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Philip v Kuk [2021] PGDC 192; DC7049 (21 January 2021)

DC7049

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
COURT OF DISPUTED RETURNS – LOCAL-LEVEL GOVERNMENT
ELECTIONS

ELECTION PETITION No: 25 of 2019

BETWEEN
WANPIS PHILIP

- Petitioner.

AND
MATHEW KUK

- First Respondent.

AND

LUKE WAIYON-Assistant Returning Officer, Maramuni Local Level Government.

- Second Respondent.

AND
BAIN LYAMBIAN- Provincial Returning Officer, Enga Provincial Government.

- Third Respondent

AND

PNG ELECTORAL COMMISSION.

- Fourth Respondent

WABAG: M. Apie’e

2020: December 03^rd 2021: January 21.

CIVIL: -ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS.

-NOTICE OF MOTION FILED and moved for orders pursuant to sections 206, 212 (1) (f) (g) (h) and (j) and (4) of the Organic Law and Section 146 of the District Court.

EVIDENCE/PROCEEDINGS:

-Petitioner Relies on his originating documents dated and filed the 02^nd of September 2019 and on his Notice of Motion Dated 22^nd of September 2020 with its supporting affidavit(s) to seek the following orders, namely that;

i. The First Respondents be declared as not being duly elected,

ii. That the Petitioner is ‘Instead’ declared as duly elected,

iii. Costs.

iv. Other Orders the Court Deems meet.

All pursuant to Section 212 (1) (f) (g) (h) and (j) and (4) of the Organic Law on National and Local Level Governments,

-Notice of Motion is opposed by the Respondents via Counsel

ISSUE(S)-

1. Was Polling in Wabag instead of Ilya Lawful?
2. Are the Reliefs sought in the Notice of Motion justified ?

HELD:

1. Change of Polling venue from Ilya to Wabag is justified and Lawful.
2. The Complainants Notice of Motion of 12^th March 2019 and the Reliefs sought

therein refused in its entirety.

3. The Petition is also dismissed in its entirety.
4. Costs to the First Respondent.

References:
-Organic Law on National and Local Level Government Elections. No: 3 of 1997.
-District Court Act 1963. Chapter 40.
-Criminal Code Act 1974. Chapter 262.

Cases:
- Kuna vs. Eralia [2004] PGNC 17; N2771
-Jimson Sauk vs. Don Polye (2004) SC769
- Ginson Saonu vs. Bod Dadae (2004) SC764
- Neville Bourne vs. Manessah Voeto [1977] PNGLR 298
- Jim Nomane vs. David Anngo, (2003) N2496
- Bire Kimisopa v. Henry Ame [2018] PGNC 196
- Kamma v Itanu [2008] PGNC 4; N3261

Nil

Appearances:
Mr. Clement Talipan for the Petitioner.
Ms. S. Sipani for the Respondents.

JUDGMENT.

M. Apie’e. Magistrate.

BACKGROUND:

1. This Notice of Motion emanates from an Election Petition Brought Pursuant to Section 206 and by adaptation to the District Court pursuant to Section 287 of the Organic Law on National and Local Level Government Elections (Hereinafter the Organic Law)
   
2. The First Respondent Mr. Mathew Kuk was declared as Councilor Elect with 398 votes for Ilya Ward 9, in the Maramuni Rural Local Level Government (RLLG) in Wabag, Enga Province on the 27^th of November 2019.
   
   1. The Petitioner Mr. Wanpis Philip who was the runner-up with 253 or 235 votes is aggrieved by the manner of conduct of the Elections and Counting and declarations by the 2nd 3^rd and 4^th Respondents, therefore he filed a petition challenging the First Respondents declaration as Councilor Elect for Ilya Ward 9 Maramuni RLLG, dated and filed on the 19^th of December 2019.
      
   2. The Petition was subjected to the ‘Competency test’ pursuant the Organic Law whilst being mention in court from time to time and reached competency.
      
   100. The Grounds for the Petition as disclosed in the Substantive Petition in paragraph # 2 raised the following;
        
        1. ‘The First Respondent was unlawfully declared the Winning Candidate after the Supplementary election processes were hijacked by the 2^nd and 3^rd Respondents..!’
           
        2. ‘.. in which the supplementary polling/elections for the failed LLG elections for Maramuni RLLG were illegally conducted and polled at the District Headquarters in Wabag and not at Ilya or Pasalagus in Maramuni..!’
           
        3. The Change of Venue and lack of Proper Publication of the Change in polling venue resulted in most of the Petitioners Electors not attending at Wabag thereby the Election/ Result was affected.
           
