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Sohia v Semoso [2016] PGNC 177; N6365 (28 July 2016)

N6365

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 02 OF 2015

IN THE MATTER OF THE BOUGAINVILLE ELECTIONS ACT, 2007 AND IN THE MATTER OF DISPUTED RETURNS FOR TSITALATO CONSTITUENCY

BETWEEN

COSMOS SOHIA
Petitioner

AND

FIDELIS SEMOSO
First Respondent

AND

GEORGE MANU in his capacity as the Acting Electoral Commissioner for the Office of Bougainville Electoral Commission
Second Respondent

AND

THE BOUGAINVILLE ELECTORAL COMMISSION
Third Respondent

Waigani: Makail, J
2016: 27^th & 28^th July

ELECTION PETITION – PRACTICE & PROCEDURE – Autonomous Region of Bougainville Election – Application to dismiss – Petition incompetent – Grounds of – Pleading of wrong jurisdiction basis – Pleading of Bougainville Constitution – Bougainville elections governed under Bougainville Elections Act, 2007 – Bougainville Elections Act, 2007 – Sections 209 (1) (k) & 2 – National Court Election Petition Rules, 2002 (as amended) – Rules 18

Cases cited:

Jacob Kumbu v. Nicholas Mann & Ors (2012) N4746
Mathias Ijape v. Bire Kimisopa (2003) N2344
Robin Aegaiya v. Gari Baki & The State (2009) N3693
Steven Nining v. Dr. Nicholas Mann & Ors (2013) N5338

Counsel:

Mr. N. Yalo, for Petitioner
Mr. P. Mawa, for First Respondent
Ms. H. Masiria, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS PETITION

28^th July, 2016

1. MAKAIL, J: There is no dispute that the petition was commenced pursuant to the provisions of the Constitution of the Autonomous Region of Bougainville, 2004 (“Bougainville Constitution”) and not the Bougainville Elections Act, 2007 (“Bougainville Act”) and has progressed this far.

2. There is also no dispute that the applicable law conferring jurisdiction on the National Court to hear a petition disputing an election of a candidate or result of an election arising from Autonomous Region of Bougainville (“ARB”) in 2015 is the Bougainville Act.

3. On the face of it, the reference to either law seemed quite perfect and needed no debate and the insistence by the Respondents to make a distinction was quite unnecessary. However, on a second glance, the true question which forms the basis of the objection to the competency of the petition and in turn its dismissal is not whether one law can be substituted by another or referred to interchangeably but whether the reference to the incorrect law is a significant defect, having the effect of rendering the petition incompetent.

4. It was argued in support of the real issue that it does. The counter argument by the Petitioner that given that the provisions of the Bougainville Constitution and the corresponding provisions of the Bougainville Act are not too dissimilar and any claim of prejudice by the Respondents is without merit can be disposed of at once because the Bougainville Constitution and the Bougainville Act are two different laws enacted by the ARB House of Representatives: see Section 65 of the Bougainville Constitution. The former applies to the first general election of the President and members of the ARB: see Schedule 10.1 (1) and Section 14 of the Bougainville Constitution and the latter applies to subsequent general elections generally: see Section 29 of the Bougainville Act.

5. The case under consideration arose from the general election subsequent to the first general election and the concession by the Petitioner that the applicable law was the Bougainville Act put it beyond argument that the petition should be based on that law. It renders the proposition advanced by the Petitioner that pleading a wrong law or non-existent law rendered the petition defective but not a nullity based on the cases of Mathias Ijape v. Bire Kimisopa (2003) N2344; Robin Aegaiya v. Gari Baki & The State (2009) N3693; Jacob Kumbu v. Nicholas Mann & Ors (2012) N4746 and Steven Nining v. Dr. Nicholas Mann & Ors (2013) N5338 quite unnecessary.
However, that proposition must be distinguished. In the first cited case, the Court struck out a paragraph of the petition which pleaded provisions applicable to Local-level Governments Elections and not provisions of the Organic Law on National and Local-level Government Elections. In this instance, the entire petition made reference to or pleaded the Bougainville Constitution. Given this, striking out the parts of the petition that made reference to or pleaded the Bougainville Constitution will result in the petition lacking the jurisdictional foundation.

7. The other three cited cases were judicial review applications. They are irrelevant because the consideration was based on the disciplinary charges laid against the Plaintiffs by the relevant disciplinary body based on laws that were non-existent. They had been repealed. In this instance, as explained, both laws are current, one applicable to first general election and the other, subsequent general elections generally.

8. In my view, the requirement to plead the law which confers jurisdiction on the National Court to hear a petition is not a mere formality or a routine exercise, but critical to the competency of the petition. For, before the Court can exercise jurisdiction, there must be a source which it derives its power and it must be spelt out in the pleading in the petition.

9. Where a wrong law is pleaded, in this instance, the Court would lack jurisdiction and such defect which is apparent on the face of the petition cannot be described as trivial or minor. In my view, it is a significant defect. The Court would be proceeding on a petition which does not plead the correct jurisdictional basis of the Court’s power to hear it. The consequence is the petition is a nullity.

10. The power of the Court to dismiss a petition under Section 209 (1) (k) & (2) of the Bougainville Elections Act 2007, Rule 18 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”) and Section 155 (4) of the Constitution is discretionary. It is sufficient for the present purpose that the power to dismiss the petition can be exercised under the Bougainville Act and Rule 18 of the EP Rules.

11. The question of jurisdiction and its invocation raised in the form of an objection is fundamental to the exercise of power by the Court and overrides any argument of abuse of process, even when the question of competency of the petition is raised multiple times and at different times of the proceedings.

12. The Respondents sought the indulgence of the Court pursuant to the power conferred under Bougainville Act and Rule 18 of the EP Rules. It is accordingly, granted. The petition, having pleaded the wrong law as the jurisdictional basis for the Court to exercise power, is incompetent and dismissed. The Petitioner shall pay the costs of the petition, to be taxed, if not agreed. The security deposit of K2, 000.00 held by the Registrar shall be paid to the Respondents in equal shares towards meeting their legal costs.

Ruling and Orders accordingly,
_________________________________________________________

Nemo Yalo Lawyers: Lawyers for the Petitioner
Mawa Lawyers: Lawyers for the First Respondent
Fairfax Legal Lawyers: Lawyers for the Second and Third Respondents