EP No. 60 of 2012; Bryan Kramer v Nixon Philip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.2) (2013) N5213

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 18 March 2013
• Court: National Court
• Citation: (2013) N5213
• Year: 2013
• Judgement Number: N5213

Full Title: EP No. 60 of 2012; Bryan Kramer v Nixon Philip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.2) (2013) N5213

National Court: Gavara-Nanu J

Judgment Delivered: 18 March 2013

N5213

PAPUA NEW GUINEA

[In the National Court of Justice]

EP No. 60 of 2012

Between

BRYAN KRAMER

Petitioner

And

NIXON PHILIP DUBAN

First Respondent

And

ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea (No.2)

Second Respondent

MADANG: Gavara-Nanu J.

2013: 14 ,15 & 18 March

PRACTICE AND PROCEDURE - Election petition - Objection to competency - Pleadings in an election petition - Organic Law on National and Local Level Government Elections - Requirements of ss. 208 (a), 217 and 222 discussed - Duty on the Courts to have regard to requirements of s. 217.

PRACTICE AND PROCEDURE - Election petition - Objection to competency - Organic Law on National and Local Level Government Elections - Requirements of s. 208 (d) - Attestation of the election petition - Attesting witness giving his occupation as “self employed” - Whether “self employed” falls within the definition of “occupation” which is a requirement of s. 208 (d).

PRACTICE AND PROCEDURE – Election petition - Objection to competency - Organic Law on National and Local Level Government Elections; s.3(1) - Definition of a “candidate” - National elections - Question of when the winning candidate became a candidate discussed.

Cases cited

Anthony Michael Siaguru v. David Unagi and The Electoral Commissioner [1987] PNGLR 372

Delba Biri v. Bill Gimbogl Ninkama and Others [1982] PNGLR 342

Dick Mune v. Anderson Agiru (1998) SC590.

Ephram Apelis v. Sir Julius Chan (1998) SC573

Holloway v. Ivarato [1998] PNGLR 99

James Yoka Ekip & Simon Sangake v. Electoral Commission & William Duma

(2012) N4899

Jim Nomame v. David Anggo (No.1) (2003) N2496

Luke Alfred Manase v. Don Pomb Polye (2009) N3718

Mathias Karani v. Yawa Silupa (2004) N2517

Neville Bourne v. Manesseh Voeto [1977] PNGLR 298

Paru Aihi v. Sir Moi Avei (No.2)[2003] PGSC11; SC720

Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523

Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921

Peter Waieng v. Tobias Kulang and Electoral Commission EP No. 75 of 2012 (March, 5 & 8, 2012)

Robert Kopaol v. Philemon Embel (2003) SC727

Sinasina Yongomug Open Electorate N1123

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

Steven Pirika Kamma v. John Itanu and Ors (2007) N3246

Vagi Mae v. Jack Genia and Electoral Commission of Papua New Guinea (1992) N1105

Counsel

Y. Wadau for the petitioner

S. Jubi for the 1st respondent

J. Umbu for the 2nd respondent

1. GAVARA-NANU J: The respondents have each filed a Notice of Objection to Competency challenging the competency of the petition. The first respondent’s objection was filed on 26 September, 2012, and the second respondent’s objection was filed on 27 September, 2012. The objections were heard one after the other on 14 and 15 March, 2013, with the second respondent’s objection being heard first.

2. The objections specifically challenge the competency of paragraphs 5.2 to 5.5 of the petition which plead the grounds of the petition. No such challenges are mounted against paragraphs 1 to 5.1 which plead the introduction to the petition and the background facts.

3. Paragraphs 1 and 2 of the petition state that the petitioner and the first respondent were candidates for the Madang Open electorate in 2012, national elections. Paragraph 3 states that the second respondent by its servants and employees conducted the election for the Madang Open electorate in 2012 national elections. Paragraphs 4 (a) and (b) state that the petitioner and the first respondent are citizens living in Madang Province and state their respective places of residence. Paragraph 4 (c) states that the first respondent was declared as duly elected member for Madang Open electorate on 24 July, 2012, with 8,483 votes and the petitioner was the runner up polling 7, 939 votes thus a marginal difference of 544 votes. As I said, these claims are not challenged or disputed.

4. Paragraph 5 in the introduction pleads the grounds relied upon by the petitioner to invalidate the election of the first respondent as the Member for Madang Open electorate, namely, illegal practices, bribery, attempted bribery and undue influence. Paragraph 6 pleads the relief sought.

5. In paragraph 5.1 the petitioner alleges generally that in the period preceding and during the national elections in 2012, for Madang Open electorate, the first respondent committed or attempted to commit, directly or indirectly acts of bribery with the knowledge and intention to cause or create undue influence over the voters or electors to vote for him in the said national election, contrary to ss. 102, 103 and 106 of the Criminal Code, Act, Chapter No. 262 and s. 215 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE).

6. Paragraphs 5.2 to 5.5 plead particulars of bribery, attempted bribery and undue influence and names of the persons or the electors allegedly bribed, and or unduly influenced or who the first respondent attempted to bribe.

7. Mr. Joppo Umbu of counsel for the second respondent whose objection was heard first, in attacking the competency of paragraph 5.2 of the petition, argued that on 20 April, 2012, which is the date the first respondent is alleged in paragraph 5.2 to have committed bribery and undue influence under ss. 102 and 103 of the Criminal Code Act (Ch.262), the first respondent was not yet a “candidate” therefore he could not have committed those offences. Mr. Umbu argued that because 20 April, 2012, fell within the period before the day the writs for the 2012, national elections were issued which was 23 May, 2012, the first respondent was not yet a candidate for Madang Open electorate. Mr. Umbu submitted that because the first respondent was not a candidate on 20 April, 2012, paragraph 5.2 is misconceived. He argued that the facts pleaded in the paragraph cannot support and establish the grounds of the petition.

8. On this point, it is to be noted that the second respondent has also posed the following question in paragraph 4 of his objection:

“One of the important questions the Court must ask itself in the circumstances, among others, is how back in time should an alleged act of bribery happen, from the date the candidate’s nominations, (sic.), for it to be included in the calculations of the allegation of bribery for that election?” (my underlining).

9. In this paragraph, the second respondent effectively throws the question as to when the first respondent became a candidate for the Madang Open electorate in the 2012 national elections back to the Court. This shows that the second respondent has no firm and proper legal basis to challenge the competency of paragraph 5.2 of the petition. In any event, Mr. Umbu has not made any clear submission as to when he says the first respondent became a candidate.

10. The question nonetheless has in my view been answered by the petitioner, Mr. Bryan Kramer who appeared in person. In his written and oral submissions, Mr Kramer submitted that going by the definition given to the word “candidate” in s. 3 of the OLNLGE, the first respondent was a candidate for the Madang Open electorate on 20th April, 2012.

11. Section 3 of the OLNLGE is in these terms:

“candidate”, in Parts II and XVII, includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of the Parliament;

12. Mr. Kramer told the Court that given this definition of a ‘candidate’ the first thing to establish is the first day of polling for the Madang Open electorate which he said was 23 June, 2012, this was conceded by Mr. Umbu. Mr. Kramer submitted that having regard to this definition of a ‘candidate’; when three months period is calculated backwards from 23 June, 2012 as stipulated under s. 3 of OLNLGE, the period ends on 23 March, 2012, thus making 20 April, 2012, to fall within the three months before the first day of polling period, thus also making the first respondent to fall within the definition of a “candidate”. Mr Kramer told the Court that on 20 April, 2012, the first respondent during his speech at the youth camp held at Silopi Parish of the Lutheran Church also declared that he was a candidate for the Madang Open electorate.

13. Looking at the submission made by Mr. Umbu on this point and given the clear definition of a “candidate” in s. 3 of the OLNLGE, Mr. Umbu’s argument plainly lacks merit and is in my view misconceived. His submission did not address s. 3 of the OLNLGE at all which is pivotal and determinative.

14. Section 3 of the OLNLGE is very clear and specific. The definition of a “candidate” given in the section makes it very plain that 20 April, 2012, fell within the three months period before the first day of the polling period for the Madang Open electorate which as noted was 23rd June, 2012. I therefore accept Mr. Kramer’s submission that...