In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Laigap-Porgera Open Electorate; Philip Kikala v Electoral Commission of Papua New Guinea and Nixon Koeka Mangape (2013) N4960

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 18 January 2013
• Court: National Court
• Citation: (2013) N4960
• Docket Number: EP NO 18 OF 2012
• Year: 2013
• Judgement Number: N4960

Full Title: EP NO 18 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Laigap-Porgera Open Electorate; Philip Kikala v Electoral Commission of Papua New Guinea and Nixon Koeka Mangape (2013) N4960

National Court: Makail, J

Judgment Delivered: 18 January 2013

N4960

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 18 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE LAIGAP-PORGERA OPEN ELECTORATE

BETWEEN

PHILIP KIKALA

Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

NIXON KOEKA MANGAPE

Second Respondent

Wabag: Makail, J

2013: 07th, 08th & 18th January

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficiency of pleadings – Allegations of bribery – Allegations of illegal practices during polling – Allegations of errors and omissions – Pleading of relevant or material facts – Alternative pleadings – Whether permissible – Permissible if not contradictory or confusing – Organic Law on National and Local-level Government Elections – Sections 208(a), 210, 215, 217 & 218 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Attestation of petition – Meaning of attest – Purpose of – Failure of – Petition incompetent – Organic Law on National and Local-level Government Elections – Sections 208(d) & 210 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718

Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727

James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899

Jeffrey Turia -v- Gabriel Nelson (2008) SC949

Iambakey Okuk -v- John Nilkare [1983] PNGLR 28

In Re Moresby North East Election Petition (No 2), Patterson Lowa -v- Goasa Damena [1977] PNGLR 448

Kevin Masive -v- Iambakey Okuk & Johannes Kenderop [1985] PNGLR 263

David Lambu -v- Peter Ipatas (1997) N1701

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

Jimson Sauk -v- Don Pomb Polye (2004) SC769

Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763

Barry Holloway -v- Aita Iwarato & Electoral Commission [1988] PNGLR 99

Sir Arnold Amet -v- Peter Charles Yama & Electoral Commission (2010) SC1064

In the matter of Re Lufa Open Electorate; Komane Asano Wasaenge -v- Mathias Karani & Electoral Commission (1997) N1617

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

Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th December 2012)

Albert Karo -v- Lady Carol Kidu [1997] PNGLR 28

Charles Luta Miru -v- David Basua (1997) N1628

Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385

Re Ben Semri (2003) SC723

Paias Wingti -v- Rawali & Electoral Commission (2008) N3285

Ben Micah -v- Ian Ling-Stuckey & Electoral Commission (1998) N1791

John Wemin Mili -v- Simon Philip Gaima [1997] PNGLR 645

Dick Mune -v- Anderson Agiru(1998) SC590

Ludger Mond -v- Jeffrey Nape (2003) N2318

Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635

Alfred Manase -v- Don Pomb Polye and the Electoral Commission (2008) N3534

Francis Koimanrea -v- Electoral Commission & Paul Tiensten (2003) N2421

Text & References

Oxford Advanced Learner’s Dictionary, 7th ed, 2007, Oxford University Press, London

Counsel:

Mr J Kennedy, for Petitioner

Mr H Viogo, for First Respondent

Mr P Mawa, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

18th January, 2013

1. MAKAIL J: I have delayed the ruling on two objections to competency filed by the respondents because parties have raised numerous compelling arguments which needed proper consideration. Counsel for each party prepared detailed written submissions and spoke to them at length during the hearing. The written submissions and oral arguments have greatly assisted me in my deliberation and I thank each counsel for his assistance. The objections challenge the competency of the petition by the petitioner who is disputing the election of the second respondent as member-elect for Laigap-Porgera Open Electorate following the 2012 General Election.

Background

2. The second respondent Honourable Nixon Koeka Mangape was declared member-elect on 27th July 2012 after he polled a total of 35,804 votes defeating the petitioner who polled a total of 30,648 votes. On 14th August 2012, the petitioner filed this petition. The petition raises five main grounds:

2.1. Ground 8.1- The second respondent was not a duly registered voter

and therefore not qualified to nominate and be elected as a member of Parliament.

2.2. Ground 8.2 - The second respondent was occupying a public office

as chairman of Porgera Development Authority (“PDA”) and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament.

2.3. Ground 8.3 - Bribery.

2.4. Ground 8.4 - Illegal practices during polling.

2.5. Ground 8.5 - Errors and omissions on the part of the first

respondent.

3. The respondents bring the objections to competency pursuant to section 210 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”) and Rule 15 of the National Court Election Petitions Rules, 2002 (as amended) (“EP Rules”).

Grounds of Objection

4. The grounds of the objections can be summarised into four main grounds:

4.1. Name of second respondent on common roll.

4.2. Holding of public office without resigning.

4.3. Insufficient facts, lack of clarity and alternative pleadings of the petition.

4.4. Attestation of petition by witnesses.

5. The respondents raise specific objections in relation to the allegations of bribery, illegal practices, errors and omissions and submit that the facts are inadequate, lack clarity and contradictory. In general, they object and submit that the allegations of fact raising all the grounds are also pleaded in the alterative and alternative pleadings are not permitted in election petition cases. I propose to deal with each ground of objection by starting with the general ground of objection first. This is the ground on alternative pleadings.

Alternative pleadings

6. The ground on alternative pleadings is a general one as it applies to all of the grounds of the petition. The respondents object to the petition because the petitioner has pleaded each ground of the petition in the alternative. For example, in the first ground of the petition, he alleges that the second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament. In the alternative, he alleges that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. In the further alternative, he alleges bribery. In the further alternative, he alleges illegal practices during polling and in the final alternative, errors and omissions against the first respondent.

7. Relying on the cases of Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718, Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727 and recently James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899, the respondents submit that alternative pleadings are not permitted. The reason being, they confuse the respondents in the defence of the petition. Thus, it is incumbent on the petitioner to elect which ground of the petition he intends to pursue against the respondents. He cannot have it both ways. As he has drafted and presented his grounds of the petition in the alternative, they are incompetent and must be struck out in their entirety.

8. The petitioner submits that this ground of objection was not pleaded in the notices of objection to competency. Thus, he was not given notice that the respondents would be objecting to the petition on this ground, hence has been prejudiced. In the alternative, he submits that while the starting sentence of each ground begins with the words “Further to or in the alternative”, they are not contradictory or confusing. Each ground of the petition is plain and clear and if read on its own or with the other grounds, it is reasonable to expect that the respondents will know what to meet at trial.

9. While I accept that the respondents did not put the petitioner on notice that they would be objecting on this ground, I note at the hearing, his counsel ably made submissions on this ground. Thus, I am not satisfied that the petitioner has been prejudiced by the late notice and I will consider this ground. Without descending into a consideration on whether the facts supporting each ground of the petition are sufficient but simply taking each ground on face value, this ground can be disposed off fairly quickly.

10. The three cases relied...