Nita v Lyala [2021] PGDC 135; DC7048 (19 January 2021)

DC7048

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
COURT OF DISPUTED RETURNS – LOCAL-LEVEL GOVERNMENT
ELECTIONS

ELECTION PETITION No: 19 of 2019

BETWEEN
ZECHIUS NITA

- Petitioner.

AND

WANGO LYALA

- First Respondent.

AND

LUKE WAIYON- Returning Officer.

- Second Respondent.

AND
ANTON IAMAU- Provincial Returning Officer, Enga Provincial Government.

- Third Respondent

AND

PNG ELECTORAL COMMISSION.

- Fourth Respondent

WABAG: M. Apie’e

2020: December 03^rd 2021: January 19^th.

CIVIL: -ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS.

-NOTICE OF MOTION FILED and moved for orders pursuant to sections 212 (1) (f) (g) (h) and (j) and (4) of the Organic Law and Section 145, 146 and 157 of the District Court.

EVIDENCE/PROCEEDINGS:

-Applicant/Petitioner Relies on his originating documents dated and filed the 02^nd of September 2019 and on his Notice of Motion Dated 22^nd of September 2020 with its supporting affidavit(s) to seek the following orders, namely that;

i. The First Respondents be declared as not being duly elected,

ii. That the Petitioner is ‘Instead’ declared as duly elected,

iii. Costs.

iv. Other Orders the Court Deems meet.

All pursuant to Section 212 (1) (f) (g) (h) and (j) and (4) and 215 of the Organic Law on National and Local Level Governments,

-Notice of Motion is opposed by the Respondents via Counsel

ISSUE(S)-

1. Whether Respondents failed to file Defense and Notice of Intentions to Defend, and if so could summary judgment stand?
2. Whether Undue Influence committed by presiding officer(s) at Polling?

HELD:

1. Application for summary judgment regard first issue rejected.
2. No evidence regarding second issue
3. The Complainants Notice of Motion of 12^th March 2019 is refused in its entirety.
4. Costs to the First Respondent.
   

References:
-Organic Law on National and Local Level Government Elections. No: 3 of 1997.
-District Court Act 1963. Chapter 40.
-Criminal Code Act 1974. Chapter 262.

Cases:
- Kuna vs. Eralia [2004] PGNC 17; N2771
-Jimson Sauk vs. Don Polye (2004) SC769
- Ginson Saonu vs. Bob Dadae(2004) SC764
- Neville Bourne vs. Manessah Voeto [1977] PNGLR 298
- Jim Nomane vs. David Anngo, (2003) N2496

Appearances:
Mr. Clement Talipan for the Applicant/Petitioner.
Ms. Serah Sipani for the Respondents.

JUDGMENT.

M. Apie’e. Magistrate.
BACKGROUND:

1. This is a Notice of Motions based on an Election Petition Brought Pursuant to Section 206 and by Adaptation to the District Court pursuant to Section 287 of the Organic Law on National and Local Level Government Elections (Hereinafter the Organic Law)
   
2. The First Respondent Mr. Wango Lyala was successful in his bid for The Wapukin/Akom Ward No: 29 council Seat for the Wabag Rural Local Level Government (RLLG) in the 2019 Local Level Government Elections and thus Declared victorious on the 24^th of July 2019.
   
3. The Applicant/Petitioner Mr. Zechius Nita who is the runner-up is aggrieved by the manner of conduct of the Elections, therefore he brought a petition challenging the First Respondents declaration as Councilor Elect for Ward 29 Wabag RLLG dated and filed on the 02^nd of September 2019.
4. The Petition was subjected to the ‘Competency test’ pursuant to The Organic Law on National and Local Level Government Elections (Organic Law) whilst being mention in court from time to time as follows and reached competency.
   
