Komba v Iamau [2021] PGNC 109; N8867 (11 June 2021)

N8867

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 177 OF 2015

BETWEEN
AMOS KOMBA for himself and on behalf of Komba Family
Plaintiff

AND
ANTON IAMAU in his capacity as Care-Taker Election Manager of Enga Province
First Defendant

AND
PATILUS GAMATO in his capacity as Electoral Commissioner of Papua New Guinea
Second Defendant

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Wabag &Waigani: Makail, J
2019: 15^th March & 11^th June

ASSESSMENT OF DAMAGES – Assessment of damages following entry of default judgment – Damages sought for breach of constitutional rights – Right to vote – Omission of name on common roll by Electoral Commission – Whether damages appropriate remedy – Constitution – Section 50 – Organic Law on National and Local-level Governments Elections – Section 289A
ASSESSMENT OF DAMAGES – Negligence – Duty to ensure name on common roll – Breach of duty – Whether damages may be awarded – Organic Law on National and Local-level Governments Elections – Section 289A

Cases Cited:

Application of Daniel Don Kapi (2002) N2259
Edward Etepa & Ors v. Gari Baki & The State (2015) SC1502
Kiee Toap v. The State & Electoral Commission (2004) N2731
Rupundi Maku v. Steven Maliwolo & The State (2012) SC1171
Simon Awaria Lumburundi & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission and The State (2006) N3044
Takai Kapi v. Electoral Commission & The State: WS No 913 of 1999 (Unnumbered & Unreported Judgment of Los J dated 31^st January 2001)

Counsel:
Plaintiff in person
No appearance, for Defendants

JUDGMENT

11^th June, 2021

1. MAKAIL, J: This is a trial on assessment of damages following entry of default judgment on 24^th August 2017. The action is based on breach of constitutional right to vote under Section 50 of the Constitution and common law tort of negligence.

2. It is alleged that the First and Second Defendants as agents and servants of the Third Defendant omitted to register or update the Common Roll to include the Plaintiff’s name and names of his two wives and eight children and other family members totalling twenty. Consequently, during polling the Plaintiff and his family members were excluded from voting and missed out on voting for their choice of candidate. This occurred in 2007, 2012 and 2017 General elections. The Plaintiff claimed general damages in the sum of K10.5 million.

Breach of Section 50 of Constitution

3. As to the first bases of the claim for damages, Section 50 states:

“50. Right to vote and stand for public office.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or

(ba) has dual citizenship of another country,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

4. While it is noted that liability has been determined by default judgment, it does not relieve the Plaintiff from proving his damages: Rupundi Maku v. Steven Maliwolo & The State (2012) SC1171 and subsequently adopted in Edward Etepa & Ors v. Gari Baki & The State (2015) SC1502.

5. Thus, the pertinent question is; does a breach of Section 50 of the Constitution entitle an aggrieved person to damages? In other words, is damages an appropriate form of relief to award to a person who has not been registered on the Common Roll?

6. The Plaintiff relied on a decision of the National Court in Takai Kapi v. Electoral Commission & The State: WS No 913 of 1999 (Unnumbered & Unreported Judgment by Los J dated 31^st January 2001) and submitted that in that case, the National Court held the Electoral Commission liable for negligence when it held that Takai Kapi was unregistered on the Common Roll. However, it is not known if the Court awarded damages to Takai Kapi and the assessed sum.

7. The relief sought by the Plaintiff will be denied because any damages that may be awarded for denying him and his family members the right to vote in 2007 General election is time-barred by Section 16 of the Frauds and Limitation Act, 1988. Consequently, the cause of action accrued more than six years after the 2007 General election and expired in 2013. Secondly, the action was commenced in 2015 which covered 2012 General election and damages for this period will be considered. The 2017 General election is after the event and does not form part of the cause of action and will be rejected.

8. Thirdly, damages sought for breach of right to vote under Section 50 is a an enforcement action under the Constitution and broadly, would fall under the “other claim” under Section 289A of the Organic Law on National and Local-level Government Elections (“Organic Law”) which states:

“289A. Civil claims against the Electoral Commission.

No claim for damages may be maintained against the Electoral Commission, the Electoral Commissioner or an electoral officer for cancelling an election, breach of statutory duty, negligence or other claim under the underlying law for any act or omission with respect to the conduct of elections.”

9. Thus, the Plaintiff has failed to prove that his claim for damages for breach of right to vote under Section 50 is not barred by Section 289A of the Organic Law.

Negligence

10. Negligence is a common law actionable tort. To succeed it must be established that the Defendants owed a duty of care to the Plaintiff, they breached the duty of care and the Plaintiff suffered damages. While liability has been determined by default judgment and it will be accepted that the Defendants owed a duty of care to the Plaintiff and breached it, the Plaintiff has failed to prove his damages by virtue of Section 289A of the Organic Law.
11. Section 289A is a statutory bar to a claim for damages against the Electoral Commission, the Electoral Commissioner or an electoral officer for damages arising from negligent conduct of elections. This provision was inserted in the Organic Law in 2006 following many complaints including Court actions against the Electoral Commissioner and his officers in relation to the conduct of the 2002 General elections.

12. Some examples of the Court actions arising from alleged negligence of the Electoral Commissioner and his officers which ended up being decided by the Court were Application of Daniel Don Kapi (2002) N2259; Kiee Toap v. The State & Electoral Commission (2004) N2731 and Simon Awaria Lumbirindi & 20 Ors v. Sam Inguba as Commissioner of Police, Electoral Commission and The State (2006) N3044. None of the Plaintiffs in these cases were successful. They were dismissed either for lack of pleadings or failing to disclose a reasonable cause of action.

13. Consequently, the Plaintiff has failed to prove that his damages are not barred by Section 289A of the Organic Law.

Conclusion

14. The Plaintiff has failed to prove his damages on the balance of probabilities and the order sought for damages to be awarded is refused. As the Defendants have not defended this action, there will be no order as to costs.

Order

15. The orders are:

1. The order sought for damages to be awarded has not been proved on the balance of probabilities and is refused.
2. No order as to costs.

________________________________________________________________
Plaintiff: Self-Represented