In the matter of the Organic Law on National and Local-Level Government Elections and a Disputed Return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2012) N4928

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 December 2012
• Court: National Court
• Citation: (2012) N4928
• Docket Number: EP NO 52 of 2012
• Year: 2012
• Judgement Number: N4928

Full Title: EP NO 52 of 2012; In the matter of the Organic Law on National and Local-Level Government Elections and a Disputed Return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2012) N4928

National Court: Cannings J

Judgment Delivered: 14 December 2012

N4928

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA

Petitioner

V

ANTON YAGAMA

First Respondent

STEVEN BIKO, RETURNING OFFICER

Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2012: 12, 14 December

ELECTIONS – petitions – objection to competency of petition – whether objector entitled to rely on grounds of objection not included in notice of objection to competency – whether grounds relied on in petition adequately pleaded facts and grounds relied on.

At the hearing of the objection to competency of an election petition the parties objecting argued the two grounds set out in their notice of objection to competency and introduced two new grounds not included in their notice of objection. The Court allowed the respondents to argue all grounds.

Held:

(1) The issue of competency can be raised at any stage of the proceedings, so it is permissible for a respondent to travel outside the boundaries of the notice of objection, provided that the petitioner is given an adequate opportunity to respond to the new grounds. Any prejudice caused to the petitioner can be accommodated by an order for costs.

(2) A petition alleging errors or omissions by election officers must per force of Section 208(a) of the Organic Law “set out the facts relied on to invalidate the election or return”, which means it is necessary to plead not only the errors and omissions but also that they did “affect the result of the election” (as required by Section 218(1) of the Organic Law).

(3) Here, the petition with one exception adequately set out the facts relied on to invalidate the election, including adequately pleading that the result of the election was likely to be or was affected by the illegal practices and errors or omissions pleaded.

(4) The exception was ground 3 of the petition, which was vague and confusing, and the objection to it was sustained. Other objections were refused. Accordingly the petition will proceed to trial on grounds 1, 2, 4 and 5.

Cases cited

The following cases are cited in the judgment:

Delba Biri v Bill Ninkama [1982] PNGLR 342

Holloway v Ivarato [1998] PNGLR 99

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

Norbert Kubak v Andrew Trawen EP No 2 of 2012, 15.11.12

Paias Wingti v Kala Rawali (2008) N3285

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.

Terminology and dates

In this judgment:

· ‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections;

· dates refer to the year 2012 unless otherwise indicated.

Counsel

N Kiuk, for the Petitioner

P Kuman, for the First Respondent

H Nii, for the Second, Third and Fourth Respondents

14 December, 2012

1. CANNINGS J: This is a ruling on an objection to the competency of an election petition. The petition was filed by an unsuccessful candidate Peter Charles Yama disputing the election of first respondent Anton Yagama as member for Usino-Bundi Open in the 2012 general election. The petition is based on five grounds which allege various errors and omissions in the conduct of both the polling and the counting, committed by some of the other parties to the petition and their associates, those parties being returning officer Steven Biko (second respondent), the Electoral Commissioner (third respondent) and the Electoral Commission (fourth respondent). No illegal practices are alleged directly against Mr Yagama.

2. The second, third and fourth respondents filed a notice of objection to competency which relies on two grounds. At the hearing of the objection other grounds were introduced by their counsel Mr Nii. The objection to competency is supported by the first respondent whose counsel Mr Kuman made submissions supporting all grounds of objection.

GROUNDS OF OBJECTION

Grounds in notice of objection

3. The first ground in the notice of objection is a general one, consisting of two sub-grounds. Ground 1.1 alleges that the petition was filed outside the 40-day period after the date of declaration of the result set by Section 208(e) of the Organic Law. Ground 1.2 alleges that the petition is defective as it does not plead the date of declaration of the result.

4. The second ground in the notice of objection consists of four sub-grounds, which correspond to the first four grounds of the petition. Ground 2.1 alleges that ground 1 of the petition is defective. Ground 2.2 alleges that ground 2 of the petition is defective. Ground 2.3 alleges that ground 3 of the petition is defective. Ground 2.4 alleges that ground 4 of the petition is defective.

New grounds

5. Mr Nii introduced two new grounds at the hearing. The first is a general one, alleging that the petition is fatally flawed as it fails to plead that the result of the election was likely to be affected or that it was affected by the illegal practices, errors and omissions alleged. This ground of objection is alluded to in some sub-grounds of the notice of objection but not to the extent it was in submissions at the hearing. The second is a specific ground of objection in relation to ground 5 of the petition.

6. Mr Kiuk for the petitioner objected to the introduction of any new grounds, arguing that a respondent should be confined to arguing the grounds set out in the notice of objection. Frankly the argument makes an agreeable lot of sense but I am persuaded by Mr Nii’s submission that it is permissible in view of a recent Supreme Court decision for a respondent to travel outside the boundaries of the notice of objection, provided that the petitioner is given an adequate opportunity to respond to the new grounds. Any prejudice caused to the petitioner by doing this can be accommodated by an order for costs against the respondent. The Supreme Court decided in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that the issue of competency can be raised at any stage of the proceedings. It extended that proposition to the point where it was held that when the Supreme Court is undertaking a review of the National Court’s decision to uphold a petition it can review the competency of the petition even if no objection to competency was made in the National Court. That wide approach to consideration of grounds of objection to competency was applied recently by Kariko J in Norbert Kubak v Andrew Trawen EP No 2 of 2012, 15.11.12, where a petition was dismissed as incompetent even though no notice of objection to competency had been filed.

7. I will deal with the grounds of objection in this order:

1 General objection re filing outside 40 days (ground 1.1 of notice)

2 General objection re failure to plead declaration date (ground 1.2 of notice)

3 General objection re failure to plead effect on result (new ground)

4 Specific objection re ground 1 of the petition (ground 2.1 of petition)

5 Specific objection re ground 2 of the petition (ground 2.2 of petition)

6 Specific objection re ground 3 of the petition (ground 2.3 of petition)

7 Specific objection re ground 4 of the petition (ground 2.4 of petition)

8 Specific objection re ground 5 of the petition (new ground).

1 GENERAL OBJECTION RE FILING OUTSIDE 40 DAYS

8. Mr Nii submits that the petition was filed outside the 40-day period after the declaration of the result stipulated by Section 208(e) of the Organic Law. The submission is flawed as the petition pleads (in ground 5.09) that the declaration was made on 27 July. The date 40 days after that is 5 September. The petition was filed on 29 August, well within time. This ground of objection is dismissed.

2 GENERAL OBJECTION RE FAILURE TO PLEAD DECLARATION DATE

9. Mr Nii submits that the petition fails to plead the actual date of declaration. The argument is centred on the preamble to the petition, which consists of five paragraphs leading into the meat of the petition, which sets out its five grounds. The preamble states amongst other things that there were 41 candidates and provides the tallies of the top three candidates after the 37th elimination, at which point, on 26 July, the returning officer Mr Biko declared that the election had failed. Mr Nii points out that the...