Darius Kombe v Robert Naguri

• Jurisdiction: Papua New Guinea
• Judge: Yagi J
• Judgment Date: 15 November 2017
• Citation: (2017) N7130
• Court: National Court
• Year: 2017
• Judgement Number: N7130

Full : EP No 22 of 2017; In the matter of a disputed return for the Bogia Open Electorate in the National General Elections; Darius Kombe v Robert Naguri and the Electoral Commission (2017) N7130

National Court: Yagi J

Judgment Delivered: 15 November 2017

N7130

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 22 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE BOGIA OPEN ELECTORATE IN THE NATIONAL GENERAL ELECTIONS

BETWEEN:

DARIUS KOMBE

Petitioner

AND:

ROBERT NAGURI

First Respondent

AND:

THE ELECTORAL COMMISSION

Second Respondent

Madang: Yagi J

2017: 13th & 15th November

ELECTION PETITION – PRACTICE & PROCEDURE – objection to competency of petition – pleading facts – principles of law – grounds of petition – errors and omissions – allegation of failure by the Returning Officer to perform his statutory function and duty during the scrutiny process under the Organic Law, s. 153A - whether material or relevant facts are pleaded in the petition.

Cases Cited:

Francis Koimanrea v. Alois Sumunda (2003) N2421

Holloway v. Ivarato [1988] PNGLR 99

Mathias Karani v. Yawa Silupa (2003) N2385

Michael Sapau v Parkop Posangat (2013) SC1256

Mond v. Okoro & Electoral Commission [1992] PNGLR 501

Pila Niningi v. Electoral Commission & Francis Awesa (2013) N5322

Philemon Embel v. Pesab Jeffrey Komal (2015) N5947

Paias Wingti v. Kala Rawali & Others (2008) N3286

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348

Soro Marepo Eoe v. Mark Ivi Maipakai & Others (2013) N5066

Siaguru v. Unagi & Electoral Commission [1987] PNGLR 372

Thompson v. Pokasui & Electoral Commission [1988] PNGLR 210

Legislatios:

Election Petition Rule 2017

Organic Law on National and Local Level Government Elections

Counsel:

J. Alman, for the Petitioner

T. M. Ilaisa, for the First Respondent

L. Okil with L. Kot, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY

15th November, 2017

1. YAGI J: This is a ruling on the objection to competency of an election petition arising from the recent National General Election.

2. A petition was filed in this proceeding on 30 August 2017 in which the petitioner challenged the declaration of the first respondent as the duly elected member for Bogia Open Electorate in the Madang Province following the 2017 National Parliamentary General Elections. The petition was duly served on the respondents. The service of the petition were made on the first and second respondents by way of publication in accordance with Rule 8(2)(b) of the Election Petition Rules 2017. The publication was made on 05 September 2017.

3. On 08th November 2017 the second respondent filed and served an objection to competency of the petition. Although the prescribed period of 14 days as required under the Election Petition Rules 2017 had lapsed, the filing of the objection was made pursuant to leave granted by the Court on 06 November 2017. No objection was filed by the first respondent, however, at the hearing the first respondent supported the objection made by the second respondent.

4. The petition contains three grounds alleging errors and omissions under s.218 of the Organic Law on National and Local Level Government Elections. For the present purposes I will refer to this law as the Organic Law. The grounds are stated in Part C of the petition and are as follows:

“1. That the Petitioner and other candidates on numerous occasions upon sensing counting discrepancies requested the Returning Officer for re-checking or re-counting of votes but were ignored.

2. That the Returning Officer was wrong in allowing the two (2) ballot boxes to be counted for Team 17 when the ballot papers were not signed or initial by the Presiding Officer pursuant to Section 126 and 153 of the Organic Law on National and Local Level Government Elections.

3. That the Returning Officer failed to carry out a proper quality check on all the ballot papers before conducting the elimination process.”

5. The petitioner relies on these three grounds to seek a number of reliefs, amongst others, principally to have the Court order a re-count of all the ballot papers for the Bogia Open Electorate. It should be noted that none of the grounds in the petition impinge on the conduct of the first respondent. All three grounds are directed at the conduct of the second respondent, through the Returning Officer, during the counting and scrutiny processes in respect to the relevant ballot papers for the Bogia Open Electorate.

6. The Court heard the submissions and arguments on the competency of the petition on 13 November 2017 and reserved to today for a ruling.

7. The objections are based on the requirement of s.208(a) of the Organic Law. The respondents say that the petitioner failed to plead the material facts in the petition.

8. The second respondent submits that the petition is incompetent in two respects:

1. The facts in the petition do not clearly demonstrate any ground and are otherwise inappropriate or speculative.

2. The facts are misleading, speculative and inconclusive and fail to establish any ground.

9. However, after reading the written submissions of the second respondent it is apparent that the objection is really about the alleged failure to demonstrate a clear ground in the petition.

10. Counsel for the second respondent submits the grounds pleaded fall short of constituting a proper ground, the facts are not being sufficiently crystallised to demonstrate the nature of the error or omission and where the alleged error or omission allege a breach of statutory duty the relevant electoral law should be sufficiently identified by the pleading. In that regard counsel submits the facts alleges a breach of duty under ss. 126 and 153 of the Organic Law.

11. It is submitted the intent of ss. 126 and 153 of the Organic Law is to ensure proper authentication of the ballot papers by electoral officials. There are a number of ways that a ballot paper can be authenticated and “initial or signed” are just two of the methods. Therefore simply stating as a fact that a failure to “initial or sign” a ballot paper does not constitute an error. It is insufficient pleading in terms of the facts. It must be pleaded as a fact that ballot papers are not “authenticated”.

12. The general underlying submission is that the facts pleaded do not disclose any grounds and otherwise the grounds are unsubstantiated in the facts on the basis that there is failure to plead the correct winning margin and the difference in the votes between the petitioner and the winning candidate to demonstrate that the difference is likely to or did affect the result of the election.

13. Counsel for the petitioner submits the style and form of pleading is based on the prescribed form provided by the new Election Petition Rules 2017. The relevant form is Form 1 where there are four parts to the petition; A, B, C and D. Relevantly, Part B relates to pleading of facts followed by Part C in terms of pleading of the grounds and Part D is the prayer for relief. Therefore the petition should be construed in that manner as prescribed. Hence it is submitted by counsel that the facts constituting the grounds are sufficiently pleaded in Part B of the petition.

Law on Objection to Competency of Petition.

14. I now turn to consider the applicable law.

15. The law is settled. It is the question of how the Court is to apply the legal principles to the facts of the case.

16. The Organic Law states that a petition challenging the result of an election must plead the facts relied upon to invalidate the election. If the facts are not pleaded the petition will be deemed incompetent. This is the requirement of s. 208(a) of the Organic Law. The other requirements include s. 209 of the Organic Law. These are mandatory prerequisites to a valid and competent petition. Section 209 directs that a deposit as security for costs must be made at the time of the filing of the petition. Section 208 of the Organic Law states:

“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).” (Emphasis added)

17. The Courts have held that for the purposes s. 208(a) of the Organic Law, the petition must set out the facts supporting the ground. Simply pleading the ground without the supporting facts or conversely pleading the facts without the ground is insufficient and will render the petition invalid or incompetent. The Supreme Court made this point very clearly in Holloway v. Ivarato [1988] PNGLR 99. The Supreme Court...