Wagaet v Pokas [2021] PGDC 191; DC7047 (21 January 2021)

DC7047

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS DISPUTES RETURNS JURISDICTION]

ELECTION PETITION No: 23 of 2019

BETWEEN
BENARET WAGAET

- Applicant /Petitioner.

AND
PAUL KAPE POKAS

- First Respondent.

AND

LUKE WAIYON-Assistant Returning Officer, Maramuni Local Level Government.

- Second Respondent.

AND
BAIN LAMBIAN- Provincial Returning Officer, Enga Provincial Government.

- Third Respondent

AND

PNG ELECTORAL COMMISSION.

- Fourth Respondent

WABAG: M. Apie’e

2020: December 03^rd 2021: January 21.

CIVIL: -ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS.

-NOTICE OF MOTION FILED and moved for orders pursuant to sections 206, 212 (1) (f) (g) (h) and (j) and (4) of the Organic Law and Section 146 of the District Court.

EVIDENCE/PROCEEDINGS:

-Petitioner Relies on his originating documents dated and filed the 19^th of September 2019 and on his Notice of Motion Dated 27^th of September 2020 with its supporting affidavit(s) to seek the following orders, namely that;

i. The First Respondents be declared as not being duly elected,

2. That the Petitioner is ‘Instead’ declared as duly elected or Sitting Councilor for Nelyaku Ward 8 in Maramuni.,

iii. Costs.

iv. Other Orders the Court Deems meet.

All pursuant to Section 212 (1) (f) (g) (h) and (j) and (4) of the Organic Law on National and Local Level Governments,

-Notice of Motion is opposed by the Respondents via Counsel

ISSUE(S)-

1. Was Polling in Wabag instead of Nelyaku Lawful?.
2. Whether not allowing Scrutineers into the Counting Room lawful?
3. Are the Reliefs sought in the Notice of Motion justified?

HELD:

1. Change of Polling venue from Nelyaku to Wabag is justified and Lawful.
2. The Complainants Notice of Motion of 27^th September 2019 and the Reliefs

sought therein refused in its entirety.

3. The Petition is also dismissed in its entirety.
4. Costs to the First Respondent.
   

References:
-Organic Law on National and Local Level Government Elections. No: 3 of 1997.
-District Court Act 1963. Chapter 40.
-Criminal Code Act 1974. Chapter 262.

Cases:
- Kuna vs. Eralia [2004] PGNC 17; N2771
-Jimson Sauk vs. Don Polye (2004) SC769
- Ginson Saonu vs. Bod Dadae (2004) SC764
- Neville Bourne vs. Manessah Voeto [1977] PNGLR 298
- Jim Nomane vs. David Anngo, (2003) N2496
- Gobe Hongu Ltd v. National Executive Council N1920

Appearances:
Mr. Clement Talipan for the Petitioner.
Ms. S. Sipani for the Respondents.

JUDGMENT.

M. Apie’e. Magistrate.

BACKGROUND:

1. This Notice of Motion emanates from an Election Petition Brought Pursuant to Section 206 and by Adaptation to the District Court, pursuant to Section 287 of the Organic Law on National and Local Level Government Elections (Hereinafter the Organic Law)
   
2. The First Respondent Mr. Paul Kape Pokas was declared as Councilor Elect for Nelyaku ward 8, Maramuni Local Level Government (RLLG) in Wabag, Enga Province on the 27/11/19 with about 465 votes while the Petitioner/Applicant scored 318 or 365 votes.
   
   1. The Petitioner Mr. Benaret Wagaet who was the runner-up is aggrieved by the manner of conduct of the Elections and Counting and declarations by the 2nd 3^rd and 4^th Respondents, therefore he filed a petition challenging the First Respondents declaration as Councilor Elect for Nelyaku Ward 8 Maramuni RLLG, dated and filed on the 19^th of December 2019.
   2. The Petition was subjected to the ‘Competency test’ pursuant to the Organic Law whilst being mention in court from time to time and reached competency.
      
   100. The Grounds for the Petition as disclosed in the Substantive Petition in paragraph # 2 raised the following;
        
        1. ‘The First Respondent was unlawfully declared the Winning Candidate after the Supplementary election processes were hijacked by the 2^nd and 3^rd Respondents.!’
           
        2. ‘.. in which the supplementary polling/elections for the failed LLG elections for Maramuni RLLG were illegally conducted and polled at the District Headquarters in Wabag and not at Nelyaku in Maramuni.!’
           
        3. The Change of Venue and lack of Proper Publication of the Change in polling venue resulted in most of the Petitioners Electors not attending at Wabag thereby the Election/ Result was affected.
           

Notice of Motion filed 27/07/20.

3. The Petitioner/Applicant (Hereinafter ‘Applicant’) filed the Notice of Motion now being considered on the 27/07/20 seeking orders pursuant to sections 5, 22 and 146 of the District Courts Act and Sections 212 of the Organic Law certain reliefs in respect of Nelyaku Ward 8 Maramuni RLLG in Wabag EP.
   
   1. The Applicant relied on his Originating Documents as well as the following documents in moving his motion and they are;
      

1. His primary affidavit dated 17/03/20
   
2. His secondary Affidavit dated 04/11/19
   
3. Affidavit of Kiunga Wagaet dated 16/11/20
   
4. Affidavit of Mathias Konde dated 16/11/20
   
5. Submission dated 27/07/20.
   

Applicants Claims.

4. The essence of the Applicants Notice of Motion as pressed by his Counsels submission and supported by his witnesses is that;
   
   1. No Proper publication to the people of Nelyaku Ward 8 in the Maramuni RLLG was made by the 2^nd and 3^rd Respondents in respect of the change of polling venue from Maramuni to Wabag for the Supplementary Elections for Nelyaku Ward 8 in Maramuni RLLG.
      
   2. Consequently, most of the Electors from Nelyaku RLLG Ward 8 in Maramuni who would have potentially voted for the Applicant did not come to Wabag to vote for him.
      
   100. The Lawful polling venue by Government Gazette for Nelyaku RLLG Ward 8 is at Nelyaku village in Maramuni and not anyway else like Wabag.
        
   4. He further claimed that pursuant to sections 43, 79, 113, 114 and 115 of the Organic Law, any Change of venue from Nelyaku to Wabag ought to have being identified properly by Gazette as follows,
      
      1. Nelyaku Polling venue must be lawfully abolished by Gazette.

,

2. Wabag District Offices must be properly identified by Gazette as

the new Polling venue for Nelyaku RLLG Ward 8.

3. He posed Section 43(2) of the Organic Law which says;
   

‘No Polling Place Shall be abolished after the issue of the writ and before the time appointed for its return’

4. Writs were supposedly issued on the 30/10/19 for LLG Elections

Supplementary Elections and returned on the 30/11/19 or sometime before 12/12/19. No abolishment of Polling venue’s ought to have being done within that period pursuant to Section 43, according to the Applicant.

5. ‘Because of this Unlawful change of polling venue many Electors

from Nelyaku Ward 8 Maramuni RLLG did not make it to Wabag to Vote’ claims the Applicant.

5. Accordingly, the Applicant Seeks the following Relief from the Court;
   
   1. The 1^st Respondents Election as Councilor for Nelyaku Ward 8

Maramuni RLLG be declared as Null and Void;

2. A Declaration that the Applicant/Petitioner be declared as

Councilor elect for Nelyaku Ward 8 Maramuni RLLG.

3. The Cost of the Petition and application be met by the

Respondents.
RESPONSES.

5. Ms. Serah Sipani from Enga Provincial Government (EPG) Legal Office made appearance for Respondents and she made submission in response to the Notice of Motion for and on behalf of all Respondents after EPG awarded Legal Aid to all Respondents to LLG Petitions.
   
6. She Filed and tendered a Reply to Submissions by the Applicant during the hearing of the Notice of Motion on the 03/12/20.
   
7. She also made reliance on the following documents;
   
   1. Defense Submission of Paul Kape Pokas dated 15/10/20
      
   2. Supplementary Affidavit of Paul Kape Pokas dated 03/12/20.
      
   100. Affidavit of Luke Waiyon ARO of Maramuni dated 20/10/20
        
   4. Supplementary Affidavit of Luke Waiyon dated 01/12/20
      
   5. Affidavit of Returning Officer Bain Lyambian dated 20/10/20
      
   6. Notice of Intention to Defendant and Defense dated 27/11/20dated 26^th/11/20.
      
   7. Reply to Submission dated 01/12/20 filed in Court on 3/12/20
      
8. The Essence of the Respondents Response is this;
   
   1. The LLG Elections for Nelyaku Ward 8 Maramuni RLLG was previously marred with violence and destruction the first time around and so was declared Failed and Supplementary elections had to be conducted.
      
   2. The funding allocated for Supplementary Elections for Enga

Province was K250,000.00 and for the Three Maramuni LLG wards, an allocation of only K10,000.00 was made, not sufficient to conduct polling in Maramuni RLLG itself.

100. Also because of the Lingering unrest, The Electoral office in

Consultation with Candidates for the various LLG Wards in Maramuni Resolved to conduct polling at a neutral Location. That neutral location being The District Office at Wabag.

4. The Applicant and other candidates as well as voters from

Maramuni were well informed of this change in location and such change was legal.

The Applicable Law.

Organic Law.

9. The Law applicable to Elections Petitions for Local Level Governments is Firstly the Organic Law by application of Section 287;
   
   1. By virtue of Section 287, the Organic Law has full and ample application to LLG Petitions and it is therefore the intention of this court to fully adhere to the ambit of this Law in its deliberations of the Petition and the ensuing Notice of Motion.
      
   2. The Relevant Provisions of the Organic Law applying to Election Petitions

relating to LLG Elections are all encompassed in Part XVIII from Sections 206 to 287 except for the specific Provisions relating to the National Court in Sections 208(e), 209, 210, 212(2) and 213.

District Court Act.

100. Of Course also in the Conduct of Election Petitions specific to LLG’s, the applicable and relevant provisions of the District Court Act, naturally and automatically apply as posed by the Petitioner.
     

4. The Applicant/Petitioner in his Notice of Motion specifically relies on

Sections 5, 22 and 146 of the District Court Act and also Section 212 of the Organic Law to seek Judgment against the Respondents.

Case Law.

10. The Case Law referred by the Parties all have relevance in varying degrees and are noted for what they are worth to the present case as follows;
    
    1. The case of Kuna vs. Eralia 2004 PGNC 17 N2771; p 15 -17 per Cannings J, is relied on by Applicant as to applicability of the Provisions of the Organic Law to LLG Election Petitions.
       
    2. The case of Jimson Sauk vs. Don Polye (2004) SC769, Ginson Saonu vs. Bod Dadae(2004) SC764 both relate to the boundaries between the Applicability of the Organic Law between the National Court and the District Court as between the applicability of the Organic Law.
       
    100. Neville Bourne vs. Manessah Voeto [1977] PNGLR 298 decision of Late Chief Justice Frost as he then was, cited by the Respondents counsel related to District Courts Sitting as Courts of Disputed Returns.
         
    4. In respect of the actual pleading of Set of Facts relied on in a claim in an election petition under section 208 of the Organic Law, the Respondents relied on the case of Jim Nomane vs. David Anngo, (2003) N2496 per Gavara-Nanu J.
       

Observations on the Evidence:

11. In respect of this case and also by way of indirect response to the Issues raised by Counsels, I make the following Observations;
    
    1. I am bound by the District Court Act as relied on by the Applicant to

Assess this Application on all its merits and accordingly rule on the totality of Evidence as presented before me as per Section 5, 22 and 146 of the District Court Act and also pursuant to Section 287 and all the other relevant provisions of the Organic Law. Kuna vs. Eralia 2004 PGNC 17 N2771; p 15 -17 Jimson Sauk vs. Don Polye (2004) SC769, Ginson Saonu vs. Bod Dadae(2004) SC764

2. Under section 217 of the Organic Law, I am obligated to adhere to the liberal interpretation and application of the Organic Law in determining the outcome of this matter without regard to legal forms or technicalities, or whether the evidence before me is in accordance with the Law of Evidence.
   

100. Nelyaku Ward 8 Maramuni RLLG is a Rural Ward some distance away from Wabag town and according to Evidence presented by all it would have require Air travel for Polling Officials airlifted there to conduct polling properly if funds had been adequate because of the poor to non-existent road conditions.
     

4. The Previously held Election was declared as ‘Failed’ because of trouble during Polling that led to loss of life and property with the potential of trouble recurring still prevailing.
   
5. Also, the Funding allocation for the Three Maramuni LLG’s was only K10,000.00 therefor unable to adequately fund the taking of polling down to Maramuni.
   
6. So, it was resolved that the Polling be conducted at Wabag and the candidates and the voters come to Wabag to cast their votes.
   
7. This is amply deposed into evidence in the affidavits of the 1^st, 2^nd and 3^rd Respondents.
8. I find that the change of venue was most probably done on the spur of the moment when funding was released and realized to be so inadequate (K10,000.00 for all 3 x Maramuni LLGs) and also because of the Lingering memory of the Troubles in the first Elections and so such changes were hastily done, but I accept that the Candidates and their voters were adequately informed of the changes because;
   
   9. The Candidates for Nelyaku LLG even the Petitioner, did turn up in Wabag to Vote and though he was not successful, the Applicant did muster votes indicative of being a willing participant to this so-called ‘unlawful polling’ at Wabag with supporters voting for him.
      
   2. I wonder what he would be saying if it was him who won and someone else was challenging his victory through a dispute of returns such as this petition.
      

1. It is the Contention of the Applicant therefore that he lost to the First Respondent as most of voters for Nelyaku Ward 8 did not attend to vote, but people still did attend and vote, and if by a chance he had pulled off a win, would he be concerned about those that did not turn up to vote?
   

10. The Applicant has further not disclosed in his pleading as to which people did not attend and whom they would have voted for if they did indeed attend. In the Nomane v. David Anngo case, Gavara-Nanu J stressed on the need for Facts in relation to omissions and irregularities to be fully and properly pleaded. Names, dates, place and actions ought to be properly pleaded for the relief sought to be sustained as per Section 208 (a) of the Organic Law.
    

ISSUES:

12. Going back to the issues raised / posed in the Applicants written Submission, for the purpose of this Applications I find these issue pertinent;
    
    1. Whether or not the Polling Booth at Wabag was Lawful?
       
       1. I would begin by referring to the Law, especially the Organic Law at

Section 115(2) (3) which makes allowance for changes to be done to the Polling schedule. The Inadequate Funds, Prevailing conditions of unrest or potential unrest leading on from the previous elections in which Ballot boxes were actually hijacked and destroyed, it would have being illogical and foolhardy to go back to conduct polling at Maramuni.

2. The fact that the Candidates and voters did attend to vote, including the Petitioner further reinforces the Legality and Lawfulness of this Process. It’s not as if the Petitioner was waiting in Maramuni when Polling was being conducted here in Wabag, he was here so were his voters.
   
3. He scored 365 votes while the winner scored 465 voted both totaling about 830 votes between them, and the distributed ballot papers for Nelyaku Ward 8 is about 850. So who did not come to vote?
   
4. There is Contention raised that a lot of Non- Residents of Pasalagus voted in the Supplementary Election here at Wabag, but apart from General aspersions, no names, and numbers of people who supposedly voted were pleaded. Nomane v. David Anngo. The Court is left none the wiser about this. Besides, the Petitioner still scored votes, it is not like he was completely blindsided and did not score votes.
   
5. The Other factor is that the Both the Returning officer and the Provincial Returning Officer /Election manager deposed evidence vouching for the Change from Maramuni to Wabag as being proper, and that in itself ought to count for something.
   
6. Having given the above reasoning’s in respect of the issue above that the Polling Venue changes from Pasalagus to Wabag was Lawful I would pose Section 117 of the Organic Law as a final point to Consider.
   

Section 117 raises the caveat that in respect to a failure to observe a polling schedule or comply with the provisions of Section 114 or a variation or departure from a polling schedule, is not open to challenge.

The exception to this caveat, I would surmise, if such failure or departures from a polling schedule are flagrantly and without justifiable reasons orchestrated to cause some people or candidates not to vote or contest in the Elections itself.

Sections 114 talks about polling schedules, which is times and places to conduct polling.

13. The Other issue I would venture and address on is Section 215 (3) which reads;
    
    1. 215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

.........

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void–

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

unless, the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void

2. In this current case, the idea of taking the Polling back to Maramuni, given inadequate funding and the lingering unrest and dangers to people and Polling officers again after the first failed Election, would be foolish and there is no telling what would have happened again.
   

100. I would therefore surmise and rule that the result of the election was not likely to be affected for the better as polling did actually commence and concluded at Wabag with people actually voting including the Candidates.
     

4. The Claim that Counting was conducted in private and that scrutineers were not allowed in is not substantiated by properly pleaded evidence and so is not deemed as likely to affect the results pursuant to Section 215 (3) of the Organic Law.
   
5. There is no evidence pleading any other illegalities such as hijacking of Ballot papers or double voting
   

14. The last Issue I would add is, ‘Given the foregoing, can this court fully accede to the Reliefs sought in the Notice of Motion?
    
    1. The Orders /Relief sought in this Notice of Motion are therefore;
       
       1. The 1^st Respondents Election as Councilor for Nelyaku Ward 8

Maramuni RLLG be declared as Null and Void;

2. A Declaration that the Applicant/Petitioner is the sitting Councilor

for Nelyaku Ward 8 Maramuni RLLG.

3. The Cost of the Petition and application be met by the

Respondents.

2. In the National Court case of ‘Gobe Hongu Ltd v. National Executive Council’ N1920 Late Sevua J, when addressing on pleading and Reliefs sought, held that;
   

‘It is trite law that a party is not entitled to a remedy he has not pleaded in his claim.’

100. It is incumbent on the Applicant to Properly and completely plead his claims and relief(s) as per case law and the Organic Law.
     

4. The Pleadings and evidence relied on to have the election of the First Respondent as Council Elect for Nelyaku ward 8 in the Maramuni RLLG is not made out and so is rejected.
   
5. Since the case for Nullifying and voiding the Election of the First Respondent is not made out, all other reliefs sought are accordingly rejected.
   
6. Costs logically, must therefore follow the event.
   

RULING.

15. Accordingly; on the totality of Evidences and Submissions deposed and posed by all, this Court Finds and Rules as follows.
    
    1. The Applicants Notice of Motion is hereby refused.
       
    2. The Substantive Petition of the Applicant/Petitioner filed on the 19^th of December 2019 is accordingly dismissed in its entirety.
       
    100. Costs awarded to the First Respondent to against the Applicant be agreed, if not to be taxed.
         
16. Orders Accordingly.
    

Kortal Lawyers for the Petitioner.

Enga Provincial Legal Office for the Respondents.