Abal v Ganim [2014] PGNC 32; N5676 (16 July 2014)

N5676

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 61 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 WABAG OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

SAM TEI ABAL
Petitioner

AND:

ROBERT SANDAN GANIM
First Respondent

AND:

MAKU KOPYALA
The Returning Officer for Wabag Open Electorate
Second Respondent

AND:

ANDREW TRAWEN
The Chief Electoral Commissioner
Third Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Hartshorn J.
2014: July 15th, 16th

Election Petition - Objections to competency

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
David Lambu v. Ipatas (1997) N1701
Greg Mongi v. Bernard Vogae & Anor (1997) N1635
Reipa v. Bao [1999] 232
Paru Aihi v. Moi Avei (No 2) (2003) SC720
Ludger Mond v. Jeffrey Nape (2003) N2318
Mathias Karani v. Yawa Silupa (2003) N2385
Paru Aihi v. Moi Avei (2004) N2523
Gabriel Dusava v. Peter Waranaka (2008) N3367
Sir Arnold Amet v. Peter Yama (2010) SC1064
Ekip v. Wimb (2012) N4899
Kikala v. Electoral Commission of Papua New Guinea (2013) N4960

Counsel:

Mr. G. Manda and Mr. O. Avorosi, for the Petitioner
Mr. I. R. Molloy, for the First Respondent
Mr. H. Viyogo, for the Second, Third and Fourth Respondents

16th July, 2013

1. HARTSHORN J: The petitioner disputes the election of the first respondent as the Member for Parliament for the Wabag Open Electorate in the 2012 General Election. The four respondents object to the competency of the petition on various grounds and submit that the petition should be dismissed or the offending parts of the petition struck out. I deliver my decision on the objections to competency.

2. The allegations in the petition are that there were instances of illegal practices and irregularities committed during polling and the counting of votes and that the first respondent, against the law, did not resign as a senior public servant before contesting the Election.

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 establish. 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. At paragraph 134, Davani J. said:

"The significance of applicants complying with the requirements of s.208 are clear. It is not for a Court to draw conclusions on what are clearly omissions be they typos or incorrect citing of statutes, etc. they all go towards satisfying the requirements in s.208. It is the applicant and his counsel who must ensure that the Petition is entirely correct, before it is filed. If not done, then there are no proceedings (petition) because of s. 210. This is analogous to the giving of s. 5 Notice under The Claims By and Against the State Act which is a condition precedent. In election petition matters the requirements under s.208 must be fully complied with failing which, the Petition does not exist"'

8. I also make reference to a decision of Kandakasi J. in Ekip v. Wimb (2012) N4899 in which His Honour at paragraph 44 said the following as to alternative pleadings:

"Also as a matter of law alternative pleading is not permitted in election petitions. A latest statement and application of the principle is in the decision of Lay J (as he then was) in Luke Alfred Manase v Don Pomb Polye. His Honour was their applying the authoritative decision of the Supreme Court in Robert Kopaol v. Philemon Embel. That case stands for the proposition that, a petitioner's pleadings must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings."

Allegations other than bribery and undue influence
9. 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."

10. 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 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."

11. In Amet v. Yama (supra) Davani J said at paragraph 118:

"In relation to s.215 (3)(b) of the OLNGLE, the following are the material relevant facts that must be pleaded;

a) The Petitioner must plead that the illegal practice or conduct by the winning candidate was likely to affect the election results and show that. To do that, it is necessary 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.

b) And a further requirement is that the pleading must also include that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. If it was pleaded, that evidence can be led to support the pleadings."

Grounds of objection
Approach
12. Counsel for the petitioner submitted in essence that this court should adopt a more liberal approach in determining whether the various allegations survive objections to competency. He referred to sections 217 and 222 Organic Law on National and Local Level Government Elections (Organic Law) and submitted, if I understand correctly, that it was the intention of the Organic Law that a petition should be able to be drafted by the petitioner himself without the aid of a lawyer. Consequently when the court considers an objection to competency, it should view the petition as having been drafted by the petitioner and not a lawyer and a more liberal approach to objections to competency should be adopted.

13. In this instance, given that the petition has been filed under the name of a law firm, the assumption is that the petition was prepared by a lawyer. That lawyer is expected to be aware of the relevant legislation, the case law on the legislation and what the case law has held is required in the drafting of a petition. Presumably counsel for the petitioner is not contending that even though the petition was prepared by a lawyer, it was drafted so that it appears to have been prepared by someone other than a lawyer.

14. As to the need to meet the strict requirements of sections 208, 209 and 210 Organic Law, Kandakasi J. recently stated in Ekip v. Wimb (2012) N4899:

"Contrary to the submissions of learned counsel for the First Respondent...... I note that the Supreme Court in the Jimson Sauk and Ginson Saonu cases did not water down the need to meet the strict requirements of s. 208, 209 at 210 of the Organic Law on Elections."

15. This was referred to by Makail J. in Kikala v. Electoral Commission of Papua New Guinea (2013) N4960. His Honour went on to say that:

"s. 208(a) only requires the petitioner to state the facts he relies upon to invalidate an election or return. However, case laws require the facts supporting the allegations to be made with clarity and sufficiency and not (to be) mere allegations."

Whether relevant material facts pleaded as to voting
16. The respondents' submit that the petition does not contain relevant material facts concerning the voting that occurred in the election. The respondents' submit that as the absolute majority, the winning margin, the total number of allowable ballot papers that remained in count after the final exclusion before declaration and how those figures are calculated, have not been pleaded, the court cannot determine what it is required to do under s.215 (3) (b) and s. 218 (1) Organic Law. That is to be satisfied that the result of the election was likely to be affected under s. 215 (3) (b) in regard to an illegal practice and to be satisfied that the result of the election was affected under s. 218 (1) in regard to an error or omission.

17. Counsel for the petitioner submits that the difference in votes between the first respondent and petitioner has been pleaded and it is not necessary to plead the other figures. Further, the court is able to determine whether the result of the election likely was or was affected by the alleged illegal practices, errors and omissions by reference to the pleadings in the petition.

18. In Kikala v. Electoral Commission of Papua New Guinea (supra), Makail J considers the cases in detail on this point and states at paragraph 63:

"I accept the respondents' submission that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these very relevant facts are not pleaded, how can the Court make a finding that as a result of these election irregularities, the election was likely to be affected or indeed was affected? Furthermore, how can the Court make the finding that the number of votes affected by the alleged illegal practice or errors and omissions is less than or more than the winning margin when what the winning margin is has not been properly pleaded? I am satisfied the facts setting out the errors and omissions by the first respondent in relation to the winning margin are insufficient. This ground is struck out."

19. I respectfully agree with his Honour's comments. Here, as the winning margin, absolute majority and total number of allowable ballot papers that remained in count after the final exclusion before declaration have not been pleaded, the court is unable to properly determine whether the result of the election was likely to be or was affected, as it is required to do pursuant to s.215 (3) (b) and s.218 (1) Organic Law. Consequently the pleadings relating to illegal practices and errors and omissions should be struck out.

Whether election likely to be or was affected
20. A further ground upon which the respondents rely to object to the competency of the pleadings concerning illegal practices and errors and omissions, is that nowhere in the petition has the petitioner pleaded that the result of the election was likely to be affected in respect of illegal practices, or did affect the result of the election in respect of errors and omissions. The respondents' submit that it is necessary for there to be such a pleading pursuant to s.215 (3) (b) and s. 218 (1) Organic Law.

21. The petitioner submits that where illegal practices, errors and omissions are pleaded, it must show that they did affect the election result. Further, it is clear from the pleading that the illegal practices, errors and omissions that occurred did affect the result of the election as the number of votes affected far outnumbered the numbers actually collected by the first respondent.

22. Again I refer to Amet v. Yama (supra) in which Davani J. stated as to s.215 (3) (b) that a petitioner must plead that the illegal practice or conduct was likely to affect the election result and show that. The same reasoning applies in regard to s.218 (1). I also refer to Mathias Karani v. Yawa Silupa (2003) N2385 in this regard.

23. From a perusal of the petition, the petitioner has not specifically pleaded that the illegal practice or error or omission was likely to affect or did affect the result of the election. As to showing in the petition that the illegal practice or error or omission was likely to affect or did affect the result of the election, from a perusal of the petition, notwithstanding the submission of counsel for the petitioner, it is not shown how this was likely to occur or occurred. There is a table in paragraph 17 of the petition that has purported totals of votes cast and votes cast for the first respondent in different polling places on different days, but there is no indication as to how this would likely or did affect the election result. The table and contents are at best, confusing and it is not clear at all what they are supposed to portray.

24. I note in this regard the statement of Davani J. in Amet v. Yama (supra) referred to earlier that it is not for the court to draw conclusions on the petition. I also refer to the Supreme Court case of Reipa v. Bao [1999] 232 where the majority said that it is clear from the legislation that the court cannot make assessments of possible scenarios of where the votes may have gone.

25. I am not satisfied that the petitioner has pleaded or shown that the illegal practices or errors and omissions alleged either were likely to affect or did affect the election result. Consequently, on this ground, the pleadings relating to illegal practices and errors and omissions should be struck out.

The "just" requirement
26. Given my findings above it is not necessary to consider other objections relied on by the respondents concerning illegal practices, errors and omissions. However, I make mention of another of the respondents' grounds of objection as to the pleading of alleged illegal practices pursuant to s.215 (3) (b) Organic Law. That is that the petitioner has not pleaded that it is just that the first respondent should be declared not to be duly elected or that the election should be declared void.

27. Counsel for the petitioner did not specifically address this point apart from stating in the conclusion to his written submissions that the petition demonstrates that it is fair and just that the first respondent's election be nullified and he be declared not elected.

28. In Amet v. Yama (supra) Davani J. states that a pleading in regard to s.215 (3) (b) must plead that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. I also refer to the decision of Sawong J. in Mathias Karani v. Yawa Silupa (supra) in this regard. From a perusal of the petition it is clear that there is no such pleading in regard to any of the illegal practices alleged.

29. Further, I am not satisfied that it has been shown in the petition that it is just. I also refer to the comments of Davani J. to which I have previously referred that it is not for a court to draw conclusions as to what a pleading is supposed to mean. Consequently the pleadings as to illegal practices should be struck out on this ground.

Holding double office
30. The respondents' object to the competency of paragraph 28 of the petition which is a pleading that the first respondent did not resign from the position he held in the Enga Provincial Administration when he nominated to contest the election through to the time that he was elected.

31. The petitioner submits that the respondents' objection is not a proper objection to competency and relies upon the decision of Makail J. in Philip Kikala v. Electoral Commission of Papua New Guinea (supra). In that case His Honour concluded that issues on qualifications are not competency issues.

32. The respondents' submit that as there is no provision in the Constitution or the Organic Law that deals with the disqualification of a person based on him not resigning from a public office, the court has no jurisdiction to enquire into such an allegation by way of a petition under s. 206 Organic Law. Thus, it is a question of competency. Put another way, a ground in a petition must comply with s. 208 (a) Organic Law and must set out facts that are relied on to invalidate an election. As there is no provision in the Constitution or Organic Law and also no provision in the Public Services (Management) Act or Standing Orders referred to in paragraph 28 of the petition, that provides for a disqualification of a person because he failed to resign from a public office, a pleading to that effect is incompetent.

33. The respondents' rely upon the decision of Sakora J. in David Lambu v. Ipatas (1997) N1701 in this regard. From a perusal of both decisions and the submissions of counsel, I am satisfied that it is an issue of competence and that for the reasons submitted by the respondents the ground is incompetent. Ground 28 should be struck out.

34. Given that I have found that all of the grounds of the petition should be struck out, the petition should be dismissed. It is not necessary for me to consider the other submissions of counsel.

Orders
35. The Order s of the Court are:

a) The petition is dismissed.

b) The petitioner shall pay the respondents' costs of and incidental to the petition.

c) The security deposit shall be shared by the respondents' in payment of their costs.

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Petitioner
Paraka Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second, Third and Fourth : Respondents