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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO.80 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 TEWAE-SIASSI OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS
BETWEEN:
MAO ZEMING
Petitioner
AND:
DR KOBBY BOMAREO
First Respondent
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: David, J
2019: 25th July & 20th August
ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objections to competency of petition – petitioner raises issues of illegal practices involving bribery and undue influence to vitiate election – petitioner pleads nine instances where it is alleged that the first respondent committed bribery - petitioner pleads twelve instances where it is alleged that the first respondent committed undue influence - respondents allege that as the petition does not comply with all pre-requisites of a petition under Section 208 of Organic Law on National and Local-level Government Elections, the petition be dismissed – objections alleging requirements under Section 208(a), (d) and (e) not complied with - requirements under Section 208 are conditions precedent – election petition must comply strictly with each and every requirement –– original petition filed by petitioner rejected by National Court Registry for being filed one day out of time – application by petitioner for judicial review of decision to reject original petition unsuccessful – on appeal, Supreme Court regularised filing of original petition – petitioner filed fresh petition backdated by National Court Registry to date of filing of original petition – fresh petition an amended version of original petition – objections against fresh petition – fresh petition struck out – original petition survives and resurrected in accordance with Supreme Court order - Organic Law on National and Local-level Government Elections, Sections 206, 208, 209, 210, 215 and 217.
Cases Cited:
Mapun Papol v Antony Temo (1981) PNGLR 178
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Ginson Saonu v Bob Dadae (2004) SC763
Powes Parkop v Wari Vele (No 1) (2007) N3320
Polem Enterprise Ltd v Attorney General & Anor (2008) SC911
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Kui Valley Business Group Inc. v Hugh Mosley (2011) N4548
Peter Charles Yama v Anton Yagama (2012) N4928
Norbert Kubak v Andrew Trawen (2012) N4992
Jamie Maxton-Graham v Electoral Commissioner & Dr William Tongamp (2013) N5216
Legislation Cited:
Constitution of the Independent State of Papua New Guinea
Organic Law on National and Local-level Government Elections
Election Petition Rules 2017
Counsel:
Dakan E. Doiwa, for the Petitioner
Brendan Lai, for the First Respondent
Lance Okil, for the Second Respondent
RULING ON OBJECTIONS TO COMPETENCY OF PETITION
20th August, 2019
1. DAVID, J: INTRODUCTION: This is the ruling of the Court on the objections raised with regard to the competency of the petition filed in these proceedings.
2. Following the issue of writs on 21 April 2017 for the conduct of the 2017 National General Elections for the 10th National Parliament including the writ for the Tewae-Siasi Open Electorate in the Morobe Province (hereafter "the Electorate"), the Petitioner, Mao Zeming (hereafter "the Petitioner") and the First Respondent, Dr Kobby Bomareo (hereafter “the First Respondent”) were amongst 37 candidates who contested the seat for the Electorate. Polling for the Electorate was conducted from 24 June 2017 to 8 July 2017. The First Respondent polled 8,236 votes after elimination 35 when the Petitioner was eliminated and was declared the successful candidate for the Electorate. He was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament. The Petitioner polled 5,317 votes and was the second runner up to the First Respondent.
3. Aggrieved by the outcome, the Petitioner has disputed the validity of the election or return of the First Respondent as the successful candidate for the Electorate by filing a petition on 29 August 2017 addressed to the National Court pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law on National Elections). The petition was purportedly filed in the National Court at Lae. In the petition, the Petitioner raises issues of illegal practices involving bribery and undue influence to vitiate the election.
4. With regard to illegal practices involving bribery, the Petitioner pleads nine instances where it is alleged that the First Respondent committed bribery on two separate polling days when he gave a number of electors of the Electorate cigarettes, sticks of mustard, betel nuts and a live pig for slaughtering and consumption for the purpose of obtaining and securing their votes.
