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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 8 OF 2017
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND:
IN THE MATTER OF DISPUTED RETURN FOR KOMO MAGARIMA OPEN ELECTORATE
BETWEEN:
TUKUYAWINI PETER PHILIP
Petitioner
AND:
MANASSEH MAKIBA
First Respondent
AND:
ELECTORAL COMMISSION
Second Respondent
Waigani: Nablu, J
2018: 15th March
11th April
ELECTION PETITION – PRACTICE & PROCEDURE – Objection to competency – pleadings – insufficient facts pleaded – attestation of witnesses s. 208 (d), Organic Law on National and Local – Level Government Elections.
Cases cited:
James Ekip v. Gordon Wimb & Anor (2012) N4899
Kela v. Lafanama (1997) PNGLR 151
Luther Wenge v. Kelly Naru & Electoral Commission (2013) N5033
Nomane v. Mori & Electoral Commission (2013) SC1242
Philip Kikala v. Electoral Commission and Mangape (2013) SC1295
Riddle Kimave v. Poevare Tore & Others (2013) SC1303
Talita v. Ipatas & The Electoral Commission (2016) SC1603
The State v. Tovey Lukeson Gunede (2003) N3049
Counsel:
P. Ame, for the Petitioner
M. Nale & L. Evore, for the First Respondent
L. Okil, for the Second Respondent
RULING ON OBJECTION TO COMPETENCY
11th April, 2018
1. NABLU, J: The petitioner disputed the result of the election for the Komo Magarima Open Electorate which returned the first respondent as the elected representative for the people of Komo Magarima following the 2017 National General Elections.
2. It is not disputed that the declaration returning the first respondent was made on the 17th of July 2017. According to the evidence before me that date is consistent with the declaration date pleaded in the Petition and the Writ.
3. The petition was filed at the Waigani Registry on 24th August 2017. That fact is agreed to by all parties. The petitioner relied on six (6) grounds to challenge the Election. The grounds
were stated as follows:
4. The first objection to competency was lodged by the first respondent on the 26th September 2017 within 21 days of the filing of the Petition. The first respondent’s objection is based on two grounds firstly that the Petition lacked form, it lacked particulars, it was vague and ambiguous. The second ground is that the Petition lacked form and is incompetent. The first respondent argued that the grounds were entirely untenable because they did not conform to the requirements pursuant to Sections 208(a) and 215(3) of the Organic Law on National and Local- Level Governments (also referred to as Organic Law).
5. The second respondent also challenged the competency of the Petition and supported the first respondent’s objection. The Notice of Objection was filed on 23rd November 2017 and challenged the Petition on similar grounds raised by the first respondent.
6. On 14th February 2018, the first respondent filed a Supplementary Notice of Objection alleging that the Petition was incompetent because it was not properly attested to by the two witnesses contrary to Section 208(d) of the Organic Law on National and Local-Level Governments. The first respondent’s contention is that the attestation clause in the Petition merely stated that the witnesses attested to the signing of the Petition but did not attest to the facts of the allegations or the grounds contained in the Petition, contrary to Section 208(d) of the Organic Law. The First Respondent also alleged that the attestation witnesses namely, Urulu Dabini and Alembo Igibe did not reside in the Komo –Magarima Electorate prior to or during the 2017 National Elections and are incapable of attesting to the matters or facts in the Petition. In the next ground, the first respondent contends that the respective addresses provided by the attesting witnesses to the Petition were not valid and proper and therefore, insufficient. In particular, that the respective occupations stated indicate that they resided in towns or cities as opposed to the addresses they stated in the Petition.
7. At the hearing of the objections, the petitioner abandoned the first and second ground of the Petition. Mr Ame of counsel for the Petitioner seemed to make submissions to the effect that because those grounds were abandoned, that meant that the second respondent was not required to make submissions. The Court was not sure what Mr Ame meant by this, nevertheless, all counsel’s argued the objections fully and I now give my ruling.
8. I am of the view, that I should consider the threshold jurisdictional issue first and that is the question raised through the first respondents’ Supplementary Notice of Objection. The legal issue which the Court should determine first is whether the Petition was properly attested to as envisaged by Section 208(d) of the Organic Law. If the Court finds that the attestation was proper and in accordance with Section 208(d) of the Organic Law, then the Court can proceed on to consider the question of the form of the grounds pleaded. If the Court finds that the Petition was not attested properly then that would be a fatal error capable of dismissing the Petition.
9. The first respondent argued that the Petition is incompetent because it is not properly attested to by the two witnesses contrary to Section 208 of the Organic Law.
10. On the first day this matter was listed for hearing, Mr Nale of counsel for the first respondent made an oral application to this Court to refer a constitutional interpretation question to the Supreme Court pursuant to Section 18 of the Constitution. Mr Nale of counsel for the first respondent submitted that the Supreme Court should be constituted by a five (5) or seven (7) member bench to determine the question of interpretation of the term “attested” because there were conflicting Supreme Court decisions which were made by a bench constituted of three Judges. The first respondent argued that there were two conflicting Supreme Court decisions in regard to attestation of the witnesses to an election petition. The Court, dismissed the application for the reason that there was no proper application before it. The matter then proceeded on to hearing of the Objection.
11. The two Supreme Court decisions which the first respondent says conflict is the decision of Philip Kikala v. Electoral Commission & Mangape (2013) SC1295 and the recent decision of Talita v. Ipatas & The Electoral Commission (2016) SC1603.
12. The requirements for a petition are provided in Section 208 of the Organic Law. The requirements which a petition must adhere to; to validly set aside an election is expressed in mandatory terms and such requirements must be strictly complied with, inorder for the petitioner to overcome the burden of complying with the requirements before a petition can be considered. It is necessary to set out Section 208 which states that:
“208. Requisites of petition.
A petition shall –
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”
13. It is also not disputed that the Supreme Court decisions are equally binding on this Court. Now turning to the purported conflicting Supreme Court decisions, it is clear that one of the issues before those Court’s related to the meaning of the term “attested” in Section 208 (d) of the Organic Law. The conservative approach taken by the Supreme Court in Philip Kikala v. Electoral Commission and Mangape (supra) was that the term “attested” was synonymous with the common law meaning. That Section 208 (d) of the Constitution requires a witness to attest to the fact that the petitioner signed the petition. The reasons for taking this approach was that the plain and literal meaning should be read into the provision. Section 208(d) did not require the two attesting witnesses to be in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition.
14. The Supreme Court was of the view that a cautious approach should have been taken by the trial Judge. Section 208(d) did not expressly require a witness to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. The Supreme Court held that the trial Judge had erred in that respect, by introducing a new requirement into Section 208(d) of the Organic Law which did not exist in law. A number of Supreme Court decisions such as Nomane v. Mori & Electoral Commission (2013) SC1242 and Riddler Kimave v. Poevare Tore & Others (2013) SC1303 held the same view in regard to attestation of witnesses in Election Petitions.
15. The other decision of the Supreme Court which the first respondent says conflicts with previous decisions is Talita v. Ipatas & The Electoral Commission (2016) SC1603. In that case, the Supreme Court took a more rigid approach and did not follow the earlier cases in regard to this point of law.
The proposition of law advanced was that an attesting witness to a petition should be in a position to attest to the signing of the
petition and to the facts pleaded in the Petition.
16. The Supreme Court in Talita’s case when referring to the conflicting decision stated at paragraph 25 to 28 of the Judgement that;
“The proposition in Riddler Kimave v. Poevare Tore & 2 Ors is consistent with the common law position that a reference to “attesting witnesses” ordinarily connotes someone who vouches for the authenticity of another’s signature by co-signing an instrument that the other has signed such as in proof of will or contract: See also; Freshfield v. Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171; Shamu Patter and Abdul Kadir Ravutha (1912) TLR 583 PC.
With respect we consider that it would be unusual for the attesting or subscribing witness to have some personal knowledge of the subject matter of the document and be a witness to the contents, if need be.
Those Supreme Court decisions are by three member Benches. They are persuasive but not binding authority on another Supreme Court of the same composition. (Constitution, Schedule 2.9(2) and Underlying Law Act 2000 Section 19(2)). We have considered the careful reasoning in those cases. There are sound reasons to adhere to and be consistent with the common law principle on attestation. With respect however, we are not convinced that the term “attest” cannot be restricted in its application in relation to election petitions.
We endorse the notion that attesting witnesses must be competent to verify the truth or genuineness of the allegations in the body
of the petition. In our view the duty and role of the attesting witnesses in election petition is not limited to authenticating the
EP document and its filing. To be a competent witness, we approve and adopt the initial view of his Honour Kandakasi J in James Ekip v. Gordon Wimb & Anor
(supra)...” (Emphasis mine).
17. The Supreme Court then approved and adopted the view of His Honour in James Ekip v. Gordon Wimb & Anor (2012) N4899. The passage in that National Court case stated that:
“ ...the attesting witness under Section 208(d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position to verify, confirm, substantiate, testify, certify, prove or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return or someone eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts.”
18. Now that we have established what the respective Supreme Court’s rulings were. The next question is which approach should this Court adopt when determining the issue before it. Bearing in mind, that the issue was determined by the Supreme Court which were constituted by the same composition of Judges. Mr Nale of counsel for the first respondent submitted that this Court should adopt the meaning of the term “attested” as the one which was decided by the Supreme Court in Talita’s case.
19. To support this contention Counsel submitted that the latter ruling of the Supreme Court should be followed because this Court is bound by that decision of the Supreme Court which had by implication overruled the earlier decision. Counsel submitted the National Court case of The State v. Tovey Lukeson Gunede (2003) N3049. Whilst it is not disputed that the facts of the two cases are very different, the Court was faced with the same dilemma of considering conflicting Supreme Court authorities. That case was a criminal case, before his Honour Justice Gavara-Nanu. His Honour decided to follow the latter decision of the Supreme Court for the reason that the decision in the earlier Supreme Court was given per incuriam because the Supreme Court adopted and followed a National Court decision which was expressly overruled by another Supreme Court which was constituted by the same number of judges (see page 4-5 of the Judgement). In that case, the Supreme Court was not aware of a conflicting decision. However, His Honour stated at page 5 of the Judgement that:
“ A word of caution should be made here that, the approach taken should be taken with great care and adopted only in clearest cases where per incuriam is clearly manifested in the judgment being decided. In this regard, it should be noted that a judgment is not given per incuriam simply because the arguments advanced by counsel are weak or are poorly formulated or that the reasoning in the judgment is faulty.”
20. His Honour went on to take the approach to adopt the latter decision of the Supreme Court and concluded that the doctrine of stare decisis would not be offended but given full effect. I will come to this later in my ruling.
21. Mr Okil of counsel for the second defendant also made similar submissions and submitted that it was good practise to follow the recent statement of the law.
22. Mr Ame of counsel for the petitioner submitted that the Petition was properly before the Court and that all the requirements stated
in Section 208(d) of the Constitution were complied with. The Petition was attested to by two witnesses whose occupations and addresses were clearly stated. Counsel submitted
further that this Court should follow the proposition of law as provided in Kikala’s case. Counsel also submitted the cases of Kela v. Lafanama (1997) PNGLR 151 and Luther Wenge v. Kelly Naru & Electoral Commission (2016) N5033 where the Court stated that there is no prescribed form; therefore the Court should take the cautious approach. The fair and liberal
interpretation of Section 208(d) is that the common law meaning should be read into that provision. The two witnesses have witnessed
the signing of the Petition and that is sufficient.
23. The petitioner through counsel also argued that they filed a notice to cross-examine the deponents however; the deponents were
not brought to Court in compliance with that notice. I note that no such application was made to cross-examine the deponents during
the hearing of the objection. Counsel also argued that the witnesses have sufficiently provided their location or their address,
the witnesses can be easily located. The witnesses are not located in one area and they are at liberty to move to other parts of
the country. Therefore, the objection is incompetent and should be dismissed. Counsel submitted that the Petition is genuine and
the petitioner is not a busy body.
24. When considering which Supreme Court authority to follow, I am of the view that both cases were decided in relation to each of their own peculiar facts and based on their own merits. The decisions are both binding authorities which I am bound to follow. I am not persuaded by the first respondents’ submissions in respect to the argument that I should automatically follow the latest decision because it is the decision which provides the latest statement of the law and therefore reflects the judge made law. With respect, I am not persuaded that the decision of the Supreme Court in Kikala v. Electoral Commission & Mangape (supra) was given per incuriam and therefore, I am not persuaded that it was not an accurate statement of the law at the time.
25. With respect, I am also not persuaded that there is a conflict of the Supreme Court decisions. After examining and considering
the binding effect of those respective decisions. I am of the view that those decisions do not conflict and that the statements
of law made by those respective Supreme Court’s were made to reflect the law as it was at that point in time. Talita v. Ipatas was decided when the form of the petition was prescribed. This is the important distinction which persuades me to follow the case
of Talita v. Ipatas in regard to the attestation of the witnesses because the decision makes reference to the prescribed form.
26. The Supreme Court in Talita v. Ipatas stated at paragraph 18 and 19 that;
“Section 208 (d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. If a villager, the name of his village and District within the electorate would be sufficient. Where a town address is given, a postal address is sufficient. If a residential address is given, it is useful to state the section and allotment numbers and suburb or settlement. The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.
Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. This is a matter of court discretion to be exercised on a quick perusal and assessment of the information available.” (Emphasis mine).
27. The Supreme Court went on to rule that the second attesting witness in that case had substantially complied with the requirements of Section 208(d) of the Organic Law.
28. Rule 4 of the Election Petition Rules 2017 states that an election petition must conform with Form 1. The attestation clause in Form 1 of the Schedule 2 states that:
“ I..................(insert name of first attesting witness),
.......................(insert occupation of first attesting witness), of
........................(insert address of first attesting witness: state address precisely by section and lot number or where no
section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province,
district, and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.”
29. In the present case, the first attesting witness stated his name as Urulu Dabini an Electrician of Mindirete Village, Komo, Hela
Province. The second attesting witness stated that his name was Alembo Igibe an Accountant of Pami Village, Komo, Hela Province.
The first respondent contends that the addresses stated by the attesting witnesses are incorrect because the witnesses address are
located in Port Moresby, National Capital District. Furthermore, the first attesting witness has named the Local Level Government
Ward and not his village. The first respondent relies on the affidavits of Moses Mai, Soti Pongo, Panau Haluja and Melson Walipe
Etaje. All those deponents state that they know the attesting witnesses and they know that they reside in Port Moresby and they also
know which villages they come from. Some of the deponents are also related to them.
30. The evidence before me indicates that the addresses of the first and second attesting witnesses are not stated correctly as required by the Election Petition Rules 2017 and Section 208(d) of the Constitution. In this case, the witnesses stated that their addresses in Komo Magarima Electorate but the evidence is that, that their address is in Port Moresby. In the absence of contrary evidence, I accept the first respondents’ submission that the address is not correct and therefore the genuineness of the Petition is called into question.
31. The Supreme Court in Talita’s case favoured a more stricter approach in restricting the term “attested” in relation to the application of the term in election petitions and approved the proposition that the witness who counter signs the petition must be “...well informed or have some knowledge of what is contained in the petition. The inference is that if need be, the attesting person will be in a position to testify, confirm, verify or prove the allegations underlying the grounds of the petition (see paragraph 31).” With respect, the Supreme Court considered the clause in the attestation clause of the prescribed form of the petition in the Election Petition Rules at that time which read that; “...this day witnessed the signing of this petition by the petitioner and attest to the matters contained in the petition.”
32. In the newly adopted Election Petition Rules 2017, the requirement in the attestation clause no longer exists. See Form 1 of Schedule 2 of the Rules. I do not think it is necessary for me to determine whether or not the witnesses were in a position to testify, confirm, verify or prove the allegations underlying the grounds of the petition. It is clear in Form 1 and the Rules that the witnesses are only required to witness the signing of the Petition. The attesting witnesses need only provide their addresses albeit their residential address as specified and required by Form 1. Evidence before me indicates that the witnesses are not located in Komo but in Port Moresby. They had not truthfully stated their correct addresses. The address in Port Moresby would have been sufficient. They were only required to witness the signing of the Petition. However, they have not truthfully stated their address which is false, I find that is a fundamental error which calls into question the validity and genuineness of the Petition. They have not provided any evidence to this court to explain why they stated the wrong addresses when attesting to the Petition.
33. Strict adherence with the requirements of a Petition pursuant to Section 208 of the Constitution is paramount. This requirement is important to protect the integrity of the election process. The election process must be upheld unless real cause can be shown that the process should be set aside or vitiated. I adopt the authoritative statement by the Supreme Court at paragraph 34 and 35 in Talita v. Ipatas:
“ So anyone challenging the election result must first overcome the initial strict filtering process under sections 208, 209 and 210 of the Organic Law. The filtering process of objection to competency hearing, necessarily involves the strict application and compliance with those mandatory provisions and the election petition rules... In our view, what sets an election petition apart from other legal documents is that the specific requirement by constitutional law that the attesting witness states his occupation and address in s. 208(d) of the Organic Law. The strict application of this provision is to retain the genuineness or veracity of a Petition as echoed by the Supreme Court in Paru Aihi v. Sir Moi Avei...”
34. Clearly by stating the incorrect address, the attestation by the two witnesses was not proper and made contrary to Section 208(d) of the Organic Law. The Petition is not genuine for that reason and must not be permitted to continue. For the foregoing reasons, the petition is incompetent. It is not necessary for me to consider the other grounds of the objection as to competency.
35. It is trite law that the awarding of costs is discretionary. I am not persuaded that the conduct of the petitioner or his lawyer was so improper, unreasonable or blameworthy that they should be punished with an order for costs on an indemnity basis. I am minded to order that costs follow the event and therefore, the petitioner is to pay the first and second respondents’ costs on a party-party basis to be taxed if not agreed. I will also order that the Security deposit of K5, 000.00 held by the Registrar of the National Court shall be paid to the respondents in equal portions.
36. For the foregoing reasons and in the exercise of my discretion, I uphold the first respondent’s objection as to competency and dismiss the entire Petition filed on 24th August 2017 with costs.
Court Orders
37. The orders of the Court are:
Judgment & Orders accordingly,
_______________________________________________________________
Ame Lawyers: Lawyers for the Petitioner
Jema Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent
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