form was filled in prior to the closing date and the allegation that it was subsequently altered as to the date by Sopilagai.

With my findings the case for the applicant is not sustainable despite Mr Umba’s fair and pertinent submissions which were only relevant if I accepted the applicant’s version of events.

I do accept, however, that the applicant did have difficulties with his motor vehicle and it was this which caused him to miss the nomination time.

In Re Organic Law on National Elections [1982] PNGLR 289, the applicant had been intercepted on the way to lodge his nomination when he was arrested by the police. The court there held that there was no power to extend the time for lodging the nomination. In Billy Jababa v Iambakey Okuk [1983] PNGLR 69 the Supreme Court was explicit about the mandatory nature of compliance with the Electoral Act. In the joint judgment of Kidu CJ and Andrew J their Honours state (at 70): "... The nomination paper has to be lodged within due time."

I have no doubt, considering what is said in these two authorities that the failure by the applicant to lodge his nomination form by the due time is fatal.

While it no longer falls to me to decide, I wish to indicate that even had I accepted the applicant’s version of events his application would not have been successful. He would have still not completed his "consent to act" declaration. Section 51 of the Eastern Highlands Provincial Government Electoral Act 1978 specifies that no nomination is valid unless, among other matters, the person consents to act if elected, and declares that he is qualified under the provincial laws to be elected as a member. No such consent and declaration had been made by 11 am on 25 November, so any nomination form omitting this would be invalid. Such a defect would not come with the definition of formal defect in s 53. See at 74 of Billy Jababa v Iambakey Okuk where the provisions in s 88 of the Organic Law on National Elections (in similar terms to s 53 of the Provincial Act) are interpreted.

For the reasons I have outlined I decline to issue the orders sought in the applicant’s notice of motion. The costs of the Electoral Commission in meeting this application are to be borne by the applicant.

Notice of motion dismissed

____________________

Lawyer for applicant: Denis Umba.
Lawyer for Electoral Commission: State Solicitor.