Badu v Brown [2008] PGDC 146; DC4097 (8 December 2008)

DC4097
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Court of Disputed Returns

LLGEP (21) 5 OF 2008

AHUTA BADU

Petitioners
-v-

DICKSON BROWN

1^st Respondent

PETER MALAIFEOPE

2^nd Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

3^rd Respondent

Port Moresby: Pupaka, PM

2008: 30^th October & 13^th November

RULING ON OBJECTION TO COMPETENCY

Local Level Government Election Petition – Petition challenging the result of Baruni Council Ward – Grounds – Mandatory requirements of section 208 of the Organic Law on National & Local Level Government Elections

Objection to competency – Section 208(a) – Insufficient facts – Section 208(d) – Petitions not properly or at all attested by two witnesses – Whether filing Statutory Declarations is in compliance with requirements of section 208(d) – Substantial compliance – Witnesses’ occupations not disclosed – Whether non discloser of occupation fatal to petition – Costs

Mr. B. Ovia for the Petitioner
Mr. R. Lindsay for the 1^st Respondent
Mr. D. Kobagle for the 2^nd & 3^rd Respondents
8^th December 2008

PUPAKA, PM: This is a ruling in relation to certain objections raised by the Respondents in relation to the competency of the Local Level Government election petition filed by the Petitioner herein, Mr. Ahuta Badu, who is challenging the validity of the 1^st Respondent, Dickson Brown’s declaration as winner /councillor of the Baruni Council Ward in the Motu-Koita Local Level Government area.

The 1^st Respondent was declared winner on 11^th June 2008. The petitioner filed this petition disputing that result. The relief he seeks by the petition is a declaration from this Court that the 1^st Respondent‘s win is null and void. He also seeks orders that he himself be declared as winner instead.

OBJECTIONS

By a set of objections filed on 23^rd September 2008 by the 2^nd and 3^rd Respondents, the Respondents now seek to have grounds pleaded in the petition ruled incompetent.

Therefore, as I have done previously in other similar petitions in respect of other Wards in the Motu-koita LLG area, I intend to refer to the objections raise here and then simultaneously decide if the pleadings in respect of each ground live up to the requirements of the law in section 208 of the Organic Law on National and Local Level Government Elections (OLNLLGE). There is no need to deal with the objections in any order or in the way the Respondents have raised them. All the objections constitute just one generic allegation of bribery, which is pleaded in a couple of short, single line paragraphs that are at best dealt with as one. I intend to do that, not withstanding that the Notice of Objection has a list of separate objections.

As this petition will be determined on the bases of whether or not there is proper attestation, I will deal with that issue – proper attestation – first. Then I will decide if the other objections have any merit. Finally I will briefly consider if section 217 of the OLNLLGE is a cure all provision that can preserve a ground from summary dismissal. In the circumstances that will be for the purposes of completeness and record only.

1. First Objection – Attestation
   

The Respondents say that the petition has not been properly or at all attested by two witnesses, which is a failure to comply with the requirements of section 208 (d) of the OLNLLGE. It is submitted that the non compliance renders the petition incompetent.

Two witnesses attested to the petition. They did not sign upon the petition proper but filed Statutory Declarations. Their Statutory Declarations contain evidentiary matters in the body of the documents, quite obviously intended to be used for the purposes of the petition. The Statutory Declarations were filed on the same day with the petition. These declarations are of course standard Court Registry generated forms. Whilst there are otherwise no discernable errors in the way these forms have been filled out, the Respondents find fault in that, in the spaces allocated in the forms for attesting witnesses to state their occupation, both attesting witnesses wrote “Unemployed”. In the circumstances the Respondents now say the petition has not been properly attested by two witnesses as required by law. They therefore say that even if the Statutory Declarations are accepted as serving the purposes of attestation, nevertheless the attestations are bad for the witnesses’ failure to disclose their respective occupations, rendering the purported attestations invalid.

The first issue raised by this objection over the manner of attestation is whether or not the requirement of section 208 (d) of the OLNLLGE is restricted to attestation upon the body of the petition itself and not outside of it. That means this Court must decide if Statutory Declarations are acceptable attestation. I wish to address this first issue first.

Section 208 (d) requires a petition to be “be attested by two witnesses whose occupations and addresses are stated”.

The general law on the mandatory requirements of the OLNLLGE is as settled in the case of Biri -v- Ninkama (SC235). The Supreme Court said in that case that “an electoral petition disputing the validity of an election addressed to the National Court [read District Court, section 287(2)(d)] and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.”
In that case (supra) the Supreme Court had to answer two questions posed by the National Court in a Reference to it pursuant to section 18 (2) of the Constitution. These questions arose in the course of the hearing of a disputed election petition in the National Court. One of the questions of law was: “To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s. 208 of that law.” This was the question that elicited the ruling cited above.

