|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
N8766
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 2 OF 2020
IN THE MATTERS OF A DISPUTED RETURN FOR THE HAGOGOHE CONSTITUENCY
BETWEEN
CHRISTOPHER PETERSON KETSORE
Petitioner
AND
ROBERT HAMAL SAWA
First Respondent
AND
OFFICE OF THE BOUGAINVILLE ELECTORAL COMMISSION
Second Respondent
Buka: Makail J
2021: 12th & 15th February
PRACTICE & PROCEDURE – Objection to competency – Grounds of – Failure to deposit security deposit of K2,000.00 at date of filing of petition – Failure to name correct party – Failure to state date and place where petitioner signed petition – Failure to plead material facts – Allegations of illegal practices – Double voting – Bougainville Elections Act, 2007 – Sections 203, 205, 206, 207, 208, 212 & 214– National Court Election Petition Rules, 2017 – Rule 12
Cases Cited:
William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018
William Duma v. James Puk & Electoral Commission (2019) SC1817
Counsel:
Mr. P. Kaluwin, for Petitioner
Mr. A. Furigi, for First Respondent
Mr. S. Dewe with Mr. D. Kints, for Second Respondent
RULING
15th February, 2021
1. MAKAIL J: This is a ruling on the second respondent’s objection to competency. It is supported by the first respondent. The objection is brought pursuant Rule 12 of the National Court Election Petition Rules, 2017 (EP Rules). It is based on four grounds:
(a) Failure to deposit a sum of K2,000.00 as security for costs at time of filing petition.
(b) Failure to name correct party – second respondent.
(c) Failure to state the date and place where petition was signed by petitioner.
(d) Failure to plead material facts to constitute grounds of petition.
Jurisdiction of National Court
2. The petition arises from the election of members of House of Representative of the Autonomous Bougainville Government (ABG). Pursuant to Section 203 of the Bougainville Elections Act, 2007 (BE Act) which provides that until a Bougainville High Court is established, the National Court is conferred jurisdiction to decide the validity of an election, recall poll or return of an ABG election, the petitioner Mr Christopher Peterson Ketsore petitions the National Court in relation to the election of the first respondent Mr Robert Hamal Sawa. It must also be made clear that at this stage the Court is not looking at the evidence but the compliance with the requisites of a petition under Sections 205 and 206 of the BE Act. This is because under Section 207, proceedings shall not be heard on a petition unless the requirements of Sections 205 and 206 are complied with.
Failure to deposit a sum of K2,000.00 as security for costs at time of filing election petition
3. It is common ground that it is a mandatory requirement under Section 206 of the BE Act that “At the time of filing the petition the petitioner shall deposit with the Bougainville High Court the sum of K2,000.00 as security for costs”.
4. It is also common ground that the petitioner deposited a sum of K2,000.00 into the National Court Registrar’s trust account with Bank South Pacific Limited (BSP) on 25th September 2020. A further undisputed fact is that the date of filing on the petition is 29th September 2020.
5. It is the two different dates of 25th September 2020 and 29th September 2020 which the Electoral Commission contends show that Mr Ketsore failed to deposit the security for costs of K2,000.00 at the time of filing the election petition on 29th September 2020. This failure amounts to a breach of the mandatory requirement to deposit the security for costs of K2,000.00 at the time of filing the election petition under Section 206 of the BE Act and renders the petition incompetent.
6. Section 206 states:
“206. DEPOSIT AS SECUIRTY FOR COSTS.
At the time of filing the petition the petitioner shall deposit with the Bougainville High Court the sum of K2,000.000 as security for costs”.
7. However, Mr Ketsore’s submission must be upheld. It was open to him and indeed, in his best interest that the security for costs is paid prior to the filing of the petition. In this case it was to be deposited into the National Court Registrar’s trust account with BSP which he did on 25th September 2020. A copy of the BSP Bank deposit slip in the sum of K2,000.00 was tendered with the petition at the Registry of Buka National Court on 25th September 2020.
8. A copy of a notice of payment of security deposit signed by the Deputy Registrar of the National Court dated 30th September 2020 is being produced. It states in part:
“B. Security Deposit of K2,000.00 was deposited into Bank South Pacific Buka into Registrar’s Trust Account on 25th September, 2020 and a copy of the deposit slip was presented to the Buka National Court on 29th September, 2020 which copy is now being provided upon the filing of this petition”.
9. Unless there is evidence to the contrary like a search at the Court Registry had established that no security for costs was deposited, such evidence was not been forthcoming from the Electoral Commission, the Deputy Registrar’s notice stands un-contradicted and supports Mr Ketsore’s submission.
10. There will be a default which will constitute a breach of the mandatory requirement under Section 206 if the security for costs was deposited after the election petition was filed. It is not the case here. (Emphasis added).
11. This ground has no merit and is dismissed.
Failure to name correct party – second respondent
12. The Electoral Commission’s contention that it has been wrongly described in the petition by Mr Ketsore because there is no such entity as “Office of the Bougainville Electoral Commission” in either the BE Act or Bougainville Constitution must fail because the naming of a party is not a requisite of a petition under Section 205 of the BE Act. For this reason alone, the contention is misconceived.
13. The misapplication of Section 205 explains why the Electoral Commission is unable to point to a provision in either the BE Act or Bougainville Constitution which refers to “George Manu as Electoral Commissioner of Bougainville” or “George Manu in his capacity as Electoral Commissioner of Bougainville”. Further still, there is no expressed provision in these two laws which directs a petitioner like Mr Ketsore to name the Electoral Commission in a certain way.
14. It is quite difficult to make an argument out of something that the law does not expressly provide or prohibit. If the Electoral Commission’s submission is to be accepted, it would be tantamount to re-writing the law. But what matters most is that if the word “Office” is omitted, the words “Bougainville Electoral Commission” is staring right in the face of the parties and it is quite difficult to understand why the Electoral Commission has submitted that it will be a futile attempt to have the matter proceed further when it has not been properly named. It does not make sense at all. If anything, it has not shown how it has and will be disadvantaged in its defence by the purported mis-description of its name.
15. The contention that the Office of the Bougainville Electoral Commission lacked legal capacity to be sued is a further attempt by the Electoral Commission to avoid the obvious: that Mr Ketsore has named the Electoral Commission as second respondent and better still, has specifically referred to it as Office of the Bougainville Electoral Commission such that anyone who picks up and reads the petition will know immediately that it is a petition for Bougainville and not others. It also ignores the fact that there is a lack of expressed provision in the law on how the Electoral Commission should be described or named in a petition.
16. The reference to the Electoral Commissioner to appear on behalf of the Electoral Commission where the “validity of an election or return is disputed” in Section 208 of the BE Act is precisely for that purpose and it shall be with leave of the Court. Finally, the reference to the “Bougainville Electoral Commissioner” in Section 106 of the Bougainville Constitution is a statement on the establishment and appointment of the Bougainville Electoral Commissioner. It does not say that it is mandatory that the Bougainville Electoral Commissioner is the party that must be named in a petition.
17. This ground is misconceived and is dismissed.
Failure to state date and place where petition was signed by petitioner
18. A requirement to state the date and place where a petition was signed by the petitioner is a requirement of the EP Rules. It is not one of the requisites of a petition under Section 205 of the BE Act. A failure to comply with it does not constitute a breach of Section 205 and renders a petition incompetent. To expand the application of Section 205 to include the requirement to state the date and place where the petitioner signed the petition is tantamount to importing an additional requirement under Section 205. Finally, as there is no contest to the application of the EP Rules, it would be argued that it complements the BE Act but is subservient to it. It does not override it.
19. Thus, such an omission by Mr Ketsore should not deny him a right to be heard when he has complied with the mandatory requirements of a petition under Section 205. The approach taken by the Court is based on the recent case of William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018 where the Supreme Court extended the application of Section 217 (Real Justice to be observed) of the Organic Law on Provincial and Local-level Government Elections to an objection to competency. The equivalent of Section 217 is Section 214 (Natural Justice to be observed) of the BE Act. This is the approach this Court will take. Contrast this approach with the strict approach previously applied by the Supreme Court in William Duma v. James Puk & Electoral Commission (2019) SC1817.
20. There is no breach here. This ground is dismissed.
Failure to plead material facts to constitute grounds of petition
21. The Electoral Commission contends that Mr Ketsore failed to plead material facts which may constitute grounds on illegal practices contrary to Section 205(a) of the BE Act. Section 205(a) states:
“A petition shall set out the facts relied on to invalidate the election, recall poll or return”.
22. It further contends that if Mr Ketsore relies on illegal practices such as double voting at polling to invalidate the election of Mr Sawa, he must plead in the petition these material facts:
(a) Names of the electoral officials who allegedly allowed the illegal practice of double voting at polling,
(b) The total number and names of the people who committed the alleged act of double voting.
(c) The electors who committed the alleged act of illegal practice voted for Mr Sawa.
(b) The total number of votes secured by Mr Sawa as a result of the alleged act of illegal practice, and
(e) How the total number of votes collected by Mr Sawa as a result of the alleged illegal practices affected the winning margin and how it likely affected or would have affected the result of the election.
23. Mr Ketsore failed to plead these material facts. Thus, he has failed to comply with the requirement to plead facts under Section 205(a) and the petition is incompetent.
24. The facts as pleaded at para. B (1) to (9) of the petition tell a story of a polling team no. 21 conducting polling at Losei village in Hagogohe Constituency on Tuesday 18th August 2020 where double voting occurred. The double voting was committed by a truck load of voters loyal to Mr Sawa from Salasa village. These voters had voted at Salasa village at polling team no 22 the day before which was 17th August 2020. Despite strong protest by the scrutineers at Losei village polling team no 21, the polling officials allowed the voters to vote.
25. A protest was made in relation to these ballot-boxes however, they were counted. The disputed ballot-boxes were admitted into scrutiny and counted while the undisputed ones were rejected. At final elimination, Mr Sawa polled 1,297 votes and Mr Ketsore polled 1,162. The difference was 135 votes. On Friday 18th September 2020 Mr Sawa was declared as candidate-elect.
26. According to Section 190 of the BE Act, double voting is listed in Column 1.1 as an electoral offence. It states,“Voting more than once in any one category at an election” and carries“A fine not exceeding K200.00 or imprisonment for a term no exceeding three months”.
27. As for an illegal practice, Section 212 of the BE Act states:
“212. VOIDING OF ELECTION FOR ILLEGAL PRACTICES.
(1) If the Bougainville High Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the Bougainville High Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The Bougainville High Court shall not declare that a person returned as elected was not duly elected, or declare an election or recall poll void—
(a) on the ground of an illegal practice committed by a person other than the candidate (or in the case of a recall poll the member whose recall was the subject of the poll) and without the candidate's (or in the case of a recall poll, the member’s) knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Bougainville High Court is satisfied that the result of the election or recall poll was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election or recall poll should be declared void”.
28. To prove an illegal practice by a person, it must be pleaded and proved:
(a) the type of illegal practice,
(b) the identity of the person,
(c) the number of ballot-papers affected by the illegal practice.
(d) that the result was likely to be affected.
29. While it is clear that the type of illegal practice alleged is one of double voting and that it can be accepted that polling officials who allowed voters who were loyal to Mr Sawa from Salasa village to vote at Losei village is sufficient for the purpose of identifying them as perpetrators, the following material facts are missing:
(a) Identity or name of the person or persons from Salasa village who double voted at Losei village,
(b) The number of votes cast at Losei village, and
(c) That the number of votes affected was likely to affect the result of the election.
30. In essence the petition failed to disclose the names of the voters (perpetrators) who double-voted and the total number of votes from Losei village where the alleged double-voting occurred. The number of votes affected is critical to ascertain if the final result of the election (1,297 votes polled by Mr Sawa) was likely to be affected. These are material facts critical to prove the allegation of double-voting and are missing. The Electoral Commission has established this ground of objection. It is upheld.
Conclusion
31. One out of four grounds of the objection have been upheld. The petition will be dismissed as being incompetent for not complying with Section 205(a) of the BE Act.
Order
32. The formal orders are:
1. The second respondent’s objection to competency is upheld.
2. The petition is dismissed as being incompetent.
________________________________________________________________
Pacific Horizons Legal Services : Lawyers for Petitioner
Furigi Lawyers : Lawyers for First Respondent
Jema Lawyers : Lawyers for Second Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2021/41.html