5. The following table lists the various mention dates and activities for this matter as per the Court file.
   

No.	Date	Magistrate	Activity	Adjournment date
1.	24/09/19	Regina Sagu	1. First Mention/Proof of Service 2. No appearances by Respondent	17/10/19 for mention
2.	17/10/19	R. Sagu to M. Apie’e	1. Petitioner and 1st Respondent Present. 2. Clerk to served Competency checklist on parties	23/10/19 for mention
3.	23/10/19	M. Apie’e	1. Petition Competent. 2. Respondent to file Response/ Defense etc. 3.Notice of hearing to or’s	05/12/19 for mention
4.	05/12/19	M. Apie’e	1. Mr. Joe Yapao of Mackenzie Lawyers for Petitioner/Notice of Appearance 2. 1st Respondent in person, filed affidavits in response on 25/11/19	14/01/20 for mention and possible listing
5.	14/01/20 to 18/02/20	M. Apie’e	1. Petitioner not present 2. 1st Respondent in person.	24/02/20 for Mention.
6.	24/02/20	M. Apie’e	1. Petitioner not present 2. 1st Respondent in person 3. Notice to Petitioner to be issued	09/03/20 for mention
7.	09/03/20	M. Apie’e	1. Petitioner and 1st Respondent present. 2. Matter deem competent.	18/03/20 for PTR and Listing
8.	18/03/20	M. Apie’e	1. Petitioner and 1st Respondent present. 2. Other Respondents Required to respond to Petition. 3. PTR Abandoned 2nd others to attend for PTR and Listing.	25/03/20 for mention and PTR/Listing
9.	25/03/20	M. Apie’e	1. Petitioner present 2. Nil by others	04/08/20 for mentions/Ldrship Tribnl duties
10.	04/08/20	M. Apie’e	1. Petitioner Present 2. Respondents Nil	23/09/20 for mention
11.	23/09/20	M. Apie’e	1. Petitioner Nil 2. Respondents Nil	21/10/20 for mentions.
12.	21/10/20	M. Apie’e	1. Mr. Talipan/Kortal Lawyers for Petitioner. 2. 1st Respondent in person 3. Notice of Motion Filed 22/09/20 noted and set for mention.	05/11/20, for motion hearing
13.	05/11/20	M. Apie’e	1. Mr. Talipan for Petitioner 2. 1st Respondent in person 3. Motion set for listing	19/11/20
14.	19/11/20	M. Apie’e	1. Mr. Talipan for Petitioner 2. 1st Respondent in person 3. EPG Legal Agree to appear for Respondents 3. Motion set for mention again	23/11/20
15.	23/11/20	M. Apie’e	1. Mr. Talipan for Petitioner. 2. Mr. Kambao (PLO EPG) for Respondents 3. Matter for hearing with EPG Lawyer Ms. Sipani/ adjourned	25/11/20
16.	25/11/20	M. Apie’e	1. Mr. Talipan for Petitioner 2. Ms. Sipani for Respondents 3.Motion now for mention due to other work	30/11/20
17.	30/11/20	M. Apie’e	Due to still other commitments/ matter further adjourned for hearing	03/12/20
18.	18/12/20	M. Apie’e	NOTICE OF MOTION HEARD	..Adjourned for Ruling...!

6. Thereafter the Petitioner file the Notice of Motion the subject of this proceeding on the 22^nd of September and moved that Notice of Motion on the 03^rd of December 2020.
   

Applicant/Petitioners Claims.

7. The Applicant/Petitioner relied on his Originating Documents as well as the following documents in moving his motion and they are;
   1. His Affidavit dated 06/09/20
   2. Affidavit of Jeffery Tamao dated 06/09/19
   100. Affidavit of Newman Tamao dated 06/09/19
   4. Submission dated 03/09/20 filed on 04/09/19
   5. Petitioner’s affidavit dated 22/09/20, filed on the 23/09/20.
8. The essence of the Applicant/Petitioners Claim in seeking the Orders of the Notice of Motion as per his submission above is that;
   
   1. Firstly, the Respondents did not respond in a timely manner to file their notices of intention to defend and Defenses, a clear non-compliance with Court Procedures and processes of Court under the District Courts Act.
      
   2. Also that on the 22/07/19 at Akom village the said Mr. Brian Kisa, Presiding Officer for Akom RLLG Council Ward 29 and clansman of the 1^st Respondent from the Wapukin Akom Clan, committed illegal activities during the conduct of polling for Ward 29 at Akom village which directly resulted in the Applicant/Petitioner loosing the Election.
      
   100. The Illegal Activities he is supposed to have committed are as follows;
        
        1. Spreading Rumors at the Polling Station that the First Respondent Wango Lyala had being recommended to be returned as Councilor Elect by the Enga Provincial Government for Akom, Ward 29 Wabag RLLG.
           
        2. Therefore, it would be a waste of time for people to vote for others including the Petitioner.
           
        3. Further that ‘Project funds of K10,000.00 each year for Three (3) years totaling K30,000.00 and also Contracts and or employment will be distributed to voters of the First Respondent at the new Akom Technical College and also that if the First Respondent was not voted in, then a Tribal war would ensue.
           
        4. It was also further alleged that during the actual polling the said

Brian Kisa was seen exiting the Polling booth area with ballot papers (50’s) and after sometime returning to the Polling area with only the butts of those Ballot papers, supposedly after having the actual Ballot papers given out, to be cast for other persons.

5. Also, it is alleged that the same Mr. Brian Kisa is seen distributing several ballot papers to a Ms. Beverly/Bebelin Minato to cast for absent family members, which practice was in itself illegal.
   
6. Further that an Election Official not named is given ballot papers to cast votes even though he or she was not eligible to vote.
   
7. After the Polling, the Presiding Officer is said to have deliberately Lost the Ballot Box key, the Inner and outer Tag/seals. This, it is claimed was done to enable the insertion of the Ballot papers previously given out during polling.
8. It is further alleged that the Presiding Officer in collaboration with the 1^st Respondent refused to load the unlocked and unsealed Ballot boxes onto the Official Electoral Commission Hire vehicle and instead loaded the box on a private vehicle owned by their relatives and took the same to Wabag for storage at the Police Station.
   
9. At the Wabag Police Station Storage Containers where Ballot Boxes were being kept the said Presiding Office is seen talking to one Jericho Anton Sepik, guardian of the Storage Containers also from the same Wapulin Akom Clan as Brian Kisa and the First Respondent Wango Lyala.
   
10. During the Counting the petitioner claims that the following is revealed, out of the 650 ballot papers distributed, 543 ballot papers are used, including 2 Informal’s so technically 105 Ballot papers should remain, but only 96 ballot papers actually attested to be left by all. So a discrepancy of 11 missing ballot papers.
    
11. The Difference between the Petitioners 173 votes and the 1^st Respondents 240 votes is therefore 67 votes.
    

9. The Petitioner therefore seeks orders for Alternate Declarations and Costs under Section 212 (1) (f) (g) (h) (j) and (4) of the Organic Law as follows;
   
   1. Declare that Wango Lyala was not duly elected as Councilor for Akom Ward 29 Wabag RLLG pursuant to Section 212(1) (f) of the Organic Law.
      
   2. Declare that Petitioner Zechius Nita is, Instead Duly Elected as Councilor for Akom Ward 29 Wabag RLLG pursuant to Section 212(1) (g) of the Organic Law.
      
   3. Declare the Election held for Akom Ward 29 Wabag RLLG as being absolutely void pursuant to section 212(1) (h).
      
   4. Costs pursuant to Section 212(1) (j) of the Organic Law.
      
10. The Petitioner’s witnesses, namely Jeffery Tamao and Newman Tamao, also filed affidavits on the 06^th of September 2019 in support of the Petition, deposing similar evidence to the Petitioner above.

However, these Witnesses veracity and reliability was challenged by the Respondent Wango Lyala in his affidavit.

Respondents Response.

11. On the 19/11/20, it is made known to the Court that the Enga Provincial Government (EPG) Legal Branch will appear for all Respondents and again on the 23^rd of November 2020 Principal Legal Officer (PLO) for the EPG Mr. Michael Kambau, appeared in Court and informed that EPG Lawyer Ms. Serah Sipani would take carriage of all LLG Election Petition matters.
    
