Nukundj v Pim [2023] PGNC 27; N10136 (16 February 2023)

N10136

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO.66 OF 2022

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

AND:
IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF DEI OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
WESTLY NUKUNDI NUKUNDJ
Petitioner

AND:
STEVEN PIM
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Mt. Hagen: David, J
2023: 13^th & 16^th February

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objection to competency of petition – four grounds raised – objection dismissed - Constitution, Section 50 and 103 - Organic Law on National and Local-level Government Elections, Sections 52, 87, 131, 135, 206, 208, 209, 210, 212(h), 217 and 253 - Electoral Law (National Elections) Regulation 2007, Section 44 - National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022, Rules 4 and 12 – Evidence Act, Sections 33 and 36 – National Court Rules, Order 4 Rule 12(4).

Cases Cited:
Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548
Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (1999) SC643
Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea (1999) SC644
Jim Nomane v David Anggo (2003) N2384
Tony Waterupu Aimo v Ezekiel Anisi (2012) N4870
Michael Korry v Mogerema Sigo Wei (2012) N4878
James Yoka Ekip v Gordon Wimb (2012) N4899
Jim Nomane v Wera Mori (2013) SC1242
Gabriel Kapris v John Simon (2013) SC1247
Philip Kikala v Electoral Commission (2013) SC1295
Riddler Dorobe Kimave v Poevare Tore (2013) SC1303
Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385
Sandy Talita v Peter Ipatas (2016) SC1603
Justin Aluja Haiara v James Marape (2019) SC1830
Yama v Singirok (2020) SC1982
William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018

Legislation Cited:
Constitution
Organic Law on National and Local-level Government Elections
Electoral Law (National Elections) Regulation 2007
National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022
Evidence Act

Counsel:
Christine Copland, for the Petitioner
Dakan E. Doiwa, for the First Respondent
Shimandalee Kapi, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY
OF PETITION

16^th February, 2023

1. DAVID J: INTRODUCTION: The petitioner, Westly Nukundi Nukundj (the Petitioner") was an unsuccessful candidate for the seat of the Dei Open Electorate in the Western Highlands Province (the Electorate) during the 2022 National General Election. Hon. Steven Pim, the First Respondent (the First Respondent) was the successful candidate for the Electorate. On 5 August 2022, the First Respondent was declared as the winner of the election and subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.
   

2. On 13 September 2022, the Petitioner filed a petition addressed to the National Court at Waigani disputing the validity of the election or return of the First Respondent as the successful candidate for the Electorate pursuant to s.206 of the Organic Law on National and Local-level Government Elections (the Organic Law). The facts relied on to invalidate the return of the First Respondent are set out at paragraphs B.1 to B.42 of the Petition. The grounds upon which the Petitioner relies are set out at paragraphs C.1 to C.7 of the Petition. The Petitioner raises allegations of errors and omissions committed by the Second Respondent or his servants or agents during the conduct of the scrutiny to vitiate the election. The Petitioner seeks, amongst others,; an order for a recount of ballot papers cast in the election of the Member of Parliament for the Electorate including in the recount the two ballot boxes for Klenembo 3 Ward or alternatively; an order that the declaration of the First Respondent as duly elected was invalid, null and void; an order that the First Respondent was not duly elected; a declaration under s.212(1)(h) of the Organic Law that the election for the Electorate was absolutely void; and an order for a by-election for the Electorate.

3. On 12 October 2022, the First Respondent filed his Notice of Objection to the competency of the petition (Doc 13) (the Objection) pursuant to Rule 12 of the National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 (Election Petition Rules). He relies on four grounds and these are restated below:

“1. Contrary to Section 208(c) of the Organic Law on National & Local Level Government Elections (“the Organic Law”), the Petitioner WESTLY NUKUNDJ, has no standing to bring this Petition as he is not a registered voter or elector within the meaning of Section 52 of the Organic Law. The Petitioner is therefore neither qualified nor eligible to have nominated or contested as a candidate standing for public office under Section 87 (1)(a) of the Organic Law nor is he qualified to be elected to or hold public office pursuant to Section 50 (1) and section 103(3)(a) of the Constitution.

2. Contrary to Section 208(d) of the Organic Law, the Petition has attested to by two (2) witnesses who are residents of Port Moresby and employees of the Petitioner’s lawyers, when the Petition ought to have been attested to by either electors or persons with knowledge of the facts, issues and allegations in dispute. The said attesting witnesses are not persons who can verify the truth or genuineness of the facts, issues and allegations within the Petition.
   
3. Contrary to section 208(a) of the Organic Law, the Petitioner has pleaded contradictory and conflicting statements at Paragraphs 11,12 and 13 of the Petition, which invalidates and nullifies the errors and omissions alleged and relied upon. The Petitioner states at Paragraph 12 that, despite a commotion over the polling for the regional seat where a candidate grabbed an unspecified number of ballot papers, polling nonetheless went well and yet paragraph 13 the Petitioner acknowledges that, thereafter, 451 votes were not cast for the Open Seat.
   
   4. The Petitioner lacks sufficient interest and standing to bring this petition, on the basis that:
      
      • (a) the amount of votes disputed from Klenembo 3 Ward, namely, 2,070 votes, do not affect his standing after the completion of the First Preference Count nor does it affect his standing and prevent his elimination during the Second Preference Count therefore there is no utility to the Petitioner’s challenge; and
      • (b) the Petitioner’s right to dispute the outcome or result of the election was extinguished upon elimination as the 22^nd eliminated candidate in the Dei Open. At the time of final elimination, Elimination 25, only Candidate Tui Ekil and the First Respondent were active. The Petitioner’s interest in challenging the result is therefore remote.” (sic)
        
4. In summary, the First Respondent’s objections to the competency of the petition are:
   
   1. The Petitioner has no standing to bring the Petition as he fails to meet the requirements of s.208(c) of the Organic Law;
   2. The Petition does not meet the requirement of s.208(d) of the Organic Law as it was attested by two witnesses who have no personal knowledge of the facts, issues and allegations contained in the petition;
   3. The pleadings as to the alleged errors and omissions at paragraphs 11, 12 and 13 of the petition do not meet the requirement of s.208(a) of the Organic Law as they are contradictory and conflicting; and
   4. The Petitioner lacked sufficient interest because the errors and omissions complained of do not have any bearing on the Petitioner’s placing after the First Preference Count or Eliminations.
      
5. In support of the Objection, the First Respondent relies on and reads his own affidavit sworn and filed on 12 October 2022 (Doc 14)
   
6. In contesting the Objection, the Petitioner relies on and reads his own affidavit sworn and filed on 12 January 2023 (Doc 46).
   
7. The Second Respondent did not adduce any evidence.
   
8. The Petitioner has given written notice to the First Respondent by way of a letter dated 6 February 2023 which was served on the First Respondent’s lawyers, Makap Lawyers under cover of an email to them on 6 February 2023 and by hand-delivery on 7 February 2023 that he would seek costs on a solicitor-client basis against the First Respondent should the Objection be unsuccessful as the Objection was frivolous and vexatious and had no merit. Reliance was placed on the affidavit of John Siwi sworn on 11 February 2023 and handed up at the hearing to which was annexed a copy of the letter of 6 February 2023 without objection.
   
9. The Petitioner through counsel, Ms. Copeland sought leave to cross-examine the First Respondent on matters deposed to in his affidavit contending that written notice was given to the First Respondent under s.36 of the Evidence Act. The relevant Notice to Cross-Examine was filed on 20 January 2023 (Doc 47) (Notice to Cross-Examine) by which the Petitioner gave notice to cross-examine a number of witnesses including the First Respondent on affidavits filed contesting the petition at the hearing of the petition.
   

10. Under s.36(a) of the Evidence Act, when a party to or a person interested in any legal proceedings before a tribunal to which Division 2 (Evidence by affidavit) of Part III of the Evidence Act applies desires to cross-examine a person who has made an affidavit used or intended to be used in the proceedings, he may serve on the party or person using or intending to use the affidavit a notice requiring the production of the deponent for cross-examination at the hearing. The National Court is one of the tribunals referred to for purposes of s.36 of the Evidence Act: see s.33, Evidence Act.

11. However, in the exercise of my discretion and the wide powers that the Court has to control the conduct of proceedings before it, I refused leave. This was principally on the basis that cross-examination is usually not allowed in interlocutory proceedings given their very nature except with leave as in the case of motions in ordinary civil proceedings where under Order 4 Rule 12(4) of the National Court Rules, with the exception of contempt hearings, no cross-examination of deponents of affidavits is allowed except with leave. In any event, the Notice to Cross-Examine referred to cross-examination of the First Respondent’s witnesses including himself at the hearing of the Petition and not at the hearing of the Objection which is an interlocutory proceeding.
    

LAW ON OBJECTIONS TO COMPETENCY OF ELECTION PETITIONS

12. In Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385, I stated the law as I understood it to be at the time as follows:

“12. It is trite law that the question of competency of a petition in itself raises the issue of jurisdiction and this can either be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in the petition and at any stage of the proceedings: see Sir Arnold Amet v Peter Charles Yama (2010) SC1064; Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Powes Parkop v Wari Vele (No 1) (2007) N3320; Norbert Kubak v Andrew Trawen (2012) N4992, PGNC286; and Peter Charles Yama v Anton Yagama (2012) N4928.

13. It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds: Peter Charles Yama v Anton Yagama (supra). It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed: Norbert Kubak v Andrew Trawen (supra). . Any prejudice caused to the petitioner can be accommodated by an order for costs: Peter Charles Yama v Anton Yagama (supra). It was held in Sir Arnold Amet v Peter Charles Yama (supra) that issues of competency of a petition can also be raised in the Supreme Court in the case of a review even if they were not raised before the National Court.....
15. Issues relating to competency of a petition arise because of the requirements under Sections 208, 209 and 210 of the Organic Law.
16. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law and the petition must strictly comply with each and every requirement: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, Holloway v Ivarato (1988) PNGLR 99........
19. Section 210 (No proceedings unless requisites complied with) of the Organic Law provides that unless the pre-requisites under Sections 208 and 209 are met, a petition cannot be heard....
20. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court at p.345 said:
    

"The requisites in s.208 and s.209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s.208 and s.209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s.208 and s. 209 are complied with.....

22. A reason behind the need for strict compliance with Section 208 if not the most important or fundamental one in my respectful view was expressed in Delba Biri v Bill Ginbogl Ninkama (supra) at p.345 in the following terms:
    

"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."

23. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
24. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:

"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) )."

13. Section 208 of the Organic Law states:

“208. Requisites of petition.

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).”

14. Section 209 of the Organic Law states:

“209. Deposit as security for costs.

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.”

15. Section 210 of the Organic Law states:

“210. No proceedings unless requisites complied with.

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

16. Section 217 of the Organic Law states:

“217. Real justice to be observed.

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.”

17 The decision of the Supreme Court constituted by a five-member bench (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail, J) in the case of William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 revisited the strict approach advocated by the Supreme Court decision of Delba Biri v Bill Ninkama [1982] PNGLR 342 in dealing with election petitions and followed by many decisions of the Supreme Court and National Court after that in dealing with election petition cases. The Supreme Court in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 said a fair, liberal and purposive approach should be taken in interpreting and applying the provisions of Constitutional Laws of which the Organic Law was one and that s.217 of the Organic Law ought to be considered and applied in that context. The Supreme Court also observed that s.217 applies to all aspects of the National Court proceedings dealing with election petitions including the hearing of objections to competency of petitions.

18. The relevant headnotes summarising these pronouncements in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 are set out below:

“(1) In deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s 217 of the Organic Law on National and Local-Level Government Elections, which dictates that 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”.

(2) Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the country.”

CONSIDERATION OF OBJECTIONS

19. I will consider the fourth objection first followed by the other objections.

FOURTH OBJECTION – SCRUTINY

20. This is not a valid objection to competency of the petition as it does not raise the issue of jurisdiction. The objection is dismissed.

FIRST OBJECTION - STANDING
First Respondent’s submissions

21. The First Respondent submits through Ms. Doiwa of counsel that the Petitioner has no standing to bring this petition in the name styled as Westly Nukundi Nukundj because there is no person enrolled or registered as an elector or voter in that name in the Electoral Roll of the Electorate within the meaning of s.52 of the Organic Law. The Petitioner therefore was neither qualified nor eligible to have nominated or contested as a candidate within the meaning of s.87(1)(a) of the Organic Law. Accordingly, the Petitioner is not allowed to exercise the rights accorded to enrolled or registered electors under s.50 of the Constitution to vote and stand for public office and is prohibited or disqualified from holding office pursuant to s.103(3) of the Constitution. For these reasons, the Petitioner has failed to meet the strict requirement of s.208(c) of the Organic Law.

22. The First Respondent relies on numerous case authorities supporting the strict approach to applying Constitutional Laws which I have considered. I have referred to some of them in the ruling.

Second Respondent’s submissions

23. The Second Respondent submits in essence that s.217 of the Organic Law, which states that the National Court is not bound by legal forms or technicalities and rules of evidence, but should be guided by substantial merits and good conscience of each case, has been applied by the courts in the past in dealing with the issue of whether or not a Petitioner has complied with the requirements under s.208 of the Organic Law as is alleged by the First Respondent in the Objection in the present case. Ms. Kapi of counsel for the First Respondent said the provisions of the Constitution and the Organic Law applying to qualifications for and disqualifications from membership of the Parliament (s.103 Constitution) and enrolment (s.253 of the Organic Law) ought to be considered in that light.

Petitioner’s submissions

24. Ms. Copeland of counsel for the Petitioner submits that this ground is completely mischievous and should be dismissed because it ignores ss.131 and 135 of the Organic Law and s.44 of the Electoral Law (National Elections) Regulation 2007 (the Regulation).

25. It was contended that pursuant to s.135 of the Organic Law, any error or omission in the Electoral Roll of part of the Petitioner’s name; does not warrant the rejection of his claim to vote; he is an elector in the Electorate; and he was qualified to be a candidate in the 2022 General Election.

26. In addition, Ms. Copeland argued that the Court must now apply the decision in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018, ie, take a liberal approach and be guided by the merits of the case before it without regard to technicalities, nit-picking and being legalistic in applying s.208 of the Organic Law.

Reasons for ruling

27. I have considered ss.50 and 103(3) of the Constitution.

28. 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.”

29. Section 103 states:

“103. Qualifications for and disqualifications from membership.

(1) A member of the Parliament must be not less than 25 years of age.

(2) A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(3) A person is not qualified to be, or to remain, a member of the Parliament if—

(a) he is not entitled to vote in elections to the Parliament; or

(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or

(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or

(d) he is adjudged insolvent under any law; or

(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or

(f) he is otherwise disqualified under this Constitution.

(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—

(a) the end of any statutory period allowed for appeals against the conviction or sentence; or

(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.

(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.

(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—

"appeal" includes any form of judicial appeal or judicial review;

"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.”

30. I have considered ss.52, 87(1)(a), 131, 135 and 253 of the Organic Law.

31. Section 52 states:

“52. Persons entitled to enrolment.

(1) All persons who have a right to vote under Section 50 (right to vote and stand for public office) of the Constitution who comply with the requirements of Part VII for enrolment for an electorate are entitled to enrolment.

(2) All persons whose names are on the Roll for an electorate shall, subject to this Law and to the provisions of any other law in force, vote at elections of a member for the electorate, but no person is entitled to vote more than once at an election, or at more than one election held at the same time.”

32. Section 87(1)(a) states:

“87. Requisites for nomination.

(1) No nomination is valid unless—

(a) the person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member......”

33. Section 131 states:

“131. Elections at which Electors are entitled to vote.

(1) Subject to this Section and Division 3, an elector shall only be admitted to vote for the election of a member for the electorate for which he is enrolled.

(2) A candidate is entitled to vote in the electorate for which he is a candidate whether or not his name is on the Roll for that electorate.

(3) For the purposes of this section, the Rolls in force at the time of the election are, subject to Subsection (2), evidence of the right of each person so enrolled to vote at an election, unless he shows by his answer to a question prescribed by Section 134 that he is not entitled to vote.”

34. Section 135 states:

“135. Certain errors not to forfeit vote.

No error or omission in the Roll for an electorate of part of a name or entry of a wrong name, address or occupation and no mistake in the spelling of a name warrants the rejection of a claim to vote, and no person shall be disqualified from voting under the name appearing on the Roll because of a change of name.”

35. Section 253 states:

“253. Claims for enrolment.

(1) Subject to this section and to Section 250, a person who—

(a) has resided in the area of a ward for a period of not less than six month immediately preceding the date of his claim for enrolment; or

(b) is nominated for a ward for which he is not enrolled and was either born in the ward or lived in the ward for five years at any time,

is entitled to have his name placed on the Roll for that ward.

(2) Where the name of a person is placed on a Roll in accordance with Subsection (1)(a), he shall be enrolled in respect of the address of his last residence in the ward.

(3) Where the name of a person is placed on a Roll in accordance with Subsection (1)(b), he shall be enrolled in respect of his last-known place of residence in the ward.

(4) The Electoral Commission may, in relation to a person or class of persons, direct that a claim for enrolment be in the prescribed form and, if in the prescribed form, shall be signed by the claimant and attested by a prescribed person who shall sign his name as witness in his own handwriting.”

36. I have also considered s.44 of the Regulation which states:

“44. Qualifications for nomination.

A person is qualified for nomination if—
(a) he is a citizen of Papua New Guinea; and
(b) he is aged 25 years or over on the date of nomination; and

(c) he was born in the electorate or he has resided in the electorate for a continuous period of two years immediately preceding the nomination or for a period of five years at any time; and
(d) he is not an insolvent; and

(e) he has not been convicted of an indictable offence after 25th June 2002;

(f) he is not under sentence of death or sentence of imprisonment for a period of more than nine months and against which no appeal is pending; and

(g) he has not been convicted under the Law or under this Regulation and where the penalty imposed includes ineligibility to hold elective office; and

(h) he has not, in the three years previous to the date fixed for polling, been convicted of an offence relating to elections prescribed by an Organic Law or Act of Parliament for the purposes of Section 50(1)(b) (right to vote and stand for public office) of the Constitution; and

(i) he has not, in the three years previous to the date fixed for polling, has been dismissed from office under the Leadership Code; and

(j) he is not of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; and

(k) he has not nominated for another electorate in the election to which the nomination relates.”

37. The evidence before the Court either to substantiate or not as to whether the Petitioner was enrolled or registered as an elector or voter on the Electoral Roll of the Electorate for the purposes of the 2022 National General Election is largely uncontested and it is this:

1. The Petitioner is from the Muglamp LLG Klenembo Ward 1-5 area of the Electorate (paragraph 4, affidavit of the First Respondent and paragraph 4 of the affidavit of the Petitioner).
2. He was the immediate sitting Member of the National Parliament for the Electorate before unsuccessfully contesting the 2022 General Electorate (paragraph 2 of the Petitioner’s affidavit).
3. Three searches conducted of the Papua New Guinea Electoral Roll Search showed that there was no male person registered as an elector or voter bearing the name of Westly Nukundj, Westly (last name) Nukundj Nukundj or Westly Nukundi (first names) Nukundj from the Dei District, Western Highlands Province in the Highlands Region registered (annexure A, affidavit of the First Respondent).
4. There is no elector or voter enrolled or registered on the entire Electoral Roll of the Electorate by the name of Westly Nukundi Nukundj (annexure B, affidavit of the First Respondent).
5. The Second Respondent accepted the Petitioner’s nomination to contest in the 2022 General Election for the seat of the Electorate (paragraph 6, affidavit of the Petitioner).
6. The Order of Draw for the Electorate, EC Form 47 dated 26 May 2022 shows that the Petitioner nominated as a candidate to contest the election as Westly Nukundi Nukundj, he was allocated Box 30 and his occupation recorded as “Current MP” (annexure C, affidavit of the First Respondent).
7. A male elector or voter sequence number 932, Elector ID number 200217084 by the name of Westly Nukundi from Meti, self-employed whose date of birth is 22 May 1967 is registered at page 25 of 43 pages under the Klenembo 2 Ward within the Muglamp LLG of the Electorate (annexures A, affidavit of the Petitioner and annexure B of the First Respondent’s affidavit).
8. The Petitioner was born at Klenembo Ward 2, attended the Klenembo Primary School and has spent most of his life at Klenembo (paragraph 5, affidavit of the Petitioner).
9. The Petitioner has a Papua New Guinea Passport, Document No.OP17395 issued in Port Moresby on 24 February 2022 which expires on 24 February 2026 showing his date of birth to be 22 May 1967 (annexure B, affidavit of the Petitioner).
   

38. A person who has not enrolled as an elector can neither vote and nor be a candidate at a General Election: Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548, Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (1999) SC643, Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea (1999) SC644.

39. In Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548, the Supreme Court stated:

“Elections to the Parliament shall be conducted in accordance with an Organic Law (Constitution s.126), in this case the Organic Law on National Elections, and by s.86 of the Organic Law, no nomination is valid unless the person nominated consents to act if elected and declares that he is qualified under the laws of Papua New Guinea to be elected as a member...

It is our view that Elections to the Parliament must be conducted in accordance with the provisions of the Organic law (Constitution s.126), in this case the Organic Law on National and Local Level Government Elections. Further we consider that by s52 of the Organic Law all persons who have a right to vote under s50 of the Constitution and who comply with the requirements for enrolment set out in Part VII of the Organic Law, in respect of an electorate are entitled to be enrolled....

It is our view that the intention and spirit of the provisions we have referred to above, is that in order for a person to stand for and vote in an Election, is that he or she must comply with the provisions of the Organic Law relating to enrolment. A person cannot vote or stand for elective office, if he or she has not been enrolled in the first place. If a person has not enrolled in accordance with the provisions of the Organic Law, then that person is not qualified to be entitled to vote in elections to the Parliament. It follows that such a person is not qualified to be a or remain a member of Parliament (s.103 (3) of the Constitution).

To be entitled to vote, one must comply with these requirements of the Organic Law on enrolment. In other words, a person must be enrolled in order to exercise that right to vote. If a person has not enrolled then that person is not entitled to vote nor stand for an election. A person must be qualified to stand and or vote in an election. If a person is not qualified then that person cannot stand and or vote in an election......

The effect of the above is that you cannot be a member or aspire to be a member of Parliament unless you have enrolled as an eligible voter in your electorate.... So if your name is not on the roll for your electorate by the date of the issue of the writ then you are not qualified to nominate for that electorate.”

40. In Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea (1999) SC644, the first respondent nominated as candidate for the Kandep Open Electorate in the name Don Pomb Pollie Polye of Kokosa village. The undisputed evidence was that that name did not appear in the Common Roll whether in respect of a person in Kokosa or anywhere in the Kandep electorate. The National Court accepted the first respondent’s evidence that he was one and the same person as Don Pela, upheld the petition and declared the election invalid. On a successful application for judicial review, the Supreme Court stated:

“But whether the First Respondent is in fact truly Don Pela or not is of no consequence for the electoral process. The law is very clear. A person not enrolled as an elector cannot vote and cannot be a candidate for election. This Court made that clear in Application of Takai Kapi SCR 88/97. (my underlining)

Therefore since the clear evidence before the trial Judge was that there was no person in the name of the 1st Respondent recorded in the common roll for the Kandep Open Electorate the Petitioner was without standing and could not be heard. The only conclusion that the Court could have come to was to strike the petition out. In failing to do so the National Court acted outside its jurisdiction.

Accordingly this application must and does succeed. The decision of the National Court that the election of the Applicant void is quashed and the 1st Respondent's petition before the National Court is declared invalid.

That being the case there is no petition challenging the election of the Applicant for the Kandep Open Electorate. The election of the Applicant is therefore unchallenged and he is entitled to a declaration that he is validly elected.”

41. The position taken by the Supreme Court in Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea (1999) SC644 was confirmed about a month later by the Supreme Court in Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (1999) SC643 when it stated:

“The decision that the Applicant Don Pomb Pullie Polye seeks to revisit was a finding by this Court that the Applicant whose name did not appear at all on the Electoral Roll for the Kandep Open Electorate was not eligible to stand as a candidate for that Electorate in the 1997 National Election. Further although he did stand as a candidate, when he failed to be elected he was not eligible or entitled to bring a petition as a candidate under that name to challenge the election. Simply stated, the decision was that if you have one name on electoral roll you cannot vote or stand for Parliament in another.”

42. The Court dismissed the latter case for abuse of process emphasising the principle of finality of litigation. The court also said that it could only correct plain and obvious errors of its own, but its jurisdiction was not available to anybody to simply seek to re-argue a decision that was made against them.

43. The First Respondent argues that the legal principle advocated by the Supreme Court in the decisions in Daniel Don Kapi v Takai Kapi, Electoral Commission (1998) SC548, Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea (1999) SC643, Jimson Sauk Papaki v Don Pomb Pullie Polye and Electoral Commission of Papua New Guinea (1999) SC644 is still good law and should be followed by this court as was done in the National Court decisions of Jim Nomane v David Anggo (2003) N2384, Tony Waterupu Aimo v Ezekiel Anisi (2012) N4870 and Michael Korry v Mogerema Sigo Wei (2012) N4878.

44. In Yama v Singirok (2020) SC1982 the Supreme Court reiterated that the freedom and right given to every citizen to stand for or nominate for public office was regulated by ss.50 and 103 of the Constitution which gave clear requirements for a person intending to hold elective office to possess.

45. I have also considered Justin Aluja Haiara v James Marape (2019) SC1830. That was a decision by the Supreme Court constituted by a single judge regarding an application for leave to review part of the decision of the National Court that dismissed the petition on an objection to competency. The National Court, among others, found that because the first respondent’s name was incorrectly spelt in the petition as “James Marabe” and was not in accordance with the spelling of the name registered on the Electoral Roll for the electorate to which he nominated and contested as “James Marape”, that was a gross error contravening s.210 of the Organic Law so it had no jurisdiction to hear the proceedings. The Supreme Court found that there was no clear indication of how the National Court was alleged to have fallen into error and dismissed the ground and the application.

46. The decisions about strictly using the correct names or spellings in accordance with names registered on Electoral Rolls predate the decision in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018. That was when the view of the courts was that s.217 of the Organic Law did not apply until the trial stage. That position has now been reversed by the decision in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 which has stated that s.217 of the Organic Law applies to all aspects of the National Court dealing with an election petition and be guided by substantial merits and good conscience of each case without due regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence. I am bound by this decision. I would have upheld the Objection and dismissed the petition on the First Respondent’s contention with regard to the name of the petitioner alone had it not been for this landmark decision in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018.

47. In my view the issue of whether the name the Petitioner has used to nominate and contest the 2022 General Election and the name used in the petition falls within the expression “legal forms or technicalities” in s.217 of the Organic Law.

48. Given this, on the evidence available, I am satisfied on the balance of probabilities that the Petitioner was enrolled or registered as an elector or voter on the Electoral Roll of the Electorate within the meaning of s.52 of the Organic Law for the purposes of the 2022 National General Election. I make a finding of fact that the Petitioner who nominated to contest the seat of the Electorate at the 2022 General Election using the name Westly Nukundi Nukundj is the one and same person named as Westly Nukundi who was registered as an elector or voter bearing sequence number 932, Elector ID number 200217084 from Meti, self-employed and whose date of birth is 22 May 1967 and whose name is registered at page 25 of 43 pages under the Klenembo 2 Ward within the Muglamp LLG of the Electorate. The petitioner was entitled and qualified to vote in the 2022 General Election under the relevant provisions of the Constitution, the Organic Law and the Regulation.

49. I also find as a fact that the Petitioner was qualified to nominate and contest the seat of the Electorate at the 2022 General Election because; he was a citizen of Papua New Guinea; he was over the age of twenty five years at the time of nomination which was about 55 years; he was born in the Electorate; and therefore he was qualified to stand for public office: see ss.50 and 103(1), (2) and (3)(a) of the Constitution and s.44 of the Regulation.

50. The Petitioner was a candidate at the election in dispute and was a person qualified to vote and therefore meets the requirement in s.208(c) of the Organic Law. He should not be driven from judgment seat because the name used to nominate and contest the 2022 General Election was not the same as that which was registered in the Electoral Roll of the Electorate. The Petitioner has standing to pursue this petition using the name Westly Nukundi Nukundj.

51. Consequently, I will dismiss this objection.

SECOND OBJECTION - ATTESTATION
First Respondents submissions

52. The First Respondents submits that the petition was not signed by two witness who were competent to verify the truth or genuineness of the allegations in the body of the petition consistent with the decision of the Supreme Court in Sandy Talita v Peter Ipatas (2016) SC1603 therefore it did not comply with s.208(c) of the Organic Law.

Second Respondent’s submissions

53. The Second Respondent’s position on this objection was unclear, but submitted that the Petitioner must meet all the requirements under s.208 of the Organic Law.

Petitioner’s submissions

54. The Petitioner submits that witnesses attesting the petition need not be persons with knowledge of the truthfulness of the facts, issues and or allegations in the petition as it was not a requirement expressly provided under s.208(d) of the Organic Law. He relied on Jim Nomane v Wera Mori (2013) SC1242, Philip Kikala v Electoral Commission (2013) SC1295 and Riddler Dorobe Kimave v Poevare Tore (2013) SC1303.

55. Ms. Copeland submitted that although the Supreme Court in Sandy Talita v Peter Ipatas (2016) SC1603 held that an attesting witness to a petition should be able to attest to the signing of the petition and to the facts pleaded in the petition, in its reasoning, the Court considered that s.217 of the Organic Law was not relevant at the hearing of an objection to competency contrary to the decision in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018.

56. It was contended that Form 1 of the Election Petition Rules in capital letters, confirms that the attesting witnesses are those attesting that they have witnessed the signing of the petition by the petitioner and that there was no requirement that the attesting witnesses are attesting to the veracity of the facts pleaded in the petition.

Reasons for ruling

57. Rule 4 of the Election Petition Rules appears to have resolved the conflicting views about the requirement for attestation of a petition under s.208(d) of the Organic Law. The rule states that the petition shall be in accordance with Form 1. There are two attestation clauses in Form 1, one specified for the first attesting witness and the other specified for the second attesting witness. They are as follows:

“IN THE PRESENCE OF:
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)”

58. In the present case, the petition was attested by two witnesses whose occupations and addresses are stated consistent with the requirement under s.208(d) of the Organic Law and Rule 4 and Form 1 of the Election Petition Rules. The first attesting witness is Martina Morola, Legal Secretary of Unit 6, Turumu Haus, Section 58 Allotment 14, Spring Garden Road, Gordons, Port Moresby, National Capital District. The second attesting witness is Ishmael Opahi, Lawyer of Unit 6, Turumu Haus, Section 58 Allotment 14, Spring Garden Road, Gordons, Port Moresby, National Capital District.

59. Consequently, I will dismiss this objection.

THIRD OBJECTION - PLEADINGS
First Respondent’s submissions

60. The First Respondent submits that the pleadings at paragraphs 12 and 13 of the petition offend s.208(a) of the Organic Law and should be struck out because they are contradictory, create confusion and will not assist the Court in its deliberations. That being the case, it was also submitted that no alternative pleading was allowed in an election petition relying on the case of James Yoka Ekip v Gordon Wimb (2012) N4899.

Second Respondent’s submissions

61. Ms. Kapi submitted that pleadings should state facts disclosing a ground to void an election.

Petitioner’s submissions

62. The Petitioner submits that the pleadings should demonstrate whether there are facts that demonstrate errors and omissions that would invalidate the election or return and in the present case they do. In addition, it was submitted that the facts pleaded in paragraphs, 11, 12 and 13 of the petition are not contradictory and conflicting that would not invalidate and nullify the errors and omissions alleged and relied on.

Reasons for ruling

63. It is trite law that for purposes of s.208(a) of the Organic Law, a petition must set out the facts supporting a ground to invalidate an election or return. The Supreme Court clearly pointed this out in Holloway v Ivarato (1988) PNGLR 99 where it stated:

“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 maybe declared invalid. Setting out grounds without more does not satisfy the requirement of s. 208(a) of the Organic Law. The facts set out under s208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s208(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.”

64. The same point was addressed in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 at [28] by Kandakasi, DCJ as follows:

“Challenging an election petition on the basis of a lack of proper pleadings and or a petition not being in the correct form 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 disclose a valid ground to void an election outcome or fails completely to meet any of the other 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 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 purposes of s.210, and that such against 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.”

65. Factual pleadings that relate to a ground in a petition must be read together. This was pointed out in Gabriel Kapris v John Simon (2013) SC1247 at [5] where Injia CJ said:

“After considering the arguments of counsel in the light of the material before me, I start by affirming a trite and sound principle that relates to how the Court should deal with related factual pleadings in a petition. Various facts in a petition that relate to a ground but are pleaded in separate parts of the petition must be read together and as a whole in order to decide whether the whole of those facts support the particular ground.”

66. Paragraphs 11, 12 and 13 of the petition are reproduced below.

“11. The second respondent issued a total of 2,521 ballot papers for Klenembo 3 Ward. Team 72 was allocated 1,300 ballot papers and team 73 was allocated 1,221 ballot papers.

12. Polling commenced after 1pm and after about two hours of voting a candidate, Mr. Nixon Onda Moka grabbed a number of ballot papers from team 73 presiding officer, Mr. Samuel Mark. Mr. Nixon Onda Moka’s action ignited a commotion between supporters of regional candidates at the polling station for team 72. In the course of the commotion the regional ballot box was damaged. Some local leaders immediately intervened and restored normalcy at the polling booths and soon after security personnel arrived at the polling place and situation was fully under control and they supervised the rest of the polling.
    
13. The Presiding Officer’s journals indicate that for team 72 there were 1,300 ballots cast. The Presiding Officer’s journals indicate that team 73 there were 770 ballots cast. Therefore there are 2,070 ballots cast in the two ballot boxes for Klenembo 3 ward (thereafter referred to as the Ballot Boxes).”
    

67. In the present case, in applying the above-mentioned principles and reading paragraphs 11 to 13 together, I find and concur with the Petitioner’s submission that they are not contradictory and conflicting. Otherwise, I am of the view that they are sufficiently pleaded within the meaning of s.217 of the Organic Law.

68. In the circumstances, I will dismiss this objection.

COSTS

69. The petitioner seeks costs on a solicitor-client basis against the First Respondent.

70 It is trite law that the power to award costs on a solicitor-client basis is discretionary and is to be exercised only in a clear case.

71. There is undisputed evidence that written notice was given to the First Respondent’s lawyers of the Petitioner’s intention to claim costs on a solicitor-client basis by a letter dated 6 February 2023.

72. In the exercise of the Court’s discretion, I find that the facts and circumstances of this case do not warrant costs to be awarded on a solicitor-client basis. I am not satisfied that the conduct of the First Respondent or his lawyers can be said to be so improper, unreasonable or blameworthy that they should be punished by such an order. Accordingly, costs will be awarded against the First Respondent on a party-party basis.

ORDER

73. The formal orders of the Court are:

1. The Notice of Objection to competency of the petition filed by the First Respondent on 12 October 2022 is dismissed.
2. The petition shall proceed to trial.
3. The First Respondent shall bear the Petitioner’s costs of and incidental to the hearing of the objection to the competency of the petition on a party-party basis, which shall, if not agreed, be taxed.
4. Time is abridged.
   

Ruling and orders accordingly.

____________________________________________________________
Simpson Lawyers: Lawyers for Petitioner
Makap Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent