For thirty-one years Biri v Ninkama was read as shutting section 217 out of competency hearings. In 2013 a three-judge bench said the time had come to read it differently.
Philip Kikala v Electoral Commission and Nixon Koeka Mangape [2013] PGSC 48; SC1295
Supreme Court, Waigani — Salika DCJ, Cannings and Kariko JJ, 18 November 2013. SC REV (EP) 11 of 2013.
What happened
Mr Kikala petitioned against the election of Nixon Mangape as member for Lagaip-Porgera Open in 2012. He alleged nine acts of bribery by the winner, illegal practices at 13 polling places and errors and omissions by the Electoral Commission. The respondents objected to competency under section 210 of the Organic Law on National and Local-level Government Elections.
What the National Court held
In Kikala v Electoral Commission [2013] PGNC 15; N4960, Makail J at Wabag upheld the objections. He found the bribery grounds failed to plead the place of each act adequately and the candidate’s intention; the illegal practices ground did not allege the winner’s knowledge or authority; the errors ground did not properly plead the winning margin. Separately, following observations of Kandakasi J in Ekip v Wimb (2012) N4899, he held that the two witnesses who attested the petition under section 208(d) were not qualified because neither could testify to or verify the facts alleged. The whole petition was dismissed.
What was argued
On review under section 155(2)(b), Mr Kikala raised eight grounds of error. The respondents defended each finding and relied on the strict compliance line of authority from Biri v Ninkama.
What the Court decided
Section 217. The conventional view that section 217 applies only at trial should be reconsidered. Thirty-one years after Biri, the direction to be guided by substantial merits and good conscience should begin the moment any aspect of the petition is before the Court, including an objection to competency (at [19]–[22]).
Section 208(a). It was not necessary to plead the place of bribery in more detail than the bank where cheques were cashed; the winner’s intention and the winning margin were adequately pleaded. Grounds 1, 2 and 7 upheld. The illegal practices ground was so convoluted that it did fail section 208(a). Ground 5 dismissed.
Section 208(d). The provision does not require the attesting witnesses to be in a position to testify, confirm, verify or prove the facts underlying the petition. The trial judge introduced a new requirement that does not in law exist. Ground 8 upheld.
Result. Four of eight grounds upheld; the dismissal quashed and the petition, except the illegal practices ground, reinstated and remitted for trial.
Did it make new law?
The Court reversed the National Court on the decisive points. Its reading of section 217 was a departure from the way Biri had been applied, though the Court presented it as building on Saonu v Dadae (2004) SC763 and Sauk v Polye (2004) SC769. Seven years later the five-judge bench in Hagahuno v Tuke (2020) SC2018 endorsed Kikala and made the fair and liberal approach the law for all stages of a petition.
Why it matters
Attesting witnesses attest the petition, not the facts. Their occupations and addresses must be shown, but they need not be eyewitnesses to bribery or polling irregularities.
Pleading standards are about clarity, not volume. A bribery ground must identify who, what, when, where and the intent, but the Court will not demand detail beyond what section 208(a) serves.
Competency objections are decided with section 217 in view. Technical defects that do not go to the substance of the petition are less likely to be fatal.
What it does not decide
Kikala does not abolish the requirements of section 208. A ground that is genuinely confusing, like the illegal practices ground here, still fails. Nor did it decide how far section 217 can excuse non-compliance with the Election Petition Rules, a question later worked out in Hagahuno and in single-judge leave decisions.
Recent cases applying it
- Hagahuno v Tuke [2020] PGSC 105; SC2018 — the five-judge bench quoted Kikala at length as the “real revisit” of Biri on section 217 and adopted its approach.
- Powi v Kaku [2019] PGSC 101; SC1856 — Kikala approved and followed: section 217 applies at all stages, not only at trial.
- Mul v Ondokoi [2023] PGSC 87; SC2441 — Cannings J applied Hagahuno and Kikala on section 217 in refusing leave to review.
- Kowa v Namah [2023] PGSC 35; SC2382 — Kikala among the authorities applied in granting leave to review a summary dismissal.
Sources
- Kikala v Electoral Commission [2013] PGSC 48; SC1295 (Salika DCJ, Cannings and Kariko JJ, 18 November 2013)
- Kikala v Electoral Commission of Papua New Guinea [2013] PGNC 15; N4960 (Makail J, 18 January 2013)
- Organic Law on National and Local-level Government Elections — ss 208, 210, 217; Constitution — s 155(2)(b)
- Hagahuno v Tuke [2020] PGSC 105; SC2018; Powi v Kaku [2019] PGSC 101; SC1856; Mul v Ondokoi [2023] PGSC 87; SC2441; Kowa v Namah [2023] PGSC 35; SC2382
Ekip v Wimb (2012) N4899, Saonu v Dadae (2004) SC763 and Sauk v Polye (2004) SC769 are cited as they appear in the judgment and were not separately opened for this brief.
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.