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Kimisopa v Ame [2018] PGNC 18; N7080 (12 January 2018)

N7080

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 02 OF 2017

IN THE MATTER OF DISPUTED RETURN
FOR THE GOROKA OPEN ELECTORATE

BETWEEN
BIRE KIMISOPA
Petitioner

AND
HENRY TUTUWO AME
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu J
2017: 17 November & 21 December
2018: 12 January

ELECTIONS – Disputed Return – Objections to competency - Petition – Pleadings - Organic Law on National and Local-level Government Elections (OLNLGE); ss. 210, 208 and 209 – Requirements of s. 208 (a) – Whether petition pleads facts.

Cases cited

Dick Mune v. Anderson Agiru and Others (1998) SC590
Francis Koimanrea v. Alois Sumunda (2003) N2421
Greg Mongi v. Bernard Vogae (1997) N1635
Jimson Sauk v. Don Pomb Polye (2004) SC769
Louis Ambane v. Thomas Sumino (1998) SC599
Ludger Mond v. Jeffery Nape and Electoral Commission (2003) N2318
Philip Kikala v. Electoral Commission (2013) N4960
Riddler Dorobe Kimave v. Poevare Tore (2013) SC 1303
Sir Barry Holloway v. Aita Ivarato and Electoral Commissioner [1988] PNGLR 99
Counsel

J. Kolo, for the Petitioner
H. Tutuve Ame, (First Respondent) - In Person
L. Okil with J. Ole, for the Second Respondent

12^th January, 2018

1. GAVARA-NANU J: Before the Court are two Notices of Objection to Competency filed by the First and Second Respondents challenging the competency of the Petition.

2. The Notice of Objection to Competency (Objection) by the First Respondent was filed pursuant to s. 210 of the Organic Law on National and Local-level Government Elections (Organic Law), on 15 September, 2017. Section 210 provides: “Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.” The heading of this Section reads: “NO PROCEEDINGS UNLESS REQUISITES ARE COMPLIED WITH.”

3. The Objection is based on the requirements of s 208 (a), which is in these terms:

208. REQUISITES OF PETITION.
A petition shall –
(a) set out the facts relied on to invalidate the election or return; and

4. Paragraph 2 of the Objection pleads the grounds upon which the competency of the Petition is challenged. The paragraph is reproduced below for ease of reference:

2. Objection is raised on the ground that the crux of the Petitioner’s case is based on assumption and not fact, contrary to s. 208 (a). This can (sic.) adduced specifically from paragraph 1 (d) and (i) under C. THE GROUNDS..... which basically forms the Petitioner’s claim. The Petitioner assumes that he would have collected more votes than the First Respondent based on observation, by counting officials and scrutineers. The Petitioner therefore is asking the Court to order a recount, merely on the basis that the Petitioner believes he received more votes than the Petitioner from the votes of candidate Tom Nunue. Assumption is not fact as required by section 208 (a).

5. It is instructive that Sub-paragraphs 1 (d) and (i) of Paragraph C of the Petition which plead the grounds of the Petition and upon which the Objection is based is also reproduced for ease of reference:

C. THE GROUNDS upon which the petitioner relies are:

1. Errors, omissions and illegal practices by the Returning Officer, Assistant Returning Officers and counting officials at exclusion 28.

(d) During quality checks of primary votes for all candidates, the counting officials namely David Auwo, David Kameda and few others including the Petitioner’s scrutineer Mr Justin Kerewo observed that the Petitioner stood to collect well over 1, 800 second preference votes from candidate Tom Nunue’s primary votes of 7,944 whilst the First Respondent would receive slightly over 550 second preference votes.

(i) Had the second preference votes distributed between the remaining candidates and counted first in time at Exclusion 28 in accordance with the LPV Counting regulations and protocols, the Petitioner would have collected more second preferences out of candidate Tom Nunue’s primary votes to surge past the First Respondent by more than 450 votes.

6. The First Respondent claims that the Petition hinges on these two Sub-paragraphs. In other words, the competency of the Petition depends entirely on whether these two Sub-paragraphs satisfy the requirements of s. 208 (a), viz; whether they plead sufficient facts which if proved can invalidate the election of the First Respondent. The First Respondent argued that the two Sub-paragraphs are only assumptions and speculations, they do not plead facts. The essence of this argument is that if the First Respondent’s Objection is upheld, the whole Petition is incompetent and has to be dismissed.

7. Having considered the pleadings in the Petition carefully, I have come to a firm conclusion that the Objection is itself incompetent for two reasons. First, it challenges the competency of the whole Petition on the basis of the alleged defects in the pleadings in respect of only two out of about thirty Sub-paragraphs of the Petition. In my view, to determine the competency of the Petition, the two Sub-paragraphs have to be considered together with the rest of the Sub-paragraphs of the Petition which constitute the grounds of the Petition, in order to see whether the Sub-paragraphs plead sufficient facts and if so, whether those facts if proved can invalidate the return. When all the Sub-paragraphs are considered together, it can be seen clearly that they are interwoven and they relate to the actions of the Returning Officers, Assistant Returning Officers and other electoral officials. The Sub-paragraphs 1 (d) and (i) therefore plead material and relevant facts not assumptions: Sir Barry Holloway v. Aita Ivarato and Electoral Commissioner [1988] PNGLR 99. To consider Sub-paragraphs 1 (d) and (i) on their own as argued by the First Respondent would amount to nit-picking and such an approach is contrary to the scheme of s. 208 (a) and indeed the whole Organic Law: Jimson Sauk v. Don Pomb Polye (2004) SC769 and Riddler Dorobe Kimave v. Poevare Tore (2013) SC 1303.

8. The Petitioner has to prove the facts pleaded which constitute the grounds of the Petition with supporting evidence. It is noted that the Petitioner has filed supporting affidavits to do just that, he must therefore be given the opportunity to prove the allegations pleaded in the facts and be fully heard. To dismiss the Petition at this stage would deny him the opportunity to be heard.

9. For the foregoing reasons, I find that Sub-paragraphs 1 (d) and (i) plead sufficient facts which constitute clear and valid grounds of the Petition, thus they satisfy the requirements of s. 208 (a) of the Organic Law.

10. The First Respondent’s Objection is therefore dismissed with costs.

11. In regard to the Objection by the Second Respondent which was filed on 13 October, 2017, the Second Respondent also alleged that the Petitioner failed to set out or plead sufficient facts for the purposes of s. 208 (a) of the Organic Law. It was argued that the Petitioner’s main contention that the scrutiny process adopted in Exclusion 28 or the final exclusion did not follow the prescribed scrutiny process was based on a misconception. This argument was in response to the Petitioner’s claim that the Returning Officers and other electoral officials committed errors and or omissions in regard to Exclusion 28 which resulted in the First Respondent being declared the winner. The Second Respondent argued that the Petitioner’s contention was contrary to the scrutiny process prescribed under s. 168 of the Organic Law.

12. The Second Respondent also contended generally that the facts or matters pleaded in a number of paragraphs of the Petition are based on Petitioner’s misunderstanding of the scrutiny process and are therefore misleading.

13. Mr. Oki of counsel for the Second Respondent argued that the Petitioner failed to plead sufficient facts, thus the Petition has failed to satisfy the requirements of s. 208 (a) and should be dismissed. The Second Respondent based his arguments on two main grounds:

(i) The Petition failed to plead sufficient facts to invalidate the election of the First Respondent; and

(ii) The matters pleaded in the Petition failed to show clearly the winning margin, the number of votes affected and whether the number of irregular votes claimed by the Petitioner exceeded the number of votes collected by the First Respondent to affect the result of the election.

14. It is settled law that the Petition must clearly plead the relevant or material facts which constitute a ground or grounds upon which an election can be invalidated but not the evidence by which those facts or allegations may be proved: See Sir Barry Holloway v. Aita Ivarato and Electoral Commissioner (supra) and Francis Koimanrea v. Alois Sumunda (2003) N2421. The facts pleaded should clearly show the issues upon which the opposing party can prepare his case and those facts should also enable the Court to see clearly the issues for its determination. See Sir Barry Holloway v. Aita Ivarato and Electoral Commissioner (supra), which is the leading case in which the Supreme Court analytically discussed the meaning of s. 208 (a) of the Organic Law, which is pivotal. In that case, Kapi DCJ (as he then was) with whom Los and Hinchliffe JJ agreed said:

“The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208 (a) of the Organic Law. The facts set out under s 208 (a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
....In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish (sic.). Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved”.

15. These observations have been followed and adopted with approval in a long line of decided cases both by National Court and the Supreme Court. For example, see Dick Mune v. Anderson Agiru and Others (1998) SC590; Greg Mongi v. Bernard Vogae (1997) N1635; Louis Ambane v. Thomas Sumino (1998) SC599 and Ludger Mond v. Jeffery Nape and Electoral Commission (2003) N2318.

16. In Philip Kikala v. Electoral Commission (2013) N4960, Makail J, clarified how a winning margin and an election may be affected under the new Limited Preferential Voting (LPV) system, his Honour said:

“....in order to arrive at the winning margin under the new LPV system, the petitioner has to plead:
(a) What the total number of allowable ballot papers votes required in count after the final exclusion before the declaration.
(b) What was the absolute majority (50% +1) of the votes required to win the election.
(c) The total number of votes that the winning candidate scored above and beyond the absolute majority required to win is the winning margin”.

17. His Honour was in fact stating matters constituting material or relevant facts which a petitioner must plead in his petition under the new LPV system for the petition to comply with the requirements of s. 208 (a) of the Organic Law.

18. In this instance, the Objection filed by the Second Respondent like that filed by the First Respondent only raises the requirements of s. 208 (a), which is for the Petitioner to plead sufficient material or relevant facts it relied on to invalidate the election. The Second Respondent also argued that this requirement has not been met by the pleadings in the Petition. Given that the Second Respondent only raised issues regarding the requirements of s. 208 (a), like the First Respondent, it has no issues regarding the requirements of s. 208 (b) to (e).

19. It suffices for me to state that applying the principles stated in Sir Barry Holloway v. Aita Ivarato and Electoral Commissioner (supra) and Philip Kikala v. Electoral Commission (supra), which I respectfully adopt, I find that the Petitioner has pleaded sufficient facts which constitute clear grounds for the Petition. I also find that if the facts pleaded are proved they can invalidate the election of the First Respondent.

20. I also find that the Second Respondent has also raised legal issues in its Objection which are matters for trial. For example, the claim that the Petitioner has misconstrued the scrutiny process provided under s. 168 of the Organic Law. This clearly is a legal issue which has no relevance to s. 208 (a). Furthermore, I find that the Second Respondent has also raised issues relating to evidence in its Objection, particularly in paragraphs 1.3.1 to 1.3.7. Again these are matters for trial. They fall outside the requirements of s. 208 (a). The end result is that the Second Respondent’s Objection is also itself incompetent.

21. I would for all these reasons also dismiss the Second Respondent’s Objection with costs.

Orders accordingly.
_______________________________________________________________
J. Kolo Lawyers: Lawyers for the Petitioner
T. Sirae Lawyers: Lawyers for the First Respondent
Kimbu Lawyers: Lawyers for the Second Respondents