In The Matter of The Organic Law on National and Local–level Government Elections; And In The Matter of A Disputed Return for The Goroka Open Electorate; Mathias Ijape v Bire Kimisopa and The Electoral Commission of Papua New Guinea (2003) N2344

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 06 March 2003
• Citation: (2003) N2344
• Docket Number: EP No 4 of 2002 NCD
• Year: 2003

Full Title: EP No 4 of 2002 NCD; In The Matter of The Organic Law on National and Local–level Government Elections; And In The Matter of A Disputed Return for The Goroka Open Electorate; Mathias Ijape v Bire Kimisopa and The Electoral Commission of Papua New Guinea (2003) N2344

National Court: Kandakasi J

Judgment Delivered: 6 March 2003

1 ELECTION—Parliamentary—Petition—Practice and procedure—A petition must be addressed to the National Court—Only the National Court is empowered in appropriate cases to declare an election null and void—A petition addressed to a person other than the National Court is defective and does not grant the National Court any jurisdiction to hear it—s206 of the Organic Law on National and Local–level Government Elections.

2 ELECTION—Parliamentary—Petition—Practice and procedure—Pleadings of facts relied on to invalidate an election—Statutory requirements to be strictly complied with—Where a statutory provision is pleaded as a ground for a petition, the facts pleaded must correspond with the provision pleaded—Material and relevant facts relied on must be pleaded with sufficient details—Petition on grounds other than bribery and undue influence must plead the facts relied on and demonstrate the results of the election was likely to be affected—Such facts should include names of people and number of votes—A failure to so plead amounts to the petition being incompetent—Organic Law on National and Local–level Government Elections s208(a), s210 and s215(3).

3 Dick Mune v Anderson Agiru (1998) SC590, Ben Micah v Ian Ling–Stuckey [1998] PNGLR 151, Ludger Mond v Jeffery Nape (2003) N2318, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Raymond Agonia v Albert Karo [1992] PNGLR 463, Herowa Agiwa v Benias Peri (2003) N2345, The Independent State of Papua New Guinea v Zachary Gelu (2002) N2322, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Bank of South Pacific Ltd v The Public Curator (2003) N2320, Holloway v Ivarato [1988] PNGLR 99, Torato v Balakau [1988–89] PNGLR 83, Joel Pepa Paua v Robert Timo Ngale [1992] PNGLR 563, Iambakey Okuk v John Nilkare [1983] PNGLR 28, Greg Mongi v Bernard Vogae (1997) N1635, Louis Ambane v Thomas Tumun Sumuno (1998) SC559, Albert Karo v Lady Carol Kidu [1997] PNGLR 28, Special Reference pursuant to Constitution Section 19; Reference by Francis Damem [2002] PNGLR 696, Enforcement Pursuant to Constitution s57; Application by Daniel Don Kapi [2002] PNGLR 630 and Daniel Tulapi v Charles Luta (2000) PNGLR 120 referred to

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Kandakasi J: This is an election petition by Mr Mathias Ijape against Mr Bire Kimisopa's election as Member of Parliament for the Goroka Open Seat in the 2002 National General Elections. Mr Kimisopa and the Electoral Commission object to its competency. By reason of s210 of the Organic Law on National and Local–level Government Elections (the Organic Law), the objection must be first dealt with. So I heard arguments on it on the 3rd and 4th and reserved a ruling on that to today. This is the judgment.

Preliminaries

At the outset of the commencement of the hearing of this matter, Mr Ijape informed the Court that his lawyer, Mr G Sheppard of Maladinas Lawyers has withdrawn acting for him. I asked if he was able to proceed with the hearing on his own and he answered in the affirmative. I therefore, called on the matter and proceeded to deal with it. I was impressed with Mr Ijape's performance on his on behalf to the extent that I could say he ably represented himself, both through his oral and written submissions. His written submissions include one prepared for him by Mr G Sheppard.

The Respondents to the petition, Mr Kimisopa and the Electoral Commission present two main arguments for their objection. The first is that the petition is not addressed to the National Court as is required by s206 of the Organic Law. Instead, it is addressed to Mr Biri Kimisopa and the Electoral Commission. Secondly, they claim that material facts relied on by Mr Ijape to invalidate the election have not been pleaded with sufficient particulars. Reliance is placed on s208(a) and s215, of the Organic Law and the case built around them.

Mr Ijape, responds to the first basis of the objection by arguing that the provisions of s206 of the Organic Law must be given a fair large and liberal interpretation to uphold the intent of Parliament behind that provision. If that is done, he argues, his petition is correctly before the National Court and that vests this Court with the appropriate jurisdiction to hear it. As for the requirements to plead facts sufficient to invalidate the election, he argues that, he has pleaded sufficient facts for the purpose of s208(a) of the Organic Law, if his petition is read as a whole. In so arguing he concedes that, if the various paragraphs of his petition are viewed alone, the objections could be sustained.

Both the Electoral Commission and Mr Kimisopa submit in response to Mr Ijape's argument by saying a petition cannot be amended by submission after the expiry of the time limit imposed by s208(e) of the Organic Law. They rely on the Supreme Court judgment in Dick Mune v Anderson Agiru (1998) SC590, particularly the judgment of Injia J and the judgment of His Honour Kirriwom J in Ben Micah v Ian Ling–Stuckey [1998] PNGLR 151. They also rely on my judgment in Ludger Mond v Jeffery Nape (2003) N2318.

Issues

These arguments present a number of issues for determination. The main ones are:

Is the petition properly before this Court granting it the necessary jurisdiction to hear it having regard to the provisions of s206 of the Organic Law?

Do each of the grounds of the petition set out sufficient facts to invalidate the election of Mr Kimisopa?

Whether a petitioner is at any liberty to amend his petition in effect by his submission in the light of objections to the competency of his petition after the expiry of the time period prescribed under s208(e)?

I will deal first with the first issue. Then I will discuss the relevant law in relation to the prerequisites to an election petition under s208(a). Thereafter, I will examine each of the matters pleaded in the petition and say whether they meet the requirements under s208(a) and any other relevant and applying provisions of the Organic Law. That will in effect address the second issue. An examination and determination of the third issue will follow that.

Petition Not Addressed to the National Court

Although there is no case on point, there is ample authority for the proposition that the right to dispute an election and have it declared null and void in appropriate cases, is a right given to a petitioner by statute namely, the Organic Law. Starting with the Supreme Court judgment in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342 and all the judgment following it, such as that of Raymond Agonia v Albert Karo [1992] PNGLR 463, make that position very clear. These cases also make it clear that, that right must be exercised strictly in accordance with the requirements of the Organic Law especially in the context of s208. The Supreme Court in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, stated that position in these terms at p 345:

" . . . it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s208. It is not difficult to see why. An election petition is not an ordinary cause . . . and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

What this means in my view is that, the prerogative belongs to the majority in an electorate to elect their representative to Parliament. It is a sacred right. Once that choice is made in a fair and free election, it can only be challenged strictly in accordance with the requirements of the Organic Law, which grants a right to a person aggrieved by an election to challenge it.

The Organic Law provides both as to the way in which such a challenge is to be brought and where the challenge is to be taken. It also provides as to the way in which such a challenge is to be framed. The relevant part of the Organic Law is Part XVIII, under the heading "Disputed Elections, Returns, etc." That part starts with s206.

S206 reads:

"206. Method of disputing returns.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."

As I recently said in Herowa Agiwa v Benias Peri (2003) N2345...