Nunue v Kimisopa [2012] PGNC 234; N4935 (4 November 2012)

N4935

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 53 OF 2012

BETWEEN:

TOM NUNUE
Petitioner

AND:

BIRE KIMISOPA
First Respondent

AND:

ANDREW TRAWEN,
Electoral Commission of Papua New Guinea
Second Respondent

Goroka: Gauli AJ.
2012: 3rd & 4th November

ELECTION PETITION – PRACTICE & PROCEDURE – Objection to Competency – Pleading grounds of petition – Mandatory requirement of s.208 (a) of the Organic Law on National and Local Level Government Elections – The need for sufficiency and clarity of pleading the facts – Pleadings fall short of s. 208(a) Organic Law Requirement – Petition incompetent – Dismissed

Cases Cited:
Mathias Karani v Yama Silipa [2003] N2385
Delba Biri v Bill G. Ninkama [1982] PNGLR 342
Kamma v Itamu (No.2) (2008) N3261
Holloway v Ivarato [1988] PNGLR 99
Vagi Mae v Jack Genia [1992] Unreported N1105
Amet v Yama (2010) SC 1064
James Yoka Eki & Anor v. Gordon Wimo & Ors (Unreported) N4899; dated 20th, 21at November 2012.

Counsel:
Mr.G. Sheppard, for the Petitioner
Mr.P. Mawa, for the First Respondent
Ms.C. Lari, for the Second Respondent

DECISION

4th November, 2012.

1. GAULI AJ: The losing candidate Mr. Tom Nunue, for the Goroka Open Electorate in the recent 2012 National General Elections, petitioned the Court to void the results of the election based on allegations of errors, omissions and illegal practices by supporters of the First Respondent and the officials of the Electoral Commission for the polling conducted at Kosayufa Community School for Ward 4, Kabiufa No.2 by the Polling Team 67. There were no wrong doing been alleged against the Honourable Bire Kimisopa who ultimately won the Gorka Open Seat but he has been named as the First Respondent.
   

Objection to competency

2. The First Respondent Honourable Bire Kimisopa and the Second Respondents the Electoral Commission of Papua New Guinea have filed and raised objections against the competency of the petition and they seek orders to dismiss the entire petition on the ground that:
   

The Petition did not comply with the mandatory requirement of Section 208 (a) of the Organic Law on the National and Local level Government Elections, in that the facts the Petitioner relied upon are not set out with sufficient particularity to enable the Respondents to prepare their case and for the Court to see with clarity the issues involved.

3. The Petitioner opposed the objection to competency and claims that he has sufficiently stated the facts with clarity as required by s. 208 (a) of the Organic Law on National and Local Level Government Elections.
   

The Relevant Law

4. The law applicable in election is the Organic Law in the National and Local Level Government Election, sections 208, 209 and 210. These provisions are as follows:
   

208 Requisites of petition

"A petition shall –

(a) set 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) .....

(d) .....

(e) ....."

209 Deposit as security for costs

"At the time of filing the petition, the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs."

210 No proceedings unless requisites complied with

"Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with".

5. Section 210 requires that an election petition cannot be heard unless the requirements of Section 208 and 209 are complied with. Section 210 is the mandatory constitutional requirement of both ss. 208 and 209 of the Organic Law.
   
6. Section 209 of the Organic Law requires the payment of a security deposit at the time of the filing of the petition. That is not in dispute and I take no issues on that aspect of the law.
   
7. Section 208 of the Organic Law requires four areas that the petition must state. Out of the four requirements, the Respondents only rely on the first requisite, and that is:
   

"A petition shall

(a) set out the facts relied on to invalidate the election or return."

Relevant Issue

8. The issue for this Court to consider is –
   

Has the petitioner sufficiently stated the relevant facts of the alleged error, omission, irregularity or illegal practice which affected the election result for the Goroka Open Electorate in 2012 National General Election.

9. The Petitioner alleged errors, omissions and or illegal practices by the Second Respondent, the Electoral Commission. The officials of the Electoral Commission who conducted the election at Kosayufa Community School were Mr. Jacob Inamuka (Presiding Officer), Mr. Chris Pati (Assistant Returning Officer), Cathy Joe (Polling Clerk) Taylor Kono (door keeper) and Micky Kurare (ballot box guard).
   
10. Before the electoral officials arrived, an argument evolved between the supporters of candidate elect Honourable Bire Kimisopa and the other candidate Mr. John Aaron. These two factions came to some agreement as to how the first, second and the third preference votes were to be given to both candidates. When John West with five (5) other men, all supporters of John Aaron, entered the polling booth together with six (6) supporters of the First Respondent, the Presiding Officer Mr. Jacob Inamuka signed 200 ballot papers, handed them over to John West, who marked them one by one. Then handed over the marked ballot papers to one of the 5 men and handed it over to a supporter of the First Respondent who marked the second preference and returned it to the supporter of John Aaron to mark the third preference before depositing the ballot paper in the ballot box. This process was repeated until all the ballot papers were marked and deposited in the ballot box.
    
11. After the ballot papers had been marked, unnamed supporter of the First Respondent was given the rest of the ballot papers by the Presiding officer and the method applied by the supporters of John West were followed.
    
12. By late afternoon, realising that the time for polling was drawing to an end, the Presiding Officer directed all the members of the polling team to sign the ballot papers on the back and handed them to the supporters of the First Respondent and the process above mentioned were followed on the remaining ballot papers and deposited in the ballot box number 67. There appears to be some statement of facts in the pleading in the petition.
    
13. Mr. Paul Mawa for the First Respondent submitted that the pleadings in the petition failed to specify or identify by name, age, sex and address, tribe or clan, who the supporters of the First Respondent's were. It is unclear as to the number of ballot papers allegedly marked illegally. As such the pleadings are deficient.
    
14. Mr. Mawa further submitted that the petition did not show the specifics of the total number of votes casted in that Kabiufa No.2 Ward 4 polling area, the total number of casted votes secured by the petitioner and the First Respondent or did not show whether the ballot box from this polling area was ever disputed at the counting entre. Since the petition failed to state the material facts in a manner complete, clear and concise as required by s. 208(a) of the Organic Law, the petition is deficient and defective in the facts pleaded therefore the petition is incompetent and it must be dismissed with costs to the Respondents.
    
15. The counsel Ms. C. Lari for the Second Respondent, in support of the submission for the First Respondent, submitted that the competency challenges raises issues of the Court's jurisdiction to hear the petition on the basis of Section 208 of the Organic Law, therefore section 215 (3) and 218 (1) of the Organic law need to be considered as well.
    
16. Under s. 215 (1) Organic Law, the Court shall declare the election void where the elected candidate has committed bribery or attempted to commit undue influence. But the Court shall not declare an election void on the grounds of illegal practices committed by other persons without the knowledge or authority of the candidate elect "unless the Court is satisfied that the result of the election was likely to be affected, and it is just that the candidate should be declared not to be duly elected or that the election should be void."
    
17. And section 218 (1), states that an election shall not be declared void due to delays in declaration of nomination, the polling, return of the writ or absence or error of, or omission by an officer that did not affect the result of the election.
    
18. Ms. Lari submitted that since the conditions in sections 215 (3) and 218 (1) Organic Law have not been satisfied, the Court ought to strike of the petition with costs to the Respondents.
    
19. Mr. G. Sheppard for the Petitioner agreed that there are no allegations of wrong doings by the First Respondent. However he submitted that in the Petition, from paragraphs 7 – 20, the petitioner set out with clarity the facts that relates to specific error or omission and illegal practices on which the petition is grounded. He submitted that the Court must read or look at the petition as a whole in determining the issue and not just nit-picking on individual paragraphs separately to establish errors and omissions and illegal practices. When read as a whole, the paragraphs 7 – 20 of the petition provides full particulars which covers every element specified in Mathias Karani v. Yawa Silipa [2003] N2385.
    
20. In respect to the submissions on ss. 215 (3) and 218 (1) of the Organic Law, he submitted that the paragraphs 19 and 20 of the Petition sufficiently pleaded the essential elements of the grounds of illegal practices and errors or omissions in accordance to s. 208(a) of the Organic Law. For the paragraphs 7 – 20 of the pleadings in the petition, there is no requirement under s. 208(a) of the Organic Law for the petition to plead any further particulars.
    
21. And Mr. Sheppard submitted that the petition has pleaded with sufficient clarity that supports the allegations of errors, omissions and illegal practices and the petition complied with section 208(a) therefore the petition is competent. And that both Respondents' objection to competency be dismissed with costs and the petition proceed to trial.
    
22. The counsels, both for the Petitioner and the Respondents have referred to a number of decided cases by the Supreme Court and the National Court.
    
23. The law is very well established by the Supreme Court in Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342 that it is the mandatory constitutional requirement that the sections 208 and 209 of the Organic Law must be complied with. The Supreme Court said at page 345:
    

"In our view, it is clear that all requirements in Section 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 Section 208 and 209 are complied with."

24. The Supreme Court went further in Biri v. Ninkama case (supra) stating the rationale behind the mandatory requirement of section 208, that the intention of the Organic Law is that a petition must strictly comply with Section 208. And if a petition fails to comply with the section 208 requirement there can be no proceedings on the petition because the section 210 said: "Proceedings shall not be heard on a petition unless the requirements of Section 208 and 209 are complied with."
    
25. The reason for compliance to Section 208 and 209 is very clear so that the opponent party shall not be caught by surprise. The principles in Brown v. Dunn are also applicable in election petition cases. As His Honour Kandakasi J, said in Kamma v. Itamu (No.2) (2008) N 3261:
    

"In my view Brown v. Dunn is not only a rule of practice but is more importantly a rule that allows for fair play in the trial process so that each party is made aware of what the other party is saying.... In election petition cases this rule is necessary and its observant is a must, in my view, to enable the Court to do justice..."

26. The law is now well settled in our jurisdiction in Holloway v. Ivarato [1988] PNGLR 99, in election petition matters for both the facts and the sufficiency of facts to be set out in the petition as required under Section 208, where the Supreme Court said:
    

"The facts which must be set out under s. 208(a) of the Organic Law on the National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case to enable the Court to see with clarity the issues involved."

27. The Supreme Court further went on and stated the law at p. 101 – 102 that:
    

"The grounds on which an election may be declared invalid are separate from the facts which constitutes those grounds. The requirement of s. 208(a) of the Organic Law is to set out the facts which constitutes those grounds upon which an election or return may be declared invalid.

"Setting out the grounds without more does not satisfy the requirements of s. 208(a) of the Organic Law. The facts set out under s. 208(a) of the Organic Law would necessarily indicate the grounds on which the petitioner relies. The facts which must be set in s. 208(a) of the Organic Law are material or relevant facts which will constitute the ground or grounds upon which an election or return may be invalidated.

"In setting out the facts they must be sufficient so as to indicate or constitute the ground which an election may be invalidated. What are sufficient facts depend on the facts alleged and the grounds those facts seek to establish.

"Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issue upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."

28. It can be understood from the above decision of the Supreme Court that Section 208(a) requires that the particulars of the facts should be given and not just a general allegation, as per Sheehan J, in Vagi Mae v. Jack Genia & Electoral Commission [1992] (Unreported Judgment) N1105. The Court just cannot draw conclusions on what may be errors, omissions or illegal practices, but the pleadings must satisfy the requirement of s. 208 (a) of the Organic Law: see Amet v. Yama (2010) SC 1064 as per Davani J.
    
29. In Kamma v. Itamu (supra), Kandakasi J, had this to say at p. 21 that:
    

"what the courts and the parties should be looking at is whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the facts alleged and not necessarily every detail of or about the facts. Such details should be left to the trial or hearing of the petition as long as there is a clear statement of fact of an illegality, irregularity or error or omission which affects the result of the election".

30. Section 208(a) of the Organic Law only requires the petitioner to state the facts he relied upon. The case laws stated above requires the petition to be made with clarity and sufficiency and not just making allegations. In the present case, the petition alleged that the supporters of the First Respondent and the supporters of the candidate John Aaron casted votes, which was contrary to section 136 (1) or the Organic Law. That provision requires the presiding officer or a poll clerk to give a ballot paper to each eligible voter claiming to vote at the polling place. The petition did not specify who the supporters of the First Respondents were either by name, age, sex and address. It is not sufficient to say "supporters of", without further clarifications because such pleadings do not give the opponent party the opportunity to adequately prepare his case that may assist the Court to do justice in the proceedings.
    
31. The pleadings in the Petition did not show the total number of votes casted in that particular polling place, namely the Kosayufa Community School. It did not show the total number of votes secured by the First Respondent and the other candidates including the petitioner. It was not pleaded that the ballot box from this polling place was disputed by the petitioner's scrutineer at the counting centre from been counted. In a normal course of things, that particular ballot box would have been disputed from being counted if there were such illegal practices, errors or omission noted or experienced during the polling. Furthermore, it did not show that the First Respondent has knowledge or has authorised such events to take place.
    
32. In a recent judgment in James Yoka Ekip & Anor v. Gordon Wimo & Ors (Unreported Judgment) N4899; dated 20th & 21st November 2012, at page 15, His Honour Kandakasi J, stated that apart from stating an error, omission, irregularity or illegal practices in the petition, it must state that a winning candidate had knowledge and had authorised the facts set out in the petition and how they affect the election result. And the kind of specification must be stated to meet the requirement of s. 208(a) of the Organic Law. In the present petition, these were lacking. It is not the role of the Court to draw conclusions or to speculate solutions.
    
33. In respect to the Second Respondent, the pleading in the petition show that the electoral officials conducted the polling in a manner that appeared contrary to or not in compliance to section 136(1) of the Organic Law. The presiding officer has signed number of ballot papers and then gave them to one John West, a supporter of the candidate John Aaron who marked them out on behalf of the other voters instead of giving a ballot paper to each individual eligible voter. The presiding officer repeated in the same manner to an unknown supporter of the First Respondent. Since the petition did not specifically identify the unknown supporters of the First Respondent by name, sex, age and address, the petition failed to comply with the requirements of section 208(a) of the Organic Law. The petition against the Second Respondent is also incompetent.
    

Conclusion

34. In summary, for the above stated reasons, I find that the petitioner failed to state with clarity and sufficiently the material facts that formed good grounds for his petition. There appeared to be some statement of facts, particularly the manner in which the electoral officials conducted the polling at that particular polling place, but they fall short in some respect and that leaves this petition to be incomplete and thereby making it incompetent against both Respondents.
    

Orders of the Court

35. According to the aforesaid reasons, I make the following orders:
    

(1) The whole of the Election Petition is dismissed on the ground of incompetency.

(2) There shall be costs for the Respondents to be paid by the Petitioner.

(3) The Security for costs deposited under s. 209 of the Organic Law shall be released and apportioned equally between the Respondents.

______________________________________________________
Young and Williams Lawyers: Lawyers for the Petitioner
Mawa Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent