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Vele v Parkop [2013] PGNC 208; N5415 (8 November 2013)

N5415

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP NO. 103 OF 2012

IN THE MATTER OF ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND:

IN THE MATTER OF THE DISPUTED RETURN OF ELECTION RESULTS FOR NATIONAL CAPITAL DISTRICT PROVINCIAL SEAT

BETWEEN:

WARI VELE
Petitioner

AND:

POWES PARKOP
First Respondent

AND:

CYRIL RETAW,
Returning Officer for the National Capital District Provincial Electorate and Election Manager, NCD
Second Respondent

AND:

RICKY FUGUNTO,
Acting Returning Officer for the National Capital District Provincial Electorate
Third Respondent

AND:

ANDREW S. TRAWEN,
Electoral Commissioner of Papua New Guinea
Fourth Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Kassman J
2013: 11th July & 8th November

ELECTIONS – PRACTICE AND PROCEDURE - objection to competency of election petition - prerequisites of election petitions – discussion of – grounds of petition mainly errors and omissions of electoral commission officers – grounds in petition that seek to invalidate election and return stated in petition incompetent – petition dismissed with costs to petitioner

Cases Cited:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Sauk v Polye and Electoral Commission [2004] SC 769
Karo v Kidu (1997) N1626
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
SCR No.4 of 2002 A Special Reference to Constitution section 19; Reference by Francis Damem, Attorney General [2002] SC689
Ijape v Kimisopa (2003) N2344

Legislation Cited:

Constitution Section 155(2)(b), Section 122 and Schedule 1.16
Organic Law on National and Local Government Elections Section 206, Section 210, Section 208(a), (c) and (e), Section 218 and Section 177
National Court Election Petition Rules 2002 Rule 2(2) and Rule 15

Counsel

Brendan Lai, for the Petitioner
Patrick Harricknen, for the First Respondent
Lance Okil, for the Second, Third, Fourth and Fifth Respondents

DECISION
(Objections to the competency of the petition)

8th November, 2013

1. KASSMAN J: In the year 2012, National General Elections were conducted for the Papua New Guinea National Parliament. The National Capital District ("NCD") is one of the provincial electorates for which writs were duly issued. Within the NCD are three open electorates namely Moresby South, Moresby North East and Moresby North West.
   

Background facts

2. Wari Vele ("Vele") and Powes Parkop ("Parkop") both nominated for and contested the elections in respect of the National Capital District Provincial Electorate.
   
3. On 8 August 2012, Parkop was declared the duly elected member for the National Capital District Provincial Electorate.
   
4. In this proceeding, Vele challenges the validity of that return and is named as the Petitioner while Parkop is named as the First Respondent.
   
5. The Second Respondent Cyril Retaw ("Retaw") was the Electoral Commission's Returning Officer for the NCD Provincial Electorate who was subsequently replaced by the Third Respondent Ricky Fugunto ("Fugunto"). The Commissioner Andrew Trawen and the Electoral Commission of PNG are named separately as the Fourth and Fifth Respondents respectively. Together in this matter, they are all referred to as the Electoral Commission ("EC").
   
6. The Petition was filed on 14 September 2012. On 11 October 2012, Notices of Objection to the Competency of the Petition were filed by Parkop and the EC.
   
7. Rule 15 of the National Court Election Petition Rules 2000 ("EP Rules") states the Court shall deal with the petition and any challenges to the competency of the petition at the hearing.
   
8. I heard submissions from all parties on 11 July 2013 and adjourned to rule first on both objections to competency. In addition to considering the petition in the context of both objections to competency, I have also considered the written submissions of Parkop filed 26 April 2013, EC filed 1 July 2013 and Vele filed 5 July 2013. I also have before me the Affidavit of Patrick Harricknen filed 11 October 2012 and the precedent Form 103 Election petition (ATSI Act) Federal Court of Australia.
   
9. At this juncture, I state for the record that I also preside over two other petitions arising from the same election for the NCD provincial electorate and the return of Parkop and those are the petition of Michael Kandiu in proceeding EP No. 104 of 2012 and the petition of Aiwa Olmi in proceeding EP No. 105 of 2012.
   
10. As with this petition, I have heard submissions on objections to competency of those petitions and will also deliver my rulings in those matters separately.
    
11. In this Petition, Vele alleges errors and omissions on the part of the EC. Vele does not raise any allegations against Parkop.
    
12. By section 206 of the Organic Law on National and Local Government Elections, the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise and by section 208(c) only a candidate or voter may sign the Petition.
    
13. Here there is no challenge to the eligibility of Vele in signing and filing the Petition and it is not disputed that Vele was a candidate and eligible voter in the NCD provincial electorate.
    
14. In this Petition, Vele alleges errors and omissions on the part of the EC in the counting of votes for the NCD Provincial Electorate. As stated above, there are no allegations raised concerning Parkop.
    
15. The "elections" in essence covers a number of stages commencing with the issue of the writs for the conduct of the elections, nominations and campaigning, the conduct of polling and its scrutiny, the conduct of counting and its scrutiny, the declaration of results and declaration of the winner or member elect and the return of the writs.
    
16. As the NCD Provincial Electorate is a provincial electorate, polling or the casting of votes for the provincial electorate took place at polling booths in the three open electorates of Moresby South, Moresby North East and Moresby North West when polling was simultaneously conducted for those open electorates. In other words, a voter on being permitted to enter the polling booth was eligible to cast a vote or votes, this election being by preferential voting, for the candidate or candidates of his choice for the open electorate and separately but at the same time for the NCD provincial electorate. All ballot papers were then inserted into ballot boxes and transported to the appropriate locations for counting.
    
17. At the counting stage, ballot boxes from each open electorate of Moresby South, Moresby North East and Moresby North West containing ballot papers cast for the respective open electorates and the NCD provincial electorate were opened and counted at separate counting areas for the three respective open electorates. As counting progressed in each of the three counting centres in NCD, the results for the NCD provincial electorate were then tallied and relayed for registration at the NCD provincial electorate counting centre.
    
18. As stated above, Vele alleges errors and omissions on the part of the EC in the counting of votes for the NCD provincial electorate.
    
19. Vele's petition is in three parts essentially.
    
20. The first part of the Petition is titled "A. Background" and comprises paragraphs 1 to 12 which provide general background information. This covers basic facts as to the nomination of Vele and Parkop, the appointment of officers of the EC in respect of the NCD provincial electorate and their responsibilities and the role of the EC generally, the issue of writs, polling and the fact a total of 27 candidates participated in elections for the NCD provincial electorate.
    
21. Paragraph 11 pleads basic facts as to the dates for return of the writs, the dates when counting of votes commenced and ended for the three open electorates of Moresby South, Moresby North East and Moresby North West and the NCD provincial electorate, the extension of dates for the return of writs, the final result with Vele collecting 35,940 votes and Parkop collecting 43,698 votes a difference of 7,758 votes, the fact that 12 ballot boxes from the Moresby North East electorate were subject of dispute and subsequently rejected or disallowed from counting by the EC and Parkop being declared as the member elect for the NCD provincial seat at 1:50pm on 8 August 2012.
    
22. Paragraph 12 merely states Vele disputes that declaration.
    
23. In all, there is no pleading of an error on the part of the EC raised in paragraphs 1 to 12 of the petition and the background facts are not contested in any material form or manner.
    
24. The second part of the petition is titled "Grounds of Petition - Errors and Omissions" and comprises paragraphs 13 and 14.
    
25. Paragraph 13 is titled "Errors and Omissions of the Provincial Returning Officer (PRO) and Electoral Officials" and essentially pleads that in the course of counting of votes for the Moresby North East open electorate, 12 ballot boxes were subject of dispute and subsequently rejected or disallowed from counting by the EC. In the course of deliberations over such dispute, counting of the votes for the NCD provincial electorate was delayed while the Provincial Returning Officer Retaw attended meetings with scrutineers, police and EC officers. Vele alleges the counting of votes for the NCD provincial electorate was unnecessarily delayed by the absence from the counting venue by Retaw resulting in the loss of four days in the counting schedule.
    
