John Boito v Mehrra Mine Kipefa

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 10 July 2018
• Citation: (2018) N7354
• Court: National Court
• Year: 2018
• Judgement Number: N7354

Full : EP No 66 of 2017; In the matter of disputed returns for the Obura Wonenara Open Electorate; John Boito v Mehrra Mine Kipefa and the Electoral Commission of Papua New Guinea (2018) N7354

National Court: Kandakasi, J

Judgment Delivered: 10 July 2018

N7354

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 66 of 2017

IN THE MATTER OF DISPUTED RETURNS FOR THE OBURA WONENARA OPEN ELECTORATE

BETWEEN

JOHN BOITO

Petitioner

AND

MEHRRA MINE KIPEFA

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi, J.

2018: 22 June, 10 July

ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on bribery - Essential elements of bribery – Matters that must be pleaded – Certain essential elements including the essential element of the wining candidate being a “candidate” not pleaded – Conduct complained of were by persons other than the First Respondent - Effect of – Insufficient pleading for ground based on bribery by wining candidate – Petition incompetent - Sections 3(1), 208 (a) and s.215 (1) a and 218 of Organic Law on National and Local-level Government Elections.

ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on errors, omissions and illegal practices – Conduct complained of were by persons other than the wining candidate - Effect of - No pleading with particulars of winning candidate knowing or authorising errors, omissions and illegal practices by third parties – No foundation in the pleadings demonstration it is fair and just to declared the winning candidate not duly elected and or void his election – Sections 208(a) and s.215 (3) and 218 of Organic Law on National and Local-level Government Elections.

ELECTION PETITION – Objection to competency – Pre-requisite – Attesting witnesses – Purpose of - Inconsistent pleading of address and occupation - Village address – Name of district, nearest town, province not pleaded - Wording in petition not meeting requirements in prescribed form by court rules – Petition incompetent - Section 208 (d) of Organic Law on National and Local-level Government Elections.

WORDS AND PHRASES – “knowledge” – Meaning for the purposes of the Organic Law on National and Local-level Government Elections – Means the winning candidate having a prior familiarity, awareness, understanding, comprehension or experience of the facts and figures alleged in a petition against him - Section 215 (1) and (3) and s. 208(a) of Organic Law on National and Local-level Government Elections.

WORDS AND PHRASES – “authority” – Meaning for the purposes of the Organic Law on National and Local-level Government Elections – Means prior to the carrying out of the ‘illegal practice’ alleged against him, permitted, sanctioned or approved those acting on his behalf to carry out the alleged illegal practice - Section 215 (1) and (3) and s. 208(a) of Organic Law on National and Local-level Government Elections.

Cases cited:

Agonia v. Karo [1992] PNGLR 463

Allan Ebu v. Roy Evara [1983] PNGLR 201

Andrew Kumbakor v. Joseph Sungi (2012) N5002

Anton Yagama v. George Wan and The Electoral Commission (1997) N1692.

Baki Reipa v. Yuntivi Bao [1999] PNGLR 232

Bourne v. Voeto [1977] PNGLR 298

Brian Kramer vs. Nixon Duban (2013) N5213

Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1251

Delba Biri vs. Bill Ninkama [1982] PNGLR 342

Dick Mune v. Anderson Agiru & Ors (1998) SC590

Empraim Apelis v. Sir Julius Chan (1998) SC573

Francis Koimanrea v. Alois Sumunda (2003) N2421

James Yoka Ekip v. Gordon Wimb & William Duma (2012) N4899

Jerry Singirok vs. Ken Fairweather (2014) N5577

Jim Nomane v. Wera Mori (2013) SC 1242

Joel Paua v. Robert Nagle [1992] PNGLR 563

John Kekeno v. Philip Undialu (2015) SC1428

Ken Fairweather v. Jerry Singirok (2013) SC1279

Kopoal v. Embel (2008) N3319

Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123

Luke Alfred Manase v. Don Pomb Polye (2009) N3718

Mathias Ijape vs. Biri Kimisopa, (2003) N2344

Mathias Karani v. Yawa Silupa (2003) PNGLR 9

Michael Kandiu v. Hon Powes Parkop (2015) SC1437

Parua Aihi v. Sir Moi Avei (2003) SC720

Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921

Peter Wararu Waranaka v. Richard Maru & Electoral Commission (2018) N7346

Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980

Philip Kikala v. Electoral Commission (2013) SC1295

Powes Parkop v. Wari Vele (No 1) (2007) N3320

Riddler Kimave v Poevare Tore & 2 Ors (2013) SC 1303

Robert Kopaol v. Philemon Embel (2003) SC727

Roger Palme vs. Michael Mel (1989) N808

Sandy Talita v. Peter Ipatas (2016) SC1603

Sai Sail Beseoh v. Yuntivi Bao (2003) N2348

SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441

SCR No 5 of 1988 Applications of Kasap and Yama [1988–89] PNGLR 197

Sir Arnold Amet v. Peter Yama (2010) SC 1064

Sir Peter Lus vs. Gabriel Kapris (2003) N2326

Soro Marepo Eoe v. Mark Ivi Maipakai & Ors, (2013) N5066

Steven Pirika Kamma v. John Itanu (2007) N3246

Counsel:

M. Nale and L.Evore, for the First Objectioner/ First Respondent

L. Okil, for the Second Objectioner/Second Respondent

P. Othas, for the Respondent/Petitioner

10th July, 2018

1. KANDAKASI J: This is an election petition by John Boito (the Petitioner) against the election victory of Honourable Mehrra Mine Kepefa (the First Respondent) in the 2017 National General Elections for the Obura Wonenara Open Electorate. The petition is, based on grounds of bribery, illegal practices, errors and omissions. Both the Electoral Commission and the First Respondent (the Respondents) have taken issue with the competency of the petition and have separately filed objections to the competency of the petition. I heard the objections on 22nd June 2018 and reserved a decision on that. Here now is the decision.

Grounds for Objections

2. The grounds for both objections can be summarised as a failure by the Petitioner to properly plead each of the grounds of the petition sufficiently. Added to that is a belated ground of the witnesses’ attestation clause not being properly pleaded as well.

3. In summary the objections claim the following:

(1) On the allegation of bribery, the petition fails to plead the essential elements under s. 103 (a) (iii) of the Criminal Code of:

(a) either the First Respondent committed the act of bribery or his named servants or agents did with his knowledge or authorisation;

(b) the purpose of the alleged bribery was for the recipients to vote for the First Respondent or abstain from voting or otherwise influence the election outcome in favour of the First Respondent; and

(c) a clear identification of the person who were allegedly bribed by name and that such persons were electors in the Obura Wonenara Electorate;

(2) As for the allegations of illegal practices, errors, and omissions the petition fails to plead:

(a) each act of illegal practice, error and omissions separately instead of lumping them together;

(b) the relevant section or provisions of the Organic Law on National and Local-level Government Elections (Organic Law), a Constitutional law or an Act Parliament or any other law that makes each of the allegations illegal, an error or an omission and is a valid ground for an election petition;

(c) the illegal practices, errors and or omissions did affect or were likely to affect the outcome of the election;

(d) the illegal practices, errors and or omissions were committed with the knowledge or the authorisation of the First Respondent;

(e) it is fair and just in the circumstances that the First Respondent who was declared winner was not duly elected and that his election should be voided;

(f) the allegations in paragraphs 1 – 6 in Part 2 Category A, amounts to a breach of the provisions of s. 214 of the Organic Law as they concern the correctness of the common roll;

(d) How many of the 508 and 262 votes respectively pleaded in paragraph 7 (d) of Part 2, Category A and paragraph 3(c) of Part 2 Category A, II, were collected by the Petitioner and how many were collected by First Respondent or the other candidates?

(e) facts showing why a treatment of the 9,488 votes as exhausted votes in Part 2 of Category B, II, was wrong and how the Petitioner could have secured those votes;

(f) material facts relating to the alteration of the Common Roll in accordance with s. 62 and s. 63 of the Organic Law and in any case the pleadings in paragraphs 3 – 6 of Part 2, Category A, I are misconceived and without following the procedure under Part VIII of the Organic Law and without having regard to the provisions of s. 214 of the same law; and

(g) facts in paragraph 8 of Part 2, Category B, II, supporting or disclosing an illegal practice under s. 150 and 152 (1) of the Organic Law when considered with s. 218 of the of the same law.

Starting point for election petitions

4. As I recently said in my decision in Peter Wararu Waranaka v. Richard Maru & Electoral...