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
• Judge: Kandakasi J
• Judgment Date: 06 March 2003
• Court: National Court
• Citation: (2003) N2344
• Docket Number: EP No 4 of 2002 NCD
• Year: 2003
• Judgement Number: N2344

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) N1791, 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, SCR 4 of 2002; Special Reference Pursuant to Constitution S19; Reference by Francis Damem, Attorney–General for The Independent State of Papua New Guinea (2002) SC689, Application by Daniel Don Kapi (2002) N2259 and Daniel Tulapi v Charles Luta (2000) SC653 referred to

___________________________

N2344

PAPUA NEW GUINEA

[In the National Court of Justice]

EP. NO. 4 OF 2002 N.C.D.

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

Between:

MATHIAS IJAPE

- Petitioner –

And:

BIRE KIMISOPA

- First Respondent -

And:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

- Second Respondent -

GOROKA: KANDAKASI, J.

2003: 3rd, 4th & 6th March.

ELECTION – Parliamentary – Petition – Practice and procedure – A petition must be addressed to the National Court – Only the National Court is empowered inappropriate 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 with any jurisdiction to hear it – s. 206 of the Organic Law on National and Local –level Government Elections.

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 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 Provincial and Local-level Government Elections ss.208(a), 210 & 215(3).

Cases Cited:

Mune v. Agiru & Ors (unreported judgement delivered 17/02/98) SC590.

Ben Micah v Ian Ling-Stuckey and Electoral Commission (unreported judgement delivered 10/09/98) N1791.

Ludger Mond v. Jeffery Nape & Electoral Commission (unreported judgement delivered 14/01/03) N2318.

Delba Biri v. Bill Ninkama [1982] PNGLR 342.

Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463.

Herowa Agiwa v. The Electoral Commission and Ben Peri (unreported judgement delivered on 18/02/03) O.S. 29 of 2003.

The State v. Zachary Gelu & Monoburn (unreported judgement delivered 13/12/02) N2322.

Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.

Bank South Pacific Limited v. The Public Curator & Ors (unreported judgement delivered 20/01/03), N2320.

Holloway v. Ivarato [1988] PNGLR 88.

Torato v. Electoral Commission [1988-89] PNGLR 83.

Joel Paua v. Nagle [1992] PNGLR 563.

Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28.

Greg Mongi v. Bernard Vogae & Anor (unreported judgement) N1635.

Ludger Mond v. Jeffery Nape and Electoral Commission (unreported judgement delivered 14/01/03) N2318.

Fr. Louise Ambane v. Thomas Tuman (unreported judgement) SC559.

Daniel Tulapi v Charles Luta, David Basua and The Electoral Commission of PNG unreported judgement delivered 10/10/02) SC653.

Counsels:

Petitoner In Person.

Mr. A. Manase for the First Respondent.

Mr. T. Sirae for the Second Respondent.

6th March 2003.

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 s. 210 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 judgement.

Preliminaries

At the outset of the commencement of the hearing of this matter, Mr. Ijape informed the Court that his lawyer, Mr. G. Shepherd 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. Injape’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. Shepherd.

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 s. 206 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 ss.208 (a) and 215, 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 s. 206 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 s. 208 (a) of the Organic Law, if his petition is read as a whole. In so arguing he concedes that, if the various...