Andrew Kumbakor v Joseph Sungi

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 07 December 2012
• Citation: (2012) N5002
• Court: National Court
• Year: 2012
• Judgement Number: N5002

Full : EP No. 23 OF 2012; In the matter of the Organic Law on National and Local-level Government Elections and in the matter of a disputed return for the Nuku open electorate; Andrew Kumbakor v Joseph Sungi and Joseph Aflatawa and Andrew Trawen, The Chief Electoral Commissioner of PNG and Electoral Commision of PNG (2012) N5002

National Court: Kirriwom, J

Judgment Delivered: 7 December 2012

N5002

PAPUA NEW GUINEA

IN THE NATIONAL COURTOF JUSTICE AT WEWAK

EP No. 23 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN FOR THE NUKU OPEN ELECTORATE

BETWEEN:

ANDREW KUMBAKOR

Petitioner

AND:

JOSEPH SUNGI

First Respondent

AND:

JOSEPH AFLATAWA

Second Respondent

AND:

ANDREW TRAWEN,

THE CHIEF ELECTORAL COMMISSIONER OF PNG

Third Respondent

AND:

ELECTORAL COMMISION OF PNG

Fourth Respondent

Wewak: Kirriwom, J.

2012: 4, 5 & 7 December

NATIONAL PARLIAMENT – Elections – Petition by unsuccessful candidate – Grounds of undue influence – Polling irregularities, illegalities – Errors and omissions – Objections to competency of petition – Petition dismissed - Organic Law on National and Local Level Government Elections, ss.43, 113, 114, 115, 116, 117, 206, 208, 210, 215, 217 and 218 – Criminal Code, s.102.

PRACTICE AND PROCEDURE – Objection to competency of petition – Failure to plead material facts – Lack of particulars – Need for particulars to crystallize grounds relied upon – Lack of coherent and cohesive pleading – Objection to competency upheld – Petition dismissed.

PRACTICE AND PROCEDURE – Objection - Competency of Objection – Objection dismissed – National Court Election Petition Rules 2002, r.15, Practice Direction (Election Petitions) No.2 of 2012 (2/8/12)

Detail facts in the judgment

P filed petition challenging the return of R1 as the duly elected Member of Parliament for Nuku Open Electorate in the East Sepik Province. He relied on three main grounds to petition the Court: (1) undue influence alleged against R1, R2 and other unnamed and unknown officials, (2) polling irregularities or illegalities alleged against R2 and other unnamed and unknown officials and (3) errors and omissions by R2, R3 and R4.

As undue influence, it was alleged that R1, as Provincial Administrator of Sandaun Province and Chairman of Provincial Election Steering Committee immediately before the National Elections, appointed R2 who was the District Manager of Nuku LLG as the Returning Officer (RO) for the Nuku Electorate and R2 appointed his own cousin as Presiding Officer (PO) for Team 52 who were both known supporters of R1.

Illegalities and irregularities at polling were committed by Teams 52 and 64 led by presiding officers who were supporters of R1 and they conducted polling in unscheduled venues named in the petition, allowed double voting, allowed under-age voting despite objections being raised.

Errors and omissions at counting were committed by R2 when he refused to reject Ballot Boxes Nos 52 and 64 objected to by P and R3and R4 are liable for the actions and omissions of their servants and agents.

Objections were raised by the respondents as to the competency of the petition for failing to meet the requirements of section 208(a) Organic Law on National and Local Level Government Elections (OLNLLGE).

Held:

1. Allegations of undue influence against R1 and R2 fell far short of criminal complicity of the offence of undue influence as defined in section 102 of the Criminal Code and the facts pleaded were incompatible with the elements of the offence of undue influence. All paragraphs in the petition pertaining to this ground were incompetent.

2. Illegalities and irregularities at polling lacked material facts to go to trial and therefore incompetent.

3. Errors and omissions also lacked material facts to go to trial and this ground was also incompetent.

According to the general scheme of this petition, with the collapse of the undue influence allegation, the two other grounds of illegal polling and errors and omissions really had no legs to stand because they rode on the undue influence bandwagon and their demise was also inevitable.

P-Petitioner

R1- 1st Respondent

R2- 2nd Respondent

R3- 3rd Respondent

R4- 4th Respondent

Cases cited:

SC182–Arthur Gilbert Smedley v The State [1980] PNGLR 379

SC1037–Andrew Trawen v Steven Pirika Kama (2009) SC1037 (1); Michael Laimo v Steven Pirika Kama (2009) SC1037 (2)

Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority — Lae (2001) N2085

Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995)

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Delba Biri –v- Bill Ninkama [1982] PNGLR 342

Ephraim Apelis v Sir Julius Chan (1998) SC573

Saonu –v- Dadae & Electoral Commission (2004) SC763

Sauk –v- Polye (2004) SC769

Holloway –v- Ivarato [1988] PNGLR 99

Siaguru –v- Unaggi (1987) N641

Kopaol –v- Embel (2003) SC727.

Raymond Agonia –v- Albert Karo and Electoral Commission [1992] PNGLR 463

Olmi –v- Kuman (2002) N2310

Vagi Mae –v- Jack Genia and Electoral Commission (1992) N1105,

Dick Mune –v- Anderson Agiru &Ors (1998) SC 590

Simon Sanagke –v- Gordon Wimb, Electoral Commission & William Duma (2012) (Unreported and unnumbered judgment of 21st November 2012)

Torato v Electoral Commission [1988-89] PNGLR 85

Joel Paua v Robert Nagle [1992] PNGLR 563

Ben Micah v Ian Ling Stuckey (1998) N1791

Karo v Kidu (Unreported N1626 of 9/10/97);

Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).

Re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298

Miru v Basua (1997) unreported N1628

Baira v Genia (1998) Unreported SC579

Jim Nomane v. David Anggo (2003) N2496

Kopaol v Embel [2008] PGSC 26; SC941

In re Central Provincial Government Elections: Mathew Poia v Socrates Valerian Valai and Electoral Commission of Papua New Guinea [1990] PNGLR 388

Laina v. Tindiwi (1991) unreported N979unreported N1628

Mongi v Vogae (1997) Unreported N1635

Counsel:

M. Philip, for the Petitioner

J. Kennedy, for the 1st Respondent

A. Kongri, for the 2nd, 3rd & 4th Respondents

7th December, 2012

1. KIRRIWOM, J.: The National Court Election Petition Rules 2002 section 15 provide for a respondent in an election petition to file objection to competency of a petition filed pursuant to section 206.of the Organic Law on National and Local Level Government Elections (OLNLLGE). By Practice Direction (Election Petitions) No.2 of 2012) amending rule 15 of the National Court Election Petition Rules 2002 issued by the Registrar dated 2nd August, 2012, any objection to competency of an election petition must be filed within 21 days of the service of the petition on the respondent.

2. Two preliminary applications were made on the first day of the scheduled ten days allocated for this election petition filed by Andrew Kumbakor, the runner-up in the 2012 National Elections for the Nuku Open Electorate which was won by the First Respondent, Hon Joseph Sungi, MP who polled 9,056 votes and the petitioner polled 8,713, a difference of 343 votes. I take judicial notice of the fact that Andrew Kumbakor was the former Member for the same Electorate but lost to the First Respondent in the last National Elections.

3. Both preliminary matters were the objections by the First, Second, Third and Fourth Respondents as to the competency of the petition. Mr Moses Philip appearing for the petitioner took issue with the objection filed by the Second, Third and Fourth Respondents as it was filed outside the 21 days requirement in the Practice Direction. Notwithstanding the objection I decided to hear both applications for objections to competency of the petition subject to hearing the Petitioner’s reply.

OBJECTION TO COMPETENCY OF OBJECTION

4. Now that I have had the opportunity to hear Mr Philip on this and the basis for his vigorous objection against my entertaining Mr Andrew Kongri’s submissions on this preliminary point, let me express my views on Mr Philip’s submissions.

5. Mr Philip’s arguments were focussed on strict and rigid interpretation and application of the Practice Direction I referred to earlier that complimented the Rules that prescribed and defined time limits within which objections must be filed. And he is right, because Rules and those Practice Directions...