N7214

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 43 OF 2017

                           IN THE MATTER OF THE ORGANIC LAW ON 
                         NATIONAL AND LOCAL LEVEL GOVERNMENT 
                        ELECTIONS AND IN THE MATTER OF A DISPUTED 
                     RETURN FOR THE NORTH WAGHI OPEN ELECTORATE 
                           IN THE 2017 NATIONAL GENERAL ELECTIONS

BETWEEN:
MOND PALME
Petitioner

AND:
DR. FABIAN POK
First Respondent

AND:
THE ELECTORAL COMMISSION
 OF PAPUA NEW GUINEA
Second Respondent

		       Waigani:  Pitpit J
2018:  8 & 20 March

ELECTION PETITION – Objections to competency – non- compliance with Rule 4 (Form 1) National Court Election Petition Rules 2017- Organic Law on National and Local Level Government Elections s. 212 (2) (OLNLGE) – whether non-compliance with Rule 4 Form 1 is a requisite for purposes of s.208 – to warrant or justify preclusion under s. 210 – whether s. 217 is available and applicable in so far as non- compliance with Form 1 of the National Court Petition Rules 2017. 

Held:

1.	By virtue of the Rules being the legal basis for the Petition, Sections 208 of the Organic Law on National and Local Level Government Elections does not expressly state that non - compliance with the form of the Petition under Rule 4 (Form 1) of the National Court Petition Rules 2017, as one of the requisites set out under s. 208. The indirect implications for non – compliance are no doubt apparent and obvious. The fact that the form as prescribed under the Rules is to be called the “Petition” (Originating Documentary Process) is significant. That it would contain all the necessary requisites that are listed under s 208 and other related provisions that would seek to complement s. 208 to give it the necessary substance or impetus. It is a distinct and very critical requirement for the petitioner to comply with. The fact that this Originating Document is not provided under no other legislations but National Court Petition Rules, 2017 must make the Rules the more significant. Therefore, any one or more instances of non – compliance with any of the requisites under s 208, s. 209 or the supplementary or complementary provisions such as s.212 (2)  must necessarily have implications on the requisites under s.208 and can preclude the petition from progressing further to trial.  This, therefore, makes the Petition Rules 2017 and in particular, the compliance with the form of the petition, very relevant, crucial and critical to the issue of competency.     

2.	Section. 217 had in the recent time, emerged to the fore of the debate, drawing various commentary on its applicability at the competency stage. Whilst, a debate is good and healthy for the development of our local jurisprudence, one must not lose sight of the fact that election petitions like all other form of disputes always has two sides. One makes the allegations, while the other will often then not generally denies and the court is expected to resolve by making a finding based on evidence and the veracity of the allegations. Such exercise usually occurs when considering the substantial merits of the case. Sections 208, 209 and 210 are principally dealing with the foundational or jurisdictional procedure. Compliance is mandatory. There is no space for s. 217 or sentimental speculation by the court. The allegations and determination are yet to be heard and thus, speculative. Justice is blind and does not see or know who is before it so, it has been said. It must not be allowed to be drawn into sentimental speculation of the veracity or otherwise of the grounds of the petition. Caution and restrain must always be exercised so that one is not drawn into the whirl pool in-between where the boundary of where the competency end and where the trial begins is blurry. Section 217 if included, at the competency stage, would in my conviction certainly add to the blurriness of the mix.   

Cases cited

Delba Biri -v- Bill Ninkama [1982] PNGLR 342 
Ginson Goheyu Saonu -v- Bob Dadae [2004] PGSC 12
Holloway -v- Aita Ivarato & Electoral Commission [1988] PNGLR 99
Karo -v- Kidu [1997] PNGLR 28
Mai Dop -v- Wake Goi SC Review (EP) No 1 of 2018
Paru Aihi -v- Sir Moi Avei [2003] 720
Paru Aihi -v- Sir Moi Ave [2003]
Philip Kikala -v- Electoral Commission and Nixon Koeka Mangape [2013] PGSC 48

Counsel:

J. Kolkia, for the Petitioner
P. Ame, for the First Respondent
A. Kongri,  for the Second Respondent

20th March, 2018

1.    PITPIT J:  Following the declaration of the Winner of the North Waghi Open Electorate on 25th July 2017, the Petitioner Mond Palme had on the 1st of September 2017, filed a purported Petition challenging the win of the First Respondent Dr Fabian Pok.

2.   In his purported Petition, the Petitioner had challenged the declaration of the First Respondent as the duly elected member for the North Waghi Open Electorate on 4 grounds. These are:  

(i)	Bribery – It is alleged that the First Respondent had on two separate occasions at Banz, Jiwaka Province on the 27th of May 2017 and again on 14th of June 2017 had committed bribery. 

(ii)	Errors and Omissions committed by the Presiding Officers - That during the polling at the Singirok Army Barracks at Kerowil in Jiwaka Province, polling for North Waghi Open commenced on 4th July 2017, in respect to the Ballot boxes for Kendu 1, Kendu 2, Bolba 1, Bolba 2, Tolu 1 and Tolu 2 polling areas. These separate polling areas were centralized to one (1) polling area at Singirok Army Barracks at Kerowil, where polling took place on the 4th July 2017.

(iii)	Errors and Omissions committed by the Electoral Comissioner, Patalias Gamato –That in directing the counting of the Ballot boxes from Kendu 1, Kendu 2, Bolba 1, Bolba 2,  Tolu 1 and Tolu 2, despite objections being raised and in light of the evidence which the Electoral Commissioners had accepted, which showed that the voting was in fact hijacked.  

(iv)	Illegal practices committed by the supporters and coordinators of the First Respondent – That during polling at Singirok Army Barracks where the polling for the six (6) different polling places namely Kendu 1, Kendu 2, Bolba 1, Bolba 2, Tolu 1 and Tolu 2 took place after these six (6) polling areas were centralized to one polling area at Singirok Army Barracks for the 2017 National Election. 

3.   All of the above grounds, the Petitioner intended to prove should the petition proceed to trial.

4.   The Respondents on the other hand, have filed on the 26th of September 2017 and 13th of October 2017 their respective Objections to Competency challenging the competency of the purported petition based on sections 208 and have invited this court to prevent the purported petition from proceeding any further pursuant to s 210 of the Organic Law on National and Local-Level Government Elections (hereafter the “Organic Law”).

5.    The relevant law which the Respondents are relying on in their challenges against the Petitioner’s purported petitions are; Sections 208, 209 and 210 of the “Organic Law.”  Being the three key provisions that could deny a Petitioner’s right to progress his or her grievances towards trial and therefore, worthy of a closer look at what are set out there under as follows-

Section 208. Requisites of Petition- states:
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)

Section 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.

Section 210. No proceedings unless requisites complied with.

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

6.      The law is clearly expressed as can be seen under s 210 above. Any non- compliance with the requisites of the petition as set out under Sections 208 and 209 of the Organic Law precludes the Petition from going further to trial.  The Supreme court in seminal case of Delba Biri –v- Bill Ninkama [1982] PNGLR 342 had also confirmed the position of the law. In page 346 when answering question 1 of the two questions referred to it, had stated:

“We would answer Question 1 as follows: 

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 comply strictly with each and every requirement of s.208 of that Law”  (underlining is mine). Clearly emphasising on strict compliance.

7.      Again in the case of Jimson Sauk -v- Don Pomb Polye and Electoral Commission of Papua New Guinea [2004] PGSC 13 the Supreme Court once again, reiterated this proposition when it made the following observation with regard to Section 210 when it said: 

“As if the mandatory nature of the preceding two provisions were not emphatic enough, the Organic Law drives home the jurisdictional point by enacting s 210”. 

And it did not stop there, it went further to emphasise and thus, fortified this point by adding:

“Nothing could be clearer in its intent then this”. 
    
8.      The ambit or extent of such lack of adherence has been established and settled by the law itself and by the Supreme Court in the land mark case of Delba Biri -v- Bill Ninkama [1982] PNGLR 342 and if I may add all the cases there after.  The position has not change: 

“The requisites in s. 208 and s. 209 are conditional 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.”

9.     The First Respondent had filed a total of 8 grounds of Objections to Competency that are briefly set out as follows:

 (i).  Non- compliance with the National Court Election Petition Rules 2017.
 
(ii). Non- compliance with section 208 (a) of the Organic Law.  The First Respondent 	Objects that the background facts of the petition do not sufficiently state the facts to invalidate the election as required by section 208 (a) of the Organic Law.

(iii).  The First Respondent objects to ground B (1) 1 of the Petition on the basis that the Petition does not plead the material facts. 

(iv). On grounds B (i) 2 The First Respondent objects that the Petition does not plead the material and relevant facts. 

(v). Ground B (2) The First Respondent objects that the Petition does not plead the material and relevant fact. 

(vi). Ground B (3) The First Respondent objects that the petition does not plead the material and relevant facts.  In particular, the number difference between the Petitioner and the First Respondent is not pleaded and it does not plead how the election result would have affected the result of the election.
  
(vii).	Ground B (4) The First Respondent objects that the petition does not plead the material and relevant facts about illegal practices.  

(viii). The Relief – The First Respondent objects that the facts pleaded in the petition does not support the relief sought by the purported Petitioner in the purported petition.

10.    The Second Respondent had filed its objection to competency and from its notice, it would seek to object to the purported Petition on 4 main grounds of the Petition levelled against it on the basis of non-compliance with Section 208 (a ) on the following grounds:    

(i). 	Insufficiency of fact ground B (2) (1) (a) of the Back Ground Facts to the Petition; 

(ii).	Insufficiency of facts on ground B (2) (1) (b) of the purported Petition on Errors and Omissions; 

(iii). 	Insufficiency of facts seeking to void the election result on grounds of Error and Omission; and

(iv). 	The pleading of the proper remedy under the Organic Law.

11.    In this case, I have had the benefit of hearing the counsels make oral submissions as well as being guided by the detailed written submissions on all the grounds of objections to competency and on my evaluation of the grounds of the objections, I have ascertain that the grounds of competency comprised generally of the following main arguments:

1. The non-compliance of the prescribed Petition Form itself; 

2. The insufficiency of the facts pleaded in support of the grounds of the petition and,

 3. The correctness of the remedies being sought.

12.      Having considered the arguments by counsels I have found and concluded that almost all of the grounds of objections raised have implications on the threshold issue of procedural or jurisdictional prohibition. This being the case, I have decided that should I find while going through the grounds of objections and upon being satisfied of one of the grounds of the objections to competency established, then, it is in my opinion, that such would suffice as the decision of the court in deciding whether the Petition is to proceeds to trial or otherwise and, consequently, whether it is necessary for me to decide on the rest of the grounds of objection. Bearing this in mind, I would now commence by looking at the Respondents objections to competency beginning with the First Respondent’s grounds of objection. 

13.      The First Respondent objects to the petition on the basis that the Petition did not comply with Rule 4 Form 1 of the National Court Election Petition Rules 2017.  Rule 4 of the Election Petition Rules 2017 which is titled “Form of Petition” provides clear direction in the following way,     “The petition shall be filed in accordance in Form 1”.   I should at the out- set state that there is no other form of the petition provided anywhere else, except, that formulated pursuant to s.212 and provided under the Election Petition Rules 2017. This is a fact, that makes the Election Petition Rules 2017 very relevant and significant, to the issue of objection to competency. 

14.     The First Respondent had argued that the purported Petition filed by the Petitioner was not filed in accordance with Form 1 of the Rules in the following manner:- 

(i)	That the Petitioner had excluded from the document where it was supposed to be inserted, the word “Petition” in accordance with Form 1, (which is, to be on the top right hand corner, between the ‘EP No. Of 20........’ and the words, “IN THE MATTER OF A DISPUTED RETURN”. That instead, the Petitioner had inserted this elsewhere in the body of the Petition form and as such, is not in strict compliance with the form as provided in the National Court Election Petition Rules of 2017. This, the First Respondent argues is an instance of non – compliance in this case and is clearly an offence against Rule 4 of the National Court Election Petition Rules 2017 and ought to render the petition non –compliant with the requirement of the Rules and thus non existence and incompetent.

(ii)	Further to the above, the First Respondent argues that not only did the Petitioner omitted the word petition to be inserted on the form as stipulated but the petitioner also included matters not allowed by Form 1, the National Court Election Petition Rules 2017 or even s. 208 of the Organic Law. The First Respondent directed the attention of the court to Part A of the Petition titled RELEVANT BACKGROUND FACTS   This part covered 4 pages of the Petition and comprised of 21 paragraphs of general, irrelevant, speculative and convoluted materials not allowed by s.208 of the Organic Law, neither the Rules nor the Form 1 itself. These inclusions are in fact, clear evidence of non – compliance by the Petitioner and ought to render the Petition itself incompetent.

(iii)	In addition to the above, the First Respondent, also drew the attention of the court to the omission or failure by the Petitioner to state, disclose or declare on the Petition when signing the petition (that he was a candidate at the election in dispute or that he was a person who was qualified to vote at the election, in accordance with s.208 (c) of the Organic Law), on the date of which the Petition was signed and at the place at which the Petition was signed. This particular requirement is a separate requirement of the petition to show the veracity of the Petition   

The Rules are made pursuant to Section 184 of the Constitution and Section 212 of the Organic Law to require and allow the set procedure to be followed and if Rule 4 and Form 1 are not strictly complied with, then the Petition is incompetent and it cannot proceed to trial.

Form 1 of the Election Petition Rules clearly provides inter alia that the Petitioner must specify that it is signed by ;

(a)	A candidate at the election in dispute; or
(b)	By a person who was qualified to vote at the election in accordance with Section 208 (c) of the Organic Law 
 
15.     The Petitioner submitted on the other hand, for the court to dismiss this objection rather than to dismiss the Petition merely on the want of Form. He argues that the Court must look at the substantial merits of the case itself. He acknowledged the failure and admits the non-compliance of but strenuously argued that despite such failure and non-compliance, the word petition is not entirely omitted and that it was placed elsewhere on the cover page in bold letters and as such the court should not dismissed the entire petition.

16.     In relation to ground by the First Respondent of the failure or non-compliance by the Petitioner in including matters that were not allowable under the Rules and the Organic law, the petitioner admits that even though Part A, B, C, and D are not consistent with what is in the Rules the entire Petition does clearly set out the facts, the grounds and the relief being sought by the Petitioner. Therefore he submits that this should not warrant the dismissal of the Petition.

17.     With regards to the objection to competency on the signing of the Petition the Petitioner argues that he had signed the Petition in his capacity as the candidate who had contested the North Waghi Open Seat in 2017, National General Election. That on the second page of the Petition (after the cover page) following the address to the National Court of Justice at Waigani, National Capital District, Papua New Guinea, the paragraph that follows thereafter, clearly states that he (Mond Palme) was a candidate at the election, subject to the dispute. 

18.     Furthermore, that as a matter of practice, election Petition are only filed by loosing candidates who have actually contested and lost the said election. He went on to further submit that in fact he has pleaded this fact, elsewhere in his petition that he had contested the North Waghi Open Electorate. He submitted that the court should not dismiss his petition.

19.      He submitted that the objection by the First Respondent relies on Rule 4 (Form of Petition) of the Election Petition Rules 2017, which states that the Petition shall be in accordance with Form 1 which forms the basis of his objection to dismiss the Petition for want of form under Rule 4 of the Election Petition Rules 2017 he urged the Court to take a liberal approach in addressing these issues and be guided by S.217 of the Organic Law on the National and Local Level Government Elections.

20.    Section 217of the Organic Law states: 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. 

21.   He argues that s.217 gives the court the power to take a liberal approach and asked the court to do so as because the courts have done so and have advocated this to be done. He referred to the case of Jimson Sauk- v- Don Pomb Polye (2004) SC769 where the Supreme Court had advocated a more broader and flexible approach in dealing with petitions and more importantly or particularly pleadings in a petition and objections to competency rather than a more restrictive approach in the supreme court decision in Biri –v – Ninkama [1982] PNGLR 342. 

22.  In addition the Petitioner submitted that under Section 9 of the Constitution, the Organic Law, which in this instance, s. 217 of the Organic Law on National and Local Level Government Elections is superior to the Election Petition Rules 2017 and hence, should take precedence. 

23.   Whilst I acknowledged the arguments that the Petitioner has put forward in support of his proposition of taking a liberal approach, I am also mindful of the purpose and the objective of the Rules. The  Rules 2017 were made pursuant to Section 184 of the Constitution and Section 212 (2) of the Organic Law on the National and Local Level Government Elections and Section 8 of the (rules of Court of the National Court) National Court Act and as such, makes the Rules as part of the Organic Law.

24.   The Rule also, had to be accorded its substance and purposes. The Rules were to ensure and give effect to the special rights of the citizens to freely choose their leaders. The leader has been identified and elected by the majority of the voters. The decision of the majority is being challenged by one person or even thousands, but he or she who wishes to challenge the decision of the majority now has the special right to do so through the petition process. He or she must comply with all the requirements. The process of choosing a leader is a very expensive exercise in this country. For, this and the fact that the decision of the majority is being challenged and all other considerations, the petitioner is required to strictly comply with all the requirements under law (Organic Law) and the Rules in order for his or her grievances to be heard.  

25.   Section 217 has correctly been accorded its place by the Supreme Court in Biri –v – Ninkama [1982] PNGLR 342, strict compliance with ss.208, 209 and the complimentary provisions of the law be it, the Organic Law or the Rules. Objectives of the Rules to ensure Standard practices must continue to be pursued until it becomes embedded, to be distracted by sentimental speculations and sway to the liberal approach in the application of S.217 in this particular instance is counter impossible.

26.   I have heard the plea by the Petitioner that I should exercise my discretion under s. 217 of the Organic Law as he had complied substantially with most of the requirements under sections 208 and 209 of the Organic Law and the Rules (Form 1), but I am also very wary of the risks and implications that such would have on the development of our law and practices in this area. I am reminded by the famous saying that goes something like this, “you give a mile and he will take two, you give one inch and he will take two inches” and I have decided that the law as stated in the seminal case of Delba Biri –v- Bill Ninkama [1982] PNGLR 342 and Karo –v- Kidu [1997] PNGLR 28 and others that stands for the proposition that strict compliance with each of the requirements of section 208 of the Organic Law is required. Substantial compliance is not sufficient.   
 
27.   Section 208 has always been regarded as a mandatory provision and Section 210 prohibits any election petition from proceeding any further if it does not comply with Section 208 or 209 of the Organic Law. Form 1 of the Election Petition Rules is meant to compliment, implement and give effect to ensure that there is no busy bodies as was stated in Paru Aihi -v- Sir Moi Avei [2003] 720.  
  
28.   In the seminal case of Delba Biri -v- Bill Ninkama [1982] PNGLR 342, Section 210 is reinforced that if any provisions of Sections 208 or 209 are not complied with, the election petition cannot proceed to trial. 

29.   In the recent case of Mai Dop -v- Wake Goi SC Review (EP) No 1 of 2018, where the Supreme Court in that case was considering the Application for Review where the Petition was dismissed on the basis that it did not comply with Form 1 as provided in the schedule to the Election Petition Rules 2017 as the attestation in the petition was different to that in Form 1. The Supreme Court had held;

 ”For election petitions, the general feel and common emphasis is strict compliance and with the provisions of the Organic Law on National and Local –Level Government Elections and the National Court Election Petition Rules and the Supreme Court Election Petition Review Rules.  It has been said many times over, a challenge to an election result or return is such a serious matter that the Petitioner must in essence be efficient in his or her approach and compliance to ensure his or her petition is properly drafted, filed and prosecuted.  An intending petitioner has that onerous burden in filing and prosecuting his or her petition.  Failure to comply may result in the summary dismissal of the petition, unless good cause is shown for the exercise of Judicial discretion to extend time or waive the rule”. 

30.     The position of law is as stated in the Karo -v- Kidu [1997] PNGLR 28 case, from the head notes the court held that strict compliance with each of the requirements of Section 208 of the Organic Law is required.  Substantial compliance is not sufficient. 

31.     In the present case, I have found that the Petitioner had failed to comply with Form 1 of the National Court Petition Rules 2017 in at least three respects;

(i)	That he had failed to comply with Rule 4 Form 1 of the National Court Petition Rules 2017 when Rule 4 had clearly directed that the Petition shall be filed in accordance with Form 1. Form 1 requires the title of the document PETITION to be inserted between the case number and the words IN THE MATTER OF A DISPUTED RETURNS etc.., and instead, inserted it elsewhere on the body of the Petition which is strictly not in accordance with Rule 4 Form 1 and Section 208 of the Organic Law. 

That he had included on the Petition matters that were not prescribed or allowed as per Rule 4 Form 1 of the National Court Election Petition Rules 2017 and,

That he had failed to state or disclose or declare when signing the Petition that “he was a candidate in the election in dispute” or a person who was qualified to vote at the election, in accordance with Section 208 (c) of the Organic Law ), on the date he or she signed the petition and the place at which the petition is signed as prescribed by Form 1 of the Election Petition Rules 2017 .

32.     I find that when combined, these various instances of failure or non-compliance collectively amounts to such a degree that bring it beyond the exercise of any judicial discretionary parlance except the preclusion in s 210 of the Organic Law.  This being the conclusion of this court, I accordingly uphold the objection to competency of ground number 1 of the First Respondent and as this ground being the foundational threshold ground, I would order the dismissal of the entire Petition accordingly.

33.  The effect of the decision of the court is that there being no petition properly before this court in accordance with the law, it is therefore not necessary to consider the remaining grounds of the objections to Competency by the Respondents.  

ORDER OF THE COURT:

1.	The court upholds ground one of the objection to competency by the First Respondent

2.	The whole Petition is dismissed

3.	The Petitioner shall pay the costs of the First and the Second Respondents to be taxed if not agreed.

4.	The deposit of K5,000.00 paid for the application and held by the Registrar shall be released after agreement by the parties as to costs or taxation (of the costs of the First and the Second Respondents.)

5.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall be forthwith.

J. Kolkia: Lawyers for the Petitioner
Ame Lawyers: Lawyers for the First Respondent
Kongri Lawyers: Lawyers for the Second Respondent