A petition against the member for Gumine Open failed because it did not state what the attesting witnesses did for a living. The ruling that followed shaped election litigation in Papua New Guinea for a generation.
Supreme Court Reference No 4 of 1982; Re Delba Biri v Bill Ginbogl Ninkama, Electoral Commission, Bande and Palume [1982] PGSC 10; [1982] PNGLR 342
Supreme Court, Waigani — Kidu CJ, Kapi DCJ and Andrew J, 5 October 1982. Reference from the National Court.
What happened
Mr Biri filed a petition on 16 July 1982 disputing Mr Ninkama’s election. Section 208(d) of the Organic Law on National Elections required a petition to be attested by two witnesses “whose occupations and addresses are stated”. The petition omitted the occupations. Section 210 provided that no proceedings shall be had on a petition unless sections 208 and 209 are complied with. The National Court referred to the Supreme Court the questions whether the petition must comply strictly and whether it could be amended.
What was argued
The petitioner said the omission was minor, that it would be unjust for a petition to fail on it, and that the courts’ power under section 155(4) of the Constitution to make orders necessary to do justice, together with section 158(2), which makes the dispensation of justice paramount, allowed an amendment. The respondents said section 210 was mandatory and left no room for a cure.
What the Court decided
1. A petition filed under section 206 must comply strictly with each and every requirement of section 208.
2. The National Court may allow an amendment to cure non-compliance, but only where the application is made within the two months after the declaration of the result allowed by section 208(e).
3. After that period the Court has no power to allow an amendment.
Following Avia Aihi v The State [1981] PNGLR 81 and Mapun Papol v Temo [1981] PNGLR 178, the Court held that section 155(4) cannot be read to give a court power to override an Act of Parliament, still less an Organic Law, which is a Constitutional Law, and least of all one expressed in mandatory terms. The requirements of section 208 reflected the special nature of election disputes and the need for them to be resolved quickly and on properly framed petitions.
Did it make new law?
Yes. This was a reference answered at first instance by the Supreme Court, not an appeal, and it established the strict compliance rule. The Court also expressed the view that section 217, which directs the National Court to be guided by substantial merits and good conscience, operated only at the trial of a competent petition, not at the competency stage. That second proposition is the one later abandoned.
How it stands today
In Hagahuno v Tuke (2020) SC2018 a five-judge bench held that section 217 and the fair and liberal rule in Schedule 1.5 of the Constitution apply to every stage of a petition, including objections to competency, and that the strict, technical approach encouraged by Biri had caused petitions raising serious irregularities to be dismissed unnecessarily. On Biri’s own facts the result would now be different: “self-employed” was held an adequate occupation.
What survives is the core. Section 208 must still be complied with, the two-month limit is still absolute, and section 155(4) still cannot rescue a defective petition. What changed is how strictly compliance is assessed.
Why it matters
Get the petition right within two months. The Court cannot extend the time and cannot allow an amendment after it. Attestation, the facts relied on, the relief sought, the signature and the security deposit must all be in order when filed.
Objections still matter. Respondents continue to test petitions against section 208, but now under Hagahuno’s standard of substance rather than form.
Recent cases citing it
- Wartovo v Narawec [2023] PGSC 29; SC2386 — Cannings J: a trial judge’s approach was consistent with “a long line of authority, beginning with Biri v Ninkama”, requiring compliance with each requirement of section 208, as reinforced but moderated by Hagahuno.
- Trappe v Maki [2023] PGSC 135; SC2480 — a ground of review alleged that the trial judge had applied Biri where Hagahuno should have guided him.
- Nomane v Mori [2023] PGSC 52; SC2412 and Dola v Alua [2023] PGSC 169; SC2521 — Biri cited in reviews of competency rulings after the 2022 election.
Sources
- Biri v Ninkama [1982] PGSC 10; [1982] PNGLR 342 (Kidu CJ, Kapi DCJ and Andrew J, 5 October 1982)
- Organic Law on National and Local-level Government Elections — ss 206, 208, 209, 210, 217; Constitution — ss 155(4), 158(2), Sch 1.5
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81; Hagahuno v Tuke [2020] PGSC 105; SC2018
- Wartovo v Narawec [2023] PGSC 29; SC2386; Trappe v Maki [2023] PGSC 135; SC2480; Nomane v Mori [2023] PGSC 52; SC2412; Dola v Alua [2023] PGSC 169; SC2521
The judgment concerns the Organic Law on National Elections as it stood in 1982. The corresponding provisions of the current Organic Law carry the same section numbers.
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