26. Paragraph 14 is titled "Errors and Omissions by the Fourth and Fifth Respondents during counting of the ballot papers for the National Capital District Provincial Electorate" and pleads that, unlike other parts of the country which had in each polling booth separate ballot boxes for the open and provincial electorates, in the NCD there was only one ballot box in each polling booth into which ballot papers for both the open and provincial electorates were inserted. Vele alleges this was an error and/or omission on the part of the EC. Further, Vele alleges that as a consequence of disputes raised by candidates in the open electorate of Moresby North East that resulted in the EC decision to disallow the twelve ballot boxes from counting, the ballot papers for the NCD provincial electorate that were inserted in the subject twelve ballot boxes were not counted and candidates for the NCD provincial electorate "did not have the opportunity to have their votes scrutinized and counted." Vele alleges the twelve ballot boxes affected contained 9833 ballot papers, a total that exceeds the difference in the final tally of votes between Vele and Parkop of 7,758 votes. Vele alleges that as a result of the errors and omissions of the EC, "... the results could have been affected and there was sufficient doubt as to the integrity of the declaration ..."
    
27. The third part of the petition is titled "C. Relief Sought" and contains the relief sought by Vele including a declaration that Parkop was not duly elected and a declaration that the election was absolutely null and void and a by-election be conducted for the NCD provincial electorate.
    

Objection to competency of the petition

28. Section 208 of the Organic Law on National and Local Level Government Elections provides in mandatory terms that a "petition shall set out the facts relied on to invalidate the election or return". Section 210 goes on to state "Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with."
    
29. On these provisions, I am bound by the leading judgment of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 where it was stated "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." The petition must contain the facts relied on to invalidate the election or return. Any failure to do so will render the proceeding incompetent because of section 210 of the Organic Law.
    
30. The Supreme Court in Holloway v Ivarato [1988] PNGLR 99 said what constitutes "facts" under section 208(a) "are the 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 proven. The purpose of the pleading is to indicate clearly the issues upon which the opposing part may prepare his case and to enable the court to see with clarity the issues involved."
    
31. I will now deal with the objections to the competency of the petition filed by Parkop and the EC.
    
32. Firstly, Parkop challenges the competency of the petition as an originating process in terms of its form as filed. The EC did not support this contention.
    
33. Parkop says the petition was not filed in accordance with section 208(e) of the Organic Law "in that the petition was sealed at the National Court without the endorsement signature of the Registrar of the National Court thus questioning the authenticity of the filing." This was all that was set out in the objection filed by Parkop and would have left the Petitioner Vele hanging with that bare statement and without any idea as to the foundation for such an objection.
    
34. In Parkop's submissions he advances his argument by saying "the Petition does not have the signature of the Registrar or the next competent person provided under the Election Petition Rules. The petition has not been attested or endorsed by the Registrar or the next competent person."
    
35. Parkop relies on Rule 2(2) of the National Court Election Petition Rules 2002 which provides "For Port Moresby, all petitions are filed at the Waigani Registry with the Registrar of the National Court and in all other places; petitions are filed with the Clerk of Court, except in the registries established under the National Court Act where they are filed with the Assistant Registrar." I have underlined the words "with the Registrar" which are the words that Parkop alleges to mean "naturally that the Registrar has to check the petition and sign the petition and impress the court seal. He cannot simply impress the seal. Anybody can impress the seal. The signature authenticates the filing at the Registry before the Registrar."
    
36. I am not convinced that this interpretation by Parkop holds any serious weight. To read in such a prescription would be reading in what is not in fact stated or intended in the rule referred to. I am not convinced that it is open to this court to make such an interpretation. This would have to be a matter for the Rules Committee and not one for interpretation in the manner proffered by Parkop.
    
37. Further, there is nothing in the Organic Law that requires the Registrar's signature on the petition. In this regard, I agree with Mr Lai's submissions for Vele and also find solid basis in the judgement in Review Pursuant to Constitution Section 155(2)(b); Sauk v Polye and Electoral Commission [2004] SC 769 where the Supreme Court said "In respect of the first ground of the competency challenge, we hold section 206 Organic Law only stipulates the method by which an election or its return can be challenged in the National Court. We accept the applicant's submission that the stipulated method is by petition "addressed, directed, dispatched or presented to the National Court and no other tribunal". This provision contains no other conditions requiring strict compliance as to the form a petition shall take. Nor, indeed, do the Organic Law or the National Court Petition Rules. Section 208 organic law alone sets out the essential matters that must be provided for in a valid petition invoking the jurisdiction of the National Court."
    
38. Parkop also seeks to draw analogy to the signature of the Registrar appearing in originating process filed pursuant to the National Court Rules such as a Writ of Summons and Originating Summons but this is clearly a misconception.
    
39. Firstly, the National Court Rules contains prescribed forms for a Writ of Summons and an Originating Summons and provides that such originating process must be in such form and no other. In those originating processes, the claim of the plaintiff is set out in the statement of claim while the command to the defendant to do an act within a specified time for example to file and serve notice of intention to defend within 30 days of service of the writ is a command set out in the writ which is signed by the registrar and the National Court Rules spell out the foundation for that. That is a command of the court through the registrar. On the signing of the writ by the registrar with the seal affixed, that document becomes a legal document. The consequence of default judgement in the event of a failure to comply by the defendant has foundation from the writ containing the signature of the registrar and having the seal of the court affixed. Without that, the writ has no significance.
    
40. There is no prescribed form of a petition in the National Court Election Petition Rules 2002. These rules provide for a Form 1 Notice to Appear which is required of the respondents to the petition which would ordinarily include the EC and the declared member elect. Then there is Form 2 Notice of Date, Time and Venue for Directions Hearing which does contain provision for the signature of the Registrar. That is naturally the case as it is the Registrar who allocates the date, time and venue for the directions hearing in consultation with the Judge Administrator for election petitions and any non-attendance by a party may carry a consequence including costs or even dismissal of the petition in accordance with the rules.
    
41. This objection raised by Parkop is dismissed.
    
42. The objections to the competency of the petition filed by both the EC and Parkop attack paragraphs 13 and 14 of the petition which are the essential grounds of the petition.
    
43. As to paragraph 13 of the petition, the EC and Parkop say this ground merely pleads the conduct of Retaw led to delays in the counting but then Vele fails to plead how the errors and omissions allegedly committed by Retaw in attending the meetings over the disputed 12 ballot boxes and delaying counting by four days affected the election results thus warranting the relief sought.
    
44. Section 218 of the Organic Law provides that an election cannot be avoided on account of a delay in the return of the writ or on account of an error of, or an omission by, an officer which did not affect the result of an election.
    
45. I must agree with the submissions of the EC and Parkop that in considering whether a valid ground or argument is made out, this court must first ascertain whether an error or omission is made out in the petition and then whether such error or omission affected the result of the election.
    
46. In the conduct of elections, including counting, the functions, powers and responsibilities of officers of the EC are as prescribed specifically by the electoral laws. In this case, the essential law is the Organic Law on National and Local Level Government Elections. In general, officers of the EC are also bound by all other laws including the Criminal Code and the Constitution. The conduct of Retaw described in paragraph 13 of the petition is not pleaded as being in breach of a statutory provision or a constitutional duty. This is similar to the circumstances of the case in Karo v Kidu (1997) N1626.
    
47. Section 218 is clear in providing that "an election shall not be avoided on account of a delay in ... declaration of the poll or the return of the writ, or on account of the absence or error of, or an omission by, an officer which did not affect the result of the election."
    
48. In Sai-Sailon Beseoh v Yuntivi Bao (2003) N2348, Injia J, (as he then was) said "Section 218 has two parts. First, the delay error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate how that delay, error or omission did affect the result of the election. Mere pleading delay in the polling and errors and omissions will not suffice."
    
49. Here the conduct complained of is delay in the counting of votes but, as stated above, the petition fails to plead that such action or conduct of Retaw was in breach of a duty imposed by a statutory provision or the Organic Law or Constitution or indeed any other law.
    
50. Further, there is no allegation that the results of the election were affected by the conduct of Retaw that led to the delays in counting. Ground 13 does not demonstrate how the error or omission, as alleged, affected the election results. As such, on this bare pleading, paragraph 13 is incompetent as failing to meet the requisites of section 218 of the Organic Law.
    
51. As to paragraph 14 of the petition, again Vele merely pleads that, unlike other parts of the country which had in each polling booth separate ballot boxes for the open and provincial electorates, in the NCD there was only one ballot box in each polling booth into which ballot papers for both the open and provincial electorates were inserted. Vele fails to plead that such alleged error or omission was in breach of duty imposed by a statutory provision or the Organic Law or Constitution or indeed any other law.
    
52. In other words, Vele has failed to plead that the provision of just one ballot box to each polling booth into which ballot papers for both the open and provincial electorates were inserted was a breach of a statutory duty or other law. In essence, Vele pleads that at least two ballot boxes should have been provided at each polling booth and/or that ballot papers for the open and provincial electorates should have been separately stored in respective ballot boxes. Even though it is arguable that would be an appropriate or even logical or proper arrangement, it is not a requirement that is prescribed by the organic law or any other statutory or constitutional law.
    
53. I agree with the submissions of Mr Okil for the EC where he says the extent of the EC's duty to provide ballot boxes is defined by section 122 of the Organic Law, and the relevant part is sub-section (1) which provides "Each polling booth shall be provided with the necessary ballot box or ballot boxes." There can be no doubt that Section 122(1) simply requires the provision of "the necessary ballot-box or ballot-boxes" and it does not prescribe the provision of more than one ballot box at a polling booth. It is for the Electoral Commission to decide in the exercise of its discretion the number of ballot boxes to be provided at each polling booth. That exercise of discretion cannot be challenged in the manner adopted by Vele in his Petition.
    
54. Further, there is an attempt to plead that the result of the election was affected by this alleged error or omission but, with respect, all Vele pleads is that if the NCD provincial electorate ballot papers were stored in separate ballot boxes, those ballot papers would not have been affected by the dispute raised by the aggrieved candidates from the Moresby North East electorate and would have been available for scrutiny and counting by officials in the NCD provincial electorate. From the pleadings in the petition, the ballot boxes were omitted from the count by a decision of the EC. That decision of the EC has not been challenged. That decision of the EC remains a valid and lawful decision. This court cannot overturn such decision without such decision being made the subject of a lawful challenge. Unless and until that decision of the EC is lawfully overturned, it is not open to the court to draw any other inference in the manner advanced by Vele in paragraph 14 of his petition.
    
55. As such, on this bare pleading in paragraph 14 of the petition, it is incompetent as failing to meet the requisites of section 218 of the Organic Law.
    
56. Although this was not clearly raised in the Petition as a ground to invalidate the election or return, in submissions filed and advanced at the hearing of the objections to competency, Vele "is taking issue with the second extension" of the date for return of the writs from 1 August 2012 to 8 August 2012. Vele concedes the EC has the power under section 177 of the Organic Law to extend the time for returning of the writ and that power was correctly exercised when the first extension was made from 27 July 2012 to 1 August 2012. Section 177 provides:
    

"Extension of Time

(1) Notwithstanding any provisions of this Law but subject to this section, the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, may, where special circumstances require and he is of the opinion that it is necessary to do so, extend such time as is necessary:-

• (a) For holding the election; or
  
• (b) For taking of nominations; or
  
• (c) For polling; or
  
• (d) For returning the writ,
  

and provision so made shall be valid and sufficient.

(2) In exercising the powers under this section to extend time, the Electoral Commission shall endeavour to ensure that the majority of the writs in a general election are returned at least five days before the anniversary of the term of the current Parliament.

(3) In the case of an extension of time under Subsection (1), public notice of the extension shall be immediately given in the electorate or the portion of the electorate for which the election is to be held."

57. Vele argues that power can only be exercised once and as such there could be no further extension from 1 August 2012. The declaration of the return of Parkop as member elect was made on 8 August 2012 and that was after the deadline for the return of the writ for the NCD provincial electorate.
    
58. Vele relied on the decision of the Supreme Court in SCR No.4 of 2002 A Special Reference to Constitution section 19; Reference by Francis Damem, Attorney General [2002] SC689 and submits the power to extend can only be exercised once and once the polling period expires, no further extension is possible under section 177 of the Organic Law.
    
59. Firstly, it is clear the petition does not raise this as a distinct ground that should invalidate the election or return. At most, in paragraph 11 of the petition Vele sets out a narration of events including the extension of dates for return of the writ. The pleading of grounds to invalidate the election or return are clearly set out in paragraphs 13 and 14 of the petition. That is made clear from the sub-heading "B Grounds of Petition – Errors and Omissions" that appears above paragraphs 13 and 14 of the petition. Those two paragraphs do not raise issue as to the validity or otherwise of the second extension of the date for return of the writ.
    
60. This assessment is also reinforced by a perusal of the relief sought by Vele in his petition. That is contained in the third part of the petition. There is no prayer for relief seeking a declaration that the second extension of the dates for the return of the writ from 1 August 2012 to 8 August 2012 was unlawful or unconstitutional.
    
61. I agree with Mr Okil for the EC that the failure to plead the facts distinctly or properly is tantamount to a failure to comply with section 208(a) of the Organic Law. The observations of Kandakasi J in Ijape v Kimisopa (2003) N2344 are pertinent:
    

"In my view, these authorities make it clear that a petitioner is under an obligation to set out the facts he relies on to invalidate an election, with precision and clarity. He must not leave the court and the respondents to the petition guessing as to what is being alleged. Where a petition relies on a breach of a statutory or constitutional duty, that provision must be set out besides the alleged facts. A petition could stand on either one or more grounds. As such, each ground of a petition must be clearly pleaded together with any relevant provision of a statute or the constitution by setting out the facts relied on. ... it is not for the court and the parties to work out what is really being alleged by the petitioner. If the court were to read a petition as one without being indicated in the petition, it would have the effect of amending a petition which is not possible by reason of section 208(e) ..."

62. As I have already pointed out above, the petition clearly raises two grounds to invalidate the election or return and those are contained in paragraphs 3 and 14 of the petition. To read in what Vele is now submitting amounts to an amendment to the petition. That is not allowed by section 208(e) of the Organic Law. There is ample authority that amendments to a petition once filed can only be made within the time provided for the fling of the petition and that is within forty days after the declaration of the result of the election.
    
63. Having heard submissions, I am also of the view that although the Supreme Court did say that the power to extend can only be exercised once under section 177 of the Organic Law, the Supreme Court did also say the EC may rely on schedule 1.16 of the Constitution "to deem an appropriate extension of a period or time necessary to enable practical compliance with the requirement to return the writs by the date fixed for return of the writ...".
    
64. Here, the EC did secure an extension of time which was formally made on the signing of the appropriate instrument by the lawful authority and that is the Head of State. This was not challenged and as such remains valid. It is not open to this court on the petition filed to quash such instrument. That is a matter for another court when an appropriate application is filed.
    
65. In conclusion, I have found the grounds in the petition that seek to invalidate the election and return as contained in paragraphs 13 and 14 of the petition are incompetent.
    
66. There are no grounds remaining to go to trial. The petition is dismissed with costs to the Respondents.
    
67. The formal orders of the court are:
    
    1. The notices of objection to competency of the Petition are upheld.
       
    2. The Petition is dismissed.
       
    3. The Petitioner shall pay the Respondents' costs on a party to party basis, to be taxed, if not agreed.
       
    4. The security deposit of K5,000.00 paid by the Petitioner shall be paid in equal halves (K2,500 each) to the First Respondent and to the Second to Fifth Respondents.
       

Judgment accordingly
______________________________________________________________
B.S. Lai Lawyers: Lawyers for the Petitioner
Harricknen Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second, Third, Fourth and Fifth Respondents