Korry v Wei [2012] PGNC 217; N4878 (5 November 2012)

N4878

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 05 OF 2012

In the Matter of the Organic Law on National and Local-Level Government Elections for Karamui-Nomane Open Electorate

BETWEEN

MICHAEL KORRY
Petitioner

AND

MOGEREMA SIGO WEI
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Ipang AJ
2012: 05 November

NATIONAL ELECTIONS – ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS – Claim by the First Respondent that the Petitioner was not an elector or voter on the Common Roll for the Electorate and thus was not qualified to contest National Election and in so doing does not have the locus standi to bring and prosecute the Election Petition – s. 103 (3) (a) of the Constitution and s. 87 (1) (a) of the Organic Law on National and Local-Level Government Elections (OLNLGE).

Brief Facts

The Petitioner Michael Korry is the runner up to the First Respondent Mogerema Sigo Wei in the 2012 National Election for Karamui-Nomane Open Seat with a difference of 77 votes. The Petitioner filed his Petition seeking to void the return of the First Respondent on three (3) grounds; (i) Wrongful conduct of polling at Dawa Polling Booth, (ii) Wrongful conduct of counting at Dickson Field, and (iii) Wrongful presence of First Respondent in the Counting Room. First Respondent files this application to have the Petition dismissed on the basis that the Petitioner was not a registered voter or an elector and therefore lacks capacity, locus standi (standing) and qualification to be a candidate for the National Election and to bring and prosecute this Election Petition.

Held:

1. The Petitioner Michael Korry is not a registered voter or an elector in Dawa village (or Dawa Rest House) Gaima Ward 23 and not even in Sima Waima Ward 2 Sua Began village, Salt LLG, Karamui-Nomane.

2. Petitioner has no locus standi (standing) to bring and prosecute his Election Petition. Election Petition is dismissed with costs to be borne by the Petitioner for the First Respondents. Costs to be agreed, if not to be taxed.

Cases Cited

Tony Waterupu Aimo v Ezekiel Anisi & Electoral Commission of Papua New Guinea (2012) N4870
Jimson Sauk Papaki v Don Pomb Pullie Polye & Electoral Commission of Papua New Guinea (1999) SC 644
Daniel Kapi v Takai Kapi (1997) SC 548
Jim Nomane v David Anggo (2003) N2354

Counsel:

Mr.T. Yamarhai, for the Plaintiff

Mr. Ralph Diweni, for the First Respondent
Ms. Christine Lari, for the Second R

RULING

05 November, 2012

1. IPANG AJ: The First Respondent Mogerema Sigo Wei by way of Notice of Motion filed on the 15th October, 2012 seeks the following Orders:
   
   1. That the Petitioner was not qualified to contest the Karamui-Nomane Open Electorate Seat during the 2012 National Election and consequently the Petitioner does not have the locus standi to bring and to continue to prosecute his Petition pursuant to section103(3) (a) of the Constitution and section 87 (1) (a) of Organic Law on National and Local-Level Government Elections.
      
   2. That this Court has no jurisdiction to continue to entertain this petition on the basis that the Petitioner is not a qualified person under section 103 (3) (a) of the Constitution and section 87 (1) (a) of Organic Law on National and Local-Level Government Elections. (OLNLGE) (Organic Law), to invoke the jurisdiction of this Court under Part XVIII of the Organic Law.
      
   3. Alternatively, pursuant to section 212 (1) and (3) of the Organic Law on National and Local-Level Government Elections and Rule 17 of the National Court Election Petition Rules for the Presentation and Conduct of Election Petitions 2001 (as Amended), an Order granting leave to the First Respondent to file a fresh Notice to Objection to Competency within 7 days.
      
   4. Costs of this application to be paid by the Petitioner
      
   5. The time for entry of these orders be abridged to the time of settlement of the same by the Registrar, which shall take place forthwith.
      
   6. Any other orders this Honourable Court deems fit
      
2. As it can be seen above, the third relief sought in the motion was omitted after Mr. R. Diweni of Counsel for the First Respondent specifically requested that this relief be omitted as the First Respondent will not be pursuing that relief. I heard the submission from the Counsels till 11.00am and adjourned to 2.30pm where I delivered my ruling to the packed Court Room full of supporters of both the Petitioner and the First Respondent.
   

SECTION 103 OF THE CONSTITUTION

3. The Section 103 (3) (a) of the Constitution states:
   

"103. Qualifications for and disqualifications from membership

(3) A person is not qualified to be, or to remain, a member of the Parliament if-

(a) he is not entitled to vote in elections to the Parliament.

SECTION 87 OF ORGANIC LAW ON NATIONAL & LOCAL-LEVEL GOVERNMENT (OLNGE)

4. The Section 87 (1) (a) of the Organic Law On National and Local-Level Government Elections (OLNLGE) states;
   

"87. REQUISITES FOR NOMINATION

(1) No nomination is valid unless-

(a) The person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member.

OBJECTIONS TO COMPETENCY OF THE PETITIONER & THE PETITION

5. Generally, when an issue is raised on the competency of the Petitioner and the Petition it goes into the validity or regularity of the process involved. Thus, it is a preliminary issue and is a question of law, usually either statutory or constitutional. It does not concern the merits or otherwise of the substantive grounds relied for the process in question, for the purpose of this trial, an Election Petition, nor does it concern the sufficiency of the facts relied on. These are no doubt, obvious matters for the hearing at trial proper of a petition, in particular the grounds relied on to void the election return. This will materialize only when the petitioner overcomes the preliminary hurdle of competency or capacity to bring this petition. This is the current stage where this current petition is at.
   
6. In moving this motion, the First Respondent relies on the Affidavit of Ralph Diveni sworn and filed on the 15th October, 2012, the Supplementary Affidavit of Ralph Diveni sworn on the 25th October, 2012 and filed on the 26th October, 2012 and the submission which was tendered in Court.
   

FIRST RESPONDENT'S SUBMISSION

7. First Respondent argued that the Petitioner was not a registered voter and therefore lacks capacity, standing and qualification to be a candidate for election to Parliament and to bring this Petition.
   
8. Based on Petition's request the Court on the 10th October, 2012 issued direction for the Common Roll for Gaima Ward 23 to be filed in Court. When the Gaima Ward 23 Roll was filed, it prompted the First Respondent to file the current motion on the 15th October, 2012. Mr. R. Diweni deposed that the Common Roll for Gaima Ward 23 showed that the Petitioner was not a registered voter in Gaima Ward 23.
   
9. In response to the motion filed by the First Respondent, the Petitioner filed an Affidavit dated 15th October, 2012. In paragraph 3 of the said Affidavit, the Petitioner said he is a registered voter from Karamui-Nomane. He said his name is listed in the Common Roll for Ward 2 Suabegel Village which is part of Salt Local Level Government in the Karamui-Nomane Electorate. First Respondent Counsel said this is contrary to his claim in the Petition that he is from Dawa village.
   
10. On the 26th October, 2012 Mr. R. Diweni filed an additional or Supplementary Affidavit attaching copy of the completed Nomination Form by the Petitioner. In the Nomination Form, the Petitioner stated his name as "Michael Korry, Self Employed Born 1977 of Sawaia village"
    
11. In response to the Affidavit filed by First Respondent's Counsel, the Petitioner further emphasized that he is the same person as "Moriyango Michael Korry", the name which he used in the previous elections, including contesting 2002 Election. He stated again that he is registered under Ward 2, Suabegel village.
    
12. Ms. C. Lari of Counsel for the Second Respondent made last minute submission to serve her Affidavit sworn on the 01st November, 2012. This was sternly opposed by the First Respondent's Counsel. After some consideration, I directed that the Affidavit be served on Petitioner's Counsel and the First Respondent's Counsel. I then adjourned briefly to allow Counsels' perusal of Ms. Lari's Affidavit. In her Affidavit she basically deposed that she was instructed that the Petitioner is a registered voter from Ward One (1), Banievera, Salt Rural Local-Level Government, Karamui-Nomane Open.
    

RESPONSE FROM THE PETITIONER

13. Because of the substance of the arguments or grounds raised by First Respondent's Counsel, I put this to the Petitioner's Counsel for him to respond to every issues raised by First Respondent's Counsel. However, Petitioner's Counsel response was shallow. He did not respond to the issue with Date of Birth and Occupation.
    
14. Mr. T. Yamarhai of Counsel for the Petitioner made a brief respond. Counsel relied on the response by the Petitioner contained in the Petitioner's two (2) Affidavits filed on the 15th October, 2012 and 19th October, 2012. Basically, the Petitioner as stated in the submission by the First Respondent's Counsel emphasized that his name is listed in the Common Roll for Ward 2, Suabegel village, which is part of Salt Local Level Government in the Karimui Nomane Electorate.
    
15. In paragraphs 4 and 5 of his Affidavit of 15th October, 2012 he gave the following justification that his father is from Dawa village and his mother is from Suabegel village and the reason why his name was registered at Ward 2 Suabegel village is because he was adopted by his Uncle Nick Korry. By this fact alone, it has affected his pleading in his Petition when he pleaded he is from Dawa village.
    

LEGAL ISSUES

Whether the Petitioner Michael Korry is the same person registered as voter or elector "No. 400 Elector ID 45550 Full Name: Moriyango Michael Korry, Sex: M, Occupation: Subsistence Farmer, Date of Birth: 1979, Status: ACT?

Whether the Petitioner has the locus standi to bring and prosecute this Petition.

THE RELEVANT AND APPLICABLE LAW:

Section 103 of the Constitution

16. The Section 103 (3) (a) of the Constitution states:
    

"103. Qualifications for and disqualifications from membership

(3) A person is not qualified to be, or to remain, a member of the Parliament if-

(a) he is not entitled to vote in elections to the Parliament.

SECTION 87 OF ORGANIC LAW ON NATIONAL & LOCAL-LEVEL GOVERNMENT (OLNGE)

17. The Section 87 (1) (a) of the Organic Law On National and Local-Level Government Elections (OLNLGE) states:
    

"87. REQUISITES FOR NOMINATION

(1) No nomination is valid unless-

(a)The person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member.

18. In Papua New Guinea it is a settled law that a person who is not enrolled in the Common Roll as a voter or an elector is not qualified (as a consequence) to vote and to contest election to be a Member of Parliament. The First Respondent therefore made this application to this Court on the basis that because the Petitioner is not a registered voter he has no locus standi to bring and prosecute this Election Petition.
    
19. In the Supreme Court case of Jimson Sauk Papaki v Don Pomb Polye and Electoral Commission of Papua New Guinea (1999) SC 644 in the context of competency of legal proceedings in which Election Petitions are concerned, the Court stated it concern the issue of whether or not there is (or are) legal basis for the proceedings. The Court found the name Don Pomb Pullie Polye was not on the Common Roll for Kandep Open and ruled that he could not contest the National Election.
    
20. In Daniel Kapi v Takai Kapi (1997) SC 548, the Court held that the name Takai Kapi was not on the Common Roll for Wabag Open Electorate thus, he could not stand or contest the election as a candidate.
    
21. In Jim Nomane v David Anggo (2003) N2354 in the context of having different names on Common Rolls and on the Nomination Form the presiding Judge stated:
    

"As I have stated earlier, the appearance of "Jim Nomane" in one Common Roll and "Jim Josiah" in another Common Roll and then him enrolling under "Jim Josiah Nomane" coupled with the year of birth and occupation being different, casts further doubt on whether he is the one and same person".

22. Because of the above findings, the Late Jalina, J held:
    

"I therefore find that the Respondent/Petitioner was not enrolled as an elector or voter in the Chuave Open Electorate Common Roll in accordance with law particularly s. 50 and 103 (3) of the Constitution and section 87 (a) of the Organic Law."

23. My brother Kawi, J followed the two (2) Supreme Court cases of Jimson Sauk Papaki (supra) and Daniel Kapi (supra) in the recent case of EP No. 01 of 2012 Tony Waterupu Aimo v Ezekiel Anisi & Electoral Commission of Papua New Guinea N4870. The First Respondent Mr. Anisi told the Court that he voted under the name "Anisi Siki Mahite". The Court found the name Anisi siki Mahite did not appear on the Common Roll for Waringame village and also Luwaite village.
    
24. In Tony Waterupu Aimo (supra) Kawi, J said despite claiming that he (Ezekiel Anisi) is the same person as Anisi Siki Mahite, he could not provide an iota of evidence to prove this assertion of fact. In Jimson Sauk Papaki (supra) the National Court found that Don Pela of Giva Rest House was the same person as Don Pomb Pullie Polye. The Supreme Court in no uncertain terms, was more specific and was spot on the issue when the court ruled that the name Don Pomb Pullie Polye was not on the Common Roll for Kandep Open Electorate, he therefore was not qualified to contest the National Election.
    
25. I agree with Kawi, J's view in Tony Waterupu Aimo (supra) as the correct interpretation of Daniel Don Kapi (supra) and Jimson Sauk Papaki (supra) where His Honour stated:
    

"In my view it is crystal clear from those cases cited above, that if you have a different name on the electoral Roll you cannot vote or stand for Parliament in another or using another person's name."

APPLICATION OF THE LAW TO THE FACTS

26. The Petitioner Michael Korry in paragraph 2 of his Petition stated that he is from Dawa village. In his Affidavit of 28th August, 2012 he deposed of the facts that his name is Michael Korry, 35 years old from Dawa Rest House. Dawa village is located within Gaima Ward 23. From consulting the Common Roll for Dawa village or Dawa Rest House, it is obvious that Petitioner's name and description does not appear and so he is not a registered voter or elector under Dawa village (or Dawa Rest House).
    
27. In his both Affidavits filed on the 15th October, 2012 and 23rd October, 2012, the Petitioner stated he is from Sua Began village, Sima Waima Ward 2 in Salt Local Level Government, Karamui-Nomane Open Electorate. He stated that he is listed as No. 400. The voter No. 400 is a person with voter ID No. 45550, a Subsistence Farmer DOB 1979 under the name "Moriyango Michael Korry". If the Petitioner was born in 1979 then he should be 33 years old.
    
28. Petitioner also stated that using the name "Moriyango Michael Korry" he has voted and contested in the 2002 and 2007 National Elections. This would mean in 2002 he was 23 years old below the minimum age requirement to stand for National Election. See Tony Waterupu Aimo case (supra).
    
29. In his Nomination Form that the Petitioner filled in and filed to contest the National Election for Karamui-Nomane Open Electorate, the Petitioner put his name down as "Michael Korry DOB 1977 Self Employed from Sawaia village." The occupation of Moriyango Michael Korry is listed as "Subsistence Farmer" whereas the Petitioner Michael Korry's occupation on the Nomination Form is listed as "Self Employed."
    
30. There is great difference between the personal particulars of the Petitioner as contained in the Nomination Form and the voter Moriyango Michael Korry of Sima Waima Ward 2 Salt LLG, Karamui-Nomane No. 400 Voter ID: 45550. Thus, the Petitioner cannot be the same person as Moriyango Michael Korry.
    
31. A person is physically born once, live once and die once. To accept Petitioner's argument would mean he was born in 1977 (as per his Nomination Form) and then born again 2 years later in 1979 (under the name Moriyango Michael Korry). And that on these different years he was born, he held different occupations. The facts and common sense dictate that I should not hold Petitioner's argument.
    
32. In applying the principles in Jimson Sauk Papaki (supra), Daniel Kapi (supra), Jim Nomane (supra) and followed by Kawi, J in Tony Waterupu Aimo (supra), I can reasonably conclude that the Petitioner is not a registered voter or an elector in Dawa village (or Dawa Rest House) Gaima Ward 23 or not even in the Common Roll for Sima Waima Ward 2 Sua Began village, Salt LLG, Karamui-Nomane.
    
33. Based on the above findings, the consequential effect is that I find the Petitioner has no locus standi to bring and prosecute his Petition. I therefore uphold the motion by the First Respondent and dismiss the Petition with costs. Petitioner to meet First Respondent's costs. Costs to be agreed, if not to be taxed. The Petitioner's Security Deposit Fee of K5000.00 shall be paid to both Respondents.
    

____________________________________
Warner Shand Lawyers: Lawyers for the Petitioner
Steven Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent