EP NO. 59 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 South Fly Open Electorate; Sali Subam v Aide Ganasi (No.1) (2012) N5068

• Jurisdiction: Papua New Guinea
• Judge: Ipang AJ
• Judgment Date: 11 December 2012
• Citation: (2012) N5068
• Court: National Court
• Year: 2012
• Judgement Number: N5068

Full Title: EP NO. 59 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 South Fly Open Electorate; Sali Subam v Aide Ganasi (No.1) (2012) N5068

National Court: Ipang AJ

Judgment Delivered: 11 December 2012

N5068

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 59 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 SOUTH FLY OPEN ELECTORATE

BETWEEN

SALI SUBAM

Petitioner

AND

AIDE GANASI [N0.1]

Respondent

Daru: Ipang AJ

2012: 10 & 11 December

NATIONAL ELECTIONS – ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS (OLNLGE) – Objection to Competency - Respondent claimed the petitioner in not naming the Electoral Commission or Electoral Commissioner or its agents or employees in the petition is a fatal error or omission thus amount to petition not satisfied the requisites - s. 175(1)(a) of the Organic Law on National and Local-Level Government Elections (OLNLGE).

NATIONAL ELECTIONS – PRACTICE & PROCEDURE – Objection to Competency – requirements of s. 208(d) of the Organic Law on National and Local-Level Government Elections (OLNLGE) – Attestation of petition by witnesses – Purpose of the requirement – The need to sufficiently state name, occupation, and address – Whether stating “self-employed” not sufficient – stating residential address in Daru Town not captured within Daru Town Map whether amount to insufficient fact.

Cases Cited:

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

Malcom Smith v Peti Lafanama & Ors, October 1997 Unreported

Stanley Harry Gotaha v Peti Lafanama & Electoral Commissioner (17 December, 1999) Unreported

Agonia v Karo [1992] PNGLR 463

Delba Biri v Bill Ninkama & Electoral Commission [1982] PNGLR 342

James Yoka Ekip & Simon Sanagke v Gordon Wimb & Ors EP No. 10 & 11 of 2012 (21 November, 2012) N4899

Jimson Sauk v Don Poyle (2004) SC 769

Ginson Saonu v Bob Dadae (2004) SC 763

Steven Pirika Kamma v John Itanu, Electoral Commission and Michael Laimo (2007) N3246

Counsel:

Mr.A. Furigi, for the Petitioner

Mr. T. Cooper, for the Respondent

Mr. M. Kuma (with Leave), for Electoral Commission

RULING

11 December, 2012

1. IPANG AJ: The Petitioner Sali Subam was a candidate in the recently concluded 2012 National General Election for the South Fly Open Electorate Seat in the Western Province. The petitioner was the third runner-up to the Respondent with 3,033 votes and the respondent polled with 3,489 votes. Thus, there was a difference of 456 votes between the petitioner and the respondent. The petitioner petitioned this court to void the election results for South Fly Open Electorate and order a by-election. Petitioner alleges several incidences of illegal practices i,e bribery on the part of the respondent.

2. At the initial stage there was this intention and attempt by both the counsel from the petitioner and the respondent to have this Election Petition No. 59 of 2012 consolidated in to EP No. 56 of 2012. Both EPs No. 56 and 59 are concerning the South Fly Open Electorate. This attempt to consolidate the EP proceedings is not possible at this stage as there is no positive feedback from the petitioner’s lawyer in EP No. 56 of 2012. This leaves this court to deal with an application on foot by the respondent in EP No. 59 of 2012 on the issue of competency of the petition.

OBJECTION TO COMPETENCIES

3. The respondent raised objections against the competency of this petition on two (2) grounds. The objections to competency application was filed on the 26 September, 2012 and these grounds are;

A. OMISSION OF ELECTORAL COMMISSION AS A PARTY

(i) The respondent argued that the petitioner failed to name or join the Electoral Commissioner or any of its agents or employees as a party to the petition and that is fatal omission that affects the petition on grounds that;-

(a) Pursuant to s. 175(1)(a) of the Organic Law On National and Local-Level Government Elections, the Electoral Commission through its agent the Returning Officer, is the only authority that has the power to make a Declaration as to the winning candidate. This power is an administrative power that can only be challenged either through an application for judicial review or by way of an Election Petition as envisioned by s. 206 of the Organic Law. To successfully challenge the exercise of this power, the respondent through Mr. Cooper argued that the Electoral Commission or its agent, the Returning Officer who made the declaration as to the winning candidate must be named or joined in the proceedings.

