EP No.97 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 seat of Jiwaka Provincial Electorate in the 2012 General Election; Jamie Maxton-Graham v Electoral Commissioner of Papua New Guinea and Dr. William Tongamp (2013) N5216

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 02 April 2013
• Court: National Court
• Citation: (2013) N5216
• Year: 2013
• Judgement Number: N5216

Full Title: EP No.97 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 seat of Jiwaka Provincial Electorate in the 2012 General Election; Jamie Maxton-Graham v Electoral Commissioner of Papua New Guinea and Dr. William Tongamp (2013) N5216

National Court: David J

Judgment Delivered: 2 April 2013

N5216

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No.97 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 SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION

BETWEEN:

JAMIE MAXTON-GRAHAM

Petitioner

AND:

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

First Respondent

AND:

DR. WILLIAM TONGAMP

Second Respondent

Minj : David J

2013: 2 April

ELECTION PETITIONS – PRACTICE & PROCEDURE – application to join as a party – applicant an unsuccessful candidate – method of disputing validity of election or return prescribed by the Organic Law on National and Local-level Government Elections is by petition – consideration of principles on joinder to be a party – application dismissed – Constitution, Section 155 (4) - Organic Law on National and Local-level Government Elections, Part XVIII Div.1 (Sections 206-227) – National Court Election Petition Rules 2002 (as amended), Rule 12 (3)(j) and (k).

Cases cited

Holloway v Ivarato [1988] PNGLR 99

Thompson v Pokasui [1988] PNGLR 210

Peter Yama v Melchior Kasap and the Electoral Commission (1988-89) PNGLR 197

Mapun Papol v Antony Temo (1981) PNGLR 178

Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342

Ginson Saonu v Bob Dadae (2004) SC763, PGSC12

Aiwa Olmi v Electoral Commission of Papua New Guinea (2012) N4851, PGNC170

John Warisan v David Arore, EP No.44 of 2012

Sali Subam v Aide Ganasi, EP No.59 of 2012

Alphonse Moroi v Kila Haoda, EP No.67 of 2012

Patrick Basa v Bob Dadae (2013) N4991

Counsel

Veronica Yobone for the Applicant

Tony Yamarhai for the Petitioner

Ray William for the First Respondent

Michael Kuma for the Second Respondent

RULING ON APPLICATION TO JOIN AS A PARTY

1. DAVID, J: This is a ruling on an application by the applicant, Paul Enn Murunga (the Applicant) to be joined as a party to these proceedings.

2. The application is moved pursuant to a notice of motion filed on 7th February 2013. The Applicant relies on Section 155 (4) of the Constitution, Section 212 (3) of the Organic Law on National and Local-level Government Elections (the Organic Law) and the Rule 12 (3)(j) and (k) of the National Court Election Petition Rules 2002 (as amended) (the Election Petition Rules). The application is supported by two affidavits of the Applicant, one sworn on 6th February 2013 and filed on 7th February 2013 and the other sworn and filed on 11th February 2013.

3. At the hearing, the Applicant, through his counsel, Ms. Yobone, handed up his written submissions.

4. I have considered the Applicant’s written submissions and oral submissions of counsel.

5. The application is contested by all the parties to the proceedings. They have not filed any responding affidavits.

6. According to the Applicant’s affidavit evidence, he was one of the 48 candidates who contested the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (the Electorate) during the 2012 National General Election. Polling for the Electorate was conducted over two days, from 4th to 5th July 2012. Scrutiny was conducted at the Waghi Klos Haus from 16th July 2012 to 1st August 2012. The declaration of the result of the election and the name of the candidate elected was made on 1st August 2012. The Second Respondent, Dr. William Tongamp was the successful candidate for the Electorate. He polled 35,320 votes. The applicant was the runner-up. He polled 34,719 votes. The Second Respondent’s winning margin over the Applicant was 601 votes. The petitioner polled 27,956 votes. That was 7,364 votes less than the Second Respondent’s and 6,763 less than his.

7. The Applicant raises a number of matters questioning the propriety of the scrutiny conducted for the Electorate including allegations of errors and omissions committed by counting officials which he says could have affected the result of the election. These are:

· the scrutiny from 16th to 18th July 2012 was conducted without the supervision of the Provincial Returning Officer although one was appointed by the Electoral Commission;

· the Provincial Returning Officer appointed by the Electoral Commission namely, Mr. Sale Bunat did not conduct the scrutiny at all;

· the scrutiny from 19th July 2012 onwards was conducted by a Mr. Joseph Karap, a person appointed by the Jiwaka Transitional Authority Election Steering Committee headed by one, Mr. Nicholas Kuman;

· there was no instrument of appointment of Mr. Joseph Karap as the Returning Officer for Jiwaka Province;

· Mr. Joseph Karap was a retired High School teacher and public servant, the Provincial President of the T.H.E Party in the Jiwaka Province and a strong supporter of the Second Respondent therefore his neutrality was seriously in question;

· the Jiwaka Transitional Authority appointed public servants of their own choice as counting officials who made biased decisions during the scrutiny;

· amongst these public servants was a Mr. Andrew Mangi who led a group of counting officials and he was a strong supporter of the Second Respondent;

· despite the suspension of the scrutiny on 31st July 2012 at 04:00 pm by the officer in charge of the scrutiny namely, Mr. Stanley Alawa and the majority of counting officials and scrutineers leaving the counting centre, a group of counting officials remained and continued counting from 06:00 pm to 02:00 am the next day on 1st August 2012;

· during that period, the group led by Mr. Andrew Mangi placed his votes in exhausted ballot boxes and secretly and illegally built up the votes of the Second Respondent;

· scrutineers were denied access to the counting centre hence, were denied inspection of the proceedings at the scrutiny;

· decisions by counting officials on whether or not to conduct quality checks of ballot-papers especially from ballot boxes from the strongholds of the Second Respondent and other high profile candidates were biased;

· of the 184 ballot boxes for the Electorate, two from his strongholds namely, Kespam No.3 at Wara Tuman in Pulgmi Council ward, Anglimp South Waghi and Junkgaral in Upper Jimi were not included in the scrutiny; and

· he had led at the start of the scrutiny and was amongst the top five candidates going into the last three days of the scrutiny when the Second Respondent who had been running eighth throughout the scrutiny suddenly jumped ahead of him after the petitioner was eliminated at around 02:00 am on 1st August 2012.

8. The applicant also asserts that; all the ballot boxes kept at the counting centre at Waghi Klos Haus were burnt and completely destroyed by arsonists with ulterior motives last year following the commencement of these proceedings; and the Electoral Commission and the police should be held responsible for failing to secure them.

9. Ms. Yobone submits that the applicant should be joined as a party to the proceedings because he has sufficient interest in the proceedings in his capacity as an unsuccessful candidate and more so as the runner-up to the Second Respondent. Hence, it was necessary for him to be enjoined.

10. Counsel has referred me to a number of cases in both the Applicant’s written submissions and her oral submissions which I have considered. She relied heavily on the National Court decision of Makail, J in Aiwa Olmi v Electoral Commission of Papua New Guinea (2012) N4851, PGNC170 where the application for joinder as a respondent was filed by Hon. Powes Parkop, the successful candidate for the National Capital District Electorate. Mr.Parkop relied on Rule 17 (Relief from rules) of the Election Petition Rules. His Honour held that whilst the Organic Law and the Election Petition Rules were silent on the question of joinder of a party in election petition proceedings, powers vested in him by Section 212 (3) of the Organic Law and Rule 12 (3)(j) and (k) of the Election Petition Rules were wide enough for him to grant the application. He held that the applicant as the successful candidate and the Governor-elect had sufficient interest because his election was being disputed by the petitioner.

11. Counsel conceded that the application was filed very late at the eleventh hour. She however argued that since the applicant has an interest in this case, his interest should be protected by being joined as a party to these proceedings as a petitioner.

12. The First Respondent through his counsel Mr. William submitted that the application should be refused because the Organic Law and the Election Petition Rules did not specifically allow for applications for joinder of any person to be made in election petition proceedings except for the Electoral Commission with leave of the Court by operation of Section 211 of the Organic Law. There was no similar provision in the Organic Law...