EP NO. 1 OF 2006; Powes Parkop v Wari Vele and Andrew Trawen Chief Commissioner Electoral Commission of Papua New Guinea and Electoral Commission of Papua New Guinea (No.1)

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 07 February 2007
• Court: National Court
• Citation: (2007) N3320
• Year: 2007
• Judgement Number: N3320

Full Title: EP NO. 1 OF 2006; Powes Parkop v Wari Vele and Andrew Trawen Chief Commissioner Electoral Commission of Papua New Guinea and Electoral Commission of Papua New Guinea (No.1)

National Court: Kirriwom, J

Judgment Delivered: 7 February 2007

N3320

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 1 OF 2006

BETWEEN

POWES PARKOP

Petitioner

AND

WARI VELE

First Respondent

AND

ANDREW TRAWEN

CHIEF COMMISSIONER

ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Second Respondent

AND

ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kirriwom, J

2007: 6 & 7 February

(No.1)

PARLIAMENT – Elections – NCD Regional Seat - By-Election – Disputed Returns – Petition alleging grounds of bribery and undue influence by successful candidate during election – Election voidable – Organic Law on National and Local Level Government Elections, ss.206 & 215

ELECTIONS – PRACTICE AND PROCEDURE – Objection to competency of petition – Petition must plead facts relied upon to invalidate election – Sufficient facts pleaded – Objection dismissed - Organic Law on National and Local Level Government Elections, s.208(a).

On the election petition filed by the petitioner challenging the result of the election of National Capital District Regional Seat on the grounds of bribery by the successful candidate, the First Respondent herein, an objection was raised on the competency of the petition on the basis that the petition failed to plead material facts according to s. 208(a) of the Organic Law on National and Local Level Government Elections,

Held: (1) Objection to competency be dismissed

(2) Facts as pleaded in the petition complied with s. 208(a) and were sufficient to go to trial and must therefore go to trial.

Cases referred to and cited

Jimson Sauk v. Don Pomb Polye [2004] SC 769

Michael Mel v. William Ekip Wii [1993] N1178

Agonia v. Karo [1992] PNGLR 463

Peter Yama v. Melchoir Kasap[1988-89]PNGLR 197

Menyamya Open Parliamentary Elections (1977) PNGLR 298

Counsel

P Parkop, in person

A Jerewai, for First Respondent

R Williams for Second and Third Respondent

JUDGEMENT ON COMPETENCY

7 February, 2007

1. KIRRIWOM, J: An application was made by the First Respondent at the commencement of this trial for the petition to be struck out on the basis that it was incompetent. There are seven grounds contained in this petition which the First Respondent submits they all do not comply with section 208 (a) of the Organic Law on National and Local Level Government Elections (OLNE) in that they fail to specify, set out or plead facts necessary to present a petition.

2. The application is properly before me pursuant to section 15 of the Election Petition Rules 2002 and so is the Petitioner’s petition which is rightly before this Court by virtue of section 206 of OLNE. As a matter of course, when there is an objection to competency as a preliminary issue to be resolved, that must be heard and decided first.

3. At this juncture there is really no need for me to examine the evidence filed in the form of affidavits by either side. That is a matter for the substantive trial lest it might influence my mind in the way I rule on this application. I think the pleadings alone assisted by counsel’s submissions on the law would be good enough to determine the issue of competency of the Petition.

4 The petitioner’s case is founded on allegations of bribery by the First Respondent in person of either giving or promising to give money or making donations of cash during public rallies held during his campaign in various parts of the city of Port Moresby as candidate for the vacant NCD Regional Seat in the By-Election following the death of Hon Bill Skate, the then Member for that Electorate.

5. The petition set out the facts alleging the First Respondent either giving, donating, handing over cash or promising donations of cash during his campaign trail on the specified dates, times and places. The petitioner went on to plead the distribution or the manner of distribution of the proceeds of cheques cashed from the payments allegedly made by the First Respondent to named persons in the presence and for and on behalf of other named persons and the community where they belonged.

6. The First Respondent’s objection to competency of this petition is pursued on the basis that the petition failed to specifically state whether the alleged acts of bribery were sufficient to affect the result of the election. The First Respondents objection to competency is founded on application of the second leg of section 215 of the Organic Law on National Election which refers to bribery or attempted bribery of an elector by a person other than the winning candidate. Section 215 provides:

“215. Voiding election for illegal practices

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.” (emphasis mine)

7. This application is made because of the mandatory requirement of section 210 which states that ‘proceedings shall not be heard on a petition unless the requirements of section 208 and 209 are complied with. The First Respondent says that the petition falls short of meeting the requirements of section 208(a) which states that ‘a petition shall… set out the facts relied on to invalidate the election or return’. And the basis for this argument the First Respondent says, is that, the Petitioner failed to say in his petition grounds 9.1 (a) – (g) that the alleged acts of bribery were likely to affect the results of the election. This is a mandatory requisite under section 215(3) where the petition refers to other persons paying out monies to electors purportedly on behalf of the First Respondent. It was argued that if these alleged acts of bribery were committed by persons other than the First Respondent, the Petitioner was obliged to plead that they were likely to affect the result of the election. He submitted all grounds 9.1 (a) to (f) suffered similar defect except (g) which is differently worded but nevertheless must all be struck out as incompetent.

8. Mr Parkop appearing in person argued to the contrary. He said the petition contained all relevant facts as to dates, times and places where certain things were alleged to have happened and named persons as well as the First Respondent himself in person allegedly doing acts purportedly prohibited by law.

9. In this proceeding the petitioner relies on an Amended Petition made pursuant to Rule 11 of the Election Petition Rules filed 7 September 2006. He does not rely on the earlier Election Petition filed 25 August 2006, close to 24 days following declaration of results or 14 days after the return of the Writ. There is no dispute that the Amended Petition was filed within 40 days period prescribed by law.

10. There are a total of seven grounds in the Petitioner raising similar allegations of bribery and possibly one for undue influences which as alleged, were not properly pleaded in the Petition. Those grounds are as follows :

“(a) On the 4th of July 2006 at around 4.00 pm in the afternoon, after the issuance of the Writs for the By election for the Regional Seat for National Capital District, the First Respondent did give an amount of K20,000 in cheque to electors at Vanagi Settlement, Badili, including one Steven Haro, an elector, Noel Tony, an elector, Biliso Osake also an elector with the intended purpose of influencing Mr. Steven Haro, Mr. Noel Tony, Biliso Osake and other electors who are residents of the said Vanagi Settlement into voting for the First Respondent during a rally held at the said settlement. The cheque was received on behalf of the members of the Vanagi Community by the said Steven Haro, a community leader of the said Vanagi Settlement who subsequently had the cheque of K20,000 cashed and with the knowledge and authority of the First Respondent, distributed the amount to electors in Vanagi Settlement on the 7th of July 2006, including Hetape Pepe and his family; Eddie Makara, an elector and his family, in the presence of Biliso Osake, an elector and his family. The whole purpose of the giving of the cheque and the payment of cash after the cheque was cashed was to induce the said electors and other electors in the Vanagi Settlement, Badili into voting for the First Respondent in the By Election contrary to s. 103 of the Criminal Code and s. 215 of the Organic law on National and Local Level government Election.

(b) Contrary to s. 103 of the Criminal Code and s. 215 of the Organic Law on National and Local Level Government Election, on Saturday the 24th of June 2006 at about 11.30 am after the issuance of the Writs for the By election for the Regional Seat for National Capital district, the...