Tobias Kulang v William Gogl Onglo

• Jurisdiction: Papua New Guinea
• Judge: Auka J
• Judgment Date: 08 June 2018
• Citation: (2018) N7307
• Court: National Court
• Year: 2018
• Judgement Number: N7307

Full : EP No 76 of 2017; In the matter of a disputed return for Kundiawa Gembogl Electorate; Tobias Kulang v William Gogl Onglo and the Electoral Commission of Papua New Guinea (2018) N7307

National Court: Auka J

Judgment Delivered: 8 June 2018

N7307

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 76 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR

KUNDIAWA GEMBOGL ELECTORAE

BETWEEN

TOBIAS KULANG

Petitioner

AND

WILLIAM GOGL ONGLO

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Kundiawa: Auka J

2018: 3 & 4 April and 8 June

ELECTION PETITION – Objection to Competency – Facts to invalidate an election – Strict requirement of statute – Material & relevant facts to be pleaded with sufficient detail – No Speculative, vague assumption facts – Failure to plead adequate facts amounts to incompetency of Petition – Section 208 (a) Organic Law on National & Local Level Government Elections – S.210 Dismissal of Petition.

Cases Cited

Papua New Guinea Cases

Amaiu v Maki (2003) N2364

Amet v Yama (2010) SC 1064

Bernard Vogae v Greg Mongi (1999) N1635

Beseoh v Bao (2003) N2348

Daniel Kapi v The Electoral Commission (2003) N2327

Delba Biri v Bill Ninkama [1982] PNGLR 342

Ekip v Wimb (2012) N4899

Holloway v Ivarato Anor [1989] PNGLR 99

Joel Pawa v Robert Nagle [1992] PNGLR 563

Luke Alfred Manase v Don Pomp Polye (2009) N3718

Ludger Mond v Jeffery Nape (2003) N2318

Mathias Karani v Yawa Silupa (2003) N2385

Niggints v Tokam (1993) PNGLR 66

Nomane v Mori (2013) SC 1242

Olim v Kuman (2002) N2310

Pauu v Nagle [1992] PNGLR 256

Peipul v Niningi (1998) SC 580

Pila Niningi v Electoral Commission (2013) N5322

Raymond Agonia v Albert Karo (1992) PNGLR 463

Robert Kopaol v Philemon Embel (222) SC 727

Robert Kopaol v Philemon Embel (2008) N3319

Thomas Negints v Electoral Commission (1992) N1072

Tulapi v Lagea (2013) N5235

Vagi Mae v Jack Genia & Electoral Commission [192] N1105

Counsel:

Mr. Nemo Yalo, for the Petitioner

Mr. Camillus M. Gagma, for the First Respondent

Mr Harvey Nii, for the Second Respondent

8th June, 2018

1. AUKA J: BACKGROUND: The result for the 2017 election for the Kundiawa Gembogl Open Electorate in the Simbu Province was declared on 3rd August, 2017. The election was won by the First Respondent by polling 15, 499 votes. The runner up Wagi Merimba polled 12, 798 votes, Peter Kama, the second runner-up polled 10, 977 votes. The petitioner herein was the third runner-up polling 9, 385 votes

2. The physical difference of votes scored between the First Respondent and the runner-up is 2, 701 votes. The difference of votes between the Petitioner and the First Respondent is 6, 114 votes.

3. The Petitioner filed his Petition on the 12th September, 2017 challenging the result of the election pursuant to Section 206, 208 and Section 153 A(4) of the Organic Law on National and Local Level Government Elections (the ‘Organic Law”).

4. The Petitioner set out the facts in relation to Errors and Omissions from paragraphs 13 to 67 of the Petition. The Petition further set out one (1) other ground which is Error and Omissions on the part of the Second Respondent (Electoral Commission) which are set out under Part C, paragraph 1 to 10 of the Petition. The allegations in relation to errors and omissions from paragraphs 13 to 67 of the Petition are mumbled up or jumbled up with all allegations all mixed up. In my view there are too many allegations all in one ground and so on. In my view all allegations should be prepared separately so that it is easier to follow.

5. The First Respondent objected to the Competency of the Petition by way of an amended Notice of Objection filed on 22nd November, 2017. The First Respondent in the Notice of Objection to Competency sets out twenty-eight (28) grounds of objection and places them into four (4) main grounds:

a) Insufficiency facts (Speculative, vague, ambiguous and assumptions) under S. 208 (a) of the Organic Law;

b) Use of word “Voters” and “electors” under S.3 (1) and S.123 of the Organic Law;

c) Attestation of petition by witnesses under S.208 (d) of the Organic Law and;

d) Petition filed outside of 40 days period, S. 208 (e) of the Organic law

6. The Second Respondent by Notice of Objection filed on 28th November, 2017 objected to the Competency of the Petition.

7. On 3rd and 4th April, 2017 I heard submissions both oral and written on the Objection to Competency of the Petition and adjourned to give my ruling on a later date.

8. There are other grounds of objection raised by the First Respondent which have not been considered until the determination of this particular ground under S. 208 (a) of the Organic Law. If the Petition survives, the balance of the grounds will be fixed for decision on a later date.

9. This is my ruling on the objection to the Competency of the Petition.

10. Section 210 of the Organic Law on National and Local Level Government Election provides for objection to Competency in an Election Petition.

11. Section 210 of the Organic Law states that proceeding shall not be heard on a petition unless the requirement of sections 208 and 209 are complied with “Section 209 requires the payment of a Security deposit of K5, 000. 00 at the time of filing of the petition.

12. Section 208 sets out the requisites for a Petition. It states –

“A Petition shall:

a) Set out the facts relied on to invalidate the election or return, and;

b) Specify the relief of 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 Court house in any Provincial headquarters within 40 days after the declarations of the election in accordance with “Section 175 (1) (a)”.

13. Because the word used at the outset is “Shall” as opposed to “May”, it is mandatory invoking strict compliance.

14. There are host of cases that invokes strict compliance of section 208 (a). If not complied with will end the Petition there and then.

15. The Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342, when ruling on a reference concerning Section 208, held that if a petition does not comply with all of the requirements of S. 208 of the Organic Law, then there can be no proceedings on the petition because of S. 210. All this ruling has been the basis for Objection to Competency of petitions in many election petitions.

16. The Supreme Court recently in Amet v Yama (2010) SC1064 fully endorsed the Law on Section 208 of the Organic Law established by and since Biri v Ninkama (supra) in the following terms-

“ 32. It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the electoral process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of the allegations relied on. This is the underlying principle of Law behind S. 208 of the Organic Law as averted to by the Supreme Court stated in Delba Biri v Bill Ninkama [1982] PNGLR 342 at p.345.

“.... The Statute has clearly expressed its intention that a petition must strictly comply with S.208. It is not difficult to see why. An election Petition is not an ordinary cause..... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a scared right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of S.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of S. 210.

35 These provisions dictate that the petitioner must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent because of s.210: Delba Biri v Bill Ninkama (supra)

36 As to what facts ought to be set out under s. 208 and the rationale, the Supreme Court in Holloway v Ivarato Anor [1988] PNGLR, 99 held:

“ The facts which must be set out under S.2018 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved”.

39. Those approved authorities statements of the Supreme...