Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Zeming v Bomareo [2023] PGNC 279; N10402 (12 July 2023)

N10402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 28 0F 2022 (IECMS)

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTION & IN THE MATTER OF DISPUTED RETURN FOR THE TEWAE SIASSI OPEN ELECTOTRATE IN THE 2022 GENERAL ELECTION

BETWEEN:
MAO ZEMING
Petitioner

AND:
KOBBY BOMAREO
First Respondent

AND:
LANCELOT KAMAKE, Returning Officer Tewae Siassi Open Electorate
Second Respondent

AND:
SIMON SINAI, Electoral Commissioner of Papua New Guinea
Third Respondent

Waigani: Kaumi. J
2023: 1^st June, 12^th July

ELECTION – PETITION – COMPETENCY – IECMS FILING – ss. 208 (a), 210, 215, 217 and 218 of the Organic Law on National and Local-level Government Elections - Rule 3 and 4, Form 1 of the Elections Petitioner (Miscellaneous Amendment) Rules 2022

Cases Cited:

Holloway v Ivarato [1988] PNGLR 99
Steven Pirika Kamma v. John Itanu (2007) N3246
Hagahuno v Tuke (2020) SC1295
Powi v Kaku & EC (2022) SC2290

Counsel:

M. Wenge, for the Petitioner
B. Lai, for the First Respondent
J. Kiluwe, for the Second and Third Respondents

12^th July 2023

1. KAUMI J: The substantive case is the petition challenging the election of the first respondent as Member for the Tewai Siassi Open Electorate in the 2022 National General Elections on grounds of errors and omissions. The first respondent filed a separate objection to the competency of the petition and the second and third respondents filed a joint objection which was heard on Thursday 1 June and adjourned to 16 June but further adjourned due to the 16 June 2023 being a newly declared public holiday and adjourned to this morning for ruling.
   
2. At the outset of the Court’s ruling, I would like to extend my appreciation to all counsels involved in this matter for assisting the Court with their excellent submissions and soft copies of them which the Court found to be of invaluable assistance.
   

BACKGROUND

3. The Petitioner and the First Respondent were candidates that contested the Tewae Siassi Open Electorate in the 2022 National General Elections.
   
4. There was a total of 41 candidates who nominated to contest the said election.
   
5. The conduct of the 2022 National General Elections was the lawful responsibility of the Second and Third Respondent pursuant to the provisions of the Organic Law on National and Local Level Government Elections.
   
6. On 12 May 2022, 118 Writs for the 2022 National General Elections were issued by the Governor General which included the Writ for the Tewae Siassi Coast Open Electorate.
   
7. Polling for the Tewae Siassi Open Electorate commenced on 11 July 2022 to 13 July 2022.
   
8. Scrutiny for the ballot papers for the Tewae Siassi Open Electorate took place from 14 to 29 July 2022.
   
9. The First Respondent was declared as Member-elect for the Tewae Siassi Open Electorate on 29 July 2022 at around 4:30 p.m.
   
10. The Writ for the Tewae Siassi Open Electorate was returned to the Governor General shortly after the declaration of the First Respondent.
    
11. On 6 September 2022 the Petitioner filed his petition seeking to challenge the election return of the First Respondent as Member-elect for the Tewae Siassi Open Electorate in the 2022 National General Elections.
    
12. The facts in the petition are categorized under the following headings from paragraphs 5 to 52 of the petition:
    

(a) Polling.

(b) Polling Team 403.

(c) Team 416.

(d) Sunday Polling.

(e) Sialum ballot Boxes; and

(f) Declaration.

13. The facts as pleaded by the Petitioner state the allegations of what took place under those respective headings which he seeks to rely on as facts to establish a ground to invalidate the elections return of the First Respondent as made on 29 July 2022. The facts as pleaded are part of the allegations in the petition, but not all. The balances of the allegations in the petition are shown in the grounds of the petition at page 7 of the petition. The grounds are pleaded in 16 paragraphs.
    
14. The allegations contained in the petition are mostly about errors and omissions against the servants and agents of the Second Respondent and, I further note that no allegation has been made against the First Respondent.
    
15. The issues that arise from the grounds for the objections are:
    
    1. Whether there was failure in the petition to meet the requirements under Section 208 (a) of the Organic Law on National and Local Level Government Elections (“Organic Law”)
       
    2. Whether there was non-compliance of Rule 3 and 4, Form 1 of the Elections Petitioner (Miscellaneous Amendment) Rules 2022 (“ER Rules”)
       
16. I propose to deal first with Issue A.
    
17. Firstly, to set the tone of how I deal with this matter I refer to what the 5 men Supreme Court bench held in the paradigm shifting case of Hagahuno v Tuke (2020) SC1295 (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J) that in deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s 217 of the Organic Law on National and Local-Level Government Elections, which dictates 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”.
    
18. Section 210 of the Organic Law provides that no proceeding shall be heard unless the mandatory requirements stated under sections 208 and 209 are complied with.
    

A. Was there a failure in the petition to meet the requirements under Section 208 (a) of the Organic Law on National and Local Level Government Elections (“Organic Law”)

19. Section 208 (a) provides that a petition shall set out the facts relied on to invalidate the election or return.
    
20. The Supreme Court in Hagahuno v Tuke at pargraph 24 (supra) endorsed the Supreme Court’s decision in Holloway v Ivarato [1988] PNGLR 99 as still good law on the pleading of facts.
    
21. In Holloway v Ivarato (supra) it was held that the “facts” which must be set out under Section 208(a) of the Organic Law are material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved.
    
22. Kandakasi. J (as he then was) said in Steven Pirika Kamma v. John Itanu (2007) N3246
    

“I conclude that s 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. ...

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 (sic). 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.”

23. Kandakasi, DCJ in Powi v Kaku & EC (2022) SC2290 enunciated at paragraph 52 that:
    

“52. As it could be gathered from the forgoing, s.217 of the Organic Law applies to a petition as presented by a petitioner that meets the requirements of s. 208 and 209 as dictated by s. 210 to do justice in the case. To achieve real justice the Court must see the merits of the case from the perspective of all parties to a petition and not just one of the parties to the exclusion of the parties. This necessarily requires a careful consideration of each parties’ duties and obligations in a petition challenging an election outcome. Whether the parties have discharged their respective duties starts with a consideration of whether the petitioner has pleaded the relevant facts which sufficiently and discloses a ground capable of upsetting the election the subject of the petition.”

24. Going by what Kandakasi. DCJ stated in the above paragraph, Section 217 of the Organic Law exists to safeguard the interests of all parties to a petition before the court. That a petition must not be viewed only from the perspective of the Petitioner but from all parties.
    
25. The grounds for objections by all respondents are essentially the same.
    
26. The respondents argue that that the entire petition suffers a fatal defect in terms of the material facts under section 208 (a) of the Organic Law that defeats the purpose of all the matters that have been pleaded and renders the entire petition as futile. Further that the Court can proceed to hear the grounds on the petition but that it would only be an unfruitful exercise. They say this is so because:
    
    • (a) The entire grounds in the petition raise allegations of errors and omissions against the servants and agents of the Electoral Commission.
      
    • (b) The entire petition consists of 11 pages setting out facts giving rise to sixteen grounds of errors and omission. On a close and detail analysis of the facts and the grounds, the petitioner has failed to disclose the following crucial facts:
      
      • (i) The total number of votes casted or the total number of ballot papers counted.
        
      • (ii) The total number of votes polled by the First Respondent and the petitioner or any runner up at the end of the first preferential count and the final exclusion before the declaration.
        
      • (iii) The absolute majority of votes (50%+1) required to win the election.
        
      • (iv) The total number of votes collected by the First Respondent above and beyond the absolute majority.
        
27. The respondents argue that in the absence of such relevant facts, there is no yardstick or basis upon which parties and the Court would be guided to see how the results would be affected for the purpose of section 218 of the Organic Law.
    
28. The Petitioner’s responses to the arguments by the Respondents are as I understand them:
    
    • ➢ that by considering the recent position of the Supreme Court in Hagahuno v Tuke (supra), all 16 Grounds pleaded in the Petition, respectively disclose grounds to void the Election for Tewae Siassi Electorate. The 16 Grounds provided under Part C of the Petition respectively relied on the facts provided under part B of the Petition. Those facts are clear and understood by the Respondents which saw the second Respondent providing an Affidavit in response. There is contention to that ground and the fact relied, therefore requires a trial to test with evidence.
      
    • ➢ that when the Respondents have filed their Notice of Objection, they have defeated its purpose as they have clearly understood the grounds of the Petition have and filed evidence against those grounds and take issue with forms and technicalities and are prevented from raising such grounds pursuant to Section 217 of the Organic Law as provided in the Hagahuno v Tuke (supra).
      
    • ➢ that having considered the principle for Section 208 and 217 of the Organic Law, the grounds of this Petition, for response to the objection, section 215 (3) of the Organic Law should be considered in that there is likelihood that the facts relied on discloses valid grounds which would affect the result of the Elections.
      
    • ➢ That if the court finds that the First Respondent was declared prior to completion of scrutiny, then it would be a breach of Section 168(1)(d) and (e) of the Organic Law. That is a ground under section 215 of the Organic Law that can void the election results.
      
    • ➢ Those submitted also in response Ground A(1)(b) of the Notice of Objection filed 7 October 2022 and Ground 2 of the Notice of Objection filed 29 September 2022 as at the time of filing of Petition the result was not known on grounds that the First Respondent was declared prior to conclusion of counting. That fact if found to be true will no doubt void the declaration of the First Respondent.
      
29. I have considered the facts pleaded by the petitioner from paragraphs 5 to 52 and find that the facts as pleaded are insufficient because they do not plead how the election result was affected as such are well short of meeting the requirement under Section 208 (a) of the Organic Law , as material facts have not been pleaded by the petitioner from paragraphs 5 to 52 of the petition which would establish a ground to invalidate the election return of the First Respondent.
    
30. I find that the Petitioner did not plead in any part of the petition filed 6 September 2022, how the election result was affected by the actions complained of in the petition. What I find he did was to only plead that certain actions took place which he states breached express provisions of the Organic Law. In my considered view the Petitioner has failed to plead how the said breaches of the Organic Law affected the outcome of the election for the Tewae Siassi Open Electorate in the 2022 National General Election and this in my considered view render the pleaded facts, incompetent. This is fatal to the survival of the petition.
    
31. The Court and indeed all the parties should not be left in a quandary, guessing or in a dilemma as to how many votes were collected by the First Respondent which formed the basis upon which he was declared as the winner. Should the Court be left to assume what the facts might be at the trial stage, I think not.
    
32. The pleadings are fundamental to the case as a whole. Before the petitioner can prove the allegations, he must first plead the material facts that establish a ground to invalidate the elections result. Because if he does not plead it, he cannot prove it when leading evidence.
    
33. I find that this is not a case where the winning margin or the total number of votes have been miscalculated rather this is a case of deliberate omission of relevant factual matters by the Petitioner before filing the petition where he failed to ascertain the correct figures in terms of votes in the pleadings of the material facts and the Court cannot venture outside of the scope of the pleading to import such material facts nor can any amendments be made at this stage. Powi v Kaku [2022] PGSC 101; SC2290 (per Kandakasi DCJ, Yagi & Makail JJ at paragraphs 52 & 58.
    
34. It was imperative upon the petitioner to seek and secure facts correctly before filing the petition. This was not too onerous a task to ascertain the correct figures as all the information were available to the Petitioner who was a candidate and having been involved in the entire election. The Court must be in a position to have some idea of the petitioner’s chances of winning and this should be provided to Court in the petition as it cannot assume anything in the trial.
    
35. Indeed, my view is fortified by what Kandakasi. DCJ said in Powi v Kaku & EC (2022) SC2290 at paragraph 44:
    

“44. In view of the obligations petitioners have under s. 208 (a) of the Organic Law and the burden of proof they have, it is incumbent upon petitioners to seek and secure from the correct sources the facts correctly. Upon having done so and they are convinced that they, will succeed, they should proceed to file their petition. Petitions cannot and should not be based on assumptions or on an alleged set of facts that are concocted, inaccurate or otherwise misrepresents the truth.”

36. Another matter I wish to raise here is the premise on which the petition lies and that is, alleged errors and omissions. Each of the grounds contained in the petition from which C1 to C16 identify the provisions alleged to have been breached by the second respondent but what they fail to do is to establish a material error. I cannot find in any of these grounds, how the pleaded errors and omissions effected the results, and in terms of the requirement of section 218 (1), this is fatal.
    
37. In its entirety and for the aforementioned reasons I discussed, I find that the petition fails to plead material facts to establish a ground to invalidate the election result for the Tewae Siassi Open Electorate in the 2022 National General Election, this is fatal to the survival of the petition as such all the grounds should be struck-out and the petition dismissed in its entirety.
    
38. Accordingly, I find on the first issue that the petition is incompetent and consequentially is dismissed in its entirety.
    
39. Having made this finding, I do not consider it necessary to address the second issue as that would be purely academic.
    
40. The orders of the court are:
    
    • ➢ The respondents’ objections to competency are upheld.
    • ➢ The petition is dismissed in its entirety.
    • ➢ The Petitioner shall pay the respondents’ costs of the entire proceedings which, if not agreed, shall be taxed.
    • ➢ The security deposit shall be equally paid to the respondents.
      

__________________________________________________________________
Luthers Lawyers: Lawyers for the Petitioner
B.S. Lai Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second and Third Respondents