In the matter of the Organic Law on National and Local-Level Government Elections for Karamui-Nomane Open Electorate; Michael Korry v Mogerema Sigo Wei and Electoral Commission of Papua New Guinea (2012) N4878

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Ipang AJ
• Judgment Date: 05 November 2012
• Citation: (2012) N4878
• Judgment Number: N4878
• Year: 2012
• Docket Number: EP NO. 05 of 2012

Full Title: EP NO. 05 of 2012; In the matter of the Organic Law on National and Local-Level Government Elections for Karamui-Nomane Open Electorate; Michael Korry v Mogerema Sigo Wei and Electoral Commission of Papua New Guinea (2012) N4878

National Court: Ipang AJ

Judgment Delivered: 5 November 2012

N4878

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 05 OF 2012

In the Matter of the Organic Law on National and Local-Level Government Elections for Karamui-Nomane Open Electorate

BETWEEN

MICHAEL KORRY

Petitioner

AND

MOGEREMA SIGO WEI

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Goroka: Ipang AJ

2012: 05 November

NATIONAL ELECTIONS – ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS – Claim by the First Respondent that the Petitioner was not an elector or voter on the Common Roll for the Electorate and thus was not qualified to contest National Election and in so doing does not have the locus standi to bring and prosecute the Election Petition – s. 103 (3) (a) of the Constitution and s. 87 (1) (a) of the Organic Law on National and Local-Level Government Elections (OLNLGE).

Brief Facts

The Petitioner Michael Korry is the runner up to the First Respondent Mogerema Sigo Wei in the 2012 National Election for Karamui-Nomane Open Seat with a difference of 77 votes. The Petitioner filed his Petition seeking to void the return of the First Respondent on three (3) grounds; (i) Wrongful conduct of polling at Dawa Polling Booth, (ii) Wrongful conduct of counting at Dickson Field, and (iii) Wrongful presence of First Respondent in the Counting Room. First Respondent files this application to have the Petition dismissed on the basis that the Petitioner was not a registered voter or an elector and therefore lacks capacity, locus standi (standing) and qualification to be a candidate for the National Election and to bring and prosecute this Election Petition.

Held:

1. The Petitioner Michael Korry is not a registered voter or an elector in Dawa village (or Dawa Rest House) Gaima Ward 23 and not even in Sima Waima Ward 2 Sua Began village, Salt LLG, Karamui-Nomane.

2. Petitioner has no locus standi (standing) to bring and prosecute his Election Petition. Election Petition is dismissed with costs to be borne by the Petitioner for the First Respondents. Costs to be agreed, if not to be taxed.

Cases Cited

Tony Waterupu Aimo v Ezekiel Anisi & Electoral Commission of Papua New Guinea (2012) N4870

Jimson Sauk Papaki v Don Pomb Pullie Polye & Electoral Commission of Papua New Guinea (1999) SC 644

Daniel Kapi v Takai Kapi (1997) SC 548

Jim Nomane v David Anggo (2003) N2354

Counsel:

Mr.T. Yamarhai, for the Plaintiff

Mr. Ralph Diweni, for the First Respondent

Ms. Christine Lari, for the Second R

RULING

05 November, 2012

1. IPANG AJ: The First Respondent Mogerema Sigo Wei by way of Notice of Motion filed on the 15th October, 2012 seeks the following Orders:

1. That the Petitioner was not qualified to contest the

Karamui-Nomane Open Electorate Seat during the 2012 National Election and consequently the Petitioner does not have the locus standi to bring and to continue to prosecute his Petition pursuant to section103(3) (a) of the Constitution and section 87 (1) (a) of Organic Law on National and Local-Level Government Elections.

2. That this Court has no jurisdiction to continue to

entertain this petition on the basis that the Petitioner is not a qualified person under section 103 (3) (a) of the Constitution and section 87 (1) (a) of Organic Law on National and Local-Level Government Elections. (OLNLGE) (Organic Law), to invoke the jurisdiction of this Court under Part XVIII of the Organic Law.

