Pila Ninigi v Electoral Commission of Papua New Guinea and Francis Awesa (2013) N5322

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ
• Judgment Date: 09 August 2013
• Court: National Court
• Citation: (2013) N5322
• Docket Number: E.P NO 55 OF 2012
• Year: 2013
• Judgement Number: N5322

Full Title: E.P NO 55 OF 2012; Pila Ninigi v Electoral Commission of Papua New Guinea and Francis Awesa (2013) N5322

National Court: Injia CJ

Judgment Delivered: 9 August 2013

N5322

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

E.P NO 55 OF 2012

BETWEEN:

PILA NINIGI

Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

FRANCIS AWESA

Second Respondent

Mt Hagen: Injia CJ

2013: 5, 6, 8 & 9 August

ELECTION PETITION – Objection to competency – Pleading essential facts- Errors and Omissions – Bribery of electoral officials committed by successful candidate – Failure to comply with mandatory requirements of Organic Law on National and Local-Level Government Elections - s 208 (a) in conjunction with s 215 (1) & s218; and s 103(a)(iii) of the Criminal Code – Petition dismissed.

Cases cited:

Papua New Guinea Cases

Abal v Ganim, Unpublished National Court Judgment in EP 61 of 2012 dated 16 July 2013

Amet v Yama (2010) SC1064

Kopaol v Embel (2003) SC 727

Kopaol v Embel (2008) N3319

Wingti v Olga, Unpublished National Court Judgment in EP 55 of 2007 per Cannings J (March 2008)

Kikala v Electoral Commission (2013) N4960

Manase v Polye (2008) N3534

Mune v Agiru (1998) SC590

Nomane v Mori (2013) SC1242

Parkop v Vele (No 3) (2007) N3322

Phillip Kikala v Mangape & Electoral Commission, Unpublished Supreme Court judgment in SC Rev (EP) No 11 of 2013 dated 15 March 2013

Tulapi v Lagea & Ors (2013) N 4934

Wingti v Olga, Unpublished National Court judgment in EP 55 of 2007, per Cannings J (March 2008)

Overseas Cases

Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665

Counsel:

F Kennedy, for the Petitioner

H Viogo, for the First Respondent

I Molloy, for the Second Respondent

RULING

9 August, 2013

1. INJIA CJ: The election petition in this matter concerns the election of the Second Respondent (Mr Awesa) as the duly elected member for Imbongu Open in the 2012 General Elections. The first respondent (EC) challenges the petition’s competency by way of a Notice of Objection to Competency of the Petition (competency objection). I received submissions of counsel, oral and written, on 5th, 6th & 8th August 2013 and reserved my ruling to today which I now deliver.

2. The hearing on the preliminary objection was conducted in two stages. Full arguments were made on 5th and 6th August 2013 after which I reserved my ruling to the 7th. In the course of my deliberations, I identified two matters which were not raised and argued before me that I considered relevant and raised them with counsel on the 7th when the Court reconvened. Those relate to the relevance of OLNE, s 153A and factual pleadings to support the application of that provision; and the grounds in the petition regarding breach of s 50 (1)(d) of the Constitution. Those matters were raised as competency matters which goes to procedural jurisdiction, that can be raised at any stage of the proceedings, by the Court of its own motion under the principles enunciated by the Supreme Court in Amet v Yama (2010) SC1064. Counsel made submissions on them and those are considered in the course of my reasoning.

3. The approach adopted in judicial scrutiny of petitions under s 210 of OLNE, which I apply in this petition, is the one that I enunciated in Tulapi v Lagea & Ors (2013) N 4934, at paragraphs 16 -18. Under that approach the focus is on a holistic way in reading of the petition and focussing on fairness, essence, purpose and substance in the factual pleadings rather than form and technicalities. In developing what I termed as the third approach, the main cases that advocated two seemingly competing approaches (strict scrutiny approach and liberal approach), many of which are cited by counsel in this case, were considered.

4. The grounds of objection fall into two categories. The first category relates to two threshold issues. One with regard to whether the pleadings demonstrate the election result was affected or likely to be affected, in terms of the allowable votes assigned to candidates at the scrutiny during the primary and elimination processes that produced a winner; the winner determined by the candidate who scores 50% of the total allowable votes plus 1 vote. The other threshold issue relates to the adequacy of one of the witnesses’ attestation concerning his occupation . The second category is with regard to specific issues concerning three matters – declaration of the successful candidate as the duly elected member by a Returning Officer (RO) that is duly appointed for that purpose; two disputed Ballot Boxes, one each for Lumbi and Yaria polling places; and, Bribery.

5. Counsel made extensive submissions on many issues but I direct my mind to the main and important issues that are critical to the determination of those issues. Submissions of counsel and my consideration of them are embodied in my reasoning.

Pleading the election result – winning margin

6. The essence of the facts pleaded concerning the scrutiny of votes that produced a winner must be understood as a whole. There is no question in the petition regarding scrutiny of votes from other polling places in the electorate. The central focus is two ballot boxes, one each from Lumbi and Yaria polling places (Lumbi and Yaria ballot box(es)) that contained the decisive number of votes required to determine the winner or runner-up between Mr Awesa and Mr Niningi (the petitioner), depending on the admission or exclusion of those ballot boxes from the scrutiny. The allowable first preference votes from Lumbi and Yaria ballot boxes is the catalyst that produced the difference in votes scored by Mr Awesa and Mr Niningi at the end of the primary count and the winning margin between the same candidates at the end of the elimination process; with the winner and runner-up decided on whether or not whether the Lumbi and Yaria ballot boxes containing completed ballot papers were admitted or excluded from the scrutiny.

7. After hearing counsel on two separate hearings on the state of the factual pleadings supporting the grounds in the petition relied upon to invalidate the election, I am able to capture the essence of the facts pleaded that concern those matters.

8. Scrutiny commenced at the counting center at Momei Oval, Mendi on 29 June 2012. Mr Jeffrey Paue was the duly appointed and gazetted RO. Scrutiny commenced and continued under his superintendence until 3 July 2012 when he took leave of absence on medical grounds. In his place, EC appointed Mr Steven Tipora to continue with the scrutiny.

9. On 13 July 2012, the Lumbi and Yaria ballot boxes were produced in the counting room for scrutiny. It is pleaded that those boxes were high-jacked at the respective polling places by unidentified voters during a fight that broke out between voters, the ballot boxes taken away and they mysteriously re-appeared at the counting center. The boxes were damaged showing interference with the ballot boxes.

10. A ballot box may be disputed by a scrutineer or a polling official. There is no pleading with regard to whether any scrutineer or polling official disputed the two ballot boxes before RO Tipora. There is no pleadings as to the grounds on which they were disputed and the steps taken by the Returning Officer to seek an explanation from the Presiding (President) Officer or polling officials for Lumbi and Yaria or any scrutineer from those polling places to respond to those grounds of objection. All that is pleaded is that Mr Tipora “did make a decision not to admit the ballot boxes for scrutiny” (paragraph 23 of the Petition). It is pleaded that Mr Tipora set out his decision in a letter he wrote to EC and copied to all candidates, but it is not pleaded the reasons for his decision, if any, contained in that letter. After Mr Tipora’s decision to exclude Lumbi and Yaria boxes, he instructed the boxes be returned to the container, suspended the counting and he together with ARO Kelma Pora and some counting officials and the majority of scrutineers, left the counting room.

11. It is alleged that on the 14 July 2012, contrary to Mr Tipora’s decision , ARO Francis Akol with the assistance of Assistant Police Commissioner Jim Andrews “intentionally and in defiance of and contrary to the decision of Mr Tipora of 13 July, did admit for scrutiny the ballot boxes from Lumbi and Yaria”. Mr Kevin Paka, scrutineer for Mr Niningi, raised strong objections, but despite that, the ballot boxes were admitted for scrutiny. It is not pleaded what the grounds of objection were and how the boxes were cleared for counting. It is not pleaded why Mr Akol made that decision. It is pleaded that Mr Akol’s decision was contrary to s OLNE, s 153A, in that he had no authority to change Mr Tipora’s decision; the decision could only be challenged by way of a petition filed in the National Court.

12. The Lumbi and Yaria boxes, it is clear from the pleading, were the last ballot boxes counted in the primary count. The result was that Mr Awesa scored 1,584 votes from Lumbi (count No 77) and 1,696 votes from Yaria (count No 78) which placed...