Isi Henry Leonard v Gordon Wesley

• Jurisdiction: Papua New Guinea
• Judge: Kariko, J
• Judgment Date: 20 August 2014
• Citation: (2014) N5812
• Court: National Court
• Year: 2014
• Judgement Number: N5812

Full : E.P. NO. 65 OF 2012; In The Matter of the Organic Law on National and Local Level Government Elections and in the matter of a Disputed Return of Election Results for the Samarai-Murua Open Electorate in the 2012 General Elections; Isi Henry Leonard v Gordon Wesley and Andrew Trawen and Electoral Commissioner of Papua New Guinea (2014) N5812

National Court: Kariko, J

Judgment Delivered: 20 August 2014

N5812

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

E.P. NO. 65 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND:

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE SAMARAI-MURUA OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

ISI HENRY LEONARD

Petitioner

AND:

GORDON WESLEY

First Respondent

AND:

ANDREW TRAWEN

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Alotau: Kariko, J

2014: 18th & 20th August

ELECTION PETITION – Objection to competency – Petition alleging bribery – Whether sufficient facts pleaded – Facts must constitute the alleged offences – Facts must cover elements of the offences – Facts must be material and relevant – section 208(a), Organic Law on National and Local Level Government Elections.

ELECTION PETITION – Objection to competency – Petition alleging bribery – – Whether petitioner required to plead the law – Whether pleading facts includes pleading the particular offence of bribery under section 103, Criminal Code – section 208(a), Organic Law on National and Local Level Government Elections.

Facts:

An objection to the competency of an election petition on the basis the petition does not set out sufficient facts (including specifying the relevant provision of section 103 of the Criminal Code in respect of grounds of bribery) as required by s.208(a) of the Organic Law on National and Local Level Government Elections.

Held:

(1) Section 208(a) of the Organic Law on National and Local Level Government Elections requires pleading of relevant and material facts that constitute the ground(s) relied upon to invalidate an election return, and the facts must be sufficient and clearly indicated to the other parties what is alleged and to sufficiently inform the Court of the issues involved.

Sir Barry Holloway v Aita Ivarato and Electoral Commission [1988] PNGLR 99 applied.

(2) Section 208(a) does not require a petitioner to plead the law, including specifying the relevant provision of section 103 of the Criminal Code where bribery is a ground of the petition.

Dick Mune v Anderson Agiru & Ors (1998) SC590 followed.

Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242 not followed.

(3) Four of the eleven grounds of the petition are struck out for failing to plead sufficient facts in accordance with s. 208(a).

Cases cited:

Benias Epe Peri v Nane Petrus Thomas and Acting Electoral Commissioner (Unreported and Unnumbered judgment of 20/4/04)

Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213

Charles Luta Miru v David Basua (1997) N1628

Delba Biri v Bill Ninkama [1982] PNGLR 342

Dick Mune v Anderson Agiru & Ors (1998) SC590

Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242

Jim Nomane v Wera Mori and Electoral Commissioner of PNG (Unreported and Unnumbered judgment of 18th February 2013)

Jimson Sauk v Don Pom Polye (2004) SC769

Ken Fairweather v Jerry Singarok & Electoral Commission (2013) SC1293

Ludger Mond v Jeffrey Nape (2003) N2318

Neville Bourne v Manasseh Voeto (1977) PNGLR 298

Paru Aihi v Sir Moi Avei (No 2) (2003) SC720

Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921

Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295

Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 463

Sir Arnold Amet v Peter Charles Yama (2010) SC 1064

Sir Barry Holloway v Aita Ivarato and Electoral Commission [1988] PNGLR 99

Steven Pirika Kama v John Itanu, Andrew Trawen & Michael Laimo (2007) N3246

The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43

Legislation:

Organic Law on National and Local Level Government Elections

Criminal Code

Counsel:

Ms D Mewerimbe, for the petitioner

Mr A Kongri, for the first respondent

Mr C Okil, for the second respondent

RULING

20th August, 2014

1. KARIKO, J: This is an objection to the competency of the election petition.

2. Although each of the respondents filed separate notices of objection to competency, the second respondent the Electoral Commissioner was granted leave at the hearing to withdraw his notice.

