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

Wartovo v Narawec [2023] PGNC 345; N10503 (2 March 2023)

N10503

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 31 OF 2022

In the matter of the Organic Law on National and Local-Level Government Elections
and
In the matter of a Disputed Return of Election result for the Wau-Waria Open Electorate in the 2022 General Election

BETWEEN:
LEVI WARTOVO
Petitioner

AND:
MARSH NARAWEC
First Respondent

AND:
FIDELIS HAROSOL
Returning officer for Wau-Waria Open Electorate
Second Respondent

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

Waigani: Batari, J
2023: 28^th February, 02^nd March

PARLIAMENT – election petition – objection to competency of – form – requisites of – mandatory requirement for attestation of witnesses – compliances as to form – omission of attesting witness’ addresses and occupations – addresses – sufficiency of details given – Organic Law on National and Local Level Government Elections – ss. 208 (d), 217 considered and applied.

Cases Cited

Aiwa Olmi v Nick Kopia Kuman (2013) N2310
Albert Karo v Lady Kidu (1997) N1626
Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342
James Yoka Ekip v Simon Sanake & Ors (2012) N4899
Jimson Sauk v Don Pomb Polye (2004) SC769
Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151
Mapun Papol v. Anthony Temo [1981] PNGLR 178
Paru Ahi v Sir Moi Avei (2003) SC720
Raymond Agonia v Albert Karo [1992] PNGLR 463

Counsel

Mr M Wenge, for the Petitioner
Mr S Wanis, for the First Respondent
Mr H Nii, for the Second and Third Respondents

2^nd March 2023

1. BATARI J: The Wau-Waria Open Electorate is one of the newly created electorates that were added to the 2022 National General Elections. The first election result is rivalled by the first election petition filed by the unsuccessful candidate, Levi Wartovo disputing the election of the first respondent, Marsh Narawec as the member elect. This is the outcome of an objection to competency of the proceedings.
   
2. The respondents filed separate objections to competency of the election petition. The amended Notice of Objection by the first respondent raised many grounds of purported inadequate pleadings of relevant material facts pursuant to s 208 (a) of the Organic Law. These may be quickly disposed of as mere knit-pickings of procedural inadequacies. Other contentions raising disputed facts are best left for the trial proper.
   
3. The grounds missed the real and critical issue of compliance under s 208 (d) though, Counsel for the first respondent, Mr Wanis, covered that aspect to some extent on page 9 of his written submissions. The situation is saved by the Objection to Competency filed by lawyers for the Electoral Commission which reads at para 2:
   

“The petition does not state and disclose the ‘occupation’ of the Second Attesting Witness, Margen Gurua, contrary to section 208 (d) of the Organic Law, thus, is incompetent and therefore cannot be heard pursuant to s 210 of the Organic Law.”

4. That is the crux of a competency issue Court time is best spent on. Indeed, it was aptly argued by counsel representing the respondents, and the petitioner.
   

Submissions

5. The contentions by lawyers to the respondents, Mr Wanis for the first respondent and Mr Nii representing the second and third defendants are that the whole of the petition in its present form is flawed in failing to comply with the statutory requirement for a valid petition. They submitted, a petition is materially defective and incurable where, as in the face of the petition in this case, one of the attesting witnesses had omitted to state his occupation.
   
6. Mr. Wenge for the petitioner conceded, the second attesting witness did not include his occupation but submitted that there is sufficient compliance with the requirement in s. 208 (d) such that the Court ought to exercise its discretion under s217 of the Organic Law to dismiss the objection. The petitioner should be given the benefit of a trial on the important issues raised on the qualification of the first respondent, Marsh Narewec to remain an elected member of the Parliament.
   

Consideration & Ruling

7. The requirement for attestation by two witnesses whose occupations and addresses must be stated is sanctioned by s. 208 (d) of the Organic Law. Section 208 (d) sets out one of the five requisites of an election petition before proceedings are heard on the petition under s. 210. Sections 208 and 210 read 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).

210 – No proceedings unless requisites complied with.

Proceedings shall not be had on a petition unless the requirements of Sections 208 and 209 are complied with.”

8. When the question of proper attestation of a petition document is raised, this goes to the very existence and competency of the originating process. It brings to the fore the integrity and authenticity of the document filed. An incomplete or partially completed document filed under s. 208 of the Organic Law may result in the petition being dismissed at the outset for want of statutory form.
   
9. The attestation section at the end of the body of the petition contains instructions for the two attesting witnesses to each separately state his/her name, occupation, and address in that order. This implements the requirements in s. 208 (d) of the Organic Law that:
   
   • The petition must be attested by two witnesses, and
   • Each witness must state his or her occupation, and
   • Each witness must state his or her address.
     
10. Petition Form 1under Rule 5 of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 gives further instructions in relation to the addresses, that the attesting witness must state his/her address precisely by section or lot number or where no section and lot number, by street name or in the case of a village, or settlement, state the name of place precisely by referring to province, district and nearest town and must be signed by the attesting witness.
    
11. It is common, that when proof of a document is required by law, the document must inter alia, bear the name and signature of the attesting witness. In essence, this will verify the identity of the person signing the document. The attestation may be by signature or a mark. In Aiwa Olmi v Nick Kopia Kuman (2013) N2310 a fingerprint mark was held to be in sufficient compliance with the attestation requirement. The disclosure of “occupation” affirms the witness’s capacity and ability to verify the petition, it ascertains his maturity and standing in the community. The requirement for a precise description of the attesting witnesses’ address is so that the witnesses may be easily and readily located or reached. Above all, it makes the petition genuine.
    
12. In Raymond Agonia v Albert Karo [1992] PNGLR 463 the Court said at p 465:
    

"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witness’s personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply his village.”

13. The requirement for proof by attesting witnesses gives the petition, authenticity, and validity. It enhances the importance of the electoral process. The Supreme Court made this point in Paru Ahi v Sir Moi Avei, (2003) SC 720 (Amet CJ, Los, Sakora, Injia, Sawong JJ), per Amet CJ, Los, Injia, Sawong JJ:
    

“The purpose of the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process.”

14. I agree with Counsel for the respondents, the requisites of an election petition set out in s. 208 are mandatory. This is the well-established procedural law from the long line of judicial authorities, following the influential pronouncement in, Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Supreme Court stated at p.345:
    

“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 proceedings unless s 208 and s 209 are complied with.”

15. In approving this proposition, the Supreme Court in, Jimson Sauk v Don Pomb Polye (2004) SC769 said:

“Only when there has been full compliance with the mandatory requirements of ss. 208 and 209, as insisted upon by s. 210 of the Organic Law, will the National Court embark upon exercising power or jurisdiction over the allegations contained in the Petition. And this is done pursuant to s. 212 Organic Law which lists the powers that the court can exercise, in hearing and determining the Petition. Needless to say, these powers are exclusive to the National Court pursuant to s. 4 Organic Law (supra).”

16. It is apparent then, that the strict provisions in s. 208 of the Organic Law are necessary for a particular purpose, being, an election petition. Each of the five requisites enumerated in that provision forms an essential element of a petition. They must each be met because of s. 210. This provision, in no uncertain terms, lays down the law as to when the National Court can exercise jurisdiction over disputes or allegations arising from national and local level government elections. In this case, the petitioner is alleged to have not satisfied the condition precedent in s. 208 (d).
    
17. There are two limbs in the requirements for proof of a petition document under s. 208 (d). The first requirement is to state the names, occupations and addresses of two attesting witnesses who must also sign the petition. All these elements must appear on the face of the petition as a mandatory requirement for proof of a legal document. The provision of s. 208 (d) will be met when all the required information or descriptions are given. If one or a number of those requirements is/are missing, the document will be deemed invalid and hence, the National Court will have no power or jurisdiction to adjudicate on the petition.
    
18. The second limb of s 208 (d) concerns adequacy and veracity of the information given. The attesting witnesses are obliged to provide clear and succinct detail of particulars of the names, occupations and addresses and signatures of the attesting witnesses. Where the given names, or descriptions of occupations and addresses are obscure, unclear, incomplete, inadequate, or confusing, or falsified, the proof of attestation may be rejected in the exercise of court discretion. Consequently, the petition may be ruled invalid.
    
19. I will return to this second aspect after I deal with; whether substantial compliance has general application for the exercise of judicial discretion to disregard or waive a requirement. The question was posed during submissions. Mr Wenge argued that the Court has discretion under s 212 (Power of the court) and s 217 of the Organic Law to accept the petition as statutory compliant and in fairness.
    
20. Generally, substantive compliance with the law and rule of practice may, in exceptional cases, determine an outcome of a case because of prejudice, fairness and the justice of the case considerations. Where a party is required to adduce evidence to support the elements of a charge, the substantive compliance consideration has no application or relevance, nor does the question arise because evidence must be adduced in support of each different elements of s 208. This is a question of law.
    
21. So, in deciding whether there is evidence on the essential elements of the charge or of s 208 (d) of Organic Law as in this case, the strict requirement of the provision leaves no room for exercise of discretion to dispense with a condition precedent. The substantial compliance argument cannot prevail over a mandatory requirement of the law. Each essential element or requirement for a valid attestation under s 208(d) must be met because of s 210. The absence of one or a number of those elements in s 208 or any of the elements of s. 208 (d), will render the petition or attestation incompetent.
    
22. In this case, Mr Wenge conceded that the omission in stating the occupation of the second attesting witness on the attestation form. That is a fatal error. The absence of an essential element of a constitutional law requisite makes the petition incomplete and hence, an incompetent legal document for challenging an election result.
    
23. The omission is not a mere typographical error which in the normal course of events may be cured by inserting the correct word, figure, name, date, or time. Such a fundamental defect in a petition cannot be rectified simply by subsequent evidence or submissions. And no amount of counsel persuasive contentions can cure a material defect in the petition. This view is consistent with the facts in Delba Biri v Bill Gembogl Ninkama (supra) where the attesting witnesses failed to give a description of his occupation as required by s. 208 (d) of the Organic Law. The Supreme Court said:
    

“It may be said that the requirement that a witness's occupation must be stated is not important or that it is not suitable to the circumstances of the country. 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)).”

24. In Mapun Papol v. Anthony Temo [1981] PNGLR 178, the petition did not contain the signatures of attesting witnesses. The court there found that the equivalent to s. 210 meant, unless the requirements of the equivalent of s 208 and s. 209 were complied with, there can be no proceedings in the National Court as a matter of law. See also, Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151
    
25. The proper course is to apply to amend the petition, supported by the witness’s affidavit. The amendment must, however, be sought within the prescribed 40 days limit in s 208 (e) of the Organic Law or anytime, under the auspicious of correcting a typo or clarifying the information that is already on the attestation form. In my view, that is when the argument on substantial compliance and substantial merits and good conscience of each case without regard to legal forms and technicalities under s 217 of the Organic Law may be properly raised for determination by the Court. The petitioner failed to do that in this case.
    
26. Having failed to take corrective measures, the petition has remained materially and irreparably defective since filing.
    
27. Returning to the second limb of s 208 (d) on the question of adequacy and veracity of the relevant information given, the Court has discretion to decide, upon a quick perusal and assessment of the information available, whether the details provided are sufficient or is in substantial compliance with the requirement.
    
28. In this case, a material irregularity in relation to the addresses of the two attesting witnesses which the parties missed or overlooked, deserved substantial compliance consideration. The first attesting witness cited his address as, “Wau (Maus Pipe), Ward 10, Wau Urban LLG, Wau Waria District.” The second attesting witness stated his address as, “Ward 9, Wau Urban LLG, Wau Waria District.”
    
29. The addresses clearly lacked sufficient detail and clarity. It raises the issue of whether the addresses are sufficiently compliant with the requirement to state the addresses precisely as detailed in Form 1of the Consolidated Election Petition Rules.
    
30. There are lines of authorities that say, the attesting witnesses should provide sufficient details of their addresses so that they are easily located. See, Raymond Agonia v Albert Karo(supra); James Yoka Ekip v Simon Sanake & Ors. (2012) N4899; Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151; Paru Ahi v Sir Moi Avei (supra).
    
31. On this second consideration, the form must be viewed on the whole to assess whether the particulars of the names, addresses and occupations of the attesting witnesses are sufficient or in substantial compliance for the purpose of s. 208 (d). This view is fortified by the statement in, Raymond Agonia v Albert Karo (supra) that:
    

“The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply his village."

(Emphasis mine)

32. In Albert Karo v Lady Kidu (1997) N1626 Injia, J (as he then was) stated:
    

"In my view, OLNE s. 208 (d) simply requires an "address". Section 208 (d) does not require a residential address. I agree with Sheehan, J's statement of the purpose of s. 208 (d). I would also agree with His Honour that the requirement to specify "residential address" on a Petition may depend on the "personal circumstances" of the witness. In my view, s. 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address.”

(Emphasis mine)

33. While I accept that s.208 (d) does not specifically differentiate between residential and postal addresses, the leaning towards residential addresses is clear from Form 1 and case authorities. If one or both addresses are given, it must be clearly stated with sufficient description. In this case, the attesting witnesses named their residential addresses merely as, Wau, Ward 9, and Ward 10 Wau Urban LLG, Wau Waria District, without a section and allotment number (assuming the reference is confined to the town boundary). This is far too broad because an LLG Ward would be defined by a boundary within which streets, hamlets or villages exist.
    
34. As a legal document which form and substance are governed by provisions of a constitutional law, all the required information must be given with clarity. Use of broad descriptions is susceptible to misunderstanding and assumptions. It is a recipe for confusion and uncertainty.
    
35. In my view, the descriptions of the addresses given in this case are insufficient and thereby add to the incompleteness of proof of the petition by attesting witnesses. Consequently, the Petition form is incompetent.
    
36. Section 208 (d) states in mandatory terms that two witnesses must attest to the petition stating their addresses, occupations and must sign the document. Whether the names and descriptions given are succinct, clear, and capable of being easily understood by an ordinary man is a question of fact. It is a matter of discretion on assessment of the available information and any evidence called on the facts or descriptions given on the attestation section of the petition.
    
37. One must always bear in mind; the whole purpose of that information is to authenticate the document and to ensure that the witness is readily identified, he can be easily located and that he has the capacity to witness a legal document.
    
38. Because the second limb of s. 208 (d) requires considerations of sufficiency of evidence, I am of the view, that s. 217 considerations are relevant because in this decision-making process the Court is called upon to weigh up the sufficiency of evidence on a preliminary application touching the competency of the proceeding. Section 217 requires the National Court to be guided by substantial merits and good conscience of each case without regard to legal forms and technicalities or whether the evidence before it is in accordance with the rule of evidence or not.
    

Conclusions

39. Particulars of names or description of addresses and occupations must be precisely set out with sufficient clarity from available information. Insufficient information and description on these essential elements of s. 208 (d) may render the petition incompetent on a further consideration.
    
40. The petition in this case does not include the “occupation” of an attesting witness. It is fatal against petitioner to omit an essential requirement under s 208 (d) of the Organic Law. The attestation clause also did not provide sufficient description of the addresses of the attesting witnesses. Consequently, the petition fails the test of competency. It stands to be dismissed.
    
41. Having found, that the attestation section is materially defective; I need not consider the other grounds of objection to competency of the petition.
    

ORDER

42. It is ordered that:

1. The objections to competency of the petition are upheld.
2. The petition is wholly dismissed.
3. The petitioner shall pay the respondents’ costs in relation to the petition in the fixed sum of K2,500.00 each.
4. The Registrar shall promptly forward to the clerk of the National Parliament a copy of this order pursuant to s 221 of the Organic Law.
   

_____________________________________________________________________
Luthers Lawyers: Lawyers for the Petitioner
Solomon Wanis Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second & Third Respondent