N3334

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 19 OF 2007

BETWEEN:

LABI AMAIU
Petitioner

AND:

ANDREW MALD
First Respondent

AND:

CYRIL RETAU
Second Respondent

AND:

THE ELECTORAL COMMISSION OF PNG
Third Respondent

Waigani: Kapi CJ
2008: 3rd, 5th, 6th, 10th March

ELECTION PETITION – Competence – 40 days is computed for the date of the declaration of the result of election – This is a question of fact – Followed Supreme Court in Kelly Kilyali v. John Pundari and the Electoral Commission of PNG (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569).

Cases cited:

Alfred Fogo v Guao Katucnane Zurenuoc and Electoral Commission of Papua New Guinea (Unreported Judgment of the National Court dated 13th February 2003, N2351). 
Delba Biri v Bill Ninkama [1982] PNGLR 342
Kelly Kilyali Kalit v John Pundari and the Electoral Commission (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569) 
Mongi v Vogae (Unreported Judgment of the National Court dated 24th October 1997, N1635)

Legislations cited:

Organic Law on National and Local Level Elections (OLNE):
National Court Election Petition Rules 2002

Counsel:

G. Manda, for the Petitioner
P. Kingal, for the First Respondent

10 March, 2008

1.	KAPI CJ: 	The first respondent filed an amended objection to the competence of the petition on 29 October 2007. Rule 15 of the National Court Election Petition Rules 2002 (as amended) (Rules) stipulates that the objection to competence shall be dealt with during the hearing of the petition

2.	The issue of competence has come up as the first matter for determination. When the petition was filed, the grounds of petition raised allegations of bribery as well as polling and counting irregularities/illegalities. However, the allegations on illegalities and irregularities have been withdrawn and are no longer in issue. 

3.	Therefore, the second and the third respondents are not participating in the petition. The remaining parties are the petitioner and the first respondent.

4.	The first respondent has raised several grounds on the competency of the petition. The parties argued the issue of competence and I reserved my decision.

5.	I gave an oral ruling on 5 March 2008 that the petition was competent and that I would publish my reasons later. 

6.	In the process of preparing my reasons, I discovered that I omitted to deal with other grounds relied on by counsel for the first respondent. I advised both counsel in Court on the morning of Thursday 6 March 2008. I indicated that I will deal with these issues as well as the reasons for decision on the grounds I have dealt with.

7.	Both counsel agreed that in the circumstances, we should not proceed with the trial until I have dealt with all the grounds on competency. Consequently, I adjourned the trial.

8.	I will deal with the Objections in the order they were raised.

A. 	That the Election Petition was filed outside the 40 Days and therefore incompetent

9.	I dealt with this ground and formed the basis of my oral ruling that the petition is competent. I now provide my reasons for decision.

10.	The requirement to file petition within 40 days is set out under s 208 (e) of the Organic Law on National and Local Level Elections (OLNE):

A petition is to be filed in the registry of the National Court at Port Moresby or at the court in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a)."

11.	Counsel for the first respondent submits that the petitioner pleaded in paragraph 7 of the petition that the result of the election in this electorate was declared on 23 July 2007. Counsel for the first respondent submits that 40 days should be computed from 23 July) and the 40 days expired on the 31 August 2007. The petition was filed on 1 September 2007 and therefore outside the 40 days. He submits therefore that the petition is incompetent and should be dismissed.

12.	In order to compute the 40 days, the date of the declaration of the result of the election must be determined. Both counsel have agreed that the computation of the 40 days is calculated from the date of the declaration of the result of the election (including the date of the declaration.) This method of calculating the 40 days was approved by the Supreme Court in Kelly Kilyali Kalit v John Pundari and the Electoral Commission (Unreported Judgment of the Supreme Court dated 7th October 1998, SC569) 

13.	Counsel for the first respondent submits that the petitioner is confined to the date pleaded and the 40 days is to be computed from the 23 July. 

14.	The same issue arose in Kelly Kilyali Kalit v John Pundari and Eletoral Commission (supra). At page 2, the Court stated the issues and resolved the issues:

"The trial judge dealt with the preliminary issue of whether the petition was filed within the period of forty days commencing from the date of declaration of the result of the election as required by s 208 (e) of the Organic Law (OLNE). At the preliminary hearing before Salika J, the first respondent contested the date of the declaration stated in the petition and raised the issue of time bar under OLNE s 208 (e). In the petition, the applicant maintained it was made on the 4th July 1997. If the first respondents was to be upheld, the whole Petition would fail for failing to comply with OLNE, s. 208(e) in that that the Petition which was filed on 14 August 1997 was filed outside 40 days. After hearing the evidence and submissions from counsels, the trial judge decided the issue in favour of the first respondent and dismissed the petition. This application is the subject of that decision….

The trial judge’s findings were made after he accepted the evidence of the Returning Officer who made the public declaration of the result of the election immediately after the completion of the counting and who completed the particulars of the Writ which included the filling in of the date; the Provincial Returning Officer who witnessed the declaration and took the completed Writ to Port Moresby; the Provincial Police Commander who witnessed the declaration and made entries in his official police diary and the Clerk of the National Parliament who received the Writ from the Governor General and produced this original Writ in evidence. His Honour rejected the evidence of the witness called by the applicant. The trial judge accepted the date on the original Writ which was 4 July 1997. This date was filled in by the Returning Officer at the time and place of his declaration of the result of the election that is on 4 July 1997 at the Wabag Community School Central Counting Centre. The Returning Officer at the same time signed the Writ and was then co-signed by the First Respondent as the winning candidate. The public declaration of the result of the election, the filling in of the name of the winning candidate, the signing of the Writ and filling in of the date of declaration were all done by the Returning Officer except the co-signing of the Writ by the winning candidate. All these actions were taken in compliance with section s. 175 OLNE,. The applicant did not produce any evidence to show that the original Writ or the date on the original Writ was fabricated. The applicant relied on verbal representations made by certain Electoral Commission’s employees together with other Electoral Commission official documents showing the date of declaration as 5th July 1997, to support his argument that the date of declaration was on 5th July 1997. It was also put before the trial judge by the applicant and now repeated before us, that the Electoral Commission should be stopped from and raising the argument that the declaration was made on 4th July when it had represented to the Applicant all along that the declaration was made on the 5th July 1997.

In our view, none of those official documents emanating from the Electoral Commission office and representations made by the Electoral Commission staff have more critical constitutional basis, significance and force in an election process than the Writ. The Writ is an official document issued independent of the Electoral Commission, by the Governor General. An election begins with the issue of the Writ by the Governor General and ends with the return of the Writ to the Governor General signed and dated by the Returning Officer and counter-signed by the winning candidate. These requirements are succinctly set out under Part X of the OLNE (s. 73-82) and, s. 175. All other documents issued under the OLNE by the Electoral Commission are designed to attain administrative efficiency to ensure an orderly and free election by those entitled to stand for and vote in an election. Such documents and representations by the Electoral Commission staff, whether deliberate or through inadvertence, cannot be permitted to strike down the Writ unless there is clear evidence of fraud on the part of the Returning Officer or any other Electoral Commission official in completing the Writ as to the winner of the election, the signatures on the Writ and the return date of the Writ. There is only one Writ which is the original Writ and that is the Writ which should be completed by the Returning Officer and the winning candidate. Any representations made by the employees of the Electoral Commission, a person other than the Returning Officer, as to the form or content of the persuasion or representation by the Electoral Commission or by its staff can change the Writ. The equitable principle of estoppel also has no application on the face of a clear legal constitutional document; the Writ.

Findings of fact alone by the trial judge in an election petition matter under the principles should not, in our view, be open to review by this Court except in the most exceptional cases where there is some gross error which is clearly manifested on the record. Even when reviewed, this Court will have to pay greater deference to the trial judge’s findings of fact. This view is supported by OLNE, s. 217 which provides that 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". (our emphasis).

For these reasons, we agree with the trial judge that in the absence of any evidence of fraud, the Writ speaks for itself. We cannot find any gross error clearly apparent on the face of the record to merit a review. We dismiss the application. We confirm the decision of the trial judge that EP No 78 of 1997 should stand dismissed. Costs follow the event."

15.	I was also referred to the case of Alfred Fogo v Guao Katucnane Zurenuoc and Electoral Commission of Papua New Guinea (Unreported Judgment of the National Court dated 13 February 2003, N2351). 

16.	In this case, the date of the declaration of the result of the election was mistakenly pleaded and the petitioner applied to the National Court to amend the petition. The trial judge in that case stated:

"At this juncture the Court must emphasize that the date of the declaration which is the 5th July 2002, is not disputed by the respondents, The date, as the Petitioner has shown in his affidavit, it is the correct date. The Court can accept that as a primary fact because the writ speaks for itself. But whether the 4th July or the 5th July is the date of declaration is not the issue here. The issue is simply whether the petition can be amended outside 40 days time limit."

17.	The view expressed by trial judge is consistent with the Supreme Court. However, he was concerned with amendment of the petition after 40 days. This is a different issue.

18.	In so far as the question relate to which is the correct date of the declaration, that is a matter of evidence. The trial judge was concerned with amendment of the petition outside the 40 days. The balance of this decision is not applicable as I am not dealing with Amendment of the petition.

19.	I do not accept the proposition put forward by counsel for the first respondent. The proper approach is as adopted by Salika J and approved by the Supreme Court in Kelly Kilyali Kalit v John Pundari and Electoral Commission (supra). The issue of when the result of the election was declared is a question of fact and needs to be determined by evidence.

20.	In this matter, I did not have to hear evidence on the issue as it was accepted by all parties that the result of the election was declared on the 24 July 2007. The 40 days is to be computed from the day of declaration (that is 24 July). This method of computing the 40 days as I have pointed out before, can be deducted from the Supreme Court decision in Kelly Kalit v John Pundari (supra).

21.	On the facts as agreed, the 40 days expired on 1 September 2007. The petition was filed within 40 days on 1 September and therefore competent. I would dismiss this ground.

B.	Date of Declaration is Vital Primary Fact to be Pleaded

22.	I have considered this and form the basis of the verbal ruling on the competence of the petition.

23.	These are my reasons for decision. The petitioner has pleaded the date of declaration of the result of the election. The petitioner has complied with s 208 (a) of the OLNE. The fact that the wrong day is pleaded does not go to the issue of competency. As the Supreme Court has held in Kelly Kilyali Kalit v John Pundari and Electoral Commission (supra) that the issue was a question of fact and determined by the trial judge and upheld by the Supreme Court. I would dismiss this ground.

Ground C.	Paragraph 10 (a)

24.	This ground of objection relate to paragraph 10 (a) of the petition. I did not deal with this ground of objection. I will deal with it now. 

25.	I am familiar with the principles in Delba Biri v Bill Ninkama [1982] PNGLR 342. The basis for objection is that the petition does not plead who Mrs Sorty Paul is and whether or not she is a supporter of the Petitioner or the first respondent or another candidate. In so far as the allegation of bribery relates to Mrs Sorty Paul is concerned, I find sufficient facts have been pleaded. Her name is pleaded as the person receiving a specific amount of money for purpose of voting the first respondent and that she is an elector.

26.	I find that sufficient facts have been pleaded. This part of the pleading is competent.

27.	However, the pleading falls short of pleading sufficient facts in respect of others whom the first respondent is alleged to have bribed. The names of others have not been pleaded nor has any details of the amount of money received by them. This does not give sufficient facts to enable the first respondent to adequately prepare a defence. I would strike out the balance of this pleading. 

D.	Paragraph 10 (b)

28.	I did not deal with this ground. I will deal with it now.

29.	Counsel for the first respondent submits that date pleaded as the date when the first respondent was alleged to have committed acts of bribery was uncertain. The petition pleaded "On the 19 April 2007, two weeks after the issue of writs". In essence the material fact is the date on which acts of bribery took place and that date is 19 April. I cannot see any uncertainty in that. I would dismiss this ground of objection

30.	This paragraph pleads names of people who received money. This includes Paul Kom who received K10.00. He is pleaded as an elector. I find that sufficient facts have been pleaded in respect of Paul Kom. 

31.	However, the paragraph failed to plead the details of the money received by Paul Kau,Ganiel Koi, Paul Temai J.B. Giano, Kuman Fregi, Pastor Dixon Dau. The paragraph does not plead who obtained money and handed the money over. The paragraph does not plead sufficient facts. I would dismiss the allegation of bribery of the names pleaded. 

32.	I would strike out allegations of bribery except allegation in relation to Paul Kom.

E.	Paragraph Ground 10 (d)

33.	This ground of the petition has been withdrawn and is no longer relevant

F.	Relief Sought at Paragraph 13

34.	I did not deal with this ground of objection. I will deal with it now.

35.	This ground of objection deals with pleading of relief under s 208 (b). Counsel for the first respondent submits that pleadings in paragraph 13 (i) and iv) are incompetent because the jurisdiction basis is not pleaded.

36.	First of all there is no requirement to plead the jurisdiction basis of the relief. What is required is for the petition to plead the relief that is claimed. Pursuant to s 215 of the OLNE where a petitioner is successful in proving bribery, he is entitled to claim that that election of the candidate is declared void. Counsel for the first respondent relied on Mongi v Vogae (Unreported Judgment of the National Court dated 24th October 1997, N1635). In this case, the petition alleged acts of bribery by the first respondent and pleaded the relief:

"A declaration that the election for the West New Britain Provincial Electorate in the 1997 General Elections is absolutely void"

37.	Injia J (as he then was) accepted the respondents submission that:

"….that the appropriate relief which the petitioner was entitled to claim is a declaration that the election of the First Respondent is void and not a declaration that the ‘declaration for the West New Britain Provincial Electorate in the 1997 general election is void’."

38.	In the present case the petition claimed a declaration that the election of the first respondent is declared void. The relief is claimed in the words of s 215 (1) of the Organic Law. I would reject this argument.

39.	Counsel for the first respondent further submits that the petition should also plead the law (s 215 (1)) and rely on Mongi v Vogae (supra) as authority for the proposition. This case does not stand for that proposition. I reject the ground of objection

G.	Petition To Be Signed By a Candidate Section 208 (c) OLNE.

40.	I did not deal with this ground of objection. I will deal with it now.

41.	Counsel for the first respondent objects to the petition in that instead of one candidate should sign the petition as required by s 208 (c) two candidates have signed the petition. In my opinion this ground is misconceived. The requirement of s 208 (c) is met because Labi Amaiu is the only candidate who signed this petition.

42.	John Kaupa simply attested the petition in compliance of s 208 (c). He has stated his name and address. No objection has been raised on whether he has complied with s 208 (c)

43.	I would dismiss this ground. 

44.	In the result only two grounds remain on bribery. We will now proceed with the trial on these grounds.

Greg Manda Lawyers: Lawyers for the Petitioner 
Pius Kingal & Associates: Lawyers for the First Respondent