Kiee Toap v The Independent State of Papua New Guinea, Electoral Commission of Papua New Guinea and Returning Officer/Assistant Returning Officer for Mendi Open Electorate (2004) N2731

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 26 November 2004
• Citation: (2004) N2731
• Judgment Number: N2731
• Year: 2004

Full Title: Kiee Toap v The Independent State of Papua New Guinea, Electoral Commission of Papua New Guinea and Returning Officer/Assistant Returning Officer for Mendi Open Electorate (2004) N2731

National Court: Cannings J

Judgment Delivered: 26 November 2004

N2731

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 1627 OF 2003

KIEE TOAP

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Defendant

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Defendant

RETURNING OFFICER/ASSISTANT RETURNING OFFICER FOR

MENDI OPEN ELECTORATE

Third Defendant

MT HAGEN : CANNINGS J

5, 26 NOVEMBER 2004

RULING ON MOTIONS

Elections – practice and procedure – unsuccessful candidate seeks compensation from Electoral Commission and others – claim based on alleged negligence – whether claim should have been brought by election petition – Organic Law on National and Local-level Government Elections, Section 206 – whether statement of claim disclosed a reasonable cause of action – whether proceedings are frivolous or vexatious – National Court Rules, Order 12, Rule 40 – whether application should be granted – discretion of Court.

Cases cited

Supreme Court Reference No 2 of 1985; Re Kevin Masive, Iambakey Okuk and Johhannes Kenderkop [1985] PNGLR 263

Application of Robert Atiyafa (1987) N602

PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85

Thomas Negints v Electoral Commission (1992) N1072

Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915

SCR No 88 of 1997; Daniel Don Kapi v Takai Kapi and Electoral Commission (1998) SC548

SCR No 69 of 1998 (1998) SC570

Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8

Takai Kapi v Electoral Commission and The State (National Court, unreported, WS No 913 of 1999, 31.01.01

Supreme Court Reference Nos 4 and 5 of 2002, Reference by the Attorney-General (2002) SC689

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001

Application of Daniel Don Kapi (2002) N2259

Mathias Ijape v Electoral Commission (2002) N2437

Electoral Commission and Others v Pila Niningi (2003) SC710

Mathias Ijape v Bire Kimisopa and Electoral Commission (2003) N2344

Agiwa v Peri and Electoral Commission (2003) N2345

Mr K Toap, the plaintiff, in person

Mr R Kasito for the 1st defendant

Mr R William for the 2nd and 3rd defendants

CANNINGS J:

INTRODUCTION

This is a ruling on various motions arising out of proceedings commenced by the plaintiff, an unsuccessful candidate in the 2002 general election to the National Parliament. The plaintiff claims that he lost the election for the Mendi Open electorate due to the negligence of electoral officials. He seeks compensation for loss of entitlements.

The defendants are applying to have the plaintiff’s case struck out summarily. The plaintiff says that his case should remain on foot and that default judgment should be entered in his favour.

BACKGROUND

The election

In June-July 2002 a general election for the National Parliament was held. The day fixed for the return of the writs was originally 15 July, but extended to 29 July 2002. There were 20 candidates for the Mendi Open seat. The official results promulgated by the Electoral Commission state that 69,682 votes were cast. On 29 July 2002 the sitting member, Michael Buku Nali, was declared elected with 25,498 votes. The plaintiff was 16th, with 8 votes.

The notice of claim

On 21 May 2003 the plaintiff hand-delivered letters addressed to the Solicitor-General and the Electoral Commission to Mary Bulina, a legal secretary with the Office of the Solicitor-General. Each letter was headed: “ILLEGAL DISPATCHMENT OF BALLOT BOXES & PAPERS TO STRANGERS AND DISROYAL/DEMEAN THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA FOR MENDI OPEN ELECTORATE FOR 2002 NATIONAL ELECTIONS – CLAIM FOR A WRONGFUL VICTIM AT K10,568,614.00” [sic]. Each letter was four pages in length. The plaintiff stated that the Electoral Commission had failed in its duty to conduct a proper and fair election. The Electoral Commission had, amongst other things, negligently altered the polling schedule, dispatched ballot boxes to strangers and failed to conduct polling at a number of different locations which formed his support base, resulting in thousands of people being deprived of the right to vote for him. The plaintiff stated that the Electoral Commission was fully responsible for the disaster that had occurred. He claimed damages of K10,508,614.00. He allowed 30 days to settle his claim for compensation. If it were not settled by then, he would take the matter to Court.

The writ

On 13 November 2003 the plaintiff filed a writ of summons and statement of claim, alleging negligence by the 2nd and 3rd defendants.

Parties

The defendants were named as:

·the Independent State of Papua New Guinea – 1st defendant;

·the Electoral Commission of Papua New Guinea – 2nd defendant;

·the Returning Officer/Assistant Returning Officer for Mendi-Minihu Open electorate – 3rd defendant.

Upon being satisfied that there is no electorate in the country called “Mendi-Minihu Open”, and that the electorate intended to be the subject of these proceedings is “Mendi Open”, the Court orders of its own motion, pursuant to Order 8, Rule 50(1) of the National Court Rules, that the name of the 3rd defendant is “the Returning Officer/Assistant Returning Officer for Mendi Open electorate”.

Statement of claim

The statement of claim attached to the writ of summons avers to a number of matters in 16 numbered paragraphs. The grammar and syntax in almost every paragraph is poor. For example, paragraphs 6 and 8, which contain the central allegations of negligence and impropriety, state:

6 The Plaintiff claims that the 2nd Defendant acting on the 1st Defendant’s authorised commission to carry out the National and Provincial and Local Level Government Election fair and square was failed and was illegally given all the legal Ballot Boxes and Ballot Papers to its unauthorised persons or strangers to Hijack them whilst at the Mendi Police Station at about 1600 – 1800 pm and the next day was to close the polling. [sic]

8 The Plaintiff claims that the Co-operative Defendants had illegally dispatchment of Ballot Papers to unauthorised persons or strangers at the Mendi Police Station and made the plaintiff loss all his rights to cast vote and unlawfully disallowed the candidate to collect his votes at the designated locations of his Mendi/Munihui Open Electorate has to be paid compensation or remedied for the unlawful action of the elections by the Independent State of Papua New Guinea. [sic]

The poor drafting of the document has legal consequences, referred to later. It is difficult to summarise the plaintiff’s claim or cause of action. However, it appears that what is averred to is negligence.

Particulars of claim

The plaintiff’s claim can be summarised as follows:

·the 2nd defendant mishandled and illegally varied the timetable for the declaration of the writ and illegally altered the official program;

·the 2nd defendant illegally gave all the ballot boxes and ballot papers to unauthorised persons or strangers;

·the defendants did not allow the plaintiff to collect his votes at designated locations;

·the defendants did not allow the people to exercise their rights to make a decision as to how to choose their leader;

·the 3rd defendant made an unlawful declaration of the open candidate;

·the defendants failed to follow normal procedures for running the election, in particular by failing to collect votes at designated locations;

·the 2nd and 3rd defendants wilfully and negligently failed to monitor and coordinate the process of the election;

·the 2nd and 3rd defendants gave all the ballot papers to strangers and assisted them to help themselves at Mendi Police Station;

·the 2nd and 3rd defendants illegally, negligently, and improperly ignored the candidate’s right to contest the seat and allow ample time to people to exercise their democratic rights.

Relief sought

The plaintiff claims that the 1st and 2nd defendants are liable to compensate him for his unlawful injuries, damages, costs, loss of values and distress during the election. The plaintiff claims the amounts summarised below, plus interest and costs.

SUMMARY OF CLAIM

Details Amount (K)

1st and 2nd defendants pay for all costs of elections 757,170.00

1st and 2nd defendants pay for loss of 5 year term of office 8,000,000.00

Total 8,757,170.00

Service of writ

On 17 November 2003 the writ and statement of claim were served on the 1st and 2nd defendants.

On 2 December 2003 the Acting Solicitor-General, Mr John Kumura, filed a notice of intention to defend on behalf of all the defendants.

On 18 January 2004 the writ of summons and statement of claim were served on the 3rd defendant.

In May 2004 Paraka Lawyers commenced acting for the 1st defendant and Nonggorr Lawyers started to act for...