In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Karimui-Nomane Open Electorate; Michael Korry v Mogerema Sigo Wei and Electoral Commissioner of Papua New Guinea (2013) N5416

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 08 November 2013
• Court: National Court
• Citation: (2013) N5416
• Docket Number: EP NO 05 OF 2012
• Year: 2013
• Judgement Number: N5416

Full Title: EP NO 05 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Karimui-Nomane Open Electorate; Michael Korry v Mogerema Sigo Wei and Electoral Commissioner of Papua New Guinea (2013) N5416

National Court: Makail, J

Judgment Delivered: 8 November 2013

N5416

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 05 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KARIMUI-NOMANE OPEN ELECTORATE

BETWEEN

MICHAEL KORRY

Petitioner

AND

MOGEREMA SIGO WEI

First Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Goroka: Makail, J

2013: 06th & 08th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient facts – Allegations of illegal practices at polling – Allegations of illegal practices, errors and omissions at counting – Ambiguity in relief sought – Failure by attesting witness to state occupation – Retired teacher – Whether “retired teacher” is occupation – Attesting witnesses to state their addresses – Definition of addresses – Residential addresses – Postal addresses – Organic Law on National and Local-level Government Elections – s. 208(a),(b)&(d) – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342

Barry Holloway -v- Aita Ivarato [1988] PNGLR 99

Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th November 2012)

Jimson Sauk -v- Don Pomb Polye & Electoral Commission (2004) SC769

Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385

Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635

Ludger Mond -v- Jeffrey Nape & Electoral Commission (2003) N2318

Daniel Tulapi -v- James Lagea & Electoral Commission (2013) N4939

Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718

Phillip Kikala -v- Nixon Mangape & Electoral Commission (2013) N4960

Sam Abal -v- Robert Sandan Ganim & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013)

Paru Aihi -v- Sir Moi Avea & Ors (2003) SC720

Bryan Kramer -v- Nixon Philip Duban & Electoral Commission (2013) N5213 Peter Waieng -v- Tobias Kulang & Electoral Commission: EP No 75 of 2012 (Unnumbered & Unreported Judgment of 08th March 2013)

Counsel:

Mr Phillip Ame, for Petitioner

Mr Ralph Diveni, for First Respondent

Ms Christine Lari, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

08th November, 2013

1. MAKAIL, J: This is a ruling on two objections to competency filed by the respondents pursuant to Rule 15 of the National Court Election Petition Rules, 2002 as amended (“EP Rules”). They arise from an election petition filed by the petitioner Mr Michael Korry disputing the result of the election of the first respondent The Honourable Mr Mogorema Sigo Wei as Member for Karimui-Nomane Open electorate in the 2012 General Election. Mr Korry was the runner-up to the first respondent scoring 7,715 votes to 7,792, a difference of 77 votes. He brings this petition pursuant to ss. 206 & 208(e) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).

Petitioner’s Allegations

2. The petition pleads three allegations:

2.1. Illegal practices at polling at Dawa Polling Booth;

2.2. Illegal practices, errors and omissions at counting; and

2.3. Illegal presence of the first respondent at the counting room.

3. From a close perusal of the pleadings, the allegation of illegal practices at Dawa Polling Booth can be summarised as follows; on 09th July 2012 at about 8:00 am and before polling started, the first respondent entered the polling booth and forced the Returning Officer to sign the ballot-papers. He also took some ballot-papers, gave them to his wife and children, they marked them and put them in the ballot-box. Each marked four to five ballot-papers each. He also told his nephew to mark all the ballot-papers while he supervised him and when the nephew had finished, the nephew told the supporters of the first respondent to stand in line and gave each of them a marked ballot-paper and they placed them in the ballot-box.

4. The second allegation can be summarised as follows; during the counting at the counting centre at Dickson oval in Kundiawa, Mr Korry led in the primary count and also the second count until the 59th exclusion when a security personnel identified as Corporal Witne threatened counting officials and placed exhausted ballot-papers in the first respondent’s box. As a result, at the 61st exclusion, the first respondent surged ahead and won by 77 votes. Corporal Witne shouted at the Returning Officer to declare the winner without doing a quality check on the last exclusion.

5. In relation to the third allegation, it can be summarised as follows; before the results were checked and put on the board, Corporal Witne went out of the counting room and announced that the first respondent had won. He ushered the first respondent into counting room without the authority of the counting officials and the first respondent remained in the room without the authority of the counting officials.

Relief Sought

6. By way of relief, Mr Korry seeks among others, a declaration that the first respondent was not duly elected, or a declaration that the election of the first respondent was absolutely void, a declaration that the ballot-papers for Gaima No. 23 Polling Booth at Dawa village were fraudulent as the voters were unduly influenced by the first respondent and an order for recount of all the ballot-boxes and ballot-papers except Gaima No. 23 Polling Booth votes at Dawa village.

Attestation of Petition

7. The petition is witnessed by two witnesses whose occupations and addresses are stated. They are:

7.1. Ben Awo whose residential address is Yobai Rest House, Salt LLG, Karimui-Nomane, postal address is PO Box 4882, Boroko, NCD and whose occupation is retired teacher; and

7.2. Tobias Yol whose residential address is Gomri village, Salt LLG, Karimui-Nomane, postal address is PO Box 4882, Boroko, NCD and whose occupation is self-employed.

Grounds of Objection to Competency

8. The grounds of the objections can be summarised as follows:

8.1. Insufficient facts under s. 208(a);

8.2. Ambiguity in two of the reliefs sought under s. 208(b);

8.3. Failure by attesting witness Ben Awo to state his occupation under s. 208(d); and

8.4. Confusing addresses of attesting witnesses Ben Awo and Tobias Yol under s. 208(d).

Principles of Law

9. Counsel for the parties have presented well documented written submissions on the principles of law supported by numerous case authorities on each ground of objection and I need not restate them here save to say that except for one or two new principles developed recently from decided cases, the principles of law in relation to the requisites of a petition under s. 208 of the Organic Law on Elections are settled.

10. It is common ground that as election petitions challenge the majority wishes of the people in electing a Member to represent them in Parliament, they are very serious. That means that they must comply with the mandatory requirements of the Organic Law on Elections: SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342.

11. Given this fundamental principle and specifically in relation to requisites of a petition under s. 208(a), in Barry Holloway -v- Aita Ivarato [1988] PNGLR 99, the Supreme Court said:

“The facts which must be set out under s. 208(a) of the Organic Law on the National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case to enable the Court to see with clarity the issues involved.”

12. The first respondent supported by the second respondent submitted that the first mandatory requirement that the petitioner failed to comply with is s. 208(a). They submitted that the petitioner has failed to plead the relevant or material facts to support the allegations of illegal practices at polling at Dawa village, illegal practices, and error and omissions at counting at Dickson oval in Kundiawa town and illegal presence of the first respondent at the counting room.

Allegations of illegal polling at Dawa village

13. First, the petition failed to state as a matter of fact the name of the Returning Officer and what the first respondent did to “force” the Returning Officer to do and “dictated” to the voters that they should vote for him. These are fatal omissions because it is not the work of the Returning Officer to conduct polling. It is the duty of the Presiding Officer and what the first respondent said and did that would amount to forcing or dictating the...