Apaso Winch L Oibotee v Benny Allen

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 08 April 2013
• Citation: (2013) N5155
• Court: National Court
• Year: 2013
• Judgement Number: N5155

Full : EP NO. 79 of 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of the Disputed Returns for the Unggai Bena Open Electorate; Apaso Winch L Oibotee v Benny Allen and Demo Imara (Returning Officer, Unggai Bena Open Electorate) and Alwyn Jimmy (Provincial Election Manager) and Andrew Trawen, Electoral Commissioner of Papua New Guinea. (2013) N5155

National Court: Davani, J

Judgment Delivered: 8 April 2013

N5155

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 79 OF 2012

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

AND

IN THE MATTER OF THE DISPUTED RETURNS FOR THE UNGGAI BENA OPEN ELECTORATE

BETWEEN

APASO WINCH L OIBOTEE

Petitioner

AND

BENNY ALLEN

First Respondent

AND

DEMO IMARA, (Returning Officer, Unggai Bena Open Electorate)

Second Respondent

AND

ALWYN JIMMY (Provincial Election Manager)

Third Respondent

AND

ANDREW TRAWEN, Electoral Commissioner of Papua New Guinea

Fourth Respondent

Goroka: Davani, J

2013: 3rd, 8th, April

ELECTION PETITION — Objection to Competency — failure to plead date of return of the writ — Organic Law on National and Local Level Government Elections (Organic Law) s208 — failure to state full particulars of address of attesting witness to the petition — failure to state particulars of occupation of attesting witness, use of “self-employed” disapproved — reliance on affidavits to correct pleading deficiency disapproved — Organic Law s215(1) — bribery allegation – failure to identify persons involved — failure to plead knowledge and consent of the successful candidate — s215 (3) failure to plead results of election likely to be affected —illegal practices — failure to plead which law was breached — failure to plead results of election would be affected — s282(A) & s283¯grounds pleaded requiring enquiry into how voters cast their votes struck out —failure to plead absolute majority and winning margin ballot numbers — court unable to determine if sufficient ballots involved in allegations in petition to affect the result of the election.

Facts

The petitioner was runner-up to the first respondent in the National Election in 2012. He sought to void the election of the first respondent on grounds of bribery, illegal practices, and errors and omissions by officials. Objections to the competency of the petition were filed by the respondents on similar grounds. The grounds being, failure to plead with sufficient particularity to enable the first respondent to prepare his case, not disclosing the occupation of an attesting witness and not disclosing an adequate address for an attesting witness to the petition, not pleading the actual date of declaration of the result of the election, failing to provide figures from which the winning margin could be calculated, failing to plead that the allegations of bribery were committed with the knowledge and approval of the first respondent and failing to plead that the results of the election was likely to be affected.

Held

1. A petitioner cannot rely on affidavits to correct pleading deficiency in the petition, [26];

2. Evidence should not be relied on in an Objection to Competency application because the enquiry is into the form of the Petition and not the merits, [28];

3. The physical address of a witness to a petition should be stated together with the postal address. Failure to provide sufficient particulars of address can be fatal to the petition [41];

4. The nature of the employment of an attesting witness to a petition should be stated accurately. The description, “self-employed” should not be used, [42];

5. The Post Office box number of an attesting witness to a Petition, without the name of the Post Office or the town or city in which it is located, is insufficient for the purposes of s208(d) of the Organic Law, [46 – 51];

6. The allegations of bribery in the petition must properly identify the persons involved. It must also plead that the actions taken were taken with the knowledge of the first respondent. The Petition must also plead that the results of the election were likely to be affected, [63 – 79];

7. Grounds pleaded in a petition which can only be proven by the court enquiring into how voters cast their vote will be struck out as that would be a breach of s282A of the Organic Law, [68 – 69];

8. The grounds of illegal practices pleaded in paragraphs B24 to B54 of the Petition are deficient in material facts, vague and ambiguous and in breach of 215 (1) of the Organic Law, do not plead that the acts were done with the knowledge of the first respondent nor that the results of the election were likely to be affected, and will be struck out, [118];

9. The allegation of illegal practices in paragraphs 55 to 65 of the petition do not plead the relevant provisions of the Organic Law that were breached or that as result of these alleged breaches, the election result would have been affected. [136 – 147];

10. If the Petitioner relies on a statutory or constitutional law in his allegations and that there has been a breach of that duty by an electoral official, then that provision must be pleaded together with the alleged facts. [136 – 147];

11. The total number of valid ballot papers remaining after the final exclusion, the absolute majority (50% +1) and the total number of votes that the winning candidate received above the absolute majority, are material facts to be pleaded before the court can determine whether the allegations in the petition in respect of illegal practices involved sufficient votes to affect the result of the election, [159 – 163];

12. The date on which the writ was returned is an important element which forms the threshold existence of the petition and failing to plead it is a gross error. The whole petition will be dismissed on that basis alone, [171 – 172].