It was not within the scope of that Referral for the Supreme Court to further say if it is proper for witnesses to attest a petition outside of the petition document itself. Moreover, a cursory search of the cases on my part reveals no precedents, both National and Supreme Court; that may have had occasion to address this factual issue.

That notwithstanding I must decide this issue by applying the law the way I understand the law to be. It occurred to me that there may be a question in this for a possible referral to the Supreme Court. However if a referral will result in the adjournment of this petition for an indeterminate length of time, I do not think it serves the best interests of the parties. In any case the parties are at liberty to consider their options after I rule on the issue, depending on which of them is minded to progress things further.

That said, where witnesses have not signed on the body of the petition document itself and there is purported attestation outside of it, I think it is possible to say if the attestation is a conscious and deliberate act of compliance with the requirement of law, or whether the attestation is by default or ‘accidental’. For instance, attestation by default may occur where two witnesses file affidavit evidence at the time the petition is filed, for other purposes, but the affidavits contain all the requirements of section 208 (d). In this instant case though, I am convinced that the witnesses’ fully intended to comply with attestation requirements.

In my view, where the required details of attestation are present, whether on the body of the petition or outside of it, it will suffice that the purposes for attestation are served. I say this because it is not a requirement of section 208 (d) that attestation is strictly upon the body of the petition. This provision merely requires a petition to be “be attested by two witnesses whose occupations and addresses are stated”. By the same line of reasoning it is also correct to say that the law does not expressly require attestation to be by Statutory Declaration or by affidavits.

In my view, there is substantial compliance with attestation requirements if, at the time the petition is filed, or at anytime within 40 days from thence or before the expiration of the period allowed for amendment, an affidavit or Statutory Declaration is filed by two witnesses whose name, address and occupation are stated. A petition’s genuineness can be attested by affidavit or statutory declaration even if the affidavit or statutory declaration, though not filed deliberately as attestation, nevertheless discloses all the details required for a proper attestation of an election petition.
In a similar case, while deciding on the purpose of the address requirement in section 208 (d) Sheehan J said in Agonia v Karo [1992] PNGLR 463:

“The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located.” (at page 465)

I think the Petitioner herein intended to comply with the requirement for attestation. He thought the best way to do that was to have two witnesses file Statutory Declarations. Two witnesses filed declarations on the day the petition was filed. Therefore I accept that the Statutory Declarations dated 21^st July 208 are purported attestations within the meaning of section 208 (d) of the OLNLLGE. I hold that there was a deliberate attempt at substantially complying with the requirements of that law. Nevertheless the issue of whether or not there is proper attestation is far from resolved.

The Respondents’ second leg of the objection on attestation is that even if the two Statutory Declarations are to be accepted as serving the requirements for attestation, a vital feature of attestation, which is discloser of the attesting witnesses’ occupations, is not stated. They say this failure renders the two witnesses’ attestations defective and a failure to comply with the mandatory requirements in section 208 (d).

It really cannot be disputed by anyone, including the petitioner, that the attesting witnesses did not disclose their respective occupations, even though they did state their names and addresses. Disclosing an attesting witness’s occupation is a clear, separate and mandatory requirement of section 208 (d). To my mind, failure to disclose an attesting witness’s occupation can prove fatal for any petition. Even if attesting witnesses do not have salaried employment, they could still comply with the law by stating whether they are “subsistence farmer” or “fisherman” or “pastor” or “village court officer” or “PMV driver” or whatever it is that adequately describes how they earn their living. The discloser will make identification of the attesting witness easier. The full discloser also effectively attests to the genuineness of a petition.

Mr. Ovia for the Petitioner submitted correctly that the requirement for name, address, and occupation is to ensure that attesting witnesses are easy to locate. Mr. Ovia referred the Court to comments of Justice Injia (as he then was) in the case of Karo –v- Kidu N1626. Injia J expended on Sheen J’s view in relation to the purpose of section 208 (d) in Agonia –v- Karo (supra). So how does one determine whether the purpose of section 208 (d) is served by the information provided? Injia J thought adequacy of the information disclosed is to be assessed in the following way:

“In my view, OLNE S. 208 (d) simply requires an “address”. Section 208 (d) does not require a residential address. I agree with Sheehan, J’s statement f the purpose of S. 208 (d). I would also agree with His Honour that the requirement to specify the “residential address” on a Petition may depend on the “personal circumstances” of the witness. In my view, S. 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address.”

In the case before him the Chief Justice had to be satisfied of the adequacy of the address details disclosed. In the case now before this Court the validity of attesting witnesses’ occupation is in issue. However, considering that the purpose of section 208 (d) is to “collectively render it possible to easily identify and locate the witness” are the details of attesting witnesses Messrs Igo Maraga and Iama Teka adequate? Having restated the details of a attesting witness in the case before him Injia J said:

“...Mr Mahuru’s address is: Allen Mahuru, Administrative Officer, Motu-Koita Assembly, PO Box 81 KONEDOBU, National Capital District. If one were looking for Mr Allen Mahuru, then it would not be difficult to locate him. One would simply call in at the office of the Motu-Koita Assembly at Konedobu during working hours and ask for its Administrative Officer, Mr Allen Mahuru. In the present case, I am of the view that the address given in the Petition sufficiently complies with OLNE S. 208 (d).”

In this case though, the attesting witnesses’ full details are “Igo Maraga, unemployed of Baruni Village” and “Iama Teka, unemployed, of Baruni Village” respectively. Nothing else of their personal details is disclosed.

Whilst I am not convinced that the case of Karo –v- Kidu (supra) is not distinguishable, for the reason that the issue of adequacy of details in that case was only in relation to the address of a attesting witness and not relative to the requirement for discloser of occupation, I think there simply is not enough disclosed in the instant case to indicate who the witnesses really are. When a name and a village name are the only details supplied, it would prove difficult to identify who these persons are; more so perhaps in an LLG area where people tend to have the same or similar common names. To accept as sufficient a name and village name is, in my view, to take too much out of section 208 (d). Even then I am convinced that the law clearly requires discloser of an attesting witness’s occupation, for whatever purposes the law requires it. It is a mandatory requirement.

I am also of the view that Injia J’s statements quoted above in no way excuses an attesting witness from disclosing his or her occupation. As I have said previously in relation to other petitions from the same LLG area, it is a case of whether or not all the boxes are ticked, so to speak. It is a case of whether or not the minimum requirement for name, address and occupation are disclosed or not. The address, in as much as a village name is given, is disclosed. The occupation part is wrongly stated by both witnesses. In my view, that failure is fatal for this petition.

People from the villages may have difficulty understanding why seemingly insignificant details like non discloser of an obviously unemployed villager’s occupation will have to decide the fate of an important case like an election petition. Nevertheless they must know that the right to vote or contest in elections or indeed challenge election wins are a matter of law. It follows that the need to disclose an attesting witnesses’ occupation, being a mandatory requirement of the same law that bestows those rights, will make a difference as to whether a election petition can move onto the next phase or it falls. In this instance this petition will unfortunately fall.

2. Objections under Section 208 (a)

The whole of the Petitioner’s brief petition reads:

“It is alleged the first Respondent had intended to induce the electors to vote for him when he actually gave cash on three (3) instances of bribery to Messrs Eli Billy, Igo Maraga and another candidate Iama Teka respectively during the election period for the Baruni Electorate.

As aspiring leaders this is a very serious thing to do. 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 an act of corrupt practices aimed at these inducements offered with the intention of interfering with the lawful process of an election.

According to the organic law in conjunction with the Criminal Code Act, which constitutes the elements of bribery therefore the election of the First Respondent should be declared void by this honourable court.” (Sic)

The Petitioner says three people were bribed by the 1^st Respondent, two of whom are his attesting witnesses. One of the two was a candidate in the Baruni Ward election. That is all. Nothing else by way of facts is disclosed.

Considering that the Petitioner is alleging illegal acts against the 1^st Respondent in this petition, section 208 (a) of the OLNLLGE requires him to disclose details of the bribes offered; where, when and how much. The law obligates the Petitioner to disclose whether the persons bribed are voters of the Ward. It is not necessary to plead the evidence that would be used to establish the elements of the offence of bribery.

The Petitioner’s attesting witnesses did disclose some facts in their respective Statutory Declarations, which, though defective for attestation purposes, would be otherwise good for the purposes of evidence in a hearing proper. However the imperative of the law in section 208 (a) is that the Petitioner discloses the relevant facts in the petition. A Statutory Declaration of course is not the petition. The Respondents are obligated to file defences to the facts pleaded in the petition, inter alia, to define the issues for resolution in a hearing. That is of course not possible when material facts relied on to invalidate an election are not disclosed in the petition. Respondents to election petitions cannot possibly defend cases, the particular facts of which are not given.

That really summarises the fate of this Petitioner’s petition. Even without the determinative ruling in relation to the invalid attestation under section 208 (d) of the OLNLLGE, I would think the Petitioner’s petition herein would still suffer the same fate on the bases that a lack of discloser of material facts offends against section 208 (a) of the OLNLLGE.

APPLICATION OF SECTION 217 OF THE OLNLLGE

Unlike others, this Petitioner did not submit that there is scope under section 217 of the OLNLLGE to excuse defects like non discloser of witness occupations or details of material facts. Nevertheless, in keeping with a practice that has been common in all other LLG election petitions from the recent Motu-Koita LLG elections that this Court has had to deal with, I intend to add some general observations in relation to the application and importance of section 217 of the OLNLLGE. That provision reads:

“217. Real justice to be observed

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

I must cite an excerpt of a judgment by the Chief Justice (Injia J, as he then was), in Albert Karo -v- Carol Kidu (N1626). It succinctly summaries the pivotal requirements of the relevant provisions of the OLNLLGE that have been at issue in the string of recent competency applications. The Chief Justice was dealing with this same issue, of the scope and application of section 217 of the OLNLLGE, in the context of a similar set of objections on competency that were before him.

“The Supreme Court in Biri v Ninkama, decided that an “electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to S. 206 of the Organic Law on National Elections must strictly comply with each and every requirement of S. 208 of that Law” (at p. 346, underlining is mine). At p. 345, the Supreme Court unanimously decided that “all the requirements in S. 208 and 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National elections, it is a Constitutional Law. Section 210 simply precludes any proceedings unless S. 208 and S. 209 are complied with. If “a petition does not comply with all the requirements of S. 208, then there can be no proceedings on the petition because of S. 210” (at p. 345). The application of S. 217 is “only relevant when the National Court determines the merits of the case and when dealing with evidence before it as relevant to the merits” (at p. 346), that is, when the substantive petition is heard. Section 217 does not apply at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of S. 208.” (Stress added)

Albert Karo’s case (supra) is, for this instant Court, binding precedent. The clarity of its verdict is such that I cannot do more than cite it. All I can add is that some of the petitioners, disputing the results of some Wards in the Motu-Koita LLG area, were mistaken in placing reliance upon a perceived laxity in section 217 for the purposes of objection to competency applications. For it seems clear that section 217 of the OLNLLGE cannot apply during objection to competency hearings.

Again, in keeping with a practice adopted by this Court in other LLG election petitions from the Motu-Koita LLG elections this year, I must add some further, and in my view relevant, closing comments.
The right to vote and stand for elective public office is a right bestowed by law, namely the Constitution, to those eligible to participate. As to who is eligible is defined by law. Just how that right may be exercised is prescribed by law. As to who, how, when and where election results can be challenged is prescribed by the same constitutional laws that grant the right to vote and contest elections or indeed challenge election results. These rights are neither customary nor hereditary.

Those who enjoy the privileges granted by law must adhere to all that the law requires of them. In matters like election dispute cases, people must get every mandatory requirement of the law right. It makes no difference whether people are villagers or city dwellers, whether they are educated or unlearned, or indeed whether they are simple or complicated people. The application of the legal regime that regulates these processes applies without distinction or discrimination, unless of course the distinction or discrimination is a matter of the legal regime itself.

In the end I declare firstly that this petition is defective in that the respective attesting witnesses have not disclosed their occupations. Their failure offends a mandatory requirement in section 208 (d) of the OLNLLGE. I dismiss the Petitioner’s entire petition for that defect alone.

Secondly, the Petitioner also failed to disclose sufficient facts to clearly state in his petition the details he relies upon to invalidate the 1^st Respondent’s election victory. He failed to provide or plead details as to how much the three named witnesses was paid, where each of them was paid and when; thereby offending section 208 (a) of the OLNLLGE. Therefore, having struck down the ground of bribery for that reason, I would also dismiss this petition as being incompetent.

COSTS

Awarding cost is a discretionary relief. I note that had this petition been drafted properly, sufficient to pass the tests of the mandatory requirements of the law, there would have been a serious issue, relative to the integrity of the election process, to be tried and heard on the merits. As it is that is now not to be the case.

Therefore, considering it to be only just and fair, I order that each party bear their own costs of this proceeding.

______________________________________________________

Mai Lawyers for the Petitioner
Gadens Lawyers for the 1^st Respondent
Parua Lawyers for the 2^nd & 3^rd Respondents