Samuel v Morauta [2018] PGNC 30; N7098 (13 February 2018)

N7098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 58 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE
MORESBY NORTH-WEST OPEN ELECTORATE

LOHIA BOE SAMUEL
Petitioner

V

SIR MEKERE MORAUTA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2018: 12, 13 February

ELECTIONS – petitions – objections to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(a): whether facts relied on to invalidate election adequately set out – Section 208(d): whether failure of attesting witnesses to state occupations rendered petition incompetent.

The respondents to an election petition objected to competency of the petition on two grounds: (1) that the petition was in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections in that it did not, in six respects, adequately set out the facts relied on to invalidate the election; and (2) that the petition was in breach of Section 208(d) of the Organic Law in that the two attesting witnesses did not state their occupations.

Held:

(1) Strict compliance with each of the requirements of Section 208 of the Organic Law is required. Substantial compliance is not sufficient.

(2) Of the six respects in which the respondents argued that the petition failed to adequately state facts, five were regarded as immaterial (alleged failure to specify the actual number of ballot papers and votes involved, inadequate description of electoral officers, inadequate description of date, time and place of events, failure to plead law and improper relief sought). But one was material: failure to state and explain how the result of the election was affected by errors or omissions of electoral officers. Considered as a whole the petition failed to adequately state the facts relied on to invalidate the election and was in breach of Section 208(a) of the Organic Law. For that reason alone the petition was dismissed.

(3) The requirement that an attesting witness state his or her occupation is an express and mandatory requirement of Section 208(d) of the Organic Law, breach of which renders the petition incompetent. This was a case of entire and incurable non-compliance. The petition was in breach of Section 208(d) of the Organic Law. For that reason alone the petition was dismissed.

(4) Both grounds of objection being upheld, the petition was dismissed.

(5) As to costs, both notices of objection failed to specify the grounds of objection with the optimum degree of particularity expected, and not all of the arguments in support of the ground re Section 208(a) of the Organic Law succeeded, and the petition appeared to represent a genuine attempt by the petitioner to raise important issues as to the polling and counting processes. In these circumstances it was appropriate to order that the petitioner pay the respondents’ costs in the fixed sum of K2,500.00 each.

Cases cited

The following cases are cited in the judgment:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Dr Bob Tawa Danaya v Ati Wobiro (2016) N6250
Gordon Wesley v Isi Henry Leonard (2016) SC1477
Holloway v Ivarato [1988] PNGLR 99
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
Sam Tei Abal v Robert Sandan Ganim (2013) N5676
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

OBJECTIONS

This is a ruling on objections to competency of an election petition.

Counsel

G Geroro, for the Petitioner
J Sirigoi, for the First Respondent
J Ole, for the Second Respondent

13^th February, 2018

1. CANNINGS J: This is a ruling on two objections to competency of an election petition. The petition, consisting of five grounds of challenge, was filed by unsuccessful candidate Lohia Boe Samuel, disputing the election of first respondent, Sir Mekere Morauta, as member for Moresby North-West Open in the 2017 general election.

2. Both respondents, Sir Mekere and the Electoral Commission, argue two grounds of objection:

(1) that the petition was in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections in that it did not, in six respects, adequately set out the facts relied on to invalidate the election; and

(2) that the petition was in breach of Section 208(d) of the Organic Law in that it was not attested by two witnesses who stated their occupations.

3. Section 208 (requisites of petition) states:

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) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

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

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

GROUND 1: BREACH OF SECTION 208(a)

4. The petition was drafted in such a way that it generally set out the facts relied on to invalidate the election in part B (paragraphs 1 to 22) and then in Part C set out five grounds of challenge:

(1) Illegal declaration of the first respondent: it is alleged that the first respondent was prematurely declared as elected after the 35^th elimination (of candidate Honk Kiap) as at that time the first respondent did not have an absolute majority of allowable votes.

(2) Unlawful double declaration: it is alleged that (a) the person who declared the first respondent as elected was not authorised to do so; and (b) there was another declaration of another candidate (Joseph Tonde) that was also illegal as, although the declaration was made by the authorised returning officer, that candidate did not have an absolute majority of votes.

(3) Illegal counting and elimination of 31^st to 35^th candidates by unauthorised electoral officials: it is alleged that electoral officials disobeyed and undermined the lawful decision of the returning officer to suspend counting before the 31^st elimination, the result being that the 31^st to 35^th eliminations were unlawfully conducted.

(4) Disputes, issues and concerns over ballot boxes: it is alleged that disputes about ballot boxes at five locations (UPNG, Gerehu Stage 3, Cheshire Home, Nautana settlement, Telikom village) were left unresolved by the Electoral Commission without explanation.

(5) Disputes, issues and concerns over ballot papers: it is alleged that concerns regarding 1,500 to 2,000 ballot papers (re irregular and generic ballot papers) raised by the petitioner after the primary count and the quality check, were left unresolved by the Electoral Commission without explanation, despite initial indications from the Commission’s legal adviser that these papers should not be counted.

5. Mr Sirigoi for the first respondent and Mr Ole for the second respondent submitted that the petition failed, in six respects, to adequately set out the facts relied on to invalidate the election. In assessing these six sub-grounds I will have regard to the guiding principles set by the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99. Though there must be strict compliance with the requirement to set out the facts relied on, the level of factual detail required will be sufficient if it meets these requirements:

• the facts that must be set out are the material or relevant facts which would constitute a ground on which the election might be invalidated;
  
• evidence by which those facts are proposed to be proved should not be set out;
  
• the facts must be set out or pleaded in a clear, concise and coherent way in order to satisfy the purpose of pleading the facts, which is to indicate clearly the issues upon which the opposing parties can prepare their cases and to enable the court to see with clarity the issues involved.
  

6. I now set out and determine the respondents’ six sub-grounds.

(a) Failure to specify the actual number of ballot papers and votes involved

7. The respondents argue that the petition in ground 1 misstates the number of allowable votes and the absolute majority required and in grounds 3, 4 and 5 makes vague and general allegations about the number of ballot boxes and ballot papers the subject of “disputes, issues and concerns”.

8. I reject the respondents’ arguments. The alleged facts and figures set out in the petition are stated with sufficient particularity to constitute grounds on which the election might be invalidated. The petition was not to include the evidence by which those facts are proposed to be proved. The facts were set out in a sufficiently clear, concise and coherent way.

(b) Failure to identify electoral officers responsible for errors and omissions

9. The respondents argue that the petition fails to provide the names of electoral officials allegedly responsible for errors and omissions in the counting and leaves the respondents guessing as to who was allegedly responsible.

10. I reject the respondents’ arguments. It is desirable but not necessary for a petition to provide the names of electoral officials if the name of the official would reasonably be expected to be within the knowledge of the Electoral Commission, eg the name of the returning officer, assistant returning officers, and other officials that would be easily identifiable by reference to polling team numbers. Electoral officials are described with sufficient particularity to constitute grounds on which the election might be invalidated. The petition was not to include the evidence by which those facts are proposed to be proved. The facts were set out in a sufficiently clear, concise and coherent way.

(c) Failure to identify time, date and location of events

11. The respondents argue that the petition fails to adequately state the time, date and location of various events, leaving them guessing as to the case that must be met.

12. I reject the respondents’ arguments. Each ground of the petition adequately particularises the time, date and place of the alleged errors or omissions of electoral officials. The petition was not to include the evidence by which those facts are proposed to be proved. The facts were set out in a sufficiently clear, concise and coherent way.

(d) Failure to state the laws allegedly breached by electoral officials

13. The respondents argue that the petition makes many allegations of errors and omissions by electoral officials but does not mention any provision of the Organic Law or any other law that was breached, and leaves the respondents guessing as to what questions of law need to be addressed when responding to the petition.

14. I reject the respondents’ arguments. It is desirable but not necessary for a petition to plead the law allegedly breached by electoral officials (Gordon Wesley v Isi Henry Leonard (2016) SC1477). The alleged errors and omissions are described with sufficient particularity (despite not being cross-referenced to any provision of the Organic Law or any other law) to constitute grounds on which the election might be invalidated. The petition was not to include the evidence by which those facts are proposed to be proved. The facts were set out in a sufficiently clear, concise and coherent way.

(e) Failure to state the relief sought in a manner compliant with the Organic Law

15. The respondents argue that the petition seeks relief, set out in Part D of the petition, which is not available under the Organic Law, and this makes the petition incompetent.

16. I reject the respondents’ argument. The relief sought by the petitioner can be properly regarded as declarations and/or orders that:

• the petition be upheld;
• the return for Moresby North-West Open be set aside and declared null and void;
• the declaration of the first respondent as member for Moresby North-West Open be set aside and declared null and void;
• there be a by-election or a recount.
  

17. Section 212(1) (powers of court) provides for the normal type of relief available on a petition, by stating:

In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d) order a re-count of ballot-papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment. [Underlining added.]

18. It will be observed that some of the relief sought by the petition is expressly provided for by Section 212(1): that the “petition be upheld”; that there be a “recount”. Some relief sought by the petition is not expressly provided for by Section 212(1): the “return be set aside” and “declared null and void”; the declaration of the first respondent “be set aside and declared null and void”. The failure to seek relief in the exact terms of Section 212(1) is not of any consequence. The list of remedies in Section 212(1) is non-exhaustive. The provision gives examples of the powers and remedies that the National Court might exercise and grant, which is apparent from the introductory words: “the National Court shall sit as an open court and may, amongst other things ...” Seeking relief other than what is expressly provided for, is not irregular. It is not something that affects the competency of the petition.

19. I am satisfied that by seeking relief in the way that it does, the petition complies with Section 208(b) of the Organic Law, which requires that the petition “specify the relief to which the petitioner claims to be entitled”.

(f) Failure to plead that the result was affected by the errors or omissions of electoral officials

20. The respondents argue that, because all grounds of the petition are based on errors or omissions by electoral officials it was necessary to plead that those errors and omissions affected the result of the election.

21. I uphold this argument. As all grounds of the petition allege that electoral officials were guilty of errors or omissions, the petition must meet the requirements of Section 218(1) of the Organic Law (Sir Arnold Amet v Peter Charles Yama (2010) SC1064, Sam Tei Abal v Robert Sandan Ganim (2013) N5676, Dr Bob Tawa Danaya v Ati Wobiro (2016) N6250). The effect of Section 218(1) is that only errors and omissions that actually affect the result of an election can vitiate the election. Section 218(1) (immaterial errors not to vitiate election) states:

... an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election. [Underlining added.]

22. A petition alleging errors or omissions by election officers must plead not only the errors and omissions but also that they did “affect the result of the election”. A causal connection must be asserted between the errors and omissions and the result of the election. As Injia J, as he then was, stated in Sai-Sail Beseoh v Yuntivi Bao (2003) N2348:

Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.

23. By failing to allege that any of the alleged errors or omissions affected the result of the election, and by failing to explain how and to what extent the errors and omissions affected the result, the petition has failed to set out the facts relied on to invalidate the election. The petition is non-compliant with Section 208(a) of the Organic Law in this respect.

Conclusion re ground 1 of objections

24. Five of the respondents’ arguments have been dismissed. One has been upheld. The argument upheld – regarding the failure to plead that the result of the election was affected by the alleged errors and omissions of electoral officials – is critical. Considered as a whole, I find that the petition fails to adequately state the facts relied on to invalidate the election. It is in breach of Section 208(a) of the Organic Law. For that reason alone the petition will be dismissed.

GROUND (2): BREACH OF SECTION 208(d)

25. The respondents argued that each of paragraphs (a) to (e) of Section 208 of the Organic Law imposes a mandatory requirement, which must be strictly complied with, for a petition to be properly before the National Court. It was argued that irrespective of the outcome of their arguments about Section 208(a), the petition fails to comply with Section 208(d), which requires that the petition “be attested by two witnesses whose occupations and addresses are stated”. Though two witnesses have attested the petition, neither has stated his occupation.

26. It is argued that the requirement for an attesting witness to state his occupation is put beyond question by the prescribed form of an election petition, Form 1 of the Election Petition Rules 2017. This provides that after setting out the preamble to the petition, the facts relied on and the grounds upon which the petitioner relies, and after the space for the petitioner to sign the petition, the petition is to be attested by two witnesses, in the following way:

FIRST ATTESTING WITNESS:

I, ............................. (insert name of first attesting witness), ............................ (insert occupation of first attesting witness), of ................................. (insert address of first attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

...................................................

(signature of first attesting witness)

SECOND ATTESTING WITNESS:

I, ............................. (insert name of second attesting witness), ............................ (insert occupation of second attesting witness), of ................................. (insert address of second attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

...................................................

(signature of second attesting witness)

27. In the present petition, the witnesses have attested the petition as follows:

FIRST ATTESTING WITNESS

I, NOU E KARIKO of C/- Southern Cross Assurance Limited, Level 1, Monian Tower, Douglas Street, Port Moresby, NCD, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER

...........

[Signed]

SECOND ATTESTING WITNESS

I, Kohu Dai of C/- Southern Cross Assurance Limited, Level 1, Monian Tower, Douglas Street, Port Moresby, NCD, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER

...........

[Signed]

28. Mr Geroro, for the petitioner, concedes that both attesting witnesses failed to state their occupation and in that sense Section 208(d) has not been complied with. He also concedes that if the traditional, strict approach to determining the competency of a petition were taken, that being the approach of strict compliance outlined in Delba Biri v Bill Ninkama [1982] PNGLR 342, the failure to state occupations would be fatal to the petition. It would be incompetent. Mr Geroro, however, urges the Court to have regard to Section 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

29. Mr Geroro asserts that Section 217 is just as relevant to determination of objections to competency as it is to the trial of a petition; and it should be invoked here, to prevent the petition being dismissed because of a simple clerical error or oversight – the failure of two witnesses to state their occupations – which can be easily corrected by evidence. He referred to the recent decision of the Supreme Court (Salika DCJ, Cannings J, Kariko J) in Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295 in support of those propositions, in particular the following passage of the unanimous judgment:

For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:

It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.

With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.

The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:

With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.

30. I hardly need convincing that Section 217 is relevant to determination of objections to competency as I was a member of the Court in Kikala. And I applied Section 217 when dismissing an objection to competency in Peter Charles Yama v Anton Yagama (2012) N4928.

31. Mr Geroro also urged the Court to consider the purpose of the attesting witnesses requirements of Section 208(d), which is, as explained by the Supreme Court (Amet CJ, Los J, Sakora J, Injia J, Sawong J) in Paru Aihi v Sir Moi Avei (No 2) (2003) SC720:

... 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 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’s occupation and his address is to satisfy the Court and the affected parties that the petition is genuine.

32. Mr Geroro submitted that the failure of the attesting witnesses to state their occupation did not affect the genuineness of the petition and therefore the failure to do so, having regard to the liberal approach to objections to competency developed in Kikala, does not affect the competency of the petition.

33. I agree with and uphold most parts of Mr Geroro’s submissions. Yes, Section 217 should be invoked, and I invoke it. Yes, the purpose of Section 208 is to ensure the genuineness of a petition. I apply that principle. But no, the failure of both attesting witnesses to state their occupation cannot be ignored or excused. A Curate’s Egg approach (‘parts of this rotten egg are excellent’) is not permissible. The statement of occupation requirement is a mandatory part of Section 208(d), which contains three requirements:

• the petition must be attested by two witnesses; and
• each witness must state his or her occupation; and
• each witness must state his or her address.
  

34. I uphold the submissions of Mr Sirigoi and Mr Ole that strict compliance with each of those requirements of Section 208(d) is essential. Failure to comply with one requirement is fatal to the petition. It was a defect in the petition incapable of being cured after the 40-day period allowed by Section 208(e) of the Organic Law.

Conclusion re ground 2 of objections

35. The failure of the attesting witnesses to state their occupation renders the petition incompetent. The petition is in breach of Section 208(d) of the Organic Law. For that reason alone it will be dismissed.

CONCLUSION

36. Both grounds of objection are upheld. Section 210 (no proceedings unless requisites complied with) states:

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

37. The requirements of Section 208 have not been complied with. The petition must be dismissed.

38. The question of costs of the petition is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I consider that both notices of objection failed to specify the grounds of objection with the optimum degree of particularity expected. I also take into account that not all of the arguments in support of the ground re Section 208(a) of the Organic Law succeeded. Further, the petition appeared to represent a genuine attempt by the petitioner to raise important issues as to the polling and counting processes. In these circumstances I deem it fit to order that the petitioner pay the respondents’ costs in the fixed sum of K2,500.00 each. I will order the Registrar to pay the costs out of the security for costs that the petitioner has deposited under Section 209 of the Organic Law and Rule 7 of the Election Petition Rules 2017.

ORDER

(1) The objections to competency of the petition are upheld.

(2) The petition is wholly dismissed.

(3) The petitioner shall pay the respondents’ costs in relation to the petition in the fixed sum of K2,500.00 each, and for that purpose, the Registrar of the National Court shall forthwith apply, out of the security for costs that the petitioner has under Section 209 of the Organic Law and Rule 7 of the Election Petition Rules 2017 deposited with the Registrar, the sum of K2,500.00 to the first respondent and K2,500.00 to the second respondent.

(4) The Registrar shall under Section 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.

Ruling accordingly.
_____________________________________________________________
Geroro Lawyers: Lawyers for the Petitioner
Sirigoi Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent