Kromnong v Donald [2023] PGNC 10; N10106 (16 January 2023)

N10106

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 29 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (AMENDED) LAW 2006

AND
IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE NORTH FLY OPEN ELECTORATE IN THE 2022 NATIONAL GENERAL ELECTIONS.

BETWEEN:

HERMAN KROMNONG
Petitioner

AND:
HON. JAMES DONALD, MP
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Daru & Waigani: Geita J
2022: 27^th December
2023: 16^th January

ELECTIONS – Competency of petition disputing validity of election – Organic Law on National and Local-Level Government Elections, Section 208(a); s.209, s.215 and s. 218: need to set out valid and known grounds to void an election within the tenor of the OLNE.

PRACTICE & PRECEDURE - Competency of petition disputing validity of election - Organic Law on National and Local-Level Government Elections, Section 208(b): Use of this section to access s. 18 (2) Constitution provision for interpretation not permissible and incompetent.

CONSTITUTIONAL LAW - Jurisdiction of Supreme Court – Questions relating to interpretation of provisions of Constitutional Laws: S. 18 Constitution – whether questions proper – whether there may be an abuse of process – whether National Court obliged to refer the petitioner’s questions to the Supreme Court in the manner they were presented.

PRACTICE & PROCEDURE – Competency of petition disputing validity of election - Organic Law on National and Local-Level Government Elections, Section 218 (b): Need to set out actual facts as mere complaints and grievances are not capable of invalidating the election or return.

Cases Cited:
Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/04/2004)
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
Ephraim Epelis v Sir Julius Chan [1998] SC573
Ginson Soanu v Bob Dadae SC763
Hagahuno v Tuke [2020] PGSC 105; SC2018
James Yoka Ekip v Gordon Wimb, Electoral Commission & William Duma [2012] N4899
Joel Paua v Robert Nagle [1992] PNGLR 562
Joseph Kobol v William Powi and Ors [2017] EP No. 78; N7065
Kikala v Electoral Commission [2013] PGSC 48; SC1295
Lowa v Akipe [1991] SC430
Nathan Piari v Peter Ipatas [2014] PGNC 278
Newsat Limited v Telikom PNG Limited & Ors, [2007] N3449
Robert Kopaol v. Philemon Embel [2003] SC727
Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99
Steven Pirika Kamma v John Itanu and Ors [2007] N3246
Tulapi v Lagea [2013] N5235

Counsel
G Kult, for the Petitioner
C Copland, for the First Respondent
N Tame, for the Second Respondent

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

16^th January, 2023

1. GEITA J: The Petitioner Mr. Herman Kromnong was a candidate for North Fly Open Electorate in Western Province in the 2022 National General Elections. On 28 July 2022 the First Respondent, the Honourable James Donald was elected and duly declared as a Member for North Fly Open Electorate, (NFOE hereafter) having polled a total of 12,648 votes. The Petitioner polled 3063 votes.

2. Being aggrieved by the election result the Petitioner filed his petition under s.4 and Part XVIII of the Organic Law on National and Local Level Government Elections (“the OLNE” hereafter), It follows that he is disputing the elections and the returns and so his Petition must and ought to be framed within the requisites of petition as stated in mandatory terms under s. 208 of the Organic Law on National and Local Level Government Elections. Similarly, s.210 (the Organic Law) reenforces these requisites: “Proceedings shall not be heard on a petition unless the requirements of section 208 and section 209 are complied with.” (Emphasis added).

Decision making process

3. The discussions will be driven by the relevant Constitutional Law, The Organic Law on National and Local Level Government Elections and Election Petition (Miscellaneous Amendments) Rules 2022,( the “Rules “hereafter), in contention, with the Court’s determinations towards the end of every discussion. The discussion headings are posed in question format and are not in any order of hierarchical structure of Laws.

4. Prior to trial proper two Notice of Objections to Competency from the First and Second Respondents were on foot and needed to be resolved. Counsel of Petitioner Mr. Kult took issue with the Second Respondent’s Notice of Objection to Competency which it alleged was filed out of time. Counsel for the Petitioner and the Second Respondent were heard. As I understood from their arguments, it became obvious on record that the computation of dates from time of filing to the time of service was erroneously computed, hence the confusion. The Second Respondent’s objection was indeed filed and served on time. The Court ruled that the Second Respondent’s Notice of Objection to Competency be accepted and heard in the interest of justice pursuant to s. 217 of the Organic Law on National and Local Level Government Elections. (Real justice and good conscience to be observed).

Where the requisites of the petition met? - Section 208

First Respondent

5. The First Respondent contends that the Petitioner has not complied with the requisites of the Organic Law, or the Rules and his petition must be dismissed as incompetent. It is submitted that:

Much of the reliefs claimed were interlocutory orders, relating to a petition, but not relief granted within a petition. The inclusion of these matters within the Relief claimed, renders the Petition confusing and incompetent. As such the claim for relief in Part D, paragraphs (1), (2), (3) and (4) are incompetent.

The Petitioner is seeking the interpretation of constitutional laws which are exclusively within the jurisdiction of the Supreme Court.

The Petitioner is seeking orders for referral of matters to the Supreme Court under the Constitution s. 18 (2) which the Supreme Court has said is impermissible. A question referred to the Supreme Court must arise out of determined facts. A party cannot apply in proceedings in the National Court for a matter to be referred to the Supreme Court. The Second Respondent argued that such a claim was an abuse of process as discussed in the case of Lowa v Akipe [1991] SC430.

The Petitioner in Part B of the Petition, paragraphs 11, 12, 13, 14, 15, 20, 22, 23, 26,27,28 and 30, and Part C, paragraph 1 of the Petition, was attempting to raise questions in the National Court, including whether certain matters were “implied” in constitutional provisions, in respect of which the Supreme Court has original jurisdiction “to the exclusion of other courts”.

The Petitioner seems to allege acts or omissions but does not plead how these matters affected the result.

The Petitioner makes allegations against the First Respondent in Part B of the Petition, Facts, but does not rely on any of these matters in his Grounds, Part C, rendering these allegations against the First Respondent irrelevant.

The Petition is wholly incompetent. Alternatively, it is incompetent in so far as the Petitioner raises constitution issues within the exclusive jurisdiction of the Supreme Court within the abovementioned paragraphs of the Petition.

Second Respondent

6. On their part the Second Respondent supports and endorsed the submissions of the First Respondent and made the following additional submissions on its objections to competency, pursuant to s.210 of “the OLNE” , and Rule 12 of the Election Petition (Miscellaneous Amendments) Rules, 2022(the “Rules “hereafter).

7. They submit that the law is settled in that compliance with the provisions of s.208 and s.209 are prerequisites and mandatory to all election petitions proceeding to a full hearing. Over time a plethora of National and Supreme Court cases have emerged defining and redefining the application of s. 208 and s.209. Some of these include Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342 at page 345; Ginson Soanu v Bob Dadae SC 763; Holloway v Ivarato [1988] 99 PNGLR; Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020).

8. The Second Respondent concede that only one ground in the petition was noteworthy of the Court’s attention. The petitioner alleges that the Second Respondent failed in its constitutional duties to organize, conduct an election for the North Fly Open Electorate (NFOE) which is genuine, free, and independent from political influence, thereby breaching the Petitioner’s constitutional rights under s. 126 and 50 of the Constitution, and under s. 15 of the OLNE.( s. 126 (6), 150 and 59 Constitution.). Such breach of its constitutional duties and breaches occasioned on the Petitioner’s constitutional rights which may amount to voiding the election of the First Respondent, by operation of s.11 of the Constitution, and application of s.23 (1) (b) of the Constitution.

9. The Second Respondents short answer to the alleged ground pleaded, above, is that the pleading on this ground is vague, convoluted, confusing and failed to comply with s. 208 (a) of the OLNE in that it failed to specifically state the illegal practices or errors and or omissions of the Second Respondent during the issue of writs, inclusive of nominations, campaigning, scrutiny/counting, declaration up to return of the writs, that amounted to a specific breach or failure to comply with its duties under s. 126 (1) and s.126 (2) of the Constitution. Similarly, those specific breaches and failure of its duties which were not complied with by the Second Respondent under s.50 and 59 of the Constitution and s. 15 of the OLNE. The Second Respondent maintained that the law was settled on this point as per Tulapi v Lagea [2013] N5235 by His Honour, Injia CJ (as he was then).

“ The primary function of the Court of Disputed Returns is to determine if the result of the election was affected or is likely to have been affected by those breaches in terms of eligible voter or vote numbers; it is not a forum for registering grievances or complaints over breaches of electoral laws. The appropriate forum for that is provided elsewhere by law. For example, s. 57 of the Constitution for breach or threatened breach of s.50 rights, the Courts of law to enforce breaches of penal laws, the Electoral Commission itself to remedy breaches administratively or the National Court exercising its review jurisdiction for breaches of statutory duty on the part of Electoral Commission.”

10. Considering those Court pronouncements, the petition is prohibited and must be struck out and dismissed with costs.

Petitioner

11. The Petitioner takes issue with the requirements put forth by the First Respondent and argues that they are so demanding to satisfy s. 208 (a) of the Organic Law and have misconceived the whole purpose of election petitions and the law surrounding it. Hinchliffe J, in his unreported judgment in the case of EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) shared these sentiments and stated:

“ With all respect to the trial judge, it seems to me that his requirements to satisfy s.208(a) were so demanding that if every petition was dealt with in the same view, then no petition would ever get past the competency stage...For those people to come to court to hear an election petition then only to be told that it is finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases, whether justice was ever done or not will never be known because the case was never heard.”

12. Considering those sentiments, including other related concerns Hinchcliffe J lamented on the possibility of a five Judge Supreme Court to clear the differing opinions on where the material and relevant facts finish and where the evidence commences.

13. The Petitioner also relied on Kandakasi DCJ in Hagahuno v Tuke (supra) in which he dismissed the whole idea of lawyers raising technical issues to object to a petition on the bases of competency and in paragraph 28 stated:

“Challenging an election on the basis of a lack of proper pleadings and or petition not being in the correct forms comes under “legal forms or technicalities” which in my humble view, is expressly prohibited or excluded from any consideration by s. 217. Of course, this does not save a petition which fails to state at all any fact under s.208 (a) that discloses a valid ground to void an election outcome or fails completely to meet any of the requirements of s. 208 (b) to (e ). For clarity, may I point out that, however hopelessly pleaded a petition might be, if the facts stated disclose a known ground for voiding an (sic) election and the petition on the face of it meets all the other requirements under s. 208 and s. 209, it would be sufficient for the purpose of s.210 and that a petition should be allowed to progress to trial without delay. Any argument against a petition of this type as being incompetent would constitute a technical issue, which is prohibited by s. 217”. (Petitioners underlining).

Determinations

14. With respect, the comments made by his Honour Kandakasi DCJ were in obiter dicta. Whilst I do agree with him and use his words, “legal forms and technicalities” being used occasionally by some Lawyers to strike down objections to competency, His Honour has qualified his observations in the preceding sentence, and I quote:

“ ...Of course, this does not save a petition which fails to state at all any fact under s.208 (a) that discloses a valid ground to void an election outcome or fails completely to meet any of the requirements of s. 208 (b) to (e ).” (My Emphasis).

15. As to the Petitioner’s grounds in Part C, I am not fully convinced that those grounds would fall within those known and valid grounds prescribed and envisioned by the OLNE under sections 208, 209, 215 and s.218. What the Petitioner has put forward in my view are not grounds capable of invalidating and election or its results. Furthermore, I am not convinced that the Respondents contentions were mere technicalities, unnecessary lawyering or demanding on the application of s. 208 as that section does not appear to me to be too cumbersome or difficult to comprehend and apply. For these reasons alone I would strike this part of the petition down. Might I state in passing that late Hinchcliffe J laments were capably answered and clarified in the five Judge Supreme Court case of case Hagahuno v Tuke (supra)

Is s.208 (b) OLNE available to the Petitioner seeking orders for referral to the Supreme Court pursuant to s. 18 of the Constitution?

16. The First Respondents contend that such claims for relief in Part D, paragraphs (1), (2), (3) and (4) of the Petition are incompetent and impermissible. A question referred to the Supreme Court must arise out of determined facts. The Second Respondent argue that such a claim is an abuse of process as discussed in the case of Lowa v Akipe (1989) SC430. (supra)

17. The Petitioner maintains that s. 208 (b) of the Organic law is available to him to seek relief. The Petitioner argues that if the National Court finds itself in a position that it would go on to interpret a provision of the Constitution then the court must make an order pursuant to s. 18 (2) of the Constitution for the Constitutional question can be answered by the Supreme Court.

Determinations

18. With respect, the approach advanced by the Petitioner for orders as one of the reliefs, employing s. 208 (b) provision to access s. 18 (2) Constitution provision for interpretation is fraught with flaws, in my humble view. First up is that there must be a determination of facts, with findings, necessitating the referral of such questions to the Supreme Court for interpretation. In the first known reported case, His Honour Cannings J had these to say in the case of Newsat Limited v Telikom PNG Limited & Ors, (2007) N3449:

“...There is an abundance of authority to say that the National Court or any other court or tribunal can only properly refer a constitutional question to the Supreme Court after it finds all the facts necessary to determine the case before it. Section 18(2) is not an avenue by which hypothetical questions are sent to the Supreme Court. Hypothetical questions, including challenges to the constitutionality of an Act of Parliament, can only properly be referred to the Supreme Court under Section 19 of the Constitution. Only institutions and officeholders like the Parliament, the Ombudsman Commission, the Public Solicitor, and the Public Prosecutor (the full list is in Section 19(3)) can make a Section 19 reference.” (Emphasis mine)

19. So, following on from His Honour Canning J’s observation several flaws can be seen. 1. There is or were no findings of fact, necessary for this Court to determine the case for referral to the Supreme Court under section 18 (2) Constitution; 2. The Petitioner does not have standing. He is not one of those categories of institutions or officeholders listed under section 19 (3) Constitution to make a Section 19 reference; 3. His plea for a referral under s. 18 (2) Constitution was not proper before this Court. There is no Notice of Motion nor was leave granted. I am not convinced that the reference being sought by the Petitioner is competent and warranted.

20. Finally, there is what I would call, the softer options discussed by His Honour Makail J in the case of Joseph Kobol v William Powi and ORS in EP No. 78 of 2017 N7065. His Honour whilst appreciating the fact that since EP Rules is silent on the mode and process of petitioners seeking interlocutory relief to request Court to refer questions to the Supreme Court for interpretation under s.18 of the Constitution, observed that litigants, over time, have used all manner of excuses and oddities to seek s.18 Constitutional interpretation. For instance, by way of Notice of Motions with or without leave; during submissions or arguments in trial, in the case of “interested persons” scenario? Etc: (.Sam Koim v. Peter O’Neill, NEC & The State (2016) N6198; Isaac Lupari v. Sir Michael Somare, NEC & The State [2008] N3476.; Kenn Mondiai v. Wawoi Guavi Timber Co Limited & Ors [2007] SC889 and Application by Sir Makena Geno v. Attorney-General [2015] SC1455; Application by Rt Hon. Sir Mekere Morauta v. NEC & The State [2016] SC1529.)

21. Makail J at paragraph 9 of Joseph Kobol v William Powi (supra) said:

“It is also worthy to note that a common type of form used in legal proceedings to bring interlocutory applications is a notice of motion and just because there are no expressed provisions in the EP Rules for that does not mean that it is a bar to a party to use it as a matter of practice”.

22. His Honour however cautioned in the same judgment at paragraph 35 and said:

...” But at the same time, the use of a notice of motion should not grant licence (sic) to litigants to use as a short-cut to avoid a direct application to the Supreme Court using the criteria set by the Court in Kenn Mondiai case. (Kenn Mondiai v Wawoi Guavi Timber Co Limited & Ors (2007) SC 889.) (Emphasis mine)

23. Unfortunately, that milder approach suggested by Makail J is not available to the Petitioner in this case as he has neither come to Court by way of a Notice of Motion or during submissions or arguments during trial. Simply put this segment of the reliefs sought in his petition is misconceived and tantamount to abuse of process and is dismissed.

Allegations of Western Provincial Government (WPG) interfering in the independence of the Second Respondent?

First and Second Respondents

24. It is the First Respondent’s contention that all related matters under this heading are non-compliant with Rule 4 and Form 1 of the Rules and s. 208(a) of the Organic Law and incompetent. As they are not facts which will “invalidate the return of the first respondent.”

25. The Second Respondent reinforces those arguments advanced by the First Respondent. It is argued that the crucial and fundamental facts for instance, whether the money was paid before, during or after the election, how the payment of those monies affected the conduct of elections from the time of issue of writs, nomination, polling, counting of votes, and the declaration of the first respondent were absent from the petition. These are some of the known grounds prescribed and envisioned by the OLNE, without which the petition must be struck out. The grounds pleaded by the Petitioner are not legal or known grounds prescribed by the OLNE under s.215 and s.218 and not capable of invalidating an election or its results.

26. The Second Respondent maintains that what is alleged in the petition under this heading are mere complaints and grievances for the purported breaches of the Petitioner’s constitutional rights under s.11,23(1)(b), 15,50,59,126(1) and s.126(6), and schedule 1.19 of the Constitution, as well as s.15 of the OLNE. He said Petitions of this nature are prohibited to be filed as stated by His Honour, Injia CJ (as he then was) in Tulapi v Lagea (2013) N5235. (supra)

27. Furthermore, the pleadings and grounds of the petition relate to events that occurred well before the 2022 National General Elections, especially events that occurred in the Western Provincial Government’s Provincial Assembly, and passing of the Provincial Government’s budget, whereby certain funds were purportedly allocated as counter-part funding for the 2022 NGE.

Petitioner

28. The Petitioner argues that those facts stated in Paragraph 21 and 22 of the Petition alleged the WPG in interfering in the independence of the Second Respondent and in doing so breaching s. 126(6) of the Constitution and s. 19, s.20, s.53 of the Organic Law. It is submitted that those facts pleaded amount to errors and omissions and affected the result of the election, in that no independent, genuine, free, or fair election took place, thus completely vitiating or voiding the election.

Determinations

29. With respect I am more inclined to endorse and support the position advanced by the Respondents in that what is pleaded were mere complaints and grievances and not capable of “invalidating the election or return of the first respondent.” It seems, ironical, however, that the Petitioner having freely participated, and exercised his constitutional rights in all aspects as a candidate in NGE 2022 for North Fly Open Electorate by polling 3063 votes and having lost as opposed to the First Respondent polling 12,648 votes, now blames the very election process and system he freely participated in. Supposing it turned out that he was the winning candidate, of which he is not, would the same constitutional reliefs be raised, I ask? I should not think so.

30. Furthermore, supposing the Petitioner’s arguments has merits and is tested against the heading of errors and omissions, will those facts meet the standards envisioned under s.218 OLNE? For, section 218 OLNE in its plain meaning talks about an officer, presumably one who is employed by the Electoral Commission of PNG or other statutory bodies by delegation, whose actions prevented an elector exercise his constitutional rights to do something which impacted on the result of the elections. In this case the Second Respondent in general is accused and not a particular individual. Secondly the alleged actions or inactions of the Western Provincial Government, and The Provincial Assembly who are not parties to this petition are being drawn into this debate? Put differently the election and return of the first respondent remain intact as there is no real challenge of his winning margin. To me it’s all very convoluted and mischievous. I am more inclined to agree with the Second Respondent’s observations on the petitioner’s state of mind when he put his Petition together. I quote:

“Perhaps these material facts supporting the known legal grounds are not pleaded because the petition is wrongly premised.”

31. As to what the Second Respondent termed as “counter-funding” (Emphasis mine) i.e.; It is common knowledge that certain Provincial Governments have properly appropriated funds to assist Electoral Commission of PNG conduct National General Elections. The Court has not been assisted greatly on this point as I consider this to be an area of concern and debate. To this end it is open for me to make a general observation that during National and Local Government Elections, most Provincial Governments have aided the Electoral Commission of PNG, in some manner or form to assist it conduct elections either in cash or kind, under the heading of counter-funding activity.

32. As to the Second Respondent’s contention that the pleadings and grounds of the petition relate to events that occurred well before the 2022 National General Elections, therefore were not permissible and ought to be dismissed. Those alleged facts and events in my respectful view fall outside the spirit and intent of s. 206 of the OLNE.

“ The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.” (Emphasis mine). To my mind it is the “election or return” that must be disputed and not what transpired before and or after those critical periods. I would uphold these objections and strike down the Petitioner’s argument on this point.

33. Might I add here that by willingly participating in the NFOE in the recently concluded 2022 NGE, the Petitioner acquiesced in the whole election process from the day writs were issued to the time the writs were returned. He only polled 3063 votes, not within or above the 50% mark from the First Respondent's winning margin of 12,648 votes polled. He now cries foul after losing. To my mind if he was very serious and genuinely concerned, amongst other things, that his constitutional rights were going to be comprised during the NFOE in the 2022 NGE by the conduct of the Second Respondent and The First Respondent, it was open for him to mount proceedings to challenge those very constitutional issues, he now raised in his petition, in the proper forum, Supreme Court well before the Elections were conducted. He has not pursued that course to his own detriment. Now leaving other legal considerations aside, I am of the view that the Petitioner's actions in the reliefs being sought to be misconceived, mischievous and is struck down.

34. As to the allegation of other illegal practices it is not necessary to address those grounds as they and other general allegations have been adequately covered in the earlier discussions. I see no utility in discussing them.

35. As to the utility of s.217 OLNE in Petitions, I take Judicial notice of its importance and relevance, however, notwithstanding its respective attributes, I have not been convinced by the Petitioner's arguments of its application in his case. The flaws found in the petition are legally fatal and mischievous and cannot be cured by s. 217 OLNE.

The petition presented before me is so lacking in convincing legal arguments and falls short of well thought out case precedents put forward by the Respondents, having to bend down so low below those standards and invoke those constitutional provisions, in favor of the Petitioner, in my view would be repugnant and amount to an abuse of exercise of judicial discretion. To this end, the Petitioner's pleas for the invocation of this provisions is refused and struck down.

Where there instances of errors or omissions? – S. 218

First Respondent

36. As regards paragraph 23 of the Petition the First Respondent contends that there was no factual basis laid for the conclusion that the result of the election was affected; and no factual basis laid for the conclusion “that no independent genuine free election took place” – such that the allegations are ambiguous, unclear, and confusing. The facts pleaded from paragraphs 18 to 23 are not facts that constitute a ground that would invalidate an election. The Petitioner refers to “errors or omissions” which suggests he is relying on s.218 of the Organic Law, however there is nothing to say how the result was affected, arguing that this was fatal to the Petition.

37. The Second Respondent contend that this was not a case of the Petitioner failing to correctly allege the winning margin: compare Kikila v Electoral Commission (2013) SC1295. The Petitioner has made no attempt to show how the result was affected, arguing that it is not enough that the result may or could have been affected.

38. The First Respondent contends that the facts pleaded at paragraph 26 under the heading “Second Respondent’s Unconstitutional Acts” do not constitute a ground for error and omissions that affected the result of the election.

Second Respondent

40. The Second Respondent submits that the OLNE envisages that to challenge the validity of an election, a petitioner must raise and rely on known grounds that can invalidate an election arising during the election, that is from the issue of Writs to the return of Writs. All grounds must be prescribed and known under the OLNE. The case of Nathan Piari v Peter Ipatas [2014] PGNC 278; N5969 (27 April 2014) supports this proportion.

41. They cited the recent five-member Supreme Court judgment in Hagahuno v Tuke (2020) PGSC 105; SC2018 (2 October 2020). The Supreme Court stated this proportion, unequivocally and in clear terms and I quote...

“66 ...Carefully considering this and all the foregoing discussions including, the observations I made in the Kamma v Itanu case, there is good reason now to depart from Biri v Ninkama in all that it stands for except only where it is stated that the requirements of s. 208 and 209 are mandatory because of s, 210 of the Organic Law and their requirements must therefore be strictly met.

“67. For clarity the requirement to strictly meet the requirements of s. 208 of the Organic Law is in: (a) setting out sufficient facts disclosing a known ground that can invalidate an election or return; and...)

42. In Ephraim Apelis v Sir Julius Chan (1998) SC 573 the Supreme Court in defining the scope of errors and omissions under S. 218 said:

“We find that section 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of polling or the return of writ”.

43. As to paragraphs 18-30 of the Petition under the heading “Errors and Omission, and Illegal Practices of the Second Respondent Unlawful payment to the Second Respondent.” The Second Respondent contends that those assertions were not the kind envisioned by sections 206, 208, 215 and 218 and 210 of the OLNE. The pleadings in those paragraphs are vague, convoluted, confusing and fail to comply with s. 208(a) of the OLNE in that the pleadings are mere statements of general complaints/grievances, opinions and conclusions of the Petitioner about the Western Provincial Government and the Western Provincial Administration committing funds of K5 million in their Provincial Budget to pay, through the second respondent, the cost of the 2022 NGE in the province. The dictate of s. 206 of the OLNE constitutes amongst other things from the time the writs were issued to the time the writs were returned pursuant to s. 175 to s.177 of the OLNE.: Ephraim Apelis v Sir Julius Chan [1998] SC573.

44. Furthermore, they submitted that the pleadings and grounds of the petition relate to events that occurred well before the 2022 National General Elections; especially events that occurred in the Western Provincial Government’s Provincial Assembly, the passing of the Provincial Government’s budget whereby certain funds were purportedly allocated as counter-part funding for the 2022 NGE. The petition does not challenge the validity of the 2022 NGE or its return for the NFOE. The allegations and grounds in the petition do not dispute the election process that saw the election of the first respondent from the time the writs were issue to the time the writs were returned with a declaration of 28^th July of the first respondent as the member for NFOE.

Petitioner

45. The Petitioner submitted that the objection by the First Respondent failed to appreciate the full effect of paragraph 23. Petition. I quote:

“In the premises referred to in the previous paragraphs, those errors and omissions affected the result of the election, in that no independent genuine, free or fair election took place, thus completely vitiating or voiding the election absolutely.”

46. The Petitioner argued that most, if not all, of the objections raised lacked serious merit and amounted to nit-picking and unnecessary lawyering.

Determinations

47. For reasons only known to the Petitioner he has either intentionally or elected not to refer to the legislative basis of his use of the words ‘those errors and omissions’ in the petition: Section 218 OLNE. With respect the objections raised, in my view do not amount to nit-picking and unnecessary lawyering. Any and all apprehensions in that regard were the direct result of how the petition was formulated and presented with Respondent’s trying to intellectualize the petition. The Petitioner has not assisted the Court to its satisfaction as to how those errors and or omissions would affect the election and its conclusions. All that is before me are mere allegations which are ambiguous and confusing. Using the words of the First Respondent, I quote:

“The Petitioner has made no attempt to show how the result was affected, ...it is not enough that the result may or could have been affected.” (Emphasis mine)

47. The Supreme Court in Ephraim Apelis v Sir Julius Chan (1998) SC573 has defined the scope of errors and omissions under Section in 218 in this manner:

“We find that section 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of polling or the return of writ.”

48. The Court should not be left to second guess what the grounds were, the facts, errors, and omissions and most importantly the reliefs being sought in the petition within the scope of the OLNE and The Rules. These two cases clarified the position that Courts must not be allowed to draw possible conclusions or infer possible situations or assume there may be possibility of errors and omissions. (Emphasis mine) (Joel Paua v Robert Nagle [1992] PNGLR 562; James Yoka Ekip v Gordon Wimb, Electoral Commission & William Duma [2012] N4899.)

49. Notwithstanding the Petitioner’s right for justice to be seen to be done to his petition and progressed past the competency stage, the legal flaws and breaches were so evident and numerous that the petition must be stopped at this stage. I am therefore satisfied that this is an appropriate situation for the Petition to be dismissed as being incompetent.

Conclusions.

50. The combined effect of the adverse determinations in the petition is such that the whole of the Petition is dismissed.

Orders.

1. The whole of Election Petition No. 29 of 2022 is dismissed.

2. The two Notice of Objections to Competency from the Respondents upheld.

3. The security deposit of K5000 held in trust by the Registrar is to be released and paid in two equal parts to the Respondents.

4. The Petitioner shall pay costs to the two Respondents on these proceedings on a party-party basis which shall if not agreed be taxed.

Judgment accordingly.
________________________________________________________________
Young & Williams Lawyers: Lawyer for the Petitioner
Simpson Lawyers: Lawyer for the First Respondent
Nicholas Tame Lawyers: Lawyer for the Second Respondent