Robert Sandan Ganim v Lino Tom Moses

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 02 May 2018
• Citation: (2018) N7233
• Court: National Court
• Year: 2018
• Judgement Number: N7233

Full : EP No 53 of 2017; In the matter of an election disputed return for the Wabag Open Electorate; Robert Sandan Ganim v Dr. Lino Tom Moses and the Electoral Commission of Papua New Guinea (2018) N7233

National Court: Makail, J

Judgment Delivered: 2 May 2018

N7233

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 53 OF 2017

IN THE MATTER OF AN ELECTION DISPUTED RETURN FOR THE WABAG OPEN ELECTORATE

BETWEEN

ROBERT SANDAN GANIM

Petitioner

AND

DR. LINO TOM MOSES

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2018: 29th March & 2nd May

ELECTION PETITION – Objection to competency of petition – Grounds of – Failure to plead facts – Lack of facts – Allegations of errors or omissions and illegal practices at polling and counting – Whether sufficient facts pleaded – Whether there are facts showing results likely to be affected as a result of errors or omissions and illegal practices by electoral officials – Failure to file petition within 40 days – Failure to pay security deposit of K5,000.00 at time of filing of petition – Incompetent attesting witness – Occupation of attesting witness – “Self-employed” – Organic Law on National and Local-level Government Elections – Sections 208 (a), (d) & (e), 209, 215 & 218

Cases cited:

Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015 per Makail J)

Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29th May 2015 per Kirriwom J)

Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155

Brian Kramer v. Nixon Philip Duban & Electoral Commission (2013) N5213

Dick Mune v. Anderson Aigiru (1998) SC590

Dr. Bob Danaya v. Ati Wobiro (2013) SC1292

Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569

Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712

Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247

Labi Amaiu v. Andrew Mald (2008) N3334

Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004

Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385

Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437

Paiyo Bale v. Hon. James Donald & Electoral Commission (2018) N7124

Paru Aihi v. Sir Moi Avei (2003) SC720

Peter Waieng v. Tobias Kulang: EP No. 75 of 2012 (Unnumbered and Unreported Judgment of 13th March 2013 per Batari J)

Pius Wingti v. Kala Rawala & Ors (2008) N3286

Sali Subam v. Aide Ganasi (2012) N5068

Samson Malcolm Kuli v. Electoral Commission & Anton Yagama (2013) N5275

Tony Puana v. Joseph Lelang & Electoral Commission: EP. No. 43 of 2012 (Unnumbered and Unreported judgement of 30th January 2013 per Mogish J)

Counsel:

Mr. M. Kombri, for Petitioner

Mr. R. Leo, for First Respondent

Mr. J. Simbala, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

2nd May, 2018

1. MAKAIL, J: This is a ruling on two objections to competency brought by the first and second respondents respectively.

Grounds of Objection

2. The first respondent’s objection filed on 3rd October 2017 is grounded on:

2.1. Non-compliance with Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”), that is, failure to plead facts.

2.2. Non-compliance with Section 208(e) of the Organic Law, that is, failure to file the petition within 40 days.

2.3. Non-compliance with Section 209 of the Organic Law, that is, failure to pay security deposit of K5,000.00 at the time of filing the petition.

3. The second respondent’s objection filed on 21st November 2017 is grounded on:

3.1. Non-compliance with Section 208(a) of the Organic Law, that is, failure to plead facts.

3.2. One attesting witness’s occupation of “self-employed” is contrary to Section 208(d) of the Organic Law.

Failure to file petition within 40 days

4. The first respondent submitted that the declaration of election was made on 27th July 2017. When computed from the date of declaration, the 40 day period expired on 4th September 2017. The petition was filed one day late, that is, on 5th September 2017 contrary to Section 208(e) of the Organic Law. Section 208 is set out in full below:

“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)”.

5. In support of the proposition that the petition was filed out of time, the first respondent took exception to the decision of the Court in Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004 contending that it was wrong and contrary to the binding decision of the Supreme Court in Kalit v. John Pundari & Electoral Commission (1998) SC569 where the Court did not follow the decision of the Supreme Court. In Amaiu v. Kaupa the Court held that the time limitation of 40 days to file a petition starts to run a day after the declaration.

6. That it was submitted by counsel for the first respondent that Kalit v. Pundari was authority for the proposition that the time limitation of 40 days to file a petition is computed from the date of declaration of result of an election and that it was a judicial pronouncement by the highest Court of the land on the law on computation of time limitation of 40 days under Section 208(e) of the Organic Law. Thus, the National Court was bound to follow it.

7. Further, the first respondent criticised the decisions in Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015 per Makail J) and Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29th May 2015 Kirriwom J) which were referred to in Amaiu v. Kaupa were unpublished judgments by submitting that first, they were unavailable to the parties to consider. Secondly, the decision by Kirriwom J sitting as a single Judge of the Supreme Court in SCREV (EP) No. 2 of 2015 carried less weight than the Supreme Court decision in Kalit v. Pundari and the National Court, being an inferior Court was bound to follow the decision in Kalit v. Pundari.

8. But counsel did concede that Kalit v. Pundari was about a dispute in relation to the correct date of declaration. In other words, the subject of review by the Supreme Court was about when the declaration was made. Two dates were proposed; one 4th July 1997 and the other, 5th July 1997.

9. The date inserted in the Writ for the subject electorate was 4th July 1997 and the petition pleaded 5th July 1997 as the date of declaration. A determination of the correct date of nomination was critical to the survival of the petition, that is, whether it was filed within 40 days as required by Section 208(e) of the Organic Law.

10. The trial judge in the National Court accepted the date of 4th July 1997 as the date of declaration and went on to find that the petition was filed out of time and dismissed it: see Kelly Kuliyali Kalit v. John Pundari (1998) N1712. On review, the Supreme Court upheld the decision of the National Court and dismissed the review emphasising that the Writ was the official record of the Electoral Commission and the date inserted in it was conclusive evidence of the date of declaration.

11. The concession by counsel is an acknowledgment of the real issue that was before the National Court and also the Supreme Court. That it was about the date of declaration and not the computation of the 40 days. In other words, the Supreme Court was not asked to determine when the time limitation of 40 days was to run. It was asked to determine when the declaration was made. These are two distinct and separate questions.

12. The Court made that distinction in Amaiu v. Kaupa at [21]:

“21. The cases of Kelly Kuliyali Kalit and Labi Amaiu are distinguishable on their facts. In Kelly Kuliyali Kalit, there were two conflicting dates on the date of declaration; one 4th July 1997 and the other, 5th July 1997 and needed to be resolved before computing the 40 days. In this case, there is no dispute in relation to the date of declaration of the first respondent.”

13. The distinction formed the basis of the Court’s decision in Amaiu v. Kaupa not to follow the Kalit v. Pundari at [24]:

“In both cases, there was no contest as to when the 40 days starts to run. Parties had accepted that...