Kaku v Powi [2019] PGNC 37; N7729 (18 February 2019)

N7729

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 79 OF 2017

IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:
PASTOR BERNARD PETER KAKU
Petitioner

AND:
WILLIAM POWI – MEMBER FOR SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J.
2019: February 11 & 18.

ELECTION PETITION – Objection to Competency – Want of Form – Failure to Plead Elements of Sections 215 (3) (b) and 218 (1) - Contradictory, Vague and Convoluted Pleadings – Incorrect Reliefs.

Cases Cited:

EP 43 of 2017 Mond Palme v Fabian Pok (2018) N7214,
EP No. 2 of 2015 Cosmos Sohia v Fidelis Semoso (2016) N6365

Counsel:

R. Diweni, for the Petitioner,
A. Baniyamai, for the First Respondent,
H. Nii, for the Second Respondent.

18^th February, 2019

1. MANUHU J: The Petitioner was a losing candidate for the Southern Highlands Provincial Seat in the 2017 National General Elections. He filed this Petition to dispute the First Respondent’s victory. Before me is the First Respondent’s objections to the competency of the Petition for which I am required to rule on and I so do.

2. The grounds of objections relate to want of form; failure to plead elements of sections 215 (3) (b) and 218 (1) of the Organic Law of the National and Local-level Government Elections; contradictory, vague and convoluted pleadings; and incorrect reliefs.

WANT OF FORM

3. As evident in the heading of this judgment, the Petition is titled “IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS”. It was argued that the Petition does not comply with Form 1 of the Election Petition Rules 2017.

4. Rule 4 of the Rules provides:

“ 4. Form of petition
“The petition shall be in accordance with Form 1.”

Consistent with Form 1, the Petition should be titled “IN THE MATTER OF A DISPUTED RETURN FOR THE SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE”.

5. Mr. Diweni conceded that the Petition failed to comply with Form 1 but he argued that there is substantial compliance in that firstly, section 206 is the substantive provision on election petitions and secondly, want of form is not a requirement of section 208. The Court was also referred to section 217 of the Organic Law and was urged to do justice by allowing the Petition to stand despite the discrepancy.

6. I have considered the submissions by counsel. In my considered opinion, Rule 4 is clearly mandatory. It has to be complied with. Secondly, a template of Form 1 is set out in the Rules. Lawyers are trained professionals. They are expected to read and familiarise themselves with the Rules and to follow it. Ignorance of procedural rules or lack of due diligence to adhere to requirements of the Rules, which appear to be the case here, should not be treated lightly.

7. However, section 206 is the substantive provision on election petitions. It provides that the validity of an election or return may be disputed by petition to the National Court and not otherwise. The Petition invoked section 206 as the jurisdictional basis to come before this Court.

8. Secondly, the nature of the discrepancy in the Petition is not a requirement under section 208. Section 208 provides:

“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).”

9. Want of form is clearly not a section 208 prerequisite. The Rules were promulgated pursuant to section 184 of the Constitution, section 212 (2) of the Organic Law and section 8 of the National Court Act (Chapter No 38) but these provisions do not elevate the Rules to the same status as the Organic Law. Thus, a requirement under the Rules does not deserve the same attention as a requirement of an Organic Law. Rule 4 does not require the same scrutiny as the requirements of section 208.

10. Thirdly, questions relating to want of form has to be considered against section 217 of the Organic Law. The section reads:

“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.” (my underlining)

11. This section requires that the Courts shall be guided by the substantial merits and good conscience of each Petition without regard to:

• legal forms
• legal technicalities,
• whether the evidence before it is in accordance with the law of evidence or not.
  

12. I note the recent decision of Pitpit, J in EP 43 of 2017 Mond Palme v Fabian Pok (2018) N7214 but on the basis of section 217, which clearly overrides Rule 4, I have a contrary view, with due respect. See also EP No. 2 of 2015 Cosmos Sohia v Fidelis Semoso (2016) N6365.

13. On the question of want of form, therefore, the discrepancy in question, which does not cause any confusion or prejudice to the respondents, is not fatal to the validity of the Petition.

FAILURE TO PLEAD ELEMENTS OF SECTIONS 215 (3) (b) AND 218 (1) OF THE ORGANIC LAW

14. Section 215 (3) (b) and 218 (1) requires the Petitioner to demonstrate in the pleadings that the result of the election would have been affected by the alleged errors and omissions. It was argued that the Petition does not plead these requirements and the pleadings do not demonstrate that the result of the election was likely to be affected.

15. I am of the considered view that this argument is without merit. It is clearly pleaded, with facts and figures, and two tables containing progressing totals, that counting was not completed. It was also pleaded that the First Respondent did not reach the required number and percentage of votes before he was declared winner. One the pleadings, there is no question that the result of the election was affected.

CONTRADICTORY, VAGUE AND CONVOLUTED PLEADINGS

16. It was submitted by Mr. Baniyamai that paragraphs 15, 21, 24, 27, 40, 41, 51, 52 and 57 are contradictory, confusing and vague. These paragraphs are found in section B of the Petition. They are statements of facts as required by the Organic Law.

17. I have read section B and am of the view that it merely sets out the facts the Petitioner relies on to support the nine grounds in the Petition. I do not find it confusing. It is set out neatly in chronological order. The date the writs were issued to the date the alleged premature declaration was made are clearly set out. The pleaded facts are open to challenge in due course but for the time being, they are the Petitioner’s version of facts in support of the Petition.

18. However, I am of the view that the grounds of the Petition require careful consideration. The first ground of the Petition is that Provincial Returning Officer Jacob Kurap prematurely declared the winner on 28 July 2017. On the pleaded facts, however, the alleged return of the writ by Kurap was rejected by the Second Respondent and Kurap was eventually terminated on 31 July 2017.

19. It is clear therefore that Kurap, after his termination, played no further part in the counting and the eventual declaration on 27 September 2017. He did not take part in the alleged premature declaration of the winner. Therefore, the first ground of the Petition cannot be maintained as such. The second and third ground must also fall for the same reason.

20. Accordingly, Ground One, Ground Two and Ground Three are incompetent.
Ground Four, Ground Six and Ground Seven all relate to premature declaration of the winner. The seventh ground is incompetent and has to be struck down. It is a duplication of the fourth ground in that they both allege breach of section 168.

Ground Four, under ERROS, OMISSIONS AND IRREGULARITIES BY THE SECOND RESPONDENT AND HIS SERVANTS AND AGENTS, alleges premature declaration and breaches of sections 142 and 168 (1) of the Organic Law. It reads:

“Newly appointed PRO Steven Gore Kaupa failed to complete and determine the result of the SHP Electorate by scrutiny and irregularly and prematurely declared the First Respondent thereby breaching Sections 142 and 168 (1) of the Organic Law.”

21. Section 142 aside for the time being, section 168 makes provisions for scrutiny of votes as follows:

“(1) Subject to this section and the Regulations the result of an election shall be determined by scrutiny in the following manner:—

(a) the Returning Officer shall ascertain the total number of first preference votes given for each candidate;

(b) the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;

(c) if no candidate has received an absolute majority of votes, a second count shall be held;

(d) on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the voter's preference;

(e) where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter's preference shall be repeated until one candidate has received an absolute majority of votes;

(f) the candidate who has received an absolute majority of the votes is elected;

(g) if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary,

(h) if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;

(i) if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary; and

(j) if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.

(2) Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an unexcluded candidate, that ballot-paper—

(a) shall be deemed to be exhausted; and

(b) shall be excluded from that count and any subsequent count; and

(c) shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.

(3) The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.

(4) In this section, "an absolute majority of votes" in relation to any count, means a greater number than one-half of the whole number of ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under Subsection (2)).”

22. This procedure, if not followed as alleged, would seriously affect the result of any election. The facts in support of this ground are in section B and section C 4.1 - 4.12. It was pleaded that the alleged error or omission did affect the result of the election.

23. I am satisfied therefore that this ground of the petition has satisfied all the legal requirements and is competent.

24. Ground Six, also under ERRORS, OMISSIONS AND IRREGULARITIES BY THE SECOND RESPONDENT AND HIS SERVANTS AND AGENTS, alleges inappropriate and erroneous application of section 175 (1A) of the Organic Law to declare the First Respondent as winner. The ground is pleaded as follows:

“Inappropriate and erroneous application of section 175 (1A) of the Organic Law when declaring the First Respondent as the member elect for SHP Electorate on 27^th September 2017 on the basis of ‘special circumstances’”.

25. Section 175 (1A) provides as follows:

“Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.”

26. Does section 175 (1A) authorise the Electoral Commission to declare a winner where counting is incomplete? This question is relevant if the First Respondent was indeed declared under “special circumstances” as alleged. Such declaration would be seriously affected by the alleged incompleteness of counting. The relevant facts in support of this ground are pleaded in section B and section C 6.1 – 6.5. It is pleaded in paragraph C 6.5 that the result of the election was affected.

27. The Court is satisfied therefore that this ground has satisfied the requirements of law and is competent.
The fifth ground must fall. It alleges that declaration was not made in public. If true, it is an immaterial error. The eighth ground alleges error by the Second Respondent in accepting the Writ. The ninth ground alleges erroneous advice to the Governor General as to the result of the election. These are formalities that follow as a matter of course after a declaration. While they may be pleaded as facts, it is not necessary for the Petition to include these complaints as petition grounds.

28. Accordingly, Ground Five, Ground Eight and Ground Nine are incompetent.

INCORRECT RELIEFS

29. The Petition pleads the following reliefs:

• A Declaration that the declaration of the First Respondent as member-elect for the SHP Electorate made by PRO Steven Gore Kaupa on 27^th September 2017 is null and void; and
• A Declaration pursuant to Section 212 (1) (f) of the Organic Law that the First Respondent is not duly elected as Member for SHP Electorate; and
• An Order pursuant to Section 212 (1) (d) of the Organic Law that the Second Respondent conducts a recount of ballot papers for Counts 1 to 564 by way of elimination of candidate until such time a candidate reaches the absolute majority necessary to be declared as member elect for the SHP Electorate; and
• Further and in the alternative, a Declaration that the election of SHP Electorate be declared absolutely void.
  

30. I have considered the submission by Mr. Baniyamai but I am of the view that his complaint against the use of the word “and” in between the reliefs is a technical issue which, in the light of section 217, should not be any cause for concern to any party. For that reason, I find no merit in the argument.

31. In the end, Ground One, Ground Two, Ground Three, Ground Five, Ground Seven, Ground Eight and Ground Nine are incompetent and are dismissed forthwith. Ground Four and Ground Six are competent. The Petition shall proceed to a substantive hearing only on those two grounds.

Orders Accordingly,
________________________________________________________________
Diwenis Lawyers: Lawyer for the Petitioner
Baniyamai Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent