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Hau'ofa v Tkatchenko [2023] PGNC 78; N10212 (28 April 2023)

N10212

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO 24 OF 2022


IN THE MATTER OF A DISPUTED RETURN FOR THE
PORT MORESBY SOUTH OPEN ELECTORATE


MICHELLE HAU’OFA
Petitioner


V


JUSTIN TKATCHENKO
First Respondent


ELECTORAL COMMISSION
Second Respondent


Waigani: Narokobi J
2023: 27th February, 28th April


ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, grounds of a petition, whether petition adequately pleads grounds, s 208 (requisites of petition) – s 208(a): whether facts relied on to invalidate the election adequately pleaded – attesting witnesses not stating occupation, whether petition is incompetent for non-compliance with s 208(d)


The Petitioner, Michelle Hau’ofa alleges bribery by the Petitioner, Justin Tkatchenko in her Petition. The allegation of undue influence was withdrawn. The Respondents contend in their Objection to Competency of the Petition that it does not comply with ss 208(a) and 208(d) of the Organic Law on National and Local Level Government Elections (the Organic Law) in that the Petition does not plead material facts, and the occupation of the attesting witnesses have not been stated.


Held:


(1) The allegation of bribery in the Petition, is adequately pleaded for purposes of s 208(a) of the Organic Law, taking into consideration the requirements of s 217 of the Organic Law and the recent Supreme Court case of Hagahuno v Tuke (2020) SC2018.

(2) The requirements of s 208(d) of the Organic Law is mandatory and non-compliance is fatal to the Petition. As the Petitioner has not identified a clear Constitutional issue as relates to ss 210 and 217 of the Organic Law, the submission to refer the question on the Constitutionality of s 210 of the Organic Law is refused.

(3) The Petition is accordingly dismissed for non-compliance with s 208(d) of the Organic Law with appropriate orders for costs.

Cases Cited


The following cases are cited in the judgment:


Hagahuno v Tuke (2020) SC2018
Samuel v Morata (2018) N7098


Counsel:


G Salika, for the Petitioner
C Copeland, for the First Respondent
A Ninkama, for the Second Respondent


RULING


28th April, 2023


  1. NAROKOBI J: Michelle Hauofa (“the Petitioner”) challenges the election results of the Moresby South Open electorate in the 2022 National General Elections (“the Petition”). The Petition was filed on 6 September 2022. The Petitioner names Honourable Justin Tkatchenko, Member of Parliament (MP) as the First Respondent (“First Respondent”) and the Electoral Commission as the Second Respondent (“Second Respondent”). Honourable Justin Tkatchenko was declared as the Member for Port Moresby South Open on 28 July 2022. Each of the Respondents have filed Objections to Competency. The First Respondent filed their Objection to Competency on 21 September 2022, and the Second Respondent also filed their Objection to Competency on 21 September 2022. I heard both Objection to Competency on 27 February 2023, and reserved to today for my ruling on the objection.

Background


  1. I state the background facts from the agreed facts. The Petitioner was a candidate for the Port Moresby South Open seat in the National Parliament in the elections held between 12 May 2022 and 29 July 2022. At the declaration of the poll, she came fourth, polling 1,782 votes as compared to the First Respondent, who polled 28,111. The Petitioner is aggrieved in the manner in which the First Respondent was elected and has filed the Petition.

The Petition


  1. The Petition raises two main grounds to challenge the results of the Port Moresby South Open electorate. The grounds are pleaded from paragraph styled as “C15 to C21.” The grounds relate to allegations of bribery and undue influence.
  2. At the hearing of the objection to competency, the Petitioner was granted leave to withdraw the grounds of the Petition that relates to undue influence and only persisted with the grounds of bribery.

Respondent’s Objection to Competency


  1. Both Respondents rely on similar grounds of objection and in the interests of brevity, I state that essentially, they raise two grounds – the first ground relates to s 208(a) of the Organic Law on National and Local Level Government Elections (hereafter Organic Law) in that the Petition does not adequately plead the facts relied on. What the Respondents submit as not meeting the requirements for pleading are the words, “...with the knowledge and authority of the First Respondent:-...”. The Respondents say that there is no factual pleading to say how, where and when the First Respondent was involved in the allegation.
  2. The second ground relies to non-compliance with s 208(d) of the Organic Law, stating that the attesting witnesses do not state their occupation.

The Law


  1. An election petition is to be framed and brought before the court of disputed returns under the auspices of ss 208, 209, 210 and 212 of the Organic Law. The Organic Law is supplemented by the EP Rules. Specific parts of these provisions will be referred to during the judgment.
  2. Section 217 of the Organic Law provides an important guide to the court of disputed returns in how it should consider an election petition.
  3. Other relevant provisions concerning an election petition are s 215 and s 218 of the Organic Law.
  4. Section 208 of the Organic Law states:

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).


  1. Compliance with s 208 and s 209 of the Organic Law is mandatory as s 210 spells out:

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.


  1. As alluded to, s 217 of the Organic Law then provides:

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.


  1. There have been numerous case authorities on various aspects of an election petition. Counsels have ably referred to them. I highlight one at this juncture which has proven to be seminal in the litigation of election petitions, that is the case of Hagahuno v Tuke (2020) SC2018. Hagahuno deals mainly with s 217 of the Organic Law. I have read the case, and I highlight the proposition that has since redirected the way courts have considered election petitions (paraphrased from the headnotes):

Issues


  1. After hearing the submissions of Counsels, I consider that there are two issues for me to deliberate on:
  2. If I resolve one of these two issues in favour of the Respondents, will have the result of terminating the Petition.

Submissions


  1. Both Respondent submits that the allegation of bribery is inadequately pleaded. The first submission is that the words “...with the knowledge and authority of the First Respondent....” is a conclusion of law and does not adequately set out the facts necessary to constitute the allegation of bribery under s 215(3)(a) of the Organic Law.
  2. On the aspect of non-compliance with s 208(d) of the Organic Law, again the Respondents says that it is an incurable defect, relying on the National Court authority of Samuel v Morauta (2018) N7098.
  3. In response, the Petitioner submits that this court is bound by the decision of the Supreme Court in Hagahuno, especially the Deputy Chief Justice’s observations at paragraphs 33 and 34, and must generously apply s 217 of the Organic Law, such that the Petition must survive and go to trial.
  4. Secondly, the Petitioner questions the utility of s 210 of the Organic Law, and submits that its Constitutionality must be tested by the Supreme Court through a reference under s 18(2) of the Constitution.

Considerations


  1. Essentially the objections centers on two grounds- not pleading material facts under s 208(a) of the Organic Law and failing to meet the requirements of s 208(d) of the same law.
  2. I address both issues together in my consideration of the issues, but answer each of the issue raised specifically in my conclusion.
  3. A number of grounds are pleaded in the Petition, but they can be summarized into two main areas- bribery and undue influence.
  4. The Petitioner has sought leave to withdraw the aspects of her Petition as relates to undue influence. What remains is the allegation on bribery.
  5. Both Respondents have filed Objection to Competency. Usually, objections to competency arise when the requirements of s 208 have not been met. This is because s 210 of the Organic Law says these requirements are mandatory. Several case authorities such as Samuel v Morauta confirm this.
  6. In Hagahuno, the Supreme Court has opined that given the requirements of s 217 of the Organic Law, a liberal approach must be taken in dealing with the competency of election petitions.
  7. The question is, what do I see now of the Petition with the lens of Hagahuno? In Hagahuno, the Supreme Court held:

(4) As to the facts that are to be stated in support of allegations of bribery, it is necessary only that the petition state the essential elements of the offence, including the date of commission of the alleged offence of bribery, the name of the offender, the name of the person bribed, that the person bribed was an elector, that the bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate, and that the winning candidate was in fact a candidate at the time of the alleged offence. Here the petition stated the necessary details, sufficient to put the respondents on notice what the allegations were, and result in a fair trial. The trial judge erred in law by insisting on such an intricate level of detail as to require the petitioner to plead his evidence, which is not permitted.


  1. On the first ground of the objection to competency, I take the view that the Petition has pleaded facts which provide the date of the commission of the alleged offence of bribery [7 July 2022], the name of the person bribed [Api Babani], that the alleged bribed was offered with the intention of inducing the elector to vote for the candidate who [handed him the sum of K1,000 and told him to remove an election banner...which bore the picture, profile and name of Charles Kassman, the runner-up] was indeed the winning candidate [Justin Tkatchenko]. The question of whether there were no facts to show that the first respondent authorized Ronnie Kwari to offer the bribe is a question of evidence that is squarely for the trial court to determine. I do not see how it will unfairly prejudice the first respondent. In my respectful view, what has been pleaded is sufficient to put the respondents on notice of what the allegations are, and it would result in a fair trial. I therefore dismiss the first ground of objection.
  2. Turning to the second ground of the objection. In Samuel v Morauta, the National Court held that the requirements of s 208(d) are mandatory:

33...A Curate’s Egg approach (‘parts of this rotten egg are excellent’) is not permissible. The statement of occupation requirement is a mandatory part of Section 208(d), which contains three requirements:


34....Failure to comply with one requirement is fatal to the petition. It was a defect in the petition incapable of being cured after the 40-day period allowed by Section 208(e) of the Organic Law.


  1. Do I take the view that was held in that case? If I do, the natural consequences would be that the Petition must end. Clearly the Petition does not state the occupation of the attesting witnesses.
  2. I have taken into account the provisions of s 217 of the Organic Law and I have also considered the Supreme Court’s decision in Hagahuno. Since Hagahuno, the Supreme Court has opined that s 217 also applies at the competency stage. Sitting as a National Court Judge I must “...be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.” What do these words mean in the context of s 208(d) of the Organic Law? What do these words mean in the context of s 210 of the Organic Law. Is there a Constitutional issue raised by this objection?
  3. I note that Kapi J (as he then was) in Papo v Temo and Electoral Commission [1981] PNGLR 581, when dealing with the provincial electoral laws of Southern Highlands Province with two provisions with similar wording to s 217 and s 210 of the Organic Law, stated:

These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statute that an act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another; see Maxwell on the Interpretation of Statutes, 12th ed. (1969) Ch. 9 “Construction to Avoid Collision with other Provisions.” Sections 186 and 193 deal with different subject matters.


  1. In Papo v Temo and Electoral Commission his Honour decided that having regard to substantial merits of the case and without regard to legal forms and technicalities only came in after it was established that all the requisites have been met such as proper pleadings. But that case was decided before Hagahuno.
  2. In my view, the answer to my question as to whether there is any conflict with s 210 and s 217 of the Organic Law is answered by the Supreme Court’s decision in Hagahuno. It is clear that there are certain defects that cannot be saved even by s 217 of the Organic Law. In Deputy Chief Justice Kandakasi’s view they are “incurable defects.” His Honour stated at para 68:

An incurable defect, error or omission in an election petition could be a complete failure to:


(a) Disclose by a statement of the facts (regardless of however poorly or well drafted the petition might be) at least a known ground for invalidating an election or return; or

(b) State the occupation of the attesting witnesses as was the case in Biri v Ninkama; or

(c) State both or either of the required two attesting witnesses’ address;

(d) Specify the relief sought; or

(e) Sign the petition by the petitioner; or

(f) File the petition within 40 days after declaration of the relevant results.
  1. I have not been drawn to a contrary view of the Supreme Court on this issue. A clear Constitutional issue on the viability of s 210 of the Organic Law has also not been made out. The result of all this would be that the Petition has “an incurable defect” as it has not stated the occupation of the two attesting witnesses and on the face of it, has not met the requirements of s 208(d) of the Organic Law. I am therefore led to the position that the Petition should be dismissed in accordance with s 210 of the Organic Law.

Conclusion


  1. The Petitioner has met the requirements of s 208(a) of the Organic Law as regards the first issue.
  2. I find on the second issue that the Petition has not met the requirements of s 208(d) of the Organic Law.
  3. Given my finding on the second issue, I order that the Petition should be dismissed.

Costs


  1. The First Respondent has submitted that costs should be on a solicitor/client basis. In my view the objection has not gone all in favour of the Respondents. I will therefore order that the costs are taxed if not agreed, and the deposit of K5,000 paid by the Petitioner be forfeited as part-payment of the costs of the Respondents on an equal basis.

Orders


  1. I make the following orders on account of the foregoing:

Judgement and Orders accordingly.
____________________________________________________________
GFS Lawyers: Lawyers for the Petitioner
Simpson Lawyers: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent

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