Gabriel Lenny Kapris v John Simon and Godrey Sokomia, the Returning Officer for Maprik Open Electorate and Andrew Trawen, the Chief Electoral Commissioner and the Electoral Commission of Papua New Guinea (2013) N5001

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 08 January 2013
• Court: National Court
• Citation: (2013) N5001
• Docket Number: In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a disputed return for the Maprik Open Electorate
• Year: 2013
• Judgement Number: N5001

Full Title: In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a disputed return for the Maprik Open Electorate; Gabriel Lenny Kapris v John Simon and Godrey Sokomia, the Returning Officer for Maprik Open Electorate and Andrew Trawen, the Chief Electoral Commissioner and the Electoral Commission of Papua New Guinea (2013) N5001

National Court: David, J

Judgment Delivered: 8 January 2013

N5001

IN THE NATIONAL COURT OF JUSTICE

PAPUA NEW GUINEA

EP No.7 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 MAPRIK OPEN ELECTORATE

BETWEEN:

GABRIEL LENNY KAPRIS

Petitioner

AND:

JOHN SIMON

First Respondent

AND:

GODREY SOKOMIA, THE RETURNING OFFICER

FOR MAPRIK OPEN ELECTORATE

Second Respondent

AND:

ANDREW TRAWEN, THE CHIEF ELECTORAL COMMISSIONER

Third Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Wewak: David, J

2013: 3, 4 & 8 January

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing return – allegations of illegalities and irregularities at certain polling places and scrutiny, bribery and undue influence - objections to competency – failure to comply with section 208 (a) Organic Law on National and Local-level Government Elections – ground on allegations of illegalities and irregularities not pursued – requirements under section 208, Organic Law on National and Local-level Government Elections are conditions precedent – strict compliance required of every requirement – allegations of bribery and undue influence are serious criminal offences – allegations must therefore be pleaded with clarity, definition and in sufficient terms to establish the offences – petitioner failed to plead all material and relevant facts – objections upheld - grounds on bribery and undue influence struck out – petition incompetent therefore cannot go to trial – proceedings dismissed - 208 (a) Organic Law on National and Local-level Government Elections – sections 102 and 103 Criminal Code.

Cases cited:

Bourne v Voeto (1977) PNGLR 298

Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342

Siaguru v Unagi (1987) PNGLR 372

Holloway v Ivarato [1988] PNGLR 99

Patterson Lowa v Wapula Akipe (1992) PNGLR 399

Agonia v Karo (1992) PNGLR 463

Charles Luta Miru v David Basua (1997) N1628

Korak Yasona v Castan Maibawa (1998) SC552

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

Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on 30 March 1998

Koimanrea v Sumunda (2003) N2421

Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice Hinchliffe delivered on 16 June 2003

Ginson Saonu v Bob Dadae (2004) SC763

Sauk v Polye (2004) SC769

Paru Aihi v Sir Moi Avei (2004) N2523

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Powes Parkop v Wari Vele (No 1) (2007) N3320

Powes Parkop v Wari Vele (No 3) (2007) N3322

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Legislation cited:

Organic Law on National and Local-level Government Elections

National Court Election Petition Rules 2002 (as amended)

Criminal Code

Criminal Practice Rules 1987

Counsel:

Gregory P. Manda, for the Petitioner

Francis Waleilia, for the First Respondent

Andrew Kongri, for the Second, Third & Fourth Respondents

RULING ON OBJECTIONS TO THE

COMPETENCY OF PETITION

8th January, 2013

1. DAVID, J: The petitioner, Gabriel Lenny Kapris (hereinafter called “the petitioner”) is an unsuccessful candidate for the Maprik Open Electorate in the East Sepik Province (hereinafter called “the Electorate) during the 2012 National General Election which was conducted between 18 May 2012 and 15 July 2012. Twelve other candidates also contested. Writs for the National General Election were issued by the Head of State on 18 May 2012. Polling in the Electorate was conducted between 23 and 29 June 2012. The scrutiny for the Electorate was conducted sometime after polling ended on 29 June 2012. The First Respondent, John Simon (hereinafter called “the First Respondent”) was the successful candidate for the Electorate. He polled 13,637 votes while the petitioner who was the runner-up polled 10,730 votes. The First Respondent was declared the winner and duly elected as Member of Parliament for the Electorate on 15 July 2012 by the Returning Officer for the Electorate, Godfrey Sokomia, the Second Respondent. The First Respondent was subsequently sworn in as the Member for the Electorate in the National Parliament.

2. On 16 August 2012, pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (hereinafter called “the Organic Law”), the petitioner filed his petition addressed to the National Court at Waigani disputing the validity of the election or return of the First Respondent as the successful candidate for the Electorate on three basic grounds; first, there were polling illegalities and irregularities committed at a number of polling places in the Electorate and despite that being the case, the Second, Third and Fourth Respondents by their errors or omissions failed to exclude ballot boxes containing marked ballot-papers from those polling places from scrutiny; second, the First Respondent committed the offence of bribery within the meaning of Section 103 of the Criminal Code (hereinafter called “the Code”); and third, the First Respondent committed the offence of undue influence within the meaning of Section 102 of the Code. In respect of the first ground, the petitioner sought a number of declarations including that the First Respondent was not duly elected, but the petitioner was or alternatively that a recount be ordered and the winner declared from the results of the scrutiny of ballot boxes excluding those that are disputed. In respect of the second and third grounds, the petitioner seeks orders to declare the election and return of the First Respondent void and a by-election be conducted.

3. On 12 September 2012, the Fourth Respondent, the Electoral Commission of Papua New Guinea filed its Notice of Objection to Competency of the Petition. On 9 November 2012, the First Respondent filed his Notice of Objection to Competency of the Petition with leave of the National Court granted on 7 November 2012.

4. On 3 January 2013 when the Court convened, being the first day scheduled by the Judge Administrator for Election Petitions track, Justice Makail for the hearing of the petition including the two notices of objection to the competency of the petition, the petitioner through his counsel, Mr. Manda informed the Court that he was not pursuing the first ground of the petition and would only pursue the second and third grounds. Following discussions between the bench and counsel, counsel agreed that the petitioner’s proposed terms of the concession be reduced to writing in the form of a consent order thereby necessitating the proceedings to be adjourned to 4 January 2013. At the resumption of the proceedings on 4 January 2013, a draft consent order endorsed by counsel for the parties was handed up for my endorsement which I did. The consent order basically confirms that the petitioner would not pursue the first ground constituted by the allegations contained in paragraphs 10, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the petition and the reliefs sought in respect of that ground pleaded at paragraph 26 (i) to (v) of the petition and that the remaining grounds of bribery and undue influence constituted by the allegations pleaded at paragraphs 11, 12, 24 and 25 of the petition would remain in dispute.

5. The First and Fourth Respondents’ found their objections on the two remaining grounds of the petition on Section 208 (a) of the Organic Law both asserting that the petitioner has failed to set out the material or relevant ‘facts’ constituting the grounds of bribery and undue influence to invalidate the election or return of the First Respondent as successful candidate and member for the Electorate as is required by that provision, therefore the petition was incompetent and should be dismissed. The petitioner states otherwise. He states that there has been compliance or substantial compliance with Section 208 (a) therefore the petition should be heard.

6. The parties have filed or handed up lengthy written submissions at the hearing and amplified them in their respective oral submissions. I have considered these submissions.

7. In determining this matter, I have considered the pleadings contained in the petition and the two notices of objection to competency of the petition and the Statement of Agreed & Disputed Facts and Legal Issues filed on 9 November 2012 pursuant to Rule 13 of the National Court Election Petition Rules 2002 (as amended). With respect to the Statement of Agreed & Disputed Facts and Legal Issues, I have only considered Part A of the document which relates to undisputed facts.

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