In the matter of the Organic Law on National and Local-Level Government Elections and a petition disputing the Validity of the election for the seat of Kikori Open in the 2012 General Election; Soro Marepo Eoe v Mark Ivi Maipakai and Ilaua Maikere and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013) N5066

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 February 2013
• Court: National Court
• Citation: (2013) N5066
• Docket Number: EP NO 78 0F 2012
• Year: 2013
• Judgement Number: N5066

Full Title: EP NO 78 0F 2012; In the matter of the Organic Law on National and Local-Level Government Elections and a petition disputing the Validity of the election for the seat of Kikori Open in the 2012 General Election; Soro Marepo Eoe v Mark Ivi Maipakai and Ilaua Maikere and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013) N5066

National Court: Cannings J

Judgment Delivered: 26 February 2013

N5066

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 78 0F 2012

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND A PETITION DISPUTING THE VALIDITY OF THE

ELECTION FOR THE SEAT OF KIKORI OPEN

IN THE 2012 GENERAL ELECTION

SORO MAREPO EOE

Petitioner

V

MARK IVI MAIPAKAI

First Respondent

ILAUA MAIKERE

Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Cannings J

2013: 21, 26 February

ELECTIONS – petitions – objection to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(d): whether necessary for attesting witnesses to depose to knowledge and veracity of grounds of petition – Section 208(b): whether relief to which petitioner claims to be entitled properly specified – Section 208(a): whether elements of grounds of petition and facts adequately set out.

A respondent to an election petition that contained 17 grounds (set out in three parts, A, B and C) objected to competency of the petition. It was argued that the petition failed to meet the requirements of Section 208 (requisites of petition) of the Organic Law on National and Local-level Government Elections in three respects. First it was argued that the two witnesses who attested the petition failed to depose that they each were in a position to testify, confirm, verify or prove all or any of the facts relied on to dispute the validity of the election in the petition, thus failing to comply with Section 208(d) (petition shall “be attested by two witnesses whose occupations and addresses are stated”). Secondly it was argued that the petition, to the extent that it is based on Section 215(1) of the Organic Law (bribery or undue influence committed by a successful candidate), did not claim relief precisely in terms of Section 215(1) (that the candidate’s election “shall be declared void”), thus failing to comply with Section 208(b) (petition shall “specify the relief to which the petitioner claims to be entitled”). Thirdly, it was argued that each of the 17 grounds of the petition was defective in that it did not plead the correct provisions of the Organic Law and did not plead all the elements of any of the established grounds on which validity of an election can be disputed and was short of material facts and vague and confusing, thus failing to comply with Section 208(a) of the Organic Law (petition shall “set out the facts relied on to invalidate the election or return”). The petitioner argued as a preliminary issue that the objection to competency was not properly before the court as there was no constitutional basis for it. The court conducted a hearing on the objection to competency, including the preliminary issue raised by the petitioner.

Held:

(1) The petitioner’s preliminary point was without merit as although the Organic Law makes no express provision for raising an objection to competency the issue of competency can be raised at any stage of the proceedings by any party to the petition or by the court on its own initiative (Sir Arnold Amet v Peter Charles Yama (2010) SC1064 followed).

(2) Though it might be desirable it is not necessary for a witness attesting a petition to depose that he is in a position to testify, confirm, verify or prove all or any of the facts in a petition. That would be an additional requirement not included in the Organic Law. If introduced now it would be the result of recent judicial interpretation of Section 208(c) which post-dates the filing of the petition. It would be unfair to the petitioner to subject the petition to legal requirements that did not exist at the time of its filing. The first ground of objection was refused (James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral commission (2012) N4899, Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960, not followed).

(3) Though it might be desirable it is not necessary for a petition based on Section 215(1) of the Organic Law to claim relief precisely in terms of Section 215(1) (that the candidate’s election “shall be declared void”). It is sufficient that the petition seeks relief in terms of one of the paragraphs in Section 212(1) (powers of court) of the Organic Law, eg a declaration that the person “who was returned as elected was not duly elected” (Section 212(1)(f)) or a declaration that the election is “absolutely void’ (Section 212(1)(h)). The petition adequately sought relief under Sections 212(1)(f) and (h). The second ground of objection to the petition was refused (Korak Yasona v Castan Maibawa (1998) SC552 followed).

(4) Objections to the allegations in Part A (allegation Nos 1 to 6) of the petition were upheld as each allegation is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 218(1); fails to sufficiently specify the breaches of the Organic Law that were allegedly committed; fails to specify the names of the persons who allegedly committed the irregular and illegal practices referred to and other material facts; and fails to plead that the irregular and illegal practices (what should have been pleaded as errors or omissions) affected the result of the election and how they affected the result. The combined effect of these defects is that allegation Nos 1 to 6 fail to set out the facts required to invalidate the election and do not comply with Section 208(a) of the Organic Law.

(5) Objections to the allegations in Part B (allegations 7 to 15) of the petition were upheld as each allegation, which was based on alleged bribery by an agent of the first respondent with his authority and/or knowledge) is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 215(3)(a); fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent’s agent; and fails to plead 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”. The combined effect of these defects is that allegation Nos 7 to 15 fail to set out the facts required to invalidate the election and do not comply with Section 208(a) of the Organic Law.

(6) Objections to the allegations in Part C (allegations 16 and 17) of the petition were upheld as each allegation, which was based on alleged bribery by the first respondent is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 215(1); and fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent.

(7) In summary the first two grounds of objection, relating to Sections 208(d) and (b) of the Organic Law, were refused. The third ground of objection, based on Section 208(a), was upheld in respect of each of the 17 allegations in the petition. The objection to competency of the petition was upheld and the petition was dismissed in its entirety.

Cases cited

The following cases are cited in the judgment:

Application by Ludwig Patrick Shulze (1998) SC572

Assik Tommy Tomscoll v Ben Semri (2003) N2349

Benny Diau v Mathew Gubag (2004) SC775

David Lambu v Peter Ipatas (1998) N1701

Delba Biri v Bill Ninkama [1982] PNGLR 342

Desmond Baira v Kilroy Genia (1998) SC579

Dick Mune v Anderson Agiru (1998) SC590

Greg Mongi v Bernard Vogae (1997) N1635

Holloway v Ivarato [1988] PNGLR 99

James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral Commission (2012) N4899

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

Korak Yasona v Castan Maibawa (1998) SC552

Peter Isoaimo v Paru Aihi (2012) N4921

Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960

Re William Wii SCR No 45 of 1994, 26.07.94 (unreported)

Robert Kopaol v Philemon Embel (2003) SC727

Robert Kopaol v Philemon Embel (2008) N3319

Sai-Sail Beseoh v Yuntivi Bao (2003) N2348

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

OBJECTION

This is a ruling on an objection to competency of an election petition.

Counsel

S L Soi, for the petitioner

P Paraka, for the first respondent

L Okil, for the second, third & fourth respondents

Terminology and dates

In this judgment:

· ‘the Organic Law’ refers to the Organic Law on National and Local-level...