3. Before dealing with the first respondent’s objection to competency, I briefly refer to the election petition.

The petition

4. The petitioner Isi Henry Leonard was the runner-up to the first respondent Gordon Wesley who won the seat for the Samarai-Murua Open electorate in the 2012 general elections.

5. Mr Leonard filed this petition on 2nd September 2012 pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election and return of Mr Wesley.

6. In the petition, Mr Leonard firstly makes a general allegation that Mr Wesley and certain of his campaign committee members committed acts of bribery by distributing cash and goods to electors to induce them to vote for Mr Wesley in the elections.

7. Mr Leonard then alleges eleven (11) specific instances of bribery that occurred after the issue of the election writ on 18th May 2012 and it is based on those acts that he seeks to have the election and return of Mr Wesley for the Samarai-Murua Open electorate declared void in accordance with section 215(1) of the Organic Law.

Objection to competency

8. In his amended notice of objection to competency, Mr Wesley states that the election petition does not meet the strict requirements of section 208 of the Organic Law in that:

(1) The petition does not satisfy the requirements of section 208(a) of the Organic Law because:

(a) insufficient facts have been pleaded to constitute each of the grounds of bribery; and

(b) the relevant provision of section 103 of the Criminal Code that provides for each of the alleged acts, has not been cited.

(2) The petition does not comply with the requirements of section 208(d) of the Organic Law because it was not properly attested to.

9. Mr Wesley however abandoned the objection based on section 208(d) in light of the recent decision of the Supreme Court (Salika, DCJ, Cannings, J and Kariko, J) in Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295.

10. I heard arguments from counsel for both Mr Wesley and Mr Leonard on Mr Wesley’s remaining objections and I now rule on the application to dismiss the petition.

The issues

11. The issues for my determination are:

(1) Has the petitioner pleaded sufficient facts as required by section 208(a) of the Organic Law to constitute each of the alleged grounds of bribery?

(2) Does section 208(a) of the Organic Law require the petitioner to cite the relevant provision of the Criminal Code that provides for each act of bribery alleged in the petition?

Competency of election petition

12. Section 210 of the Organic Law provides:

210. NO PROCEEDING UNLESS REQUISITES COMPLIED WITH.

Proceedings shall not be heard on a petition unless the requirements of s.208 and 209 are complied with.

13. The law is clearly stated in the leading case of Delba Biri v Bill Ninkama [1982] PNGLR 342 that pursuant to s.210 of the Organic Law an election petition cannot proceed to trial and must be dismissed where a petitioner fails to strictly comply with the mandatory requirements of section 208 and section 209 of the Organic Law. This legal principle is not disputed and counsel cited a number of other case authorities that re-affirm the proposition, including Paru Aihi v Moi Avei (No. 2) (2003) SC270; Jimson Sauk v Don Pomb Polye (2004) SC769; Sir Arnold Amet v Peter Charles Yama (2010) SC1064; and Kikala v Mangape (supra).

Pleading “the facts”

14. One of the mandatory requirements set out in section 208(a) of the Organic Law is that an election petition shall “set out the facts relied on to invalidate the election or return”. Section 208(a) requires a petitioner to set out facts that constitute the grounds upon which he relies to invalidate the election or return, as failure to do so will render his petition incompetent; Delba Biri v Bill Ninkama (supra).

15. The law is also well-settled as to what is meant by the term “the facts” referred to in section 208(a). In Sir Barry Holloway v Aita Ivarato and Electoral Commission [988] PNGLR 99 at 101 Kapi, DCJ (with whom Los, J and Hinchliffe, J agreed) described the requirements of that provision in the following statement, that has been approved in a many subsequent cases:

“The facts which must be set out under s 208(a) of the Organic Law are...