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Papua New Guinea Law Reports |
NATIONAL COURT OF JUSTICE
DAVID KUNA
V
VINCENT ERALIA, PRESIDING MAGISTRATE;
THE INDEPENDENT STATE OF PAPUA NEW GUINEA; AND
RALI KAWANE.
MT. HAGEN: CANNINGS J
26 November; 21 December 2004
JUDICIAL REVIEW – Application for review of decision of District Court to declare election of president of a local-level government null and void – Related decision to declare offices of president and fourteen other members vacant and order fresh elections – Preliminary issues – Whether alleged failure to give notice of intention to make claim under the Claims By and Against the State Act affected jurisdiction of National Court – Whether National Court has power to determine judicial review of District Court decisions – Determination of preliminary issues – Substantive issues – Whether District Court has jurisdiction to hear petition against election of head of a local-level government – Organic Law on National Elections and Local-level Government Elections, Division XIX.14 (disputed elections and returns) – Principles of interpretation – Whether District Court has jurisdiction to concurrently hear a petition against election of head of a local-level government and election of members – Whether District Court exceeded its jurisdiction – Whether judicial review an appropriate remedy.
Facts
This is an application for judicial review. The plaintiff sought review of a decision of the District Court at Mendi to uphold an election petition filed by the third defendant, Rali Kawane in relation to the election of the plaintiff as President of the Kagua Local-level Government (LLG) and related matters. There were two principal grounds for judicial review of the District Court's decision. First, it had no jurisdiction to determine a challenge to his election as president. Such a challenge should have been brought in the National Court, not the District Court. Secondly, it did not have jurisdiction to concurrently hear a complaint regarding the election of the president with a complaint regarding the election of members of the local-level government.
Thirdly, if the answer to either or both of the above is 'yes', what remedies, if any, should be granted?
Held
1. The District Court exceeded its jurisdiction by hearing and upholding a petition against the election of Mr Kuna as president of Kagua Local-level Government. This ground of judicial review is upheld. The decision in Kembo v Tulara (1997) N1668: It is the only case in which the issue of the District Court's jurisdiction to hear petitions against the election of a head of a local-level government has been expressly addressed.
2. The District Court exceeded its jurisdiction by ordering that the seats of Mr Kuna and fourteen other members were vacant and ordering fresh elections. The Court made orders that were beyond the scope of the petition before it; and erred by concurrently dealing with a dispute about the election of 15 persons as members and a dispute about the election of the president. This ground of judicial review is upheld.
3. Both principal grounds of judicial review have been upheld. So the question becomes whether the remedies sought by the plaintiff should be granted. In a judicial review, remedies are always at the discretion of the Court. If a plaintiff succeeds in establishing one or more ground of review it does not necessarily follow that the plaintiff is entitled to the remedies being sought. (Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; Edward Ramu Diro v Ombudsman Commission (1991) N1385, National Court, Sheehan J; Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479.) In the present case, however, the Court has not been presented with any reason for not granting the remedies sought. The court concluded that the District Court made a number of jurisdictional errors. The District Court proceedings were fundamentally flawed. Therefore the orders of the District Court were quashed.
4. His Honour exercised the National Court's discretion by making an order in the nature of certiorari, by which the whole of the official record of the decision and orders of the District Court at Mendi on 6 and 26 October 2003 in EP No 37 of 2003 is removed into the National Court and quashed.
Papua New Guinea cases cited
Application by Ben Semri (2003) SC673.
Ben Micah v Ian Ling-Stuckey and Electoral Commission [1998] PNGLR 151.
Clement Kilepak v Ellison Kaivovo (2003) N2402.
Dick Mune v Anderson Agiru and Others (1998) SC590.
Electoral Commission and Peter Simbi v John Masueng and Richard Koronai (1999) N1965.
Edward Ramu Diro v Ombudsman Commission (1991) N1385.
Greg Mongi v Bernard Vogae (1997) N1635.
Iambakey Palma Okuk v John Nilkare [1983] PNGLR 28.
Jim Kas v The Honourable Mr Justice Mark Sevua, Their Worships Mr Sition Passingan and Mr Mark Pupaka and The Independent State of
Papua New Guinea (2000) N2010.
Joel Paua v Robert Nagle and Electoral Commission [1992] PNGLR 563.
Kai Daima, President for Kutubu Local-level Government v Don Romanong, Provincial Administrator for Southern Highlands Province and
Others (1999) N1806.
Lother Joel v Kwalahu Tangpai (2001) N2135.
Louis Ambane v Thomas Tumun Sumuno (1998) SC559.
Ludger Mond v Jeffery Nape and Electoral Commission (2003) N2318.
Mathew Totori v Bob Nenta (2003) N2373.
Mathias Ijape v Bire Kimisopa (2003) N2344.
Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479.
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.
Supreme Court Reference No 2 of 1988; Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99.
Supreme Court Reference No 4 of 1982; Re Delba Biri v Bill Ninkama [1982] PNGLR 342.
Taza Kembo v Kevin Tulara (1997) N1668.
The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Ltd (2002) N2322.
Torato v Electoral Commission and Others [1988-89] PNGLR 83.
Counsel
M Tamutai, for the plaintiff.
B Ovia, for the first and second defendants.
D Gonol, for the third defendant.
21 December 2004
Cannings j. This is an application for judicial review. The plaintiff is seeking review of a decision of the District Court at Mendi to uphold an election petition filed by the third defendant in relation to the election of the plaintiff as President of the Kagua Local-level Government (LLG) and related matters.
Background
In May 2003 an election was held for membership of the Kagua LLG. The election was one of a number of supplementary elections held around that time for five electorates in the National Parliament and for the local-level governments within each of those electorates. The Kagua LLG is one of four within the Kagua-Erave Open electorate. The other three are Kuare, Aiya and Erave.
Supplementary elections were held because of widespread civil disorder during the 2002 general election. All the elections in those five electorates, both for National Parliament seats and local-level governments, were declared to have failed.
Kagua Local-level Government consists of thirty wards; and thirty members were returned as elected. It became their task to elect one of themselves as president.
Events in June 2003
In early June 2003 there was lobbying for the presidency. The members were evenly divided as to who it should be. The race boiled down to two candidates: David Kuna, the plaintiff, and Rali Kawane, the third defendant.
On 7 June 2003 Mr Kawane and fourteen other members convened at the Agiru Centre, Mendi. The purpose of their meeting was firstly to be sworn in as members and secondly to elect a president. A swearing in ceremony was evidently conducted by the Senior Provincial Magistrate. Then an election took place and Mr Kawane was elected unopposed.
In the meantime the other fifteen members had on 5 June 2003 convened at Ialibu Courthouse, for similar purposes. They were also sworn in and they also conducted an election. In that election, Mr Kuna was elected as president.