   4. The First Respondent caused to be filed his Defense to the Petition on the 23/06/20, in which he asserted that there were no errors or mistakes in the polling and also that such errors and irregularities did indeed occur, he had no part in the Commission of any errors, irregularities, or other Election wrong doings and so his Declarations a Councilor for Ilya Ward 9 Maramuni RLLG should be affirmed and allowed to Stand.
      
   5. This Affidavit of Defense filed on 3/06/20 by the First Respondent is sufficient and accepted by this Court pursuant to Sections 217 and 222 of the Organic Law.
      

Notice of Motion filed 27/07/20

3. The Petitioner/Applicant (Hereinafter ‘Applicant’) filed the Notice of Motion now being considered on the 27/07/20 seeking orders pursuant to sections 5, 22 and 146 of the District Courts Act and Sections 212 of the OLNLLGE for Alternate Declarations in respect of Ilya Ward 9 Maramuni RLLG in Wabag EP.
   
   1. The Applicant relied on his Originating Documents as well as the following documents in moving his motion and they are;
      
   1. His primary affidavit dated 17/03/20
   2. Affidavit of John Alex dated 16/11/19
   100. Affidavit of Loailya Palan dated 16/11/20
   4. Primary Submission dated 27/07/20.
      

Applicants Claims.

4. The essence of the Applicants Notice of Motion as pressed by his Counsels submission and supported by his witnesses is that;
   
   1. No Proper publication to the people of Ilya Ward 9 RLLG was made by the 2^nd and 3^rd Respondents in respect of the change of polling venue from Maramuni to Wabag for the Supplementary Elections for Ilya RLLG Ward 9 in Maramuni.
      
   2. Consequently, most of the Electors from Ilya RLLG Ward 9 in Maramuni who would have potentially voted for the Applicant did not come to Wabag to vote for him.
      
   100. The Lawful polling venue by Government Gazette for Ilya RLLG Ward 9 is at Ilya village in Maramuni and not anyway else like Wabag.
        
   4. He further claimed that pursuant to sections 43, 79, 113, 114 and 115 of the Organic Law, any Change of venue from Ilya to Wabag ought to have being identified properly by Gazette as follows,
      
      1. Ilya Polling venue must be lawfully abolished by Gazette.

,

2. Wabag District Offices must be properly identified by Gazette as the new Polling venue for Ilya RLLG Ward 9.
   
3. He posed Section 43(2) of the Organic Law which says;
   

‘No Polling Place Shall be abolished after the issue of the writ and before the time appointed for its return’

4. Writs were supposedly issued on the 30/10/19 and returned on the

30/11/19 or sometime before 12/12/19. No abolishment of Polling venue’s ought to have being done within that period pursuant to Section 43, according to the Applicant.

5. ‘Because of this Unlawful change of polling venue many Electors

from Ilya Ward 9 Maramuni RLLG did not make it to Wabag to Vote’ claims the Applicant.

5. Accordingly, the Applicant Seeks the following Relief from the Court;
   
   1. The 1^st Respondent Election as Councilor for Ilya Ward 9 Maramuni RLLG be declared as Null and Void;
      
   2. A Declaration that the Applicant/Petitioner is the sitting Councilor for Ilya Ward 9 Maramuni RLLG.
      
   3. The Cost of the Petition and application be met by the Respondents.
      

RESPONSES.

5. Ms. Serah Sipani from Enga Provincial Government (EPG) Legal Office made appearance for Respondents and she made submission in response to the Notice of Motion for and on behalf of all Respondents after EPG awarded Legal Aid to all Respondents to LLG Petitions.
   
6. She Filed and tendered a Reply to Submissions by the Applicant during the hearing of the Notice of Motion on the 03/12/20.
   
7. She also made reliance on the following documents;
   
   1. Defense Affidavit of Mathew Kuk dated 23/06/20.
   2. Respondents Reply to Submission by Mathew Kuk dated 2010/20.
   100. Affidavit of Luke Waiyon ARO of Maramuni dated 09/11/20
   4. Affidavit of Returning Officer Bain Lyambian dated 09/11/20
   5. Notice of Intention dated 26^th/11/20.
   6. Supplementary Affidavit of Lucas Waiyon dated 01/12/20
      
8. The essence of the Respondents Response is this;
   
   1. The LLG Elections for Ilya Ward 9 Maramuni RLLG was marred

with violence and destruction of properties the first time around and so was declared Failed and Supplementary elections had to be conducted.

2. The funding allocated for Supplementary Elections for Enga

Province was K250,000.00 and for the Three Maramuni LLG wards, an allocation of only K10,000.00 was made, not sufficient to conduct polling in Maramuni RLLG itself.

100. Also because of the Lingering unrest, The Electoral office in

Consultation with Candidates for the various LLG Wards in Maramuni Resolved to conduct polling at a neutral Location. That neutral location being The District Office at Wabag.

4. The Applicant and other candidates as well as voters from

Maramuni were well informed of this change in location and such change was legal.

9. The First Respondent did file his Defense as directed by the Court on the 23/06/20 and as stated above. He had no part in the Changes made to the Polling venue and conduct of the election thereof.
   

The Applicable Law.

Organic Law.

10. The Law applicable to Elections Petitions for Local Level Governments is Firstly the Organic Law by application of Section 287;
    
    1. By virtue of Section 287, the Organic Law has full and ample application to LLG Petitions and it is therefore the intention of this court to fully adhere to the ambit of this Law in its deliberations of the Petition and the ensuing Notice of Motion.
       
    2. The Relevant Provisions of the Organic Law applying to Election Petitions

relating to LLG Elections are all encompassed in Part XVIII from Sections 206 to 287 except for the specific Provisions relating to the National Court in Sections 208(e), 209, 210, 212(2) and 213.

District Court Act.

100. Of Course, also in the Conduct of Election Petitions specific to LLG’s,

the applicable and relevant provisions of the District Court Act, naturally and automatically apply as posed by the Petitioner.

4. The Applicant/Petitioner in his Notice of Motion specifically relies on

Sections 5, 22 and 146 of the District Court Act and also Section 212 of the Organic Law to seek Judgment against the Respondents.

Case Law.

11. The Case Law referred by the Parties all have relevance in varying degrees and are noted for what they are worth to the present case as follows
    
    1. The case of Kuna vs. Eralia 2004 PGNC 17 N2771; p 15 -17 per Cannings J, is relied on by Applicant as to applicability of the Provisions of the Organic Law to LLG Election Petitions.
       
    2. The case of Jimson Sauk vs. Don Polye (2004) SC769, Ginson Saonu vs. Bod Dadae(2004) SC764 both relate to the boundaries between the Applicability of the Organic Law between the National Court and the District Court as between the applicability of the Organic Law.
       
    100. Neville Bourne vs. Manessah Voeto [1977] PNGLR 298 decision of Late Chief Justice Frost as he then was, cited by the Respondents counsel related to District Courts Sitting as Courts of Disputed Returns.
         
    4. In respect of the actual pleading of Set of Facts relied on in a claim in an election petition under section 208 of the Organic Law, the Respondents relied on the case of Jim Nomane vs. David Anngo, (2003) N2496 per Gavara-Nanu J.
       

Observations on the Evidence:

12. In respect of this case and also by way of response to the Issues raised by counsels, I make the following Observations;
    
    1. I am bound by the District Court Act as relied on by the Applicant to assess this Application on all its merits and accordingly rule on the totality of Evidence as presented before me as per Section 5, 22 and 146 of the District Court Act.
       
       2. Pursuant to section 217 of the Organic Law, I am obligated to adhere to the liberal interpretation and application of the Organic Law in determining the outcome of this matter without regard to legal forms or technicalities, or whether the evidence before me is in accordance with the Law of Evidence.
          
       100. Ilya Ward 9 Maramuni RLLG is a Rural Ward some distance away from Wabag town and according to Evidence presented by all it would have require Air travel for Polling Officials to be airlift there to conduct polling properly if funds had being adequate because of the poor to non-existent road conditions.
            
       4. The contentions made by the Respondents that Publication of the Change of Polling venue was made and circulated to the Candidates and Voters of Ilya Ward 9 Maramuni RLLG, is indeed supported by the Petitioner in admitting that he had or was aware of the move to bring polling to wabag.
          
       5. Because of this awareness, candidates and voters did attend at Wabag District Officers and actually stood in line and voted and the Petitioner was actually supported by 230 to 250 votes while the First Respondent scored 398 votes out of the 728 Ballot papers distributed giving a total of over 600 voted cast between them excluding informal of uncast votes.
          
       6. Roughly 180 ballot papers remain uncast/informal.
          
       7. The Applicant despite what he is trying to imply in his petition did also vote and scored about 250 votes, it is not as if he was in Maramuni and did not vote himself or his supporters not voting for him.
          
       8. Further to that Voting in Papua New Guinea is not compulsory so it is not unreasonable to expect that some people will not attend to vote in a LLG Elections given the distance they had to travel from Ilya to Wabag.
          
       9. The Applicant can be said to have fairly contested the Election for Ilya ward 9 in the Maramuni RLLG and was beaten by the First Respondent with more votes.
          

