N2384

PAPUA NEW GUINEA

[In the National Court of Justice]

EP. No. 52 of 2002

Between:

JIM NOMANE
Petitioner

And:

DAVID ANGGO
First Respondent

And:

RUEBEN KAIULO
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

MT. HAGEN	: JALINA, J.
2003: 3rd & 7th March

National Parliament Elections – Candidates for – Qualification to stand for – Petitioner’s names and occupation in Nomination Form different from names and occupation on Common roll – Whether Petitioner Eligible or Qualified to stand as Candidate and thus bring Petition Disputing Returns of First Respondent as Duly elected - Ss 50 and 103 (3) Constitution and S.87 of Organic Law.

Cases cited:
Kevin Masive –v- Iambakey Okuk & Johhannes Kederop [1985] PNGLR 263
Daniel Don Kapi –v- Takai Kapi & Electoral Commission, Unreported Supreme Court Judgment No. SC548 dated 1st April 1998.
Jimson Sauk Papaki –v- Don Pomb Pullie Polye, Unreported Supreme Court Judgment No. SC644 dated 29 October, 1999.

Counsel:
J. Kunjip for Applicant/First Respondent.
R. William for Co-Applicant/Second Respondent.
T. Dawidi for the Respondent/Petitioner.

7th February, 2003

JALINA, J:	The Applicant and the Respondent were among 35 Other Candidates who contested the National Parliament Open Seat for Chuave in the Simbu Province during the 2002 General Elections. The Applicant was subsequently returned duly elected Member of the National Parliament for that electorate. Then on 2nd September 2002 the Respondent herein filed a Petition in the National Court disputing the election of the Applicant as Member of Parliament for that Electorate.

On 20th November 2002 the Applicant filed an objection to Competency of the Petition. Then on 7th January 2003 the Applicant filed a Motion seeking this Court’s determination of whether or not the Respondent/Petitioner herein was qualified to be a candidate for the National elections for the Chuave Open Electorate in 2002 and for his Petition to be struck out and or dismissed if he was not so qualified. It is the issue of qualification or eligibility of the Respondent/Petitioner herein to contest and that has been argued before me for determination. 

As it is a threshold question which goes to the issue of locus standi of the Respondent/Petitioner herein to even bring the Petition it has to be determined first. The objections to the grounds of the Petition will be the next issue for determination subject to my ruling on the issue of qualification of the Respondent/Petitioner to stand or contest. 

It should be pointed out at the outset that the jurisdiction of this Court to deal with the issue of qualification of a citizen to contest or stand for public office is well settled in this jurisdiction. (See Kevin Masive –v- Iambakey Okuk and Johhannes Kenderop [1985] PNGLR 263).

It should also be pointed out at the outset that by virtue of s 217 of the Organic Law on National and Local Level Government Elections (The "Organic Law") the National Court is not bound by legal forms and technicalities and the rules of evidence but is to be guided by substantial merits and good conscience of each case when dealing with matters relating to or arising out of election of members to the National Parliament or Local Level Governments.

With the exception of persons specified in sub-section (1) (a) and (b) every citizen who is of full capacity and has reached voting age has the right to vote for and stand for elective public office and do other things as specified under s 50 of the Constitution subject to express limitations imposed by other provisions of the Constitution.

Qualifications to be, and disqualification from remaining a Member of the National Parliament are provided for in s.103 of the Constitution. In so far as the present case is concerned, sub-sections (2) and (3)(a) are relevant. Sub-sections (2) and (3)(a) provides:

"(2)	A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(3)	A person is not qualified to be, or to remain, a member of the Parliament if –

(a)	he is not entitled to vote in elections to the Parliament."

Section 87(a) of the Organic Law deals with qualification to be elected as a member. It provides:

"87.	REQUISITES FOR NOMINATION

No nomination is valid unless -

(a)	The person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member."

The effect of s.87(a) would appear to me to be that if the person who nominated is found not to have been qualified under the laws of Papua New Guinea, his nomination would be at the risk of being declared invalid by a court of competent jurisdiction.

The Applicant has filed two (2) affidavits in support of his application. One was from himself (David Anggo) filed herein on 7th January 2003 and the other affidavit was from Ray William filed herein on 3rd March, 2003. In his own affidavit the Applicant deposes to the Respondent/Petitioner as having two (2) different names and two different occupations namely "Jim Josiah," Chairman of Pangtel and "Jim Nomane", engineer. As Annexure "A" he annexes a list of candidates for the Chuave Open Seat in the 2002 National Elections. The Respondent/Petitioner’s is No. 22 on the list under the name "Jim Nomane" and his occupation is stated as "Engineer." Annexure "B" contains’ a list of electors registered on the common roll for the Laiya area where the Respondent/Petitioner purports or claims to have come from but "Jim Nomane" is not mentioned. Instead the name "Kevin Jim Nomane", a subsistence farmer born in 1976, appears. Annexure "C" of his affidavit contains another list of electors registered on the common roll where the Respondent/Petitioner purports or claims to have come from. The name under that list is "Jim Josiah" a subsistence farmer born in 1949.

The affidavit of Ray William annexes a copy each of the Respondent/Petitioner’s Nomination form and the receipt for payment of the K1,000.00 nomination fee. The Nomination Form shows the name "Jim Nomane" who lived at Laiya Village and who was an engineer born on 1st September 1959.

On the basis of Section 50 and 103 (3) of the Constitution and s 87(a) of the Organic Law as well as the affidavit of the Applicant and Ray William, the Applicant submits that the Petitioner was not an elector as he was not registered on the Common roll for the Laiya area in the Chuave Open Electorate. In Annexure "B" to the Applicant’s affidavit there is a "Keven Jim Nomane" from Laiya Village, a subsistence farmer born in 1976 but the name "Jim Nomane" with birth date as "1959", the year the Respondent/Petitioner claims he was born and his occupation as "engineer" did not appear. In Annexure "C" to the Applicant’s affidavit, the name "Jim Josiah" a subsistence farmer born in 1949 appears. He submits therefore that "Kevin Jim Nomane" a subsistence farmer born in 1949 cannot be "Jim Josiah" a subsistence farmer born in 1958. Likewise "Jim Nomane" a subsistence farmer cannot be "Jim Nomane" an engineer. Even the birth days or year of birth, he submits, of the Respondent/Petitioner and "Jim Josiah" are not the same.

The Applicant further submits that whether "Jim Nomane" was the one and same person as "Jim Josiah" was of no consequence in so far as the electoral process was concerned. A person not enrolled as an elector cannot vote and therefore cannot be a candidate for election and as such had no standing to mount this Petition. He relies on the Supreme Court decision in Daniel Kapi –v- Takai Kapi, an Unreported Judgment No. SC548 dated 1st April 1998. In that case, the Applicant, Daniel Kapi, who was a runner-up to the winning candidate, Takai Kapi, filed a petition disputing the election of Takai Kapi for the Wabag Open Electorate in the National Parliament. One of the matters raised in the petition was the right of Takai Kapi to be nominated and stand for the Wabag Open Electorate because he was not properly qualified under the Constitution by reason of the fact that he was not enrolled as a voter in that Electorate.

The evidence before the trial judge was that Takai Kapi had sought to become enrolled at Wabag and that he completed the appropriate application form which was accepted by the Returning Officer who then placed his name on the records kept at Wabag. The evidence suggested that the application was then forwarded to Port Moresby for inclusion in what was called the Principal Roll of Electors. His name however did not appear in the published Common Roll so it was submitted it must have been due to some error. It was then claimed that his name may have been on the Common Roll as Tarak Joeri which he had claimed to be his village name but that name was entered on the roll as the name of a female. Notwithstanding that kind of evidence as to qualification to stand as a candidate for the Wabag Open Electorate, the trial judge found in favour of Takai Kapi and dismissed Daniel Kapi’s Petition. Daniel Kapi then applied to the Supreme Court for review under s 155 (2)(b) of the Constitution alleging among other things an error on the part of the trial judge in his findings in favour of Takai Kapi on the issue of his qualification to stand by reason of his failure to properly enroll as an elector or voter. 

In allowing the review and quashing the decision of the trial judge and ordering a by-election for the Wabag Open Electorate the Supreme Court said:

"It is our view that Elections to the Parliament must be conducted in accordance with the provisions of the Organic Law (Constitution s.126), in this case the Organic Law on National and Local Level Government Elections. Further we consider that by s.52 of the Organic Law all persons who have a right to vote under s.50 of the Constitution and who comply with the requirements for enrolment set out in Part VII of the Organic Law, in respect of an electorate are entitled to be enrolled.

Section 57 of the Organic Law (which is in Part VII) provides for compulsory enrolment.

It is our view that the intention and spirit of the provisions we have referred to above, in that in order for a person to stand for and vote in an Election, is that he or she must comply with the provisions of the Organic Law relating to enrolment. A person cannot vote or stand for elective office, if he or she has not been enrolled in the first place. If a person has not enrolled in accordance with the provisions of the Organic Law, then that person is not qualified to be entitled to vote in elections to the Parliament. It follows that such a person is not qualified to be a or remain a member of Parliament (s.103 (3) of the Constitution).

To be entitled to vote, one must comply with these requirements of the Organic Law on enrolment. In other words, a person must be enrolled in order to exercise that right to vote. If a person has not enrolled then that person is not entitled to vote nor stand for an election. A person must be qualified to stand and or vote in an election. If a person is not qualified then that person cannot stand and or vote in an election."

The Applicant herein has also relied on another Supreme Court decision where the eligibility of the candidate to stand for election was raised because his name did not appear in the common roll of electors or voters for that Electorate. The case is Jimson Sauk Papaki –v- Don Pomb Pullie Polye & Electoral Commission, Unreported Supreme Court Judgment No. SC644 dated 29th October 1999. A summary of the facts in that case are that the First Respondent nominated as a candidate for the Kandep Open Electorate in the name "Don Pomb Pullie Polye" from Kokosa Village. The undisputed evidence however was that that name did not appear in the common roll whether in respect of a person from Kokosa or anywhere in the electorate at all. The learned trial Judge accepted the First Respondent’s evidence that in fact he was one and the same person as "Don Pela" of Gina Rest House, subsistence farmer, a name he said was used by him at school and subsequently in tertiary education. He sought to substantiate that by his school and tertiary certificates, driver’s licenses and the like. The trial Judge then declared the election of the Applicant Jimson Sauk Papaki as Member of the Parliament for the Kandep Open Electorate invalid. The Applicant Jimson Sauk Papaki then applied to the Supreme Court under Constitution s 155 (2)(b) for review of the National Court’s decision. In allowing the review and quashing the decision of the trial Judge and declaring the First Respondent’s Petition in the National Court as invalid, the Court in which I was a member said:

"But whether the First Respondent is in fact truly Don Pela or not is of no consequence for the electoral process. The law is very clear. A person not enrolled as an elector cannot vote and cannot be a candidate for election. This Court made that clear in Application of Takai Kapi SCR 88/97.

Therefore since the clear evidence before the trial Judge was that there was no person in the name of the 1st Respondent recorded in the common roll for the Kandep Open Electorate the Petitioner was without standing and could not be heard. The only conclusion that the Court could have come to was to strike the petition out. In failing to do so the National Court acted outside its jurisdiction."

The Applicant submitted therefore that in light of the above Supreme Court authorities concerning the application of Section 50 and 103 of the Constitution and Section 87 of the Organic Law to persons who nominate as candidates but whose names are not on the Common Roll which authorities are binding on the National Court, the Respondent/Petitioner "Jim Nomane" does not have standing as a elector and therefore does not have standing as a candidate and as such he cannot dispute the election of the Applicant as a Member for Chuave Open Electorate. The Petition should therefore be dismissed with costs.

Mr. William for the Electoral Commissioner made only oral submissions supporting the Applicant herein. He did not differ substantially from the legislative provisions and case law that Ms. Kunjip for the Applicant has relied upon so I do not propose to refer to his submissions in any detail.

The Respondent/Petitioner has relied on Section 103 (3) of the Constitution and Sections 46 (4), 52, 55, 86 (2) and 87 of the Organic Law supported by evidence through his two (2) affidavits filed herein on 3rd February and 3rd March 2003 respectively. 

In his affidavit filed on 3rd February 2003 which he swore as "Jim Nomane Josiah", he deposes to being widely known by the name "Jim Nomane Josiah", a professional engineer who was the manager of Blue Sky Electrical and comes from Laiya, Namenena sub-clan of Siane LLG in Chuave District. He further contested the National Elections for the Chuave Open Electorate in 1992 under the name "Jim Nomane" because that name was much easier for people in the villages to pronounce. He again contested the same seat in the by-election in 1993 under the same name and did the same in 2002. He then annexes as Annexure "A" the 1992 Common Roll in which his name is recorded as "Jim Nomane." And in Annexure "B" he annexes the 1997 Common Roll in which his name is recorded as "Jim Josiah". 

What is interesting and this has been pointed out by the Applicant/Respondent and by his lawyer that the date or a year of birth is different and the occupation is different. It is also interesting to note that the Respondent/Petitioner is a professional engineer and yet in both the 1992 and 1997 Common Rolls where he claims to be enrolled, the occupation of "Jim Nomane" and "Jim Josiah" is indicated as subsistence farmer. No explanation has been given by him regarding this substantial and material discrepancy in occupation on the 1992 and 1997 Common Rolls. Furthermore, although he claims to be from Laiya in the Chuave District which is in the Chuave Open Electorate, nowhere in his two affidavits does he indicate his place of birth so as to enable the Court to determine if his right to stand falls under s 103 (2) of the Constitution other than his bold assertion through his Nomination Form for the 2002 General Elections that he was born in the Chuave Electorate.

Annexure "C" is the 2002 Common Roll Update Summary for the Chuave Open Electorate. It refers to No. 3017906 as the number in the Master List Elector ID and his enrolment as "Jim Nomane Josiah". Two questions arise from this. Firstly, he has not annexed the Master List Elector ID to enable this court to verify whether it was the Master Elector List for 1992 or 1997 Elections or 2002 as well as the number allocated to him i.e. No 3017906. Secondly, if he did update the Common Roll for 2002 and enrolled under the name "Jim Nomane Josiah" as it appears to be, then it raises the question as to why he nominated under the name "Jim Nomane" and not "Jim Nomane Josiah" for the 2002 Elections.

His affidavit filed on 3rd March 2003 was in rebuttal of Ray William’s Affidavit which was filed on the same day on behalf of the Applicant herein. In that affidavit the Respondent/Petitioner herein says that his voter update was done in 2002 Common Roll but it does not contain his full name and the name he intended to nominate under. But then whose fault is it? It was for him (the Respondent/Petitioner) to ensure that all was in order and his names in the Nomination Form were the same as in the common roll bearing in mind that he had contested in 1992, by-election in 1993 and in 1997 for the Chuave Open Electorate. Where material discrepancies appear, then he should bear the consequences of his act or omission. He then goes on in his Second affidavit to point out that "Kevin Jim Nomane" was somebody else. If so, why does the name "Jim Nomane" appear near "Kevin Jim Nomane"?

The Respondent/Petitioner went on to make submissions on s 103 (3) of the Constitution and s 46 (4), 52, 55, 86 (2) and 87 of the Organic Law.

The terms of s 103 (3) of the Constitution and s 87 of the Organic Law has already been set out through the Applicant’s submissions so there is no need for me to repeat them here.

Section 52 (1) of the Organic Law gives all persons who have the right to vote and stand for public office under s 50 of the Constitution who comply with the requirements of Part VII of the said Organic Law for enrolment for an electorate, the entitlement to enrolment. Sub-section (2) of that Section (s 52) gives all person whose names are on the Roll for an electorate the right to vote subject to the provisions of the Organic Law and any other law in force.

Firstly, this case is not concerned with the Respondent/Petitioner’s right to enrolment so s 52 (1) does not apply. Sub-section (2) makes a person’s right to vote subject to the Organic Law and any other law in force which in my opinion includes the rights and limitations provided in the Constitution, in particular s 50 and 103 (3). The law relating to the application of s 50 and s 103 (3) of the Constitution in so far as a person’s right to vote and to stand for public office is concerned is now well settled in two Supreme Court cases which have been referred to by the Applicant herein which are Daniel Don Kapi –v- Takai Kapi, SC548 and Jimson Sauk Papaki –v- Don Pomb Pullie Polye, SC644. So there is no need for me to delve into them again. 

Section 55 is another provision of the Organic Law that the Respondent/Petitioner has relied upon. It deals with claims by a person for enrolment. Sub-section (1) sets out the circumstances in which a person may be entitled to have his name placed on the roll for that electorate. It provides:

"(1)	Subject to this section and to Section 52, a person who –

(a)	has resided in the area of an electorate for a period of not less then 6 months immediately preceding the date of his claim for enrolment; or

(b)	is nominated for an electorate for which he is not enrolled and was either born in the electorate or lived in the electorate for five years at any time, is entitled to have his name placed on the Roll for that electorate."

The difficulty the Respondent/Petitioner faces in relying on this provision is that apart from a bold statement in his Nomination Form that he was born in the Chuave Electorate on 1st September 1959, nowhere in his two affidavits does he say that he had resided in the Chuave Open Electorate for a period of not less than 6 months immediately preceding the date of his claim for enrolment nor does he say where he was born in the electorate if at all.

Another provision relied upon by the Respondent/Petitioner was Section 86 of the Organic Law. It deals with the person or officer to whom nominations are to be made. Since the issue before me relates to his eligibility to stand as a candidate by reason of his name not being on the Common Roll for the Chuave Open Electorate, the person or officer before whom he made his nomination is irrelevant.

The other provision relied upon by the Respondent/Petitioner was s.46(4) of the Organic Law. Section 46 deals with new rolls. Sub-section (4) provides:

"Notwithstanding anything in Sub-section (3), where the elector is enrolled in respect of an address in an electorate for which he is entitled to be enrolled, he shall not be required to send in any further claim for enrolment in connection with the preparation of a New Roll under this section."

He relied on a Supreme Court decision in Takai Kapi –v- Daniel Don Kapi, SCR 69 of 1998, Unreported Supreme Court Judgment SCR 570 to support his arguments under s 46(4).

He submitted that since Takai Kapi’s name was already on the electors roll in 1992 he need not re-enrol. The Supreme Court, he submitted, found that to be correct in law. Firstly, may I point, out with respect, that s 46 (4) deals with an elector who is already enrolled in an electorate but is required to enroll in a new roll which is not in issue in this case. Secondly, the case of Takai Kapi –v- Daniel Don Kapi SC570 which he has relied upon to give effect to s 46 (4) does not assist because the Supreme Court did not make any definitive decision on Takai Kapi’s name appearing in the 1992 Common roll and his eligibility to stand. The Court said:

"The law, that is section 47(4), is so clear that no court would deliberately violate it. Further the evidence is so clear that Takai Kapi had the majority votes and unless attacked on some other reasons like bribery etc, he has the people constitutional wish to be their member of the Parliament.

However the next question is whether we should deal with this issue. We think that the appropriate Bench to have dealt with this issue would have been the Bench constituted in SCR 88 of 1997. Had the issue of 1992 Common Roll and the application of section 47(4) of the Organic Law been directed to the attention of that Court the decision as a matter of law might have been different. In saying that of course we assume that the name Takai Kapi is on the 1992 Roll. That is a matter of evidence. Similar issue was raised in 1997 Roll but the trial judge was not satisfied that he was on the Roll because the name he referred to as his was the name of a female.

At the end, we are of the view that it was incumbent upon Takai Kapi to raise the issue of 1992 Common Roll as an alternative argument and the application of section 46(4) of the Organic Law before the Bench in SCR 88 of 1997. Instead he remained tight lipped wishing for a wind fall. As he had a ‘free ride’ he cannot now be allowed to abuse the process. We therefore refuse his application to review."

In view of the legislative provisions and the case law particularly the two Supreme Court decisions of Kapi –v- Kapi, SC548 and Jimson Sauk Papaki –v- Don Pomb Pullie Polye SC644 and the comments and questions I have raised in respect of the affidavits filed by the Applicant and the Respondent/Petitioner, I am persuaded and do accept the submissions of the Applicant. I am bound by the two (2) Supreme Court decisions I have just referred to. I find that the enrolment in the 1992 Common Roll by "Jim Nomane" subsistence farmer (See Annexure "A" to Jim Nomane’s affidavit) cannot be a valid enrolment by "Jim Nomane" an engineer born in 1959. Furthermore, enrollment in the Common Roll by "Jim Josiah" a subsistence farmer born in 1949 (See Annexure "C" of David Anggo’s affidavit) cannot be a valid enrolment by "Jim Nomane Josiah" an engineer born in 1959. As I have said, the failure by the Respondent/Petitioner to produce to the court to verify if his Elector ID number in that list was in fact 3017906 casts doubt on his 2002 Common Roll update.

As I have stated earlier, the appearance of "Jim Nomane" in one Common Roll and "Jim Josiah" in another Common Roll and then him enrolling under "Jim Josiah Nomane" coupled with the year of birth and occupation being different, casts further doubt on whether he is the one and same person. In any case, as the Supreme Court has said, the fact that a person is known by one set of names is the one and same person as the name in the Common Roll is of no consequence to the electoral process. I consider this reason to be sound because it is up to a person intending to stand and eventually succeeding in an election to ensure that the names in the common roll are all the names that people know him by. If he fails then he should bear the consequences of his acts or omissions.

I therefore find that the Respondent/Petitioner was not enrolled as an elector or voter in the Chuave Open Electorate Common Roll in accordance with law particularly s 50 and 103 (3) of the Constitution and Section 87(a) of the Organic Law.

He therefore had no standing to nominate. It follows that he had no standing to bring the Petition before this Court.

The result of all this is that the Petition filed herein on the 2nd September 2002 is dismissed with costs to the First and Second Respondents to the Petition. Such costs shall be taxed if not agreed.

It is further ordered that the money paid into Court as security for costs be shared equally by the First and Second Respondent to the Petition.
________________________________________________________________________
Lawyer for the Petitioner: Pato Lawyers
Lawyer for the First Respondent: Maladinas Lawyers
Lawyer for the Second Respondent: Nonggorr & Associates