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Graham v Electoral Commissioner of Papua New Guinea [2013] PGNC 356; N5216 (2 April 2013)

N5216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No.97 of 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION

BETWEEN:

JAMIE MAXTON-GRAHAM
Petitioner

AND:

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Respondent

AND:

DR. WILLIAM TONGAMP
Second Respondent

Minj: David J
2013: 2nd April

ELECTION PETITIONS – PRACTICE & PROCEDURE – application to join as a party – applicant an unsuccessful candidate – method of disputing validity of election or return prescribed by the Organic Law on National and Local-level Government Elections is by petition – consideration of principles on joinder to be a party – application dismissed – Constitution, Section 155 (4) - Organic Law on National and Local-level Government Elections, Part XVIII Div.1 (Sections 206-227) – National Court Election Petition Rules 2002 (as amended), Rule 12 (3)(j) and (k).

Cases cited

Aiwa Olmi v Electoral Commission of Papua New Guinea (2012) N4851, PGNC170
Alphonse Moroi v Kila Haoda, EP No.67 of 2012
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Ginson Saonu v Bob Dadae (2004) SC763, PGSC12
Holloway v Ivarato [1988] PNGLR 99
John Warisan v David Arore, EP No.44 of 2012
Mapun Papol v Antony Temo (1981) PNGLR 178
Patrick Basa v Bob Dadae (2013) N4991
Peter Yama v Melchior Kasap and the Electoral Commission (1988-89) PNGLR 197
Sali Subam v Aide Ganasi, EP No.59 of 2012
Thompson v Pokasui [1988] PNGLR 210

Counsel

Veronica Yobone, for the Applicant
Tony Yamarhai, for the Petitioner
Ray William, for the First Respondent
Michael Kuma, for the Second Respondent

RULING ON APPLICATION TO JOIN AS A PARTY

2nd April, 2013

1. DAVID, J: This is a ruling on an application by the applicant, Paul Enn Murunga (the Applicant) to be joined as a party to these proceedings.

2. The application is moved pursuant to a notice of motion filed on 7th February 2013. The Applicant relies on Section 155 (4) of the Constitution, Section 212 (3) of the Organic Law on National and Local-level Government Elections (the Organic Law) and the Rule 12 (3)(j) and (k) of the National Court Election Petition Rules 2002 (as amended) (the Election Petition Rules). The application is supported by two affidavits of the Applicant, one sworn on 6th February 2013 and filed on 7th February 2013 and the other sworn and filed on 11th February 2013.

3. At the hearing, the Applicant, through his counsel, Ms. Yobone, handed up his written submissions.

4. I have considered the Applicant's written submissions and oral submissions of counsel.

5. The application is contested by all the parties to the proceedings. They have not filed any responding affidavits.

6. According to the Applicant's affidavit evidence, he was one of the 48 candidates who contested the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (the Electorate) during the 2012 National General Election. Polling for the Electorate was conducted over two days, from 4th to 5th July 2012. Scrutiny was conducted at the Waghi Klos Haus from 16th July 2012 to 1st August 2012. The declaration of the result of the election and the name of the candidate elected was made on 1st August 2012. The Second Respondent, Dr. William Tongamp was the successful candidate for the Electorate. He polled 35,320 votes. The applicant was the runner-up. He polled 34,719 votes. The Second Respondent's winning margin over the Applicant was 601 votes. The petitioner polled 27,956 votes. That was 7,364 votes less than the Second Respondent's and 6,763 less than his.

7. The Applicant raises a number of matters questioning the propriety of the scrutiny conducted for the Electorate including allegations of errors and omissions committed by counting officials which he says could have affected the result of the election. These are:

• the scrutiny from 16th to 18th July 2012 was conducted without the supervision of the Provincial Returning Officer although one was appointed by the Electoral Commission;
  
• the Provincial Returning Officer appointed by the Electoral Commission namely, Mr. Sale Bunat did not conduct the scrutiny at all;
  
• the scrutiny from 19th July 2012 onwards was conducted by a Mr. Joseph Karap, a person appointed by the Jiwaka Transitional Authority Election Steering Committee headed by one, Mr. Nicholas Kuman;
  
• there was no instrument of appointment of Mr. Joseph Karap as the Returning Officer for Jiwaka Province;
  
• Mr. Joseph Karap was a retired High School teacher and public servant, the Provincial President of the T.H.E Party in the Jiwaka Province and a strong supporter of the Second Respondent therefore his neutrality was seriously in question;
  
• the Jiwaka Transitional Authority appointed public servants of their own choice as counting officials who made biased decisions during the scrutiny;
  
• amongst these public servants was a Mr. Andrew Mangi who led a group of counting officials and he was a strong supporter of the Second Respondent;
  
• despite the suspension of the scrutiny on 31st July 2012 at 04:00 pm by the officer in charge of the scrutiny namely, Mr. Stanley Alawa and the majority of counting officials and scrutineers leaving the counting centre, a group of counting officials remained and continued counting from 06:00 pm to 02:00 am the next day on 1st August 2012;
  
• during that period, the group led by Mr. Andrew Mangi placed his votes in exhausted ballot boxes and secretly and illegally built up the votes of the Second Respondent;
  
• scrutineers were denied access to the counting centre hence, were denied inspection of the proceedings at the scrutiny;
  
• decisions by counting officials on whether or not to conduct quality checks of ballot-papers especially from ballot boxes from the strongholds of the Second Respondent and other high profile candidates were biased;
  
• of the 184 ballot boxes for the Electorate, two from his strongholds namely, Kespam No.3 at Wara Tuman in Pulgmi Council ward, Anglimp South Waghi and Junkgaral in Upper Jimi were not included in the scrutiny; and
  
• he had led at the start of the scrutiny and was amongst the top five candidates going into the last three days of the scrutiny when the Second Respondent who had been running eighth throughout the scrutiny suddenly jumped ahead of him after the petitioner was eliminated at around 02:00 am on 1st August 2012.
  

8. The applicant also asserts that; all the ballot boxes kept at the counting centre at Waghi Klos Haus were burnt and completely destroyed by arsonists with ulterior motives last year following the commencement of these proceedings; and the Electoral Commission and the police should be held responsible for failing to secure them.

9. Ms. Yobone submits that the applicant should be joined as a party to the proceedings because he has sufficient interest in the proceedings in his capacity as an unsuccessful candidate and more so as the runner-up to the Second Respondent. Hence, it was necessary for him to be enjoined.

10. Counsel has referred me to a number of cases in both the Applicant's written submissions and her oral submissions which I have considered. She relied heavily on the National Court decision of Makail, J in Aiwa Olmi v Electoral Commission of Papua New Guinea (2012) N4851, PGNC170 where the application for joinder as a respondent was filed by Hon. Powes Parkop, the successful candidate for the National Capital District Electorate. Mr.Parkop relied on Rule 17 (Relief from rules) of the Election Petition Rules. His Honour held that whilst the Organic Law and the Election Petition Rules were silent on the question of joinder of a party in election petition proceedings, powers vested in him by Section 212 (3) of the Organic Law and Rule 12 (3)(j) and (k) of the Election Petition Rules were wide enough for him to grant the application. He held that the applicant as the successful candidate and the Governor-elect had sufficient interest because his election was being disputed by the petitioner.

11. Counsel conceded that the application was filed very late at the eleventh hour. She however argued that since the applicant has an interest in this case, his interest should be protected by being joined as a party to these proceedings as a petitioner.

12. The First Respondent through his counsel Mr. William submitted that the application should be refused because the Organic Law and the Election Petition Rules did not specifically allow for applications for joinder of any person to be made in election petition proceedings except for the Electoral Commission with leave of the Court by operation of Section 211 of the Organic Law. There was no similar provision in the Organic Law applying to other persons he said.

13. He further submitted that all that the Applicant had to do was observe the proceedings as a spectator and wait for the outcome of these proceedings as was the case in Peter Yama v Melchior Kasap and the Electoral Commission (1988-89) PNGLR 197. In that case, the runner-up, according to figures used by the Returning Officer at the declaration, who was the sitting member did not challenge the result of the election, but was declared the winner of the seat of Madang Provincial Electorate by the National Court under Section 212 (1)(g) of the Organic Law after a recount of votes ordered at the trial without proceeding to address other grounds raised in the petition. The petitioner, Mr. Yama was the second runner-up. The decision of the National Court was challenged by both the petitioner and the member-elect in the Supreme Court by way of judicial review under Section 155 (2)(b) of the Constitution. The Supreme Court held that in an appropriate case, the National Court has power under Section 212 (1)(g) of the Organic Law to declare a candidate to be duly elected although he or she is not a party to the election petition. In that case however, the Supreme Court said that although the National Court had power to make the declaration he did under Section 212 (1)(g) of the Organic Law, it should not have made the declaration until all outstanding grounds of the petition had been dealt with. The decision of the National Court was therefore quashed and the matter remitted to the National Court to deal with the outstanding grounds.

14. The First Respondent also submitted that the invocation of Section 155 (4) of the Constitution by the applicant to make this application was misconceived.

15. The Second Respondent, through his counsel Mr. Kuma, argued that the application should be dismissed because there was no statutory basis for the application to be made. He concurred with the First Respondent that only the Electoral Commission could be joined as a party under Section 211 of the Organic Law. Some cases where the Electoral Commission was joined as a party because the petitioners were only challenging the members-elect he said were, John Warisan v David Arore, EP No.44 of 2012, Sali Subam v Aide Ganasi, EP No.59 of 2012, and Alphonse Moroi v Kila Haoda, EP No.67 of 2012. I have not sighted these cases basically because, if written judgments were published, copies were not produced to me at the hearing and I have not found any of them posted on pngInLaw and Paclii in my quick research before delivering this ruling.

16. The Second Respondent also submitted that the Applicant's affidavit sworn on 6th February 2013 and filed on 7th February 2013 was framed like a petition raising issues of gross irregularities and errors and omissions in the conduct of the scrutiny and this showed that he was disputing the validity of the Second Respondent's election or return. The application was misconceived and in any event made way out of time counsel said.

17. The petitioner, through his counsel Tony Yamarhai, concurred with and adopted the submissions of both respondents in submitting that the application should be dismissed. He said the invocation of Rule 12 (3)(j) and (k) of the Election Petition Rules was misconceived because the rule only applies to a directions hearing and not to a matter already fixed for trial and going through the preliminaries before actual trial as is the case here.

18. The law governing the practice and procedure of election petition proceedings is to be found in the Organic Law and any regulations made under it: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342. The Election Petition Rules further regulate and complement the practice and procedure relating to election petition proceedings: Patrick Basa v Bob Dadae (2013) N4991. They were promulgated by judges under Section 212 (2) of the Organic Law. The Election Petition Rules are subservient to the provisions of Part XVIII (Sections 206-227, Disputed Elections, Returns, etc.) of the Organic Law.

19. Section 184 (Rules of court) of the Constitution also empowers the judges of the Supreme Court and the National Court to make rules with respect to the practice and procedure of the Supreme Court or the National Court, but these rules must not be inconsistent with a Constitutional Law or an Act of the Parliament.

20. The National Court Rules applies to all proceedings instituted under those rules: see Order 1 Rule 2 of the National Court Rules. The Organic Law does not expressly adopt the National Court Rules as applying to election petition proceedings. In Delba Biri v Bill Ginbogl Ninkama, it was held that the National Court Rules have no application to election petition proceedings particularly if they were inconsistent with any provision of a statute. There the court observed:

"The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court..."

21. Section 155 (4) of the Constitution does not apply to election petition proceedings. In Delba Biri v Bill Ginbogl Ninkama, it was held:

"...this section was interpreted in the recent case of Avia Aihi v The State (1981) PNGLR 81, and by majority the court ruled that s.155 (4) of the Constitution could not be interpreted in a way which would give the court the power to override the provisions of an Act passed by Parliament. This would be giving a power to the court greater than the unlimited legislative power given to the Parliament by the Constitution. A fortiori, in our view, the court would not have the power to override the provisions of an organic law which is a constitutional law and even more so again to override the provisions of a constitutional law which is in mandatory terms."

22. The National Court sitting as the Court of Disputed Returns is vested with special jurisdiction through Part XVIII Div.1 (Sections 206-227) of the Organic Law.

23. The Applicant cannot therefore rely on Section 155 (4) of the Constitution to pursue this application.

24. Does the Court have power to deal with an application for joinder by an applicant to be a party to an election proceedings as a petitioner either under Section 212 (3) of the Organic Law or Rule 12 (3)(j) and (k) of the Election Petition Rules?

25. First and foremost, I must agree with the submission that unlike Section 211 of the Organic Law, there is no other provision in the Organic Law and the Election Petition Rules which expressly provides for applications for joinder to be a party to election petition proceedings to be made.

26. Section 211 of the Organic Law states:

"The Electoral Commission may, by leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition."

27. It was however held in Aiwa Olmi v Electoral Commission of Papua New Guinea that Section 212 (3) of the Organic Law and or Rule 12 (3)(j) and (k) of the Election Petition Rules were wide enough for the Court to entertain an application for joinder of a party.

28. I will address these provisions in the reverse.

29. Under the Election Petition Rules, pre-trialing of election petition proceedings is conducted in three stages and specific rules apply for each stage. The first stage is the directions hearing under Rule 12 which has to be conducted within 28 days from the date of the filing of a petition. The second stage is the pre-trial conference under Rule 13 which has to be conducted 28 days from the date of the directions hearing. Finally, there is the status conference under Rule 14 which has to be conducted 5 days before the date of hearing.

30. Rule 12 of the Election Petition Rules only applies to directions hearing. It is not clear from the judgment of Aiwa Olmi v Electoral Commission of Papua New Guinea whether or not the application for joinder was made during the directions hearing stage. These proceedings have gone past the directions hearing stage. They are fixed for trial here and were given a two weeks fixture starting today. Hence, it is my respectful view that the Applicant cannot rely on that rule.

31. Dispensation with requirements of the Election Petition Rules either before or after the occasion for compliance arises is available under Rule 17 though. However, the Applicant does not invoke that rule.

32. Moreover, it is to be noted that Rule 17 states that a requirement of the Election Petition Rules which is also a requirement of Organic Law cannot be dispensed with.

33. The remaining provision the applicant relies on is Section 212 (3) of the Organic Law. It is instructive that I set out the whole of that provision and it states:

"The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient." (my emphasis)

34. This provision vests in the Court a considerable discretion in relation to dealing with matters arising from election petition proceedings instituted under Part XVIII (Sections 206-227) of the Organic Law. The powers enumerated under Section 212 (1) are not exhaustive: see Thompson v Pokasui [1988] PNGLR 210. The phrase "amongst other things" in sub-section 1 in my respectful view lends support to that proposition. That sub-section states:

"In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d) order a re-count of ballot-papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment." (my emphasis added)

35. The discretion under Section 212 (3) of the Organic Law must be exercised on proper principles.

36. It is settled law in this jurisdiction that in an application for joinder of a person as a party, two requirements must be met and these are:

1. the applicant has sufficient interest in the proceedings.

2. the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

37. These principles were considered and applied in favour of the applicant in Aiwa Olmi v Electoral Commission of Papua New Guinea.

38. It is my respectful view that the discretion vested in the Court under Section 212 (3) cannot be exercised to dispense with any of the mandatory requirements of the Organic Law: Mapun Papol v Antony Temo (1981) PNGLR 178; Delba Biri v Bill Ginbogl Ninkama: see also Rule 17 of the Election Petition Rules.

39. Section 206 (Method of disputing returns) of the Organic Law makes it abundantly clear that a petition addressed to the National Court is the only method of disputing an election or a return and not otherwise.

40. Section 206 states:

"The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."

41. The right to challenge the validity of an election or return is available to an unsuccessful candidate. The phrase "and not otherwise" in Section 206 in my respectful view precludes any other method from being employed by an unsuccessful candidate to be joined as a party in election petition proceedings. It would be quite bizarre for a winning candidate to challenge his own victory by petition.

42. Once an unsuccessful candidate decides to file a petition, he or she must then strictly comply with the requirements of Sections 208 and 209 of the Organic Law which are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law: see Delba Biri v Bill Ginbogl Ninkama; Holloway v Ivarato [1988] PNGLR 99; Ginson Saonu v Bob Dadae (2004) SC763, PGSC12.

43. Section 210 of the Organic Law states:

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

44. Aiwa Olmi v Electoral Commission of Papua New Guinea can be distinguished with the present case. The distinction is that in that case the applicant was not an unsuccessful candidate, but the winner and Governor-elect of the National Capital District Electorate. He did not have to meet the requirements under Sections 206, 208 and 209 for purposes of Section 210 of the Organic Law.

45. In the present case, the Court would be acting without jurisdiction if it proceeded to applying the principles of joinder of a party in isolation to the mandatory statutory requirement of the Organic Law that the validity of an election or return could only be challenged by petition.

46. Assuming I am wrong in arriving at that conclusion (which I think I am not) and I had jurisdiction, I would apply the principles of joinder with an additional consideration because of the special nature of election petition proceedings: Delba Biri v Bill Ginbogl Ninkama.

47. That further consideration relates to the time for making an application. Both the Organic Law at Section 208 (e) and the Election Petition Rules at Rule 11 give 40 days after the declaration of the result of an election as the time for filing a petition and amending a petition respectively. Rule 3 of the Election Petition Rules also states that the 40 day time limit prescribed under Section 208 (e) of the Organic Law includes all days of the week. Using the 40 day period as a guide, this application should have been filed within 40 days after the declaration of the result of the election for the Electorate. The Applicant states that the declaration for the Electorate was made on 1st August 2012. This application was filed on 7th February 2013, more than six months after the declaration and more than 4 months after the 40 day period expired. The Applicant has provided no explanation at all for the delay in filing this application. Had the applicant provided a reasonable explanation for the delay in filing this application, it might have invited or attracted consideration by the Court in deciding whether or not to deal with the application despite being filed out of the 40 day period.

48. In summary, of the three considerations, the Applicant will only meet the sufficient interest test, being an unsuccessful candidate. I do not think that the Applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon. This is because the validity of a petition depends on a petitioner complying with Sections 208 and 209 of the Organic Law because of Section 2010. A petitioner has an onerous responsibility of complying with the mandatory requirements of the Organic Law before the petition can proceed to a hearing. The application was filed way outside the 40 day time limit for filing a petition prescribed by Section 208 (e) of the Organic Law.

49. Section 206 of the Organic Law and the Election Petition Rules do not expressly provide for joint petitioners filing a petition together. I have not found any case in my quick research of pngInLaw and Paclii before delivering this ruling stating otherwise.

50. Rule 16 of the Election Petition Rules however allows for consolidation of petitions. It provides that where multiple petitions are filed in relation to the same election or return, they may be heard together unless cause is shown for separate trials.

51. Granting the application will be tantamount to authorising an amendment to the petition out of time. No amendment to a petition is permitted after the 40 day time limit for filing a petition has expired: see Delba Biri v Bill Ginbogl Ninkama and Rule 11 of the Election Petition Rules.

52. Coming through the "back door" as it were for failing to file a petition in accordance with Section 206 of the Organic Law by an unsuccessful candidate is strictly not permitted.

53. The application is misconceived.

54. For all the foregoing reasons, I will dismiss the application. All that the Applicant has to do now is to observe the proceedings as a spectator from outside and await the outcome of these proceedings.

55. The formal orders of the Court are:

1. the application by the applicant, Paul Enn Murunga to be joined as a party to these proceedings which is moved pursuant to his notice of motion filed on 7th February 2013 is dismissed.
   
2. the applicant, Paul Enn Murunga shall pay the costs of the application of the petitioner and the respondents.
   

_________________________________________________________
Yobone & Co. Lawyers: Lawyers for the Applicant
Warner Shand Lawyers: Lawyers for the Petitioner
Niugini Legal Practice: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent