Jim Nomane v David Anggo and Reuben Kaiulo The Electoral Commissioner of Papua New Guinea (2003) N2384

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Jalina J
• Citation: (2003) N2384
• Judgment Number: N2384
• Year: 2003
• Docket Number: EP No 52 of 2002

Full Title: EP No 52 of 2002; Jim Nomane v David Anggo and Reuben Kaiulo The Electoral Commissioner of Papua New Guinea (2003) N2384

National Court: Jalina J

Judgment Delivered: 7 February or March 2003

1 National Parliament Elections—Candidates for—Qualification to stand for—Petitioner's names and occupation in Nomination Form different from names and occupation on Common roll—Whether Petitioner Eligible or Qualified to stand as Candidate and thus bring Petition Disputing Returns of First Respondent as Duly elected—s50 and s103(3) Constitution and s87 of Organic Law.

2 SCR No 2 of 1985; Masive v Okuk and Kenderop [1985] PNGLR 263, Daniel Don Kapi v Takai Kapi (1998) SC548, Jimson Sauk Papaki v Don Pomb Pullie Polye (1999) SC644 and Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570 referred to

___________________________

N2384

PAPUA NEW GUINEA

[In the National Court of Justice]

EP. No. 52 of 2002

Between:

JIM NOMANE

Petitioner

And:

DAVID ANGGO

First Respondent

And:

RUEBEN KAIULO

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

MT. HAGEN : JALINA, J.

2003 : 3rd & 7th March

National Parliament Elections – Candidates for – Qualification to stand for – Petitioner’s names and occupation in Nomination Form different from names and occupation on Common roll – Whether Petitioner Eligible or Qualified to stand as Candidate and thus bring Petition Disputing Returns of First Respondent as Duly elected - Ss 50 and 103 (3) Constitution and S.87 of Organic Law.

Cases cited:

Kevin Masive –v- Iambakey Okuk & Johhannes Kederop [1985] PNGLR 263

Daniel Don Kapi –v- Takai Kapi & Electoral Commission, Unreported Supreme Court Judgment No. SC 548 dated 1st April 1998.

Jimson Sauk Papaki –v- Don Pomb Pullie Polye, Unreported Supreme Court Judgment No. SC 644 dated 29 October, 1999.

Counsel:

J. Kunjip for Applicant/First Respondent.

R. William for Co-Applicant/Second Respondent.

T. Dawidi for the Respondent/Petitioner.

7th February, 2003

JALINA, J: The Applicant and the Respondent were among 35 Other Candidates who contested the National Parliament Open Seat for Chuave in the Simbu Province during the 2002 General Elections. The Applicant was subsequently returned duly elected Member of the National Parliament for that electorate. Then on 2nd September 2002 the Respondent herein filed a Petition in the National Court disputing the election of the Applicant as Member of Parliament for that Electorate.

On 20th November 2002 the Applicant filed an objection to Competency of the Petition. Then on 7th January 2003 the Applicant filed a Motion seeking this Court’s determination of whether or not the Respondent/Petitioner herein was qualified to be a candidate for the National elections for the Chuave Open Electorate in 2002 and for his Petition to be struck out and or dismissed if he was not so qualified. It is the issue of qualification or eligibility of the Respondent/Petitioner herein to contest and that has been argued before me for determination.

As it is a threshold question which goes to the issue of locus standi of the Respondent/Petitioner herein to even bring the Petition it has to be determined first. The objections to the grounds of the Petition will be the next issue for determination subject to my ruling on the issue of qualification of the Respondent/Petitioner to stand or contest.

It should be pointed out at the outset that the jurisdiction of this Court to deal with the issue of qualification of a citizen to contest or stand for public office is well settled in this jurisdiction. (See Kevin Masive –v- Iambakey Okuk and Johhannes Kenderop [1985] PNGLR 263).

It should also be pointed out at the outset that by virtue of s 217 of the Organic Law on National and Local Level Government Elections (The “Organic Law”) the National Court is not bound by legal forms and technicalities and the rules of evidence but is to be guided by substantial merits and good conscience of each case when dealing with matters relating to or arising out of election of members to the National Parliament or Local Level Governments.

With the exception of persons specified in sub-section (1) (a) and (b) every citizen who is of full capacity and has reached voting age has the right to vote for and stand for elective public office and do other things as specified under s 50 of the Constitution subject to express limitations imposed by other provisions of the Constitution.

Qualifications to be, and disqualification from remaining a Member of the National Parliament are provided for in s.103 of the Constitution. In so far as the present case is concerned, sub-sections (2) and (3)(a) are relevant. Sub-sections (2) and (3)(a) provides:

“(2) A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(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(a) of the Organic Law deals with qualification to be elected as a member. It provides:

“87. REQUISITES FOR NOMINATION

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.”

The effect of s.87(a) would appear to me to be that if the person who nominated is found not to have been qualified under the laws of Papua New Guinea, his nomination would be at the risk of being declared invalid by a court of competent jurisdiction.

The Applicant has filed two (2) affidavits in support of his application. One was from himself (David Anggo) filed herein on 7th January 2003 and the other affidavit was from Ray William filed herein on 3rd March, 2003. In his own affidavit the Applicant deposes to the Respondent/Petitioner as having two (2) different names and two different occupations namely “Jim Josiah,” Chairman of Pangtel and “Jim Nomane”, engineer. As Annexure “A” he annexes a list of candidates for the Chuave Open Seat in the 2002 National Elections. The Respondent/Petitioner’s is No. 22 on the list under the name “Jim Nomane” and his occupation is stated as “Engineer.” Annexure “B” contains’ a list of electors registered on the common roll for the Laiya area where the Respondent/Petitioner purports or claims to have come from but “Jim Nomane” is not mentioned. Instead the name “Kevin Jim Nomane”, a subsistence farmer born in 1976, appears. Annexure “C” of his affidavit contains another list of electors registered on the common roll where the Respondent/Petitioner purports or claims to have come from. The name under that list is “Jim Josiah” a subsistence farmer born in 1949.

The affidavit of Ray William annexes a copy each of the Respondent/Petitioner’s Nomination form and the receipt for payment of the K1,000.00 nomination fee. The Nomination Form shows the name “Jim Nomane” who lived at Laiya Village and who was an engineer born on 1st September 1959.

On the basis of Section 50 and 103 (3) of the Constitution and s 87(a) of the Organic Law as well as the affidavit of the Applicant and Ray William, the Applicant submits that the Petitioner was not an elector as he was not registered on the Common roll for the Laiya area in the Chuave Open Electorate. In Annexure “B” to the Applicant’s affidavit there is a “Keven Jim Nomane” from Laiya Village, a subsistence farmer born in 1976 but the name “Jim Nomane” with birth date as “1959”, the year the Respondent/Petitioner claims he was born and his occupation as “engineer” did not appear. In Annexure “C” to the Applicant’s affidavit, the name “Jim Josiah” a subsistence farmer born in 1949 appears. He submits therefore that “Kevin Jim Nomane” a subsistence farmer born in 1949 cannot be “Jim Josiah” a subsistence farmer born in 1958. Likewise “Jim Nomane” a subsistence farmer cannot be “Jim Nomane” an engineer. Even the birth days or year of birth, he submits, of the Respondent/Petitioner and “Jim Josiah” are not the same.

The Applicant further submits that whether “Jim Nomane” was the one and same person as “Jim Josiah” was of no consequence in so far as the electoral process was concerned. A person not enrolled as an elector cannot vote and therefore cannot be a candidate for election and as such had no standing to mount this Petition. He relies on the Supreme Court decision in Daniel Kapi –v- Takai Kapi, an Unreported Judgment No. SC 548 dated 1st April 1998. In that case, the Applicant, Daniel Kapi, who was a runner-up to the winning candidate, Takai Kapi, filed a petition disputing the...