This turn of events understandably led to confusion, as Mr Kawane and Mr Kuna each held themselves out as President of Kagua Local-level Government. The Provincial Governor, Mr Hami Yawari, apparently recognised Mr Kuna as President, as he started to occupy a seat in the Southern Highlands Provincial Assembly.
Petition filed in District Court: 18 June 2003
Mr Kawane was aggrieved by the Governor's failure to recognise him as President. On 18 June 2003 Mr Kawane filed an election petition in the District Court at Mendi. The petition challenged the election of Mr Kuna as President and also sought a declaration that the seats of Mr Kuna and the fourteen other members who had elected him as president be declared vacant and new elections held for those seats.
The matter was mentioned in the District Court at Mendi before the presiding Magistrate, Mr Vincent Eralia, the first defendant in these proceedings, on 26 June, 24 July and 21 August 2003.
National Court proceedings commenced: 25 August 2003
On 25 August 2003 the plaintiff filed proceedings in the National Court at Mt Hagen. He sought leave to make an application for judicial review and sought other interim orders, including an order prohibiting the District Court hearing the petition. These applications were not heard until February 2004.
On 28 August 2003 the matter was returned before the District Court at Mendi. On this occasion there was legal representation on behalf of Mr Kawane, who was the petitioner in the District Court, and Mr Kuna, the first respondent.
On 24 September 2003 Mr Eralia heard the petition. Mr Kawane was represented but there was no appearance on behalf of Mr Kuna.
District Court decision: 6 and 26 October 2003
On 6 October 2003 Mr Eralia announced his decision, which was that Mr Kuna's election as President was null and void. Further, the seats of Mr Kuna and fourteen other members who elected him were declared vacant. New elections were ordered.
On 26 October 2003 Mr Eralia published the reasons for his decision,
Amended National Court documents filed: 10 December 2003
On 10 December 2003 the plaintiff's lawyers, Tamutai Lawyers of Mt Hagen, filed a fresh bundle of documents in relation to the current proceedings. They included an amended originating summons and an amended statement under Order 16, Rule 3(2)(a) of the National Court Rules.
Leave for review granted: 17 February 2004
On 17 February 2004 the application for leave came before Jalina J in the National Court at Mt Hagen. His Honour granted leave for judicial review under Order 16, Rule 3 of the National Court Rules. His Honour also granted leave for Mr Kawane to become the third defendant in the proceedings. But he refused an application by the plaintiff to stay the orders of the District Court.
On 21 May 2004 the current proceedings were mentioned before Hinchliffe J and his Honour ordered that written submissions be filed.
National court hearing: 26 November 2004
On 26 November 2004 the matter came before me for hearing on the last day of a circuit in Mt Hagen. Soon after the hearing commenced there was a downpour. It became impossible to hear the oral submissions of counsel and tape-record the proceedings.
All counsel then repaired to my chambers and it was agreed that I would determine the case on the basis of written submissions.
Decision: 21 December 2004
On 21 December 2004 I announced the decision. I gave brief reasons and said I would publish full reasons later, which I do now.
Parties
To recap the parties in these proceedings are:
Plaintiff – Mr David Kuna, the person recognised by the Provincial Governor as president;
1st defendant – his Worship, Mr Vincent Eralia, the presiding magistrate in the District Court at Mendi, who decided that Mr Kuna's election as president was null and void etc;
2nd defendant – the State;
3rd defendant – Mr Rali Kawane, who was the petitioner in the District Court and the person declared by the District Court to be the proper president.
Terminology
The words "council" and "councillor" are not used in this judgment to describe the local-level government or its members, unless I am citing what somebody else has said, as that terminology is not used in the relevant laws. Those terms are colloquialisms. It is not wrong to use them. But it is preferable to be faithful to the words used in the law.
The petition to the District Court
The text of the two-page petition to the District Court, which led to the decisions of 6 and 26 October 2003, is set out below:
PAPUA NEW GUINEA
IN THE DISTRICT COURT LLGEP Provincial Code EP/37 OF 2003
AT MENDI SHP
(Court of Disputed Returns)
LOCAL LEVEL GOVERNMENT ELECTION PETITION
(Ss. 206, 287 of Organic Law on National and Local Level Government Elections 1997)
The Petition of (name) RALI KAWANE of (address) C/- KAGUA LLG COUNCIL CHAMBERS disputing the Local Level Government Council Election return of KAGUA LLG PRESIDENT SEAT (state name of LLG s. 287(3)) declared on the 5th day of JUNE 2003 (state date of declaration of result s. 285) within the Council LLG of KAGUA LLG
(state LLG Council ward) in the province of SH SUPPLEMENTARY ELECTION 2003
(state name of province s.287(3) made this 23rd day of JUNE 2003 before the undersigned, a Magistrate of a District Court who says that on the 5th day of JUNE 2003
at (state the facts relied on to invalidate the election of return, s.208(a)): IALIBU COURT HOUSE
1 Swearing in of the 1st Respondent and 14 councillors were done by Raphael Yaki (unattached officer) Andrew Kemai who is an administrative officer court House Ialibu.
But used the Clerk of Court common seal and administered Commission of Oaths to be 15 councillors, 2 other non councillors of Kagua LLG.
2 As far as I know, Benny Kasa is the Clerk of Court and not Andrew Kemai as stated on Meeting Minutes and Oath forms in Ialibu Court House. At the same time Commissioner of Oaths powers forms in Ialibu Court House. At the same time Commissioner of Oaths powers were withdrawn from Court Clerk in 2001. Only the magistrates are empowered as Commissioner of Oaths.
3 David Koyanda is a Villager who acted as a executive/official secretary to assist his brother in-law the first respondent to take meeting minutes that was presented to the Advisor DA & LLG Timon Ombiolu, UNSIGNED.
4 David Kuna first Respondent was elected President without formally been sworn in as a Ward Member for Karia (Alaiya) Ward on the Oath form.
5 Councillors Buka Warea and Peawi Alo were physically present 07/6/2003 who were sworn in and elected President RALI RAWANE.
6 THE FIRST RESPONDENT falsely claimed two (2) non councillors and deliberately forced them take oath and vote for him to the president seat, who was declared president elect with 17 votes.
7 To be frank, both camps were tied by 15 councillors each.
8 All relevant documents and evidence will be presented during Court when required.
LOCAL LEVEL GOVERNMENT ELECTION PETITION IN THE DISTRICT COURT LLGEP Provincial Code EP/37 of 2002AT MENDI SHP [sic]
(Court of Disputed Returns)
BETWEEN: ........ RALI KAWANE ..............(Petitioner)
AND: .... DAVID KUNA ...............(First Respondent)
Winning Candidate
AND: .....JOE HILARAI – KAGUA-ERAVE ......... (Second Respondent)
Returning Officer
AND: (Third Respondent)
The Electoral Commission of Papua New Guinea
TO: (Name) DAVID KUNA of (address of First Respondent) KARIA WARD C/-
KAGUA LLG CHAMBERS
(Name) JOE HILARAI of (address of Second Respondent) C/- PNG ELECTORAL COMMISSION
(Name) THE ELECTORAL COMMISSION OF PNG of (address o f Third Respondent)
P O Box BOROKO, NCD.
(State the relief the Petitioner claims to be entitled, ss.208(b), 212):
a The first respondent be declared null and void as President for Kagua LLG and 14 other Councillors names and wards. Refer attached.
b That this Honourable Court declare the Petitioner as duly elected President for Kagua LLG with 15 other councillors namely – Refer List attached.
c That this Honourable Court award costs incurred by the Petitioner plus interests.
d That this Honourable Court punish those involved for illegal practises during the swearing in a Elections of President.
These are therefore to command you to appear before the District Court at MENDI on 26th day of JUNE 2003 at 9:00 am to answer the Petition and to be further dealt with
according to law.
Made before me the day and year first abovementioned at MENDI
.........[SIGNED] RALI KAWANE................
(Signature and name of Candidate/Petitioner
or a person who was qualified to vote at the
disputed Local Level Government Election. s.208(c))
[ DISTRICT COURT MENDI SEAL]
THE DISTRICT COURT'S DECISION
Mr Eralia published the District Court's decision in two ways. First in a seven-page document entitled "Summary of Proceedings in Chronological order". Secondly he published a nine-page document entitled "Ex-parte Judgment".
Summary of proceedings
The first document gave a history of the proceedings. It concluded with an entry in relation to 6 October 2003, which stated:
The Court upheld the Petition and declared the election of the 1st Respondent as NULL AND VOID, and that the Petitioner shall be the President of Kagua Local Level Government and be sworn in as a Member of the Southern Highlands Provincial Assembly forthwith.
AND further nullify the election of the 1st Respondent as Councillor elect for Aliya Ward and fourteen other Councillors who were illegally sworn in at Ialibu by a non-Commissioner For Oaths on 5 June 2003. As a result of this legal implication the said fifteen seats are vacant and the Electoral Commission shall conduct new by-election as soon as that is practicable.
AND FURTHER AWARD costs of K7,900.00 in favour of the Petitioner to be settled in full forthwith.
Payment to be effected through Mendi District Court.
Ex parte judgment
The judgment gave detailed reasons for his Worship's decision. Due to the prevailing law and order situation, which posed a great security risk for the authorities, various senior public servants were unable to travel to Kagua in order to conduct the swearing in ceremony and nomination and election of the president. The Adviser, Local-level Government and District Services, had therefore directed all thirty councillors to travel to Mendi for those purposes. There had been an alternative plan, to conduct the swearing in ceremony at Ialibu. But it was abandoned and the proceedings transferred to Mendi. Announcements were made through Radio Southern Highlands on several occasions.
On 7 June 2003 at the Agiru Centre, Mendi, the petitioner and fourteen other councillors attended and waited for several hours for Mr Kuna and fourteen other councillors to turn up. However they failed to turn up and a swearing in ceremony was conducted by the Senior Provincial Magistrate. The ceremony was witnessed by Mr Timon Ombiolu, the Adviser, Local-level Government and District Services, and Owen Lora, the District Administrator for Kagua-Erave. After the ceremony ended, Councillor Luke Pungu of Raku ward nominated Mr Kawane to be President. The nomination was seconded by Councillor Pulu Kima of Mugiri/Karanda ward. No other councillors were nominated and Mr Kawane was declared President unopposed.
In the meantime, however, Mr Kuna and the other members had convened at Ialibu on the evening of 5 June 2003. A swearing-in ceremony was held and then an election was conducted and Mr Kuna was elected president.
His Worship stated that there was credible evidence to indicate that Mr Kuna and the fourteen other councillors had knowingly conspired and corroborated with unauthorised non-public servants, including an unauthorised commissioner for oaths, who submitted to their demands under threat and intimidation to conduct the illegal swearing in ceremony at Ialibu Courthouse on 5 June 2003.
His Worship found that what happened at Ialibu was illegal, null and void and of no legal effect. The records of the purported election at Ialibu showed that there were seventeen councillors present. However, two of them, Buka Warea and Peawi Alo, were not physically present. They were in Mr Kawane's faction and they had sworn evidence to that effect.
His Worship concluded that two non-councillors were hand-picked from the street. That amounted to hijacking the democratic rights of the leaders who had been elected by the people of Kagua-Erave to represent their interests.
Declarations
His Worship stated:
For reasons unknown, common sense never prevailed at Ialibu at that relevant point in time because the processes and procedures under the Organic Law on National and Local-Level Elections were totally ignored and abused.
This Court is left with no alternative choice but make the following declaration as follows:
1 Councillor David Kuna's nomination and election as a President for Kagua Local-level Government is NULL AND VOID.
2 Fifteen council wards are also vacant and a new supplementary elections should be held...
Orders
His Worship made the following orders:
1 Petition is upheld.
2 Councillor David Kuna's nomination and consequential Election as President for Kagua Local Level Government at Ialibu by a non Commissioner For Oaths on 5 June 2003 is NULL AND VOID. That he is now dismissed as both Councillor and President of Kagua Local Level Government Council together with fourteen other Councillors whose respective seats become vacant by law forthwith.
3 AND FURTHER the Court now declares that the Councillor Rali Kawane was duly elected as Council, nominated and elected as President for Kagua Local Level Government Council on 7th June 2003 at Agiru Centre before the legally constituted Commissioner For Oaths and duly appointed officials. That he shall be sworn in as a member of SHP Assembly by the Director of the Assembly Services forthwith.
4 AND FURTHER declare that the Petitioner and his fourteen councillors representing fourteen wards out of the thirty councillors will run the affairs of the said Council, pending the nomination and election of fifteen new councillors whose respective seats have now become vacant by legal implication.
5 And declare that the 1st Respondent and fourteen other councillors in his faction are no longer councillors and as such the Electoral Commission is ordered to hold another Supplementary Elections as soon as that is practicable.
6 AND FURTHER award costs of K7,900.00 to the Petitioner to be settled in full by the 1st Respondent forthwith. Payment shall be made through Mendi District Court.
Grounds of judicial review
The plaintiff relies on two principal grounds for judicial review of the District Court's decision:
First, it had no jurisdiction to determine a challenge to his election as president. Such a challenge should have been brought in the National Court, not the District Court.
Secondly, it did not have jurisdiction to concurrently hear a complaint regarding the election of the president with a complaint regarding the election of members of the local-level government.
Preliminary issues
Before addressing the grounds of judicial review there are two preliminary issues raised by Mr Gonol, for the third defendant, to be resolved. He submitted that the National Court should not entertain the application for judicial review, for two reasons. First, the plaintiff did not comply with s5 of the Claims By and Against The State Act. Secondly, it is not appropriate for the National Court to engage in judicial review of a decision of the District Court unless the plaintiff has exhausted other avenues to address his grievances.
