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Korry v Wei [2013] PGNC 209; N5416 (8 November 2013)

N5416

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP NO 05 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KARIMUI-NOMANE OPEN ELECTORATE

BETWEEN

MICHAEL KORRY
Petitioner

AND

MOGEREMA SIGO WEI
First Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Goroka: Makail, J
2013: 06th & 08th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient facts – Allegations of illegal practices at polling – Allegations of illegal practices, errors and omissions at counting – Ambiguity in relief sought – Failure by attesting witness to state occupation – Retired teacher – Whether "retired teacher" is occupation – Attesting witnesses to state their addresses – Definition of addresses – Residential addresses – Postal addresses – Organic Law on National and Local-level Government Elections – s. 208(a),(b)&(d) – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342
Barry Holloway -v- Aita Ivarato [1988] PNGLR 99
Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th November 2012)
Jimson Sauk -v- Don Pomb Polye & Electoral Commission (2004) SC769
Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385
Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635
Ludger Mond -v- Jeffrey Nape & Electoral Commission (2003) N2318
Daniel Tulapi -v- James Lagea & Electoral Commission (2013) N4939
Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718
Phillip Kikala -v- Nixon Mangape & Electoral Commission (2013) N4960
Sam Abal -v- Robert Sandan Ganim & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013)
Paru Aihi -v- Sir Moi Avea & Ors (2003) SC720
Bryan Kramer -v- Nixon Philip Duban & Electoral Commission (2013) N5213 Peter Waieng -v- Tobias Kulang & Electoral Commission: EP No 75 of 2012 (Unnumbered & Unreported Judgment of 08th March 2013)

Counsel:

Mr Phillip Ame, for Petitioner
Mr Ralph Diveni, for First Respondent
Ms Christine Lari, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

08th November, 2013

1. MAKAIL, J: This is a ruling on two objections to competency filed by the respondents pursuant to Rule 15 of the National Court Election Petition Rules, 2002 as amended ("EP Rules"). They arise from an election petition filed by the petitioner Mr Michael Korry disputing the result of the election of the first respondent The Honourable Mr Mogorema Sigo Wei as Member for Karimui-Nomane Open electorate in the 2012 General Election. Mr Korry was the runner-up to the first respondent scoring 7,715 votes to 7,792, a difference of 77 votes. He brings this petition pursuant to ss. 206 & 208(e) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections").

Petitioner's Allegations

2. The petition pleads three allegations:

2.1. Illegal practices at polling at Dawa Polling Booth;

2.2. Illegal practices, errors and omissions at counting; and

2.3. Illegal presence of the first respondent at the counting room.

3. From a close perusal of the pleadings, the allegation of illegal practices at Dawa Polling Booth can be summarised as follows; on 09th July 2012 at about 8:00 am and before polling started, the first respondent entered the polling booth and forced the Returning Officer to sign the ballot-papers. He also took some ballot-papers, gave them to his wife and children, they marked them and put them in the ballot-box. Each marked four to five ballot-papers each. He also told his nephew to mark all the ballot-papers while he supervised him and when the nephew had finished, the nephew told the supporters of the first respondent to stand in line and gave each of them a marked ballot-paper and they placed them in the ballot-box.

4. The second allegation can be summarised as follows; during the counting at the counting centre at Dickson oval in Kundiawa, Mr Korry led in the primary count and also the second count until the 59th exclusion when a security personnel identified as Corporal Witne threatened counting officials and placed exhausted ballot-papers in the first respondent's box. As a result, at the 61st exclusion, the first respondent surged ahead and won by 77 votes. Corporal Witne shouted at the Returning Officer to declare the winner without doing a quality check on the last exclusion.

5. In relation to the third allegation, it can be summarised as follows; before the results were checked and put on the board, Corporal Witne went out of the counting room and announced that the first respondent had won. He ushered the first respondent into counting room without the authority of the counting officials and the first respondent remained in the room without the authority of the counting officials.

Relief Sought

6. By way of relief, Mr Korry seeks among others, a declaration that the first respondent was not duly elected, or a declaration that the election of the first respondent was absolutely void, a declaration that the ballot-papers for Gaima No. 23 Polling Booth at Dawa village were fraudulent as the voters were unduly influenced by the first respondent and an order for recount of all the ballot-boxes and ballot-papers except Gaima No. 23 Polling Booth votes at Dawa village.

Attestation of Petition

7. The petition is witnessed by two witnesses whose occupations and addresses are stated. They are:

7.1. Ben Awo whose residential address is Yobai Rest House, Salt LLG, Karimui-Nomane, postal address is PO Box 4882, Boroko, NCD and whose occupation is retired teacher; and

7.2. Tobias Yol whose residential address is Gomri village, Salt LLG, Karimui-Nomane, postal address is PO Box 4882, Boroko, NCD and whose occupation is self-employed.

Grounds of Objection to Competency

8. The grounds of the objections can be summarised as follows:

8.1. Insufficient facts under s. 208(a);

8.2. Ambiguity in two of the reliefs sought under s. 208(b);

8.3. Failure by attesting witness Ben Awo to state his occupation under s. 208(d); and

8.4. Confusing addresses of attesting witnesses Ben Awo and Tobias Yol under s. 208(d).

Principles of Law

9. Counsel for the parties have presented well documented written submissions on the principles of law supported by numerous case authorities on each ground of objection and I need not restate them here save to say that except for one or two new principles developed recently from decided cases, the principles of law in relation to the requisites of a petition under s. 208 of the Organic Law on Elections are settled.

10. It is common ground that as election petitions challenge the majority wishes of the people in electing a Member to represent them in Parliament, they are very serious. That means that they must comply with the mandatory requirements of the Organic Law on Elections: SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342.

11. Given this fundamental principle and specifically in relation to requisites of a petition under s. 208(a), in Barry Holloway -v- Aita Ivarato [1988] PNGLR 99, the Supreme Court said:

"The facts which must be set out under s. 208(a) of the Organic Law on the National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case to enable the Court to see with clarity the issues involved."

12. The first respondent supported by the second respondent submitted that the first mandatory requirement that the petitioner failed to comply with is s. 208(a). They submitted that the petitioner has failed to plead the relevant or material facts to support the allegations of illegal practices at polling at Dawa village, illegal practices, and error and omissions at counting at Dickson oval in Kundiawa town and illegal presence of the first respondent at the counting room.

Allegations of illegal polling at Dawa village

13. First, the petition failed to state as a matter of fact the name of the Returning Officer and what the first respondent did to "force" the Returning Officer to do and "dictated" to the voters that they should vote for him. These are fatal omissions because it is not the work of the Returning Officer to conduct polling. It is the duty of the Presiding Officer and what the first respondent said and did that would amount to forcing or dictating the Returning Officer and the voters to vote for him.

14. Secondly, the petition failed to state the names of the wife and children of the first respondent who allegedly voted multiple times. It also did not state the name of the nephew who allegedly marked all the ballot-papers in favour of the first respondent. The election petition case of Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th November 2012) was relied upon as precedent on naming of "supporters" of the winning candidate to be identified by name, sex, age and address.

15. Thirdly, the petition failed to state clearly the number of affected votes so that the Court can determine if the results of the election would be affected. Fourthly, it failed to state what steps the petitioner's scrutineers took to object to the conduct of polling and finally, the description of the ballot-box is not stated.

16. In opposing the objection to competency, Mr Ame of counsel for the petitioner submitted that the pleadings as they stand are sufficient and it is not necessary nor a requirement to name the perpetrators of the illegal acts or activities. The respondents are nit picking and should not be allowed to further their cause. Counsel cited the case of Jimson Sauk -v- Don Pomb Polye & Electoral Commission (2004) SC769 where the Supreme Court expressed concern about frequent nit picking of technical issues by lawyers in the guise of real substantive issues of competency such that the very serious issues of irregularities, blatant illegal practices at campaign, polling and counting stages of an election escape the Court's scrutiny. Mr Ame submitted that the concerns of the respondents in respect of the names of the scrutineer, wife and children of the first respondent are matters of evidence.

17. The issue is whether the allegations of fact in relation to the illegal practices at polling are sufficient. I accept Mr Ame's submissions. The pleadings in relation to the allegations of illegal practices at the polling booth at Dawa village sufficiently set out the relevant and material facts in relation to the date, time, location and the nature of the illegal practices. The perpetrators are the first respondent, his wife, children and nephew. They have been identified and the respondents, especially the first respondent should no doubt know their names. They were the ones who allegedly tampered with the ballot-papers by double or multiple voting.

18. To ask the petitioner to name them is nit picking the issues and the case of Tom Nunue (supra) does not assist the respondents either, because in that case, the allegation of block voting was perpetrated by an unknown "supporter" of the winning candidate. In this case, the identities of the alleged perpetrators had been pleaded except their names. I am satisfied the pleadings are sufficient. This ground is dismissed.

Allegations of illegal counting, errors and omissions at counting at Dickson Oval - Kundiawa

19. As to the allegations of illegal practices, error and omissions at counting centre, the respondents' overall submission is that first, counting officials had not been identified, and how and what they did to constitute illegal practices, error and omissions. Moreover, the petitioner failed to plead how many ballot papers were allegedly removed by Corporal Witne. Secondly, the petition failed to plead that the petitioner's scrutineers raised objection to the conduct of the first respondent's scrutineer. Finally, the pleadings do not describe and specify the nature of threats made by the first respondent, that is, whether they were physical or verbal or both. The case of Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385 was relied upon to support these submissions.

20. Further to these submissions, if the petitioner is alleging illegal practices, errors and omissions, he has failed to plead how the result is likely to be affected and worse still, he has failed to plead the absolute majority to show how the result is likely to be affected. These are "essential facts in figures" to show how the result of the election was or likely to have been affected by the illegal practices, error and omissions and irregularities. The respondents relied on the following decided cases in support of these submissions: Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635; Ludger Mond -v- Jeffrey Nape & Electoral Commission (2003) N2318; Daniel Tulapi -v- James Lagea & Electoral Commission (2013) N4939; Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718; N4960; Phillip Kikala -v- Nixon Mangape & Electoral Commission (2013) N4960 and Sam Abal -v- Robert Sandan Ganim & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013) per Hartshorn, J.

21. He has not even pleaded the relevant provisions of the Organic Law on Elections on the alleged illegal practices, errors and omissions. For example, at paragraph 12G, the petition failed to state the manner in which the petitioner's scrutineers request was made for a recount. It failed to plead that a complaint was made pursuant to s. 153A of the Organic Law on Elections, which provision provides for objection. The case of Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385.

22. Mr Ame repeated the same submission on sufficiency of pleadings and nit picking. He said that the allegations of fact are sufficiently clear and the respondents are nit picking the issues. The issue is whether the pleadings are sufficient.

23. As I noted in the beginning of this ruling, the allegations are that during the counting at the counting centre at Dickson oval in Kundiawa, Mr Korry led in the primary count and also the second count until the 59th exclusion when a security personnel identified as Corporal Witne threatened counting officials and placed exhausted ballot-papers in the first respondent's box. As a result, at the 61st exclusion, the first respondent surged ahead and won by 77 votes. Corporal Witne shouted at the Returning Officer to declare the winner without doing a quality check on the last exclusion. There is an allegation that the Returning Officer failed to do a quality check at the last exclusion. In my view, it is a matter for evidence to prove that the petitioner's scrutineer objected to the ballot-papers at the last exclusion in light of the allegation that Corporal Witne tampered with the ballot-papers at exclusion 59. I am satisfied that the pleadings are sufficient. This ground is dismissed.

Allegations of illegal presence of the first respondent at counting room at Dickson Oval - Kundiawa

24. The respondents submitted that the allegations of fact pleaded at paragraphs 9, 12I, 12J and 12K do not constitute a ground to invalidate the first respondent's return. There are no allegations that the first respondent interfered with the counting process or tampered with ballot-papers or tallies when he was in the counting room. Not even dates and times were pleaded. Not even an allegation that scrutineers of other candidates objected to the first respondent's alleged premature entry into the counting centre and mere presence is not a sufficient ground to invalidate the election.

25. Mr Ame submitted that the submission of the respondents is very restrictive and narrow. The Court should read the petition as a whole to better understand and appreciate this ground. If the Court were to take this course, he submitted that the presence of the first respondent at the counting room was the end result of the numerous illegal practices perpetrated by the first respondent, his family members and supporters at polling at Dawa village and with the support of Corporal Witne at counting at Dickson oval in Kundiawa.

26. It is true that the allegations do not specify what the first respondent did or say when he was in the counting room. I do not think that petitioner intended to show that the first respondent interfered with the counting process or tampered with ballot-papers while in the counting room. What the petitioner intended and is clearly expressed at paragraphs 9, 12I, 12J and 12K is that, even before the counting concluded, results finalised and declaration made by the Returning Officer, the first respondent was already in the counting room.

27. Apart from the petitioner's allegation that the first respondent's presence in the counting room was illegal, when the petition is read as a whole as submitted by Mr Ame, it shows a chain of events of illegal practices allegedly committed by first respondent, his family members, supporters and Corporal Witne during polling, counting and declaration stages which strongly suggest that these processes were hijacked. For these reasons, I am not satisfied that paragraphs 9, 12I, 12J, and 12K should be struck out as being incompetent. This ground is dismissed.

Ambiguity in two of the reliefs sought

28. In relation to this ground, the respondents submitted that the reliefs sought in paragraph 13C and 13D are vague and ambiguous because the ballot-box allegedly tampered with has not been identified. Again, Mr Ame repeated the same submission on sufficiency of pleadings and nit picking. He said that the proposed orders are sufficiently clear as the petitioner seeks in the alternative, an order for recount of ballot-papers excluding those from Gaima No. 23 Polling Booth. The respondents' submission is frivolous and amounts to nit picking and should be rejected.

29. I accept Mr Ame's submission. It is clear from the manner in which the petitioner has expressed in the prayer for relief that he seeks a recount of votes. If this relief is granted, votes from Gaima No. 23 Polling Booth should be excluded. Reading the petition as a whole, Gaima No. 23 Polling Booth is the subject of controversy between the parties and ballot-box or boxes from that polling booth should be excluded because according to paragraph 11A of the petition, Gaima No. 23 Polling Booth is located at Gaima Rest House at Dawa village. Thus there is no ambiguity here. This ground is dismissed.

Failure by attesting witness Ben Awo to state his occupation

30. The respondents submitted that Ben Awo's occupation as "retired teacher" is not sufficient. It is not an occupation. A retired teacher is not a profession. It is not what Mr Awo does for a living. As s. 208(d) requires the petition to be attested by two witnesses, and if the Court were to find that "retired teacher" is not an occupation, then on this ground alone, the entire petition is incompetent as it does not meet the mandatory requirement of s. 208(d).

31. Mr Ame conceded that Mr Awo is a retired teacher but strongly submitted that there is no better way for Mr Awo to describe himself and what he is currently doing than to state that he is a retired teacher. At the very least, he is being honest to himself and everyone.

32. We have had different interpretations of the words "villager" and "self-employed"; if they fell within the definition of occupation and there is a host of decided cases in point, three of them being Paru Aihi -v- Sir Moi Avea & Ors (2003) SC720; Bryan Kramer -v- Nixon Philip Duban & Electoral Commission (2013) N5213 per Gavara-Nanu, J and more recently, Peter Waieng -v- Tobias Kulang & Electoral Commission: EP No 75 of 2012 (Unnumbered & Unreported Judgment of 08th March 2013) per Batari, J. This ground brings the interpretation of the word "occupation" to a new level. But I consider that the real issue is whether the word "retired teacher" adequately falls within the term, occupation.

