Lisia Ilaibeni v Hon. Ricky Morris and Others

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 08 March 2023
• Neutral Citation: N10154
• Citation: N10154, 2023-03-08
• Counsel: Allan Baniyamai, for the Petitioner,Laura Painap with Menchie Numi, for the First Respondent,Tony Sua, for the Second Respondent
• Docket Number: EP NO.44 OF 2022
• Hearing Date: 06 March 2023,08 March 2023
• Court: National Court

N10154

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO.44 OF 2022

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 Alotau Open Electorate in the 2022 General Election

Between:

Lisia Ilaibeni

Petitioner

v.

Hon. Ricky Morris, MP

First Respondent

and

Electoral Commission

Second Respondent

Alotau: David, J

2023: 6^th & 8^th March

ELECTION PETITION — PRACTICE & PROCEDURE — petition disputing election or return — errors or omissions — illegal practice — bribery — objection to competency of petition — six grounds raised — want of form — not pleading the law — want of material and relevant facts — objection on bribery upheld — all grounds on errors or omissions proceed to trial — Constitution, Section 9 — Organic Law on National and Local-level Government Elections, Sections 3, 5, 153A(1)(a), 147 — 172, 206, 208, 209, 210, 212, 215, 217 and 218 — Criminal Code, Section 103.

Cases Cited:

Bernard Peter Kaku v William Powi (2019) N7729

Dick Mune v Anderson Agiru & Ors (1998) SC590

Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342

Ephraim Apelis v Sir Julius Chan (1998) SC573

Francis Essacu Baindu v Joseph Jerry Yopiyopi (2018) N7411

Gordon Wesley v Isi Henry Leonard (2016) SC1477

Holloway v Ivarato [1988] PNGLR 99

Isi Henry Leonard v Gordon Wesley (2014) N5812

Iambakey Palma Okuk v John Nilkare (1983) PNGLR 28

Jim Nomane v Wera Mori (2013) SC1242

Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385

John Boito v Mehrra Mine Kipefa (2018) N7354

Mathias Karani v Yawa Silupa (2003) N2385

Peter Isoaimo v Paru Aihi (2012) N4921

Raymond Agonia v Albert Karo [1992] PNGLR 463

Siaguru v Unagi and the Electoral Commissioner (1987) PNGLR 372

Sai–Sail Beseoh v Yuntivi Bao (2003) N2348

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Sandy Talita v Peter Ipatas (2016) SC1603

Undialu v Potape (2020) SC1981

William Duma v James Puk (2019) SC1817

William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018

Legislation Cited:

Constitution

Organic Law on National and Local-level Government Elections

Electoral Law (National Elections) Regulation 2007

National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022

Treatises cited:

Butterworths's Word and Phrases Legally Defined Volume 1:A-C

Shorter Oxford English Dictionary on Historical Principles

Counsel:

Allan Baniyamai, for the Petitioner

Laura Painap with Menchie Numi, for the First Respondent

Tony Sua, for the Second Respondent

Baniyamai: Lawyers for Petitioner

Young & Williams: Lawyers for First Respondent

Sua & Sons: Lawyers for Second Respondent

RULING ON OBJECTION TO COMPETENCY OF PETITION

8^th March, 2023

1. David, J: INTRODUCTION: The petitioner, Lisia Ilaibeni (the Petitioner”) was an unsuccessful candidate for the seat of the Alotau Open Electorate in the Milne Province (the Electorate) during the 2022 National General Election (the Election). Hon. Ricky Morris, the First Respondent (the First Respondent) was the successful candidate for the Electorate. On 1 August 2022, the First Respondent was declared as the winner of the Election with 8,093 votes. The Petitioner polled 7,986 votes. The winning margin between the Petitioner and the First Respondent was 107 votes. The writ bearing the First Respondent's election was returned to the Governor General on 5 August 2022. The First Respondent was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.

2. On 8 September 2022, the Petitioner filed a petition addressed to the National Court at Waigani disputing the validity of the election or return of the First Respondent as the successful candidate for the Electorate pursuant to s.206 of the Organic Law on National and Local-level Government Elections (the Organic Law). The facts relied on to invalidate the return of the First Respondent are set out at paragraphs B1 to B16 of the Petition. The grounds upon which the Petitioner relies are set out at paragraphs C1.17 to C1.18, paragraphs C2.19 to C2.24, paragraphs C3.25 to C3.29, paragraphs C4.30 to C4.33 and paragraphs C5.34 to C5.40 of the Petition. The Petitioner alleges that the Second Respondent or his servants or agents committed errors and omissions when the scrutiny was commenced prior to the completion of polling in the Electorate particularly at the Daga LLG and during the conduct of the scrutiny to vitiate the election. The relief to which the Petitioner claims to be entitled, amongst others, are; the petition be upheld in its entirety pursuant to s.212(1)(i) of the Organic Law; an order for a recount of ballot papers cast in the Electorate pursuant to s.212(d) of the Organic Law within 21 days of the date of the order; an order in the nature of a declaration that the declaration of the First Respondent by the Returning Officer, Michael Kape on 1 August 2022 that the First Respondent was the duly elected Parliamentary Member for the Electorate is null and void and of no effect; and an order for a by-election for the Electorate to be conducted by the Second Respondent.

3. On 4 October 2022, the First Respondent filed his Notice of Objection to the competency of the petition (the Objection) pursuant to Rule 12 of the National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 (Election Petition Rules). He objects to the competency of the petition on six of the seven grounds pleaded which, apart from the first ground alleging want of form, are all predicated upon alleged non-compliance with s.208(a) of the Organic Law and therefore should be stopped at this juncture from proceeding to a hearing pursuant to s.210 of the Organic Law. At the hearing, the fourth ground of the Objection was amended without objection when the reference to s.215 was deleted and substituted by s.218. The grounds are restated below:

“1. The Petition is not in accordance with the form required by Order 4 of the Election Petition (Miscellaneous Amendment) Rules 2022 (the Rules) which is a requirement under s.208(c) of the Organic Law on National & Local Level Government Elections (“the Organic Law”), and consequently, the Petition is incompetent.

2. Ground C1 of the Petition is incompetent because it does not cite or invoke any provision under the Organic Law to ground facts to support the relief sought by the Petitioner in the Petition contrary to s.208(a) of the Organic Law.

3. Ground C2 of the Petition is incompetent because the invocation of s.218(1) of the Organic Law does not ground any facts to support the jurisdiction of the National Court to grant the relief sought by the Petitioner in the Petition. Section 218(1) of the Organic Law operates to exempt immaterial errors as grounds for relief in a petition. No other jurisdiction is cited to support the Petitioner's claim for relief contrary to s.208(a) of the Organic Law.

4. Ground C3 of the Petition is incompetent because it does not include any specific pleading of facts required under s.218 of the Organic Law to void the Election contrary to s.208(a) of the Organic Law.

5. Ground C4 of the Petition pleads s.153A(1)(a) and (b) and s.218(1) of the Organic Law, which are irrelevant to grounding the jurisdiction of the National Court to void the Election. No other jurisdiction is pleaded.

6. Ground C5 of the Petition is incompetent because the pleadings of facts required to properly ground an allegation of bribery under s.215(3) of the Organic Law are not specified, particularly, whether the allegation is pleaded under s.215(3)(a) or the allegation is pleaded under s.215(3)(b) contrary to s.208(a) of the Organic Law.”

4. The seventh ground of objection is actually not a ground, but a summation of the six grounds.

5. In summary, the grounds of objection in the order pleaded in the Objection, are:

1. Want of compliance with Form 1 of the Election Petition Rules;

2. Failure to plead the law;

3. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law;

4. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law;

5. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law; and

6. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law.

6. In support of the Objection, the First Respondent relies on and reads the affidavit of Tony Sua sworn and filed on 28 February 2023 (Doc 75). Mr. Sua is the lawyer for the Second Respondent. Objection was raised by Mr. Baniyamai, counsel for the Petitioner, about the use of Mr. Sua's affidavit at the hearing only after the First Respondent and the Second Respondent had concluded their initial addresses. Upon interjection by Ms. Painap that the objection should have been raised earlier when she placed reliance on the affidavit, Mr. Baniyamai did not seriously pursue his objection any further.

7. The Second Respondent did not rely on any affidavit.

8. In contesting the Objection, the Petitioner did not rely on any affidavit.

9. At the hearing, Mr. Baniyamai informed the Court that the Second Respondent had also filed a Notice of Objection to the competency of the petition belatedly in late February 2023. The Court file shows that the Notice of Objection to competency of the petition was filed by the Second Respondent on 21 February 2023. Mr. Sua for the Second Respondent then tried to seek leave to pursue the objection which he said was grounded on a point of law with an oral application and without referring the Court to any supporting affidavit to explain the delay and for not filing the objection within the time prescribed by Rule 12 of the Election Petition Rules. I refused leave but allowed Mr. Sua to make submissions on the point of law he wished to raise when addressing the Court on the Objection.

LAW ON...