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Momis v Kor [1991] PGNC 63; [1991] PNGLR 363; N1014 (10 October 1991)

N1014

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MOMIS

V

IBNE KOR

AND

ALBERT MOKAI

AND

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Waigani
Kapi DCJ

10 October 1991

PARLIAMENT - Elections - Disputed election petition - Declaration that election absolutely void - Effect and consequences - Provincial Government Elections Act (Ch No 56) (Southern Highlands), ss 189(h), 203(c).

The Provincial Government Elections Act (Ch No 56), s 189, gives the National Court powers on the hearing of an election petition to, inter alia,

"(d) order a recount of ballot papers in a constituency, and

(e) ...

(f) declare that a person who was returned as elected was not duly elected, and

(g) declare a candidate duly elected who was not returned as elected, and

(h) declare an election absolutely void, and

(i) dismiss or uphold a petition in whole or in part, and ..."

Section 203 provides:

"Effect shall be given to a decision of the National Court as follows:

(a) if a person returned is declared not to have been duly elected, he shall cease to be a member, and

(b) if a person not returned is declared to have been duly elected, he may take his seat accordingly, and

(c) if an election is declared absolutely void, a new election shall be held."

Held

Where the National Court declares an election absolutely void under s 189 of the Provincial Government Elections Act (Ch No 56), the legal consequence under s 203(c) is that a new election shall be held: this implies that no person is duly elected to the seat and the seat is vacant. There is no need for a declaration to that effect.

Summons

This was an originating summons for declarations as to the effect of a decision of the National Court on a disputed election petition.

Counsel

P Ame, for the plaintiff.
K A David, for the first defendant.

10 October 1991

KAPI DCJ: The plaintiff applied in an originating summons seeking declarations as follows:

(a) The effect of the decision of the National Court is that, in law there is no elected member representing the Nipa Basin Electorate in the Southern Highlands Provincial Government;

(b) that the first plaintiff is not an elected member representing the Nipa Basin Electorate with effect from the date of the decision of the National Court;

(c) that the first plaintiff is not entitled to be a member of the Southern Highlands Provincial Assembly with effect from 6 September 1991;

(d) that in consequence of the decision the plaintiff is not entitled to receive salary or other financial benefit, or to be appointed to the office of Deputy Premier of the Southern Highlands Provincial Government; and

(e) that any payment of salary or financial benefits including any use of the facilities of the third defendant by the first defendant with effect from 6 September 1991 is null and void.

The background to this application is as follows:

The first defendant was elected as member representing the Nipa Basin Electorate in the Southern Highlands Provincial Government. The result of this election was petitioned by Tegi Ebieal, a candidate at the elections. A number of grounds were relied upon to invalidate the election and the petitioner claimed:

(1) a declaration that the first defendant was not duly elected; and

(2) a declaration that the said election was absolutely void.

The petition was heard by Los J and on 6 September 1991 he concluded:

"I conclude that with the Komea and Engin people not voting because the second respondent and his supporters prevented them, the real choice of the people of Nipa Basin had not been shown. I therefore declare the election void."

In his ruling, Los J did not grant the relief sought in the petition, namely, a declaration that the first defendant was not duly elected.

Subsequent to the ruling by the court, a question arose as to whether the first defendant ceased to be a member by virtue of the court ruling. It has been contended on behalf of the first defendant that as the trial judge failed to grant the declaration the first defendant was not duly elected, that he continues to occupy the seat.

In essence, these proceedings raise the question of the effect of the decision of the National Court. The Constitution of the Southern Highlands Provincial Government deals with the normal term of an elected office and sets out other circumstances in which a seat may become vacant. There is nothing in these provisions which deals with the question of a seat becoming vacant as a result of a ruling by the National Court in the exercise of its jurisdiction on election matters. The Provincial Government Elections Act also deals with the normal term of an office and the circumstances in which a seat of a member may become vacant. These provisions also do not deal with a seat becoming vacant as a result of an election petition. The relevant provision which deals with the issue which has arisen in this case is s 203 of the Provincial Government Elections Act (Ch No 56). It is as follows:

"Effect shall be given to a decision of the National Court as follows:

(a) if a person returned is declared not to have not been duly elected, he shall cease to be a member, and

(b) if a person not returned is declared to have been duly elected, he may take his seat accordingly, and

(c) if an election is declared absolutely void, a new election shall be held."

This provision deals with three separate declarations and according to this provision they each have a different consequence. It is necessary to go back to s 189 of the Provincial Government Elections Act which sets out the powers of the court in an election petition. The relevant provisions are as follows:

"189. POWERS OF COURT

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things:

...

(d) order a recount of ballot papers in a constituency, and

...

(f) declare that a person who was returned as elected was not duly elected, and

(g) declare a candidate duly elected who was not returned as elected, and

(h) declare an election absolutely void, and

(i) dismiss or uphold a petition in whole or in part, and ... ."

Each of the declarations set out under s 189(f), (g) and (h) are distinct and have different legal consequences. Section 203 of the Act sets out these different legal effects. As far as an election which is declared absolutely void is concerned, s 203(c)says: "A new election shall be held." This provision has two necessary implications. First, no person is duly elected to a seat, and secondly, the seat is vacant. The position is that such an election has no valid result. In my view it is not necessary to consider separately whether the person who was returned as elected was not duly elected. That is the legal effect of a declaration that the election is void. Failure to expressly order that the person who was returned as elected was not duly elected does not affect the legal effect set out under s 203(c).

For these reasons, I find that the first defendant ceased to be a member as at the date of declaration on 6 September 1991.

Declaration accordingly

___________________

Lawyer for the plaintiff: Secretary, Attorney-General’s Department.
Lawyer for the first defendant: Namaliu and Co.