Alfred Pogo v Guao Katucnane Zurenuoc and The Electoral Commission of Papua New Guinea (2003) N2351

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 13 February 2003
• Court: National Court
• Citation: (2003) N2351
• Year: 2003
• Judgement Number: N2351

Full Title: Alfred Pogo v Guao Katucnane Zurenuoc and The Electoral Commission of Papua New Guinea (2003) N2351

National Court: Sevua J

Judgment Delivered: 13 February 2003

1 ELECTION PETITION

2 SC Review No 54 of 1998; Sir Julius Chan v Ephraim Apelis and The Electoral Commission (No 2) (1999) SC591, Ephraim Apelis v Sir Julius Chan (1998) SC573, Kelly Kilyali Kalit v John Pundari (1998) SC569, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Michael Badui v Bart Philemon, Alfred Pogo and Electoral Commission [1992] PNGLR 451, Raymond Agonia v Albert Karo [1992] PNGLR 463, Vagi Mae v Jack Genia (1992) N1105 referred to

___________________________

N2351

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 14 of 2002

BETWEEN:

ALFRED POGO

Petitioner

AND:

GUAO KATUCNANE ZURENUOC

First Respondent

AND:

THE ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Second Respondent

Lae : Sevua, J.

10th & 13th February 2003

M.Wilson, G.Manda & E.Suelip for Petitioner

J.Kunjip for 1st Respondent

R.William for 2nd Respondent

13th February, 2003

SEVUA, J: The Petitioner has disputed the result of the election for the Finschaffen Open Electorate returning the First Respondent as the elected Member of Parliament representing the people of Finschaffen following the 2002 National General Elections.

The petition was filed at the Waigani Registry on 14th August 2002. The trial was initially fixed for 2nd December 2002 then changed to 3rd February 2003 and eventually 10th February 2003.

At the commencement of the trial on Monday, 10th February, Mr Wilson announced that there were two preliminary matters to be dealt with. The first was an application to amend the date of declaration in the petition, and the second was the objections to competency by the First Respondent supported by the Second Respondent. In the interim, grounds 6.1, 6.5, 6.6, 7.4 and 8 of the petition were to be withdrawn. Consequently, I ordered that those grounds were withdrawn with leave. Thirdly, Mr. Manda had been briefed to appear as counsel with Ms Suelip as Mr. Manda had initially drawn up the petition and is familiar with it. Mr. Wilson then sought to be excused because he said there are other electoral matters in Port Moresby he must return to attend to so leave was granted to him excusing him from further participation in this trial.

However, prior to Mr. Wilson being excused, he had asked the Court to indicate how this matter would proceed. Unaware that the order being sought in the Petitioner’s motion was the first ground of objections raised by the First Respondent, I had intimated that I would hear the application then rule on it and depending on what the outcome of the motion was, the Court would then proceed with hearing the competency issue. It was not until the Petitioner’s counsel had moved its motion and was addressing the Court that the Court became aware that the issue in the Petitioner’s motion was the first ground of objections to competency raised by the First Respondent. I then announced that the position I had indicated earlier would not be maintained in the light of the revelation of the fact I have alluded to, and that the Court would hear the Petitioner’s application and then allow the First Respondent to move its objections and then the respondents would respond to the Petitioner’s motion in their addresses. That course was agreed to by all the parties and this trial commenced in that manner.

The Petitioner’s notice of motion was filed on 27th November 2002 and the orders sought were :-

1. The objection by the first respondent that the whole petition is defective for being filed out of time be struck out as vexatious on the grounds:

(a) of being duplicitous; and

(a) that a party cannot move to defect a Petition on the

grounds that the Petitioner was mistaken.

2. In the alternative, the second Respondent admit or deny

the fact that the declaration for the Finscahaffen Open

Electorate was made on 5th July 2002.

3. The date of the declaration in the Petition be amended out

of time on 5th July 2002.

In moving the motion, counsel for the Petitioner, Mr. Manda, informed the Court that he would address motions 1 and 2 when he responds to the objections to competency, but at this stage he was seeking an order in terms of paragraph 3 of the motion, which in substance, an amendment of the petition.

The particular part of the petition that the Petitioner is seeking to amend is paragraph 3 which reads:

“On 4th July 2002 the Second Respondent declared the result of

the Elections and returned the First Respondent as the duly

elected Member for the Electorate.”

The motion was supported by the affidavit of the Petitioner sworn and filed on 27th November 2002. The material parts of the affidavit are that the declaration for the result of the Finschaffen seat was made on Friday, 5th July 2002, but that he had mistakenly instructed his lawyers that the date of declaration was 4th July 2002, and by the time the statutory time limit of 40 days had expired he realized his mistake hence this application. As such he was “seeking orders from the Court to amend the date of declaration for the electorate as it is evident in public record that the declaration date is 5th July 2002 and not 4th July 202 as stated in the Petition” , (my emphasis).

A copy of the writ for the Finschaffen Open Electorate was annexed to the affidavit, and it clearly shows that the Returning Officer for the Finschaffen Open Electorate, Bob Bigilam, certified the writ on 5th July 2002.

At this juncture the Court must emphasise that the date of declaration, which is the 5th July 2002, is not disputed by the respondents. That date, as the Petitioner has shown in his affidavit, is the correct date. The Court can accept that as a primary fact because the writ speaks for itself. But whether the 4th July 2002 or the 5th July 2002 is the date of declaration is not the issue here. The issue is simply whether the petition can be amended outside the 40 days time limit. Or, to put it in a slightly different way, whether the Court has any discretion to amend this petition outside the 40 days requirement in both the Organic Law on National and Local-Level Government Elections (the Organic Law) and the National Court Election Petition Rules 2002.

Counsel for the Petitioner submitted that the pleading of the declaration date as the 4th July 2002 is curable by a simple amendment to the Petition in accordance with the decision of the Supreme Court in Chan v. Apelis (1999) unreported. The Court has not been provided with the details of that decision and I have not had the liberty of reading that judgment so I am unable to determine what the Supreme Court said in that judgment. But I have looked at Apelis v. Chan, (1998) SC 573, however the issues there are not relevant to the present case. Counsel also mentioned a decision of Injia, J and submitted that a similar determination in respect of the 40 days was made, however, the details of that case were not supplie. If a party relies on the strength of a case law, he is obliged to provide that case to the Court, if not, provide the citation.

Mr. Manda submitted that the evidence in support of the motion is undisputed as the writ is a public document and it sets out the correct date of the declaration, which is 5th July 2002, therefore the Court should accept the evidence and grant the order to amend the Petition. He relied on the Supreme Court decision in Kelly Kilyali Kalit v. John Pundari and The Electoral Commission, unreported, (1998) SC 569 where the Court said,

“The Original Writ speaks for itself. No amount of persuasion

or representation by the Electoral Commission or by its staff

can change the Writ.”

The Petitioner therefore submitted that the failure to plead the correct date of declaration is of no consequence as the error is curable by a simple

amendment especially when the undisputed evidence is that the petition was filed within the forty (40) days statutory time limit.

In response to the objection raised by the First Respondent, the Petitioner submitted that paragraph 3 of the petition is merely a part of the background introduction of the petition. The facts in which the Petitioner relies on to over turn the result of the election are pleaded from paragraph 6 onwards. Again, in his submissions in reply to the first objection by the First Respondent as to this issue, counsel relied on Kalit v. Pundari (supra).

However, interestingly enough, counsel for the Petitioner informed the Court during his reply to the First Respondent’s objections after lunch on 10th February that if the Court finds against the Petitioner on this issue, he had instructions to withdraw paragraph 3 of the petition and counsel sought leave to withdraw this paragraph. The Court intimated that it would rule on this in its judgment but that the Petitioner had allowed this ground to remain paving the way for the First Respondent’s first objection to competency and...