3. Alternatively, pursuant to section 212 (1) and (3) of the

Organic Law on National and Local-Level Government Elections and Rule 17 of the National Court Election Petition Rules for the Presentation and Conduct of Election Petitions 2001 (as Amended), an Order granting leave to the First Respondent to file a fresh Notice to Objection to Competency within 7 days.

4. Costs of this application to be paid by the Petitioner

5. The time for entry of these orders be abridged to the time

of settlement of the same by the Registrar, which shall take place forthwith.

6. Any other orders this Honourable Court deems fit

2. As it can be seen above, the third relief sought in the motion was omitted after Mr. R. Diweni of Counsel for the First Respondent specifically requested that this relief be omitted as the First Respondent will not be pursuing that relief. I heard the submission from the Counsels till 11.00am and adjourned to 2.30pm where I delivered my ruling to the packed Court Room full of supporters of both the Petitioner and the First Respondent.

SECTION 103 OF THE CONSTITUTION

3. The Section 103 (3) (a) of the Constitution states:

“103. Qualifications for and disqualifications from membership

(3) A person is not qualified to be, or to remain, a member of the Parliament if-

(a) he is not entitled to vote in elections to the Parliament.

SECTION 87 OF ORGANIC LAW ON NATIONAL & LOCAL-LEVEL GOVERNMENT (OLNGE)

4. The Section 87 (1) (a) of the Organic Law On National and Local-Level Government Elections (OLNLGE) states;

“87. REQUISITES FOR NOMINATION

(1) No nomination is valid unless-

(a) The person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member.

OBJECTIONS TO COMPETENCY OF THE PETITIONER & THE PETITION

5. Generally, when an issue is raised on the competency of the Petitioner and the Petition it goes into the validity or regularity of the process involved. Thus, it is a preliminary issue and is a question of law, usually either statutory or constitutional. It does not concern the merits or otherwise of the substantive grounds relied for the process in question, for the purpose of this trial, an Election Petition, nor does it concern the sufficiency of the facts relied on. These are no doubt, obvious matters for the hearing at trial proper of a petition, in particular the grounds relied on to void the election return. This will materialize only when the petitioner overcomes the preliminary hurdle of competency or capacity to bring this petition. This is the current stage where this current petition is at.

6. In moving this motion, the First Respondent relies on the Affidavit of Ralph Diveni sworn and filed on the 15th October, 2012, the Supplementary Affidavit of Ralph Diveni sworn on the 25th October, 2012 and filed on the 26th October, 2012 and the submission which was tendered in Court.

FIRST RESPONDENT’S SUBMISSION

7. First Respondent argued that the Petitioner was not a registered voter and therefore lacks capacity, standing and qualification to be a candidate for election to Parliament and to bring this Petition.

8. Based on Petition’s request the Court on the 10th October, 2012 issued direction for the Common Roll for Gaima Ward 23 to be filed in Court. When the Gaima Ward 23 Roll was filed, it prompted the First Respondent to file the current motion on the 15th October, 2012. Mr. R. Diweni deposed that the Common Roll for Gaima Ward 23 showed that the Petitioner was not a registered voter in Gaima Ward 23.

9. In response to the motion filed by the First Respondent, the Petitioner filed an Affidavit dated 15th October, 2012. In paragraph 3 of the said Affidavit, the Petitioner said he is a registered voter from Karamui-Nomane. He said his name is listed in the Common Roll for Ward 2 Suabegel Village which is part of Salt Local Level Government in the Karamui-Nomane Electorate. First Respondent Counsel said this is contrary to his claim in the Petition that he is from Dawa village.

10. On the 26th October, 2012 Mr. R. Diweni filed an additional or Supplementary Affidavit attaching copy of the completed Nomination Form by the Petitioner. In the Nomination Form, the Petitioner stated his name as “Michael Korry, Self Employed Born 1977 of Sawaia village”

11. In response to the Affidavit filed by First Respondent’s Counsel, the Petitioner further emphasized that he is the same person as “Moriyango Michael Korry”, the name which he used in the previous elections, including contesting 2002 Election. He stated again that he is registered under Ward 2, Suabegel village.

12. Ms. C. Lari of Counsel for the Second Respondent made last minute submission to serve her Affidavit sworn on...