5. With regard to illegal practices involving undue influence, the Petitioner pleads twelve instances where it is alleged that the First Respondent committed undue influence on three separate polling days by:
(a) fraud, when he handed to an elector a small piece of paper with the phrase “Kobby Bomareo Box 29” written on it and told him to vote for the candidate with the box number indicated;
(b) compulsion, when he sat in a chair within 15 metres from the entrance of the Polling Venue and unduly placed five electors under duress and intimidation to vote for him; and
(c) inducement, of six electors when he gave a live pig to a crowd of electors gathered at a residence for their consumption after voting with the intention of procuring their votes.
6. The petitioner seeks, among others, the following relief:
(a) A declaration that the election of the First Respondent as member for the Electorate was void pursuant to section 215(1) of the Organic Law on National Elections.
(b) A declaration that the election for the Electorate was absolutely void pursuant to section 212(1)(h) of the Organic Law on National Elections.
(c) An order that the petition be upheld pursuant to section 212(1)(i) of the Organic Law on National Elections.
(d) An order for a by-election for the Electorate be held pursuant to section 106 of the Constitution of the Independent State of Papua New Guinea.
OBJECTIONS TO COMPETENCY OF PETITION
7. On 20 March 2019, the First Respondent filed his notice of objection to the competency of the petition on the basis that the requirements under Section 208(a), (d) and (e) of the Organic Law on National Elections had not been complied with.
8. On 2 July 2019, the Second Respondent filed its notice of objection to the competency of the petition on the basis that the requirements under Section 208(a) and (d) of the Organic Law on National Elections had not been complied with, leave of the Court having been obtained on 1 July 2019.
9. The respondents' objections essentially are that as not all the mandatory requirements under Section 208 of the Organic Law on National Elections, namely, those under paragraphs (a), (d) and (e), have been complied with, the petition was incompetent by virtue of Section 210 of the Organic Law on National Elections and therefore cannot be allowed to proceed any further and be dismissed at this juncture.
10. The grounds raised which I have paraphrased are:
(a) the Petitioner has failed to set out facts or material facts capable of being relied on to establish the alleged instances of bribery and undue influence including the elements of the offences of bribery under Sections 103(a)(iii) of the Criminal Code and undue influence under Section 102(b) of the Criminal Code to invalidate the election or return of the First Respondent as the duly elected Member of Parliament for the Electorate in the National Parliament and is therefore in breach of Section 208(a) of the Organic Law on National Elections;
(b) The petition was not properly attested in that the first attesting witness Barnabas Nalong describes his occupation as a community representative which is too general, vague, undefined and an informal description of that person’s position or status and is therefore in breach of Section 208(d) of the Organic Law on National Elections;
(c) The petition that is relied on by the Petitioner; is not the petition that was lodged for filing by the Petitioner in person on 29 August 2017 at 6:00 pm at the National Court Registry in Lae; and is an amended version of the petition lodged for filing by the Petitioner in person on 29 August 2017 at the National Court Registry in Lae and has been filed without the leave of the Court outside the mandatory forty day time limitation period for filing a petition challenging the result of an election and is therefore in breach of Section 208(e) of the Organic Law on National Elections.
11. The First Respondent relied on his own Affidavit in Support sworn on 18 March 2019 and filed on 21 March 2019 to support his objections.
12. The Petitioner and the Second Respondent did not rely on any affidavit in contesting or supporting the objections to the competency of the petition.
OBJECTION TO USE OF FIRST RESPONDENT’S AFFIDAVIT
13. Prior to the hearing of the two objections to competency of the petition, I heard an objection from the Petitioner objecting to the use of the First Respondent’s affidavit and for paragraphs 5, 6, 8, 9 and 10 and annexure B of the affidavit to be struck out for being inadmissible and irrelevant at law. Those paragraphs refer to a search conducted by the Petitioner on 1 March 2019 at the Registry of the National Court in Lae as a result of which he obtained, among others, a copy of a petition allegedly lodged by the Petitioner on 29 August 2017 which was rejected by the Registry on the basis that it was filed out of time. A copy of that petition is annexure B of the First Respondent’s affidavit.
14. In addition, the Petitioner contended that evidence of documents rejected by the National Court in Lae could not be produced without first complying with the requirements of Section 44 of the Evidence Act making reference to and drawing support from Kui Valley Business Group Inc. v Hugh Mosley (2011) N4548 where an affidavit sought to be relied on by the plaintiff in an application to have the defendant’s defence struck out and summary judgment entered was found to have substantial defects and inadmissible evidence and struck out as a result. The Court also observed that a party desiring to rely on an affidavit in support of an application must comply with the requirements of the Evidence Act, Oaths, Affirmations and Statutory Declarations Act and National Court Rules. Notice of the objection was given to the respondents by way of the Notice of Objection pursuant to Section 35(2) of the Evidence Act filed on 21 June 2019.
15. Both respondents supporting each other contested the objection and argued that the objection was without merit and should be rejected in light of Section 217 of the Organic Law on National Elections that states that 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.
16. I accepted the respondents’ submission as ultimately the real question would be one of the weight rather than of the admissibility of the evidence which in my was relevant to the determination of the respondents’ objections and rejected the objection. I was guided by Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342 which stands for the proposition that Section 217 of the Organic Law on National Elections becomes applicable when the Court is determining the merits of a case and all matters connected with the determination of merit. In my view, the second part of the principle is broad enough and therefore relevant here. In addition, the Organic Law on National Elections is a superior law compared to an ordinary statute or Act of Parliament such as the Evidence Act hence capable of standing alone in its application.
17. The parties have produced lengthy, comprehensive and extensive written submissions supported by a number of case authorities. I am indebted to the in-depth discussion of the law and their application to determine the relevant issues in the objections. The written submissions were amplified in the parties’ respective oral submissions. I have considered all the written and oral submissions advanced by the parties including the case authorities.
LAW ON OBJECTION TO COMPETENCY OF PETITION
18. It is trite law that the question of competency of a petition in itself raises the issue of jurisdiction and this can either be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in the petition and at any stage of the proceedings: see Sir Arnold Amet v Peter Charles Yama (2010) SC1064; Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Powes Parkop v Wari Vele (No 1) (2007) N3320; Norbert Kubak v Andrew Trawen (2012) N4992; and Peter Charles Yama v Anton Yagama (2012) N4928.
19. It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds: Peter Charles Yama v Anton Yagama. It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed: Norbert Kubak v Andrew Trawen. Any prejudice caused to the petitioner can be accommodated by an order for costs: Peter Charles Yama v Anton Yagama. It was held in Sir Arnold Amet v Peter Charles Yama that issues of competency of a petition can also be raised in the Supreme Court in the case of a review even if they were not raised before the National Court.
20. Rule 12 of the Election Petition Rules permits a respondent in a petition who objects to the competency of the petition to file an objection in accordance with the prescribed Form 4 within 21 days after service of the petition. No issue was taken on this requirement.
21. According to Rule 16 of the Election Petition Rules, the Court can deal with any objection to the competency of a petition at the trial of the petition. I heard the objections before the trial as the matter was pre-trialled and processed for hearing of the objections either at Waigani or Lae by order of the Court made on 1 July 2019. No issue was taken on this requirement as well.
22. Issues relating to the competency of a petition arise usually because of the requirements under Sections 208, 209 and 210 of the Organic Law on National Elections.
23. The requirements of Sections 208 and 209 of the Organic Law on National Elections are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law on National Elections and the petition must strictly comply with each and every requirement: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, Holloway v Ivarato (1988) PNGLR 99.
24. Section 208 (Requisites of petition) of the Organic Law on National Elections specifies five pre-requisites of a petition. It 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).
25. A further pre-requisite is set out under Section 209 (Deposit as security for costs) of the Organic Law. It provides that a security deposit in the amount specified must be paid at the time of filing the petition. It states:
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."
26. Section 210 (No proceedings unless requisites complied with) of the Organic Law provides that unless the pre-requisites under Sections 208 and 209 are met, a petition cannot be heard. It states:
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
27. In Delba Biri v Bill Ginbogl Ninkama, the Supreme Court at p.345 said:
The requisites in s.208 and s.209 are conditions 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.
28. Similar sentiments were expressed by the Supreme Court in Mapun Papol v Antony Temo (1981) PNGLR 178 and Paru Aihi v Sir Moi Avei (No 2) (2003) SC720.
29. A reason behind the need for strict compliance with Section 208 if not the most important or fundamental one in my respectful view was expressed by the Supreme Court in Delba Biri v Bill Ginbogl Ninkama at p.345 in the following terms:
Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s.210.
30. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
31. In Delba Biri v Bill Ginbogl Ninkama at p.345, the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:
But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v Antony Temo (supra)).
PRE-REQUISITES OF PETITION NOT IN ISSUE
32. The requirements under Section 208 (b) and (c) and Section 209 of the Organic Law on National Elections are not in issue in the present case.
LEGAL ISSUES
33. The main legal issues that arise from the objections to the competency of the petition are:
34. I will address the third and last issue first as its outcome will determine whether I should proceed to address the first and second issues.
WHETHER THE PETITION SHOULD BE DISMISSED AS IT IS AN AMENDED VERSION OF THE ORIGINAL PETITION FILED BY THE PETITIONER AND REJECTED BY THE NATIONAL COURT REGISTRY IN LAE ON 29 AUGUST 2017 AND FILED WITHOUT LEAVE?
First Respondent’s submissions
35. It is contended by the First Respondent that the petition before the Court is an amended version of the petition filed by the Petitioner on 29 August 2017 and rejected by the National Court Registry in Lae and should be dismissed as it has been filed without leave of the Court contrary to Section 208(e) of the Organic Law on National Elections.
Second Respondent’s submissions
36. The Second Respondent adopts and supports the First Respondent’s submission.
Petitioner’s submissions
37. The Petitioner argues that the original petition he filed in the National Court in Lae on 29 August 2017 was rejected and returned to him as it was deemed to have been filed a day outside the 40 day period after the declaration of the result of the election was made. Order 2 Rules 15, 17 and 19 of the National Court Rules and common sense would dictate that as the petition was rejected by the Registry, it was a nullity and cannot be relied on. Thereafter, he was forced to commence judicial review proceedings on the decision to reject the original petition essentially taking issue with the date of declaration of the result of the election. The outcome of the judicial review proceedings was unfavourable so aggrieved by that, he appealed to the Supreme Court.
38. On 27 February 2019, the Supreme Court held that the petition was erroneously rejected as the declaration was made on 19 July 2017. The Petitioner was therefore required to re-lodge his petition and he did so in early March 2019 when the date of filing was noted as having occurred on 29 August 2017 and such filing having retrospective effect relying on Polem Enterprise Ltd v Attorney General & Anor (2008) SC911. The Petitioner did not apply for leave to amend the original and rejected petition as there was no need to do so as it remained a private document until re-lodged in March 2019.
Reasons for ruling
39. It is commonplace that the petition before the Court is that filed in March 2019 following the decision of the Supreme Court on 27 February 2019 and the date of filing recorded by the National Court Registry was 29 August 2017. The dispute is whether the Petitioner should have obtained leave to file the petition as the respondents argue that it is an amended version of the original petition that was rejected by the National Court Registry in Lae.
40. The only evidence of the rejected petition is that contained in the First Respondent’s affidavit forming part of annexure B. The Petitioner has not filed an affidavit to demonstrate and to remonstrate that that is not the rejected petition. I rejected the Petitioner’s objection to the First Respondent’s use of the affidavit particularly to strike out paragraphs 5, 6, 8, 9 and 10 and annexure B of the affidavit for reasons I have alluded to earlier. The documents that form part of annexure B are:
41. A copy of the order of the Supreme Court made on 27 February 2019 is annexed to the First Respondent’s affidavit as annexure A. It is instructive that I set out the orders made and these are:
1. The appeal be allowed.
2. The order made by the National Court be quashed.
3. In lieu thereof, it be declared that, in respect of the Open Electorate of Tewai-Siassi for the 10th National Parliament, the poll was declared on 19 July 2017.
4. The matter be remitted to the National Court for the hearing of the appellant’s petition according to law.
5. The first and third respondents pay the appellant’s costs, both of and incidental to the appeal and in respect of the proceedings in the National Court, including reserved costs, to if any, be taxed if not agreed.
42. My understanding of Order 4 is that the matter was remitted to the National Court for the hearing of the petition that had been filed on 29 August 2017 and formally rejected as evidenced by the National Court Lae Rejection Form on 30 August 2017. There is no order by the Supreme Court for the Petitioner to file another petition. In addition, the Organic Law on National Elections gives no power to dispense with the requirement under Section 208(e): Delba Biri v Bill Ginbogl Ninkama. For real justice to be observed under Section 218 of the Organic Law on National Elections coupled with the Court’s duty to give paramount consideration to the dispensation of justice under Section 158 of the Constitution of the Independent State of Papua New Guinea, I would accept that a copy of the petition filed on 29 August 2017 is that forming part of annexure B of the First Respondent’s affidavit. I give weight or sufficient weight to the First Respondent’s evidence in that regard to warrant acceptance. That document and others referred to in paragraph 6 of the First Respondent’s affidavit were obtained by the First Respondent following a search of the Court’s records he personally conducted at the National Court Registry in Lae on 1 March 2019: see paragraphs 5, 6, 8, 9 and 10 of the First Respondent’s affidavit. This demonstrates that the National Court as a court of record had those records in its Registry in Lae. The First Respondent’s evidence stands unrebutted by the Petitioner. The Petitioner’s contention that the original petition was rejected and therefore a nullity based on Order 2 Rules 15, 17 and 19 of the National Court Rules and common sense is misconceived and therefore rejected. The National Court Rules have no application to election petition proceedings: Delba Biri v Bill Ginbogl Ninkama; Jamie Maxton-Graham v Electoral Commissioner & Dr William Tongamp (2013) N5216.
43. It is abundantly clear that the petition before the Court is that filed in March 2019 after the Supreme Court decision of 27 February 2019 and backdated to 29 August 2017. Comparing the petition before the Court and the rejected petition, it is clear from the difference in the pleadings that the petition before the Court is an amended version of the rejected petition. The rejected petition is unsealed simply because it was rejected by the National Court Registry. The Petitioner’s argument on retrospective filing date would make sense only if he filed the same petition without any amendment. The Petitioner’s argument supported by Polem Enterprise Ltd v Attorney General & Anor which is a case involving a civil claim by a company against a provincial government for damages for unlawful suspension of its liquor licence is therefore misconceived. As there can be no amendment to a petition after the expiration of the time limit specified under Section 208(e) of the Organic Law on National Elections (Delba Biri v Bill Ginbogl Ninkama), the petition before the Court is incompetent and struck out. Even if the petition before the Court is a fresh one as the original one was rejected and a nullity as is contended by the Petitioner, it will still be caught by Section 208(e).
44. The resultant effect of this determination is that the petition filed by the Petitioner on 29 August 2017, but rejected by the National Court Registry in Lae survives and still stands having been resurrected by the order of the Supreme Court of 27 February 2019 directing that the matter be remitted to the National Court for hearing of the Petitioner’s petition according to law.
45. Given this outcome, it is now not necessary to address the first and second legal issues.
ORDERS
______________________________________________________________
Makap Lawyers: Lawyers for the Petitioner
BS Lai Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent
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