Philemon Embel v Pesab Jeffrey Komal

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 10 April 2015
• Citation: (2015) N5947
• Court: National Court
• Year: 2015
• Judgement Number: N5947

Full : EP NO 99 of 2012; In The Matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Nipa- Kutubu Open Electorate; Philemon Embel v Pesab Jeffrey Komal and Andrew Trawen, Electoral Commissioner of Papua New Guinea and Electoral Commissioner of Papua New Guinea (2015) N5947

National Court: Makail J

Judgment Delivered: 10 April 2015

N5947

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 99 OF 2012

In The Matter Of The Organic Law On National And Local-Level Government Elections And In The Matter Of Disputed Returns For The Nipa- Kutubu Open Electorate

BETWEEN;

PHILEMON EMBEL

Petitioner

AND

PESAB JEFFREY KOMAL

First Respondent

AND

ANDREW TRAWEN,

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Third Respondent

Mendi & Waigani: Makail J

2015: 09th March & 10th April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient material facts – Illegal practices and errors or omissions at various polling locations – Errors or omissions at counting – Objection to ballot-boxes from being admitted to scrutiny – Whether sufficient material facts pleaded – Appointment of polling officials – Illegal appointment of – Whether proper ground to invalidate or void election or return – Organic Law on National and Local-level Government Elections – Section 208(a).

Cases cited

Daniel Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939

Andrew Kumbakor v. Joe Sungi & Electoral Commission: EP No. 23 of 2012 (Unreported and Unnumbered Judgment of 07th December 2012)

Pila Ninigi v. The Electoral Commission & Francis Awesa (2013) N5322

Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286

Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275

Philip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295

RULING ON OBJECTION TO COMPETENCY

Counsel:

Mr. P. Mawa, for Petitioner

Mr. I. Molloy, QC, for First Respondent

Mr. K. Kepo, for Second & Third Respondents

10th April, 2015

1. MAKAIL J: This is the first respondent’s objection to competency of the petition and supported by the second and third respondents. The petitioner was the runner-up to the first respondent in the 2012 General Election. At declaration on 31st July 2012, he scored 24,961 votes and the first respondent scored 26,890 votes. The difference was 1,929 votes.

Grounds of Objection

2. The grounds of objection are that the petition fails to plead sufficient facts and that facts are vague or ambiguous contrary to the prerequisites of a petition under section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic law”). The ground on lack of capacity of witnesses to attest petition under section 208(d) was not pursued at the hearing, hence not considered. The Court raised a further issue as to whether the petition was filed within 40 days after the declaration of the result of the election.

Requisites of Petition

3. The grounds of objection are based on the requisites of a petition under section 208 of the Organic Law. It states:

“208. Requisites of petition.

A petition shall —

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

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

Grounds of Petition

4. The petition is based on six grounds. They are:

4.1. Ground One.

The Returning Officer Mr. John Harisol was biased and had a vested interest in the election of the member for Nipa-Kutubu Open electorate. The allegations of fact supporting this ground are set out at paragraphs 14 to 16 and 91.

4.2. Ground Two.

Illegally appointed polling officials hijacked ballot-papers and committed errors or omissions during the pre-polling preparations. The allegations of fact supporting this ground are set out at paragraphs 18 to 26 and 91.

4.3. Ground Three.

Illegal practice at polling, that is, in all polling stations “hand-picked polling officials” hijacked polling and they marked ballot-papers in favour of the first respondent without giving the electors the opportunity to vote for the candidate of their own choice. The allegations of fact supporting this ground are set out at paragraphs 27 to 35 and 91.

4.4. Ground Four.

Errors or omissions were committed by the Returning Officer Mr. Harisol at counting. The allegations of fact supporting this ground are set out at paragraphs 36 to 57 and 91.

4.5. Ground Five.

Errors or omissions were committed by the Returning Officer Mr. Harisol prior to and during the declaration of result. The allegations of fact supporting this ground are set out at paragraphs 58 to 85 and 91.

4.6. Ground Six.

Illegal practices at polling by polling officials and Mr. Harisol. The allegations of fact supporting this ground are set out at paragraphs 86 to 90 and 92.

Grounds One, Two and Three of Petition

5. I address grounds one, two and three of the petition together because they relate to polling. The first respondent submits the allegations of fact pleaded at paragraphs 14 and 15 are insufficient because they do not state how the first respondent is related to Mr. Harisol, how Mr. Harisol’s relatives are strong supporters of the first respondent and how their relationship affected the result of the election.

6. As to the allegations pleaded at paragraph 16, allegation raising the correctness of the common roll is prohibited by section 214 of the Organic Law and should be struck down. As to the allegation that Mr. Harisol appointed polling officials who are supporters of the first respondent and changed polling schedules, these are not proper grounds to invalidate or void an election or return because Mr. Harisol as the Returning Officer is authorised by the Organic Law under sections 113 and 118 to appoint and assign polling officials to polling locations and there is no prohibition against appointment of relatives as presiding officers. He is also authorised by that law to change polling locations if there is a need.

7. In any case, if the allegations are proper grounds to invalidate or void an election or return, they are vague and ambiguous because the petition does not specify the error or omission and how the error or omission affected the result of the election. In relation to the allegation that Mr. Harisol committed an error or omission when he failed to comply with the direction of the second respondent to exclude seven disputed ballot-boxes from counting, the first respondent submits that the petition fails to plead the date and time of the direction and date and time of the refusal to comply with the direction.

8. The second and third respondents support the first respondent’s submissions. The petitioner counters these submissions by submitting that the allegations in these paragraphs are sufficiently pleaded and clear enough to understand the ground relied upon to invalidate or void the election or return. He submits the respondents are asking the Court to apply a very strict or rigid interpretation and application of section 208(a) (supra) and if the Court were to do that, it would result in dismissal of election petitions at the competency stage even though there may be some substance in the allegations against the respondents,.

9. He further submits the Court should tale a middle approach as was done in the case of Daniel Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939 where the learned Chief Justice took that approach when considering an objection to competency. His Honour said that “judicial scrutiny of a petition’s competency under section 210 of the Organic Law is driven by fairness, purpose and substance rather than procedural style, form and legal technicalities.”

10. I agree with this statement. The Court must look at the purpose and substance of the petition but these cannot be established unless the facts are sufficiently and clearly pleaded in the petition. I proceed in this premise to examine the allegations set out in the petition. With regard to the allegations at paragraphs 14 to 17 in relation Mr. Harisol being biased and had a vested interest in the election of the member for Nipa-Kutubu Open electorate, I accept the respondents’ submission that this not a proper ground to invalidate or void an election or return. In my view there must be something more than that. There must be allegation that he manipulated the election process in order for the winning candidate to win the election to constitute an illegal practice or error or omission and his conduct affected the result of...