(b) The petitioner in this case has not named the Electoral Commissioner or any of its agents as a party and even if the petitioner succeeds in proving any of the allegations in the petition, the court cannot nullify the Declaration made by the Returning Officer as to the respondent’s election as member for South Fly, because the exercise of that power has not been properly challenged by joining the Electoral Commission or any of its agents to the proceedings.

(c) The court does not have the jurisdiction under section 212 of the Organic Law to grant the main reliefs sought under paragraphs A, B and C of the petition, unless the Electoral Commission or its agents are named in the petition.

B. FAILURE TO DISCLOSE VALID OCCUPATION, INSUFFICIENT AND FICTIONAL ADDRESS OF WITNESS

4. The petition offends against section 208(d) of the Organic Law on National and Local-Level Government Elections on grounds that:-

(a) The Occupation stated by attesting witness 1 Walepa Kurokuro as “SELF-EMPLOYED” is defective incomplete and erroneous as no such occupation exists nor is it prescribed in The PNG Labour Departments Guidelines to Classification of Employment and certainly not an occupation by description provided in the OXFORD Dictionary and/or other and is therefore insufficient and fails to satisfy the requirements and purposes in 208(d) of the Organic Law.

(b) The residential address of the 1st attesting witness Walepa Kurokuro as being “Bomana Middle Street, Daru”, does not exist and it is a fictional, hypothetical and/or erroneous address and is insufficient and fails to satisfy the requirements for the purposes of section 208(d).

(c) The residential address of the 2nd attesting witness Pastor Steven Bagari as being “OTTI CREEK DARU TOWN”, does not exist and it is a fictional, hypothetical and/or erroneous address as shown in the petition and is insufficient and fail to satisfy the requirements of section 208(d) of the Organic law.

(d) The inclusion of a hypothetical, Fictional and/or erroneous address as recited under (a) & (b) above, defeats the purpose of section 208(d) of the Organic Law in that the law requires and envisions a complete real, true and correct address of a witness to enable all parties and the Court of sufficiently identify and locate the witness.

(e) The decisions of this Court in Delba Biri v Bill Ninkama & Electoral Commission PNGLR 1982 342, Michael Badui v Bart Philemon & others [1992] PNGLR 451, Malcomlm Kela Smith v Peti Lafanama & others (Unreported) October, 1997, and Stanley Harry Gotaha v Peti Lafanama & Electoral Commissioner (Unreported 17 December, 1999), support the contention that a complete, full, real, true and correct address must be provided by a Witness to a Petition. Walepa Kurokuro and Pastor Steven Bagari’s residential addresses as shown in the Petition are insufficient and fail to satisfy the requirements and purpose of section 208(d) of the Organic Law.

C. SECTION 210 OF ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS (OLNLGE) “NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

5. Section 210 of the Organic Law, “Proceedings shall not be had on petition unless the requirements in Sections 208 and 209 are complied with”.

(a) Two witnesses failed to properly attest Petition EP 59 so proceedings shall not be had on the petition.

(b) Section 210 of Organic Law on National & Local-Level Government Elections (OLNLGE), see the case of Delba Biri v Bill Ninkama & Electoral Commission [1992] PNGLR 342; Michael Badui v Bart Philemon & Ors [1982] PNGLR 451; Malcom Kela Smith v Peti Lafanama & Ors October, 1997 (unreported); Stanley Harry Gotaha v Peti Lafanama & Electoral Commissioner (17 December, 1999) Unreported.

(c) The petitioner’s failure to name the Electoral commission or Commissioner is a fatal error or omission and therefore the petition has not satisfied that requisites and therefore the...