In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a disputed return for the Tewae-Siassi Open Electorate in the 2017 General Elections; Mao Zeming v Dr Kobby Bomareo and the Electoral Commission of Papua New Guinea (2019) N8216

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 26 November 2019
• Court: National Court
• Citation: (2019) N8216
• Docket Number: EP No 80 of 2017
• Year: 2019
• Judgement Number: N8216

Full Title: EP No 80 of 2017; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a disputed return for the Tewae-Siassi Open Electorate in the 2017 General Elections; Mao Zeming v Dr Kobby Bomareo and the Electoral Commission of Papua New Guinea (2019) N8216

National Court: David, J

Judgment Delivered: 26 November 2019

N8216

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 80 OF 2017

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

AND

IN THE MATTER OF A DISPUTED RETURN FOR THE TEWAE-SIASSI OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS

BETWEEN:

MAO ZEMING

Petitioner

AND:

DR KOBBY BOMAREO

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: David, J

2019: 19th & 26th November

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objections to competency of petition – five grounds raised in petition – two grounds abandoned at the hearing of objections to competency of petition - remaining grounds pursued, two on undue influence and one on bribery – objections allege failure to plead material facts relied to invalidate election or return, and want of attestation of petition by two witnesses whose occupations and addresses are stated - all remaining grounds of petition struck out – Organic Law on National and Local-level Government Elections, Sections 206, 208, 209, 210 and 217 - Election Petition Rules, Rules 12 and 16 - Criminal Code, Sections 102 and 103.

Cases Cited:

Mapun Papol v Antony Temo (1981) PNGLR 178
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Ludger Mond v Jeffery Nape (2003) N2318
Ginson Saonu v Bob Dadae (2004) SC763
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Steven Pirika Kamma v John Itanu (2007) N3246
Powes Parkop v Wari Vele (No 1) (2007) N3320
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Peter Charles Yama v Anton Yagama (2012) N4928

Norbert Kubak v Andrew Trawen (2012) N4992
Paru Aihi v Peter Isoaimo (2013) SC1276

Luther Wenge v Kelly Naru (No.1) (2013) N5003

Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213

Talita v Ipatas [2016] SC1603

Kirilyo v Tkatchenko (2017) N7008

Bire Kimisopa v Henry Ame (2018) N7080

Simon Bintangor Sia v Peter Numu (2018) N7106

Edward Baafe v Peter Sapia (2018) N7123

Simon Takep Kaiwi v William Tongamp (2018) N7435

Legislation cited:

Organic Law on National and Local-level Government Elections
Election Petition Rules 2017

Criminal Code

Counsel:

Dakan E Doiwa, for the Petitioner
Brendan Lai, for the First Respondent
Lance Okil, for the Second Respondent

RULING ON OBJECTIONS TO COMPETENCY OF PETITION

26th November, 2019

1. DAVID, J: INTRODUCTION: This is the ruling of the Court on the objections raised in relation to the competency of the original petition filed in these proceedings on 29 August 2017. The original petition was resurrected after the Court upheld the respondents’ objections to the competency of a fresh petition filed by the petitioner and back- dated to 29 August 2017 (the date when the original petition was rejected by the National Court in Lae for being filed out of time) following the decision of the Supreme Court holding that the original petition was filed within time.

BRIEF BACKGROUND

2. The background facts of the challenge mounted by this election petition are not disputed. I reaffirm that following the issue of writs on 21 April 2017 for the conduct of the 2017 National General Elections for the 10th National Parliament including the writ for the Tewae-Siasi Open Electorate in the Morobe Province (hereafter "the Electorate"), the Petitioner, Mao Zeming (hereafter "the Petitioner") and the First Respondent, Dr Kobby Bomareo (hereafter “the First Respondent”) were amongst 37 candidates who contested the seat for the Electorate. Polling for the Electorate was conducted from 24 June 2017 to 8 July 2017. The First Respondent polled 8,236 votes after elimination 35 when the Petitioner was eliminated and was declared the successful candidate for the Electorate. He was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament. The Petitioner polled 5,317 votes and was the second runner up to the First Respondent.

3. Aggrieved by the outcome, the Petitioner has disputed the validity of the election or return of the First Respondent as the successful candidate for the Electorate by filing a petition on 29 August 2017 addressed to the National Court pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law on National Elections). The petition was filed in the National Court at Lae. In the petition, the Petitioner raises issues of illegal practices involving undue influence and bribery to vitiate the election or return.

GROUNDS OF PETITION

4. Five grounds were pleaded in the petition; the first was for voting when not registered and entitled to vote; the second and third are instances of undue influence; and the fifth an instance of bribery. The first and fifth grounds were abandoned by the Petitioner at the hearing.

5. With regard to illegal practices involving undue influence, the two instances relied on by the Petitioner are these.

6. The first instance of undue influence allegedly committed by the first respondent is pleaded as the second ground and is in the following terms:

a) Candidate or Member-elect for Tewi Siassi (Box 29) Dr Kobby Bomareo with his wife were sitting on the chair outside the main entrance of the market place where polling was held just 10 meters from the Candidate and his Wife sat.

b) The voters when vesting their votes, say Dr Kobby Bomareo being present throughout the whole period of the voting.

c) An old man MARLON LOTTO was assisted by candidate Dr Kobby Bomareo by writing his own box number and giving it to him. The old man realised that the BOX NO:29 was not supposed to be his first choice so he came to see my scrutineers and asked them to assist him with his first choice candidate BOX 39 – Mao Zeming, then my scrutineers say the piece of paper that was written by Dr Kobby Bomareo. (sic)

7. The second instance of undue influence allegedly committed by the first respondent is pleaded as the third ground and is in the following terms:

a) On 29 June 2017, polling commenced at Wasu Station, however due to the fact that the regular marketeers arrived late and the polling started at 1:00 pm. When the polling started the scrutineers namely; Daniel Sarong and Mr Lope complained to the polling officials to call out the names of the voters as we could see that there are new individuals waiting in que to vote.

b) When the polling was stopped to rectify the situation, a supporter of the first respondent, Mr Agaya Boko shouted obscenities at us and told voters that this was time for the people to vote for their Wasu leader, Dr Kobby Bomareo.

c) When the polling eventually restarted with the polling officials calling the names of the voters, one of the candidates, one Sarry Kuso. Arrived at the polling booth and went into cast his vote. When he came out, he sarcastically remarked that as a candidate he couldn’t remain at the polling venue as it would be regarded as inducement.

d) The candidate Mr Sarry Kuso was referring to the First Respondent and his wife who had brought their chairs and were sitting beside the polling area. The people also noticed that there were no regular policemen and security forces available. (sic)

8. With regard to illegal practices involving bribery, the instance relied on by the Petitioner is pleaded as follows:

a) Dr Kobby Bomareo and his wife bought betel nut and cigarette giving it to people within the polling area during the period at all polling booths.

b) An old man MARLON LOTTO was assisted by candidate Dr Kobby Bomareo by writing his own box number and giving it to him. The old man realised that the BOX NO>29 was not supposed to be his first choice so he came to see my scrutineers and asked them to assist him with his first choice candidate BOX 39 – Mao Zeming, then my scrutineers say the piece of paper that was written by Dr Kobby Bomareo.

c) On Friday, 30 July 2017, the polling started again at Wasu and the candidate Dr. Kobby Bomareo was seen again carrying his chair and sat at the same location 10 metres where the polling was held until the polling period ended. (sic)

RELIEF SOUGHT IN PETITION

9. The Petitioner seeks, among others, the following relief:

1. A declaration pursuant to Section 212(1)(f) and (4) and Section 215(1) of the Organic Law on National Elections that the return of the first respondent as the member for Tewai Siassi Open Electorate in 2017 National General Election is absolutely null and void.

2. A declaration pursuant to Section 212(1)(f) and (4) and Section 215(1) of the Organic Law on National Elections that the National General Election for the Tewai Siassi Open Electorate is null and void.

3. An order that a by-election for the Tewai Siassi Open Electorate be held forthwith.

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