Jamie Maxton-Graham v Electoral Commissioner of PNG

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 16 July 2013
• Citation: (2013) N5385
• Court: National Court
• Year: 2013
• Judgement Number: N5385

Full : EP No.97 of 2012; In the matter of the Organic Law on National and Local-level government elections and in the matter of a disputed return for the seat of Jiwaka Provincial Electorate in the 2012 general election; Jamie Maxton-Graham v Electoral Commissioner of Papua New Guinea and Dr William Tongamp (2013) N5385

National Court: David, J

Judgment Delivered: 16 July 2013

N5385

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No.97 of 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION

BETWEEN:

JAMIE MAXTON-GRAHAM

Petitioner

AND:

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

First Respondent

AND:

DR. WILLIAM TONGAMP

Second Respondent

Minj: David, J

2013: 5, 10 & 17 April & 16 July

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objection to competency of petition – preliminary matter - allegation of irregularity of service of petition on Second Respondent for want of compliance with order for substituted service – two different versions of petition published in two dailies - exercise of discretion - substantial compliance with order for substituted service – no prejudice to Second Respondent as he is already aware of the content and allegations in the petition – content and allegations in advertised petitions same as one in Court's record - three grounds in petition only raise allegations against the First Respondent – preliminary objection rejected - National Court Election Petition Rules 2002 (as amended), Rules 6, 11, 15 and 18.

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objections to competency of petition – three grounds raised in petition – allegations against the First Respondent of committing errors and omissions and illegal practices as to the appointment of the Provincial Returning Officer and the conduct of scrutiny by electoral officials - respondents allege that the petition does not comply with all pre-requisites of a petition under Section 208 of Organic Law on National and Local-level Government Elections – requirements under Section 208 are conditions precedent – strict compliance required – part of first ground as to allegations concerning appointment of counting officials struck out – part of first ground as to allegations concerning appointment of Provincial Returning Officer competent to go to trial - second and third grounds struck out – Organic Law on National and Local-level Government Elections, Sections 19, 149, 151, 175, 206, 208, 209, 210, 215 and 218.

Cases cited:

Mapun Papol v Antony Temo (1981) PNGLR 178

Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342

Siaguru v Unagi [1987] PNGLR 372

Holloway v Ivarato [1988] PNGLR 99

Patterson Lowa v Wapula Akipe (1992) PNGLR 399

Joel Pepa Paua v Robert Timo Ngale [1992] PNGLR 563

Greg Mongi v Bernard Vogae (1997) N1635

Korak Yasona v Castan Maibawa (1998) SC552

Dick Mune v Anderson Agiru & Ors (1998) SC 590

Ephraim Apelis v Sir Julius Chan (1998) SC573

Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589

Aita Ivarato v Peti Lafanama [1998] PNGLR 297

Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on 30 March 1998

Dr Philip Basse v Electoral Commission of Papua New Guinea and John Tongri Hickey (2002) N2340

Paru Aihi v Sir Moi Avei (No 2) (2003) SC720

Ludger Mond v Jeffery Nape (2003) N2318

Mathias Ijape v Bire Kimisopa (2003) N2344

Sai–Sail Beseoh v Yuntivi Bao (2003) N2348

Alfred Pogo v Guao Katucnane Zurenuoc (2003) N2351

Mathias Karani v Yawa Silupa (2003) N2385

Jim Nomane v David Anggo (No 1) (2003) N2496

Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice Hinchliffe delivered on 16 June 2003

Ginson Saonu v Bob Dadae (2004) SC763

Jimson Sauk v Don Pomb Polye (2004) SC769

Paru Aihi v Sir Moi Avei (2004) N2523

Mikki Kaiok v Rimbink Pato (2005) SC877

Daniel Don Kapi v Samuel Abal (2005) N2856

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

Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948

Paias Wingti v Kala Rawali (2008) N3285

Luke Alfred Manase v Don Pomb Polye (2008) N3341

Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Philomena Kassman v Kila Igaba (2012) SC1211

Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816

Peter Charles Yama v Anton Yagama (2012) N4928

Norbert Kubak v Andrew Trawen (2012) N4992, PGNC286

Patrick Basa v Bob Dadae (2013) N4991

Gabriel Lenny Kapris v John Simon & Ors (2013) N5001

Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (2013) N5134, PGNC74

Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (2013) N5216

Tobias Kulang, EP No.75 of 2012, a judgment by Makail, J delivered in Waigani

Legislation cited:

Organic Law on National and Local-level Government Elections

National Court Election Petition Rules 2002 (as amended)

Counsel:

Tony Yamarhai, for the Petitioner

Ray William, for the First Respondent

Michael Kuma, for the Second Respondent

RULING ON OBJECTIONS TO THE COMPETENCY OF PETITION

16th July, 2013

1. DAVID, J: INTRODUCTION: The petitioner, Jamie Maxton-Graham (hereafter "the petitioner") was an unsuccessful candidate for the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (hereafter "the Electorate") during the 2012 National General Election. Dr. William Tongamp, the Second Respondent (hereafter "the Second Respondent") in these proceedings was the successful candidate for the Electorate and subsequently declared as the winner and sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.

2. On 9 September 2012, the petitioner filed a petition addressed to the National Court at Waigani disputing the validity of the election or return of the Second Respondent as the successful candidate for the Electorate pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law). He raises issues of errors and omissions and illegal practices by the First Respondent or his servants or agents with respect to the appointment of the Provincial Returning Officer for Jiwaka Province and the conduct of scrutiny to vitiate the election. The petitioner seeks, amongst other things, a declaration that the Second Respondent was not duly elected as the member for the Electorate, an order for a recount of all ballot papers for the Electorate, and an order that the petitioner is the duly elected member for the Electorate.

3. On 2nd November 2012, the First Respondent, the Electoral Commissioner of Papua New Guinea (hereafter "the First Respondent" filed his notice of objection to the competency of the petition.

4. On 25th October 2012, the Second Respondent filed his notice of objection to the competency of the petition.

5. The respondents' objections collectively are that as the petitioner has failed to comply with all of the pre-requisites of a petition under Section 208 of the Organic Law more particularly the requirements under paragraph (a) (to set out in the petition the facts relied on to invalidate the election) and (c) (be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election) for purposes of Section 210 of the Organic Law, the petition was incompetent and should be dismissed. In his notice of objection, the Second Respondent, in support of his objection under Section 208 (c), also states that service of the petition was defective because; the petitioner failed to publish a Notice to Appear in accordance with Form 1 both in The National on 8 October 2012 and the Post Courier on 9 October 2012 which was a breach of Rule 6 (1)(a) of the National Court Election Petition Rules 2002 (as amended) (hereafter "the Election Petition Rules); and the petition published in the Post Courier on 9 October 2012 was an amended version of that which was published in The National on 8 October 2012 and which amendment was made outside the statutory period of 40 days therefore prohibited by Rule 11 of the Election Petition Rules. The petitioner refutes these assertions and states that, the petition has met all the mandatory pre-requisites of a petition, the petition was duly served on the Second Respondent therefore the petition should proceed to trial.

6. I will address these issues in detail later on in the judgment.

7. On 26th November 2012, the Judge Administrator for the Election Petitions Track, Makail, J fixed these proceedings for hearing for two weeks at Mt. Hagen and to commence on 1 April 2013. The venue was changed to Minj because I was circuiting Minj in April 2013 according to the Court's annual calendar and...