Jim Nomane v David Anggo and Reuben Kaiulo — The Electoral Commissioner of Papua New Guinea (No 1) (2003) N2496

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu J
• Judgment Date: 11 November 2003
• Court: National Court
• Citation: (2003) N2496
• Docket Number: EP No 52 of 2002
• Year: 2003
• Judgement Number: N2496

Full Title: EP No 52 of 2002; Jim Nomane v David Anggo and Reuben Kaiulo — The Electoral Commissioner of Papua New Guinea (No 1) (2003) N2496

National Court: Gavara–Nanu J

Judgment Delivered: 11 November 2003

1 PARLIAMENT — Election Petition — Objection to Competency — Organic Law on National and Local–level Government Elections, (Organic Law), s208(a) — Requirement to set out or plead facts — Meaning of 'Facts' — Courts need to be liberal in their application of s208(a) — Courts have a broad discretion under s208(a) in determining what the relevant and material facts are — The appropriate test for the Courts to apply in deciding what the relevant and material facts are — The Courts must give meaning and effect to s222 and s217 of the Organic Law.

2 Holloway v Ivarato [1988] PNGLR 99, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Electoral Commission of Papua New Guinea and Henry Iyapo Smith v Biri Kimisopa (Unnumbered and Unreported judgments of the Supreme Court dated 4 and 30 March 1998), Don Pomb Pullie Polye v Jim Sauk Papaki and Reuben Kaiulo, The Electoral Commissioner of Papua New Guinea (Unnumbered and Unreported judgments of Kirriwom J dated 22 April and 6 May 1998), Jimson Sauk Papaki v Don Pomb Pullie Polye (1999) SC644, Masket Iangalio v Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea (Unnumbered and Unreported judgment dated 16 June 2003), Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Raymond Agonia v Albert Karo [1992] PNGLR 463, John Wemin Mili v Simon Philip Gaima [1997] PNGLR 645 referred to

___________________________

N2496

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 2002

BETWEEN:

JIM NOMANE

Petitioner

AND:

DAVID ANGGO

First Respondent

AND:

REUBEN KAIULO – THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA – (NO.1)

Second Respondent

GOROKA: GAVARA-NANU, J

2003 : 10TH & 11 NOVEMBER

PARLIAMENT – Election Petition – Objection to Competency – Organic Law on National and Local Level Government Elections, (Organic Law), s. 208(a) – Requirement to set out or plead facts – Meaning of ‘Facts’ – Courts need to be liberal in their application of s.208(a) – Courts have a broad discretion under s. 208(a) in determining what the relevant and material facts are – The appropriate test for the Courts to apply in deciding what the relevant and material facts are – The Courts must give meaning and effect to ss.222 and 217 of the Organic Law.

Cases Cited:

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

Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 343.

Electoral Commission v Henry Iyapo Smith v Biri Kimisopa (4th and 30th March, 1998).

Don Pomb Pullie Polye v Jim Sauk Papaki and Reuben Kaiulo, The Electoral Commissioner of Papua New Guinea. (22nd April and 6th May, 1998).

Jimson Sauk Papapi v Don Pomb Pullie Polye – SC 644.

Masket Iangalio v Yangakun Miki Kaeok and Electoral Commission of Paua New Guinea. (16th June, 2003).

Neville Bourne v Manasseh Voeto [1977] PNGLR 298.

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

John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645.

Counsel:

A. Manase for the Petitioner.

C. Copeland for the First Respondent.

R. Williams for the Second Respondent.

GAVARA-NANU J. The respondents have raised objections to the competency of this petition arguing that the petitioner has not pleaded or set out the ‘facts’ as required by s.208(a) of the Organic Law on National and Local Level Government Elections (hereinafter referred to as “the Organic Law”).

Section 208 (a) of the Organic Law is in these terms :

208. REQUISITES OF PETITION.

A person shall –

(a) set out the facts relied on to invalidate the election or return…..

This is a mandatory requirement. Thus it must be strictly complied with. And it is to be noted from the heading of the section that, setting out of facts on which the petitioner relies to invalidate the election or return is a requisite of a petition. Thus without setting out such facts, the petition would be incompetent.

The respondents’ contention is that the petition does not plead or set out the relevant and material facts relied upon by the petitioner to invalidate the election or the return of the first respondent as the member for Chuave Open electorate.

The respondents’ objections relate only to paragraphs 5 to 7 of the petition. They do not raise any objections to paragraphs 1 to 4. I therefore allow these paragraphs to remain.

I shall deal with each paragraph objected to commencing with paragraph 5.

In paragraph 5, it is alleged that after the commencement of polling on 22nd June, 2002, for the Chuave Open electorate, the first respondent together with his agents and servants committed several acts of undue influence and illegal practices and that, such illegal practices were committed with the knowledge and authority of the first respondent. It is alleged that those illegal practices were committed so that the voters could vote for the first respondent as the Member for Chuave Open electorate. It is further alleged that, such illegal practices were done to unlawfully interfere in the free and open election by the voters which contravened the various provisions of the Organic Law and the Criminal Code, which are as stated in that paragraph.

In paragraph 5.1, it is alleged that the actual number of people living in Wards 7, 8, 9, 10, 11, 12, 13 and 14 in the Siane Local Level Government were approximately 4,000. This was inclusive of the eligible and ineligible voters, however, in the Electoral Roll, there were 5,130 eligible voters recorded, the petitioner says, that contravened s.116 of the Criminal Code.

In paragraph 5.2, it is alleged that after the polling on 22 June, 2002, it was revealed at the counting of ballot papers at the Counting Centre that, in Wards 7 to 14, total of 4,674 people voted, from which, the first respondent polled 2,956 votes.

In paragraph 5.3, it is alleged that because the voter population in Wards 7 to 14 was less than 4,000, the increased number of 5,130 registered voters recorded in the Electoral Roll as pleaded in paragraph 5.1 and the 4,674 votes cast in Wards 7 to 14 as pleaded in paragraph 5.2 were as a result of duplication of individual names, clans, ghost names and persons who were not resident in Wards 7 to 14, but were allowed to vote. The particulars of such duplication of individual names, clans and illegal votes are as pleaded in the subsequent paragraphs 5.4A and 5.5B, 5.5C and 5.5D. The petitioner alleges that the first respondent, his agents and servants committed those illegal practices to ensure that all votes cast in Wards 7 to 14 were for the first respondent.

In paragraph 5.4, it is alleged that as a result of the above illegal practices, the first respondent polled 4,495 votes, which the petitioner says contravened the various provisions of the Constitution, the Organic law and the Criminal Code which are as stated in paragraph 5.

In paragraph 5.4A, the petitioner gives Case No. 1 of illegal practice committed in Movi Polling Place, in the Siane Local Level Government.

In paragraphs 5.4A (i) (a) to (e), the petitioner provides particulars of such illegal practice, and says that on 22nd June 2002, at Movi Polling Place, a person by the name of Mr John Seve who was the first respondent’s Campaign Co-ordinator induced voters to vote for the first respondent by issuing threats of violence and held up the Assistant Presiding Officer, Mr Ken Akia and ordered him to give him 100 unmarked ballot papers to mark for the first respondent. The petitioner says, that happened at 2.00 pm. In fear of his life, Mr Akia gave 100 unmarked ballot papers to Mr John Seve who subsequently marked the 100 ballot papers and cast them for the first respondent. The petitioner alleges that as a result of what Mr Seve did, there was no free election in Movi Polling Place and the...