Claims By and Against The State Act
Section 5
Section 5 of this Act states that no action to enforce any claim against the State lies unless notice in writing of an intention to make a claim is given in accordance with the section within a period of six months after the occurrence out of which the claim arose. Mr Gonol submits that notice was not given within six months.
Section 5 applies to applications for judicial review. See, for example, Jim Kas v The Honourable Mr Justice Mark Sevua, Their Worships Mr Sition Passingan and Mr Mark Pupaka and The Independent State of Papua New Guinea (2000) N2010, National Court, Sakora J; and Mathew Totori v Bob Nenta (2003) N2373, National Court, Lenalia J.
However, I do not uphold Mr Gonol's submission for two reasons.
Notice given
First, there is on the Court file a document entitled "Notice of Application for Leave to apply for Judicial Review". This document was filed on 26 August 2003. It is signed by the plaintiff's lawyer, Mr Tamutai. It gives notice to the Secretary for Justice of the plaintiff's intention to make an ex parte application for leave pursuant to Order 16, Rule 3 of the National Court Rules. There is no affidavit of service of this document but I am prepared to accept, in the absence of evidence to the contrary, that it was duly served in a way that complied with the requirements of Section 5 of the Claims By and Against the State Act.
Leave granted
Secondly, the issue of non-compliance with s5 is the sort of preliminary issue that should be dealt with at the hearing of the application for leave to seek judicial review. Once leave was granted, that foreclosed this sort of preliminary issue. I am aware that this may to some extent conflict with the approach taken by Lenalia J in the case referred to above. His Honour dismissed an application for judicial review on the ground that s5 was breached. However, I do not consider that it would advance the interests of justice to have a case involving important issues as to the respective jurisdiction of the District Court and the National Court cut short by going back in time and, in effect, rehearing a leave application.
No breach
I am therefore not satisfied that s5 of the Claims by and Against the State Act has been breached in a way that would defeat the application for judicial review.
Appropriateness of judicial review
Mr Gonol submitted that the National Court should not entertain the application for judicial review as the plaintiff has not exhausted other avenues of resolving his grievance. He could have done two things. First, apply to the District Court to reconsider its orders. Secondly, appeal to the National Court under Part XI of the District Courts Act.
Leave granted
I consider that, like the argument about lack of notice, these are the sort of issues that have been foreclosed by the granting of leave. The question of granting or refusing an application for leave to seek judicial review is a matter for the discretion of the Judge of the National Court who deals with the application. Once leave is granted the Court should focus on the substantive issues before it, rather than back-tracking to issues relevant to the question of leave.
In any event, I do not consider that any error was made by Jalina J when granting leave in this case.
District Court application
The plaintiff could have applied under the District Courts Act, Section 25 (ex parte order may be set aside) to have the decision to uphold the election petition set aside. The fact that he did not, however, is not, by itself, a reason to refuse an application for review.
No right of appeal
As to the argument that the plaintiff could have appealed to the National Court, I initially considered that that was a valid point. But, on reflection, an appeal was prohibited by s 220 of the Organic Law on National and Local-level Government Elections. There can be no appeal against either a decision of the National Court in a petition concerning election of a member of the National Parliament or a decision of the District Court in a petition concerning election of a member of a local-level government.
The Supreme Court can review (as distinct from hear an appeal against) a decision of the National Court on an election petition under s155(2)(b) of the Constitution, which states that the Supreme Court has an inherent power to review all judicial acts of the National Court. (Application by Ben Semri (2003) SC673, Supreme Court, Kapi CJ, Los J, Salika J.) It follows that the National Court can review a decision of the District Court on an election petition. The National Court obtains jurisdiction from s155(3)(a) of the Constitution, which states that, subject to the exceptions in s155(3)(c), (d) and (e), none of which apply here, it has an inherent power to review any exercise of judicial authority. The District Court's decision was an exercise of judicial authority and the National Court has inherent power to review it.
Indeed an application for review could have been made directly to the National Court, without seeking leave to do so under Order 16 of the National Court Rules. In Electoral Commission and Peter Simbi v John Masueng and Richard Koronai (1999) N1965 – a review by the National Court of a decision of the District Court in a petition concerning the election of members of a local-level government – Sevua J held that leave should be granted as a matter of course and not under Order 16.
Submission rejected
I therefore reject Mr Gonol's submission that the National Court either has no jurisdiction or should refuse to exercise it. The application for judicial review is properly before the National Court.
Election of members and heads of Local-level Governments
Local-level governments are an integral part of the system of government in Papua New Guinea under Part VIA of the Constitution (provincial governments and local-level governments). They are established under the Organic Law on Provincial Governments and Local-level Governments.
Election of members
Members are elected under Part XIX (local-level government elections) of the Organic Law on National and Level-level Government Elections. Each local-level government area is divided into wards. Citizens above voting age in each ward elect a member to represent their ward.
Part XIX of that Organic Law consists of 14 divisions:
Division 1 - Preliminary
Division 2 - Administration
Division 3 - Electoral roles
Division 4 - Qualifications and disqualifications for enrolment and for voting
Division 5 - Enrolment
Division 6 - Objections
Division 7 - Appeals in relation to enrolment
Division 8 - Writs for elections
Division 9 - Nominations and polling
Division 10 - Scrutiny
Division 11 - Interpreters
Division 12 - Return of the writs
Division 13 - Offences
Division 14 - Disputed elections and returns
Election of head
In the case of a rural local-level government, such as Kagua, its head is called the "President". The head of an urban local-level government is called the "Lord Mayor" or "Mayor", depending on whether the area comprises or includes the whole of a city, as declared under the Cities Act. (Local-level Governments Administration Act 1997, Section 14(2).)
The head of a local-level government is elected in one of two ways, depending on whether a determination has been made under s234(2) of the Organic Law on National and Local-level Government Elections. That provision allows the Head of State, acting on advice, to determine that the head of a local-level government be directly elected by the electors in the local-level government area. Where such a determination is made the election must be in accordance with Part XIX of the Organic Law on National and Local-level Government Elections. However if no determination has been made, election of the head must be in accordance with the standing orders of the local-level government from amongst the elected members of the local-level government. (Local-level Governments Administration Act 1997, Section 12; Kai Daima, President for Kutubu Local-level Government v Don Romanong, Provincial Administrator for Southern Highlands Province and Others (1999) N1806, National Court, Kapi DCJ; Lother Joel v Kwalahu Tangpai (2001) N2135, National Court, Kiriwom J.)
In the case of Kagua there has been no determination as to direct election by the electors, so the president is elected by and from the elected members of the local-level government.
Membership of provincial assembly
Once a person becomes a head of a rural local-level government, that person is entitled to be a member of the Provincial Assembly, under s10(3)(b) of the Organic Law on Provincial Governments and Local-level Governments.
Disputes about Local-level Government elections and returns
Disputes about local-level government elections and returns are resolved in accordance with Division XIX.14 (disputed elections and returns) of the Organic Law on National and Local-level Government Elections. Division XIX.14 consists of just one section, Section 287.
Section 287 states:
(1) Subject to this section, the provisions of Part XVIII of this Law, other than Sections 208(e), 209, 210, 212(2), and 213, shall apply as the provisions of this law relating to disputed Local-level Government elections and returns.
(2) References in Part XVIII to—
(a) "Clerk of Parliament" shall be read as to "clerk of the Local-level Government"; and
(b) "electorate" shall be read as to a "ward"; and
(c) "member" shall be read as to "member of the Local-level Government"; and
(d) 'National Court" shall be read as to "District Court"; and
(e) "Registrar of National Court" shall be read as to "Clerk of the District Court"; and
(f) "Speaker" shall be read as to "head of the Local-level Government.
(3) A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held.
(4) At the time of filing the petition the petitioner shall deposit with the Clerk of the District Court the sum of K50.00 as security for costs.
(5) Proceedings shall not be heard on a petition unless the requirements of Subsections (3) and (4) and Section 208(a) to (d) inclusive are complied with.
Effect of Section 287
The effect of s287 is that the method of challenging the election of a member of a local-level government is similar to the method of challenging the election of a member of the National Parliament. Part XVIII of the Organic Law (disputed elections, returns, etc) deals with the procedure for challenging the election of a member of the National Parliament. There are some important exemptions, however. Most notably disputed local-level government elections are dealt with by the District Court whereas disputed National Parliament elections are dealt with by the National Court.
The drafters of the Organic Law chose to prescribe the procedures for challenging local-level government elections by this shortcut drafting technique rather than by drafting a self-contained set of provisions. It is useful therefore to set out in detail the combined effect of Part XVIII and Section 287 of the Organic Law.
Part XVIII consists of Division 1 (disputed elections and returns), containing Sections 206 to 227, and Division 2 (qualifications and vacancies), containing Sections 228 to 233. Division XVIII.2 deals with the power of the National Parliament to refer questions about the qualifications of a member or a vacancy in the Parliament to the National Court. Its provisions are not relevant to disputed elections and returns.
The 'code' for disputing local-level government elections and returns
The provisions of Part XVIII, as modified by s287, which are applicable to disputed local-level governments in returns, are as follows:
206. Method of disputing returns.
The validity of an election or return may be disputed by petition addressed to the District Court and not otherwise.
207. Jurisdiction of District Court exercisable by single Judge. [Semble "Magistrate" was intended]
The jurisdiction of the District Court in relation to any matter under this Part may be exercised by a single Judge. [Semble "Magistrate" was intended]
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) [not applicable by virtue of Section 287(1)]
209. Deposit as security for costs
[not applicable by virtue of Section 287(1)]
210. No proceedings unless requisites complied with.
[not applicable by virtue of Section 287(1)]
211. Right of returning officer to be represented.
The Electoral Commission may, by leave of the District Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition.
212. Powers of court.
(1) In relation to any matter under this part the District Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in a ward; and
(e) examine witnesses on oath; 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
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) [not applicable by virtue of Section 287(1)]
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
213. Production of postal vote certificate, etc.
[not applicable by virtue of Section 287(1)]
214. Inquiries by Court.
The District Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.
215. Voiding election for illegal practices.
(1) If the District Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the District Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The District Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
216. Court to report, etc., cases of offences.
Where the District Court, in the trial of a Petition under this Part, finds that a person has committed an offence under this Law or any other law, the Clerk of the Court shall promptly—
(a) report the finding to—
(i) the head of the Local-level Government; and
(ii) the Electoral Commission; and
(iii) the Public Prosecutor; and
(iv) the Commissioner of Police; and
(b) forward all papers relevant to the finding to the Commissioner of Police.
217. Real justice to be observed.
The District Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
218. Immaterial errors not to vitiate election.
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the District Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
219. Evidence that person not permitted to vote.
On the trial of a petition, the District Court shall not admit the evidence of a witness that he was not permitted to vote in an election during the hours of polling in the polling period unless the witness satisfied the Court—
(a) that he claimed to vote in the election, under that provision of this Law under which he was entitled or might be permitted to vote; and
(b) that he complied with the requirements of this Law relating to voting by electors in so far as he was permitted to do so.
220. Decision to be final.
A decision of the District Court is final and conclusive and without appeal, and shall not be questioned in any way.
221. Copies of petition and order of court to be sent to the Parliament.
The Clerk of the District Court shall promptly after the filing of a petition forward to the Clerk of the Local-level Government a copy of the petition, and after the trial of the petition shall promptly forward to the Clerk a copy of the order of the Court.
222. Counsel or solicitor.
(1) A party to a petition shall not, except by consent of all parties or by leave of the District Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel appear on behalf of a party.
223. Costs.
The District Court may award costs against an unsuccessful party to a petition.
224. Deposits applicable for costs.
If costs are awarded to a party against the petitioner, the deposit lodged under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
225. Other costs.
All other costs awarded by the District Court, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgment of the District Court, and the order, certified by the Court, may be entered as a judgment of the District Court and enforced accordingly.
226. Effect of decision.
Effect shall be given to a decision of the District Court as follows:—
(a) if a person returned is declared not to have been duly elected, he shall cease to be a member of the Local-level government; 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.
227. Definition of "petition".
In this Division, "petition" means a petition disputing an election or return.
The major issues
As stated earlier, the plaintiff relies on two principal grounds of review. They give rise to the major issues to be determined in this case, as well as the issue of remedies.
The major issues are therefore:
First, did the District Court exceed its jurisdiction by hearing and upholding a petition against the election of Mr Kuna as president?
Secondly, did the District Court exceed its jurisdiction by ordering that the seats of Mr Kuna and fourteen other members were vacant and ordering fresh elections?
Thirdly, if the answer to either or both of the above is 'yes', what remedies, if any, should be granted?
Plaintiffs' submissions
Mr Tamutai, for the plaintiff, Mr Kuna, submitted that the District Court has no power to hear a petition against the election of a person as head of a local-level government. Section 287 of the Organic Law on National and Local-level Government Elections gives the District Court jurisdiction to hear petitions against the election of persons as members of a local-level government. It does not extend to disputes about election of heads. He relied on the National Court case of Taza Kembo v Kevin Tulara (1997) N1668, Injia J.
As to the second major issue, Mr Tamutai submitted that the petition did not address the issue of the election of Mr Kuna and the 14 others as members of the local-level government properly. The District Court went beyond the scope of the petition when it declared that their elections were null and void.
These were gross errors, which require the National Court's immediate intervention, Mr Tamutai argued.
Defendants' submission
Mr Gonol filed a written submission on behalf of the third defendant, Mr Kawane. Mr Ovia, acting for the first defendant, Mr Eralia, and the second defendant, the State, supported Mr Gonol's submissions and had nothing further to contribute.
Mr Gonol asserted that Kembo v Tulara was wrongly decided. The judgment was made ex parte, without the benefit of considered submissions. It was contrary to the clear intention of the Parliament, which was to ensure that any disputes about local-level government elections – whether they relate to election of members or heads – are dealt with by the District Court. Disputes about election of members were within the exclusive jurisdiction of the District Court. The Organic Law was silent on the question of which court had jurisdiction on disputes about election of presidents. So, for such disputes, the National Court and the District Court have concurrent jurisdiction. To force disputes about election of presidents into the National Court would be to deny justice to those aggrieved by an election, as the costs would be prohibitive. Local-level government members in rural areas are villagers who earn only about K50.00 per month. The only court that they realistically have access to is the District Court. Furthermore Kembo v Tulara was not a decision of the Supreme Court, so the National Court is not bound to follow it.
Mr Gonol did not make submissions on the second ground of judicial review, relating to the District Court decision to declare 15 seats vacant. Nor did he address the issue of remedies.
The first major issue: Did the District Court exceed its jurisdiction by hearing and upholding a petition against the election of Mr Kuna as President?
The decision in Kembo v Tulara
I must pay close attention to Kembo v Tulara. It is the only case in which the issue of the District Court's jurisdiction to hear petitions against the election of a head of a local-level government has been expressly addressed. Daima v Romanong, cited above, was a case in which the president of a local-level government sought a declaration that he had been validly elected as president. The Court declined to make the declaration as the local-level government had no standing orders. The issue of whether the District Court had jurisdiction did not arise.
In Kembo v Tulara an election petition was filed in the District Court against the election of the plaintiff, Taza Kembo, as a member of the Hulia Local-level Government in Southern Highlands Province and his subsequent election as president. The petitioner in the District Court was the defendant in the National Court, Kevin Tulara. The District Court granted an ex parte interim order restraining the plaintiff from participating in meetings of the Provincial Assembly and restraining the Assembly Clerk from taking steps to swear in the plaintiff, pending determination of the election petition.
The plaintiff applied to the National Court to set aside the District Court orders. He was successful. Injia J, as he then was, set aside the orders for two reasons. The first was to do with the balance of convenience. That is not relevant for the purposes of the present case. But the second reason was directly on point.
His Honour stated, at page 3:
Secondly, election petition No EP 534/97 filed in the District Court at Mendi only insofar as it disputes the election of the plaintiff as the President of Hulia Local Government Council, is misconceived. Under Part XIX, division 14 (disputed elections and returns) of the Organic Law on National and Local-level Government Elections, the procedure set out in this Division only relates to the election and return of members or Councillors by wards of Local-level Governments. It makes no provision for disputes over election of Presidents of Local-level Governments by members of the Local-level government Assembly, to be challenged by election petition to be filed and heard in the District Court in that area. Therefore, such elections should be challenged under the ordinary law and civil procedure. The procedure for appointment and removal of Presidents of Local-level Governments is governed by the Organic Law on National and Local-Level Government: see s29. [Semble the reference was intended to be to Sections 29 and 30 of the Organic Law on Provincial Governments and Local-level Governments.] If there is any breach of the procedure prescribed by this law for election of the President, then the matter should be taken up in the National Court by the aggrieved person under the National Court Rules: Proceedings should be more appropriately commenced by Originating Summons seeking declaratory orders: See National Court Rules O4r3. As the restraining orders are primarily aimed at restraining the plaintiff from assuming his responsibilities as the President of Hulia Local Government Council, I think the restraining order issued by the Port Moresby District Court pursuant to EP No 354/97 has no proper basis in law and should be set aside.
His Honour's conclusion was straightforward:
If there is a dispute about the election of a person as a member of a local-level government, an election petition must be filed in the District Court and the provisions of Division XIX.14 of the Organic Law on National and Local-level Government Election apply.
If there is a dispute about the election of a person as the head of a local-level government, an originating summons seeking declaratory relief must be filed in the National Court under Order 4 of the National Court Rules. The District Court has no jurisdiction.
Is this Court bound to follow Kembo v Tulara?
I agree with Mr Gonol that I am not obliged to follow another decision of the National Court. Schedule 2.9(2) of the Constitution states that all decisions of law by the National Court are binding on all other courts other than the Supreme Court. But not on itself. I am free to depart from Kembo v Tulara.
But consistently with the legal doctrine of judicial precedent, also known as stare decisis, which, per force of Schedule 2.8(1)(b) of the Constitution, applies in Papua New Guinea, I should not depart from an earlier decision unless I am reasonably satisfied that it was wrongly decided or that it interprets the law in a way that is no longer applicable and appropriate to the circumstances of the country. (The State v Zacchary Gelu, Solicitor-General and Manoburn Earthmoving Ltd (2002) N2322, National Court, Kandakasi J.)
Was Kembo v Tulara wrongly decided? Or is it no longer applicable and appropriate?
To answer these questions it is necessary to focus on Division XIX.14 of the Organic Law on National and Local-level Government Elections. As I pointed out earlier, it consists of just one section: 287. It begins by stating that the provisions of Part XVIII (disputed elections, returns etc) apply (with some exceptions and modifications, as described earlier) to "disputed Local-level Government elections and returns". What does that phrase mean? Is it restricted – as Kembo v Tulara asserts, and as Mr Tamutai submits – to disputes about the election and return of members? Or does it also cover, as Mr Gonol submits, disputes about any local-level government elections, including disputes about whether the head of a local-level government has been validly elected?
The phrase is not defined anywhere in the Organic Law, so a good starting point is to read Division XIX.14, ie Section 287, in the context of other provisions of the Organic Law. It is in the part of the Organic Law – (Part XIX (local-level government elections) – that applies to and in relation to elections of members of local-level governments (see s234 (application of this part). Part XIX does not generally regulate the elections of heads of local-level governments. The election of members of a local-level government and the election of its head are two separate legal processes.
The only situation in which Part XIX regulates the election of the head of a local-level government is where a determination is made under s234(2) that the head be directly elected by the electors. In such a case the election is conducted under Part XIX. Section 287 would apply. The only way the validity of the election could be disputed would be by petition addressed to the District Court.
Normally, however – and Kagua Local-level Government falls into the normal category – no determination is made under s234(1). So the election of the head is conducted in accordance with the standing orders of the local-level government from amongst the elected members of the local-level government under the Local-level Governments Administration Act.
It follows that when s287(1) of the Organic Law speaks of "disputed Local-level Government elections and returns" it means elections and returns conducted or made under Part XIX of the Organic Law, tasol. If an election has not been conducted under Part XIX, s287 does not apply. If there is a dispute about such an election the District Court has no jurisdiction.
Unlike the National Court, the District Court is not a court of unlimited jurisdiction. There is no other provision of any law that gives the District Court jurisdiction to hear petitions concerning the election of head of a local-level government conducted outside Part XIX.
That, to me, is the plain meaning and literal effect of s287(1). I do not consider that that interpretation leads to an absurd result.
So my inclination is to answer the questions posed above as:
No, Kembo v Tulara was not wrongly decided.
No, that decision does not interpret the law in a way that is no longer applicable and appropriate to the circumstances of the country.
Yes, s287(1) of the Organic Law is restricted to disputes about the election and return of members of a local-level government – unless the head of a local-level government has been directly elected by electors.
If the head of a local-level government is directly elected and there is a dispute about the election, the District Court will have exclusive jurisdiction.
Other fingerposts to interpretation
I must be forever conscious of the duty of the National Court under s158(2) of the Constitution to give paramount consideration to the dispensation of justice when interpreting the law. I must also discharge the Court's duty under s.25(2) and 63(3) of the Constitution. Section 25(3) requires that if a law can be understood or applied without failing to give effect to the intention of the Parliament or the Constitution in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood and applied in that way. Section 63(2) imposes a similar duty concerning the Basic Social Obligations.
As I am interpreting provisions of the Organic Law on National and Local-level Government Elections, which is a Constitutional Law, I must also have regard to Schedule 1.5 of the Constitution. This requires the Court to do two things. First, read each Constitutional Law "as a whole". Secondly, give all provisions of, and all words, expressions and propositions in, a Constitutional Law, "their fair and liberal meaning".
The practicalities of requiring disputes to be heard by the National Court I have carefully considered Mr Gonol's submission as to the inconvenience and expense that is occasioned by requiring those who wish to dispute the election of the head of a local-level government to go to the National Court, rather than the District Court.
There is some force in his argument. But not enough to persuade me that the conclusion I have reached about the plain meaning of the law would defeat the dispensation of justice. Or that it would run counter to the National Goals and Directive Principles or the Basic Social Obligations. Or that the interpretation Mr Gonol contends for was the intention of the Parliament when the Organic Law was made in 1997. On the contrary, if the intention had been to confer jurisdiction on the District Court in all election-related matters concerning local-level governments, and to make that jurisdiction concurrent with the National Court's when there is a dispute about election of the head of a local-level government, it would have been an easy task to make that clear in the Organic Law. I am confident that in interpreting s287(1) of the Organic Law in the same way as in Kembo v Tulara, I have read the Organic Law as a whole. And I have given s287(1) and its related provisions a fair and liberal meaning.
Section 18 of the Constitution
As I am interpreting and applying the provisions of a Constitutional Law I also have to consider s18 of the Constitution. This requires questions of constitutional interpretation and application to be referred to the Supreme Court unless a question is trivial, vexatious or irrelevant. For the purposes of s18 I regard the questions I have addressed on the interpretation and application of s287(1) of the Organic Law as irrelevant.
The answers to the questions are plain and clear. It does not require an opinion by the Supreme Court. It does not advance the dispensation of justice to unnecessarily refer constitutional questions to the Supreme Court. None of the parties asked me to refer any questions to the Supreme Court. The National Court, by itself interpreting and applying provisions of Constitutional Laws, does not necessarily offend against s18. I will therefore not refer any questions to the Supreme Court.
Result of interpretation
After having regard to the various guideposts to interpretation provided by the Constitution, I consider that Kembo v Tulara was correctly decided and that it continues to be applicable and appropriate to the circumstances of the country and that I should follow it.
Conclusion on first major issue
The District Court exceeded its jurisdiction by hearing and upholding a petition against the election of Mr Kuna as president of Kagua Local-level Government. This ground of judicial review is upheld.
The second major issue: Did the District Court exceed its jurisdiction by declaring the seats of Mr Kuna and fourteen others vacant and ordering fresh elections?
This issue relates to the second principal ground of review put forward by the plaintiff. It concerns the decision of the District Court to not only declare Mr Kuna's election as president null and void but also declare that his election and that of 14 others as members, was null and void and that their seats were vacant and to order fresh elections.
The ground of review is set out in paragraphs 4(c) and (d) of the plaintiff's Order 16, Rule 3(2)(a) statement:
c The Petition was not expressed in a manner challenging the election of the Plaintiff and 14 Other Councillors as Councillors for their respective Wards but expressed only a challenge to the election of the Plaintiff as the President of Kagua Local District Courts Act and the Organic Law on National and Local Government Elections in making the orders described above.
d The First Defendant acted without jurisdiction when it concurrently heard a complaint regarding election of the Plaintiff as President of Kagua Local Level Government Council and his election and that of 14 Other Councillors of Kagua Local Level Government Council.
This ground of review actually consists of two sub-grounds, which can be restated as follows:
First, the petition was expressed to be a petition against the election of Mr Kuna as president, not against the election of him and the 14 others as members of the local-level government. The District Court erred in law by making orders that went beyond the scope of the petition. Therefore it exceeded its jurisdiction.
Secondly, the District Court was not permitted to concurrently determine (a) a petition against the election of a person as president and (b) a petition against his election and the election of fourteen others as members. By concurrently dealing with two separate matters, it exceeded its jurisdiction.
This ground of review presupposes that the District Court has jurisdiction to hear and determine a petition against the election of a member of a local-level government and to make orders that a person has not been validly elected. There is no dispute about that. The plaintiff, however, claims that the manner in which the District Court made its decision to declare the seats of Mr Kuna and fourteen other members vacant, was wrong. In support of this claim the plaintiff focuses on the petition that was before the District Court. Before addressing the two sub-grounds I will say something about the law on election petitions.
Law on election petitions
The effect of s287(1) of the Organic Law on National and Local-level Government Elections is that an election petition to the District Court must meet the requirements of s206 and 208(a) to (d). It must:
be addressed to the District Court;
set out the facts relied on to invalidate the election or return;
specify the relief to which the petitioner claims to be entitled;
be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
be attested by two witnesses whose occupations and addresses are stated.
The requirements as to form and content of an election petition to the District Court are practically the same as those applying to election petitions to the National Court. There are many cases in which the Supreme Court and the National Court have emphasised the unique nature of an election petition and the need to comply strictly with s208 (and its equivalent provision in the repealed Organic Law on National Elections).
The cases were summarised by Kandakasi J in Mathias Ijape v Bire Kimisopa (2003) N2344. They include Supreme Court Reference No 4 of 1982; Re Delba Biri v Bill Ninkama [1982] PNGLR 342, Supreme Court, Kidu CJ, Kapi DCJ, Andrew J, in which it was stated:
... it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with Section 208. It is not difficult to see why. An election petition is not an ordinary cause ... and 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 of 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.
There have been plenty of cases in which the courts have determined objections to the competency of petitions on the ground, for example, that the requirements of Section 208 have been breached. See, for example, Ben Micah v Ian Ling-Stuckey and Electoral Commission [1998] PNGLR 151, National Court, Kirriwom J; Dick Mune v Anderson Agiru and Others (1998) SC590, Supreme Court, Amet CJ, Woods J, Injia J; Greg Mongi v Bernard Vogae (1997) N1635, National Court, Injia J; Iambakey Palma Okuk v John Nilkare [1983] PNGLR 28, National Court, Kirriwom J; Joel Paua v Robert Nagle and Electoral Commission [1992] PNGLR 563, National Court, Woods J; Louis Ambane v Thomas Tumun Sumuno (1998) SC559, Supreme Court, Amet CJ, Kapi DCJ, Los J; Ludger Mond v Jeffery Nape and Electoral Commission (2003) N2318, National Court, Kandakasi J; Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463, National Court, Sheehan J; Supreme Court Reference No 2 of 1988; Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99, Supreme Court, Kapi DCJ, Los J, Hinchliffe J; Torato v Electoral Commission and Others [1988-89] PNGLR 83, National Court, Woods J.
But do the same standards of strict compliance with Section 208 apply to petitions to the District Court? Perhaps not. I say this for two reasons.
First, a number of the judgments cited above rely on Section 210 of the Organic Law, which states:
Proceedings shall not be heard on a petition unless the requirements of Sections 208 [requisites of petition] and 209 [deposit as security for costs] are complied with.
Section 210 is one of the handful of provisions of Part XVIII that, by virtue of s287(1), does not apply to District Court petitions. This is perhaps an indication that the District Court can hear a petition even if the requirements of s208 are not satisfied.
The second reason that the standards might not be the same for the District Court is the perception that the standard of drafting of legal documents filed in the District Court is generally lower than in the National Court.
The plaintiff has not raised the issue of whether s.208(c) was breached: a petition must "be signed by an candidate at the election in dispute or by a person who was qualified to vote at the election". There seems to be an argument that the election in question was the election for the ward in which Mr Kuna stood as a candidate – not the election for the local-level government area. The petitioner, Mr Kawane, was presumably neither a candidate nor a person qualified to vote in that election. On that basis, the petition may have been incompetent; and the District Court may have exceeded its jurisdiction by hearing an incompetent petition.
It is not necessary to decide this issue, however, as the plaintiff does not challenge the competency of the petition before the District Court.
I will therefore not make a ruling on whether the form and content of the petition rendered it defective. I will confine myself to the two sub-grounds identified above.
DID THE DISTRICT COURT ERR BY GOING BEYOND THE SCOPE OF THE PETITION?
The preamble of the petition states that Mr Kawane is "disputing the Local-level Government election return of KAGUA LLG PRESIDENT SEAT". It does not say that he is disputing the election of any other members of the local-level government. In the part of the petition that sets out the relief sought, paragraph 1 appears to seek a declaration that the election of the first respondent, Mr Kuna, as President, be declared null and void. Then it adds: "... and 14 other councillors names and wards refer attached".
Though the petition is poorly drafted, it is possible to mount an argument that the petition did – albeit tangentially – raise the issue of the validity of the election of the fourteen members of the local-level government other than Mr Kuna.
However, the preamble is, in my view the key part of an election petition. It circumscribes the subject matter of the dispute and, therefore, the jurisdiction of the court hearing the petition. Here, the preamble indicated that it was a petition against the election of Mr Kuna as the president. The jurisdiction of the District Court was confined to that issue. The Court, with respect, travelled beyond its jurisdiction when it made orders as to the validity of the election of Mr Kuna and 14 others as members. It erred in the way contended for by the plaintiff.
DID THE DISTRICT COURT ERR BY CONCURRENTLY DEALING WITH SEPARATE MATTERS?
This sub-ground is similar to the previous one. The argument is that the District Court cannot concurrently deal with a dispute about the election of members of a local-level government and a dispute about election of its president.
I have already concluded, by following Kembo v Tulara, that in the present case the District Court erred by hearing a dispute about election of the president. It follows that, if there is a dispute about both the election of a person or persons as members of a local-level government and his or her election as president, they must be treated as two separate disputes, to be determined in two separate courts, the District Court and the National Court respectively.
Assuming for the moment that it is possible to dispute the election of fifteen persons in one petition and that the petition meets the requirements of the Organic Law as to form and content, I consider that by also addressing a dispute about the election of the president the District Court's proceedings fundamentally miscarried. This infected, fatally, everything else that the Court did in the same proceedings. Half of what the District Court was dealing with might have properly been within its jurisdiction. But the other half clearly was not. The first half was infected by the second half, with the result that the whole proceedings were bad for excess of jurisdiction.
The assumption that it is possible to dispute the election of 15 persons in one petition is, however, unrealistic. The Organic Law does not expressly say that a petition should be confined to a dispute about one person's election. But I think that is to be inferred. I consider that the petition in the present case was oppressive. This confirms my view that the plaintiff's concurrency argument should be sustained. The District Court erred by concurrently dealing with separate issues.
CONCLUSION ON SECOND MAJOR ISSUE
The District Court exceeded its jurisdiction by ordering that the seats of Mr Kuna and fourteen other members were vacant and ordering fresh elections. The Court made orders that were beyond the scope of the petition before it; and erred by concurrently dealing with a dispute about the election of 15 persons as members and a dispute about the election of the president. This ground of judicial review is upheld.
THE THIRD MAJOR ISSUE: REMEDIES
Both principal grounds of judicial review have been upheld. So the question becomes whether the remedies sought by the plaintiff should be granted. In a judicial review, remedies are always at the discretion of the Court. If a plaintiff succeeds in establishing one or more ground of review it does not necessarily follow that the plaintiff is entitled to the remedies being sought. (Clement Kilepak v Ellison Kaivovo (2003) N2402, National Court, Lenalia J; Edward Ramu Diro v Ombudsman Commission (1991) N1385, National Court, Sheehan J; Paul Tohian v Iova Geita and Francis Mugugia (No 2) [1990] PNGLR 479.)
In the present case, however, the Court has not been presented with any reason for not granting the remedies sought. I have concluded that the District Court made a number of jurisdictional errors. The District Court proceedings were fundamentally flawed. Therefore the orders of the District Court should be quashed.
ORDER
I exercise the National Court's discretion by making an order in the nature of certiorari, by which the whole of the official record of the decision and orders of the District Court at Mendi on 6 and 26 October 2003 in EP No 37 of 2003 is removed into the National Court and quashed.
Lawyers for the plaintiff: Tamutai Lawyers.
Lawyers for the first and second defendants: Solicitor-General.
Lawyers for the third defendant: Dowa Lawyers
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URL: http://www.paclii.org/pg/cases/PGLawRp/2004/55.html