David Lambu v Peter Ipatas, Edward Konu (The Provincial Returning Officer) and The Electoral Commission (1997) N1701

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 19 November 1997
• Court: National Court
• Citation: (1997) N1701
• Docket Number: In the Matter of The Organic Law on National and Local–level Government Elections and In the Matter of The Disputed Return in The Enga Provincial Electorate
• Year: 1997
• Judgement Number: N1701

National Court: Sakora J

Judgment Delivered: 19 November 1997

N1701

PAPUA NEW GUINEA

[In the National Court of Justice]

EP No. 74 OF 1997

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL

GOVERNMENT ELECTION

AND:

IN THE MATTER OF THE DISPUTED

RETURN IN THE ENGA

PROVINCIAL ELECTORATE

BETWEEN:

DAVID LAMBU

Petitioner

AND:

PETER IPATAS

First Respondent

AND:

EDWARD KONU

(THE PROVINCIAL RETURNING OFFICER)

Second Respondent

AND:

THE ELECTORAL COMMISSION

Third Respondent

Waigani: Sakora, J

1997: 21 October, 14 & 19 November

Election - Parliamentary - Petition disputing election and return - Allegations of errors, omissions and illegal practices - Voiding of election and calling of by-election - Remedies under the Organic Law on National and Local-level Government Elections - Constitution, ss. 50, 57, 103 and 135 - Organic Law, ss. 4, 206, 208, 215, 218, 228 and 231 - Criminal Code, ss. 102 and 103.

Election - Parliamentary - Petition disputing election and return - Challenge to nomination - Holding of multiple public offices - Constitution, ss. 50, 57, 103 and 135 - Organic Law, ss. 4, 206, 208, 215, 218, 228 and 231 - Criminal Code, ss. 102 and 103.

CASES CITED

The following cases are cited in the judgement:

In re Menyamya Open Parliamentary Election, Neville Bourne -V- Manasseh Voeto [1977] PNGLR 298.

In re Koroba -v- Lake Kopiago Open Parliamentary Election, Andrew Wabiria -v- Payale Elo [1977] PNGLR 328.

In re Moresby North West Parliamentary Election, Gavera Rea -v- Mahuru Rarua Rarua [1977] PNGLR 338.

In re Manus Provincial Parliamentary Election, Arnold Marsipal -v- Michael Pondros [1977] PNGLR 354.

In re Moresby North East Parliamentary Election (No.1) Goasa Damena -v- Patterson Lowa [1977] PNGLR 424.

In re Moresby North East Election Petition, Patterson Lowa -v- Goasa Damena [1977] PNGLR 429.

In re Baiyer-Mul Open Parliamentary Election, Mokwa Mamando -v- Pyange Ni [1977] PNGLR 497.

Dixon Daduwe -v- Joe Area, The Electoral Commission and Mark Marea 1978.

Isilowa -v- Biaguni 1980.

Nakop Ipe -v- Mana Napas [1981] 128.

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

Jababa -v- Okuk [1983] PNGLR 69.

In the Matter of Disputed Returns Unggai-Bena Open Electorate, Masive -v- Okuk [1985] PNGLR 105.

Kevin Masive -v- Iambakey Okuk and Johannes Kenderop [1985] PNGLR 263(SC).

Philip Bouraga -v- Hugo Berghuser [1987] PNGLR 381.

Torato -v- Balakau [1988-1989] PNGLR

Holloway -v- Ivarato [1988] PNGLR 99.

Paua -v- Ngale [1992] PNGLR 563.

Agonia -v- Karo [1992] PNGLR 463.

Ludger Mond -v- Ben Okoro [1992] PNGLR 501.

In the Matter of a Disputed Return Moresby South Open Electorate, Lady Carol Kidu -v- Albert Karo, Unreported N1626, October 1997.

Crouch -v- Ozanne (1910) 12CLR 539.

Sykes -v- Australian Electoral Commission (1993) 67 ALJR 714-720 (HC).

Pavlikovich-Smith -v- Australian Electoral Commission (1993) 67 ALJR 711-713 (HC).

Hudson -v- Lee (1993) 67 ALJR 720-722.

Petitioner in person

Mr Garo for the 1st Respondent

Mr Kubak for the 2nd and 3rd Respondents

DECISION

19 November 1997

SAKORA, J: The petitioner and the first respondent were among a total of 20 candidates for the Enga Provincial seat in the 1997 national elections. The declaration of 6 July 1997, according to the figures used in the petition, gave the first respondent total votes of 50,607, and his nearest rival 23,979 votes. It is noted that the petitioner does not state the votes he himself polled and how he fared in relation to the other 19 candidates. These figures have not been disputed here, though no official records of the election and its return have been put before the court by any of the parties. But subsequent to the preliminary proceedings here, the court has had independent access to the records through the tender of a document titled: 1997 National Parliament General Election Result, of July 1997 issued by the Electoral Commissioner, in relation to another election petition I have been concerned with.

I see no legal barrier to having access to the official records contained in the abovementioned document to check on the figures given in this case, as the parties failed to assist me in this respect. And these official records (at page 30) confirm that a total of 20 candidates contested the election in this constituency. The declared results reveal the following:

1st Respondent: 50,806 (26.67%) - winner

Nearest Rival : 24,913 (13.08%)

Petitioner : 3,096 ( 1.63% )- 12th

The petition, the subject of these preliminary applications by the respondents, contains three principal allegations of what is generally termed: “errors, ommissions (sic), improper or illegal practices committed by the respondents individually and or (sic), jointly” (para.4). These are then set out under what are intended to be four separate heads of allegations (paras. 5, 6, 7 and 8). However, paragraphs 5 and 6 deal with the same subject- matter, that of nominating whilst holding other “elective public offices”, which, it is alleged, constituted the commission of errors and omissions, on his (the first respondent’s) part. And this particular allegation is revisited under paragraph (8), where it is alleged, this time, against the second and third respondents (para. 8(a)).

Under paragraph (7), the petitioner alleges that the first respondent “unduly influenced, bribed, or attempted to bribe the electors by using his position as Governor of Enga Province to use government moneys and facilities, the details of which are particularized here-under (sic)”. A total of 17 instances are then alleged. Paragraph (8) of the petition alleges what is termed: “guilty of not conducting the election properly” against the second and third respondents. One of the 8 allegations under this paragraph is in relation to the “nomination” (sub-para.(a)), which they are alleged to have failed to “reject” that of the first respondent.

Paragraph (9) of the petition lists a total of 10 remedies as being the reliefs the petitioner is entitled to be granted as a consequence of his petition. The first 7 seek declarations (the last of which seeks declaration that the election of the first respondent is null and void), whilst the next remedy sought is an order for a by-election in the electorate. And the next two are for orders in relation to costs, including what is termed: “refunding of all the petitioner’s election expenses ...”. Just for good measure, the usual general remedial powers of a court of law in ordinary litigation is attached at the end of the paragraph: “Any other such declarations or orders deems (sic) just and fit”.

The combined challenge of the three respondents as put before the court through their respective written submissions as well as the oral submissions of both Mr Garo and Mr Kubak of counsel is two-fold:

1. There is no law preventing the first respondent from nominating as he did.

2. There has been non-compliance with the mandatory requirements of the Organic Law.

Now, dealing with each of the three principal heads of allegations in turn.

PARAGRAPHS 5 AND 6: NOMINATION

The first point that has to be made here is that the petition alleges the nomination as “errors, ommissions (sic)”, firstly, on the part of the first respondent himself (paras. 5 and 6) and, secondly, as being committed by the second and third respondents “either jointly or severally ...”, when they are alleged to have “failed to reject the 1st respondent’s purported nomination...”. The second point that has to be made is that, if what is alleged here is (or are) indeed errors and omissions envisaged by the Organic Law on National and Local-level Government Elections (thereinafter, Organic Law), which I think not, then the petitioner has not claimed how these, if at all, affected or were likely to affect the result of the election: see cases on official irregularities such as Re Manus Provincial Parliamentary Election, Arnold Marsipal -v- Michael Pondros (1977); In Re Moresby North West Parliamentary Election, Gavera Rea -V- Mahuru Rarua Rarua (1977); In Re Baiyer-Mul Open Parliamentary Election, Mokwa Mamando -v- Pyange Ni (1977); Isilowa -V- Biaguni (1980); Torato -v- Balakau (1988-1989); and Paua -v- Ngale (1992).

Allegations of official irregularities in the conduct of an election and its return, based on errors and/or omissions, to ground a petition to dispute the election and return are usually levelled at electoral officials such as presiding officers, returning officers or assistant returning officers. Thus, by the very nature of these allegations only electoral officials can be properly said to have committed these irregularities.

Another issue to be considered here is the question whether or not a challenge to the nomination of a candidate for election, in the way the petitioner does here, after the election and return, is or can be a ground for petition under the Organic Law? And what the petitioner seems to be doing here (under paragraphs 5 and 6) is to offer the allegations about the nomination of the first respondent as both a ground for disqualification from standing for elective public office (membership of the National Parliament) and an electoral offence described as errors and omissions.

Section 103...