Labi Amaiu v Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334

• Jurisdiction: Papua New Guinea
• Judge: Kapi CJ
• Judgment Date: 10 March 2008
• Court: National Court
• Citation: (2008) N3334
• Docket Number: EP NO 19 OF 2007
• Year: 2008
• Judgement Number: N3334

Full Title: EP NO 19 OF 2007; Labi Amaiu v Andrew Mald and Cyril Retau and the Electoral Commission of PNG (2008) N3334

National Court: Kapi CJ

Judgment Delivered: 10 March 2008

N3334

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 19 OF 2007

BETWEEN:

LABI AMAIU

Petitioner

AND:

ANDREW MALD

First Respondent

AND:

CYRIL RETAU

Second Respondent

AND:

THE ELECTORAL COMMISSION OF PNG

Third Respondent

Waigani: Kapi CJ

2008: 3rd ,5th , 6th , 10th March

ELECTION PETITION – Competence – 40 days is computed for the date of the declaration of the result of election – This is a question of fact – Followed Supreme Court in Kelly Kilyali v. John Pundari and the Electoral Commission of PNG (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569).

Cases cited:

Alfred Fogo v Guao Katucnane Zurenuoc and Electoral Commission of Papua New Guinea (Unreported Judgment of the National Court dated 13th February 2003, N2351).

Delba Biri v Bill Ninkama [1982] PNGLR 342

Kelly Kilyali Kalit v John Pundari and the Electoral Commission (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569)

Mongi v Vogae (Unreported Judgment of the National Court dated 24th October 1997, N1635)

Legislations cited:

Organic Law on National and Local Level Elections (OLNE):

National Court Election Petition Rules 2002

Counsel:

G. Manda, for the Petitioner

P. Kingal, for the First Respondent

10 March, 2008

1. KAPI CJ: The first respondent filed an amended objection to the competence of the petition on 29 October 2007. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Rules) stipulates that the objection to competence shall be dealt with during the hearing of the petition

2. The issue of competence has come up as the first matter for determination. When the petition was filed, the grounds of petition raised allegations of bribery as well as polling and counting irregularities/illegalities. However, the allegations on illegalities and irregularities have been withdrawn and are no longer in issue.

3. Therefore, the second and the third respondents are not participating in the petition. The remaining parties are the petitioner and the first respondent.

4. The first respondent has raised several grounds on the competency of the petition. The parties argued the issue of competence and I reserved my decision.

5. I gave an oral ruling on 5 March 2008 that the petition was competent and that I would publish my reasons later.

6. In the process of preparing my reasons, I discovered that I omitted to deal with other grounds relied on by counsel for the first respondent. I advised both counsel in Court on the morning of Thursday 6 March 2008. I indicated that I will deal with these issues as well as the reasons for decision on the grounds I have dealt with.

7. Both counsel agreed that in the circumstances, we should not proceed with the trial until I have dealt with all the grounds on competency. Consequently, I adjourned the trial.

8. I will deal with the Objections in the order they were raised.

A. That the Election Petition was filed outside the 40 Days and

therefore incompetent

9. I dealt with this ground and formed the basis of my oral ruling that the petition is competent. I now provide my reasons for decision.

10. The requirement to file petition within 40 days is set out under s 208 (e) of the Organic Law on National and Local Level Elections (OLNE):

A petition is to be filed in the registry of the National Court at Port Moresby or at the court in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a).”

11. Counsel for the first respondent submits that the petitioner pleaded in paragraph 7 of the petition that the result of the election in this electorate was declared on 23 July 2007. Counsel for the first respondent submits that 40 days should be computed from 23 July) and the 40 days expired on the 31 August 2007. The petition was filed on 1 September 2007 and therefore outside the 40 days. He submits therefore that the petition is incompetent and should be dismissed.

12. In order to compute the 40 days, the date of the declaration of the result of the election must be determined. Both counsel have agreed that the computation of the 40 days is calculated from the date of the declaration of the result of the election (including the date of the declaration.) This method of calculating the 40 days was approved by the Supreme Court in Kelly Kilyali Kalit v John Pundari and the Electoral Commission (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569)

13. Counsel for the first respondent submits that the petitioner is confined to the date pleaded and the 40 days is to be computed from the 23 July.

14. The same issue arose in Kelly Kilyali Kalit v John Pundari and Eletoral Commission (supra). At page 2, the Court stated the issues and resolved the issues:

“The trial judge dealt with the preliminary issue of whether the petition was filed within the period of forty days commencing from the date of declaration of the result of the election as required by s 208 (e) of the Organic Law (OLNE). At the preliminary hearing before Salika J, the first respondent contested the date of the declaration stated in the petition and raised the issue of time bar under OLNE s 208 (e). In the petition, the applicant maintained it was made on the 4th July 1997. If the first respondents was to be upheld, the whole Petition would fail for failing to comply with OLNE, s. 208(e) in that that the Petition which was filed on 14 August 1997 was filed outside 40 days. After hearing the evidence and submissions from counsels, the trial judge decided the issue in favour of the first respondent and dismissed the petition. This application is the subject of that decision….

The trial judge’s findings were made after he accepted the evidence of the Returning Officer who made the public declaration of the result of the election immediately after the completion of the counting and who completed the particulars of the Writ which included the filling in of the date; the Provincial Returning Officer who witnessed the declaration and took the completed Writ to Port Moresby; the Provincial Police Commander who witnessed the declaration and made entries in his official police diary and the Clerk of the National Parliament who received the Writ from the Governor General and produced this original Writ in evidence. His Honour rejected the evidence of the witness called by the applicant. The trial judge accepted the date on the original Writ which was 4 July 1997. This date was filled in by the Returning Officer at the time and place of his declaration of the result of the election, that is on 4 July 1997 at the Wabag Community School Central Counting Centre. The Returning Officer at the same time signed the Writ and was then co-signed by the First Respondent as the winning candidate. The public declaration of the result of the election, the filling in of the name of the winning candidate, the signing of the Writ and filling in of the date of declaration were all done by the Returning Officer except the co-signing of the Writ by the winning candidate. All these actions were taken in compliance with section s. 175 OLNE,. The applicant did not produce any evidence to show that the original Writ or the date on the original Writ was fabricated. The applicant relied on verbal representations made by certain Electoral Commission’s employees together with other Electoral Commission official documents showing the date of declaration as 5th July 1997, to support his argument that the date of declaration was on 5th July 1997. It was also put before the trial judge by the applicant and now repeated before us, that the Electoral Commission should be stopped from and raising the argument that the declaration was made on 4th July when it had represented to the Applicant all along that the declaration was made on the 5th July 1997.

In our view, none of those official documents emanating from the Electoral Commission office and representations made by the Electoral Commission staff have more critical constitutional basis, significance and force in an election process than the Writ. The Writ is an official document issued independent of the Electoral Commission, by the Governor General. An election begins with the issue of the Writ by the Governor General and ends with the return of the Writ to the Governor General signed and dated by the Returning Officer and counter-signed by the winning candidate. These requirements are succinctly set out under Part X of the OLNE (s. 73-82) and, s. 175. All other documents issued under the OLNE by the Electoral Commission are designed to attain administrative efficiency to ensure an orderly and free election by those entitled to stand for and vote in an election. Such documents and representations by the Electoral Commission staff, whether deliberate or through inadvertence, cannot be permitted to strike down the Writ unless there is clear evidence of fraud on the part of the Returning Officer or any other Electoral Commission official in completing the Writ as to the winner of the election, the signatures on the Writ and the return date of the Writ. There is only one Writ which is the original Writ and that is the...