Neknan v Kanong [2008] PGDC 23; DC686 (11 November 2008)

DC686

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

LLG-EP O4 OF 2008

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF A DISPUTED RETURN FOR ATKAMBA WARD 03,
KIUNGA RURAL LOCAL-LEVEL GOVERNMENT

BETWEEN

MAX NEKNAN
(Petitioner)

AND

KENNEDY KANONG
(First Respondent)

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(Second Respondent)

Kiunga: P. Monouluk, SM
2008: 23 September; 10 October; 11 November

RULING

ELECTION PETITION – Local-Level Government Election – Objection to competency – Petitions to strictly comply with requirements of s.287(1) by reason of s.287(5) – Failure to comply will render petition null and void – Grounds for objections – Undue influence and defective witness declarations – Undue influence – Petitioner need only to state facts as perceived under s.102 Criminal Code Act – Strict compliance does not mean all facts be crammed into a sheet of paper – Petitioner may furnish attachment to adequately plead all facts concerning allegation(s) so raised – Objection overrule – Defective declarations – Hearsay evidence – Section 217 not applicable in competency application – Section 208 (d) strict compliance provision – Objection upheld – Petition not in accordance with s. 287(1),(3)-(5) – Petition dismissed.

Cases
1. Delba Biri v. Bill Ninkama [1982] PNGLR 342
2. Ginson Saonu v. Bob Dade (2004) SC763
3. Jim Nomane v. David Anggo (2003) N2496
4. Jimson Sauk v. Don Polye (2004) SC769
5. Mapun Papol v. Anthony Temu [1981] PNGLR 178
6. Mathias Ijape v. Bire Kimisopa (2003) N2344
7. Neville Bourne v. Manessah Voeto [1977] PNGLR 298
8. Steven Pirika v. John Itanu & the Electoral Commission of PNG & Michael Laimo (2007) N3246
9. Webb v. Hanlon [1939] Q.S.R. 90

References
1. Constitution, Schs.2.3, 2.4, 2.9
2. Criminal Code Act Chp. 262, ss.102 and 103
3. The Organic Law on National and Local-Level Government Elections, 1997,
Part XVIII, Div 1, Part XIX, Div. 14

Counsel
Petitioner in person.
First respondent in person.
T. Dalid for the second respondent.

11th November, 2008.

1. P. MONOULUK, SM: This is an objection application by the second respondent raising three (3) grounds challenging the competency of the petition which was filed against the election victory of the first respondent in the Atkamba Ward three (3) of the Kiunga Rural Local-level Government.

2. The first ground of objection challenges the petitioner’s first point that a Henry Kamaep Tikam had influenced a Andy Daop and his clan members to vote for the first respondent. The counsel representing the second respondent said that the petitioner had failed to plead the exact date(s), time(s) and venue(s) where Tikam had approached the Daop clan members and proceeded to influence them. Furthermore, the petitioner failed to plead the type or nature of the influence used by Tikam, how such was able to influence the clan members to vote for the first respondent, and how many had in fact voted for the first respondent as a result of that influence.

3. The second ground by the second respondent refers to the petitioner’s second point that a Yanu Amaim, Korak Okinon, Bobori Orot and Clamsie Kanong were seen influencing elderly voters to vote for the first respondent. In respond the counsel said that once again the petitioner had failed to plead the exact date(s), time(s) and venue(s) that those named were doing what he claimed to be. The counsel added that there were no indications by the petitioner as to how the individuals above had influenced the elderly voters at the polling booth to vote and how many of these voters had in fact voted for the first respondent against their free will.

4. The final ground for objection was that the petitioner’s two (2) attesting witness declarations were defective. The counsel said that they were hearsay in nature by referring the court to an affidavit filed by the petitioner and not stating what the deponent themselves had perceived concerning any irregularity by the respondents or their agents. As a result of these failures by the petitioner the counsel said that the petitioner had failed the tests set out under ss.208 (a) and (d) of the Organic Law on National and Local-Level Government Elections, 1997 (hereafter the Organic Law) and therefore the petition must be dismissed.

5. The petitioner made his respond in three parts. Part A is not relevant as it merely introduces his reply to the objection. Part B of the reply gave an explanation why the petitioner may not have been prepared well. The petitioner explained that he had no experience in such court matters and being a simple villager it did not help very much in his case preparation. The petitioner feels that the second respondent should take some blame for his predicament for not able to conduct awareness to the candidates of the demands and expectations by the Organic Law in relation to petitions prior to the commencement of the elections.

6. Part C of the respond sought to give evidence this time clearly explaining the date(s), time(s), venue(s), the incidents and the nature of the influence by the agents of the first respondent. A closer look at this aspect of his respond revealed that it was a repetition of what he had stated in his affidavit dated 05th June, 2008 and filed as an attachment to his petition.

7. In respond to the respond by the petitioner, the first respondent sought to give evidence also denying that a Henry Kamaep Tikam was one of his campaign officials. He however said that the conduct of the election at Atkamba Ward 3 was peaceful as the police personnel were there to keep everything in control. He further said that helpers were able to assist voters but upon the voters own request. On the whole the election at Atkamba village was peaceful and orderly.

8. The counsel for the second respondent however said that the petitioner had not being able to respond to the objections he had raised against his petition. He said that the petitioner’s respond was an attempt to give evidence and therefore amend the petition outside the 40 day period which has already lapsed. He further said that the excuse of being a villager and illiterate and not being able to prepare a petition well is not an excuse under law. The only way forward would be for the court to strike out the grounds of the petition that are not adequately covered and allow the well defined ones to proceed to trial.

9. The Organic Law and other related laws has a simple purpose and that is to ensure that elections, whether national or local-level must not only be free and fair for candidates and voters alike, but must be seen to be so also. Any action or inaction that is deemed improper and may possibly affect the outcome of an election result can be challenged in a court of disputed returns. In Local-level Government Elections such as this the basis upon which a petitioner sought to bring his grievances to court to challenge a seemingly valid election victory is Division 14 of the Organic Law. Termed ‘Disputed Elections and Returns’, s.287 of the Organic Law says in this manner:

"287. DISPUTED ELECTIONS AND RETURNS.

(1) Subject to this section, the provisions of Part XVIII of this law, other than Sections 208(e), 209, 210, 212(2), and 213, shall apply as the provisions of this law relating to disputed Local-level Government elections and returns.

(2) ...

(3) A petitions to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held..."

10. For a petitioner to be successful in court he must first satisfy certain requirements of the law. Section 287(1) referred to various provisions of the Organic Law and one of the important ones is s.208. Except for paragraph (e), this provision which the counsel relies on to say that the petitioner did not adhere to, lays out the pre-conditions that a petition must satisfy or overcome to be accepted as such. Section 208 is in these terms:

"208. REQUISITES OF PETITION.

A petition shall-

(a) sort 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 elections 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..."

11. We have seen in the line of argument by the counsel that the petitioner’s failure to clearly state the facts relating to the instances of undue influences by not stating the date(s), etc and furthermore his two witness declarations placing reliance on hearsay, all amounts to a non-compliance of the strict requirement placed by s.210 of the Organic Law. May I correct the counsel here that the appropriate provision in place of s.210 in the District Courts is s.287 (5) of the Organic Law.

12. The law has been settled in this issue of strict compliance under the Organic Law. For a petitioner to run to court, he must remember that not only is he challenging the express views of the majority so to speak, which we assume on the face of it that the result was achieved fair and free, but he is also attempting now to initiate a usually long court process that is more often than not time consuming, expensive and stressful. That is why the Supreme Court comprising three (3) judges in Delba Biri v. Bill Ninkama [1982] PNGLR 342 first said at p. 345 that:

"... it seems to us that 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 ..., and it is a very serious thing...

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."

13. By this view the Supreme Court had clearly indicated to petitioners the huddles they must overcome in their bids to overturn a presumably valid election victory that usually come about at a greater costs to many. In reaching that view, the Court earlier explained that ss.208, 209 and 210 are mandatory provisions and those who seek to rely on them (particularly ss. 208 and 209) must strictly adhere to their requirements. The Court said at p. 345 that:

"In our view it is clear 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 proceeding unless s.208 and s.209 are complied with."

14. This manner of interpretation of ss.208 and 210 by the Supreme Court has been followed ever since resulting in numerous petitions being thrown out as a result of competency failure and before they even started. Various subsequent cases have been critical of the strict compliance requirements under the Organic Law making references to s.222 to have no legal representation in the first instance and further arguing that the legal argument of forms and technicalities should not be allowed at all as their demands tend to run contrary to the original intention of the Organic Law.

Despite that the 1982 ruling has remained so for the last 28 years.

15. In 2004 two separate Supreme Court cases of Jimson Sauk v. Don Polye (2004) SC769 and Ginson Saonu v. Bob Dade (2004) SC763 were able to clearly define the boundaries in which the strict compliance requirements are applicable after various National Court decisions starting with the Mathias Ijape v. Bire Kimisopa and the Electoral Commission N2344 had misconstrued the interpretation in the Biri v. Ninkama case to cover s.206 of the Organic Law. The 2004 Supreme Court decisions explained that the strict compliance requirement is only meant for ss.208, 209 and 210. All other provisions of the Organic Law including s. 206, unless expressly stated, cannot be held to be strict compliance provisions.

These rulings by the Supreme Court are important and helped in addressing the doubts and confusions that came about as a result of the Biri v. Ninkama case as we have seen in the Ijape v. Kimisopa case.

16. One such case that also played a similar role like that of the 2004 Supreme Court cases was the earlier National Court case of Neville Bourne v. Manessah Voeto [1977] PNGLR 298. This case first made clear that when undue influence is alleged under s.208 (a) of the Organic Law the petitioner will have to prove it following the requirements of s.103 of the Criminal Code Act Chp. 262. That was an important clarification in so far as undue influence is concerned in election cases. A subsequent National Court case of Jim Nomane v. David Anggo (2003) N2496 better explained this proposition by Les Gavara-Nanu J who said that:

"... I am of the opinion that in some cases, the Courts have given unnecessary technical meaning to the words ‘facts’ in s.208 (a) and have as the result held that to set out or plead ‘facts’, as required in that section, the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents.

In my opinion such particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded ...

But in allegations such as double voting or tampering of ballot boxes, it may not be necessary and it would indeed be impossible to plead the actual dates when the alleged incidents happened, how they happened and the names of the persons who committed them. For instance, alleged double voting may only be evidenced by the double entries in the electoral rolls or a ballot box may be discovered to have been opened or tampered with upon it being returned to the Returning Officer, in which case, no-one would know when the ballot box was tampered with and by whom.

Similar considerations may apply in cases of errors and omissions committed by the electoral officials. For instance, in cases where a large number of people are allowed to vote by the electoral officials without being identified as eligible voters in the particular electorate. This may happen as the result of threats of violence ... to the electoral officials or the electoral officials simply allowing people to vote without taking proper measures to identify them as eligible voters for the electorate, and so on."

17. This position by the National Court does put into perspective the proper expectations, if you like, under s.208 (a) of the Organic Law. These expectations to clearly state the date(s), time(s) venue, names, etc in which an improper act had taken place may not be practical in instances where a court is called upon to review allegations such as double voting or tampering of ballot boxes, or errors and omissions by electoral officials. The Court said that such expectations however may be required to be met in other instances such as undue influence and bribery in line with their criminal nature under ss. 102 and 103 Criminal Code Act Chp. 262 respectively.

18. What is the implication of these rulings to a District Court exercising powers under the Organic Law as a Court of Disputed Returns? The implications are obvious. Although these Higher Court rulings were made in the context of the National Elections, their application to the Local-level Government Elections is appropriate and relevant by reason of s.287(1) of the Organic Law which expressly adopts Part XVIII of the Organic Law covering national election disputes with the exclusion of certain provisions therein. For this reason and by virtue of the principles of judicial precedent enunciated in Sch. 2.9 of the Constitution, these Higher Courts rulings starting with the cases of Bourne v. Voeto, Biri v. Ninkama, Nomane v. Anggo and the 2004 Supreme Court cases are now binding and applicable in the District Courts sitting as Courts of Disputed Returns and this case is no exception.

19. Bearing in mind the expectations by the law as we have seen beginning with the case of Biri v. Ninkama, may I now look at the three grounds by the petitioner that are now before me beginning with the two grounds of undue influence. As we have seen, the counsel had submitted that the petitioner in relying on the two (2) grounds had failed to clearly state the dates, times and venues that these incidents of undue influence had taken place, and furthermore was not able to state the names of those being influenced and the nature of those influences used.

20. I had the benefit to review the facts or the lack of it the counsel sought to rely on and in particular the affidavit by the petitioner as an annexure to the petition. It is clear that the petitioner had three grounds to rely on to challenge the election victory. These grounds are clearly spelt out as ground 1 – 3. However, due to the limited space to write on in the petition the petitioner had opted to rely on his affidavit which he indicated as ‘see attached affidavit for reasons’ towards the edge of the paper thus referring the Court to a more detailed explanation of the circumstances he claimed the instances of undue influence had taken place under.

21. The counsel’s explanation however is that the petitioner had not clearly stated the facts as required under s.208 (a) of the Organic Law in respect to the two instances of undue influence; that he failed to state the dates, times, venue etc in order to sufficiently satisfy the requirements of undue influence all in the space provided in the petition. It seem to me that the counsel expected the petitioner to write all his grounds in this limited space and is not prepared to accept any attachment such as the petitioner’s affidavit as part of the petition and according to him the petitioner had not complied with s.208(a) of the Organic Law.

22. I do not think the strict compliance of s.208 of the Organic Law meant that all the facts the petitioner sought to rely upon must be crammed into half the size of an A4 sheet of paper as we have seen on the petition. I understand that the strict compliance requirement of s.208 only meant that a petitioner must comply with its requisites but it does not say how. Because of the expectation by s.208 (a) to state the dates, times, venues, etc in order to highlight instances of undue influences, a petitioner must be given room sufficient enough for him to adequately spell out all necessary facts required to support his claim and that means furnishing attachments to achieve that in line with the spirit of s. 208(a) of the Organic Law.

23. I do endorse what Ambeng Kandakasi J said in the National Court case of Steven Pirika v. John Itanu & The Electoral Commission of PNG & Michael Laimo (2007) N3246 after the respondents had objected on the basis that there was inconsistency between the subheading and the pleadings that followed. His Honour, in dismissing the argument, said that:

"There is no requirement in the Organic Law for a petitioner to follow through in his substantive pleadings what he or she might signal in a main or subheading to his or her petition. All that s. 208 of the Organic Law requires is a statement of the facts relied on to reverse an election result without prescribing the way in which the facts must be stated. That in my view, leaves room for a petitioner to draft his petition in a way he or she sees fit as long as he or she amongst others clearly states the facts relied on."(emphasis mine).

24. This ruling, particularly like the one in the Nomane v. Anggo case helps yet to make clearer the real intention and the expectation of s.208 (a) of the Organic Law. I must say that the petitioner’s effort to go at length to prepare his statement which clearly states the facts he seeks to rely upon must not be brushed aside easily. I believe life should not be too difficult for a petitioner, especially those who act without the aid of lawyers and have little formal education of their own.

25 In this case the petitioner, being a villager, faired well by first introducing the three (3) grounds and then because of limited space on the petition paper directed the court to his attached affidavit dated 05th June 2008. My examination thereof indicates instances of undue influence which I view as well defined. It is evident that the petitioner had clearly indicated the dates upon which the acts of undue influence allegedly took place, where such had occurred, who were involved as perpetrators and victims, and the nature of the influence itself as perceived by s.102 of the Criminal Code (supra). All these are clearly pleaded in paragraphs 3 – 5, 7 of the petitioner’s affidavit hence I cannot accept the counsel’s bid that the petitioner had failed to state the dates, times, venues in which the undue influences had taken place; the petitioner had and I view it as a substantial compliance on his part in this regard; hence I must overrule this aspect of the objection.

26. Secondly, the counsel submitted that the petition must fail because the petitioner’s two (2) attesting witnesses have failed s.208 (d) of the Organic Law by relying entirely on the affidavit by the petitioner hence their evidence is hearsay. It is clear that the two (2) witnesses have not stated what they have perceived to be the contrary conduct of undue influences by the first respondent or his agents. Both merely stated in their separate declaration as "see witness affidavit", making reference to the affidavit by the petitioner.

27. As a witness one is required to state what he has observed and not what he has heard from others. One cannot rely on the evidence of another to call it his own. Although s.217 of the Organic Law is available for the court to rely on to disregard legal formalities, technicalities and the requirements of the Evidence Act Chp. 48, its application is only possible when the matter proceeds to trial and not during the competency stage such as this. This was how the Bourne v. Voeto case first held to be so declaring that hearsay evidence is admissible in an election petition but only during a trial by virtue of s.217 of the Organic Law; however the weight to be attached thereto may not be as heavy as that of direct evidence.

28. This issue of s.217’s applicability was subsequently restated in the National Court case of Mapun Papol v. Anthony Temu [1981] PNGLR 178 even though no mention was made of the earlier 1977 case. Thereafter this trend was fortified by the Supreme Court in the Biri v. Ninkama case where the court said:

"It is clear to us that Section 217 of the Organic Law is only relevant when the National Court determine the merits of the case and when dealing with the evidence before it as relevant to the merits."

29. This would now mean that only a trial court when considering evidence is empowered to the exclusion of others to use this provision of the law and not when conducting preliminary hearings prior to trial and competency hearings such as now is no exception.

30. I had the benefit to review the case of Pirika v. Itanu, EC & Laimo regarding this point and I do agree with Kandakasi J that there is nothing in the Organic Law that says that s.217 is only applicable during trial on the merits of a petition. In fact why s.222 does not make a lawyer’s appearance in election petitions as a matter of right can be best understood in the context of s.217 and in petitions before the District Courts our petitioners are usually simple villagers with little or no formal education at all to appreciate the demands of election petition preparations. To say that s.217 is not applicable in the competency stage, I believe, is not what the legislators originally intended to be for petitioners in the District Courts and therefore make demands upon them that are deemed beyond their ability to respond accordingly and with ease.

31. Section 217 of the Organic Law is in these terms:

"217. REAL JUSTICE TO BE OBSERVED

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

32. It would seem that the ruling in the Biri v. Ninkama case apparently relied on the point that the word ‘evidence’ was used for it to conclude that since ‘evidence’ only comes during trial stages, s.217 therefore cannot be used in pre-trial applications such as this. But one must not forget that the same provision had clearly stated beforehand the phrase ‘legal forms and technicalities’ which are often than not considered very much so in preliminary stages such as now as we attempt to consider the forms and the technicalities of having to admit the declarations from the two attesting witnesses by the petitioner. Obviously the ruling in Biri v. Ninkama cannot say real justice was observed as s.217 would like to see.

33. In fact this would have been an ideal opportunity for the Supreme Court then to use its power under Sch.2.3 of the Constitution to develop the underlying law having regard to our National Goals and Directive Principles and the Basic Social Obligations in line with the circumstances of the country by taking into account the educational background of the vast majority of the populace, the availability of legal aid or the lack of it and the lack of understanding of the legal processes involved in the election process itself, particularly in the District Court level. And in so doing would have given effect to Sch.2.4 of the Constitution to develop the underlying law, which it was duty bound to have observed primarily.

34. There was nothing preventing the Supreme Court to do just that because it was not obligated to rule in accordance with the Bourne v. Voeto case or the Papol v. Temu case simply because the latter cases were National Court matters and furthermore, the overseas case of Webb v. Hanlon [1939] Q.S.R. 90 which was adopted in the Papol v. Temu case was one of a persuasive value only and therefore was not binding upon the Supreme Court.

35. In my humble view the Biri v. Ninkama case may have misconstrued s.217 of the Organic Law by reaffirming a foreign decision which was made in 1939 from a different background and culture, and in the process is now holding the petition process at ransom and at the same time penalizing illiterate and unsophisticated petitioners and their supporters particularly those in the District Courts almost seven decades thereon. In fact it would be interesting to see out of the total local-level government election petitions filed in the country for this year’s elections how many will be able to weather competency challenges before the District Courts because of this Supreme Court ruling. Nevertheless, s.217 has been interpreted in this manner and therefore I am bound by it for now.

36. On this basis I have no choice but to rule that the petitioner cannot avail himself of s.217 of the Organic Law to escape the strict demands placed upon him under s.208 (d) by reason of s.287 (5) of the Organic Law in relying on the two (2) attesting witness declarations in their current form. I therefore uphold this objection and furthermore rule that the petition is consequently null and void in its entirety.

37. Accordingly, I make the following orders:

(a) that the petition is dismissed; and

(b) that the parties meet their own costs; and

(c) that the surety deposit is forfeited to the State.

Orders accordingly.

Second respondent by Parua Lawyers