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Papua New Guinea District Court |
DC5010
PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Court of Disputed Returns
LLGEP (21) 1 OF 2008
DAURE LOHIA
IAVA IVAN GEITA
PETER MALAIFEOPE
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Port Moresby: Pupaka, PM
2008: 2nd & 17th Oct.
RULING ON OBJECTION TO COMPETENCY
Local Level Government Election Petition – Petition challenging the result of Kira Kira Council Ward – Grounds – Mandatory requirements of section 208 of the Organic Law on National & Local Level Government Elections
Objection to competency – Section 208(a) – Lack of details & insufficient facts – Section 208(d) – Petitions not properly or at all attested by two witnesses – Whether filing Statutory Declarations is in compliance with requirements of section 208(d) – Substantial compliance – Witnesses’ occupations not disclosed – Whether non discloser of witnesses’ occupations fatal to petition – Costs
Mr. M. Miva for the Petitioner
Mr. Tuva for the 1st Respondent
Mr. T. Kuma for the 2nd & 3rd Respondents
30th October 2008
PUPAKA, PM: This is a decision in relation to objections to the competency of the substantive matter, which is the LLG election petition filed
by the Petitioner Mr. Daure Lohia, challenging the validity of the 1st Respondent’s declaration as winner of the Kira Kira Council Ward in the Motu-Koitabu LLG area.
The 1st Respondent was declared winner on 11th June 2008. The petitioner filed this petition disputing that result. He sought, as relief; a declaration from this Court that the 1st Respondent, who he alleges is not registered on the Common Roll for the Kira Kira Ward, was therefore in-eligible to contest in the Ward election, and consequently his subsequent win and declaration is null and void. Alternatively he sought a recount of the votes, on the bases that there were “inconsistencies in the counting process” and for that laws governing scrutineer representation at the counting were breached.
OBJECTIONS
A set of objections was filed by the 2nd and 3rd Respondents. I intend to refer to those objections and then simultaneously decide if the pleadings in respect of each ground live up to the requirements of the law in section 208 of the Organic Law on National and Local Level Government Elections (OLNLLGE).
1. First Objection
The first objection is that the first ground of the petition, namely that the 1st Respondent’s name was not on the Common Roll when he nominated, cannot stand as the defect (of not being registered) is cured by Section 64 of the OLNLLGE. I cannot imagine just what curative effects the mere mention of an OLNLLGE provision can have on a major, albeit alleged, ground challenging an election result, particularity relating to the eligibility of the winner to nominate in the first place, but I do think the objection seems to be needless and misplaced. Section 64 of the OLNLLGE reads:
64. Incorrect enrolment.
Where a person whose name has been placed on the Roll for an electorate is not entitled to enrol for that electorate and that person secured enrolment under a claim in which he made a false statement, the Returning Officer may, at any time between the date of the issue of the writ for an election for that electorate and before the end of the polling period for that election, remove the name of that person from that Roll.
I am sure the 1st Respondent would raise an appropriate defence of some sort under this provision later. For current purposes, as the ground stands pleaded, there is minimum discloser by way of facts. It is said “Mr. Iava Ivan Geita was not legally registered on the Kira Kira common roll used in the 2008 LLG council [elections] which automatically disqualifies him to contest the Kira Kira Council seat, thus meaning his election is null and void...” In the circumstances, especially given the nature of the ground pleaded, the minimum disclosed is sufficient compliance with the law. I find no merits in the Respondents’ first objection to the first ground in the petition.
2. Second Objection
The second objection alleges fault with the Petitioner’s second ground in the petition, which is that “There was inconsistency in the counting process and believe that the Electoral Officials conducting the counting process were not in control thereby the elimination process was not done properly and thereby would like a full recount to be instituted.”
The Petitioner had said that there were inconsistencies in the counting process. So what were those inconsistencies? That is what section 208 (a) of the OLNLLGE requires him to state. The Petitioner needed to state the facts that constituted the inconsistencies. He failed to do that. That naturally renders the ground incompetent. Needless to say there is merit in this second objection.
Ergo I dismiss the Petitioner’s second ground for being incompetent.
3. Third Objection
The third cause for objection is the Petitioner’s third and last ground for seeking invalidation of the election results. The Petitioner had stated in his petition that “...laws governing the representation and scrutineers were violated during the counting process as there were four (4) scrutineers within the enclosed perimeter of the counting area...” The Petitioner stated the identities of those four persons, who he said were all close relatives of the 1st Respondent.
The Petitioner says laws were violated but he does not refer to or state those laws. I presume the Petitioner is here referring to a provision of the OLNLLGE that says only one scrutineer per candidate is permitted in the counting area. Nevertheless the Petitioner must disclose more facts to make this ground viable. He must say how the counting was affected. He must state what the 1st Respondent’s scrutineers did or did not do. A finding that more than one scrutineer for the 1st Respondent was fielded within the counting area will not, of itself, invalidate the results. Therefore the Petitioner needs to say how double fielding of scrutineers affected the counting outcome.
Section 208 (a) does not presupposes that things would be left to the imagination. It says plainly that “a petition shall set out the facts relied on to invalidate the election or return”. A Petitioner has no right to think, for instance, that the Court will accept that since there was more than one scrutineer for a winner at the counting area, something unlawful must have happened to cause a desired outcome in the counting. It is a requirement of the law that the Petitioner states what he thinks happened. This is so that the issues for trial on that ground will be clear from the outset.
For these reasons I also dismiss the Petitioner’s third ground for being incompetent.
4. Fourth Objection
The Respondents say that the petition has not been properly or at all attested by two witnesses, which is a failure to comply with the requirements of section 208 (d) of the OLNLLGE. It is submitted that the non compliance therefore renders the petition incompetent.
The Respondents say there are incurable failures in relation to the requirement of section 208 (d) and they urged the Court to find this petition incompetent. Firstly the two witnesses, who purportedly attested to the petition, did not sign upon the petition proper but they filed Statutory Declarations instead. The two Statutory Declarations also contain evidentiary matters in the body of the documents, quite obviously intended to be used for the purposes of the petition. The Statutory Declarations were filed on the same day.
These declarations are of course standard Court Registry generated forms. There are otherwise no perceptible errors in the way these forms have been filled out. However in the space allocated in the form for the attesting witnesses to state their occupation, one of them, Kairi Kaivira, stated “SCRUTINEER” and the other, Isaiah Lavari, stated his occupation as “COMMITTEE MEMBER”.
Given this scenario, the Respondents say the petition has not been attested by two witnesses as required by law. They therefore say that even if the Statutory Declarations are accepted as serving the purposes of attestation, nevertheless the attestations are bad for the witnesses’ failure to disclose their respective occupations, thereby rendering the purported attestations incompetent.
The first issue raised by the fourth objection is whether the requirement of section 208 (d) of the OLNLLGE is restricted to attestation upon the body of the petition itself and not outside of it. That means the Court must decide if Statutory Declarations are acceptable attestation. I wish to address this first issue first.
Section 208 (d) requires a petition to be “be attested by two witnesses whose occupations and addresses are stated”.
The general law on the mandatory requirements is as settled in the case of Biri -v- Ninkama (SC235). The Supreme Court said in that case that “an electoral petition disputing the validity of an election addressed to the National Court [read District Court, section 287(2)(d)] and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.”
In that case (supra) the Supreme Court had to answer two questions posed by the National Court in a Reference to it pursuant to section 18 (2) of the Constitution. These questions arose in the course of the hearing of a disputed election petition in the National Court. One of the questions of law was: “To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with s. 208 of that law.” This is the question that elicited the ruling cited above.
It was not within the scope of that Referral for the Supreme Court to also say if it is proper for witnesses to attest a petition outside of the petition document itself. More over, a cursory search of the cases on my part, reveal no precedents, both National and Supreme Court that may have addressed this factual issue.
