Robert Agarobe v Rufina Peter and Others

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 February 2023
• Neutral Citation: N10141
• Citation: N10141, 2023-02-27
• Counsel: T Waisi, for the Petitioner,S Tadabe, for the First Respondent,A Ninkama, for the Second Respondent
• Hearing Date: 22 February 2023,27 February 2023
• Docket Number: EP NO 67 OF 2022
• Court: National Court

N10141

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 67 OF 2022

In the Matter of a Disputed Return for the Central Provincial Electorate

Robert Agarobe

Petitioner

v.

Rufina Peter

First Respondent

Electoral Commission

Second Respondent

Waigani: Cannings J

2023: 22^nd, 27^th February

ELECTIONS — PETITIONS — objections to competency of petition — Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) — s 208(a): whether petition adequately sets out facts relied on to invalidate election — s 217 (real justice to be observed) — whether s 217 is to be applied when determining objections to competency of petition — whether a ground of a petition needs to observe distinction between illegal practices under Organic Law, s 215 and errors or omissions of electoral officers under Organic Law, s 218.

The respondents to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) objected to competency of the petition, which consisted of eight grounds of challenge (one of which was abandoned). All grounds of the petition alleged errors or omissions by the returning officer or other electoral officers of the Electoral Commission in the counting of votes. The respondents argued that each ground of the petition failed to comply with s 208(a) of the Organic Law on National and Local-level Government Elections in that it: (i) failed to give sufficient details of the alleged facts relied on; and (ii) was confusing and internally inconsistent as, having set out a number of alleged errors and omissions of electoral officers, it alleged (without sufficiently specifying) commission of criminal offences by those officers, and invoked a wrong provision, or in some instances no provision, of the Organic Law to claim the relief sought (a declaration that the first respondent was not duly elected, an order for a recount of ballot-papers, an order for a by-election etc). The respondents claimed the petition was incompetent and should be dismissed. The petitioner opposed both objections to competency and argued that the Court should invoke s 217 (real justice to be observed) of the Organic Law and find that the respondents are nit-picking and relying on technicalities in an attempt to divert the court's attention from the substantial merits of the case.

Held:

(1) Section 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”. The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition. Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed.

(2) A ground in a petition will meet those requirements when it identifies the facts said to invalidate the election in terms of the Organic Law. It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on. It will also specify, in terms of the Organic Law, if necessary, how the illegal practices or errors or omissions affected the result of the election and any other matters required by the Organic Law to be proven.

(3) Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency.

(4) The respondents' complaint that the petition lacked detailed facts was not sustained. The underlying facts alleged to be errors and omissions on the part of electoral officials were adequately stated in each ground of the petition.

(5) However, each ground failed to observe the distinction drawn by the Organic Law between illegal practices (eg bribery and undue influence) by a candidate or another person with the candidate's knowledge or authority (recognised in s 215 of the Organic Law) and errors or omissions of electoral officers (recognised in s 218 of the Organic Law). Each ground, having alleged and set out details of errors or omissions by electoral officials, failed to clearly allege, as required by s 218(1), that those errors or omissions affected the result of the election. Instead, the grounds alluded confusingly to matters required to be proven under s 215 of the Organic Law and/or introduced vague and scandalous allegations of commission by electoral officials of the criminal offence of conspiracy under the Criminal Code.

(6) As a consequence, each ground of the petition failed to set out the facts relied on to invalidate the petition in a comprehensible, orderly and logical manner and failed to state the petitioner's case in a way that fairly put the respondents on notice as to the case that they had to meet.

(7) The petition failed to meet the requirements of s 208(a) of the Organic Law and was entirely dismissed.

Cases Cited:

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87

Beseoh v Bao (2003) N2348

Eoe v Maipakai (2013) N5066

Hagahuno v Tuke (2020) SC2018

Holloway v Ivarato [1988] PNGLR 99

Kamma v Itanu (2007) N3246

Karo v Kidu [1997] PNGLR 28

Kikala v Electoral Commission (2013) SC1295

Kopaol v Embel (2003) SC727

Manase v Polye (2009) N3718

Mune v Agiru (1998) SC590

Potape v Undialu (2018) SC1680

Saonu v Dadae (2004) SC763

Sauk v Polye [2004] 2 PNGLR 241

Tulapi v Lagea (2013) N5235

Yama v Yagama (2012) N4928

Counsel

T Waisi, for the Petitioner

S Tadabe, for the First Respondent

A Ninkama, for the Second Respondent

Waisi Lawyers: Lawyers for the Petitioner

Mel & Henry Lawyers: Lawyers for the First Respondent

Adam Ninkama Lawyers: Lawyers for the Second Respondent

27^th February, 2023

1. Cannings J: This is a ruling on objections to competency of an election petition. The petition, consisting of eight grounds of challenge, all alleging errors or omissions by the returning officer or other electoral officers of the Electoral Commission in the counting of votes, was filed by unsuccessful candidate Robert Agarobe (the petitioner) disputing the election of first respondent Rufina Peter as member for Central Provincial in the 2022 general election. The petitioner seeks a declaration that the first respondent was not duly elected, an order for a recount of ballot papers and an order for a by-election. The Electoral Commission is the second respondent.

GROUNDS OF THE PETITION

2. The eight grounds are described in the following terms:

1. Errors and omissions committed by the returning officer and the assistant returning officer in inclusion of disputed/suspected tampered votes in the primary count.

2. Errors and omissions – unexplained decision by returning officer to round off the absolute majority margin by an additional 802 ballot papers from 77,599 to 80,000.

3. Errors and omissions – unexplained discrepancies and variances in figures during eliminations.

4. Errors and omissions – addition of a large number of formal votes were declared as exhausted votes without explanation or notice from the returning officer.

5. Unauthorised, suspicious possession of unused ballot papers, remnants of used ballot-papers (butts) and ballot-box seals by counting officials outside counting periods.

6. Errors and omissions – continuation of counting in the absence of scrutineers, without notice or consultation.

7. Errors and omissions – discrepancies in the distribution of votes.

8. Errors and omissions – proceedings at the scrutiny not open to the inspection of scrutineers.

GROUNDS OF OBJECTION TO COMPETENCY

3. The respondents argue that each ground of the petition fails to comply with s 208(a) of the Organic Law on National and Local-level Government Elections. Section 208 (requisites of petition) states:

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

4. The respondents argue that each ground of the petition:

(i) fails to give sufficient details of the alleged facts relied on; and

(ii) is confusing and internally inconsistent as, having set out a number of alleged errors and omissions of electoral officers, it alleges (without sufficiently specifying) commission of criminal offences by those officers, and invokes a wrong provision, or in some instances no provision, of the Organic Law to claim the relief sought.

5. The respondents claim the petition is therefore incompetent and should be dismissed.

METHOD

6. The respondents have each filed a notice of objection to competency. The grounds of objection overlap to a large extent, so I will deal with both objections together.

7. I will set out each ground of the petition, and then in relation to each ground, address and determine the grounds of objections.

GROUND 1 OF THE PETITION

8. This ground of the petition states:

1. ERRORS & OMISSIONS COMMITTED BY THE RETURNING OFFICER AND THE ASSISTANT RETURNING OFFICER IN INCLUSION OF DISPUTED/SUSPECTED TAMPERED VOTES IN THE PRIMARY COUNT

21. On Saturday, 30 July 2022, between 3–4 am the Assistant Returning Officer Ian Karo announced the commencement of quality checks on primary votes on Count 125 from Team 68 from Woitape LLG....