N8767
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 1 OF 2020

IN THE MATTER OF A DISPUTED RETURN FOR THE PEIT CONSTITUENCY

BETWEEN
HUBERT TIHINMATARA
Petitioner

AND
BERNARD BOBOS
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 errors or omissions – Bougainville Elections Act, 2007 – Sections203, 205, 206, 207, 208, 214 &215 – 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
No appearance, 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.  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 with 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 Hubert Tihin Matara petitions the National Court in relation to the election of the first respondent Mr Bernard Bobos. 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 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 22nd September 2020.  A further undisputed fact is that the date of filing on the petition is 23rd September 2020. 

5.	It is the two different dates of 22ndSeptember 2020 and 23rd September 2020 which the Electoral Commission contends show that Mr Matara failed to deposit the security for costs of K2,000.00 at the time of filing the petition on 23rd 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 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 Matara’s submission must be upheld. It was open 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 22ndSeptember 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 22nd September 2020.   

8.	A copy of a notice of payment of security deposit signed by the Deputy Registrar of the National Court dated 24th 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 22nd September, 2020 and a copy of the deposit slip was presented to the Buka National Court on 22nd September, 2020 which copy is now being provided upon the filing of this petition”.

9.	Unless there is evidence to the contrarylike 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 uncontradicted and supports Mr Matara’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 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 Matara because there is no such entity as “Office of the Bougainville Electoral Commission” in either the BE Actor 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 Constitutionwhich 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 Matara 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 Commissionhas 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 Matara 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 205to 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 Matara 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 Matara failed to plead material facts which may constitute grounds on errors or omissions 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 Matara relies on errors or omissions at polling to invalidate the election of Mr Bobos, he must plead in the petition these material facts:

(a)	Names of the electoral officials who allegedly committed errors or omissions at polling,
(b)	Names of candidates who were eliminated at the elimination rounds, and
(c)	Number of votes received by each candidate including him at the elimination rounds until the final elimination.

23.	Mr Matara 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. 028 conducting polling at Notaoh Hamlet in Peit Constituency where ballot-box no. 1051 3/3 was situated.  The total number of ballot-papers cast was 111.  However, at counting on 4th September 2020, ballot-box no. 1051 3/3 was not counted.  Candidates were advised that it will be set aside because polling officials has wrongly signed the Special Voters Declaration form. Apparently, 109 ballot-papers were not counted and only 2 were counted.  

25.	On 5th September 2020 candidates met and resolved to send a written petition to the polling officials to include the ballot-box.  They received no response.  At the end of the final elimination Mr Bobos polled 1,346 votes and Mr Matara polled 1,305.  The difference was 41 votes.  Mr Bobos was declared winner on 15th September 2020.

26.	The allegation is that, as there was no dispute between the candidates and their scrutineers in relation to the inclusion of ballot-box no. 1051 3/3, it should have been included for counting.  The electoral officials failed to do so.  Their failure constituted an error or omission.

27.	As to the identity of the polling and counting officials, it is preferable that they be identified by name to enable the defence to get instructions from them to response to the allegation.  This is a strict approach to Section 215 of the BE Act.  However, a more liberal approach is adopted based on Section 214 of the BE Act because Mr Matara has identified the persons who were responsible for committing the errors or omissions as polling and counting officials at the counting centre.  This is sufficient for the purpose of identification.  At counting, those counting officials responsible for the admission or otherwise of the ballot-box from Notaoh polling venue should be able to be identified by the Electoral Commission with ease.  They were the ones who allegedly decided to reject the ballot-box despite the candidates and scrutineers petitioning for its admission to scrutiny.

28.	Significantly, the error or omission alleged by Mr Matara is that, when this ballot-box was rejected, it contained 111 ballot-box but 2 of them were counted and 109 were rejected.  The difference between the total votes collected by Mr Bobos and Mr Matara is 41 votes.  The rejected 109 ballot-papers is more than 41 ballot-papers or votes which Mr Bobos collected to finish first in the final elimination.  

29.	Section 215 of the BE Act provides for errors or omissions.  It states: 
	
“215. IMMATERIAL ERRORS NOT TO VITIATE ELECTIONS

(1)	Subject to Subsection (2), an election or recall poll shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election or recall poll.

(2)	………….”.

30.	One of the requirements to avoiding of an election or recall poll result on grounds of errors or omissions is that, the error or omission did affect the result of the election.  Based the figures or number of ballot-papers not counted as a result of the rejection of the ballot-box, 111 or 109 votes were not counted. Whether it was 111 or 109, the number of ballot-papers were over and above the difference of 41 votes.  It supports the allegation that the error or omission by the counting official to reject the ballot-box because the Special Voters Declaration form was wrongly signed by polling officials did affect the result of the election.  The only way to test the veracity of the allegation is at trial.

31.	As to the names of the candidates and the total number of votes each received not being pleaded, it is also preferable to identify them and the number of votes each has received. However, what is important is the number of votes each of the candidates who finished number one and number two, received.  They have been pleaded.  Evidence will be led at trial to establish the veracity of the allegation of error or omission by the counting official to reject admission into scrutiny of the ballot-box.It will be upon the Electoral Commission to justify why counting officials rejected the ballot-box on grounds that polling officials had wrongly signed the Special Voters Declaration form.  Is there a legal basis for this?

32.	To conclude, the petition is short and brief but sets out the material facts to avoid the election based on errors or omissions by electoral officials under Section 215 of the BE Act.  Objection on this ground is dismissed.

Conclusion

33.	All the grounds of objections have been dismissed.  This means the petition is competent.  It will progress to trial.

Order

34.	The formal orders are:

1.	The second respondent’s objection to competency is dismissed.
2.	The second respondent shall pay the petitioner’s costs of and incidental to the objection, to be taxed, if not agreed.

________________________________________________________________
Pacific Horizons Legal Services: Lawyers for Petitioner
Jema Lawyers			: Lawyers for Second Respondent