James Puk v William Duma

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 October 2018
• Citation: (2018) N7538
• Court: National Court
• Year: 2018
• Judgement Number: N7538

Full : EP NO 25 OF 2017; In the matter of a Disputed Return for the Hagen Open Electorate; James Puk v William Duma and Patilias Gamato, Electoral Commissioner of Papua New Guinea (2018) N7538

National Court: Cannings J

Judgment Delivered: 30 October 2018

N7538

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 25 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE

HAGEN OPEN ELECTORATE

JAMES PUK

Petitioner

V

WILLIAM DUMA

First Respondent

PATILIAS GAMATO, ELECTORAL COMMISSIONER

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Cannings J

2018: 24, 30 October

ELECTIONS – petitions – objections to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(a): whether facts relied on to invalidate the election adequately set out.

The respondents to an election petition objected to competency of the petition, which consisted of seven grounds of challenge, five relating to alleged illegal practices committed by supporters of the first respondent (the successful candidate) and agents and servants of the second respondent (the Electoral Commission), based on Section 215 of the Organic Law on National and Local-level Government Elections, and two relating to alleged errors and omissions by agents and servants of the second respondent, based on Section 218 of the Organic Law. The grounds of objection to competency of the petition fell into four categories: (1) general objection to the form and content of the petition, as being non-compliant with the form prescribed by the Election Petition Rules 2017, and not being signed by the petitioner in accordance with Section 208(c) of the Organic Law; (2) specific objections to each of grounds 1 to 5 of the petition, as (a) being vague and confusing, (b) failing to clarify whether it is a ground of challenge based on Section 215 or Section 218 of the Organic Law; (c) failing to plead the basis of the allegation that the illegal practices were committed with the knowledge and authority of the first respondent (as required by Section 215(3)); and (d) failing to plead that it was “just that the candidate should be declared not to be duly elected or that the election should be declared void” (as required by Section 215(3)), all of which meant that the petition was in breach of Section 208(a) of the Organic Law; (3) specific objection to ground 6 of the petition, for (a) failing to plead details of the circumstances of the objections made to the returning officer; (b) cross-referring to grounds 1 to 5 in a vague and insufficient manner; (c) being bad for duplicity; (d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions, which meant that the petition was in breach of Section 208(a) of the Organic Law; (4) specific objection to ground 7 of the petition, for (a) failing to plead necessary facts to support the allegation that polling at the polling places alleged to have generated lawfully cast ballots in 28 ballot boxes had been conducted properly; (b) failing to connect alleged facts to particular alleged errors or omissions; (c) failing to allege that all presiding officers responsible for the 28 ballot boxes were not consulted prior to the returning officer’s decision not to admit the contents of any of those ballot boxes to scrutiny; (d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions, which meant that the petition was in breach of Section 208(a) of the Organic Law.

Held:

(1) Re category 1 objections: refused. Though the form and content of the petition failed in a number of respects to comply with the prescribed form and content, the form and content were substantially compliant with the Rules.

(2) Re category 2 objections: sustained. All sub-grounds of objection were sustained, resulting in grounds 1 to 5 of the petition being struck out.

(3) Re category 3 objections: in effect, sustained. Two sub-grounds of objection were refused, but two were sustained. Those two sub-grounds went to the competency of ground 6 of the petition, which failed to comply with Section 208(a) of the Organic Law. Ground 6 of the petition was struck out.

(4) Re category 4 objections: refused. All sub-grounds of objection were refused. Ground 7 of the petition adequately sets out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.

(5) In summary: six grounds (Nos 1 to 6) of the petition were struck out. One (No 7) remains. The petition will proceed to trial on ground No 7. The parties were ordered to bear their own costs as none fully succeeded.

Cases cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064

Boito v Kipefa (2018) N7354

Fairweather v Singirok (2013) SC1293

Ijape v Kimisopa (2003) N2344

Kandiu v Parkop (2015) SC1437

Kumbakor v Sungi (2012) N5002

Lus v Kapris (2003) N2326

Mune v Agiru (1998) SC590

Palme v Pok (2018) N7214

Waranaka v Maru (2018) N7346

OBJECTIONS

This is a ruling on objections to competency of an election petition.

Counsel

L A Jurth, for the Petitioner

H Nii, for the First Respondent

J Kolo, for the Second Respondent

30th October, 2018

1. CANNINGS J: This is a ruling on objections to competency of an election petition. The petition, consisting of seven grounds of challenge, was filed by unsuccessful candidate James Puk (the petitioner) disputing the election of first respondent William Duma as member for Hagen Open in the 2017 general election. The petitioner seeks declarations that the first respondent was not duly elected and that the election is absolutely void and an order for a by-election. In the alternative he seeks an order for a recount.

GROUNDS OF THE PETITION

2. The seven grounds of the petition are not numbered in a straightforward way. I have decided to number the grounds as 1 to 7 and cross-refer the number of each ground to the actual number and description of it in the petition.

Grounds 1 to 5: illegal practices

These grounds are set out in part B of the petition, headed “ILLEGAL PRACTICES COMMITTED BY THE FIRST RESPONDENT’S SUPPORTERS AND AGENTS AND SERVANTS OF THE SECOND RESPONDENT” (pages 4 to 13 of the petition).

3. The grounds are introduced by this statement:

The petitioner alleges that the first respondent and/or supporters as well as polling officials being agents and servants of the second respondent have contravened Sections 130 to 139 inclusive and 178(1)(f), (g) and (h), 190 and 191(8), (9), (10) and (14) of the Organic Law on National and Local-level Government Elections (herein referred to as the “Organic Law”) and Sections 102, 109, 110 and 111 of the Criminal Code Act (“the Code”) in that:

4. Each of the five grounds then alleges that there were illegal practices committed at a particular polling place by the first respondent’s supporters and by agents and servants of the second respondent, resulting in no polling actually taking place, yet the returning officer counted the first preference votes illegally cast for the first respondent, resulting in the first respondent being allocated the vast majority of first preference votes at the five polling places, contained in nine ballot boxes, yielding the first respondent a total of 14,695 votes. It is further alleged that these illegal practices resulted in the polling process at each of the five polling places being ‘hijacked by agents and servants of the first respondent and second respondent and this was all carried out within the knowledge and authority of the first respondent’ and that the result of the election was likely to be affected within the meaning of Section 215(3) of the Organic Law.

5. The precise descriptions given in the petition to grounds 1 to 5, are as follows:

· [Ground 1:] “B1(a) Kerebug Ward 4 (Urban) (a)(i) Illegal Practice No 1 – Kerebug Ward 4 (Urban): Technical College Polling Place, Kerebug Village” (pages 4 to 5 and 6 to 7 of the petition).

· [Ground 2:] “B1(a) Kerebug Ward 4 (Urban) (a)(i) Illegal Practice No 2 – Kerebug Ward 4 (Urban): Housing Commission Polling Place, Kerebug Village” (pages 5 to 7 of the petition).

· [Ground 3:] “B1(b) Gomis (b) Illegal Practice No 2 [sic] – Gomis: Team 194” (pages 7 to 9 of the petition).

· [Ground 4:] “B1(c) Koglamp Ward 8, (c) Illegal Practices No 3 – Koglamp Ward 8 – Hagen Rural LLG” (pages 9 to 12 of the petition).

· [Ground 5:] “B(d) Kilam Ward No 33 (d) Illegal Practices No 4 – Kilam Ward No 33” (pages 12 to 13 of the petition).

Grounds 6 and 7: errors and omissions

6. These two grounds are set out in part C of the petition, headed “ERRORS AND OMISSIONS BY AGENTS AND SERVANTS OF THE SECOND RESPONDENT” (pages 13 to 26 of the petition).

7. Ground 6 alleges that that the returning officer committed serious errors or omissions by “not...