ISSUES:

13. Going back to the issues raised / posed in the Applicants written Submission, for the purpose of this Applications I find these issue pertinent;
    
    1. Whether or not the Polling Booth at Wabag was Lawful?
       
       1. I would begin by referring to the Law, especially the Organic Law at

Section 115(2) (3) which makes allowance for changes to be done to the Polling schedule. The Inadequate Funds, Prevailing conditions of unrest or potential unrest leading on from the previous elections in which Ballot boxes were actually hijacked and destroyed, it would have being illogical and foolhardy to go back to conduct polling at Maramuni.

2. The fact that the Candidates and voters did attend to vote, including the Petitioner further reinforces the Legality and Lawfulness of this Process. It’s not as if the Petitioner was waiting in Maramuni when Polling was being conducted here in Wabag, he was here so were his voters.
   
3. There is Contention raised that a lot of Non- Residents of Ilya voted in the Supplementary Election here at Wabag, but apart from General aspersions, no names, and numbers of people who supposedly voted were pleaded. Nomane v. David Anngo. The Court is left none the wiser about this. Besides, the Petitioner still scored votes, it is not like he was completely blindsided and did not score votes.
   
4. The Other factor is that the Both the Returning officer and the Provincial Returning Officer /Election manager deposed evidence vouching for the Change from Maramuni to Wabag as being proper, and that in itself ought to count for something.
   
5. Having given the above reasoning’s in respect of the issue above that the Polling Venue changes from Ilya to Wabag was Lawful I would pose Section 117 of the Organic Law as a final point to Consider.
   

Section 117 raises the caveat that in respect to a failure to observe a polling schedule or comply with the provisions of Section 114 or a variation or departure from a polling schedule, is not open to challenge.

The exception to this caveat, I would surmise, if such failure or departures from a polling schedule are flagrantly and without justifiable reasons orchestrated to cause some people or candidates not to vote or contest in the Elections itself.

Sections 114 talks about polling schedules, which is times and places to conduct polling.

14. The Other issue I would venture and address on is Section 215 (3) which reads;
    
    1. 215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

.........

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void–

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

unless, the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void

2. In this current case, the idea of taking the Polling back to Maramuni, given inadequate funding and the lingering unrest and dangers to people and Polling officers again after the first failed Election, would be foolish and there is no telling what would have happened again.
   

100. I would therefore surmise and rule that the result of the election was not likely to be affected for the better as polling did actually commence and concluded at Wabag with people actually voting including the Candidates.
     

4. The Claim that Counting subject to no scrutiny as Scrutineers were not allowed in is at best not sustained on the pleadings as per the requirement under section 215(3) and Section 208 of the Organic Law. Refer the Ruling of Gavara-Nanu J in the Nomane v. Anngo case above.
   

15. The last Issue I would add is, ‘Given the foregoing, can this court fully accede to the Reliefs sought in the Notice of Motion?
    
    1. The Orders /Relief sought in this Notice of Motion pursuant to section 212 of the Organic Law are therefore;
       
       1. The 1^st Respondents Election as Councilor for Ilya Ward 9 in

Maramuni RLLG be declared as Null and Void as per section 212(1) (f) and (h) of the Organic Law;

2. A Declaration that the Applicant/Petitioner Be declared as Councilor Elect for Ilya Ward 9 in the Maramuni RLLG pursuant to section 212 (1) (g)
   
3. The Cost of the Petition and application be met by the

Respondents pursuant to Section 212(1) (j) of the Organic Law..

2. In the National Court case of ‘Gobe Hongu Ltd v. National Executive Council’ N1920 Late Sevua J, when addressing on pleadings and Reliefs sought held that

‘It is trite law that a party is not entitled to a remedy he has not pleaded in his claim.’

100. It is incumbent on the Applicant to properly and completely plead his claims and relief(s) as per case law and the Organic Law.
     

4. The Pleadings and evidence relied on to have the election of the First Respondent as Council Elect for Ilya ward 9 in the Maramuni RLLG is not made out to the satisfaction of this court.
   
5. On the Whole of the Evidence for and against posed by both sides, especially the pleadings and proposed evidences, this Court of Disputed Returns is not even Convince that a case has being made out for it to accede to the other Reliefs sought in the Notice of motion.
   
6. Costs logically, must therefore follow the event.
   

RULING.

16. Accordingly, on the totality of Evidences and Submissions deposed and posed by all, this Court Finds and Rules as follows.
    
    1. The Applicants Notice of Motion is hereby refused.
       
    2. The Substantive Petition of the Applicant/Petitioner filed on the 19^th of December 2019 is accordingly dismissed in its entirety.
       
    100. Costs awarded to the First Respondent against the Applicant to be agreed, if not to be taxed.
         
17. Orders Accordingly.

Kortal Lawyers for the Petitioner.

Enga Provincial Legal Office for the Respondents.