33. On face value, and applying common sense and logic, it means what it is, Mr Awo is a retired teacher. What does this infer then? He is no longer working as a teacher. But the respondents did not contend that Mr Awo is unemployed, thus has no occupation. In my view, being a retired teacher does not necessarily mean that one is unemployed. Mr Awo could be a villager or self-employed given that he has retired from teaching. In that respect, I give a wide interpretation to the term "retired teacher" by extending it to mean a villager or self-employed. On the authority of the above cited cases, I am satisfied that the term "retired teacher" connotes a villager or someone who is self-employed for the purpose of s. 208(d). This ground is dismissed.

Confusing addresses of attesting witnesses Ben Awo and Tobias Yol

34. Finally, on this ground, the respondents submitted that the residential address of "Yobai Rest House" is vague because it is a general description of a big area with five different council wards that covers many villages in the electorate. It is not a particular locality, for example, name of a village.

35. What is even more confusing is that the postal addresses of the two witnesses are stated to be "PO Box 4882, Boroko, NCD" and their residential addresses are stated to be villages in Salt LLG in Karimui-Noname electorate. Thus it is uncertain where the witnesses live or work and whether they live in their villages or in Port Moresby. A postal address which would give some certainty with regards to locating the witnesses would be one that is located in close proximity to where they live as indicated by their residential addresses.

36. In response, Mr Ame submitted that the submission that "Yobai Rest House" is vague is untrue. There is only one Rest House by that name and there is no uncertainty as to its name and location. As to the confusing addresses of the witnesses, Mr Ame submitted that it is not confusing and there is no uncertainty in locating the witnesses because they can be physically located at their residential addresses as stated in the petition or contacted through postal addresses.

37. The competing submissions of parties in relation to the sufficiency of particulars of the residential address of Yobai Rest House touch on evidentiary matters. This is because the Court does not know whether it is not a village. It requires proof that it is not a village, but an area or ward as alleged by the respondents. Issues of competency are usually confined to questions of law and are decided according to relevant laws and principles of law. When issues are raised at the competency stage and require proof, then one would be venturing into the merits or substance of the petition. Given this, I am of the view that this ground is misconceived and dismiss it. Notwithstanding this finding, on the face of it, I am satisfied that it sufficiently describes Mr Awo's place of residence. It is where one would find him if he is required. For this further reason, this ground is dismissed.

38. As to the ground relating to the confusion between residential addresses and postal addresses of attesting witnesses, neither s. 208(d) nor other provisions in the Organic Law on Elections define the term "addresses". There is neither a standard form in the Organic Law on Elections or the EP Rules which requires attesting witnesses to state their residential addresses and postal addresses. Counsel had also not cited any decided case on point. It seems to me that it has been a practice adopted by the petitioners over the years to state in the petition the attesting witnesses' residential addresses and postal addresses.

39. Given this, I am of the view that it is open to the petitioner to have the attesting witnesses state their residential addresses and postal addresses. If one is missing, the other suffices. If one is not located in close proximity to the other, both suffice. The whole purpose of requiring attesting witnesses to state their addresses, as one would no doubt agree is to locate them when required. If their residential addresses and postal addresses are stated, it is sufficient. It follows that it is immaterial whether attesting witnesses' postal addresses are not located in close proximity to their residential addresses. This ground is misconceived and is dismissed.

Conclusion

40. As I have dismissed all the grounds of the objections, the petition remains alive and the petitioner must proceed to trial.

Order

41. The orders are:

1. The first respondent's objection to competency filed on 07th September 2012 is dismissed.

2. The second respondent's objection to competency filed on 11th October 2012 is dismissed.

3. Costs shall be in the petition.

______________________________________________
Ame Lawyers: Lawyers for Petitioner
Divenis: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent