Danaya v Wobiro [2013] PGNC 66; N5254 (5 March 2013)

N5254

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 70 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 WESTERN PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

DR. BOB TAWA DANAYA
Petitioner

AND:

ATI WOBIRO
First Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Daru: Hartshorn J.
2013: 4th and 5th March

Election Petition - Objections to competency – pleading of occupation of attesting witness – s.208 (a) and (d) Organic Law on National and Local Level Government Elections

Facts:

The petitioner disputes the election of the first respondent as the Member for Parliament for the Western Provincial Electorate in the 2012 General Election. The two respondents object to the competency of the petition for failing to plead the occupation of one of the attesting witnesses and also for failing to plead material facts as required by s. 208 (a) Organic Law on National and Local Level Government Elections (Organic Law). Consequently the respondents' submit that the petition should be dismissed or the offending parts of the petition struck out.

Held:

1. Notwithstanding that the statement as to the occupation of the attesting witness, is capable of falling within the interpretation of "occupation" as stated by the majority in Paru Aihi v. Moi Avei (supra), as the statement as to his occupation is not correct at the time that it was made on the date that the petition was filed, he has failed to state his occupation correctly as required under s. 208 (d) Organic Law. Consequently s. 208 (d) has not been complied with, pursuant to s. 210 Organic Law.

2. The petition is dismissed.

Cases cited:

Biri v. Ninkama [1982] PNGLR 342
Holloway v. Ivarato [1988] PNGLR 99
Agonia v. Karo [1992] PNGLR 463
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28
Greg Mongi v. Bernard Vogae & Anor (1997) N1635
Paru Aihi v. Moi Avei (No 2) (2003) SC720
Ludger Mond v. Jeffrey Nape (2003) N2318
Paru Aihi v. Moi Avei (2004) N2523
Gabriel Dusava v. Peter Waranaka (2008) N3367
Sir Arnold Amet v. Peter Yama (2010) SC1064

Counsel:

Mr. A. Furigi, for the Petitioner
Mr. G. Gileng, for the First Respondent
Mr. M. Kuma, for the Second Respondent

5th March, 2013

1. HARTSHORN J: The petitioner disputes the election of the first respondent as the Member for Parliament for the Western Provincial Electorate in the 2012 General Election. The two respondents object to the competency of the petition on the basis that it fails to plead the occupation of one of the attesting witnesses and fails to plead material facts as required by s. 208 (a) Organic Law on National and Local Level Government Elections (Organic Law). Consequently the respondents' submit that the petition should be dismissed or the offending parts of the petition struck out.

2. The allegations in the petition are that the first respondent committed acts of bribery and that officials of the second respondent committed illegal practices and irregularities in the course of the counting of the votes cast.

Law

3. The facts that are required to be pleaded in a petition have been determined by various National and Supreme Court cases. These include: Biri v. Ninkama [1982] PNGLR 342, Holloway v. Ivarato [1988] PNGLR 99, Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28, Paru Aihi v. Moi Avei (No 2) (2003) SC720, Paru Aihi v. Moi Avei (2004) N2523, Gabriel Dusava v. Peter Waranaka (2008) N3367 and Sir Arnold Amet v. Peter Yama (2010) SC1064.

Requirement to comply with s. 208 (a) Organic Law

4. Section 210 Organic Law provides that a proceeding on an election petition shall not be heard "...unless the requirements of sections 208 and 209 are complied with." Sections 208 and 210 Organic Law have been considered by the Supreme Court in Biri v. Ninkama (supra) and Holloway v. Ivarato (supra).

5. In Biri v. Ninkama (supra), it was not disputed that the petition in that case did not contain the occupations of the attesting witnesses as required pursuant to s. 208 (d) Organic Law. In considering that issue the Court said:

"It may be said that the requirement that a witness's occupation must be stated is not important or that it is not suitable to the circumstances of the country. But the method of disputing an election given by s. 206 and s. 208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra) ).

Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority. In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210."

6. The Supreme Court in Holloway v. Ivarato (supra) said:

"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out 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 ground upon which a petitioner relies. The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a 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 a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to estabish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."

7. The above cases and principles contained therein were recently followed by the Supreme Court in Sir Arnold Amet v. Peter Yama (2010) SC1064.

Bribery

8. As to establishing a ground of bribery, in Agonia v. Karo (supra), Sheehan J. considered the applicable principles and said:

"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be (an) allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case may be, in the free voting of an election."

9. In Karo v. Kidu (supra), Injia J. (as he then was) said:

"In my view, factors relating to matters requiring proof prescribed by the Organic Law on National Elections cannot be left to inference in a Petition. They must be specifically pleaded, not left to inference. It is a requirement of s. 215(3) to specifically plead whether the bribery and undue influence, in the present case by the first Respondent's Committee members, was committed with or without the authority or knowledge of the First Respondent."

Allegations other than bribery and undue influence

10. As to allegations other than bribery and undue influence, in Greg Mongi v. Bernard Vogae & Anor (1997) N1635, Injia J. (as he then was) said:

"Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected."

11. In Ludger Mond v. Jeffrey Nape (2003) N2318, Kandakasi J said:

"It is clear from this that if a petition alleges an illegal practice or conduct other than a bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence."

Grounds of objection

12. As to the approach that this court should take in its consideration of the objections to competency, counsel for the petitioner submitted that although it is trite law that s.208 and s. 209 Organic Law are the only requisites of the petition that require strict compliance pursuant to s. 210 Organic Law, in regard to the allegations in the petition, this court should adopt a more liberal approach in determining whether the various allegations survive objections to their competency. Counsel referred this court to the comments of Kandakasi J. in James Ekip v. Gordon Wimb (2012) N4899 in this regard. I will return to this issue when specific allegations are considered.

s. 208 (d) Organic Law

13. Both respondents raise objections in regard to whether an attesting witness to the petition has correctly stated his occupation for the purposes of s. 208 (d) Organic Law. If I uphold these objections it will determine the petition. Consequently I consider these objections first.

14. Paragraph 4 of the first respondent's amended notice of objection is as follows:

"The description by Sanaka Kela who attested to the Petition that he is "Second Secretary to the Office of the former Governor, Western Province" does not describe his occupation as required under Section 208 (d) of OLNLLGE but a position created under the provisions of the Parliamentary Members' Personal Staff Act 1988. That position of Second Secretary held by Sanaka Kela ceases after the Petitioner was voted out as the Provincial Governor for Western Province in the 2012 National Elections."

15. The last objection of the second respondent is as follows:

"Petition states that the Attesting witness, named as Sanaka Kela is a Second Secretary to the office of the Former Governor – Western Province. Petition is incompetent in terms of s. 208 (d) of the Organic Law when the description of employment is not fitting to occupation."

16. Section 208 (d) Organic Law is as follows:

"A petition shall—

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

17. The first respondent submits that the attesting witness Sanaka Kela has stated on the face of the petition that his occupation is second secretary to the office of the former Governor. The first respondent submits that this is not his "occupation" within the definition accorded to that term by the Supreme Court in Paru Aihi v. Moi Avei (supra) which is:

".... trade, profession, business or calling, things or activities that one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, Judge are examples of one's occupation."

18. The first respondent also submits that Sanaka Kela has not stated to which former Governor he refers. Further, the position described by Sanaka Kela was held at the pleasure of the member of Parliament who appointed him and terminates when a member ceases to be a member of Parliament. So even if the statement given as to occupation is sufficient for the purposes of s.208 (d), it is incorrect as to Sanaka Kela's position as that position terminated when the member of Parliament who employed him ceased to be a member of Parliament.

19. The petitioner submits that the interpretation of s. 208 (d) Organic Law by Injia J. (as he then was), that the provision should be looked at as a whole, is to be preferred. In Karo v. Kidu (supra) His Honour said:

"In Agonia v Karo, Sheehan, J at p. 465 said:

"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply his village."

In my view, OLNE S. 208 (d) simply requires an "address". Section 208 (d) does not require a residential address. I agree with Sheehan, J's statement of the purpose of s. 208 (d)......... In my view, s. 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address."

20. The petitioner submits that Sanaka Kela has not omitted to describe his occupation, he has merely stated his occupation in a manner that the first respondent refers to as a position, as distinct from an occupation. Further, it would not be difficult to locate Sanaka Kela. He could be located at his Port Moresby residence or in his village, both being described in the petition.

21. As to the former Governor not being specifically named, as this petition relates to the election of the first respondent, the description of "the former Governor" is sufficient to refer to the petitioner who is the former Governor.

22. Further, Sanaka Kela could still be the secretary to the petitioner in some capacity other than that covered by the Parliamentary Members' Personal Staff Act 1988.

23. In Paru Aihi v Moi Avei SC720 (supra), the majority of the members of the Court, one of whom was Injia J., upheld an appeal against what was described as a restrictive approach taken by the National Court in determining that the word "villager" did not properly describe an occupation for the purposes of s. 208 (d) Organic Law.

24. Before specifically considering the point, the majority took the opportunity to consider the requirements of s.208 Organic Law and said:

"It is settled that pursuant to s. 210, a Petition must strictly comply with the mandatory requirements of s. 208, before the petition qualifies for a substantive hearing. The requirements in s. 208 are formal and technical procedural requirements, the determination of which is based on the information endorsed on the face of the petition. As Mr Sheppard submitted, a determination of these matters does not involve any discussion and consideration of the merits of the grounds in the petition. The merits of the grounds in a Petition are determined at the substantial hearing only after the petition survives the formal scrutiny under s. 210. At the substantive hearing, the procedural and evidentiary rules in s. 212 and s. 217 apply, in determining the merits of the grounds in a petition. These principles to me are the clear import of the five-man Supreme Court bench decision in Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342. As counsel for the Second Respondent, Mr Kombagle submitted, there is no reason to water down the principles in Delba Biri until that decision is properly re-visited and overruled by a subsequent Supreme Court of equal or greater composition, in an appropriate case. This Court is not invited to perform that task."

25. As to the purpose of s. 208 (d) the majority said:

"The purpose of the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process. An election by its very nature involve the masses with polarized political ideologies and a final (family) ties. One's election loss can easily spur trouble or mischief if the procedural requirements for challenging an election are not strictly adhered to. The importance of the requirement in s. 208 (d) to state the attesting witness' occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witness(es) attaches to the witness' capacity to verify the petition. For instance, an infant or mute person lacking full capacity would not be expected to verify or attest a petition."

26. There is no reference by the majority to considering s. 208 (d) as a whole and that its purpose is to be able to locate and identify a witness, as referred to in Agonia v. Karo (supra). I note here that counsel for the petitioner did not make submissions as to the applicability or otherwise of Paru Aihi v. Moi Avei SC720 (supra).

27. In their consideration of whether "villager" satisfied the description of "occupation" for the purposes of s.208 (d), the majority stated that to them, the word "villager"

".....is a person who comes from or lives in the village and does all the things a villager living in the village would do to make a living......The Courts too have had no difficulty in accepting this word "villager" to refer to a person who lives in a village and is engaged in all these kinds of activities to make a living."

"........a "villager" is descriptive of a person who comes from or lives in the village, but in our PNG context, it has a much wider meaning; and it includes a person who lives in the village and does all the things a village person in PNG does to make a living. In other words; it is also descriptive of his "occupation". (My underlining)

28. It is evident that the majority found that "villager" satisfactorily describes the "occupation" of an attesting witness for the purposes of s.208 (d) Organic Law as the majority interpreted "villager" to describe an occupation of a person as well as where a person comes from or lives.

29. As to the interpretation of the word "occupation", the majority said:

"......we cannot see why a word as plain as "occupation" requires a legal mind to extrapolate its meaning."

"The term "occupation" simply means one's trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one's occupation. It cannot mean one's place of origin such as Western Highlanders or New Irelander; a linguistic group such as Motuan or Engan; national status such as citizen or non-citizen, and racial origin such as Chinese or African and so on." (my underlining)

30. The statement by Sanaka Kela, "Second Secretary to the office of the former Governor Western Province", although it does not state a trade, profession, business or calling such as carpenter, lawyer, doctor, secretary etc., it does state a thing or activity that he does for a living. The thing or activity is being the Second Secretary to the office of the former Governor Western Province. I am satisfied that the statement given by Sanaka Kela is capable of falling within the interpretation of "occupation" favoured by the majority in Paru Aihi v. Moi Avei SC720 (supra).

31. As to the former Governor not being specifically named, I agree with the submission of counsel for the petitioner that as this petition relates to the election of the first respondent, the description of "the former Governor" as distinct from "a former Governor" is sufficient to refer to the petitioner who is the former Governor.

32. As to the argument of counsel for the petitioner that Sanaka Kela could still be the secretary to the petitioner in some capacity other than that covered by the Parliamentary Members' Personal Staff Act 1988, the statement of Sanaka Kela is "Second Secretary to the office of the former Governor Western Province" as distinct from "Second Secretary to the former Governor Western Province".

33. Sections 4 (1) and (2) Parliamentary Members' Personal Staff Act 1988 provide:

"4. Conditions of employment.

(1) Subject to this Act, a member of a personal staff holds office at the pleasure of the Member for whom he has been appointed.

(2) When a Member ceases to hold the office of a Member of Parliament, the appointment of a member of his personal staff is terminated."

34. A member of Parliament ceases to hold the office of a member of Parliament when he ceases to be a member of Parliament - likewise the Governor of a province. Sanaka Kela is able to be the second secretary to a former Governor of a province but not the second secretary to the office of a former Governor of a province as such an office does not exist. Further, if Sanaka Kela was the second secretary to the office of the Governor of Western province, his appointment was terminated when the member of Parliament who was the Governor of Western province ceased to hold the office of a member of Parliament pursuant to s. 4 (2) Parliamentary Members' Personal Staff Act 1988.

35. Counsel for the petitioner submitted from the bar table that the petitioner still has an office by virtue of him being the leader of the PNG Labour Party. This does not assist the petitioner as Sanaka Kela has not given his occupation in the petition as secretary to the office of the leader of the PNG Labour Party.

36. It is the case then that notwithstanding that the statement as to the occupation of Sanaka Kela, in my view, is capable of falling within the interpretation of "occupation" favoured by the majority in Paru Aihi v. Moi Avei SC720 (supra), as the statement as to his occupation is not correct at the time that it was made on the date that the petition was filed, he has failed to state his occupation correctly as required under s. 208 (d) Organic Law. Consequently as s. 208 (d) has not been complied with, pursuant to s. 210 Organic Law which provides that:

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

this petition shall not be heard and should be dismissed. Given this finding it is not necessary to consider the other submissions of counsel.

Orders

37. The Orders of the Court are:

a) The election petition is dismissed.

b) Costs are reserved for further submissions and determination.

______________________________________________________

Furigi Lawyers: Lawyers for the Petitioner
Posman Kua Aisi Lawyers: Lawyers for the First Respondent Parua Lawyers: Lawyers for the Second Respondent