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Siaguru v Unagi [1987] PGNC 63; [1987] PNGLR 372; N641 (13 November 1987)

N641

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ANTHONY MICHAEL SIAGURU

V

DAVID UNAGI AND THE ELECTORAL COMMISSIONER

Waigani
Bredmeyer J

6 November 1987
13 November 1987

PARLIAMENT - Elections - Disputed election petition - Practice and procedure - Form of petition - Statutory requirements to be strictly complied with - Facts relied upon to invalidate election - Requires statement of facts as in pleading - Organic Law on National Elections (Ch No 1), s 208(a) - National Court Rules, O 8, r 8.

The Organic Law on National Elections (Ch No 1), s 208, provides that:

"A petition [disputing the validity of an election or return under s 206] shall:

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

Held:

(1) The provisions of s 208 of the Organic Law on National Elections are to be strictly complied with.

SCR No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342, followed.

(2) For the purposes of s 208(a) the petitioner must state not only the grounds upon which he relies, such as bribery, undue influence, etc, but the facts upon which they are based in the same manner as material facts might be pleaded under the National Court Rules, O 8, r 8.

Cases Cited

The following cases are cited in the judgment:

Beal v Smith [1869] [1869] UKLawRpCP 2; LR 4 CP 145.
Berrill’s Petition and Boothby (SA), Re (1978) 52 ALJR 359; 19 ALR 254.
SCR No 4 of 1982; Re Delba Biri v Bill Gunbogl Ninkama [1982] PNGLR 342.

Notice of Motion

A notice of motion was filed by the first respondent that cll 1, 2 and 3 of an electoral petition be struck out for non-compliance with s 208(a) of the Organic Law on National Elections (Ch No 1). Clause 1 of the petition read:

"The successful candidate was guilty of illegal practices:—

(a) bribing voters to cast their votes in the Moresby North East Electorate when those voters were not qualified to so vote.

(b) unduly influencing voters to cast their votes in the Moresby North East Electorate when those voters were not qualified to so vote."

Clauses 2 and 3 were in similar form. A notice of motion was filed by the second respondent that cll 5(b) and (c) and cl 6 of the petition be struck out. Those clauses read:

"5. Errors or omissions of officers conducting the election affected the results of the Election and in particular:

(a) ...

(b) failing to comply with the provisions of Section 134 of the Law; and

(c) non-compliance with Section 140(1) and (2) of the Law; and

(d) ...

(e) ...

6. Furthermore, errors or omissions of officers conducting the election affected the results of the Election as they relate to votes cast pursuant to Section 141 of the Law by:—

(a) failing to comply with the provisions of Section 136(1)(c) of the Law; and

(b) failing to comply with and enforce the provisions of Section 141 of the Law; and

(c) failing to comply with the provisions of Section 161 of the Law; and

(d) failing to comply with the provisions of Section 162 of the Law; and

(e) delivering ballot papers to persons not qualified to receive them and contrary to the provisions of Sections 136 and 141 of the Law; and

(f) admitting ballot papers for further scrutiny contrary to the provisions of Section 161 and 162 of the Law."

Counsel:

G Lay, for the petitioner.
R Pato, for the first respondent.
P Young, for the second respondent.
Cur adv vult

13 November 1987

BREDMEYER J.: There are three notices of motion before me and it is convenient to deal with two of them together. The first two are applications to strike out various paragraphs in the petition for failing to comply with s 208 of the Organic Law on National Elections which requires in par (a) that "the petition shall set out the facts relied on to invalidate the election". The leading case on this matter is SCR No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342. It is a very strong authority. It is a unanimous decision and it says that the statutory requirements of an election petition have to be strictly complied with. The facts in that case were a little different; the petitioner had failed to put the occupations of the attesting witnesses but nevertheless the case establishes a principle that it is necessary to comply strictly with s 208 and it bases that view on some high sounding principles. At 345, the court said that an election petition is not an ordinary cause, it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity for electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

It is not open to me as a single judge to escape from that decision. The normal principles behind pleadings are that they define the issues in dispute and they ensure that the opposite party is not taken by surprise, and if the pleadings are inadequate they can be corrected by amendments and by particulars. But in view of that strong decision on principles, a decision binding on me, s 208 must be complied with strictly.

The next case quoted to me was Re Berrill’s Petition and Boothby (SA) (1978) 19 ALR 254. That is a High Court decision and in that petition it was alleged that various sections of the Electoral Act 1918 (Cth) "were not complied with or were wrongly applied". The petition quoted numerous sections eg ss 8, 19, 30 and so on that were not complied with or were wrongly applied. It gave no facts or no details to why they were not complied with or wrongly applied, and the unanimous decision of the High Court of Australia, comprised of five judges, in a very brief decision was that this was a non-compliance with s 185 and s 187 of the Electoral Act. That decision is only persuasive authority in Papua New Guinea, nevertheless, because those two sections are identical with our s 208 and s 210 and because that case is absolutely consistent with Delba Biri’s case, it is a strong authority which supports the position taken by the two of the parties that various parts of the petition should be dismissed.

In England the position appears to be different. I refer to Halsbury’s Laws of England (4th ed), vol 15, pars 838 and 877 and to an English case called Beal v Smith [1869] UKLawRpCP 2; [1869] LR 4 CP 145. Beal v Smith concerned an election petition and the petition used very general words that the respondent "by himself and other persons on his behalf was guilty of bribery, treating and undue influence before, during, and after the election". The statutory requirements for a petition there were that the petition had to be "in such form and state such matters as may be prescribed" and the rules prescribed that the petition "shall briefly state the facts and grounds relied on to sustain the prayer". It was held in that case that those words in the petition were sufficient, that it was sufficient to allege the grounds of bribery, treating and undue influence with generality and that later on particulars could be supplied. It was sufficient to follow the spirit and intention of the rules and that no injustice would be done as particulars could be ordered and that would prevent the respondent being taken by surprise.

That case is quoted in the Halsbury’s Laws of England, par 838 as good law in England. I am not sure, however, if that is right because the English Rules have changed a little. Section 108(3) of the Representation of the People Act 1949 (UK) states that the petition shall be in the prescribed form and state the prescribed matters. And the rules prescribe those matters and they are quoted in Halsbury’s, par 838 at 458, and they say that the petition must state:

"the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved."

So I doubt whether Beal v Smith is still good law and in view of that rule.
Whatever the law in the United Kingdom is, I believe the law in Papua New Guinea is that you have to state not only the grounds like bribery and undue influence but the facts on which they are based. And there is no great difficulty in deciding what are facts as the normal rule in pleadings, as in our National Court Rules, O 8, r 8, and in many other jurisdictions, is that the pleadings shall contain a statement in summary form of the material facts on which the petitioner relies but not the evidence by which the facts are to be proved. A pro forma for an election petition which adequately states the facts relied upon is found in Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (2nd ed), vol 18, at 181, form 10.

I consider that the petition does not state the facts on which the petitioner relies and I propose to strike out pars 1, 2, 3, 5(b), 5(c) and all of par 6 of the petition.

I now turn to the third notice of motion before me which is by the petitioner that the court direct that the sealed parcels of Division 3 voters’ declarations for the seat of Moresby North East be opened for the purpose of examination by the petitioner.

I am sympathetic to that application which is made under s 167 but I consider that, in view of all the clauses in the petition which I have struck out, the application will have no significance. Nevertheless I do grant that order insofar as it relates to any of the matters alleged in the remaining clauses of the petition.

Question of costs is reserved.

Orders accordingly

__________________

Lawyer for the petitioner: Young & Williams.
Lawyer for the first respondent: Steeles.
Lawyer for the second respondent: Secretary for Justice.