Leo Dion v Nakikus Konga

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 09 April 2018
• Citation: (2018) N7210
• Court: National Court
• Year: 2018
• Judgement Number: N7210

Full : EP No 24 of 2017; In the matter of an election disputed return for the East New Britain Provincial Electorate in the 2017 General Elections; Sir Leo Dion v Hon Nakikus Konga, MP and the Electoral Commission of Papua New Guinea (2018) N7210

National Court: Makail, J

Judgment Delivered: 9 April 2018

N7210

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 24 OF 2017

IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE EAST NEW BRITAIN PROVINCIAL ELECTORATE IN THE 2017 GENERAL ELECTIONS

BETWEEN

SIR LEO DION

Petitioner

AND

HON. NAKIKUS KONGA, MP

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Kokopo: Makail, J

2018: 4th & 9th April

ELECTION PETITION – Objection to competency of petition – Grounds of – Structurally defective pleadings – Failure to plead facts – Allegations of errors or omissions at counting – Whether sufficient facts pleaded – Whether there are facts showing errors or omissions by electoral officials did affect result of election – Pleading and claim of alternative or multiple relief – Organic Law on National and Local-level Government Elections – Sections 208 (a), (b), (d) & 218

ELECTION PETITION – Objection to competency of petition – Grounds of – Incorrect naming or mis-description of party – Legal capacity of party “Electoral Commission of Papua New Guinea” as opposed to “Electoral Commission” – Failure to sue servants and agents of Electoral Commission – Non-conformity of petition to prescribed form of petition in Form 1 – Effect of – Question of form as to substance – Whether petition incompetent – Organic Law on National and Local-level Government Elections – Sections 208 (a) & 218 – National Court Election Petition Rules, 2017 – Rule 4 – Form 1

Cases cited:

Barava Limited v. Mamalau (2013) SC1301

Ephraim Apelis v. Sir Julius Chan (1998) SC573

Ginson Goheyu Saonu v. Bob Dadae & Electoral Commission (2003) SC763

In re Fly River Provincial Executive (2007) SC917

John Keleva Kekeno v. Philip Undialu & Electoral Commission (2014) N5502

Joel Pepa Paua v. Robert Timo Nagle & Electoral Commission [1992] PNGLR 563

Korak Yasona v. Castan Maibawa (1998) SC552

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

Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437

Mongi v. Vogae (1997) N1635

Malakai Tabar v. Hon Jelta Wong & Electoral Commission (2018) N7121

Michael Kuman & Ors v. Digicel (PNG) Limited (2017) SC1638

Noah Kool v. Michael Bogai Dua & Electoral Commission: EP No. 75 of 2017 (Unnumbered & Unreported Judgment of 16th March 2018 per Makail J)

Philip Kikala v. Electoral Commission of Papua New Guinea (2013) N4960

Patrick Basa v. Bob Dadae (2013) N4991

Peter Charles Yama v. Anton Yagama & Electoral Commission (2012) N4928

Re William Wii SCR No 45 of 1994, 26.07.94 (unreported)

Rimbunan Hijau (PNG) Limited v. Enei & Ors (2017) SC1605

Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408

Sam Abal v. Robert Sandan Ganim & Electoral Commission: EP No. 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013 per Hartshorn J)

Samson Kirilyo v. Justin Tkatchenko (2017) N7008

Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348

Samson Malclom Kuli v. Anton Yagama & Electoral Commission (2012) N4929

Soro Marepo Eoe v. Mark Maipakai & Electoral Commission (2013) N5066

Walter Schnaubelt v. Byron Chan (2012) N4791

Counsel:

Mr. R. Asa, for Petitioner

Mr. A. D. Lora, for First Respondent

Mr. D. Dupre with Mr. J. Ole, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

9th April, 2018

1. MAKAIL, J: I have been greatly assisted by Mr. Asa of counsel for the petitioner, Mr. Lora of counsel for the first respondent and Mr. Dupre of counsel for the second respondent in relation to determining the question of competency of the petition. All counsels have displayed a high level of proficiency and understanding of the law and principles applicable to the question and as well as identifying the specific issues for consideration as demonstrated during the hearing. For that, I am grateful.

2. The respondents have put the petitioner on notice of the subject question by way of two notices of objections to competency; one filed by the first respondent on 29th September 2017 and the other by the second respondent on 9th November 2017.

Grounds of Petition

3. The petition itself is grounded on various allegations of errors or omissions at counting.

Grounds of Objection

4. The first respondent’s objection is based on seven grounds:

(a) Naming of incorrect or mis-description of a party (second respondent),

(b) Lack of legal capacity of second respondent “Electoral Commission of Papua New Guinea” to sue and be sued,

(c) Failure to join servants and agents of the second respondent as parties to the proceeding,

(d) Structural defects in the pleadings contrary to Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”),

(e) Failure to plead facts contrary to Section 208(a) of the Organic Law,

(f) Pleading of alternative o multiple relief contrary to Section 208(b) of the Organic Law, and

(g) Incompetent attesting witnesses under Section 208(d) of the Organic Law.

5. The second respondent’s objection is based on two grounds:

(a) Non-conformity of petition to prescribed form of petition under Form 1 of National Court Election Petition Rules, 2017 (“EP Rules”), and

(b) Failure to plead facts contrary to Section 208(a) of the Organic Law.

Incorrect Name or Mis-description, Lack of Legal Capacity and Failure to join servants and agents of Second Respondent

6. Mr. Lora submitted that first, the petitioner has incorrectly named or mis-described the “Electoral Commission” by referring to it as “Electoral Commission of Papua New Guinea”. There is no body referred to or described as “Electoral Commission of Papua New Guinea”.

7. He referred to Section 126 of the Constitution and Section 5 of the Organic Law and submitted that these provisions refer to “Electoral Commission” and not “Electoral Commission of Papua New Guinea”. Given this, the petitioner must refer to the correct name or description of the “Electoral Commission because it is not a trivial matter and should be ignored. Furthermore, it may not have been relied upon as a ground of objection by the second respondent prior to this case but it does not stop the first respondent from relying on it. As it has been raised, the Court is obliged to determine it.

8. Mr. Lora referred to Form 1 of the EP Rules and further submitted that it refers to the second respondent as the “Electoral Commission”. It reinforces the argument that it is not a trivial matter but a deliberate decision by the judges to require a petitioner to refer to the second respondent as the “Electoral Commission.” A use of a different name or mis-description is fatal to the entire petition.

9. Second, and following on from that, Mr. Lora submitted that the name “Electoral Commission of Papua New Guinea” does not exist. It would follow that “Electoral Commission of Papua New Guinea” lacked legal capacity to sue and be sued.

10. Finally, as the Electoral Commission is a separate legal entity, it can only act through its servants and agents and in turn be liable for the acts or omissions of its servants and agents. It would follow that the petition is incompetent because the petitioner has failed to join the servants and agents of the Electoral Commission who allegedly made errors or omitted to carry out their mandated duties and functions at counting.

11. Mr. Asa appeared to concede to these grounds of objection for the reasons advanced by Mr. Lora. But he submitted that the grounds do not fall within Section 208 and Section 209 of the Organic Law. For a question of competency of petition is based on whether there has been compliance with the requisites of a petition under Section 208 and Section 209 of the Organic Law. As the grounds are not based on any of the requisites of a petition under Section 208 and Section 209, they are misconceived and the objection should be dismissed.

12. I agree with Mr. Asa’s submission. These grounds do not raise issues of competency of a petition. A ground or grounds of competency may only arise where there is non-compliance with one or more of a requisite of a petition under Section 208 (a) to (e) and Section 209 of the Organic Law. A ground not directed to the requisites of a petition under Section 208 (a) to (e) and Section 209 is irrelevant and misconceived.

13. An analogy can be made from the case of Ginson Goheyu Saonu v. Bob Dadae & Electoral Commission (2003) SC763 where the Supreme Court considered the question of whether Section 206 of the Organic Law is a requisite of a petition and failure to comply with it can render a petition incompetent and dismissed.

14. Section 206 provides for the method of disputing returns in that “The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise”.

15. The Supreme Court unanimously held that Section 206 was not a...