N10207
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 43 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL AND LOCAL GOVERNMENT ELECTION & IN THE MATTER OF DISPUTED RETURN FOR THE KABWUM OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
HARING QUOREKA
Petitioner

AND:
PATRICK BASA
First Respondent

AND
PAPUA NEW GUINEA ELECTORAL COMMISSION
Second Respondent

Lae: Manuhu, J.
2023: 6th & 8th March

GENERAL ELECTIONS – Declaration under special circumstances – Petition – Competency of – Sufficiency of pleadings of facts and reliefs sought.

Cases Cited: 

William Hagahuno v Johnson Tuke [2020] SC2018
EP No. 70 of 2022; Gengewe Neritha Ganzik v. Hon Koni Iguan, MP & Electoral Commission.

Counsel:

M.J. Alu, for the Petitioner.
S. Ranewa, for the First Respondent.
H. Nii, for the Second Respondent.

8th March, 2023

1.	MANUHU, J.:  The substantive matter is an election petition disputing the result of the election for Kabwum Open Electorate in Morobe Province in the 2022 National General Election where the first respondent was declared the winner under special circumstances. The respondents have raised questions of competency in their respective objections.  The petitioner has also filed a notice of motion challenging the competency of the objections.

2.	In relation to the first respondent’s objection, the petitioner asserts that the first respondent did not file any affidavit within 21 days as required by Rule 12 (c) of the Election Petition (Miscellaneous Amendment) Rules 2022.  Counsel was told by the court that the requirement is applicable only when a respondent desires to use an affidavit.  Otherwise, for the purpose of the objections, the primary material is the petition and the pleadings therein.  An affidavit wouldn’t be necessary.  Counsel conceded.  The petitioner’s objection to the first respondent’s objection is therefore unmeritorious.

3.	In relation to the second respondent’s objection, the petitioner asserts that the objection was filed out of time.  Rule 12 (a) provides that a respondent who objects to the competency of a petition shall, within 21 days after service of the petition, file the objection and serve the objection on the petitioner and each respondent.

4.	The petition was filed on 9th of September 2022.  The second respondent was served on 12th of September 2022.  The second respondent filed its objection on 24th of October 2022.  Mr. Nii acknowledged the apparent non-compliance but argued that competency of a petition remains a live issue throughout the hearing of a petition.  It was also submitted that no prejudice was caused to the petitioner.

5.	I am of the view that the alternative argument by Mr. Nii is misconceived.  The immediate concern is that the second respondent’s objection was filed out of time, not by a few days but by 21 days.  National interest demands that election petitions must be heard and determined without delay.  The Rules prescribes timeframes to expedite hearings of petitions.  I find therefore that the second respondent’s objection is inexcusably incompetent and should be dismissed.

6.	Returning to the first respondent’s objection to competency of the petition, in summary, the first respondent says that the facts pleaded are too general, vague and confusing.  The petition is pleaded as a general complaint and therefore lacks particularities of facts as required by section 208 (a), 218 (a) and 210 of the Organic Law on National and Local Level Government Elections. It was contended that the facts pleaded do not constitute a ground of error or omission by the second respondent which affected the result of the election.
7.	The first respondent also argued that the petitioner is not entitled to the reliefs sought when he has failed to plead relevant and sufficient facts as required by section 208.  It was argued that the first respondent was duly returned as member for Kabwum Open Electorate and has been formally sworn in by the Governor General. Therefore, the petition cannot be allowed to stand.

8.	Under section 208, a petition must set out the facts relied upon to invalidate the election or return.  A petition must also specify the relief which the petitioner claims to be entitled. Under section 210, no proceeding shall be heard unless the requirement stated under section 208 are complied with. The powers of the court are set out in section 212 which includes declaring an election absolutely void.  I note the ruling in William Hagahuno v Johnson Tuke [2020] SC2018 and what it stands for.  

9.	I am also aware of the recent decision in EP No. 70 of 2022; Gengewe Neritha Ganzik v. Hon Koni Iguan, MP & Electoral Commission where the petition was adjudged incompetent.  The facts are probably similar to this case. However, pleadings in that case have not been brought to my attention.  In any case, the legal requirement to plead the facts is not the issue.  The issue here is whether the petition sufficiently pleaded the facts and the reliefs sought.  Each case should be decided on its own merits.

10.	In that regard, I have considered counsel’s submissions.  May I say that most of the cases that were relied upon by counsel relate to cases where counting were completed, and are therefore easily distinguishable from this case.  Bearing in mind the relevant principles and laws on pleadings, I am of the considered opinion that the petitioner has adequately pleaded the facts and grounds he relies upon to challenge the declaration by the Electoral Commissioner.

11.	Paragraphs B1 to B33 lay out the background facts in chronological order.  Included in that section is a table showing the progressive tally of top 5 candidates after the primary counting of 14 ballot boxes on 16th of July 2022.  The critical fact concerning this petition is the destruction of ballot boxes.  That is pleaded in paragraph B34. I have no difficulty understanding the pleadings.  The petition pleads the grounds of the petition in paragraphs C1 to C8.  Again, I have no difficulty understanding the grounds.  It is sufficient compliance with section 208.  
  
12.	In fact, the material facts are not disputed.  The Writs for the 2022 General Election were issued on the 28th of April 2022.  It was extended to 12th of May 2022.  The nomination opened for Kabwum Open Electorate on 19th to 26th of May 2022.  The petitioner was one of the 14 candidates who nominated to contest the election. The campaign period started on 12th of May and ended on 30th of June 2022.  Polling took place from 6th to 11th of July 2022 in 29 polling locations.  Counting commenced on 15th of July 2022 at Sir Bob Dadae Hall at Kabwum Primary School. A total of 14 ballot boxes were counted from 15th to 16th of July 2022.  A total of 15 balllot boxes remained to be counted when counting was suspended and deferred to 17th of July 2022.

13.	On 16th of July 2022, the top five candidates in the primary count were:

	Patrick Basa			5,498
	Don Sawong			2,850
	Mainuwe Motang Fenamu	1,893
	Haring Qoreka			1,046
	Noreo Giogi Keindip		   393

14.	In the morning of 17th of July 2022, supporters of candidates broke into the Kabwum District Office, brought all the ballot boxes out and completely destroyed them by burning them.  On 8th of August 2022, the first respondent was declared member-elect for Kabwum Open by the Electoral Commissioner under “special circumstances”.

15.	As I have mentioned, the foregoing material facts are not disputed.  The effect of that is that any pleadings on errors and omissions by the second respondent is overshadowed by the destruction of the ballot boxes. Likewise, any objection on failure to plead errors and omissions that may have occurred before the destruction becomes immaterial.  The conduct of the election in Kabwum, rightly or wrongly, is overtaken by the sabotage of the process when all the ballot boxes were completely destroyed.       

16.	Following the destruction of the ballot boxes, the first respondent was declared duly elected by the Electoral Commissioner under special circumstances.  The pleadings challenging the declaration are that on 25th of July 2022, the Electoral Commissioner made a decision under Section 96A that a supplementary election would be held for Kabwum Open Electorate. On the 2nd of August 2022, the second respondent issued directions under section 175 (1A)(a) to the Returning Officer not to make a declaration.  However, on 8th of August 2022, the first respondent was declared member-elect.  

17.	The declaration was, to say the least, unprecedented.  It raised a lot of questions than answers in the minds of ordinary Papua New Guineans.  Can the Electoral Commissioner make such a declaration where counting was sabotaged by unidentified arsonists and lawbreakers? Is the declaration fair on other candidates whose supporters may not have been involved in the destruction of ballot boxes. Does the declaration potentially encourage candidates in future elections to burn ballot papers to secure a similar declaration? These are valid questions but that is a digression.     

18.	Back to the petition, among other grounds, the petitioner pleaded that the second respondent failed to involve the Election Advisory Committee before making the declaration in question.  The declaration was in breach of section 96C(2)(a)(b) and (4).  The declaration was also in breach of section 50(1)(c), (d) and (e). It is also claimed that the Electoral Commissioner erroneously applied Section 175 (1A) when he made the declaration.  It is arguable that before a declaration under special circumstances, the Electoral Commissioner has to ensure that he is not breaching any provision of the Constitution. It is also arguable that he has to give reasons for his decision.  The questions raised in the petition are therefore valid questions.  In my view, there is sufficient compliance with the requirements of section 208. 

19.	I am also of the opinion that the petitioner has sufficiently pleaded the reliefs he may be entitled to.  Whether all or any of the reliefs can be granted would depend on the substantive findings of the court.  Given the uniqueness of the case, it may be unwise and premature to consider what the appropriate reliefs should be. For the purpose of section 208 (b), at least the reliefs are pleaded and, they are consistent with the complaints raised in the petition. 

20.	In the end, this is a case where if parties agree on the undisputed facts as outlined above, and if they agree on production of the reasons for the decision by the Electoral Commissioner to make the declaration under special circumstances, the trial would be completed expeditiously.  

21.	In the meantime, the first respondent’s objection is without merit and is dismissed with costs which, if not agreed, shall be taxed.  The matter shall proceed to trial.

Orders accordingly.
________________________________________________________________
Supersonix & Alu Lawyers: Lawyer for the Petitioner	
Kawat Lawyers: Lawyer for the First Respondent	
Harvey Nii Lawyers: Lawyer for the Second Respondent