(1) E.P NO 20 OF 2012 Daniel Bali Tulapi v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission; (2) E.P. NO 25 OF 2012 Komeali Kapo Ropa v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission; (3) E.P NO 35 OF 2012 Nemo Yalo v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission (2013) N5235

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ
• Judgment Date: 13 May 2013
• Court: National Court
• Citation: (2013) N5235
• Year: 2013
• Judgement Number: N5235

Full Title: (1) E.P NO 20 OF 2012 Daniel Bali Tulapi v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission; (2) E.P. NO 25 OF 2012 Komeali Kapo Ropa v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission; (3) E.P NO 35 OF 2012 Nemo Yalo v Aiya James Yapa Lagea and Albert Wens, Returning Officer for Kagua Erave and Andrew Trawen, the Electoral Commissioner and the Papua New Guinea Electoral Commission (2013) N5235

National Court: Injia CJ

Judgment Delivered: 13 May 2013

N5235

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

(1) E.P NO 20 OF 2012

BETWEEN:

DANIEL BALI TULAPI

Petitioner

AND

AIYA JAMES YAPA LAGEA

First Respondent

AND

ALBERT WENS, RETURNING

OFFICER FOR KAGUA ERAVE

Second Respondent

AND

ANDREW TRAWEN, THE ELECTORAL COMMISSIONER

Third Respondent

AND

THE PAPUA NEW GUINEA

ELECTORAL COMMISSION

Fourth Respondent

(2) E.P. NO 25 OF 2012

BETWEEN:

KOMEALI KAPO ROPA

Petitioner

AND

AIYA JAMES YAPA LAGEA

First Respondent

AND

ALBERT WENS, RETURNING

OFFICER FOR KAGUA ERAVE

Second Respondent

AND

ANDREW TRAWEN, THE ELECTORAL COMMISSIONER

Third Respondent

AND

THE PAPUA NEW GUINEA

ELECTORAL COMMISSION

Fourth Respondent

(3) E.P NO 35 OF 2012

BETWEEN:

NEMO YALO

Petitioner

AND

AIYA JAMES YAPA LAGEA

First Respondent

AND

ALBERT WENS, RETURNING

OFFICER FOR KAGUA ERAVE

Second Respondent

AND

ANDREW TRAWEN, THE ELECTORAL COMMISSIONER

Third Respondent

AND

THE PAPUA NEW GUINEA

ELECTORAL COMMISSION

Fourth Respondent

Mendi: Injia CJ

2013: 6, 7, 8 & 13 May

ELECTION PETITION- three petitions – objections to competency – consolidated hearing - exercise of discretion– objections upheld or dismissed – Organic Law On National And Local –Level Government Elections, s208 (a), (d), s 210, s 214, s 215 (1) & (3), s 218, s286 1)(f); National Court Election Petition Rules 2002(as amended) r15; Practice Directions No.2 of 2012; Criminal Code (Ch 62), s 103 (a) (i) & (iii); Constitution, s 50.

Facts

Three Petitioners brought separate petitions challenging the election result for the Kagua-Erave Open Electorate in the 2012 General Elections. The petitions were filed pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections (Ch 1) (OLNLLGE). The Respondents in all three petitions were the same. The grounds in the petition relied upon to invalidate the election or return include illegal practices, errors, omissions and irregularities. The Respondents filed separate notices of objection to the competency of each petition. The grounds of objection related to the question of non-compliance with the requirements of OLNLLGE, s 208 (a) and (d), and s 214. The trials of these three petitions were consolidated by direction of the Court upon agreement of the parties. At the commencement of the trial, the objections to competency were heard first. This judgment comprises the ruling on those objections.

Held:

1. The main purpose of a consolidated hearing of two or more petitions is to save time and costs. The trial of the three petitions were consolidated by direction of the Court upon the agreement of the parties because of the similarity in the causes of action and the issues of fact and law, the parties’ interests and their desired case outcomes such that it is desirable that the petitions should be disposed of at the same time.

2. Of the two prevailing approaches on judicial scrutiny of election petitions under OLNLLGE, s 210, namely the liberal approach and the strict scrutiny approach, a third approach is preferable. That approach is driven by fairness, purpose and substance of the matters pleaded under s 208 and s 208 (a) in particular; rather than style, form and legal technicalities. This approach requires the petition grounds and facts pleaded in support thereof to be read as a whole. Granted essential facts are pleaded in a clear and concise manner, the petition should be allowed to proceed to trial if the essence, purpose and substance of the pleadings conform to the requirement of OLNLLGE,s 208 (a).

3. The expression “set out the facts relied on to invalidate the election or return” appearing in s 208 (a) means the factual circumstances that relate to the legal ground to invalidate the election or return set out in OLNLLGE, s 215 and s 218. In an election petition, it is necessary to plead the legal ground upon which the election or return is sought to be invalidated and the essential facts supporting that ground.

4. Pursuant to s 208 (a) read in conjunction with s 215 (3) and s 218, the petition must plead the essential facts in terms of the number of eligible voters or votes cast at the polling and valid votes assigned to candidates at the scrutiny that were affected by the illegal practices, error, omissions and irregularities complained of, and demonstrate how the result of the election was affected or likely to be affected.

5. OLNLLGE, s 214 which prohibits the Court from inquiring into the correctness of the Common Roll used in the election is a jurisdictional provision; an objection to competency of the petition under this provision is permissible.

6. Pursuant to s 208 (d), the Petition must state the full address and occupation of the attesting witnesses that will enable the witnesses to be located or identified for purpose of confirming the petition. If upon reading those information stated in the petition as a whole, the witness cannot be located or identified, the petition does not comply with s 208 (a); it must be struck out for this reason.

7. Applying the above principles, all the grounds in EP 20 of 2012 except ground No. 7 (bribery) were struck out as offending s 208 (a), s 218 and s 214. The whole petition in EP No. 25 was struck out as offending s 208 (a) in conjunction with s 215 (3) and s 218. All the grounds in petition EP 35 of 2012, except Ground 11 (bribery), were withdrawn by the Petitioner. It was ordered that the petitions in EP 20 and 35 of 2012 proceed to trial on the allegations of bribery made against the First Respondent involving the electoral officers named in each petition.

Cases cited:

Papua New Guinea Cases

Agonia v Karo (1992) PNGLR 463

Biri v Ninkama [1982] PNGLR 342

Ivarato v Holloway [1988] PNGLR 99

John Wemin Mili v Simon Philip Gaima & Electoral Commission [1997] PNGLR 645

Karo v Kidu [1997] PNGLR 28

Kopaol v Embel (2003) SC727

Maino v Avei [2002] SC 633

Mune v Agiru [2009] SC 590

Nomane v Ango [No.2] (2003) N2384

Sauk v Polye [2004] SC 769

Overseas Cases

Payne v British Time Recorder Co [1992] 2 KB I

Counsel:

T.Waisi, for the Petitioner in EP 20/2012

A Kongri, for the Petitioner in EP 25/12

Petitioner in person in EP 35/12

S.Bonner, for the First Respondent in EP 20/2012

P Kuman, for the First Respondent in EP 25/2012

S.Tadabe, for the Second, Third and Fourth Respondents in EP 20/12, EP 25/12 &

EP 35/12

CONSOLIDATED HEARING – RULINGS ON OBJECTIONS

TO COMPETENCY OF PETITIONS

13th May, 2013

1. INJIA CJ: Introduction: These are three (3) election petitions brought pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections (Chapter 1) (OLNE).

2. The three (3) petitioners filed separate petitions challenging the result of the election for the Kagua - Erave Open Electorate in the 2012 General Elections. The Petitioners were amongst other candidates who lost the election to the First Respondent. The petitions contain various grounds for invalidating the election that are supported by allegations of fact. The grounds include illegal practices, errors and omissions and irregularities.

3. In separate notices of objection, the Respondents challenged the competency of each petition. This is a joint ruling on a consolidated hearing of those notices of objection to competency.

4. Counsel made extensive submissions, both oral and written, on the issues raised in those objections for my consideration. It is not necessary for me to set them out separately. Those submissions and my consideration of them are embodied in my reasoning.

Consolidation

5. A consolidated hearing of two or more causes of action is usually ordered or directed by the Court where there are similarities in the causes of action, the issues of fact and law, the parties’ interests their desired case outcomes; such that it is desirable that the actions should be disposed of at the same time. The main purpose of a consolidated hearing is that it saves time and costs: Payne v British Time Recorder Co. [1992] 2 K.B 1 at 16. The terms upon which the consolidation ordered should set the procedural platform for the manner in which the proceedings are conducted and those terms may vary from case to case.

6. The terms of the consolidation in these petitions were set by Court by way...