Lera v Tsiamalili [2023] PGNC 83; N10193 (20 February 2023)

N10193

PAPUA NEW GUINEA
[IN THE NATIONAL COURTOF JUSTICE]

EP NO. 13 OF 2022
BETWEEN:
JOE LERA
-Petitioner –

AND:
HON. PETER TSIAMALILI, MP
-First Respondent-

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Second Respondent-

Buka: Numapo J
2023: 20^th February

ELECTION PETITION: PRACTICE & PROCEDURES – Objection to competency – Sections 208, 209, 210 and 217 of the Organic Law on and Local Government Elections (“the OLNE” hereinafter) and Rules 12 of the Election Petition (Miscellaneous Amendments) Rules, 2022 (“the Rules” hereinafter) – Competency issues relates to jurisdiction and can be raised at any stage of the proceedings up to judgment - Material facts must be clearly pleaded and demonstrated through pleadings - Petitioner must plead all the necessary facts and constituent elements of bribery under s. 103 of the Criminal Code to invalidate the Election – Hagahuno v Tuke (2020) SC2018 effectively replaces Biri v Ninkama [1982] PNGLR 342 on issues relating to competency of the Petition - National Court to have regard to Schedule 1.5 of the Constitution and “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 and is in accordance with the law or not” – Lack of proper pleadings and or petition not being in the correct form is considered as part of “legal forms or technicalities” which is prohibited under s. 217 of the OLNE – Disclosing a known ground for voiding an election under the requirements of s. 208 and s.209 is sufficient for purposes of s. 210 and such a petition should be allowed without regard to s. 217 – Objection to competency dismissed.

Cases Cited:

Amaiu v Kipalan (2009) SC991
Amet v Yama (2010) SC1064
Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
Ginson Soanu v Bod Dadae (2004) SC763
Holloway v Ivarato PGSC 16; [1988-89] PNGLR 99
Olmi v Kuman (2002) N2310
James Yoka Ekip v Gordon Wimb & Ors (2012) N4899
Kramer v Duban 920130 N5213
Hagahuno v Tuke (2020) PGSC 105; SC2018
Yagama v Uguro [2018] PGNC 67; N7135
Isoaimo v Aihi (2012) N4921
Kainwi v Tongap (2018) N7208
Boito v Kipefa [2018] PGNC 266; N7354

Counsel:

T. Dawidi, for the Petitioner
T. Kuma, for the First Respondent
(Andrew Bemau & Wilson Minonga - Counsels Assisting Lawyer for the First Respondent)
Nicholas Tame, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY

20^th February, 2023

1. NUMAPO J: The petition was brought pursuant to Section 206 of the Organic Law on the National and Local Government Elections (“the OLNE” hereinafter) by the Petitioner who was a candidate in the 2022 National General Elections for the Provincial Seat for the Autonomous Region of Bougainville (AROB).
   
   1. BACKGROUND
      
2. On the 28 July 2022, the declaration of the winner was made whereby the First Respondent was declared as the duly elected Regional Member for Bougainville. He polled 47, 460 votes defeating the Petitioner who polled 25,011 with the difference of 22, 549 votes between the First Respondent and the Petitioner, who came in second.
   
3. On the 6 September 2022, the Petitioner, being dissatisfied with the results of the election filed this petition challenging the results of election on allegations of bribery. Petitioner alleges two instances of bribery.
   
4. The First Respondent, through his Notice of Objection to Competency pursuant to Sections 208 and 210 of the OLNE and Rule 12 of the Election Petition (Miscellaneous Amendments) Rules, 2022 (“the Rules” hereinafter) filed on the 3 February 2023 challenged the competency of the petition. Section 208 states:
   

A petition shall –

(a) set out the facts relied on to invalidate the election of 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 occupation 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 pf the election in accordance with section 175(1)(a).

Rule 12 of the Election Petition (Miscellaneous Amendments) Rules 2022 states:

Where a party has not done any act required to be done by or under the Rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceedings:

(a) order that the petition be dismissed where the defaulting party is the petitioner; or
(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(c) Make such orders as it deems just.

2. OBJECTION TO COMPETENCY

5. The objection to competency by the First Respondent is premised on the requirement of section 208 (a) of the Organic Law that material facts must be clearly pleaded and demonstrated through pleadings. Petitioner must plead all the necessary facts and constituent elements of bribery under s. 103 of the Criminal Code to invalidate the election results. The requirement of pleading facts to comply with section 208 (a) was succinctly set out in Holloway v Ivarato [1988] PNGLR 99 where the Court held:
   

“The ‘facts’ which must be set out under s. 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated but not the evidence by which it or they might be proved. The purpose of pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved”.

6. Similar views were expressed in some latter cases of; Vagi Mae v Jack Genia (1992) N1105 where the Court said that particulars of facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which grounds are found. In Olmi v Kuman (2003) N2310 the Court said that the facts must go beyond a mere statement or assertion that certain things were done by Electoral Commission Officials or by some other person(s) on behalf of the winning candidate that affected the resulted; such as names of people involved, numbers affected, names of places, dates, time etc. In Kapaol v Embel (2008) N3318, the Court held that it is essential that the pleadings must show with clarity and particularity that the Respondent was relying on illegal acts or illegal practices by the winning candidates and such acts affected or likely to have affected the result of the election.
   
7. The requirements of “pleading facts” were succinctly set out by Lay J (as he then was) in Manase v Polye (2009) N3781 in the following terms:
   

“Section 208(a) of the Organic Law requires that all of the material and relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated must be set out clearly in the petition...”

8. The Supreme Court in Arnold Amet v Peter Yama (2010) SC1064 endorsed and reaffirmed the position taken by the National Court in some of the decisions I have referred to above in so far as the requirements on compliance of s. 208 is concerned as enunciated by the Supreme Court in the landmark seminal case of Delba Biri v Bill Ninkama [1982] PNGLR 342.
   
9. The position of the law following Biri v Ninkama (supra) was that all petitions must plead ‘material facts’ (s. 208(a)) that goes to establish the grounds (either s.215 or s.218 of Organic Law) to overturn an election result.
   
10. However, since Biri v Ninkama the Courts have overtime, developed additional requirements on a case by case in the way ‘facts’ are pleaded under section 208(a) whilst maintaining the requirement on compliance.
    
    100. THE “THREE-PRONGED APPROACH”
11. I found this to be the case in Hagahuno v Tuke [2019] N8148, where I observed that the Courts have developed a “three-pronged approach” in dealing with the issue on how facts are pleaded namely; the ‘strict approach’, the ‘liberal approach’ and the ‘third or middle approach’ to testing the facts pleaded in the petition according to s. 208(a) of the Organic Law. This was done in an attempt to find a compromise between the strict requirements of s. 208(a) and real justice under s. 217 without any regard to legal forms and technicalities. Until Hagahuno v Tuke (2020) PGSC 105; SC2018 (02 October 2020), Courts were divided on the requirements of s.208 with individual Judges having the liberty to decide which approach to take resulting in varied outcomes and inconsistencies over the years. The ‘Approaches’ are as follows:
    
    • (a) The “Strict Approach” requires absolute compliance in that all bases of facts must be strictly pleaded which included persons involved, place, dates, time, numbers scored by parties etc. but that it does not give a particular heed to the requirements of s.217 and s. 222 of the Organic Law and section 158 (2) and Schedule 1.5 of the Constitution.
      
    • (b) The “Liberal Approach” caution the Court that it should not forget that petitions are intended to be filed by the Petitioners in person and the involvement of lawyers is only by consent of all parties and by leave of Court pursuant to section 222 (1) of the Organic Law hence, legal form and technicalities is a secondary consideration.
      
    • (c) The “Third or Middle Approach” attempts to harmonize the two different Approaches requiring that the judicial scrutiny of the competency of a petition under s. 210 has to be driven by fairness, purpose and substance; rather than procedural style, form and legal technicalities in accordance with s. 217 of the Organic Law.
      

The Supreme Court in Hagahuno v Tuke (supra) endorsed the liberal and the middle approaches, effectively getting rid of the requirement of strict approach established in Biri v Ninkama.

4. INTENT OF THE LEGISLATURE
   

12. There is also the difference in opinion on what the intention of the legislature is on s. 208 of the Organic Law. In Kamma v Itanu (2007) N3246 the Court held that; the combine effects of s. 217 and s.222 of the Organic Law obligates the Court to be “guided by the substantial merits and good conscience of each case without regard to the legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence.” In otherwords, the Court should not place too much emphasis on legal forms and technicalities as required by s. 208 when dealing with petitions but rather be guided by merits of the case, fairness and good conscience hence, the attendance of Counsel is not necessary except by consent of all parties or by leave of Court pursuant to s. 222 of the Organic Law. This was, as suggested in the case, the intention of the legislature. This view, with respect, strikingly differs to the view held in Biri v Ninkama (supra) where at p.345; the Court clearly and explicitly stated 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... it is serious thing.........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.”

(emphasis mine).

13. The view held by the Supreme Court in Biri v Ninkama is that requirements of s.210 demands nothing less than strict compliance of s.208 and s.209, failing that a petition does not proceed any further. That is the intention of Parliament and there is no ambiguity in it. These principles of law were adopted and applied in subsequent cases such as in; Holloway v Ivarato (supra); Amet v Yama (supra); Vagi Mae v Jack Genia (1992) N1105; Aiwa Olmi v Nick Kuman (2003) N2310; Joel Paua v Robert Nagle (1992) PNGLR 5, Robert Kapaol v Philemon Embel (2008) N3318 and Hagahuno v Tuke [2019] N8148.
    
14. As I further observed in Hagahuno v Tuke (2019) N8148 that unless and until the principles of law developed in Biri v Ninkama is superseded or replaced by a subsequent authoritative case law, it is still good law.
    
15. Sentiments were been expressed over the years through various case laws such as; Kamma v Itanu (supra), Tulapi v Lagea (2013) N5235 and Wesley v Leonard (2018) N7148 regarding the need for the Court to lower the bar and depart from the requirements on strict compliance of s.208 held in Biri v Ninkama and allow the Petitioner to get his foot into the door to be heard on the substantive merits of the petition without been bogged down with legal technicalities at the competency stage.
    
16. In Wesley v Leonard (supra), Salika DCJ (as he then was) expressed concern that since Biri v Ninkama the Courts have, over the years, added other additional requirements already set out under s.208 of the Organic Law making it more stricter and stringent which is totally unwarranted. It turns the whole competency stage into a circus with lawyers flooding into the arena arguing legal technicalities whilst the underlying issues are not adequately addressed and the petition gets dismissed for want of competence. His Honour suggested that a full bench of the Supreme Court be empanelled to resolve this issue in an appropriate case. Injia CJ (as he then was) also suggested in Tulapi v Lagea for a full bench of the Supreme Court to resolve this issue on the strict requirements of s.208. I made a similar call in Hagahuno v Tuke [2019] N8148 for the full bench of the Supreme Court to settle the requirements of s.208 of the Organic Law once and for all, for purposes of clarity and consistency in future decisions on election petitions, especially at the competency stage.
    
    5. HAGAHUNO v. TUKE (2020) PGSC 105; SC 2018
       
17. These calls were heeded to when the full bench of the Supreme Court in Hagahuno v Tuke (2020) PGSC 105; SC 2018 (02 October 2020) finally decided that:
    

“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 the 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”.

18. Hagahuno v Tuke (supra) has changed the landscape on how facts are pleaded in election petition cases. The Supreme Court, in that case, went on to say that:
    

“Strict approach is no longer required so long as the facts that are stated supports the allegation of bribery. Petition only need to state the essential elements of the offence, including the date of the commission of the alleged offence, place where the offence was alleged to have been committed, name of the offender, name of the person bribed, the person bribed was an elector, that the bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate, and that the winning candidate was infact a candidate at the time of the alleged offence. Here the petition stated the necessary details, sufficient to put the respondents on notice what the allegations were, and result in a fair trial”.

6. FINDINGS

19. I have considered the submissions from the Respondents and the objections raised therein and must agree with the Petitioner that the issues raised have been adequately settled in Hagahuno v Tuke (supra). On point, Kandakasi DCJ at paragraph 28 said:
    

“Challenging an election petition on the basis of a lack of proper pleadings and/or a petition not being in a correct form comes under “legal forms or technicalities” which is 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 facts under s. 208(a) that discloses 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 requirements under s.208 and s.209, it would be sufficient for the purposes of s.210, and that such a petition should be allowed to progress to trial without delay. Any argument against a petition of this type as being incompetent and would constitute a technical issue, which is prohibited by s.217”.

20. The present petition has set out in details the elements of the offence of bribery under s.103 of the Criminal Code by identifying the person who made payment or promise, the name of the person bribed, the form of benefit (money), dates, time and places. This is all that is needed under s.208 following the Supreme Court decision in Hagahuno v Tuke (supra).
    
21. Respondents have gone to great lengths and skillfully couched their argument around the need to apply strict requirements in the way facts are pleaded under s.208 and asking the Court to take this approach, whilst acknowledging in a rather subtle way, the authoritative precedent law enunciated in Hagahuno v Tuke. One cannot have it both ways. The message is loud and clear, Biri v Ninkama is now gone and is history, in the way facts are pleaded therefore, insisting on stringent application of s.208 would be a futile exercise.
    
22. On face value, I am satisfied with the pleadings contained in this petition and the seriousness of the allegations raised against the First Respondent, and in all fairness, the matter must to go to trial on the substantive petition.
    
23. I find therefore that the objections were misconceived and offends against the requirements of s.217 and s, 222 of the Organic Law and Section 158 (2) and Schedule 1.5 of the Constitution. The combine effects of these provisions requires the Court to be guided by substantial merits and good conscience of each case without regard to legal forms or technicalities. That all words, expressions and propositions in a Constitutional Law shall be given their ‘fair and liberal’ meaning. In interpreting the law, the Court must give paramount consideration to the dispensing of the justice.
    
24. Finally, I note that the Second Respondent took issue with the fact that the petition did not specify which respondent (first or second) the petition is directed at. I need only refer to s.222 which reminds us that petitions are supposed to be drafted and filed by the Petitioners themselves without the assistance of the lawyers, and such oversight is expected. The failure to specify the correct respondent does not in any way, alter the face of the petition nor does it alter the substantial merits of the case. In my considered opinion, it is of not of any significant relevance to the petition itself. It is one of those “technicalities” that is no longer required under Hagahuno v Tuke which is now the authoritative case law setting a new precedent. Secondly, of course, it goes without saying that the bribery allegation was made against the First Respondent who was the candidate in the general elections, not the Electoral Commission (Second Respondent). I find this argument ludicrous and must reject it.
    
    7. ORDER
       
    • (1) Objections to competency dismissed.
      
    • (2) Matter to proceed to trial.
      
    • (3) Respondents to pay the costs of this application, to be taxed if not agreed.

_________________________________________________________________
Dawidi Lawyers: Lawyers for the Petitioner
Bradshaw Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent