James Pini v Wesley Nukundi Nukunji

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 08 May 2018
• Citation: (2018) N7243
• Court: National Court
• Year: 2018
• Judgement Number: N7243

Full : In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of the Disputed Return for the Dei Open Electorate; James Pini v Wesley Nukundi Nukunji and Electoral Commission of Papua New Guinea (2018) N7243

National Court: Makail, J

Judgment Delivered: 8 May 2018

N7243

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 60 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURN FOR THE DEI OPEN ELECTORATE

BETWEEN

JAMES PINI

Petitioner

AND

WESLEY NUKUNDI NUKUNJI

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Mt. Hagen: Makail, J

2018: 7th & 8th May

ELECTION PETITION – Objection to competency of petition – Grounds of – Failure to plead facts in the petition – Allegations of errors or omissions at counting – Breach of procedure on objections by Returning Officer – Right to challenge validity of decision by Returning Officer to exclude ballot-boxes from scrutiny – Whether sufficient facts pleaded – Whether there are facts showing results was affected as a result of errors or omissions by electoral officials – Failure to state correct name of occupation of attesting witnesses – Incompetent attesting witnesses – Failure to file petition within forty days – Time limitation of 40 days – Computation of 40 days – Organic Law on National and Local-level Government Elections – Sections 153A, 208 (a), (d) & (e) & 218 – Election Regulation – Section 90

Cases cited:

Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155

Darius Kombe v. Robert Naguri & Electoral Commission: EP No 22 of 2017 (Unnumbered & Unreported Judgment of 15th November 2017 per Yagi J)

Dr. Bob Danaya v. Ati Wobiro (2013) SC1292

James Yoka Ekip and Simon Sanangke v. Gordon Wimb, Electoral Commission & William Duma (2012) N4899

Kelly Kuliyali Kalit v. John Pundari (1998) SC569

Kelly Kuliyali Kalit v. John Pundari (1998) N1712

Labi Amaiu v. John Kaupa (2017) N7004

Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2013) N5416

Pila Niningi v. Francis Awesa & Electoral Commission (2013) N5322

Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286

Philemon Embel v. Pesab Jeffery Komal & Electoral Commission (2015) N5947

Puaria v. Lera (2013) N5148

Robert Sandan Ganim v. Dr. Lino Tom Moses & Electoral Commission (2018) N7233

Sam Bob Auwi v. James Donald (2017) N7062

Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275

Herowa Agiwa [1993] PNGLR 136

Counsel:

Mr.C. Mende, for the Petitioner

Mr. P. Mawa, for the First Respondent

Mr. T. Topo, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY

8thMay, 2018

1. MAKAIL, J: This is an election petition for the Dei Open electorate of the Western Highlands Province. It has been set down for trial to commence on 7th May 2018 but a question as to its competence has been brought to the notice of the Court by the respondents in separate notices of objections to competency; one filed by the first respondent on 6th October 2017 and subsequently, amended and filed on 9th November 2017 and the other by the second respondent filed on 2nd November 2017.

Requisites of Petition

2. The question of competence must first be determine because it is trite law by virtue of Section 210 of the Organic Law on National and Local-level Government Elections (“Organic Law”) that proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

3. For the present purpose, Section 208 is pertinent and states:

“208. Requisites of petition.

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)”.

Grounds of Objections

4. The grounds of objections are:

4.1. Failure to plead facts contrary to Section 208(a) of the Organic Law.

4.2. Failure to state correct name of occupation of attesting witnesses contrary to Section 208(d) of the Organic Law.

4.3. Failure to file petition within 40 days of declaration of result contrary to Section 208(e) of the Organic Law.

Failure to plead facts

5. First, I deal with the ground on failure to plead facts. Before I do that, it is helpful to quote what the petitioner has pleaded in the petition that are relevant to better understand the challenge to its competency and I so do below:

4. The Returning Officer for the electorate was Mr Batamai Tipi. His two Assistant Returning Officers were:

1. Mr Raphael Koldop – Muglamp LLG

2. Mr Jamesson Nukundi – Kotna LLG

5. The first respondent is from the Kombulga tribe. Mr Tipi is also from the Kombulga tribe.

6. Mr Tipi is a community school teacher. The First Respondent was first elected as member for the electorate after the 2012 National General Election. Following the election of the First Respondent as member in 2012, Mr Tipi was appointed Assistant District Education Officer for Dei District. Between 2012 and 2017, Mr Tipi was the coordinator for the Tertiary Student Scholarships Program for Dei district initiated by the First Respondent.

7. Recently after the 2017 elections, Mr Tipi was appointed District Administrator for Dei district by the First Respondent.

8. Polling for Dei Open electorate was conducted on Friday, 7th July 2017. After polling was completed, all ballot boxes containing cast votes were transported from their respective polling places to Kitip Secondary School for storage. After all ballot boxes came in from the entire electorate, all the ballot boxes were then transported to Kimininga Police Barracks, Mt. Hagen for scrutiny of votes.

9. A total of 104 ballot boxes were returned after polling for counting.

10. Kiminiga Police Barracks in Mt. Hagen was counting venue for electorates in Western Highlands Province including Dei Open electorate.

11. The counting or scrutiny of votes for the electorate commences on Saturday, 15th July 2017 and ended on Thursday, 27th July 2017.

12. A total of 96 ballot boxes were counted. The Returning Officer rejected the following six ballot boxes from being counted.

Item	Polling Place/ Council Ward	Ballot Box Number	Total Votes
1	Kondopina 1 – Ward 23	EC012864	907
2	Kondopina 1 – Ward 23	EC012865	907
3	Kondopina 2 – Ward 24	EC012866	643
4	Kondopina 2 – Ward 24	EC012867	644
5	Ruti – Ward 17	EC012890	908
6	Ruti – Ward 17	EC012891	907

13. These six ballot boxes are from the Petitioner’s base vote areas. They contain 4,916 votes. Ruti Ward 17 and Kondopina 1 &2, wards 23 and 24 are in the Kotna LLG.

14. The Petitioner requested the Returning Officer on numerous occasions to count these 6 ballot boxes as there was nothing wrong with them but he refused to count them for the following reasons:

1. In respect of the two Ruti ballot boxes, the Returning Officer claimed that he received a 4 pages letter from the Presiding Officer for team 35, Mr Amos Poiya Ruing stating that the voters did not vote and the ballot papers were marked elsewhere; and

2. In respect of the four Kondopina ballot boxes, the Returning Officer claimed that he received an oral complaint from Mr William Wanaga, scrutineer for candidate Nikints Tiptip stating that there was a fight on polling day at the polling place and people fled for their lives and ballot papers were marked by someone else.

15. The six corresponding ballot boxes for the Western Highlands Provincial Electorate were never disputed and they were counted without any problem whatsoever.

16. The Electoral Commission lawyer at the counting centre providing legal assistance during scrutiny of votes provided a written advice to the returning officer to admit these 6 ballot boxes for counting but the returning officer refused to act on the legal advice.

17. At the end of the primary count and after quality check (96 ballot boxes counted) the top five (5) candidates in order of standing on their total first preference votes before going into the elimination process were:

Position	Candidate number	Candidate Name	Total first preference votes
1	11	Wesley Nukundi Nukundj	7,436
2.	23	Tui Ekil	6,240
3	17	Sol Solo Mel	5,661
4	16	Steven Pim	5,455
5	21	James Pini	5,157

18. The elimination process commenced on 23rd July, 2017.

19. After the elimination of candidate Desmond Paul Kipa at exclusion 22 the last five remaining candidates in order of standing on their total progressive votes were:

Position	Candidate number	Candidate Name	Total first preference votes
1	11	Wesley...