Vincent Alois Yangwari v John Simon

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 29 January 2018
• Citation: (2018) N7143
• Court: National Court
• Year: 2018
• Judgement Number: N7143

Full : EP 26 of 2017; In the matter of a disputed return for the Maprik Open Electorate in the 2017 General Election; Vincent Alois Yangwari v John Simon and the Electoral Commission of Papua New Guinea (2018) N7143

National Court: Hartshorn J

Judgment Delivered: 29 January 2018

N7143

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 26 OF 2017

IN THE MATTER OF A DISPUTED RETURN

FOR THE MAPRIK OPEN ELECTORATE IN

THE 2017 GENERAL ELECTION

BETWEEN:

VINCENT ALOIS YANGWARI

Petitioner

AND:

JOHN SIMON

First Respondent

AND:

THE ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Hartshorn J.

2018: 22nd, 29th January

ELECTION PETITION - Objections to competency

Cases cited:

Albert Karo v. Lady Kidu [1997] PNGLR 28

Agonia v. Karo [1992] PNGLR 463

Baki Reipa v. Yuntivi Bao (1999) SC606

Biri v. Ninkama [1982] PNGLR 342

Bob Danaya v. Ati Wobiro (2016) N6250

Delba Biri v. Bill Ninkama [1982] PNGLR 342

Gabriel Dusava v. Peter Waranaka (2008) N3367

Greg Mongi v. Bernard Vogae & Anor (1997) N1635

Holloway v. Ivarato [1988] PNGLR 99

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

Ludger Mond v. Jeffrey Nape (2003) N2318

Mathias Karani v. Yawi Silupa (2003) N2385

Malcolm Smith Kela v. Peti Lafanama [1997] PNGLR 151

Paru Aihi v. Moi Avei (2004) N2523

Paru Aihi v. Moi Avei (No 2) (2003) SC720

Sir Arnold Amet v. Peter Yama (2010) SC1064.

Sandy Talita v. Peter Ipatas (2016) SC1603

Counsel:

Mr. A. Kumbari and Mr. S Dadada, for the Petitioner

Mr. T. Waisi, for the First Respondent

Mr. S. Ranewa, for the Second Respondent

29th January, 2018

1. HARTSHORN J: This is a decision on two objections to the competency of the petition of Vincent Alois Yangwari (petitioner).

2. The petitioner disputes the election of the first respondent, John Simon as the Member for Parliament for the Maprik Open Electorate in East Sepik Province, in the 2017 General Election, on the grounds of bribery, illegal practices and what is referred to as treating.

3. Both respondents contend that the petition is in breach of s. 208(a) and s.215 Organic Law on National and Local Level Government Elections (Organic Law). The Electoral Commission, the second respondent, supported by the first respondent also argued that the petition is in breach of s. 208(d) Organic Law. I consider this ground of objection first as if it is successful it will be determinative: Delba Biri v. Bill Ninkama [1982] PNGLR 342.

s. 208(d) Organic Law

Grounds

4. The second respondent submits that the petition does not comply with s.208(d) as the two witnesses who attested to the petition failed to provide proper addresses and occupations. This is because the addresses stated are in each case the name of a village only, and “P.O. Maprik, East Sepik Province”. The occupations are stated as “Ward Member/Councillor”, and “Businessman”.

5. Section 208 Organic Law is as follows:

“208. Requisites of petition.

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 court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”

6. Form 1 Election Petition Rules 2017 is the prescribed form of an election petition. The form provides for the attestation by two witnesses as follows:

“IN THE PRESENCE OF:

FIRST ATTESTING WITNESS:

I, ……………………….. (insert name of first attesting witness), ………………………. (insert occupation of first attesting witness), of …………………………… (insert address of first attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

……………………………………………

(signature of first attesting witness)

SECOND ATTESTING WITNESS:

I, ……………………….. (insert name of second attesting witness), ………………………. (insert occupation of second attesting witness), of …………………………… (insert address of second attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

……………………………………………

(signature of second attesting witness)”

7. In the petition the witnesses have attested the petition as follows:

1. Name: MICHEAL KANDI

Residential Address: Klabu Village

Postal Address: P.O. MAPRIK, East Sepik Province

Occupation: Ward Member/Councillor

Signature: (signed)

2. Name: LEXY LIM

Residential Address: Yangisaku Village

Postal Address: P.O. MAPRIK, East Sepik Province

Occupation: Businessman

Signature: (signed)

Consideration

8. In this instance, I am of the view that the requirements of the Election Petition Rules 2017 have not been complied with as the residential address for both witnesses are merely the names of villages. The, “name(s) of place” have not been stated precisely as the province, district and nearest town to the villages have not been stated. The reference to Maprik, East Sepik Province in the postal address cannot be taken to refer to the residential address. It may be that the witnesses have their residential and postal addresses in different provinces because of amongst others, the remoteness of the area, the proximity of the border of one province to another and to a Post Office, and their places of employment or business being in a different province to their places of residence.

9. As to whether s. 208(d) Organic Law has been complied with, I reproduce the following passage from the Supreme Court decision of Sandy Talita v. Peter Ipatas (2016) SC1603 at [18 and 19]:

“18. Section 208(d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. If a villager, the name of his village and District within the electorate would be sufficient. Where a town address is given, a postal address is sufficient. If a residential address is given, it is useful to state the section and allotment numbers and suburb or settlement. The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.

19. Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. This is a matter of court discretion to be exercised on a quick perusal and assessment of the information then available. See, Paru Aihi v Sir Moi Avei, (2003) SC720; Delba Biri v Bill Ninkama [1982] PNGLR 342; Raymond Agonia v Albert Karo [1992] PNGLR 463; Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151; Albert Karo v Lady Kidu (1997) N1626.”

10. In regard to the occupations that are stated, in Paru Aihi v. Moi Avei (No 2) (2003) SC720, the majority said that:

“The term “occupation” simply means one’s trade, profession, business or calling; things or activities one does for a living.”

11. A politician and a leader were stated, amongst others, as examples of “one’s” occupation. Given this description, it is conceivable that Ward Member, Councillor and Businessman could each refer to a person’s occupation. Consequently, the respondents’ submissions concerning the stated occupations of the witnesses in the petition are rejected.

12. In this instance as mentioned, the residential addresses for both witnesses merely state their village names. The name of the District is not stated, and so, given the statement in Talita v. Ipatas (supra), that is not sufficient for the purposes of s.208(d). I repeat as I stated earlier concerning the reference to Maprik, East Sepik Province in the postal addresses not being able to be taken as referring to the residential addresses.

13. As to the postal addresses that both witnesses have stated, it is P.O. MAPRIK, East Sepik Province. No box or box numbers are stated. Counsel for the petitioner informed the court from the bar table that there...