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Sipa v Seneka [2016] PGNC 30; N6210 (19 February 2016)

N6210

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No.781 OF 2014

BETWEEN:

DAVID MINI SIPA
Applicant

AND:

HIS WORSHIP SERI WILLIAM SENEKA, SENIOR PRINCIPAL MAGISTRATE, KUNDIAWA DISTRCIT COURT, SIMBU PROVINCE
First Respondent

AND:

ARMBA GUNA
Second Respondent

AND:

REX WAU, ASSISTANT RETURNING OFFICER –KUP LOCAL LEVEL GOVERNMENT ELECTIONS
Third Respondent

AND:

ANDREW TRAVEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Fourth Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fifth Respondent

Kundiawa; Liosi AJ
2016: 17th & 19th February

ELECTION PETITION- Practice and Procedure –Application for Leave- Arguable case – Errors, Omissions and Illegal Practices- Sufficiency of Pleadings of Facts required by s.208 (a) and (d) of the Organic Law on National and Local Level Governments – Need to give Reasons for decision.

Held

1. There is an arguable case as there is sufficiency of pleadings under Section 208 (a) and (d) of the Organic Law on National and Local Level Governments.
   
2. There is specific and sufficient pleadings setting out the Acts relied upon under Section 208 (a) of the Organic Law on National and Local Level Government.
   
3. There are specific pleadings under Section 208 (d) in respect of Attestation of witnesses under Organic Law on National and Local Level Government.
   

4. There appears to be no reason given for the Decision. Failure to give reasons for decision is akin to giving no decision at all.

Cases Cited

David Kuna v. Vincent Eralia (2004) N2771
Godfrey Nigints v. Henry Tokam & two ors [1993] PNGLR 66
Holloway v. Ivarato [1988] PNGLR 99
Jim Nomane v. David Anggo (No1) (2003) N2496
Piraka Kama v. John Itau & Ors (2006) N3246

Counsel:

M. Kombri, for Applicant

19th February, 2016

1. LIOSI AJ: This is an ex parte application by the plaintiff seeking leave to apply for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules.

The Brief Facts
2. Both the applicant and the Second Respondent were candidates in 2013 Local-level Government elections for the Kup Local –Level Government.

3. The First Respondent was declared the winner by scoring 1,943 votes and the Applicant was the runner up with 1,540 votes.

4. The Applicant disputed the results which was in favour of the Second Respondent at the District Court in Kundiawa as a Court of Disputed Returns under the Organic Law on National and Local level Government Elections in proceedings prefixed as LLGEP No. 28-30 of 2013 on the grounds that:

(a) the polling officials allowed the electors to decide on how to distribute the ballot papers amongst the candidates and cast their votes; and

(b) the Second Respondent forcefully grabbed off 200 unmarked ballot papers from a candidate for the president of Kup Local Level Government, Mr. Pikip Gabriel, and marked it for himself.

5. The Second, Third, Fourth and Fifth Respondents challenged the competency of the Election Petition on the basis of pleading insufficient facts and it being not attested to by two (2) witnesses.

6. The First Respondent, Senior Principal Magistrate of Kundiawa sitting as a Court of Disputed Returns under the Organic Law on National and Local Level Government Elections, upheld the competency application and dismissed the Elections Petition on 8th July, 2014 for being incompetent in pleading insufficient facts and being not attested to by two (2) witnesses.

The law in Leave Applications
7. In Leave Applications the applicant will need to satisfy the court on four (4) requirements.

Locus Standi
8. The applicant in this matter was the petitioner in the District Court proceedings. Which was dismissed on the 8th July 2014. He is the aggrieved party and therefore automatically qualifies and has standing to bring this application.

Delay
9. The decision dismissing the Petition was made on 8th July 2014; the Origination Summons was filed on 7th November 2014 which was the last day of the four months required period. I am satisfied there was no delay.

Administrative Remedies

10. I am satisfied there are no other avenues to be exhausted except to come to court.

Serious Triable Issues
11. Under this Head, the plaintiff has raised two grounds of Review. They include errors in law and Failure to provide reasons for decisions. Under Errors of Law the following grounds raise serious issues.

12. Failing to give due consideration to sufficient facts pleaded in the Election Petition setting out facts in detail in relation to errors and omissions and illegal practices alleged by the plaintiff. This included polling officials allowing the electors to decide on how to distribute the ballot papers amongst candidates and to cast their votes. This is clearly pleaded in the petition.

13. The forceful grabbing of 200 unmarked ballot papers by the second respondent from a candidate for the President of Kup Local Level Government Mr. Pikip Gabriel and marking it for himself. This illegal practice was clearly pleaded.

14. There were clearly two affidavit statements by the two witnesses in the form of Statutory Declaration by Konia Sticky and James Pile attesting to the election Petition. The two affidavit statements were clearly pleaded.

15. The First Respondent breached Rules of Natural Justice by failing to provide reasons for his decision which is clear on the face of the Record. The Law in respect of giving no reasons for a decision is well settled in this Jurisdiction. Failure to provide reasons for a decision is akin to giving no decision at all.

Conclusion
16. In the Circumstances the court is satisfied that the various requirements in respect of the Leave Application have been satisfied. Application for Leave is hereby granted.

17. The formal Orders of the court are:

(i) Leave is granted to the Applicant

(ii) The Applicant is to file its Notice of Motion pursuant to Order 16 Rule 5 within (14) fourteen days.

(iii) The matter is adjourned to next call over date for listing for trial.

Ruling and Orders Accordingly,

Kombri Lawyers: Lawyers for the Applicant