In the matter of the Organic Law on National and Local Level Government Elections and in the matter of disputed returns for the Kainantu Open Electorate; William Hagahuno v Johnson Tuke and the Electoral Commission of Papua New Guinea (2019) N8148

• Jurisdiction: Papua New Guinea
• Judge: Numapo AJ
• Judgment Date: 10 December 2019
• Court: National Court
• Citation: (2019) N8148
• Docket Number: EP No 52 of 2017
• Year: 2019
• Judgement Number: N8148

Full Title: EP No 52 of 2017; In the matter of the Organic Law on National and Local Level Government Elections and in the matter of disputed returns for the Kainantu Open Electorate; William Hagahuno v Johnson Tuke and the Electoral Commission of Papua New Guinea (2019) N8148

National Court: Numapo AJ

Judgment Delivered: 10 December 2019

N8148

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 52 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL – LEVEL GOVERNMENT ELECTIONS

AND:

IN THE MATTER OF DISPUTED RETURNS FOR THE KAINANTU OPEN ELECTORATE

BETWEEN:

WILLIAM HAGAHUNO

Petitioner

AND:

JOHNSON TUKE

First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Numapo AJ

2019: 31st July & 10th December

ELECTION PETITIONS – PRACTICE & PROCEDURES - Objections to competency – Sufficiency of pleadings and sufficiency of particulars of an attesting witness s. 208 (a) (d) – Organic Law on National & Local Level Government Elections - Material facts must be pleaded and demonstrated through the pleadings - Petitioner must plead all the necessary facts and constituent elements of the offence of bribery under s. 103 Criminal Code to invalidate the election - Whether the two remaining grounds of objections have been dealt with and therefore, is res judicata – Whether the Court is functus officio - Dismissal of petition on the basis of non-compliance of mandatory requirements of s.208 Organic Law.

Held:

(i) The application by the Petitioner to have the two remaining grounds of objections to competency dismissed on the basis that the Court is functus officio is misconceived and based on a faulty understanding of the doctrine of functus officio and its application.

(ii) The general description of the second attesting witness’ occupation stated as “self-employed” without stating his “occupation” does not meet the requirements of section 208(d) of the Organic Law.

(iii) The ground of petition on the alleged breach of section 87(1) (c) of the Organic Law cannot be sustained in law because the pleadings clearly show that the nomination fee was actually paid prior to the First Respondent’s nomination. Hence, there has been a substantial compliance of the said provision. The complaint in respect of the verification of the payment is therefore, without merit.

(iv) With respect to the seven (7) grounds of bribery, the allegations as pleaded falls short of meeting the strict requirements of section 208(a) of the Organic Law. The relevant facts or constituent elements of the offence of bribery under section 103 of the Criminal Code have not been pleaded. As such, each of the grounds of bribery allegation cannot stand.

(v) It is incumbent on the Petitioner to plead all the necessary facts and constituent elements of the offences relied upon to invalidate the election of the First Respondent through the pleadings. The petition is bad. The pleadings are confusing, ambiguous and too general and lacking clarity and particularity, in the material aspects of the petition grounds.

(vi) The material facts must be pleaded and demonstrated through the pleadings, so as to form the foundation for evidence to prove that the First Respondent had unlawful intent or guilty mind, to sustain the allegations pleaded in the petition.

(vii) The fundamental facts constituting the element of the offence of bribery is missing in each of the seven (7) grounds of the petition. The petition in its entirety is incompetent and I dismiss it accordingly, with costs to the Respondents.

Cases Cited:

SCR (EP) No. 34 of 2018 Hagahuno v J Tuke & Electoral Commission of PNG.

South Seas Tuna Corporation v Palaso [2019] SC1761

Titi Christian v Rabbie Namaliu (1996) SC1583

Telikom (PNG) Ltd v ICCC (2008) SC906

Delba Biri v. Bill Ninkama [1982] PNGLR 342

Mathias Ijape v. Bire Kimisopa, N2344

Sir Arnold Amet v. Peter Yama (2010) SC 1064

Holloway v Ivarato and Electoral Commission [1988] PGSC 16; [1988-89] PNGLR 99

Agonia v Karo (1992) PNGLR 463

Vagi Mae v Jack Genia (1992) N1105

Olmi v Kuman (2003) N2310

Joel Paua v Robert Nagle (1992) PNGLR 563

Francis Koimanrea v Alois Sumunda (2003) N2421

Kapaol v Embel (2008) N3318

Manase v Polye (2009) N3718

Jimson Sauk v Don Pomb Polye (2004) SC769

Ginson Saonu v Bob Dadae (2004) SC763

Benias Epe Peri v. Nane Petrus Thomas and Acting Electoral Commissioner (EP No. 73) of 2003

Kamma v Itanu (2007) N3246

Tulapi v Lagea (2013) N5235

Sali Beseoh v Yuntuvi Bao & Electoral Commission [2003] PGNC 145; N2348

Wesley v Leonard (2018) N7148

Albert Karo v. Lady Carol Kidu [1977] PNGLR 28

Paru Aihi v Sir Moi Avei (2003) SC720

Sali Subam v Aide Ganasi (2012) N5068

Apaso Oibotee v Benny Allen (2013) N5155

Tony Puana v Joseph Lelang (Unreported judgment dated 30/01/13)

Bryan Kramer v Nixon Duban (2013) N5231

Peter Waieng v Tobias Kulang (Unreported judgment 08/03/13)

Puaria v Lera (2013) N5148

Kubak v Trawen (2012) N4992.

Ben Micah v Ian Ling- Stuckey (1998) N1791

Powes Parkop v Wari Vele (2007) N3322

Raymond Agonia v Albert Karo [1992] PNGLR 463

Peter Isoaimo v Paru Aihi (2012) N4921

Jim Nomane v Wera Mori (2013) SC1242

Ken Fairweather v Jerry Singirok (2013) SC 1293

Aide Ganasi v Sali Subam (2013) SC127

Gabriel Kapris v John Simon (2013) N5001

Philip Kikala v Electoral Commission (2013) SC1295

Sheldon Deilala v Richard Masere (2018) N7096

Counsel:

A Baniyamai, for the Petitioner

P Mawa, for the First Respondent

J Simbala, for the Second Respondent

10th December, 2019

1. NUMAPO AJ: BACKGROUND: The petition is brought pursuant to Section 206 of the Organic Law on the National and Local Level Government Elections (“Organic Law”) by the Petitioner who was a candidate in the 2017 National elections for the Kainantu Open Seat in the Eastern Highlands Province.

2. The First Respondent Honourable Johnson Tuke was declared on the 26th July 2017 as the Member Elect for the Kainantu Open Electorate (“Electorate”).

3. The Petitioner and the First Respondent were both candidates for the Electorate in the 2017 National General Elections (“Elections”) wherein the First Respondent polled 12, 921 votes defeating the Petitioner who polled a total of 7, 615 votes. The difference of votes between the Petitioner and the First Respondent was 5,306 votes.

4. I am required to deal firstly with the First and Second Respondent’s objections to competency. If the objection is strike out, the matter proceeds to the hearing of the substantive petition. However, if the objections to competency is upheld than the matter ends there. I wish to place on record my appreciation to Counsels for their invaluable assistance in providing me the full background of the case itself and also the relevant laws and case laws in their respective submissions.

5. The petition was filed on the 4th September 2017 and the hearing of the petition commenced on the 4th June 2018 before Murray J at the Lae National Court with the hearing of all the grounds of the Respondents’ objections. At the initial hearing, both the First and Second Respondents sought to dismiss the petition on the basis on non-compliance of mandatory requirements of section 208 of the Organic Law.The First Respondent sought to dismiss the petition on the ground of non-compliance with section 208 (a), (d) and (e) whilst the Second Respondent sought to dismiss the petition on the basis of non-compliance with section 208 (a) and (d). The Petitioner abandoned the third ground of “undue influence” at the hearing of the objections.

6. On the 22nd June 2018 her Honour Murray J delivered her decision on the objections wherein she upheld the First Respondent’s objection to competency of the petition pursuant to section 208 (e) of the Organic Law.Her Honour considered that the objection under section 208 (e) raised a “threshold issue” which has to be determined first. The consideration of other objections (sufficiency of pleadings & sufficiency of particulars of attesting witness – s. 208 (a) & (d)) can only be determined if the petition was filed within 40 days’ time limit required by s. 208 (e) of the Organic Law.

7. Her Honour said at paragraph 19 of her judgment that; “.…if I uphold the objection under section 208 (e) then, that would be the end of the matter as it will serve no purpose to consider the other objections, if the petition has not been filed within time.”

8. Accordingly, her Honour calculated the 40 days’ time limit prescribed by section 208 (e) of the Organic Law to have effectively commenced on the 26th July 2017 (date of declaration) and ended on the 3rd September 2017.

9. Consequently, the petition filed on the 4th September 2017 was found to be filed one (1) day out of time contrary to section 208 (e) of the Organic Law, thus; incompetent and therefore, could not be heard pursuant to section 210 of the Organic Law.Having found so, her Honour considered it unnecessary to consider the other grounds of objections under section 208 (a) & (d) of the Organic Law.

10. Aggrieved by the decision, the Petitioner sought review...