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Banasi v Orme [2023] PGNC 54; N10163 (21 March 2023)

N10163

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 72 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
SUMKAR OPEN ELECTORATE

ROBERT BANASI
Petitioner

V

ALEXANDER ORME
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 17^th, 21^st March

ELECTIONS – petitions – application for summary dismissal of petition – whether petitioner has standing – whether petitioner qualified to be candidate in election – whether petitioner enrolled to vote – common roll – Organic Law on National and Local-level Government Elections, s 208(c) – whether a person who was a candidate but not enrolled to vote in an election can file a petition disputing return of successful candidate.

After an election petition was set down for trial, the first respondent, who was the successful candidate at the election the subject of the petition, filed a motion seeking summary dismissal of the petition. The first respondent, who was supported by the second respondent, argued that the petitioner, who was a candidate in the election, was not on the common roll for the electorate and lacked standing to bring the petition.

Held:

(1) There was sufficient evidence to find that the petitioner’s name was not on the common roll for the electorate.

(2) The effect of s 208(c) of the Organic Law is that to have standing to bring a petition, the petitioner must have been a candidate at the election in dispute or qualified to vote at the election.

(3) Though the petitioner was actually a candidate, he was not a qualified candidate as he was not on the roll for the electorate. Nor was he qualified to vote at the election, due to his name not being on the roll.

(4) The petitioner lacked standing to bring the petition. Therefore, the petition was dismissed.

Cases Cited

The following cases are cited in the judgment:

Kapi v Kapi (1998) SC548
Kapi v Kapi (1998) SC570
Korry v Wei (2012) N4878
Masive v Okuk [1985] PNGLR 263
Nomane v Anggo (2003) N2384
Nomane v Anggo (2003) N2495
Sauk v Polye (1999) SC644

Counsel

M M Giruakonda, for the Petitioner
S G Dewe, for the First Respondent
P Kuman, for the Second Respondent

21^st March, 2023

1. CANNINGS J: After the election petition regarding the Sumkar Open seat was set down for trial, the first respondent, Alexander Orme, who was the successful candidate at the election, filed a notice of motion seeking summary dismissal of the petition. He argues that the petitioner, Robert Banasi, has no standing as, although he was a candidate in the election, he was not on the common roll for the electorate.

2. Two issues arise. The first is a question of fact. Was the petitioner on the common roll? The second is a question of law. If he was not on the roll, does he have standing to file a petition disputing the result of the election?

WAS THE PETITIONER ON THE COMMON ROLL?

3. The first respondent has adduced evidence to show that the name of the petitioner was not on the roll of electors for the Sumkar Open seat in the 2022 general election. The petitioner has not contested the evidence. I find as a fact that the petitioner was not on the common roll.

DOES THE PETITIONER HAVE STANDING?

4. Section 208(c) of the Organic Law states:

A petition shall ... be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election.

5. This means that to have standing to bring a petition, a petitioner must:

(i) have been a candidate at the election in dispute; or

(ii) qualified to vote at the election.

6. As to (i) the only proper way to interpret this condition is that the person must be a qualified candidate. It is not enough to have been a candidate. You must be a qualified or proper candidate.

7. As to (ii) a person is only qualified to vote at the election if their name is on the roll of electors (the common roll) maintained by the Electoral Commission under Part V (electoral rolls) of the Organic Law. A person who is not qualified to vote is not qualified to be a candidate for election or a member of the Parliament. That is the effect of s 103(3)(a) of the Constitution, which states:

A person is not qualified to be, or to remain, a member of the Parliament if ... he is not entitled to vote in elections to the Parliament.

8. There is a consistent line of authority supporting the above propositions: the Supreme Court decisions in Kapi v Kapi (1998) SC548, Kapi v Kapi (1998) SC570 and Sauk v Polye (1999) SC644; and the National Court decisions in Masive v Okuk [1985] PNGLR 263, Nomane v Anggo (2003) N2384. Nomane v Anggo (2003) N2495 and Korry v Wei (2012) N4878.

9. The Supreme Court (Woods J, Sawong J, Kirriwom J) explained the position in Kapi v Kapi (1998) SC548 as follows:

It is our view that the intention and spirit of the provisions we have referred to above, is that in order for a person to stand for and vote in an Election, is that he or she must comply with the provisions of the Organic Law relating to enrolment. A person cannot vote or stand for elective office, if he or she has not been enrolled in the first place. If a person has not enrolled in accordance with the provisions of the Organic Law, then that person is not qualified to be entitled to vote in elections to the Parliament. It follows that such a person is not qualified to be a or remain a member of Parliament (s 103(3) of the Constitution).

To be entitled to vote, one must comply with these requirements of the Organic Law on enrolment. In other words, a person must be enrolled in order to exercise that right to vote. If a person has not enrolled then that person is not entitled to vote nor stand for an election. A person must be qualified to stand and or vote in an election. If a person is not qualified then that person cannot stand and or vote in an election.

9. The principle that an un-enrolled candidate has no standing as a petitioner was reinforced the following year in Sauk v Polye (1999) SC644. Don Polye was a candidate in the 1997 election for Kandep Open. He brought a successful petition in the National Court against the election of the successful candidate, Jimson Sauk, who then applied to the Supreme Court for review of the National Court decision. The Supreme Court (Sheehan J, Jalina J, Sawong J) held:

The first respondent nominated as candidate for the Kandep Open electorate in the name Don Pomb Pollie Polye from Kokosa village. But the undisputed evidence is that that name does not appear in the common roll whether in respect of a person from Kokosa, or anywhere in the electorate at all. The learned trial judge accepted the first respondent's evidence that in fact he is one and the same person as Don Pela of Gina Rest House, subsistence farmer, a name he said was used by him at school and subsequently in tertiary education. This was shown by school and tertiary certificates, driver's licences and the like.

But whether the first respondent is in fact truly Don Pela or not is of no consequence for the electoral process. The law is very clear. A person not enrolled as an elector cannot vote and cannot be a candidate for election. This Court made that clear in Kapi v Kapi (1998) SC548.

Therefore since the clear evidence before the trial judge was that there was no person in the name of the first respondent recorded in the common roll for the Kandep Open electorate the petitioner was without standing and could not be heard. The only conclusion that the court could have come to was to strike the petition out. In failing to do so the National Court acted outside its jurisdiction.

10. A person who is not qualified to be a candidate who nominates to be a candidate can have their nomination rejected by the Electoral Commission under s 87(2) of the Organic Law. That is what should have happened here, but it didn’t, and the petitioner, an unqualified candidate, was allowed to contest the election.

11. I am persuaded by the submissions of Mr Dewe for the first respondent that, though the petitioner was a candidate at the election, he was an unqualified candidate. Further, he was not qualified to vote at the election. The petitioner fails to meet either of the conditions under s 208(c) of the Organic Law to have standing to file a petition.

CONCLUSION

12. The petitioner lacks standing to bring the petition. The petition must be dismissed.

13. I will order that the petitioner pay the first respondent’s costs of the petition. The Electoral Commission will bear its own costs due to its lack of diligence in accepting the nomination of the petitioner, who was not a qualified candidate.

ORDER

(1) The first respondent’s application by notice of motion filed 9 March 2023 for dismissal of the petition is granted.

(2) The petition is wholly dismissed pursuant to s 212(1)(i) of the Organic Law on National and Local-level Government Elections.

(3) Subject to any other orders as to costs, the petitioner shall pay the first respondent’s costs of the proceedings, on a party-party basis, which shall, if not agreed, be taxed.

(4) The second respondent will bear its own costs of the proceedings.

(5) The Registrar shall forthwith refund to the petitioner the security for costs deposited under s 209 of the Organic Law on National and Local-level Government Elections.

(6) The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.

_____________________________________________________________
Giruakonda Solicitors & Barristers: Lawyers for the Petitioner
Jema Lawyers: Lawyers for the First Respondent
Kuman Lawyers: Lawyers for the Second Respondent