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2023 Supreme(PNG) 3
SUPREME COURT OF PAPUA NEW GUINEA
CAREY, J
MATTHEW DAMARU – Appellant
Versus
THE HON. TABOI AWI YOTO, MP – Respondent
EP 58 OF 2022 (IECMS)
K. Kulip, for the Petitioner
P. Tamutai, for the First Respondent
N. Onom, for the Second Respondent
An election petition must strictly comply with the Organic Law on National and Local-Level Government Elections, including filing the security deposit concurrently with the petition, otherwise the petition is incompetent and must be dismissed.
Headnote:(A) Organic Law on National and Local-Level Government Elections - Sections 208(a), 209 and 212 - National Constitution of PNG - Section 63(1) - Disputed return for Western Provincial Electorate - Objection to competency of petition - Whether petition complied with section 209 of the Organic Law - Reliefs sought invalid for non-compliance with section 212.
(B) The National Court is to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.
Facts of the case:
The petitioner, Matthew Damaru, was a candidate for the Western Provincial Electorate in the 2022 National General Election. The first respondent, Hon. Taboi Awi Yoto, was declared elected and is the member for WPE. The first and second respondents objected to the competency of the petition on the grounds that it did not comply with sections 208(a) and 209 of the Organic Law on National and Local-Level Government Elections. The petitioner argued that the question of interpretation of a constitutional provision should be referred to the Supreme Court.
Findings of Court:
The court found that the petition was not filed in accordance with section 209 of the Organic Law because the security deposit of K5,000.00 was paid into the National Court Registry on 7 December 2022, but the petition was filed on 21 December 2022. The court also found that the petition did not comply with section 208(a) as it did not set out facts that constitute a ground or grounds upon which the return of WPE may be invalidated.
Issues: 1. Whether the petitioner set out facts that constitute a ground upon which the return of WPE may be invalidated as required under section 208(a) of the Organic Law. 2. Whether the reliefs sought under paragraphs D1 to D6 in the petition are invalid for non-compliance with section 212 of the Organic Law. 3. Whether the petitioner failed to comply with the prerequisite of section 209 of the Organic Law when filing the petition.
Ratio Decidendi: The court held that the petition is not competent and must be dismissed for non-compliance with sections 208(a) and 209 of the Organic Law on National and Local-Level Government Elections. The court also held that the question of interpretation of a constitutional provision does not need to be referred to the Supreme Court as it was not necessary to do so.
Result: Petition dismissed.
JUDGMENT
4th October,2023
1. CAREY J: This is a ruling on two Notices of Motion with regard to Objection of Competency by the First and Second Respondents.
2. Mr. Matthew Damaru (the Petitioner) was a candidate for the Western Provincial Electorate (the WPE) in the 2022 National General Election.
3. The Petitioner disputes the election result in which the Hon. Taboi Awi Yoto (the First Respondent) was successful and is the Member for WPE.
4. The First Respondent objected to competency under section 208 (a) of the Organic Law on National and Local-Level Government Elections (the OLNLE).
5. Further, the First Respondent objected to competency under section 209 of the OLNLE.
6. The First Respondent argued that as a result of the Petitioner not complying with section 208 (a) and section 209 of the OLNLE, the proceedings could not be heard per section 210 of the OLNLE.
7. The Electoral Commission (the Second Respondent) adopted the First Respondent's submission in terms of the Objection to Competency under section 208 (a) of the OLNLE.
8. The Petitioner filed a Notice of Motion objecting to the Notice of Motion filed and served on 29 June 2023 by the Second Respondent on the basis that the SecondRespondent had failed to file a proper Notice of Motion based on non-compliance of Rule 12 of the Election Petition (Miscellaneous Amendments) Rules 2022 (the Rules) for Notices of Objection to Competency.
9. In an oral judgment specifically related to paragraph 8, that Notice of Motion was refused applying Amet v Yama [2010] PGSC 46; SC1064 that in the interest of justice warrants the exercise of the Courts discretion and also Rule 22 of the Rules states that, "The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises."
(1) WHETHER THE PETITIONER HAS SET OUT THE FACTS THAT CONSTITUTE A GROUND OR GROUNDS UPON WHICH THE RETURN OF WPE MAY BE INVALIDATED AS REQUIRED UNDER SECTION 208(a) OF THE ORGANIC LAW?
10. The Petitioner argued applying Hagahuno v Tuke & EC [2020] SC2018 and Section 217 of the OLNE that "the National Court shall be guided by the merits and good conscience of each case without regard to legal forms or technicalities".
11. The First Respondent's submission that the Petitioner has not set out facts that constitute a ground upon which the return of WPE may be invalidated as required under section 208(a) is not accepted.
12. The Petitioner has indicated an illegal practice known as Bribery which can invalidate an election or return.
13. The First Respondent's argument that the Petitioner's submission does not comply with Section 208 (a) of the OLNLE fails and is rejected.
(2) WHETHER RELIEFS SOUGHT UNDER PARAGRAPHS D1 to D6 IN THE PETITION ARE INVALID FOR NON-COMPLIANCE WITH SECTION 212 OF THE ORGANIC
14. The First Respondent submits that a breach of constitutional duties does not have relevance in terms of being a ground under the OLNLE to vitiate the return of an election.
15. The Petitioner sought an order under section 18(2) of the Constitution to refer questions to the Supreme Court for interpretation.
16. The First Respondent argues that interpretation of a constitutional provision under section 18(2) of the Constitution cannot form a cause of action in the National Court applying Lowa v Wapula Akipe [1992] PNGLR 399; SC430.
17. Further, the First Respondent contends that the Court of Disputed Returns does not have the powers to review an administrative decision of a Provincial Government given its remit to comply with section 212 (1) of the OLNLE.
18. The Court should only make references under section 18(2) of the Constitution when it is necessary to do so SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405. In this instance it is not necessary to do so.
19. The submission by the First Respondent that reliefs sought under paragraphs D1 to D6 in the Petition are invalid for non-compliance with Section 212 of the OLNLE are not mat