Cited cases

Re Moresby Northwest Parliamentary Election; Gavara Rea v. Mahuru Rarua [1977] PNGLR 33

Delba Biri vs. Bill Ninkama [1982] PNGLR 342 at 345

Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28

Anthony Siaguru v. David Unagi [1987] PNGLR 372

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Michael Badui v. Bart Philemon [1992] PNGLR 451

Vagi Mae v. Jack Genia (1992) N1105

Michael Badui v. Bart Philemon & Ors [1992] PNGLR 451

Albert Karo v. Lady Kidu [1992] PNGLR 451

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Joel Paua v. Robert Ngale [1992] PNGLR 563

Greg Mongi v. Bernard Vogae & Anor (1997) N1635

Malcolm Kela Smith v. Peti Lafanama & Ors [1997] PNGLR 151;

Komane Asano Wasege v. Mathias Karani [1998] PNGLR 132 PGNC 220;

Bourne v. Voeto [1977] PNGLR 298

Charles Luta Miru v. David Basua and Others (1997) N1628

Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 (N1626)

Barry Holloway v. Aita Ivarato and Electoral Commission [1998] PNGLR 99

Dick Mune v. Anderson Agiru & ors (1998) SC 590

Palme v. Mel [1998] PNGLR 808

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

Arnold Marsipal v. Michael Pondros [1977] PNGLR 354;

Louis Ambane v. Electoral Commission & Ors (1988) SC 559

Empraim Apelis v. Sir Julius Chan (1998) SC 573

Stanley Harry Gotaha v. Peti Lafanama & Ors (Unreported National Court Judgment) dated 17th December, 1999,

Baki Reipa v. Yuntivi Bao [1999] PNGLR 232

Moses Murray v. Sir Michael Somare & Others EP 36/2002

Francis Ali v. Frank Oru & Others (EP 37/02)

Ludger Mond v. Jeffery Nape (2003) N2318

Mathias Karani v.Yawa Silupa and the Electoral Commission (2003) N2385

Francis Koimanrea v. Alois Sumunda (2003) N2421

Robert Kopaol v. Philemon Embel (2003) SC 727

Ginson Saonu v. Bob Dadae (2004) SC 763

Beseoh v. Bao (2003) N2348

Pogo v. Zurenouc (2003) N2351

Francis Koimanrea v. Alois Sumunda (2003) N2421

Steven Pirika Kamma v. John Itanu, Andrew Trawen & Michael Laimo (2007) N3246

Labi Amaiu v. Andrew Mald (2008) N 3334

Kopoal v. Embel (2008) N3319

Alfred Manase v. Don Polye and the Electoral Commission (2008) N3534

Simon Sanagke v. William Duma & Ors (November 2012) EP 10 & 11 of 2012

Sali Subam v. Aide Ganasi & Electoral Commission, EP No. 59 of 2012 dated 11th December, 2012

Kikala v. Electoral Commission of Papua New Guinea (2013) N4960

Counsel

Mr P. Punau, for the Petitioner

Mr P. Mawa, for the first Respondent

Ms. C. Lari, for the second, third and fourth Respondents

DECISION

(Objection to Competency)

8th April, 2013

1. DAVANI, J.: The hearing of the Election Petition in this matter commenced with submissions by counsel on the Objection to Competency filed by Paul Mawa Lawyers and Niugini Legal Practice for First Respondent and Second, Third and Fourth Respondents, respectively.

2. The Objection to Competency moved by Mawa Lawyers is that filed on 28th March, 2013 and titled “Further Amended Notice of Objection to Competency” (‘Objection to Competency’). This was filed upon my directions issued on 25th March, 2013 at the Status Conference of the matter, after I had given leave to the First Respondent’s newly appointed lawyer, Mr Mawa, to amend the Objection to Competency filed by Twivey Lawyers on 26th...