Nevertheless I intend to decide this issue, to thereby rule on the current application, by applying the law in the way I understand the law to be. It has occurred to me that there maybe a question in this for a possible referral to the Supreme Court. However if such a referral will result in the adjournment of this petition for an indeterminate period of time, I do not think it serves the best interests of the parties. In any case the parties are at liberty to consider their options after the issue is decided by this Court, depending on which of them is adversely affected by the ruling.
That said, where witnesses have not signed on the body of the petition document itself and there is purported attestation outside of it, I think it is possible to say if the attestation is a conscious and deliberate act of compliance with the requirement of law, or whether the attestation is by default or ‘accidental’. For instance, attestation by default may occur where two witnesses file affidavit evidence at the time the petition is filed, for other purposes, but the affidavits contain all the requirements of section 208(d). In this instant case though, I think the witnesses’ fully intended to comply with attestation requirements.
In my view, where the required details of attestation are present, whether upon the body of the petition or outside of it, it will suffice that the purposes for attestation are served. I say this because it is not a requirement of section 208 (d) that attestation is strictly upon the body of the petition. This provision merely requires a petition to be “be attested by two witnesses whose occupations and addresses are stated”. In my view, there is substantial compliance with attestation requirements if, at the time of filing of the petition, or at anytime within 40 days from thence or in any event before the expiration of the period allowed for amendment, an affidavit or Statutory Declaration or other instrument on oath is filed by two witnesses whose name, address and occupation are stated upon such an instrument. The genuineness of a petition can be attested to by an affidavit even if it is not purposely filed as an attestation but nevertheless the details required for proper attestation are disclosed.
In a similar situation, whilst deciding on the purpose of the address requirement in section 208 (d) Sheehan J said in Agonia v Karo [1992] PNGLR 463:
“The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located.” (at page 465)
I think, in this case, the Petitioner intended to comply with the requirement for attestation. He thought the best way to secure attestation was to have two witnesses file Statutory Declarations. As I alluded to above, the witnesses filed their declarations on the same day the petition was filed. Therefore I must accept that the Statutory Declarations dated 20th June 2008 are purported attestations within the meaning of section 208 (d) of the OLNLLGE. I hold that there was a deliberate attempt at substantially complying with the requirements of that law. Nevertheless the issue of whether or not there is proper attestation is far from resolved.
The Respondents submit that even if the Statutory Declarations are to be considered as serving the requirements for attestation, a vital feature of attestation, which is discloser of the attesting witnesses’ occupations, is not stated. They say that this failure renders the two witnesses’ attestations incomplete and defective and it is a failure to comply with mandatory requirements in section 208 (d).
I should say that it cannot be disputed by anyone, including the petitioner, that the attesting witnesses did not disclose their respective occupations, even though they did state their names and addresses. To my mind this failure is fatal for this petition.
Ironically though the Petitioner himself also filed a standard Court Registry generated Statutory Declaration on the same day as did
his attesting witnesses. The Petitioner correctly stated his address by stating a Post Office box number and, in my view, correctly
described and disclosed his occupation as a “Sales Supervisor”. If only his witnesses had disclosed their occupations
as he did. For instance, even if they do not have salaried employment, the witnesses could comply with the law by saying whether
they are “fisherman” or “subsistence farmer” or “pastor” or “village court officer”
or “PMV driver” or whatever that describes how they earn their living.
Mr. Miva has not attempted to address the Court on the adequacy or otherwise of the attesting witnesses describing themselves as either
a “committee member” or a “scrutineer”. Trying to sell the idea that these words are descriptive of the respective
witnesses’ day jobs is a hard sell so I would not blame Mr. Miva for not even trying. In the end though, as I said previously
in court, it is a case of whether all the boxes are ticked, so to speak. It is a case of whether or not the requirement for address
and occupation are either disclosed or are not. As it seems the address, in as much as a village name is given, is disclosed. Unfortunately
the occupation part is wrongly stated by both witnesses. I repeat; that failure is fatal for this petition.
People may have difficulty understanding why relatively insignificant details will have to determine the fate of a election petition, particularly under circumstances where the winner’s eligibility to nominate and contest in the election in the first place seems to be suspect indeed. Nevertheless the need to disclose an attesting witnesses’ occupation is a mandatory requirement of law, one that will make a difference as to whether an election petition goes to the next phase or it falls. In this instance this petition will fall.
APPLICATION OF SECTION 217 OF THE OLNLLGE
Mr. Miva submitted that there is wide scope in section 217 of the OLNLLGE to excuse defects like non discloser of witness occupations.
“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.”
I will repeat this: The requirements of section 208, including that of subsection (d), are mandatory requirements of constitutional law.
I need to cite an excerpt of a judgment by Injia J (as he then was) in Albert Karo -v- Carol Kidu (N1626). It succinctly summaries the pivotal requirements of the relevant provisions of the OLNLLGE that are in issue in the instant competency applications. The Deputy Chief Justice was dealing with this same issue, of the scope and application of section 217 of the OLNLLGE, in the context of a similar set of objections on competency that were before him.
“The Supreme Court in Biri v Ninkama, decided that an “electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to S. 206 of the Organic Law on National Elections must strictly comply with each and every requirement of S. 208 of that Law” (at p. 346, underlining is mine). At p. 345, the Supreme Court unanimously decided that “all the requirements in S. 208 and 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 proceedings unless S. 208 and S. 209 are complied with. If “a petition does not comply with all the requirements of S. 208, then there can be no proceedings on the petition because of S. 210” (at p. 345). The application of S. 217 is “only relevant when the National Court determines the merits of the case and when dealing with evidence before it as relevant to the merits” (at p. 346), that is, when the substantive petition is heard. Section 217 does not apply at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of S. 208.” (Stress added)
Albert Karo’s case (supra) is, for this instant Court, binding precedent. The clarity of its verdict is such that I cannot do more than cite it. All I can say is that the petitioner’s reliance upon any perceived laxity in section 217 for the purposes of this competency application is misplaced. Section 217 of the OLNLLGE does not apply during objection to competency hearings.
For the want of an appropriate closing remark, particularly when it seems that had this matter proceeded to the next phase, there would have been serious cause for trial on the issue of the 1st Respondent’s eligibility to nominate and contest the Kira Kira Council Ward; I feel compelled to repeat what I have said in other similar rulings:
The right to vote and stand for elective public office is a right bestowed by law, namely the Constitution, to those eligible to participate. As to who is eligible is defined by law. Just how that right may be exercised is prescribed by law. As to who, how, when and where election results can be challenged is prescribed by the same constitutional laws that grant the right to vote and contest elections or indeed challenge election results. These rights are neither customary nor hereditary.
Those who enjoy the privileges granted by law must also adhere to the things the law requires of them. When it comes to matters like election dispute cases, people must get every mandatory requirement of the law right. It would seem to make no difference whether people are villagers or city dwellers, whether they are educated or unlearned, or indeed whether they are simple or complicated people. The application of the legal regime that regulates these processes applies without distinction or discrimination, unless of course the distinction or discrimination is a matter of the legal regime itself.
In the end I declare that this petition is bad in that the respective attesting witnesses have not disclosed their occupations. Their failure offends the mandatory requirements in section 208 (d) of the OLNLLGE. Ergo I must dismiss this petition as being incompetent.
COSTS
Awarding cost is a discretionary relief. That being so, I repeat that had this matter proceeded to the next level; there would have been a serious issue for trial on the issue of the 1st Respondent’s eligibility to nominate for the Kira Kira Ward election. That has been prevented from happening by a technical, albeit mandatory, requirement of law.
In the circumstances it is overly unfair to allow the Petitioner to bear costs. Consequently I order that each party bear their own costs.
______________________________________________________
Legal Impact Lawyers for the Petitioner
Tuva & Associate Lawyers for the 1st Respondent
Parua Lawyers for the 2nd & 3rd Respondents
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