Uneng v Electoral Commission of Papua New Guinea [2008] PGDC 24; DC687 (12 November 2008)

DC687

PAPUA NEW GUINEA
[THE DISTRICT COURT OF JUSTICE]

LLG-EP 03 & 04 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 TABUBIL WARD 13,
STAR MOUNTAIN LOCAL-LEVEL GOVERNMENT

BETWEEN

MAUS UNENG AND ELVIN KATA
(Petitioners)

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(First Respondent)

AND

BOB KAIN
(Second Respondent)

Tabubil: P. Monouluk, SM
2008: 17 September; 07 October; 12 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 – Petitioner (1) not a registered voter for the Ward in dispute, no relief stated and occupation of witness not stated – Petitioner (2) did not state material facts, did not state relevant law breached, no relief stated and occupation of witness not stated – Petitioner(1) not a registered voter for the Ward in dispute thus no standing – Petitioner (2) did not plead the relevant provision of the law, did not state relief sought - Scrutineer not an occupation under the context of an election – Section 217 not applicable in competency application – Section 208 strict compliance provision – Objections upheld – Joint petition dismissed.

Cases
1. Albert Karo v. Carol Kidu [1997] PNGLR 28
2. Barry Holloway v. Aita Ivarato [1988-89] PNGLR 99
3. Delba Biri v. Bill Ninkama [1982] PNGLR 342
4. Dick Mune v. Anderson Agiru (1997) SC590
5. Ginson Saonu v. Bob Dade (2004) SC763
6. Jim Nomane v. David Anggo (2003) N2496
7. Jimson Sauk v. Don Polye (2004) SC769
8. Max Neknon v. Kennedy Kanong, LLG-EP 04 of 2008
9. Paru Aihi v. Moi Avei (2003) SC720

References
1. The Organic Law on National and Local-Level Government Elections, 1997,
Part XVIII, Div 1, Part XIX, Div. 14
2. Practice Direction Rules 2008, r. 2.2.1

Counsel
Petitioners in person.
First respondent by T. Dalid.
Second respondent in person.

12th November 2008.

1. P. MONOULUK, SM: This is an objection application by the first respondent against the joint petition by Maus Uneng and Elvin Kata. The objection is a result of the joint petition disputing the election victory of Bob Kain in the Tabubil Ward 13, Star Mountain Local-level Government Elections of this year.

2. The petitioners are disputing the election victory of the second respondent Bob Kain. They both claimed that Kain was not a registered voter for Ward 13.
Unlike Uneng, Kata was the runner up in the Ward 13 election of the Star Mountain Local-level Government Elections. He polled 329 votes while Kain polled 512, a difference of 183 votes. Uneng, on the other hand, is a mystery person. There appears to be no particulars of him from the last election. In fact he admitted that he was not a registered voter for Ward 13, so who is he? I will deal with him later.

3. The first respondent through its counsel objected to the petitions on the following grounds beginning with that of Kata:

(a) that the petition did not plead the date, time, venue and the names of those who had provided the information that the second respondent lack eligibility. Furthermore, Kata did not explain why the first respondent had seen fit to allow the second respondent to stand for election despite not having his name registered under Ward 13 as a voter; and

(b) that the petitioner had failed to indicate the reliefs he is seeking from the court; and

(c) that one of his two attesting witnesses a Michael Paito had failed to specifically plead his occupation.

4. Kata on the other hand explained that it was his first time to prepare such court documents and this was the best he can without the aid of a lawyer and his educational background did not help either, he further said. In addition to that, Kata relied on his affidavit filed on the 09th September, 2008. The affidavit seeks to further substantiate his claim against the respondents.

5. The counsel further responded by saying that the affidavit by Kata is an attempt to amend the petition outside the 40 day period which has lapsed and therefore the court cannot accept it as part of the petition because to do so would be a breach of s.208 (e) of the Organic Law on National and Local-level Government Election, 1997 (hereafter the Organic Law). May I remind the counsel that the matter is before the District Court thus the appropriate provision would be Rule 2.2.1 of the Practice Direction Rules 2008 recently developed and made applicable in the District Courts as having the same effect as s.208 (e) of the Organic Law that the counsel apparently was referring to.

6. In respect to Uneng, the counsel objected to his petition on the basis that:

(a) Uneng was not a registered voter himself thus not qualified to vote let alone stand as a candidate for Ward 13; and

(b) that certain points he had raised in the petition were unrelated to accepted attempts to nullify an election; and

(c) that he did not state the types of relief he is seeking from the court; and

(d) that one of his two attesting witnesses did not state his occupation.

7. In reply, Uneng said that it is up to the court to decide the outcome of the objection.

8. We know that a free election is the principal vehicle upon which a democratic society seeks to appoint its leaders and therefore legitimize their authority. Whether an election outcome was achieved free and fair is a matter for the courts to decide and in the case of Local-level Government Elections; it is the District Courts that have the power to do so.

9. I do agree with the counsel that for a petition to be accepted as such it must first and foremost comply with all the requirements of s.208 of the Organic Law. Apparently this is the law in the case of National Elections whereas in the Local-level Government Elections the petitioner has only to comply with s.208 (a)-(d) of the Organic Law.

10. Like s.210 of the Organic Law in respect to National Elections, petitioners in the Local-level Government Elections are required to adhere to all the requirements of these provisions by reason of s.287(5) of the Organic Law. Any failure to do so will render their petitions null and void. Various cases starting with the Supreme Court case of Delba Biri v. Bill Ninkama [1982] PNGLR 342 have over the years consistently held that to be so. Other subsequent cases such as the case of Jim Nomane v. David Anggo (2003) N2496, Ginson Saonu v. Bob Dade (2004) SC763 and Jimson Sauk v. Don Polye (2004) SC769 have come about to further qualify and give proper interpretation and meaning to these various appropriate provisions of the Organic Law concerning election disputes in the Courts of Disputed Returns.

11. I have said yesterday in Kiunga, Western Province in the case of Max Neknon v. Kennedy Kanong, LLG-EP 04 of 2008 that:

"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 Court 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 ..."

12. For the records the ruling in Biri v. Ninkama case is appropriate for our case and is stated in this manner:

"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."

13. May I reiterate that petitioners in the District Courts need only to comply with s.287 (1) of the Organic Law and the rulings by the Higher Courts in respect to any provision of Part XVIII of the Organic Law are very much applicable to the District Courts by reason of s.287 (1) of the Organic Law which expressively adopts the application of these provisions in the District Courts in respect to election disputes.

14. Based on the application by the counsel and the appropriate respond by the petitioners may I now ask whether the joint petitions before me have been able to comply with the requirements of s.208(a)-(d) of the Organic Law as potrayed by the Biri v. Ninkama case and the various other cases thereafter.

15. Taking each petition in turn I now turn to the petition of Uneng. As we know the counsel objected to Uneng’s petition on various points, the first being the issue of standing – whether Uneng was a registered voter for Ward 13, Star Mountain Local-Level Government. It is not disputed by Uneng himself that he was not a registered voter for this particular Ward. In fact this admission has the potential to put an end to his petition prematurity. Section 208 (c) of the Organic Law says in this manner:

"208. REQUISITES OF PETITION.

A petition shall-

(a) ...

(b) ...

(c) be signed by a candidate at the elections in dispute or by a person who was qualified to vote at the election; and ..."

16. By the reading of this, it becomes apparent that the petitioner who signs the petition must either be a candidate or be a registered voter of that particular Ward in dispute. The underlying requirement of this provision is that one must first and foremost be a qualified voter of that Ward. This means that the petitioner must be able to comply with the requirements of s.50 of the Constitution by being of the voting age of 18 years; and must not be a person under a death sentence or currently serving a prison term of nine months or more; and must not be convicted of an election related offence three (3) years prior to the first day of polling of the election concerned. Furthermore, he must also be a registered voter of that particular ward in dispute pursuant to s.250 of the Organic Law.

17. It is obvious from the facts before me that Uneng is not a qualified voter for the Tabubil Ward 13 area, Star Mountain Local-level Government. This is not being denied by him. In fact he admitted this in his own reply to the counsel’s objection stating that he realized that fact soon after he fronted up at the polling booth to vote and was informed by the officials there that his name was not on the Common Roll for Ward 13.

18. With this type of situation at hand and in applying the relevant law to it, may I ask once more who Maus Uneng is as far as this proceeding is concern? The fact that Uneng we know is not a registered voter for Ward 13, it follows that he cannot be allowed to institute a proceeding against any of the registered voter of that Ward in the first place. He simply does not have the standing or the ‘locus standi’ so to speak. He is not a registered voter of the Ward in issue as per the requirement of s.208 (e) of the Organic Law and therefore in answering the question I have asked, may I say that Maus Uneng is simply a busy body for want of a better term and I have to uphold the counsel’s objection.

19. By reason of this there is now no basis for me to move on to consider other grounds of objection so raised against Uneng’s petition. To do so would be a waste of time flogging a dead horse.

20. In Kata’s case, the first ground for objection by the first respondent is that Kata had not provided sufficient facts of dates, times, venues and names of those election officials who may have acted wrongly to allow the second respondent to contest the election in the first place. Furthermore, the counsel said that by raising this ground, Kata did not plead the relevant provisions of the Organic Law that was allegedly breached by the agents of the first respondent.

21. The law has been made clearer by Les Gavera-Nanu J. in the case of Nomane v. Anggo that in instances of undue influence and bribery the petition is required by law under the Criminal Code Act Chp 262 to plead those elements I have mentioned above such as the dates, times, locations, who was involved and the nature of the influence itself. However, in other instances such expectations may nearly be impossible for any one petitioner to meet with ease. It will not be possible for any candidate let alone Kata to know who in particular within the first respondent’s office had authorized the candidancy of the second respondent, why this was so, when and where such decision was made and so forth. After all, these types of situation may well happened away from public scrutiny; usually inside offices with very little public knowledge until after the candidate posters/lists are put up.

22. The counsel must be reminded that the strict compliance requirement by s.287 (5) upon s.208 of the Organic Law to state the ‘material’ or ‘relevant’ facts referred to by Kapi DCJ (now former CJ) in the Supreme Court case of Barry Holloway v. Aita Ivarato [1988] PNGLR 99 which we know to include the dates, times, venue and names of those involved does not apply across the board but only in certain situations as pointed out above in the Nomane v. Anggo case.

25. This would mean that the expectation by the counsel to have Kata actually plead all these material facts may not be viable no matter how hard Kata may try and in the light of the Nomane v. Anggo case I would say that Kata’s allegation in respect to the first respondent’s action to allow the second respondent to contest the election is sufficient as it is and I will have to overrule this part of the counsel’s objection.

26. In respect to the second aspect of the counsel’s first ground of objection, I will have to agree with him that Kata is required to indicate clearly the provision of the law the first respondent may have allegedly breached when allowing the second respondent to nominate as a candidate even though he was not a registered voter for that Ward in dispute.

27. It is clear in the Supreme Court case of Dick Mune v. Anderson Agiru (1997) SC590 where Injia J, (then was) in reaffirming what he had earlier said in Albert Karo v. Carol Kidu [1997] PNGLR 28 remarked that:

"In certain situations, when the ground alleged is founded on a breach of a statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice."

28. It is obvious that Kata had alleged a certain breach of the Organic Law by the first respondent. However, he was not able to direct the court to the relevant provision of the Organic Law so breached. This is quite a responsibility upon a petitioner who may have little or no idea of the expectations that the law may have of him as a petitioner in respect to such allegation he had raised in the first place. In any case this omission is now fatal in light of the ruling by the Mune v. Agiru case. Not even s.217 of the Organic Law can assist him to overcome this obstacle: Biri v. Ninkama. I hereby uphold the objection by the counsel.

29. I also had the opportunity to review other remaining grounds of objection relating to the failure by Kata to state the reliefs sought and that one of his witnesses had not being able to state his occupation. It is clear that those were not done as demanded by law. The law is clear that everything under s.208(a)-(b) of the Organic Law is expected to be strictly complied with by reason of s.287(5) of the Organic Law: Biri v. Ninkama. The blank sheet of paper in the petition for Kata to clearly state the types of relief sought after is not being filled in and signed by him; to this day it remains a blank document. Section 208 (b) of the Organic Law requires a petitioner to specify the types of relief he may be entitled to. This was not done hence Kata is now in breach again this time of s.208 (b) by reason of s.287 (5) of the Organic Law.

30. Furthermore, one of his two attesting witnesses namely a Michael Paito had his ‘occupation’ put down as a ‘scrutineer’. With due respect ‘scrutineer’ in the context of an election is not an ‘occupation’. ‘Occupation’ as mentioned in the Organic Law was defined in the Supreme Court case of Paru Aihi v. Moi Avei (2003) SC720 as "one’s trade, profession, business or calling; things or activities one does for a living". Clearly the term ‘scrutineer’ in the context of an election process is not something one does for a living. It is an ad hoc position one holds in assisting an election candidate and terminates immediately upon the completion of the election which usually takes a few weeks and thereafter the scrutineer returns to his ordinary way of life like before to earn his living through his ‘occupation’ whatever it may be. In my belief ‘scrutineer’ is not an occupation as stipulated under the Organic Law and by reason of s.287 (5), Kata once again is in breach of s.208 (d) of the Organic Law.

31. Going back to my earlier discussion on the Uneng’s case, had I proceeded further to consider the counsel’s remaining grounds of objection I would have firstly struck out that part of Uneng’s statement made out in his petition which is considered unrelated and irrelevant to acceptable grounds for disputing an election victory. Moreover and similar to the reasons put forth in the Kata’s case, Uneng’s failure to indicate his choice of relief from the court and the fact that the same Michael Paito from Kata’s petition is one of Uneng’s two attesting witnesses with the same occupation as a ‘scrutineer’, would have left me with the same outcome as that of Kata.

32. On that basis I make the following orders:

(a) that the joint-petition be dismissed; and

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

(c) that the surety deposit by each petitioner be forfeited to the State.

Orders accordingly.

First respondent by Parua lawyers