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Dekena v Kuman [2018] PGNC 422; N7472 (12 February 2018)

N7472

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 59 of 2017

IN THE MATTER OF A DISPUTED RETURN
FOR THE GUMINE OPEN ELECTORATE IN
THE 2017 GENERAL ELECTION

BETWEEN:
DAWA LUCAS DEKENA
Petitioner

AND:
NICK KUMAN
First Respondent

AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2018: 29^th January
: 12^th February

Election Petition - Objections to competency

Cases cited:

Menyamya Open Parliamentary Elections: Bourne v. Voeto [1977] PNGLR 298
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Holloway v. Ivarato [1988] PNGLR 99
Agonia v. Karo [1992] PNGLR 463
Application by Herowa Agiwa [1993] PNGLR 136
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28
Charles Luta Miru v. David Basua (1997) N1628
Greg Mongi v. Bernard Vogae & Anor (1997) N1635
Aita Ivarato v. Peti Lafanama [1998] PNGLR 297
Paru Aihi v. Moi Avei (No 2) (2003) SC720
Ludger Mond v. Jeffrey Nape (2003) N2318
Paru Aihi v. Moi Avei (2004) N2523
Gabriel Dusava v. Peter Waranaka (2008) N3367
Sir Arnold Amet v. Peter Yama (2010) SC1064
Apaso Oibotee v. Benny Allen (2013) N5155
Philip Kikala v. Electoral Commission of Papua New Guinea (2013) N4960
Terry Kajona Okeva v. Robert Atiyafa (2013) N4993
Sandy Talita v. Peter Ipatas (2016) SC1603

Counsel:

Mr. D. Yariyari, for the Petitioner
Mr. A. Kongri, for the First Respondent
Mr. J. Ole, for the Second Respondent

12^th February, 2018

1. HARTSHORN J: This is a decision on two objections to the competency of the petition of Dawa Lucas Dekena (petitioner).

2. The petitioner disputes the election of the first respondent, Nick Kuman as the Member for Parliament for the Gumine Open Electorate in the Chimbu Province, in the 2017 General Election, on the grounds that the petitioner submits are: Illegal Polling at Keru Village – acts of undue influence and errors and omissions; Illegal marking of ballot papers – acts of undue influence and the Illegal declaration of the first respondent by the use of an Illegal writ.

3. Both respondents contend that the petition is in breach of s. 208(a) and s.215 Organic Law on National and Local Level Government Elections (Organic Law). The Electoral Commission, the second respondent, also argued that the petition is in breach of s. 208(d) Organic Law.

Preliminary objection concerning the second respondent’s objection to competency

4. The petitioner takes issue with the second respondent being granted leave to file its objection to competency out of time by the Judge Administrator of this court for election petitions on 26^th October 2017. No notice of motion seeking to set aside or vary that order has been filed however and so I do not consider this issue further. I note that the second respondent’s objection to competency was filed within the extended time allowed by the order dated 26^th October 2017.

s. 208(d) Organic Law

5. I consider this ground of objection first as if it is successful it will be determinative: Delba Biri v. Bill Ninkama [1982] PNGLR 342.

Grounds

4. The second respondent submits that the petition does not comply with s.208(d) as the two witnesses who attested to the petition failed to provide their proper occupations. This is because both of their occupations are stated as “self-employed”. Reliance is placed upon the decision of Davani J. in Apaso Oibotee v. Benny Allen (2013) N5155 in which Her Honour stated amongst others that she found the description “self-employed” could be misleading and should not be used to describe a person’s form of employment.

5. Section 208 Organic Law is as follows:

“208. Requisites of petition.

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).”

Consideration

9. As to whether s. 208(d) Organic Law has been complied with, I reproduce the following passage from the Supreme Court decision of Sandy Talita v. Peter Ipatas (2016) SC1603 at [18 and 19]:

“18. Section 208(d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. If a villager, the name of his village and District within the electorate would be sufficient. Where a town address is given, a postal address is sufficient. If a residential address is given, it is useful to state the section and allotment numbers and suburb or settlement. The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.

19. Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. This is a matter of court discretion to be exercised on a quick perusal and assessment of the information then available. See, Paru Aihi v Sir Moi Avei, (2003) SC720; Delba Biri v Bill Ninkama [1982] PNGLR 342; Raymond Agonia v Albert Karo [1992] PNGLR 463; Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151; Albert Karo v Lady Kidu (1997) N1626.”

10. In Application by Herowa Agiwa [1993] PNGLR 136 in an application for a review under s. 155(2)(b) Constitution, on the ‘only’ issue of whether ‘self-employed’ is an adequate description of the occupation of a witness to a Petition, the three member Supreme Court said:

“It is a very minor point which has nothing to do with the merits of the matter. The finding that s. 208 of the Organic Law had been complied with was open to the learned trial Judge and there being a challenge only to that interpretation and finding we are unable to find an important point of law to be determined which has merit.”

11. Then in regard to the occupations that are stated, in Paru Aihi v. Moi Avei (No 2) (2003) SC720, the majority of the Supreme Court said that:

“The term “occupation” simply means one’s trade, profession, business or calling; things or activities one does for a living.”

12. A politician and a leader were stated, amongst others, as examples of “one’s” occupation. Given this description, it is conceivable that “self-employed” could refer to a person’s occupation. I respectfully disagree with Davani J. in this regard. Consequently, the second respondent’s submissions concerning the stated occupations of the witnesses in the petition are rejected.

Requirement to comply with s. 208 (a) Organic Law

13. The next objections that I consider are that the petition is in breach of s.208(a) Organic Law.

14. The facts that are required to be pleaded in a petition have been determined by various National and Supreme Court cases. These include: Biri v. Ninkama [1982] PNGLR 342, Holloway v. Ivarato [1988] PNGLR 99, Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28, Paru Aihi v. Moi Avei (No 2) (2003) SC720, Paru Aihi v. Moi Avei (2004) N2523, Gabriel Dusava v. Peter Waranaka (2008) N3367 and Sir Arnold Amet v. Peter Yama (2010) SC1064.

15. Section 210 Organic Law provides that a proceeding on an election petition shall not be heard “...unless the requirements of sections 208 and 209 are complied with.” Sections 208 and 210 Organic Law have been considered by the Supreme Court in Biri v. Ninkama (supra) and Holloway v. Ivarato (supra).

16. The Supreme Court in Holloway v. Ivarato (supra) said:

“The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s208 (a) of the Organic Law. The facts set out under s 208 (a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to estabish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.”

17. The above cases and principles contained therein were followed by the Supreme Court in Sir Arnold Amet v. Peter Yama (2010) SC1064.

Allegations of undue influence - Grounds one and two

18. The first respondent supported by the second respondent submits that although the headings for these grounds in the petition refer to undue influence, from a reading of the paragraphs for these grounds there are no acts of undue influence pleaded that have been committed by anyone. There is no pleading in the grounds that:

a) A person used or threatened to use any force or restraint, or did or threatened to do any temporal or spiritual injury, or caused or threatened to cause any detriment of any kind to an elector in order to induce him to vote or refrain from voting, or on account of that person having voted or refrained from voting at the election;

b) A person, by force or fraud prevented or obstructed the free exercise of the franchise by an elector, or by any such means compelled or induced an elector to vote or refrain from voting at the election.

19. The petitioner submits that there were acts of undue influence, which influenced the counting of ballot papers from Keru Village and that the petitioner has pleaded relevant and material facts which establish and which constitute the offence of undue influence as provided for under the Criminal Code Act. Further, sufficient facts have been pleaded concerning the first respondent’s conduct at Biligie Primary School.

Consideration

19. The offence of undue influence in election petitions was first addressed in the case of Menyamya Open Parliamentary Elections: Bourne v. Voeto [1977] PNGLR 298. Frost CJ when considering the offence of undue influence said:

“It seems that the elements of s. 102(a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was “in order to induce (an elector) to vote or refrain from voting at an election...” Does this refer to the question whether the elector votes or does not vote or does it refer to the manner of voting? As will be seen it is unnecessary for me to decide this point, but I am inclined to the view that an intention to influence the elector to vote in favour of a candidate or to refrain from voting against him, would fall within the section. ..... This construction is supported by passages in the judgment of Smith J. In Woodward v. Maltby and in The Wairau Election Petition, ....

Turning to s. 102(b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.”

20. Section 102 Criminal Code Act is as follows:

“102. Undue influence

A person who—

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a mis demeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

21. There have been numerous decisions as well as Bourne v. Voeto (supra) which have considered “undue influence” in an election context. I refer to some of these:

a) In Aita Ivarato v. Peti Lafanama [1998] PNGLR 297, Woods J said:

“The allegation here is undue influence, and the allegation is that what the First Respondent said was untrue and of a threatening nature. For an understanding of undue influence the Court has looked to Section 102 of the Criminal Code and again I refer to the principles outlined in the Menyamya case above. Thus what becomes relevant is whether a person by force or fraud is prevented or obstructed in the free exercise of the franchise of an elector.”

b) In Charles Luta Miru v. David Basua (1997) N1628, Sawong J said:

“Thus, in my view, in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words the pleading must not only include the specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him.”

c) In Terry Kajona Okeva v. Robert Atiyafa (2013) N4993, Kariko J said at [22]:

“.... the offence of undue influence involves an element of force, threat or fraud to influence an elector from exercising his free will in relation to vote in elections..... Another essential element of the offence of undue influence is that it must be committed upon an elector. .... the law requires that the electors alleged to have been unduly influenced must be named in the petition .....”

22. In this instance, from a perusal of the paragraphs of the petition comprising Grounds one and two, there are no acts of undue influence properly pleaded or at all. I concur with the submission of the first respondent in this regard. From a perusal of the said paragraphs and the submissions of the petitioner there is only reference to undue influence affecting the counting of votes as distinct from whether a person by force or fraud is prevented or obstructed in the free exercise of an elector’s right to vote. This appears to reflect a misunderstanding of s. 102 Criminal Code Act.

23. To the extent that the paragraphs of the petition for Grounds one and two are supposed to contain any pleading on the ground of undue influence, I find that the requirements of s. 208(a) Organic Law have not been met.

Allegations of illegal practices and errors and omissions - the remainder of the grounds

24. One of the objections of the first respondent, supported by the second respondent, to the pleading in the three grounds of errors and omissions and illegal practices is that the petitioner has failed to plead the results on which the first respondent was declared the winner, either in the facts pleaded in paragraphs one to nine of the petition or under the three individual grounds. This court will, therefore, not be able to determine how the election result was affected or is likely to be affected by the illegal practices or errors and omissions pleaded, it is submitted.

25. The petitioner submits that all relevant and material facts have been pleaded.

Consideration

26. Section 215(3) Organic Law is as follows:

“(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

27. There have been numerous decisions concerning allegations other than bribery and undue influence. I refer to some of these:

a) In regard to allegations other than bribery and undue influence, in Greg Mongi v. Bernard Vogae & Anor (1997) N1635, Injia J. (as he then was) said:

“Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected.”

b) In Ludger Mond v. Jeffrey Nape (2003) N2318, Kandakasi J said:

“It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence.”

c) In Amet v. Yama (supra) Davani J said at paragraph 118:

“In relation to s.215 (3)(b) of the OLNGLE, the following are the material relevant facts that must be pleaded;

a) The Petitioner must plead that the illegal practice or conduct by the winning candidate was likely to affect the election results and show that. To do that, it is necessary to plead relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.

b) And a further requirement is that the pleading must also include that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. If it was pleaded, that evidence can be led to support the pleadings.”

d) In Philip Kikala v. Electoral Commission of Papua New Guinea (2013) N4960, Makail J considers the cases in detail on this point and states at paragraph 63:

“I accept the respondents’ submission that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these very relevant facts are not pleaded, how can the Court make a finding that as a result of these election irregularities, the election was likely to be affected or indeed was affected? Furthermore, how can the Court make the finding that the number of votes affected by the alleged illegal practice or errors and omissions is less than or more than the winning margin when what the winning margin is has not been properly pleaded? I am satisfied the facts setting out the errors and omissions by the first respondent in relation to the winning margin are insufficient. This ground is struck out.”

28. I respectfully agree with the judicial comments in the above cases including those of Makail J. Here, as the winning margin, absolute majority and total number of allowable ballot papers that remained in count after the final exclusion before declaration have not been pleaded, the court is unable to properly determine whether the result of the election was likely to be or was affected, as it is required to do pursuant to s.215 (3) (b) and s.218 (1) Organic Law. Consequently the pleadings relating to illegal practices and errors and omissions should be struck out.

29. As I have found that the requirements of s. 208(a) Organic Law have not been met in regard to the pleadings relating to undue influence and that the pleadings relating to illegal practices and errors and omissions should be struck out, the petition should be dismissed. Given this it is not necessary for me to consider the other submissions of counsel.

Orders

30. The formal Orders of the Court are:

a) The petition is dismissed.

b) The petitioner shall pay the respondents’ costs of and incidental to the petition.

c) The security deposit shall be shared by the respondents’ in

payment of their costs
_____________________________________________________________
DTY Lawyers: Lawyers for the Petitioner
Kongri Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent