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Dihm v Returning Officer for Moresby South Electorate [1992] PGNC 81; [1992] PNGLR 377; N1059 (6 May 1992)

N1059

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WILLIAM DIHM

V

RETURNING OFFICER FOR MORESBY SOUTH ELECTORATE AND THE ELECTORAL COMMISSION

Waigani
Sakora AJ

1 May 1992
4 May 1992
6 May 1992

CONSTITUTIONAL LAW - Constitutional rights - Right to stand for public office - Protection of Constitution ss 50(1)(d), 57.

PARLIAMENT - Elections - Nomination of candidate - Time for - Expiry of prescribed period - Statutory duties of returning officers - Breach of statutory duties - Denial of constitutional right - Protection and enforcement of Constitution ss 50(1)(d), 50(2), 57(3), 58, 59, 60, 155(4), 158(2) - Organic Law on National Elections ss 18, 23, 82 - 92.

ORGANIC LAW ON NATIONAL ELECTIONS - Period prescribed for nomination of candidate - Extension of period.

COURT - Directive to give "paramount consideration to the dispensation of justice" - Application of Constitution s 158(2).

Facts

The applicant resigned from the public service to contest the national elections for Moresby South seat in the National Capital District. Approximately 3 weeks before the close of nominations, he, accompanied by 2 of his campaign officials, went to the office of the Electoral Commission for the purpose of nomination. He was directed to the Provincial Electoral Officer, who was also the returning officer for NCD and Moresby North West electorate. This officer received his nomination fee and issued him with a receipt. The applicant claimed that, in response to his enquiry as to what was further necessary for him to do to complete his nomination, the officer replied that there was nothing else to be done except to provide photographs and negatives for inclusion on the ballot papers. The officer, however, in evidence, claimed that he directed the applicant to another officer to attend to and complete other nomination formalities, and this he omitted to do.

At the close of nominations, the applicant was not nominated because of failure to complete the process. The trial judge's finding was that the applicant failed to complete the necessary formalities for nomination because of his reliance on erroneous instructions of the first defendant.

The applicant sought orders (1) that he be allowed to lodge the necessary forms within 48 hours of the court order so that he may complete nominations. (2) restraining the defendants from proceeding with the elections until step 1 above is complied with and he completes his nomination.

Held

1. Section 50(2)(d) of the Constitution guaranteed the applicant the right to stand for elective public office.

2. His non compliance with the relevant legislation for nomination within the prescribed time was due to a serious breach by the electoral officer of statutory duties which he owed towards the applicant, who was a candidate for elections in an electorate within his overall sphere of superintendence and control Re Organic Law on National Elections [1982] PNGLR 289; Re Application of Arege Yamagu [1986] PNGLR 248; Jababa v Okuk [1983] PNGLR 69 distinguished.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.
Constitutional Reference No 1 of 1977 [1977] PNGLR 362.
Jababa v Okuk [1983] PNGLR 69.
Re application of Arege Yamagu [1986] PNGLR 248.
Re Organic Law on National Elections [1982] PNGLR 289.
SCR No 2 of 1982; re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214.
SCR No 2 of 1984; re the New Ireland Provincial Constitution [1984] PNGLR 81.
SCR No 4 of 1982; Re Biri v Ninkama [1982] PNGLR 342.

Counsel

M H Lash, for the plaintiff.
P Ame, for the defendants.

6 May 1992

SAKORA AJ: This matter came on before me by way of a notice of motion dated and filed 28 April 1992 in pursuance of an originating summons dated and filed the same day. The applicant, William Dihm, seeks the following primary orders from this Court as set out in the originating summons:

"1. An Order that the plaintiff be deemed to have exercised his right to nominate for election within the prescribed time (on 6 April 1992) and that he be allowed to lodge the necessary form for nomination with the first defendant within forty-eight (48) hours of the granting of such Order.

2. An Order restraining the defendants by themselves, their servants or agents from proceeding with the conduct of the election for the Moresby South electorate until the plaintiff has lodged his nomination.

3. That the first defendant is (sic) estopped from refusing to accept the plaintiffs nomination after the close of nominations, on the basis of lateness only, because the plaintiff relied on the erroneous instructions of the first defendant that no forms were required to be filled in and lodged by the plaintiff prior to the close of nominations, and the plaintiff relied to his detriment on that erroneous instruction in circumstances where he was entitled to so rely."

The notice of motion contains primary orders sought in somewhat similar terms.

The applicant, before his resignation from the public service to contest the forthcoming June national elections for the Moresby South seat in the National Capital District (NCD), was the Secretary for the Department of Personnel Management. Having, thus, taken the necessary initial step on the road towards seeking his first elective public office, the applicant proceeded in the intervening months before the issue of writs to organise his human and financial resources for the campaign ahead. In this respect, he procured the services of a Mr Gima Raka as the chairman of his campaign committee and a Mr Jackson Rai, the Peoples Action Party (PAP) Co-ordinator for the electorate. These joined to assist in the campaign of the party's endorsed candidate.

On 6 April 1992, 18 days before the close of nominations for the Moresby South electorate, the applicant, in the company of his abovementioned campaign officials, went to the Konedobu office of the Electoral Commission for the purpose of nominating his candidature. Evidence was led and not challenged that prior to 6 April visit, the applicant had made enquiries with other candidates and the Electoral Commission office as to who he should see to nominate for his intended electorate. He was invariably given the name of Mr Rex Sabin.

When he and his party arrived at the Konedobu office of the Electoral Commission on the morning of 6 April 1992 to nominate, they were directed to Mr Sabin's office upstairs after indicating to the receptionists downstairs the purpose of their visit. Upon locating Mr Sabin, the applicant introduced his party, and Mr Sabin, himself to them. Informing Mr Sabin of the purpose of his visit to his office, the applicant then handed over K1,000.00 as his nomination fee, whereupon Mr Sabin wrote out a receipt for the money and handed it to him. Evidence up to this point in the sequence of events is not in dispute. Thenceforth, the evidence of Mr Dihm as to what transpired in Mr Sabin's office, corroborated substantially by Messrs Rai and Raka in their affidavit and oral evidence, diverge in all material particulars from Mr Sabin's version, contained in his affidavit and oral evidence. This is the evidence that counsel for the applicant, Mr Lash, describes as "the most critical facts in the plaintiffs case" and invites the Court to treat with strict scrutiny. I should note here that the second of the 2 witnesses for the defendants, Mr Victor Gabi, corroborates Mr Sabin's evidence only in one crucial respect, the alleged telephone call to him from Mr Sabin about Mr Dihm's nomination. It is evidence only that he received a call from Mr Sabin, but not that this call was made in the presence of Messrs Dihm, Rai and Raka. More will be said on this presently.

The applicant's version, supported as said above by the evidence of his 2 functionaries, is that after paying the K1,000.00 fee and being handed the receipt, he enquired specifically on 3 or 4 occasions during the 10 - 15 minutes that the meeting with Mr Sabin took place, as to what further necessary thing had to be done. Mr Sabin responded uniformly on each occasion that there was nothing further to do except to provide the photos and negatives that were required for the ballot papers. There were other discussions during the meeting about the number of candidates nominated so far for the electorate, the boundary of the electorate, the population of the electorate and the roll of its voters. The applicant's version of the events in question contains the assertion also that at no time during the meeting with Mr Sabin did he (Mr Sabin) make any telephone calls, to Mr Victor Gabi or anybody else. Furthermore, neither during nor at the conclusion of the meeting did Mr Sabin advise or instruct the applicant that he had to go and see Mr Gabi in another office, some distance from the Electoral Commission Office, to attend to and complete further nomination formalities. The applicant then left Mr Sabin's office in the confident belief that he was formally nominated for election to the seat in question. If this sounds incredulous to some ears in the light of their knowledge of what the actual nomination process entails, let it be said that stranger and more incredulous things have happened before and will happen long after this case is forgotten. Life is full of so many "Believe it or nots" and "Incredible as it may seem". In any case, as it will become apparent presently, we are concerned here not with what the applicant or anybody else should or should not have done, but rather with Mr Sabin's statutory obligations vis-a-vis this intending candidate.

The very next day, 7 April 1992, Mr Dihm caused the requested photos and negatives to be delivered to Mr Sabin with an accompanying hand-written note on a letterhead that displayed postal address and telephone number of the applicant, confirming the discussions of the previous day. Having thus considered himself nominated, the applicant and his campaign officials did nothing further until after the close of nominations on 24 April 1992, when news circulated that he had, in fact, not nominated.

Mr Sabin's evidence, basically, disputes the applicant's version. He says that, after receiving and receipting the K1,000.00 nomination fee, he advised Mr Dihm to go and see Mr Gabi to fill out the nomination form. He says also he put a telephone call to Mr Gabi, in the presence of Mr Dihm and his 2 aides, advising him to expect Mr Dihm who "was on his way to nominate with his receipt ...." In no way intending to be pedantic, it must be asked here, nevertheless, in view of what I say later about the telephone call, why Mr Sabin was purportedly telling Mr Gabi that Mr Dihm was on his way when, in fact, according to his (Mr Sabin's) evidence, the applicant was there sitting before him during this conversation. In his affidavit, Mr Sabin deposed that Mr Dihm did not ask him if anything further needed to be done. But in his oral evidence, in examination in chief, he confirmed that the applicant did ask him if there were any other steps necessary after paying the fee. Thus, apart from the disputed evidence relating to advice to see Mr Gabi and the telephone call to Mr Gabi by Mr Sabin, on the 6 April 1992 meeting, Mr Sabin's evidence generally correspond to the evidence of the applicant and his 2 witnesses as to what transpired in those 10 - 15 minutes in Mr Sabin's office. There is, however, no independent corroborative evidence to Mr Sabin's version of what transpired that is diametrically opposed to the evidence for the applicant.

Other pieces of evidence not challenged or disputed that are of pertinence in later discussions need to be noted at this juncture. For the purposes of the forthcoming national elections, Mr Sabin is the Provincial Electoral Officer for the NCD. As well, he is the duly appointed returning officer for the NCD and the Moresby North-West electorates. In answer to questions from the bench, Mr Sabin confirmed that the NCD electorate is analogous to a provincial electorate with several open electorates within its boundaries. He further confirmed that a provincial returning officer has the overall supervision and controls responsibilities over the open electorates within the province. As per directions of the Electoral Commissioner, Mr Sabin received the nomination fees of all the candidates in the NCD. At the 6 April meeting with Messrs Dihm, Rai and Raka, Mr Sabin neither confirmed nor denied he was the returning officer for Moresby South. Nor did he state or intimate in any manner that he was the returning officer for electorate(s) other than Moresby South.

I have outlined the facts in some detail because I consider that this whole case turns on the facts. The law, as will be surveyed through the decided cases in this jurisdiction, is not in any dispute or doubt.

The applicant's case is that, in the light of the facts outlined above, there is a clear case of a breach of his rights under s 50 of the Constitution. The breach, it is contended, is constituted by the breach of the statutory duties of a returning officer, as provided for under the Organic Law on National Elections (OLNE). This then, it is argued, entitles the applicant to come to this court and invoke its powers under s 57 of the Constitution. In the alternative, it is argued that redress sought here can be provided through s 155(4) of the Constitution. Thus, Mr Dihm seeks injunctive relief for the enforcement of his constitutional right to be given a reasonable opportunity to stand for elective public office in the electorate of Moresby South. It is contended further in this respect that his right has been denied through the conduct of one or more employees or officials of the Electoral Commission, who have a statutory duty to give effect to the OLNE. The breach of that duty has led to the applicant being denied the reasonable opportunity to lodge the necessary nomination form with the appropriate returning officer within the prescribed time. Finally, it is contended that the breach of that duty and the consequent denial of his constitutional right cannot be remedied by any order other than the relief sought, as the right to stand for elective office is unique to each citizen, it arises only once every 5 years and no other means of being elected is possible.

The substance of the defendants' arguments, as advanced by their counsel, Mr Ame, is that the facts here demonstrate a clear case of failure to nominate within the prescribed period and as required by the OLNE, ss 82 - 92, inclusive. It is contended, in this respect, that having failed to nominate as required, what the applicant is seeking here is an extension of time to nominate, after the due expiry of the prescribed period for nomination, something which decided cases in this jurisdiction have ruled the Court has no power to order.

Before I discuss the law, I must now consider the evidence put before me. On the disputed "most critical" facts, I am more inclined towards the applicant's version as corroborated by the evidence of his 2 witnesses; I accept, firstly, the applicant's assertion that at no time during the 10 - 15 minutes did Mr Sabin mention that there were other necessary formalities to be completed elsewhere than in his office, more particularly in the office of Mr Gabi located some distance away, an unmarked office at that. I do so because I believe that, if Mr Sabin had given such advice or instruction it would have been complied with. The applicant was for the first time in his life taking decisive steps on the road towards seeking elective public office. This was a momentous occasion in the life of this applicant, an occasion and aspects thereto which he would not forget readily. He had followed other advice and instructions, in particular the submission of photos and negatives for the ballot papers. He had gone to a particular locality in the NCD to a particular office to see a particular person to achieve a particular purpose that day. Why not the instructions about nomination formalities. In the circumstances, it is more probable than not that if Mr Dihm and his two supporters had been instructed and directed to another office and another person they would have gone there. There was no reason not to. Otherwise, the trip to Konedobu and the visit to Mr Sabin's office would be quite pointless, even superfluous. And, from Mr Sabin's evidence, other candidates had gone to Mr Gabi when he instructed and directed them to. In making this finding, I am in no way saying that Mr Sabin deliberately misled or omitted to advise. It is quite likely that, in the discussion of a variety of topics within those 10 - 15 minutes and that he had dealt with numerous other candidates on that and other days following the issue of writs, Mr Sabin forgot completely that he had to advise Mr Dihm to go to Mr Gabi after their conversation to complete nomination.

Secondly, I accept the applicant's version regarding the telephone call. Mr Gabi confirms Mr Sabin's story about the call. But I am inclined to believe the applicant and his witnesses that the subject telephone call did not take place when they were in the room with Mr Sabin. In the light of what I have said above, it is more probable than not that Mr Sabin made the call sometime after Mr Dihm and his party had left his office and without having realised that they had done so without his having instructed them to proceed to Mr Gabi's office. Otherwise, if what Mr Sabin and Mr Gabi say is true, and when Mr Dihm did not make an appearance soon after the telephone call, why did Mr Gabi not check with Mr Sabin. One would have thought Mr Gabi would have become anxious at Mr Dihm's non-appearance that day after the telephonic advice to expect him, if only to establish what may have been or be happening so that he could properly organise his affairs for the rest of the day. He might want to step out of the office in answer to a call of nature or even go out for lunch. The telephone call from Mr Sabin was supposed to have been between 10.00 and 10.30 a.m.. Instead, as he says in his affidavit evidence, he waited for Mr Dihm till 4.06 p.m..

Thirdly, I am inclined to the belief that Mr Sabin did not give the booklet on nomination information to Mr Jackson Rai on some unidentified previous occasion as he said he did. He advanced this as an explanation for not giving such a booklet to the applicant on the 6 April meeting. Mr Rai said in his evidence that he had never met Mr Sabin before the 6 April meeting. This point was never put to Mr Rai during cross examination by Mr Ame, and I discount it as being an instantaneous invention to cover up the default of 6 April.

Finally, I find that Mr Sabin as the electoral officer for the NCD and the gazetted returning officer for the NCD, was in serious breach however, unintentionally, of his statutory duty towards the applicant as a candidate for election in an electorate within his overall sphere of superintendence and control. The fact that the Moresby North-West and the NCD, and not Moresby South, were his direct and immediate responsibilities is of no consequence to the allegation of breach of statutory duty. Section 18 of the OLNE provides that the returning officer:

"shall be charged with the duty of giving effect to this law within or for his electorate, subject to any directions of the Electoral Commission".

In his evidence, Mr Sabin said that by a direction from the Electoral Commissioner he was to collect the nomination fees from all the candidates in the NCD electorates. As well as this, according to his evidence, he issued the nomination information booklet to the candidates and directed them to their respective returning officer after payment of their fees. Thus on 6 April, like on the other days when candidates paid their fees, Mr Sabin was a returning officer within the meaning of s 18 Organic Law on National Elections. As noted above, he was also the electoral officer for the NCD. This conclusion is further strengthened by s 23 OLNE. That provision reads:

"All Returning Officers shall keep forms of claims for enrolment and transfer and such other forms as are prescribed, and shall without fee supply them to the public and assist the public in their proper use".

Mr Sabin had the nomination information booklets and nomination forms in his custody and control, or ought to have, and failed to furnish these to the applicant with any necessary assistance as to their use. In this neglect and omission, he committed a breach of his statutory duty to give effect to the OLNE, thereby denying the applicant the reasonable opportunity to exercise his right under s 50 Constitution. This then, in my opinion, disposes also of the argument of Mr Ame that the OLNE places no lawful obligation or duty on returning officers to advise candidates on what format to follow, and further that s 23 OLNE bound Mr Gabi and not Mr Sabin. Mr Ame relied on the case of Jababa v Okuk [1983] PNGLR 69 for this contention. As can be seen from the joint judgment of Kidu CJ and Andrew J, their Honours were concerned with question of qualification as a candidate (which could properly be left to be dealt with in an election petition) rather than with forms and formalities of nomination as we are concerned with here. Specifically their Honours said at p 71:

"In principle the law in this case shows that it is no part of the returning officer's duty to concern himself with matters of qualification or disqualification for election."

It is contended by the applicant in his s 50 Constitution breach argument that the omission by Mr Sabin to furnish the nomination information booklet to and properly instruct the applicant constituted the breach which caused the denial of the right. By not instructing the applicant as to how to complete the nomination process as envisaged by s 23 OLNE when the applicant was in a position of relying on the returning officer, and the officer knew or ought to have known of that reliance, the applicant's reasonable opportunity to nominate in time elapsed without the applicant ever becoming aware of that requirement until after nominations closed.

Whether or not he (Mr Sabin) was the duly appointed returning officer or acting returning officer for Moresby South at the time is of no consequence here. He was the officer designated to receive the nomination fees and direct candidates to the returning officers concerned. He was the first Electoral Commission official, the first returning officer in the NCD all intending candidates came into official contact with. He was performing the same functions as a provincial returning officer in the provinces.

As Kapi Dep CJ noted at p 89 in SCR No 2 of 1984; re the New Ireland Constitution [1984] PNGLR 81, s 50 Constitution was fully considered in the SCR No 2 of 1982; re Organic Law on National Elections [1982] PNGLR 214. The pertinent part of that provision reads: "... every citizen ... has the right, and shall be given a reasonable opportunity - (d) ... to be elected to elective public office ..."

It would follow from the lengthy discussions on the facts of the latter of the above 2 cases that the question of what is or is not reasonable opportunity in this context depends on the peculiar facts of each case.

Mr Ame correctly noted, to which Mr Lash concurred, that s 50 is not self-executing in its operation. In the New Ireland Provincial Constitution case, it was held that a law relating to the exercise of rights to vote and stand for public office may, pursuant to s 50(2) Constitution, regulate the rights but not prohibit them. And in the present context, the rights are regulated by the OLNE and, in respect particularly of valid nominations, the regulatory provisions are found in Part XI ss 82 - 92 inclusive.
It was submitted by Mr Ame that as the applicant failed to nominate in accordance with Part XI OLNE, he lost his right and, thus, cannot be allowed to retrieve and exercise it by nominating out of time. Mr Ame cited the pertinent cases in this jurisdiction refusing to permit candidates to nominate out of time. The law is, therefore, well established that, firstly, Part XI OLNE is the relevant part dealing with the nomination process, and that, secondly, a candidate in default of the prescribed requirements of those provisions cannot be allowed to comply with them after close of nominations. Thus, the courts have held that they have no power to extend the time for lodgement of nominations because to do so would be to override the strict requirements of the OLNE. As correctly noted by both Mr Ame and Mr Lash, the OLNE makes no specific provisions for late compliance with requirements.

I am in agreement with the applicant's contention that these cases are factually and, therefore, constitutionally distinct from the present case. In Re Organic Law on National Elections [1982] PNGLR 289, the candidate was on his way to nominate on the last day of nominations when he was detained by the police for a previous traffic offence. Upon release he was late to nominate on time. The Court held it had no power to order nomination out of time. Failure to nominate in time meant he lost his right by operation of a regulatory law. The intervention of the police was no assistance in the candidate's case.

In the Jababa case (supra), the Supreme Court held that compliance with the time limits for nomination was mandatory and failure to comply could not be regarded as a formal defect under s 88 OLNE. The candidate was not enrolled in the electorate he intended to nominate. So he attempted to have transferred his earlier nomination in another electorate. This placed him out of the prescribed time limit and, thus, his late nomination by order of the National Court was rejected on appeal. In Re Application of Arege Yamagu [1986] PNGLR 248, the Deputy Premier of Eastern Highlands attempted to nominate late after his vehicle broke down on his way to the place of nomination. Wilson J refused to allow him to lodge his nomination out of time.

As correctly noted by Mr Lash, these cases involved candidates whose conduct or conduct of third parties prevented the candidate from nominating on time. They did not involve conduct on the part of electoral officials - and more specifically, they did not complain of returning officers or other electoral officials in breach of any of their statutory duties. Here we have such a case.

I am of the opinion, therefore, that in this first case of this nature I am freed from the well-founded precedents referred to me and discussed above. Their relevance and authority remain intact and unquestioned. The factual basis for the relief sought and the very nature of the relief itself lead me to the respectful conclusion that those cases do not apply here. And in this respect I agree with Mr Lash's submission that this is not a case for asking the Court to permit nomination out of time. The main contention here is that the applicant did, in fact, exercise his right to nominate on 6 April when he attended Mr Sabin's office and carried out all instructions on which he was advised. Accordingly, as far as he was concerned, there was nothing further that needed to be done on his part. It is not as if he was fully conversant with the intricacies of the nomination process and its procedures, had the proper nomination and other necessary accompanying forms to complete and submit, but went away and completely forgot to attend to these. The applicant, therefore, is not seeking the restoration of a lost right but rather the protection and enforcement of a right which has been unjustly left incomplete through the dereliction of duty of a statutory officer.

I am in sympathy with this line of argument as it appears, in my respectful opinion, to be in consonance with the special circumstances of this case.

If I accepted the applicant's position, I was invited to invoke the powers of the Court under s 57 Constitution to accord relief in the manner and nature sought. In the alternative I was urged that s 155(4) could properly be availed of.

Dealing first with the latter alternative provision for enforcement, and, only briefly because I do not consider that I need to resort to it here, Mr Ame protested that s 155(4) could not be used to allow something that was specifically prohibited or restricted by statute. Although he did not refer to them, I would think that he had in mind the decisions in SCR No 4 of 1982; Biri v Ninkama [1982] PNGLR 342 and Avia Aihi v The State [1981] PNGLR 81, the two Supreme Court decisions that considered and interpreted the provision. It was held in the earlier case and confirmed in the latter that s 155(4) could not be interpreted in a way which would give the Court the power to override the provisions of an act passed by Parliament. Nor could it be used to override a provision of an Organic Law or another provision of the Constitution that were in mandatory terms.

The situation here is that the applicant is not seeking the Court's indulgence to override a provision of the OLNE. Rather, the applicant asks the Court to protect and enforce his right by fully utilizing the requirements of the OLNE, which he was prevented from doing by the default of the defendants.

Therefore, it is to s 57 Constitution that I must go to provide the relief sought. Section 57 is the primary source of protection and enforcement in this instance. Whilst s 50 is not self-executing, s 57 is the executory, enforcing provision.

As Kapi Dep CJ said in In Re Organic Law on National Elections (supra), it is clear that under s 57(1) Constitution, the National Court has power to protect or enforce a right or freedom provided under the division. Whilst acknowledging that the s 50(1)(d) right could be regulated or restricted by a law under s 50(2), the learned Deputy Chief Justice said at p 291 that, if this right (i.e. the right to nominate according to the OLNE) was denied by any person or authority during the period of nomination, the Court would enforce that right during the nomination period under s 57 Constitution. Of course s 57 could not be availed of during the nomination period in this case for the reasons given earlier. Although his Honour refused to order late nomination in that case, it is respectfully suggested that s 57 is, nevertheless, available to this applicant in the particular circumstances of this case.

Frost CJ, in the case of Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at pp 366-368 discussed generally enforcement provisions of ss 57 and 58.

Other provisions of the Constitution, especially ss 59 and 60, were urged upon me by Mr Lash as of assistance in determining the application. As I conclude that s 57 gives me the power to grant relief in the manner sought under the special circumstances of this case, I see no need to deal with those provisions here in any detail. I acknowledge their pertinence in my overall appreciation of this case. I must, however, refer to one provision of the Constitution not adverted to by counsel and which I consider to be of relevance here. And that is s 158(2). Section 158 deals with the exercise of judicial power. After acknowledging the source of the judicial authority of the "People" in our constitutional scheme, s 158(2) reads: "In interpreting the law the courts shall give paramount consideration to the dispensation of justice".

The learned authors of The Annotated Constitution of Papua New Guinea have conducted a useful but brief survey of the cases in this jurisdiction which have considered whether or not s 158(2) is a source of jurisdiction or judicial power. As Brunton and Colquhoun-Kerr note, the provision has been relied on to do justice where law, statutory or common law, was constrained to not accord. There is quite a list of cases on this (pp 361-362) and I do not intend to reproduce it here. Suffice to say, however, that resort to s 158(2) was had in the face of well-founded and long-standing rules and procedures of law.

The learned authors of the text also note other cases that have sent out warning signals about the availability of s 158(2). These have basically said that "justice" under the provision means "justice according to law" as opposed to justice for a particular applicant. If the restrictive view taken of s 158(2) by the Supreme Court in Biri v Ninkama (supra), the "justice according to law" view, were taken by the courts in the earlier cases, then those momentous decisions "dispensing justice" would not have been achieved.

Thus, it is my respectful opinion that, if s 57 were said to be unhelpful, which I disagree, to Mr Dihm because of those authorities on late nominations, then s 158(2) would be the other constitutional basis upon which to accede to the relief sought.

Accordingly I make orders in the terms of the notice of motion, that is to say:

1. The defendants by themselves, their servants or agents be temporarily restrained from proceeding with the conduct of the election for the electorate of Moresby South until the plaintiff has lodged his nomination form.

2. The plaintiff be given the necessary forms for nomination and be allowed to lodge the same with the first defendant within 48 hours of the granting of this order.

3. Both defendant be enjoined from rejecting the plaintiffs nomination on the basis of late filing only.

______________

Lawyer for the plaintiff: Day & Associates.
Lawyer for the defendant: Solicitor-General.