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Genaboro v Kurivau [2007] PGNC 40; N3140 (30 May 2007)

N3140

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 273 OF 2007

BETWEEN:

JAMES MOBIE GENABORO
Applicant

AND:

KUSINGEL KURIVAU
as the RETURNING OFFICER FOR DAULO OPEN ELECTORATE
First Defendant

AND:

ALWYN JIMMY
as the EASTERN HIGHLANDS PROVINCIAL ELECTIONS MANAGER
Second Defendant

AND:

ANDREW TRAWEN
as the ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Defendant

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Salika, J
2007: 30 May

NATIONAL ELECTIONS – Nomination for Elections – Nomination for election outside of electorates he wishes to contest in – Organic Law on National and Local Level Government Elections – Sections 85 and 86 of Organic Law.

Counsel

Mr N Saroa, for the Plaintiff
Mr A Kongri, for the Defendants

30 May, 2007

Originating Summons

1. SALIKA J: By its Originating Summons filed on 21 May 2007, the Plaintiffs seeks the following orders:-

(a) An order that the Plaintiff be deemed to have been duly nominated on 10 May 2007 when he forwarded his Nomination form 23 and Bank Receipt of K1000.00 payment to the First Defendant by way of facsimile on 10 May 2007 at 12.47 pm.
(b) An order that the First Defendant include the Plaintiff’s name, James Mobie Genaboro in the final list of nominations as Candidate for the Daulo Open Seat, in the National Elections.
(c) The Defendants pay the Plaintiff’s costs of the proceedings.
(d) Such further or other orders this Honourable Court deems appropriate.
(e) Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

Background:

2. The background to the matter are that the Electoral Commissioner first announced and published for the public information the principal election dates for the 2007 General Elections in October 2006. He has repeatedly announced and published the same since then. The principle election date announced and published are:-

(a) Issue of Writs - 04 May 2007
(b) Commencement of nominations – 04 May 2007
(c) Close of Nomination – 10 May 2007
(d) Polling Period – 30 June – 10 July 2007
(e) Counting of votes – 10 July – 30 July 2007
(f) Return of Writs – 30 July 2007

Facts

3. The facts relevant to the matter are that on 9 May 2007 the plaintiff who was an intending candidate for the Daulo Open Seat, in the Eastern Highlands Province attended at the head office of the Electoral Commission in Port Moresby and inquired about the relevant nomination forms. An officer who attended to him gave a nomination form (Form 23) and an original bank deposit slip.

4. The officer told the plaintiff that he would not need to complete another form or document.

5. On 10 May, 2007 at about 9.00 am plaintiff and his lawyer Philip Wariniki went to the Electoral Office in Boroko, Port Moresby and saw a Mr Boki Raga to ask him if the Electoral Commission Head office was still accepting nominations from candidates for electorates outside the National Capital District.

6. Mr Raga advised the plaintiff that, they did not accept any further nominations of candidates for electorates outside of NCD, and advised him to go to the Electorate he wanted to contest in, to nominate.

7. At about 9.30 am the plaintiff was at the Jacksons Airport to try and get on an aircraft to fly to Goroka. By that time the flight was closed for further passenger acceptance and he tried in vain to get on board.

8. The next best thing was to get on a flight to Lae and attempt to get to Goroka by road before 4.00 pm on the last day of nomination. Even if he did not have a punctured tyre, he was never going to make it to Goroka in the 2 hours he had.

9. As it turned out the plaintiff arrived in Lae at about 2.00pm and hired a vehicle to go to Goroka. The plaintiff had a punctured tyre at Yonki and never made it to Goroka that day in time to nominate.

10. Before he left for Lae the plaintiff faxed a letter, together with his nomination form (Form 23) and a copy of the official deposit slip to the Electoral Office in Goroka.

11. He assumed that these would be sufficient for him to nominate for the Daulo Open seat.

12. As it turned out the Electoral Commission refused his nomination because he was out of time. For this reason the plaintiff has come to this court to seek declaration and orders that he had properly nominated or if he did not, then it is because the Electoral Commission failed to inform him of the correct procedure to nominate.

Issues:

13. The issues is whether the plaintiff nominated in accordance with the relevant provisions of the Organic Law on National and Local Level Government Elections (Organic Law).

The Law

14. The law governing nominations in the National Elections are Sections 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 96 of the Organic Law on National and Local Level Government Elections (Organic Law). The provisions that are relevant for the purpose of these proceedings are Sections 85 and 86 of the Organic Law.

15. Section 85 reads:

85: MODE OF NOMINATION.

A nomination shall be in the prescribed form and shall –

(a) name the candidate, his place of residence and occupation; and

(ba) state the political party that endorses the candidate or, if no political party endorses the candidate, state the word "independent"; and

(b) set out the qualifications by virtue of which he is qualified for nomination; and
(c) be witnessed by a person to whom the candidate is personally known.

16. This provision makes it clear as to the type of form to be used for nomination and what must be stated in the form.

17. In this case the Returning Officer for Daulo Open Seat deposed in his affidavit that the plaintiff’s nomination form that was faxed to him, did not show who witnessed his nomination.

18. Annexure B2 of the plaintiff’s affidavit does show that the spaces for the witnesses was not signed or filled which is required under s.85 of the Organic Law. The nomination form is therefore not in the prescribed form.

19. Section 86 of the Organic Law reads:

86: TO WHOM NOMINATION MADE.

(1) Nominations of members may be made to the Returning Officer for the electorate for which the election is to be held, to the Provincial Returning Officer of the province in which the Open electorate is located, to an Assistant Returning Officer for that electorate, or to a person thereunto authorized by the Electoral Commission

(2) Nominations may be made at any time after the issue of the writ and –

• (a) in the case of a nomination made to the Returning Officer – before the hour of nomination; and
• (b) in the case of a nomination made –
  
  • (i) to an Assistant Returning Officer or other person referred to in Subsection (1); or
  • (ii) in respect of a person who is not enrolled for the electorate, before the commencement of the period of 48 hours immediately preceding the hour of nomination.
    

(3) Where a nomination is made to an Assistant Returning Officer or other persons referred to in Subsection (1), he shall immediately notify the Returning Officer by electronic advice, in the prescribed form, of the details of the nomination and deposit and forward the nomination to the Returning Officer.

20. This provision allows a candidate to nominate at another location other than, at the place or electorate he wishes to contest in. This means a candidate may nominate in another electorate. He need not be present in person, at the Electorate he wishes to nominate for. For example a person wanting to nominate for the South Fly Open Seat in the Western Province may nominate in Port Moresby instead. He need not to go to Daru to nominate in person. There are conditions to this method of nomination.

21. Those conditions are contained in s.86(2) and (3) of the Organic Law.

22. In so far as this plaintiff is concerned his nomination would be covered under s.86(2)(ii).

23. If he was to nominate in Port Moresby for the Daulo Open Seat, he must nominate to a person authorized by the Electoral Commission (s.86(1)) to accept his nomination. In this case it was Mr Morea Veri in Port Moresby who was authorized by the Electoral Commission to accept such nominations. The plaintiff must nominate before Morea Veri who will in turn fill in Form 25 and send it by fax together with his nomination form and the deposit slip to the Returning Officer for Dualo Open Seat.

24. In relation to a nomination where the person is not enrolled for the electorate, the nomination must be effected 48 hours before the hour of nomination.

25. In this case the hour of nomination was 4.00 pm, 10 May 2007.

26. Therefore anyone wanting to nominate in Port Moresby for the Daulo Open Seat must nominate before 4.00 pm on 8 May 2007, that is 2 clear days before 4.00 pm, 10 May 2007. Not only that, but he must nominate before Morea Veri who was specifically appointed by the Electoral Commission to receive such nominations.

27. Anyone nominating for the Daulo Open Seat after 4.00 pm on 8 May 2007 must nominate to the Returning Officer for Daulo Open Seat before 4.00 pm on 10 May 2007.

28. That in my respectful opinion appears to be the legislative scheme for persons wishing to nominate in another location other than to the Returning Officer of the electorate he intends to contest in.

Plaintiff’s Nomination

29. If that is the scheme for nomination, has the plaintiff complied with the scheme provided by law? I assume the plaintiff was in Port Moresby from 4 May 2007 to 10 May 2007. This being the nomination period. If he had planned to contest this year’s National Election he ought to have made it his business to inquire of the Electoral Commission how and where he was to nominate, and find out all the relevant information he needed to know to be a candidate.

30. He left all this to 9 May 2007 when he went to the Electoral Office at Boroko and enquired about the relevant nomination forms he needed to complete. The Plaintiff was given the relevant nomination form, that is Form 23 and an official bank deposit slip. It is to be noted that at this point in time, Form 23 and the deposit slip, were the only appropriate forms. Form 25 was no longer relevant to his cause as the time for the use of that form had expired at 4.00 pm, 8 May 2007.

31. He could not longer nominate in Port Moresby on 9 May 2007. There is no evidence that he informed the Officer Ms Carrie Billie that he wanted to nominate for the Daulo Open Seat in the Eastern Highlands Province on 9 May 2007. This was important because if he did he might have been told that he could not nominate in Port Moresby at that point in time. This might have made him to prepare to travel to Goroka that afternoon or early on Thursday morning before 4.00 pm that day as that was the last day for nomination.

32. On 10 May 2007, the final day for nomination he paid the K1000.00 into the Electoral Commission Account at the Bank South Pacific in Boroko.

33. At about 9.00 am the plaintiff and his lawyer went to the Electoral Commission office at Boroko to enquire as to whether the Electoral Commission was still accepting nominations from candidates for electorates outside of National Capital District. It was then that he and his lawyer found out that the Commission was no longer accepting candidates to nominate for electorates outside of the NCD. He was advised to nominate at the electorate.

34. At this juncture it must be pointed out that, this was not the Electoral Commission’s choice, rather it is a requirement by law (s.86(2)(b)(ii)).

35. The plaintiff and his lawyer sent by fax the plaintiff’s nomination form and the deposit slip to the Electoral Office in Goroka. The faxed documents did reach the Electoral Office in Goroka but the documents were not accepted by the Returning Officer, as they were not accompanied by a Form 25.

36. Did the plaintiff nominate? The answer is no. He did not nominate in accordance with the Organic Law.

Nomination of Plaintiff Flawed.

37. The Returning Officer in my respectful view was correct in refusing to accept the plaintiff’s nomination form for the following reasons:-

(a) the plaintiff was not physically present to nominate before the Returning Officer on Thursday at 4.00 pm 10 May 2007.

(b) The law does not allow someone else to deliver to the Returning Officer a nomination form completed by an intending candidate as happened in this case where, Wilson Usi delivered a faxed copy of the nomination form to the Returning Officer.

(c) It was not proper for the plaintiff to fax his nomination form to the Returning Officer himself.

(d) The nomination form was not in the prescribed form as it was not witnessed by a person known to the plaintiff.

(e) The plaintiff went to the Returning Officer on 11 May 2007 to physically nominate by which time it was already too late as by the time for nomination closed Thursday, 4.00 pm 10 May 2007.

38. The orders of the court are that the Orders sought by the plaintiff are refused. The application is dismissed and costs are awarded to the Defendants.
________________________________________________

Nelson Lawyers: Lawyers for the Plaintiff
Nonggorr Lawyers: Lawyers for the Defendants