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Subam v Ganasi [No.1] [2012] PGNC 281; N5068 (11 December 2012)

N5068


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 59 OF 2012


IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SOUTH FLY OPEN ELECTORATE


BETWEEN


SALI SUBAM
Petitioner


AND


AIDE GANASI [N0.1]
Respondent


Daru: Ipang AJ
2012: 10 & 11 December


NATIONAL ELECTIONS – ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS (OLNLGE) – Objection to Competency - Respondent claimed the petitioner in not naming the Electoral Commission or Electoral Commissioner or its agents or employees in the petition is a fatal error or omission thus amount to petition not satisfied the requisites - s. 175(1)(a) of the Organic Law on National and Local-Level Government Elections (OLNLGE).


NATIONAL ELECTIONS – PRACTICE & PROCEDURE – Objection to Competency – requirements of s. 208(d) of the Organic Law on National and Local-Level Government Elections (OLNLGE) – Attestation of petition by witnesses – Purpose of the requirement – The need to sufficiently state name, occupation, and address – Whether stating "self-employed" not sufficient – stating residential address in Daru Town not captured within Daru Town Map whether amount to insufficient fact.


Cases Cited:


Michael Badui v Bart Philemon & Ors [1992] PNGLR 451
Malcom Smith v Peti Lafanama & Ors, October 1997 Unreported
Stanley Harry Gotaha v Peti Lafanama & Electoral Commissioner (17 December, 1999) Unreported
Agonia v Karo [1992] PNGLR 463
Delba Biri v Bill Ninkama & Electoral Commission [1982] PNGLR 342
James Yoka Ekip & Simon Sanagke v Gordon Wimb & Ors EP No. 10 & 11 of 2012 (21 November, 2012) N4899
Jimson Sauk v Don Poyle (2004) SC 769
Ginson Saonu v Bob Dadae (2004) SC 763
Steven Pirika Kamma v John Itanu, Electoral Commission and Michael Laimo (2007) N3246


Counsel:


Mr.A. Furigi, for the Petitioner

Mr. T. Cooper, for the Respondent
Mr. M. Kuma (with Leave), for Electoral Commission


RULING


11 December, 2012


  1. IPANG AJ: The Petitioner Sali Subam was a candidate in the recently concluded 2012 National General Election for the South Fly Open Electorate Seat in the Western Province. The petitioner was the third runner-up to the Respondent with 3,033 votes and the respondent polled with 3,489 votes. Thus, there was a difference of 456 votes between the petitioner and the respondent. The petitioner petitioned this court to void the election results for South Fly Open Electorate and order a by-election. Petitioner alleges several incidences of illegal practices i,e bribery on the part of the respondent.
  2. At the initial stage there was this intention and attempt by both the counsel from the petitioner and the respondent to have this Election Petition No. 59 of 2012 consolidated in to EP No. 56 of 2012. Both EPs No. 56 and 59 are concerning the South Fly Open Electorate. This attempt to consolidate the EP proceedings is not possible at this stage as there is no positive feedback from the petitioner's lawyer in EP No. 56 of 2012. This leaves this court to deal with an application on foot by the respondent in EP No. 59 of 2012 on the issue of competency of the petition.

OBJECTION TO COMPETENCIES


  1. The respondent raised objections against the competency of this petition on two (2) grounds. The objections to competency application was filed on the 26 September, 2012 and these grounds are;
  1. OMISSION OF ELECTORAL COMMISSION AS A PARTY
  2. FAILURE TO DISCLOSE VALID OCCUPATION, INSUFFICIENT AND FICTIONAL ADDRESS OF WITNESS
  1. The petition offends against section 208(d) of the Organic Law on National and Local-Level Government Elections on grounds that:-
  1. SECTION 210 OF ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS (OLNLGE) "NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.
  1. Section 210 of the Organic Law, "Proceedings shall not be had on petition unless the requirements in Sections 208 and 209 are complied with".
  2. The petitioner through his lawyer Mr. Furigi opposes the objections and claim that they have sufficiently stated the facts.

ISSUES


APPLICABLE LAW


  1. Respondent invoke ss. 175 and 208 of the Organic Law on National and Local-Level Government Elections as his basis of objections to competency filed on the 26 September, 2012. The s. 175 reads:

"s. 175 Return of Writs


(1) Subject to this section, the Returning Officer of the Electoral Commission shall as soon as conveniently may be after the result of an election has been ascertained-
  1. Mr. Cooper of counsel for the Respondent submitted that only two persons having constitutional mandate of declaring a candidate duly elected are the Electoral Commission and the respective Returning Officers appointed by electoral Commission under s. 19 of Organic Law on National & Local-Level Government Elections (OLNLGE). Thus, the Respondent's Counsel submitted that it is important that where a petitioner challenges the declaration of a candidate through an Election Petition, the petitioner must name the Electoral Commission. In this instant case the petition has not named, therefore the counsel for the respondent submitted that the petition is defective and incompetent.
  2. Mr. Furigi counter argued and said s. 216 of Organic Law on National & Local-Level Government Elections (OLNLGE) is applicable in that where a person is found to have committed an offence he can still be referred to relevant people listed under s.216(a). It is important that I set out s. 216 of Organic Law on National & Local-Level Government Elections (OLNLGE).

"s. 216 Court to report, etc..., cases of offences


Where the National Court, in the trial of a Petition under this Part, finds that a person has committed an offence under this law or any other law, the Registrar of the Court shall promptly-


(a) Report the finding to-

(b) Forward all papers relevant to the find to the Commissioner of Police."
  1. I have to be frank here in that in my view both counsel for the Respondent and the Petitioner had got it all wrong. The Respondent misinterpreted and misapplied s.175 of Organic Law on National & Local-Level Government Elections (OLNLGE). Section 175 deals with the administrative function of the Electoral Commission in terms of declaration of the results when counting has been completed. Because of this function it performs, it does not necessarily entail that in every Petition, the Electoral Commission must be named. I will discuss this aspect a little later. I will now turn to what the counsel for the Petitioner has submitted.
  2. The s. 216 of Organic Law on National & Local-Level Government Elections (OLNLGE) is of course not the right provision which gives the Petitioner the option to leave out the Electoral Commission as a party in an Election Petition. However, s. 216 concerns the actual trial in an Election Petition and in the event the National Court finds a person has committed an offence and the related task bestowed upon the Registrar of the Court to undertake. This provision has nothing to do with joining or leaving out Electoral Commission as a party in any Election Petition proceedings.
  3. The appropriate, relevant and applicable provision is s. 215 of the Organic Law on National & Local-Level Government Elections (OLNLGE). This is the provision which provides an option where Electoral Commission though not named as a party in an election Petition the National Court still has the jurisdiction subject to subsection 3 of 215 to declare election of a successful election void. The s. 215 of Organic Law on National & Local-Level Government Elections (OLNLGE) reads:

"215 voiding election for illegal practices


(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) ....

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

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


  1. We see s. 215 of Organic Law on National & Local-Level Government Elections (OLNLGE) applied in Komane Asano Wasege v Mathias Karani [1998] PNGLR 132 and also in Agonia v Karo [1992] PNGLR 465. The basic premise of this is that the grounds of petition relied on to invalidate the election return is purely on bribery. The allegations are leveled against the respondent, the member elect. Therefore, most petitions like Wasege case (supra) and Agonia case (supra) have not named Electoral Commission as a party. However, by s. 211 of the Organic Law on National & Local-Level Government Elections (OLNLGE), the Electoral Commission may by its own initiative and with leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings.
  2. The rationale behind this approach is that when one is sued without any allegation against him or her, it attracts liability and thus costs. So by Electoral Commission not named or joined a party does not normally render the petition incompetent. It actually depends on the grounds or allegations contained in the petition. It can also be pointed out at this juncture that by Electoral Commission not named in a petition, it is not one of the prerequisites under s. 208 of Organic Law on National & Local-Level Government Elections (OLNLGE).
  3. Because of the aforesaid reasons, I shall now dismiss the first ground of the Objections to Competency.
  4. The respondent's next ground of challenge to the Objection to Competency is taken under s. 208(d) of the Organic Law on National & Local-Level Government Elections (OLNLGE). The s. 208(d) reads:

"208 Requisites of petition


A petition shall-


(d) be attested by two witnesses whose occupations and addresses are stated;"


  1. In the case of James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral Commissioner & William Duma EP No. 10 & 11 of 2012 (21 November, 2012) N4899 Kandakasi, J was of this view in regard to s. 208(d) of Organic Law on National & Local-Level Government Elections (OLNLGE). His Honour stated:

"I am of the view that, attesting witnesses must give sufficient facts about their names, whether they are known by only one name or another name also, their occupation in terms of what they do for living, their address by reference to Section and Lot numbers if that is applicable or street or road names, or village names, or names of settlements. Where the villages or settlements are big, some reference point of their ready location, such as a nearby school, church, river, creek, block number or names of any structure of easy identification and location should be given. Also if they are formally or informally employed and are usually not home most of the time, their work place addresses could be useful additional information. There can be no prescription of what address details attesting witnesses should provide as long as they provide sufficient details to easily locate them."


  1. In James Yoka Ekip & Simon Sanagke (supra) the witnesses gave the names, the occupations as Taxi Drivers and their address as "8 Mile, National Capital District. The respondents argued that simply stating "8 Mile" in the National Capital District without more is insufficient. Respondents argued that it was quite confusing because it does not indicate whether the witnesses live in the 8 Mile Area or they were attesting to the petition at "8 Mile."
  2. Kandakasi, J accepted the respondents' argument that by stating only "8 Mile" is not sufficient. This is because 8 Mile is a big area. His Honour said it would take much more time and effort for anyone to locate someone, unless that person is well known in the area as in the case of a church pastor or a businessman in the area or a community leader.
  3. The respondent took issue with the occupation and residential address of first attesting witness Walepa Kurokuro. The first attesting witness has written "self-employed" as his occupation. Respondent said this is defective, incomplete and erroneous as no such occupation exists nor is it prescribed in the PNG Labour Department's Guidelines to Classification of Employment and not as an employment. Respondent say this is insufficient to satisfy the requirements of s. 208 (d). I must say this argument must fail because I am of the view that when a person listed himself or herself as "self-employed', it means he or she is involved or engaged in private business or is a businessman or businesswoman. To me this is sufficient.
  4. The respondent's second leg of objection under s. 208(d) is the residential address of First Attesting Witness Walepa Kurokuro as "Bomana Middle Street, Daru" and the Second Attesting Witness Pastor Steven Bagari as "Otti Creek, Daru Town". Mr. Cooper of counsel for the Respondent submitted that these residential addresses do not exist so it is fictional, hypothetical and/or erroneous addresses and are insufficient to satisfy the requirements of s. 208(d) of Organic Law on National & Local-Level Government Elections (OLNLGE). In support of his argument, the respondent through Mr. Cooper tendered a copy of Daru Town Map. The map was produced by the National Mapping Bureau in Waigani and it is dated November, 2003. Mr. Furigi of counsel for the Petitioner argued that the residential addresses as provided by the two (2) attesting witnesses are sufficient. We should not be too legalistic and try to be strict.
  5. Respondent's argument for disputing the accuracy and validity of the addresses of the two (2) attesting witnesses is not very convincing and satisfactory to me. First, the Map of Daru Town which the respondent relies on is dated November, 2003 and we are in December, 2012. This is almost nine (9) years or a little more than nine (9) years. From these nine (9) years many developments or circumstances changes. Thus, new streets change of streets, etc... so a 2003 Town Map may not truly reflect changes leading up to 2012. So, if in fact there truly exist "Bomana Middle Street, Daru or Otti Creek, Daru Town," respondent failed to really satisfy this Court, when relying on a 2003 Daru Town Map. Daru is a small town and any town resident could be easily identified and located. For a Pastor or a businessman it is very easy to identify and locate in Daru Town. That is the all purpose of s. 208(d) of Organic Law on National & Local-Level Government Elections (OLNLGE). I will reject the respondent's objections as far as "residential addresses" are concerned.
  6. Furthermore, the two (2) attesting witnesses have given their village address also;

ATTESTATION 1

Name: WALEPA KUROKURO

Residential Address: BOMANA MIDDLE STREET, DARU

Village: GAMAEWE, ORIOMO BITURI RURAL LLG
SOUTH FLY DISTRICT

Occupation: SELF EMPLOYED

ATTESTATION 2

Name: PASTOR STEVEN BAGARI

Residential Address: OTTI CREEK, DARU TOWN

Village: SEVIRIMABU, FLY RIVER -SOUTH FLY

Occupation: PASTOR PENTICOSTAL CHURCH, DARU

  1. In the event, the two (2) attesting witnesses are not located at their Residential Addresses then they still can be located at their above stated respective villages. I accept petitioner's submission that facts are sufficiently stated. In doing so, I dismiss this ground of objection and allow the petition to go for trial.
  2. Respondent to meet the costs of this application to be agreed if not to be taxed.

_____________________________________________________________
Furigi Lawyers: Lawyers for the Petitioner
Twivey Lawyers: Lawyers for the Respondent

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