Mathias Karani v Yawa Silupa and Electoral Commission of Papua New Guinea (2004) N2517

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 16 March 2004
• Court: National Court
• Citation: (2004) N2517
• Docket Number: EP No 40 of 2002
• Year: 2004
• Judgement Number: N2517

Full Title: EP No 40 of 2002; Mathias Karani v Yawa Silupa and Electoral Commission of Papua New Guinea (2004) N2517

National Court: Kirriwom J

Judgment Delivered: 16 March 2004

1 PARLIAMENT—National Elections—Disputed Returns—Electoral Roll—Correctness of—No inquiry permitted—Roll is Correct—Presumption of law—Organic Law on National and Local–level Government Elections, s214.

2 Practice and Procedure—Election Petition—Correctness of Electoral Roll—Not subject of inquiry under Part XVIII Organic Law on National and Local–level Government Elections—Petition incompetent—Petition dismissed—s214 Organic Law on National and Local–level Government Elections.

3 Practice and Procedure—Election Petition—Pleading—Need to plead relevant facts in precise, comprehensible, coherent and concise manner—Petition badly pleaded and incompetent—Petition dismissed—s208(a), s210 Organic Law on National and Local–level Government Elections.

4 Practice and Procedure—Election Petition—Pleading—Failure to adhere to polling schedule—No ground for petition—Petition incompetent—s117 Organic Law on National and Local–level Government Elections

5 Fox v Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463 at 475, See EP No 32 of 2002—Dr John Waiko v Peter Oresi and Electoral Commission (2003) (Unnumbered and Unreported National Court Judgment dated 13 February 2003), SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Ben Micah v Ian Ling–Stuckey (1998) N1790, Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Holloway v Ivarato [1988] PNGLR 99, Siaguru v Unagi [1987] PNGLR 372, Raymond Agonia v Albert Karo [1992] PNGLR 463, John Wemin Mili v Simon Philip Gaima [1997] PNGLR 645, In The Matter of The Moresby North East Open Electorate; Norman Walter Fernandez v Philip Taku and Electoral Commission (1997) N1616, In The Matter of the Election Petition for the Lufa Open Electorate; Komane Asano Wasege v Mathias Karani (1998) N1679, Perkins v Cusack (1929) 43 CLR 70, In re Berrill's Petition (1976) 134 CLR 470, Darlinghurst Petition (1951) 51 SR (NSW) 204, In re The Nash Election Petition—Grant v Dunstan and Carney [1952] St R Qd 53, Poia v Valai [1990] PNGLR 388 referred to

FACTS

Petitioner grounded his petition to the court of disputed returns to invalidate the election and the returns for Lufa Open Electorate following his loss to the First Respondent in the election for parliament principally unhappy with the huge number of enrollments in the First Respondent's Ward within the Electorate that far exceeded its total population that was recorded only two years before the election in the national census survey conducted for purpose of the election, held, inter alia:

1. S214 of the Organic Law on National and Local–level Government Elections prohibits the National Court from inquiring into the correctness of the Roll; therefore a petition founded on such ground is incompetent and is dismissed. In re Berrill's Petition (1976) 134 CLR 470 followed;

2. for purpose of proceedings under Part XVIII of the Organic Law on National and Local–level Government Elections, the National Court is to assume that the Roll is correct and has no power to inquire into the correctness of compilation of the Rolls used for the election. Darlinghurst Petition (1951) 51 SR (NSW) 204 applied.

3. variation to or departure from a polling schedule is not a ground to challenge an election and is not the same as abolition of a polling place, but variation or departure is permitted in order to allow for unforeseen circumstances such as bad weather. Poia v Valai [1990] PNGLR 388 referred to.

4. a petition that is structurally defective by its pleading is bad at the outset and no amount of evidence is going to correct it without being able to amend the pleadings which the law does not allow so the defect remains incurable, hence the petition remains incompetent and must be dismissed.

5 Ben Micah v Ian Ling–Stuckey (1998) N1790 adopted and applied.

___________________________

N2517

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

EP.NO. 40 OF 2002

Between:

MATHIAS KARANI

-Petitioner-

And:

YAWA SILUPA

– First Respondent-

And:

ELECTORAL COMMISSION OF PNG

–Second Respondent –

LAE: KIRRIWOM, J

2004: 3, 4, 5, 8, 9, 10, 12 & 16 March

PARLIAMENT – National Elections – Disputed Returns – Electoral Roll – Correctness of – No inquiry permitted – Roll is Correct – Presumption of law – Organic Law on National and Local Level Government Elections, s.214.

Practice and Procedure – Election Petition - Correctness of Electoral Roll - Not subject of inquiry under Part XVIII Organic Law on National and Local Level Government Elections – Petition incompetent – Petition dismissed - s.214 OLNLLGE.

Practice and Procedure – Election Petition - Pleading – Need to plead relevant facts in precise, comprehensible, coherent and concise manner – Petition badly pleaded and incompetent – Petition dismissed – ss.208 (a), 210 OLNLLGE.

Practice and Procedure – Election Petition - Pleading – Failure to adhere to polling schedule – No ground for petition – Petition incompetent – s.117 OLNLLGE

FACTS

Petitioner grounded his petition to the court of disputed returns to invalidate the election and the returns for Lufa Open Electorate following his loss to the First Respondent in the election for parliament principally unhappy with the huge number of enrollments in the First Respondent’s Ward within the Electorate that far exceeded its total population that was recorded only two years before the election in the national census survey conducted for purpose of the election, held, inter alia:

1. section 214 of the Organic Law on National and Local Level Government Elections prohibits the National Court from inquiring into the correctness of the Roll; therefore a petition founded on such ground is incompetent and is dismissed. In re Berrill’s Petition (1976) 134 CLR 470 followed;

2. for purpose of proceedings under Part XVIII of the Organic Law, the National Court is to assume that the Roll is correct and has no power to inquire into the correctness of compilation of the Rolls used for the election. Darlinghurst Petition (1951) 51 S.R. (N.S.W.) 204 applied.

3. variation to or departure from a polling schedule is not a ground to challenge an election and is not the same as abolition of a polling place, but variation or departure is permitted in order to allow for unforeseen circumstances such as bad weather. Central Provincial Government Elections Mathew Poia v Valerian Valai [1990] PNGLR 388 referred to.

4. a petition that is structurally defective by its pleading is bad at the outset and no amount of evidence is going to correct it without being able to amend the pleadings which the law does not allow so the defect remains incurable, hence the petition remains incompetent and must be dismissed. In re Kavieng Open Electorate Petition – Ben Micah v Ian Ling-Stuckey and Electoral Commission [1998] Unreported National Court Judgment- N1790 adopted and applied.

Full facts in the judgment.

Cases cited:

1 See Fox –v- Stirk and Bristal Electoral Registration Officer (1970) 2 QB 463 at 475.

2. See EP No. 32 of 2002 – Dr John Waiko –v- Peter Oresi and EC [2003] Unreported National Court Judgment – 13 February, 2003

3. Delba Biri v Ninkama [1982] PNGLR 342

4. In re Kavieng Open Electorate - Ben Micah v Ian Ling Stuckey [1998] Unreported National Court

Judgment – N1790

5 .Neville Bourne v Manase Voeto [1977] PNGLR 298

6. Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner[1988] PNGLR 99

7 .Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR372

8 Raymond Agonia v Albert Karo and Electoral Commission [1992]PNGLR 462

9. John Wemin Mili V Simon Philip Gaima & Electoral Commission [1997] N1618

10 .Norman Walter Fernandez V Philip Taku & Electoral Commission [1997] – N1616

11. Komane Assano Wasege V Mathias Karani [1997] N1679

12. Perkins –v- Cusack (1929) 43 CLR 70

13. In re Berrill’s Petition (1976) 134 CLR 470

14. Darlinghurst Petition (1951) 51 S.R. (NSW) 204

15. In re The Nash Election Petition – Grant v Dunstan and Carney [1952] St. R. Qd. 53

16. In the Matter of Central Provincial Government Elections - Mathew Poia –v- Valerian Valai &

Electoral Commission [1990] PNGLR 388

Counsel:

P. Ame for the Petitioner, Mr Karani

C. Copland for Mr Siluwa, 1st Respondent

T. Sirae for the Electoral Commission, 2nd Respondent

DECISION

March 16, 2004

KIRRIWOM, J.: This is a petition by the runner-up in the Lufa Open Electorate of Eastern Highlands Province in the 2002 National Elections, Mathias Karani, who was unseated by the First Respondent for that electoral office. The Petitioner was running for his third consecutive term in Parliament when defeated in the...