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Kenai v Tom [2023] PGNC 365; N10529 (19 October 2023)

N10529

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 19 OF 2022

In the matter of the Organic Law on National and Local-Level Government Elections
and
In the matter of a Disputed Return of Election result for the Wabag Open Electorate in the 2022 General Election

BETWEEN:
SAMUEL PHILIP KENAI
Petitioner

AND:
HON DR LINO TOM
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Wabag: Batari, J
2023: 12^th & 19^th October

PARLIAMENT – election petition – objection to competency of – petition form – requisites of – mandatory requirement for attestation of witnesses – compliances as to form – attesting witness’s addresses – Organic Law on National and Local Level Government Elections – ss. 208 (d), 217; Rule, Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 considered and applied.

Cases Cited
Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342
Hagahuno v Tuke (2020) SC2018
James Yoka Ekip v Simon Sanake & Ors. (2012) N4899
Jimson Sauk v Don Pomb Polye (2004) SC769
Paru Ahi v Sir Moi Avei (2003) SC720
Raymond Agonia v Albert Karo [1992] PNGLR 463
Talita v Ipatas (2016) SC1603
Wartovo v Narawec & Electoral Commission (2023) N10503

Counsel
Ms. C. Copeland, for the Petitioner
Mr. A. Ninkama with W. Kaum, for the First Respondent
Mr. M. Ninkama, for the Second Respondent

19^th October 2023

1. BATARI J: An election petition must be fully compliant with all requirements of the Constitution, the Organic Law on National and Local-Level Government Elections (the Organic Law) for proceedings to be heard on it.
2. Before the Court is an objection by the first respondent alleging, the attestation clause of the petition was filed contrary to the requirements in s 208 (d) of the Organic Law. The petition is therefore incompetent under s. 210. This is the ruling.

Background

3. This brief background also forms the common facts. The petitioner, Samuel Philip Kenai and the first respondent, Dr Lino Tom were amongst 16 candidates vying for the Wabag Open Electorate seat in the 2022 General Elections. At the conclusion of the primary count, Dr Lino Tom, polled 35,782 votes and was declared winner on 25/7/2022. Candidate Kennedy Thomas Lemban, the petitioner in EP 15/2022 polled second on 10,807 votes. Samuel Philip Kenai tallied 5,474 votes in fourth place.
4. This petition alleges numerous polling and counting irregularities in the form of, illegal acts, errors and omissions by electoral officials, agents, and servants of the first and second respondents which unduly affected the results of the elections.
5. The first respondent denies any wrongdoing on his part. Dr Tom makes this application to stop the hearing of the proceedings on the petition due to breaches of the requirements of the Organic Law. He relies on the following grounds:

Ground 2: Improper Attestation

21. The petition is incompetent for failing to comply with s 208 (d) of the Organic Law on the basis that -

21.1 The attesting witnesses are residents outside of the electorate in

dispute. They are not proper persons to attest the petition;

21.2 The address provided by attesting witness Josi Karato is defective

for failing to state the street name, Section 100 Allotment 42,

Waigani Heights is not a meaningful location. A street name is

required to properly identify where Section 100, Allotment 42 is

located within the general suburb of Waigani Heights; and

21.3 The address provided by attesting witness Gibson Keapao is

Defective for failing to state the street name, Section 38 Allotment

296, Gerehu 3B is not a meaningful location. A street name is

required to properly identify where Section 38 Allotment 296 is

located within the general suburb of Gerehu 3B.

22. Further to the above, in order to ascertain whether the two attesting

witnesses can be easily reached to confirm their attestation of the Petition, the First Respondent through his lawyers have discovered, the above information given by the Petitioner for the purpose of locating the two attesting witnesses are incorrect, misleading, false and non-existent.

6. The following chronology of events are pertinent to the issues at hand:
   
   • 2/9/2022 - Petition filed and attested to by Josi Karato and Gibson Kepao. Josi Karato stated his address as Section 100 Allotment 42, Waigani Heights.
   • 9/9/2022 - Petition served via print media publication on the respondents.
   • 30/9/2022 – first respondent filed Notice of Objection to Competency.
   • 4/10/2022 – Lawyers for the first respondent sought verification of attesting witnesses’ addresses with Lands & Physical Planning Department.
   • 1/11/2022 - Lands & Physical Planning Department responded, clarifying the residential address, provided by the first attestation witness is in a different location at Gordons and not Waigani Heights.
   • 17/11/2022 – Lawyers for the first respondent wrote to the petitioner raising the issue incorrect address being stated by Josi Karato as attesting witness.
   • Josi Karato conferred with his relative Paul Lawton and confirmed he had provided an incorrect section and allotment number of his residence. Josi Karato lived at Paul Lawton’s family residence for more than five years.
   • 25/11/2022 - Josi Karato filed and served his affidavit confirming:
     1. he witnessed the petitioner sign the petition, and
     2. his correct address is Section 454 Allotment 15, Waigani Heights in the National Capital District, and that
     100. he made mistake in providing the address as Section 100 Allotment 42.
   • First Respondent initially took no issue with the correct address.
   • 25/8/23 - First Respondent served the Notice of Objection on the Petitioner.
7. At the start of the competency hearing, the petitioner challenged the validity of the Objection Notice based on form and belated filing. It was rejected on a separate ruling. The petitioner then made a last-minute ditch to amend the attestation part of the Petition. Counsel sensibly withdrew the application, paving the way for the first respondent to proceed with this objection to competency of the petition.

Issues:

8. Whether the petitioner filed his petition in compliance with s. 208 (d) of the Organic Law. This issue raises questions of both facts and law. This broad issue is crystallised as follows:

8.1 Whether persons residing outside the electorate can sign the petition.

8.2 Whether the omission to name the street in a residential address is fatal.

8.3 Whether the petition is flawed where an incorrect address is given.

The Law:

9. Sections 208 and 210 of the Organic Law read as follows:

208. Requisites of petition.

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

210. No proceedings unless requisites complied with.

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

Submissions

10. The first respondent’s main position represented by Mr A Ninkama is, that the petition document is flawed because the information given concerning addresses of the attesting witnesses are insufficient to satisfy the mandatory requirement of s. 208 (d) of the Organic Law. Even if sufficient addresses are given, the admission by Josi Karato that he stated a wrong address as an attesting witness means, there is effectively no address given and that is in breach of s. 208 (d). So, the petition is materially defective and incurable, it cannot support a valid proceeding.
11. Mr M Ninkama for the second respondent supported the submissions by Mr A Ninkama. Counsel argued, where the names and descriptions of addresses and occupations are unclear, incomplete, inadequate, or given by other description, or are confusing or falsified, the proof of attestation should be rejected: Talita v Ipatas (2016) SC1603; Wartovo v Narawec & Electoral Commission (2023) N10503.
12. Ms Copland for the petitioner refuted the respondent’s contentions as belated and unmeritorious. Counsel argued the petition form is substantially compliant with the requirement in s. 208 (d) such that the Court be guided by the substantial merits and good conscience of the particular circumstances of this case pursuant to s. 217 of the Organic Law to dismiss the objection. The petitioner should be given the benefit of a trial on the important issues raised on the qualification of the first respondent to remain an elected member of the Parliament.

Considerations & Ruling

13. When the question of proper attestation of a petition document is raised, this goes to the very existence and competency of the election petition originating process. It brings to the fore the integrity and authenticity of the document filed.
14. The requisites of an election petition in s. 208 (d) as with other requirements in sections 208 and 209 are mandatory, they must be complied with. These constitutional provisions in no uncertain terms, lay down the law as to when the National Court can exercise jurisdiction over disputes or allegations arising from National and Local-Level Government elections. A failure to comply with the dictates of these provisions will render the petition invalid because of s. 210: Delba Biri v Bill Ninkama [1982] PNGLR 342; Jimson Sauk v Don Pomb Polye (2004) SC769.
15. Section 208 (d) of the Organic Law requires that:
    • The petition must be attested by two witnesses, and
    • Each witness must state his or her occupation, and
    • Each witness must state his or her address.
16. Rule 4 of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 (the EP Rules as consolidated) provides that the petition must be file in accordance with Form 1 in SCHEDULE 2. The form contains instructions for the two attesting witnesses to each separately state his/her name, occupation, and address in that order, consistent with the requirements in s. 208 (d). And each witness must also sign on the attestation form.
17. On the address, Form 1 of the EP Rules as consolidated makes it abundantly clear, the attesting witness must state his/her address precisely by section or allotment number or where no section and lot number, by street name or in the case of a village, or settlement, state the name of place precisely by referring to province, district and nearest town and must be signed by the attesting witness.
18. The rationale for requiring that an attesting witness supplies his/her name, occupation and address is so that the witness is readily identified and able to be located: Raymond Agonia v Albert Karo [1992] PNGLR 463. More than that the requirement for proof gives the petition, authenticity and validity. It enhances the importance of the electoral process. The Supreme Court in, Paru Ahi v Sir Moi Avei, (2003) SC720 makes the point, that the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a petition to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process.
19. There are two limbs to the extent of considerations of the requirements for proof of a petition under s. 208 (d). The first concerns the existence of each element of the requirement namely, names, occupations, addresses and signatures of two attesting witnesses. Each of these essential elements or requirements must be supported on the evidence. The absence of evidence on one or a number of those elements specified in s. 208 (d), will render the attestation invalid and the petition incompetent. Thus, no proceedings will be heard on the petition. This involves the question of law.
20. The strict requirement to state the names, occupations, addresses with precision and clarity and to insert the signatures of the attesting witness leaves no room for the exercise of discretion under the principles of substantive compliance and substantial merits of the case considerations. The substantial compliance argument cannot prevail over a mandatory requirement of a constitutional law.
21. The second limb concerns issues of adequacy and veracity of the relevant information given in satisfaction of the requirements of s. 208 (d). This encompasses the issue of substantive compliance with the law and rules of practice. The Court has discretion to decide, upon a quick perusal and assessment of the information available, whether the details provided are/is sufficient or is in substantial compliance with the requirement of s. 208 (d). The considerations of prejudice, fairness, and the substantial merits of the case are also relevant at this stage.
22. So, it is imperative, that the attesting witnesses provide clear and succinct details of particulars of the names, occupations and addresses and signatures of the attesting witnesses. Where the given names, or descriptions of occupations and addresses are obscure, unclear, incomplete, inadequate, or confusing, or falsified, the proof of attestation may be rejected in the exercise of court discretion.

Issue: Attestation by improper witnesses and omission in stating street name

23. In this case, the first respondent alleged, the petitioner improperly completed the attestation form on several aspects. The first part of Ground 2: Improper Attestation alleged that persons whose addresses were outside the electorate are not proper persons to witness the petition. The second and third alleged, the omission by the attesting witnesses to name the street makes the address incomplete and worthless.
24. These grounds can be dealt with quickly. The first issue of the petition being countersigned by persons whose addresses are located outside the electorate were not seriously argued, albeit, the ground was not abandoned. The first respondent elected not to pursue submissions on the substance and rationale supporting the proposition that attesting witnesses must come from within the electorate. That is the proposition suggested in, Talita v Ipatas (2016) SC1603. It has qualifications. The respondents did not address those. Hence, the ground has not been made out; it is dismissed.
25. The second and third grounds on failure to name the streets in which the resident addresses are located, little substance and unmeritorious. The need to name the street is not a strict requirement for a residential address. Where the residential address is given, the adequacy of that address may depend on the witness’s personal circumstances. As alluded to in, Raymond Agonia v Albert Karo (supra), it should be the best succinct description available.
26. I am satisfied that the description at the time of filing as, Section 100, Allotment 42, Waigani Heights and Section 38, Allotment 296 Gerehu 3B in this case are in sufficient compliance with the requirement in s. 208 (d). If need be, the residential addresses a could be easily located on those details. These grounds are dismissed.

Incorrect address

27. The respondents’ strongest case is that the addresses given are not precise, they are incorrect, misleading, false, and non-existent, based on the petitioner’s subsequent admissions that the first attestation witness had stated an incorrect address.
28. Mr A Ninkama agitated the proposition, that the false and misleading information emanating from the incorrect address meant the petition has remained materially and irreparably defective since filing. Counsel relied on the recent case of Wartovo v Narawec & Electoral Commission (2023) N10503 in which the Court upheld the respondent’s objections to competency of the petition based on defective attestation. The respondents urged me to follow my earlier decision in that case because the facts and the defects in the attestation clause are the same.
29. In Wartovo v Narawec, counsel representing the petitioner conceded that the second attesting witness omitted to state his occupation on the attestation form. I held, the absence of an essential element of a constitutional law requisite makes the petition incomplete and upheld the objection on the first limb of s. 208 (d) considerations.
30. Also, in Wartovo v Narawec case, I further decided that the addresses given lacked sufficient detail and clarity, relying on a host of case precedents, one of them, Agonia v Karo(supra) which say, the attesting witnesses should provide sufficient details of their addresses so that they are easily located. Although the proceedings would have terminated under the first limb of s. 208 (d) considerations, I proceeded to uphold the objection under the second limb on the issue of substantial compliance.
31. The facts of this case are different, not to mention, convoluted. The incorrect address of the first attesting witness was detected by the first respondent much later after the filing and service of the petition.
32. The confirmation of the incorrect address came from the Lands & Physical Planning Department on 1/11/2022. The first respondent advised the petitioner of the error on 17/11/2022. The first attesting witness then conferred with a relative whose address he was using for his business dealings, and it was confirmed that he had given an incorrect residential address. On 25/11/2022 the first attesting witness filed and served on the respondents, an affidavit correcting the residential address. He also asserted that he made a genuine mistake in stating an incorrect address.
33. By that time, the first respondent has not served his notice of objection on the petitioner. The notice was purportedly filed on 30/9/2022, being the last date to file the objection. It was not served on the petitioner until 25/8/2023, a week shy of 12 months. That is an inordinate, incontestable delay in an election petition proceeding.
34. I say purported filing of the objection notice for several reasons. First, the confirmation of the incorrect address did not exist until months after the first respondent filed his defence on 30/9/2022. The request for clarification with the Department of Lands & Physical Planning was made on 4/10/2022. So, what was the objection raised based on? Was it then a genuine and legitimate concern? Second, minutes of the proceedings show that on a couple occasions after 30/9/2022, the respondents in this election petition and in EP 15/2022 were granted extensions of time to file their notices of objections. Third, the long delay of service adds to questions surrounding the date of filing of the objection raised.
35. Back to the issue of incorrect address, it is my firm view, that the addresses and other information contained in the petition are just as good as what was in the mind of the person providing the information at the time of filing.
36. If on a preliminary objection to the information on a court document, a party alleges the information given is incorrect, misleading, and false, the onus is on the party alleging the fault to promptly raise the issue and show how it is or has been disadvantaged or prejudiced by the misleading or false information.
37. In this case, nothing was done until a year later. Clearly, the question of incorrect address was not a priority or urgent. Importantly, there is nothing before the court to show the mistake was calculated, ill-willed or deliberate to mislead, misrepresent a fact, defraud, or prejudice the respondents.
38. I accept that Josi Karato made a genuine mistake in describing his residence as Section 100, Allotment 42. He got the location, Waigani Heights, correct. He had adopted the Waigani Heights residence as his place of abode and had prior to the elections obtained the address from his relative. On 21/11/2021 he registered the same is address, Section 100 Allotment 42, Waigani Heights with IPA and conducted his business under that address.
39. I am satisfied Josi Karato had an honest but mistaken belief in the correctness of the address he gave at the time of attestation. There is substantial compliance. The error can be easily cured by inserting the correct section and allotment numbers.
40. The petitioner attempted to apply for amendment on the 11^th hour. I did not hear the application which Ms Copland commendably withdrew because, moving the application would amount to an abuse of the court process. It would also prejudice the first respondent in moving its objection to competency of the petition.
41. The delayed service of the notice of objection also placed the petitioner in a lot of strife and disadvantage. It could not appropriately respond to the allegations until after due service of the notice which happened in late August 2023.
42. In the meantime, numerous directions have been given, and the Statement of Agreed and Disputed Facts and Issues for trial had been settled as between the parties. The petition was ready for trial as far back as May 2023 and trial dates locked in, and revised on several occasions before the objection notice was served on the petitioner.
43. Clearly the purpose of the objection notice was lost and defeated by the first respondent’s conduct and the time lapse in progressing the matter to trial.
44. In deliberating the issue of incorrect address and substantive compliance under the second limb of s. 208 (d), I have had recourse to the application of Rule 22, sub-rules (2), (3), (4) of the EP Rules as consolidated. I also have had a close regard to the requirement of s. 217 of the Organic Law. Rule 22 reads as follows:

22. Relief from the Rules

(Note: rule 22 of the Election Petition Rules 2017 repealed and replaced by Rule 2 of the Election Petition (Miscellaneous Amendment) Rules)

(1) The court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.
(3) No petition or other process provided for by the Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate abuse of process.
(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirement of section 217 of the Organic Law.

45. I conclude that Rule 22 and s. 217 considerations are relevant because in this decision-making process, the Court is called upon to weigh up the sufficiency of evidence on a preliminary application on the competency of the proceeding. See, Hagahuno v Tuke (2020) SC2018.
46. I am satisfied there is substantial compliance with Form 1 of the petition under Rule 22 (2). The defect was only in relation to section and lot numbers, and it has been reasonably explained. Furthermore, the defect is not so extensive as to amount to substantial non-compliance or to demonstrate abuse of process under Rule 22 (3).
47. Section 217 requires the National Court to be guided by substantial merits and good conscience of each case without regard to legal forms and technicalities or whether the evidence before it is in accordance with the rule of evidence or not.
48. One of the overriding factors in this proceeding is the circumstances surrounding the contumelious delay in serving and prosecuting the objection. The issues from the petition and for trial have been agreed upon. The allegations are substantial, and the parties are ready to have their day in court. The substantial merits and good conscience of this case in my view is against the respondents and any further conduct tending to procrastinate the petition proceedings proper. In coming to this conclusion, I also follow the principles in, Hagahuno v Tuke (2020) SC2018.
49. The ground on incorrect address is not made out. It is dismissed.
    
50. ORDERS
    
    1. The objection to competency of the petition is refused.
    2. The petition shall proceed to trial.
    3. The first and second respondents shall pay the petitioner’s costs in relation to the objection on a division of 80% and 20% respectively.
       

________________________________________________________________
Simpsons Lawyers: Lawyers for the Petitioner
Fortis Legal Services: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent