Robert Banasi v Alexander Orme and Others

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 21 March 2023
• Neutral Citation: N10163
• Citation: N10163, 2023-03-21
• Hearing Date: 17 March 2023,21 March 2023
• Date: 21 March 2023
• Docket Number: EP NO 72 OF 2022
• Counsel: M M Giruakonda, for the Petitioner,S G Dewe, for the First Respondent,P Kuman, for the Second Respondent,Counsel

N10163

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 72 OF 2022

In the Matter of a Disputed Return for the Sumkar Open Electorate

Robert Banasi

Petitioner

v.

Alexander Orme

First Respondent

Electoral Commission

Second Respondent

Waigani: Cannings J

2023: 17^th, 21^st March

ELECTIONS — petitions — application for summary dismissal of petition — whether petitioner has standing — whether petitioner qualified to be candidate in election — whether petitioner enrolled to vote — common roll — Organic Law on National and Local-level Government Elections, s 208(c) — whether a person who was a candidate but not enrolled to vote in an election can file a petition disputing return of successful candidate.

After an election petition was set down for trial, the first respondent, who was the successful candidate at the election the subject of the petition, filed a motion seeking summary dismissal of the petition. The first respondent, who was supported by the second respondent, argued that the petitioner, who was a candidate in the election, was not on the common roll for the electorate and lacked standing to bring the petition.

Held:

(1) There was sufficient evidence to find that the petitioner's name was not on the common roll for the electorate.

(2) The effect of s 208(c) of the Organic Law is that to have standing to bring a petition, the petitioner must have been a candidate at the election in dispute or qualified to vote at the election.

(3) Though the petitioner was actually a candidate, he was not a qualified candidate as he was not on the roll for the electorate. Nor was he qualified to vote at the election, due to his name not being on the roll.

(4) The petitioner lacked standing to bring the petition. Therefore, the petition was dismissed.

Cases Cited

The following cases are cited in the judgment:

Kapi v Kapi (1998) SC548

Kapi v Kapi (1998) SC570

Korry v Wei (2012) N4878

Masive v Okuk [1985] PNGLR 263

Nomane v Anggo (2003) N2384

Nomane v Anggo (2003) N2495

Sauk v Polye (1999) SC644

Counsel

M M Giruakonda, for the Petitioner

S G Dewe, for the First Respondent

P Kuman, for the Second Respondent

Giruakonda Solicitors & Barristers: Lawyers for the Petitioner

Jema Lawyers: Lawyers for the First Respondent

Kuman Lawyers: Lawyers for the Second Respondent

21^st March, 2023

1. Cannings J: After the election petition regarding the Sumkar Open seat was set down for trial, the first respondent, Alexander Orme, who was the successful candidate at the election, filed a notice of motion seeking summary dismissal of the petition. He argues that the petitioner, Robert Banasi, has no standing as, although he was a candidate in the election, he was not on the common roll for the electorate.

2. Two issues arise. The first is a question of fact. Was the petitioner on the common roll? The second is a question of law. If he was not on the roll, does he have standing to file a petition disputing the result of the election?

WAS THE PETITIONER ON THE COMMON ROLL?

3. The first respondent has adduced evidence to show that the name of the petitioner was not on the roll of electors for the Sumkar Open seat in the 2022 general election. The petitioner has not contested the evidence. I find as a fact that the petitioner was not on the common roll.

DOES THE PETITIONER HAVE STANDING?

4. Section 208(c) of the Organic Law states:

A petition shall … be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election.

5. This means that to have standing to bring a petition, a petitioner must:

(i) have been a candidate at the election in dispute; or

(ii) qualified to vote at the election.

6. As to (i) the only proper way to interpret this condition is that the person must be a qualified candidate. It is not enough to have been a candidate. You must be a qualified or proper candidate.

7. As to (ii) a person is only qualified to vote at the election if their name is on the roll of electors (the common roll) maintained by the Electoral Commission under Part V (electoral rolls) of the Organic Law. A person who is not qualified to vote is not qualified to be a candidate for election or a member of the Parliament. That is the effect of s 103(3)(a) of the Constitution, which states:

A person is not qualified to be, or to remain, a member of the Parliament if … he is not entitled to vote in elections to the Parliament.

8. There is a consistent line of authority supporting the above propositions: the Supreme Court decisions in Kapi v Kapi (1998) SC548, Kapi v Kapi (1998) SC570 and Sauk v Polye (1999) SC644; and the National Court decisions in Masive v Okuk [1985] PNGLR 263, Nomane v Anggo (2003) N2384. Nomane v Anggo (2003) N2495 and Korry v Wei (2012) N4878.

9. The Supreme Court (Woods J, Sawong J, Kirriwom J) explained the position in Kapi v Kapi (1998) SC548 as follows:

It is our view that the intention and spirit of the provisions we have referred to above, is that in order for a person to...