In the matter of Organic Law on National and Local-Level Government Elections and in the matter of Elections and Returns for Hagen Open Electorate, Western Highlands Province; James Yoka Ekip and Simon Sanagke v Gordon Wimb, Returning Officer and Electoral Commissioner of Papua New Guinea and William Duma (2012) N4899

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 21 November 2012
• Citation: (2012) N4899
• Docket Number: EP. NO. 10 & 11 of 2012
• Year: 2012

Full Title: EP. NO. 10 & 11 of 2012; In the matter of Organic Law on National and Local-Level Government Elections and in the matter of Elections and Returns for Hagen Open Electorate, Western Highlands Province; James Yoka Ekip and Simon Sanagke v Gordon Wimb, Returning Officer and Electoral Commissioner of Papua New Guinea and William Duma (2012) N4899

National Court: Kandakasi, J.

Judgment Delivered: 21 November 2012

ELECTION PETITION—PRACTICE & PROCEDURE - Objection to Competency—Pleading grounds of petition—Requirements of s208 (a) and (d) of the Organic Law on National and Local-level Government Elections (Organic Law on Elections)—Inconsistent pleadings—Petitioners need to make a choice on which ground they rely on—In appropriate to plead in the alternative.

ELECTION PETITION - PRACTICE & PROCEDURE—Sufficiency of pleadings of facts required by s208 (a) of the Organic Law on Elections—Intention of the Organic Law - Petitioner to plead the facts constituting a ground for the petition so as to inform the Respondents and the Court the basis for the petition—What fact must be pleaded is dependent on the ground of the petition—Need only pleading the essential elements of the offence, irregularity, illegality or errors and omissions relied on to vitiate an election result—Petition failing to plead facts addressing all of the essential elements—Petition incompetent.

ELECTION PETITION - PRACTICE & PROCEDURE—Attestation of petition by witnesses—Purpose of requirement—Attest to facts relied on by person coming from the electorate and having knowledge of the facts relied upon - Need to sufficiently state name, occupation, and address—Purpose—Easy and ready identification and location of witnesses—Whether stating an area in a city sufficient for the purposes of s208 (d)—Insufficient fact—Petition incompetent.

Cases Cited

Mathias Ijape v Bire Kimisopa (2003) N2344; Jimson Sauk v Don Pomb Polye (2004) SC769; Ginson Goheyu Saonu v Bob Dadae (2004) SC763; SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342; Holloway v Ivarato [1988] PNGLR 99; Benias Peri v. Nane Petrus Thomas & Electoral Commission (Unreported and Unnumbered judgment of 20/4/04). Francis Koimanrea v Alois Sumunda [2003] PNGLR 264; Steven Pirika Kamma v John Itanu (2007) N3246; Dick Mune v Anderson Agiru (1998) SC590; Sir Arnold Amet v Peter Charles Yama (2010) SC1064; David Lambu v Peter Ipatas (1997) N1701; Ludger Mond v Jeffery Nape (2003) N2318; Louis Ambane v Thomas Tumun Sumuno (1998) SC559; Raymond Agonia v Albert Karo [1992] PNGLR 463; Vagi Mae v Jack Genia and Electoral Commissioner of PNG; Re Abau Open Seat (1992) N1105; Greg Mongi v Bernard Vogae (1997) N1635; Torato v Balakau [1988–89] PNGLR 83; Aiwa Olmi v Nick Kopia Kuman (2002) N2310; Joel Pepa Paua v Robert Timo Ngale [1992] PNGLR 563; Ben Micah v Ian Ling–Stuckey [1998] PNGLR 151; Sai–Sail Beseoh v Yuntivi Bao (2003) N2348; Francis Koimanrea v Alois Sumunda [2003] PNGLR 264; Luke Alfred Manase v Don Pomb Polye (2009) N3718; Robert Kopaol v Philemon Embel (2003) SC727; Albert Karo v Lady Carol Kidu [1997] PNGLR 28

1. KANDAKASI J: Two losing candidates, Simon Sanangke and James Yoka Ekip (the Petitioners) for the Hagen Open Seat in the recently concluded National General elections, separately petition

Consolidated by order of the National Court made on 19th September 2012, per Makail J.

21 this Court to void the election results and order a by-election. That is on allegations of alleged errors, omissions and illegal practices of Electoral Commission officials, which resulted in exclusion from the counting of 21 ballot boxes containing allegedly 21,683 votes. No wrong doing is alleged against Honourable William Duma who ultimately won the Seat but he has been named as a party and is the Third Respondent

Objection to competencies

2. The Returning Officer, the Electoral Commissioner and Honourable William Duma (the Respondents) have raised objections against the competency of the petitions on essentially three grounds. These grounds are:

(1) Contrary to the requirements of s208 (a) of the Organic Law on National and Local-level Government Elections as amended (the Organic Law on Elections), the petitions do not state the facts relied on to void the election;

(2) The petitions are incompetent for stating alternative and or contradictory facts; and

(3) In respect of EP 11 of 2012, the address of the attesting witnesses given as “8 Mile, National Capital District” is insufficient for the purpose of s208 (d) of the Organic Law on Elections.

3. The petitioners oppose the objections and claim that they have sufficiently stated the facts and have not stated any fact in the alternative or contradictory to other facts stated in their respective petitions.

Relevant Issues

4. Clearly therefore the issues this Court must resolve are these:

(1) Have the Petitioners sufficiently stated the relevant facts of an alleged error, omission, irregularity or illegal practice which affected the election results for the Hagen Open Electorate in the 2012 National General Elections?

(2) Do the petitions state facts that are in the alternative and or are contradictory to other facts stated in them?

(3) In respect of EP 11 of 2012, is the statement of the attesting witnesses’ address as “8 Mile, National Capital District” sufficient for the purposes of s.208 (d) of the Organic Law on Elections?

5. The first two issues can be dealt with together, while the third issue is one that can be dealt with on its own. However, the same principles of law are applicable to all three issues. I will thus first discuss and state generally the relevant and applicable law. Thereafter, I will get into an application of the law to the specific issues presented.

Relevant Law

6. All learned counsel appearing before me have ably assisted me with their submissions in writing to which they spoke to at the hearing yesterday. I am grateful for their assistance. On close examination and consideration of the submissions however, I find one strange occurrence. That is in respect of the submissions by Mr. Alua of counsel for the petitioner, Simon Sanangke.

7. Without quoting or acknowledging the source, Mr. Alua adopts word for word and paragraph for paragraph (save only for a very small part) what I said in my decision in Mathias Ijape v Bire Kimisopa,

(2003) N2344.

32 and submits that work as if his own. This unacknowledged presentation of my own work by counsel starts at paragraph 6 of his submission through to paragraph 20, which is the whole of counsel’s submission on the relevant law. This certainly does not reflect well on counsel. Subject to further hearing of counsel at an appropriate time after the handing down of this decision, what counsel has done is an entrance into the sphere of plagiarism, which is a serious but separate matter. I point out clearly however that, this conduct of counsel cannot and is of no adverse consequence against his client’s case

8. The submissions of all counsel correctly identified some of the most relevant Supreme and National Court decisions and ably submitted on the relevant law. The submissions agree on what the law is. What is in contention is the application of these principles to the present case.

9. Until the decision of the Supreme Court in the two cases of Jimson Sauk v. Don Polye

(2004) SC769.

43 and Ginson Saonu v. Bob Dade,

(2004) SC 763.

54 election petitions have been met with strong objections as to their competence and the Courts have almost readily upheld the objections to the point where no petition was able to get to a hearing on the substantive merits of a petition. That position followed from the decision of the earlier Supreme Court decision in Delba Biri v. Bill Ninkama

[1982] PNGLR 342.

65 which was followed by the decision of the Supreme Court in Sir Barry Holloway v. Aita Ivarato & Electoral Commission

[1988] PNGLR 99.

76 and many subsequent others

10. In Delba Biri’s case, the Supreme Court for the first time considered provisions of s208 of the Organic Law on Elections. The case went to the Supreme Court by way of referral of two questions to the Supreme Court by the National Court. The questions thus referred were:

1. “To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s208?” and

2. “To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s206 of the Organic Law on National...