12. Ms. Sipani has therefore made response to the Notice of motion and in so doing relies on the following;
    
    1. Affidavit of Wango Lyala dated 25/11/19
       
    2. Affidavit of Brian Kisa dated 25/11/19 and annexures
       1. Witness Statement of Dick Membai dated 20/11/19
       2. Witness Statement of Beblin Minato dated 20/11/19
          
    100. Affidavit of Peter Malu dated 25/11/20
         
    4. Affidavit of Peter Poko dated 25/11/20
       
    5. Submissions presented on the 03/12/20 and later reduced in written form on the 07/12/20.
       
13. The Essence of the Evidence in Response to the contentions in the Notice of motion by the above witnesses, runs in direct contradiction of the claims by the Petitioner and his two witnesses.
    
    1. Mr. Brian Kisa being the Presiding Officer for Akom Ward 29 Wabag RLLG and the person mostly accused of committing the ‘Undue Influences’ and other ‘Irregularities and Illegalities’ deposed his Response on the 25^th of November 2019 as follows;
       
       1. On Monday the 22^nd of July 2019, after arriving at Akom, the Polling team set up the Polling Booth.
          
       2. Then the Community Elites and Leaders (named) were called in to standby and witness the Progress of the Polling as Akom is renowned for Tribal Unrest and so the Leaders were called in to discourage any potential flare-up of Conflicts according to Witness Peter Poko
          
       3. The polling commenced with witness Mr. Dick Nembai opening with a Prayer.
          
       4. After the Prayer, the Ballot Box was opened at 10.30am and 650 ballot papers confirmed.
          
       5. Brian Kisa signed ballot papers and such were cast and that proceeded without incidence until closure at 4.26pm.
          
       6. At the end, out of the 650 ballot papers distributed, 554 were used up and 96 ballot papers leftover as informal or unused.
          
       7. During Close-up he made announcement that there was no closing tag, and so all Five (5) candidates agreed to escort the Ballot box in a local ten Seat wagon on standby including Election Officials.
          
       8. Before that the Presiding Office was checked/search to clear him of any outstanding ballot papers in his possession.
          
       9. When they all got to Wabag Police Station in the same vehicle, the Candidates were all told to remain in the vehicle while the Presiding Officer Briefed the Assistant Returning Officer Mr. Jacob Kiponge.
          
       10. A Policeman came and picked up the Box to put into the storage Container.
           
       11. The Guardian of the Storage Container told them to buy a lock but they could not as shops were closed, however later an electoral commission tag No: 041151 was put on the box in front of all five candidates.
           
       12. He further explained the claim of giving Ballot Papers to one Mrs. Beblin Minato that, her husband and one of the assembled Local Elites and Leaders Mr. Kamapu Minato requested that he give ballot papers to his wife and daughters to vote and so he signed 3 ballot papers and gave to Mr. Peter Poko who gave them to Mrs. Beblin Minato and her daughters to vote and later had them cast.
           
    2. The other witnesses Mr. Peter Poko and Mr. Peter Malu whose affidavits were deposed on the 25^th of November 2020 and actually filed on the 1^st of December 2020 verified Brian Kisa’s evidence of what transpire that day insofar as they were present and concerned during polling at Akom.
       
    100. Witness Mr. Dick Nembai in his statement of 22^nd November 2019 affixed to the Affidavit of Wango Lyala, confirm being present and opening the Proceeding with a prayer and further that nothing untoward happened during polling the whole time.
         
    4. Witness Mrs. Beblin Minato also in her statement of 20^th November 2019 affixed to the Affidavit of Wango Lyala, also explained the reasons for being given 3 signed Ballot papers, which she and her two ‘Eligible Voter’ daughters filled out in secret and cast.
       
    5. Mr. Wango Lyala in his affidavit in response to the Petition filed on the 25^th of November 2019 states as follows that;
       
       1. He himself never said or did anything to cause ‘undue influence’ or frighten anyone on the 22^nd of July during Polling at Akom.
          
       2. The Educated Elites and Leaders from their village were present throughout and nothing illegal or irregular happened during the Polling.
          
       3. The First Respondent denied the Particulars of Promises of K10,000.00 per LLG Ward for 3 years as being preposterous and also denied that Hela-Opene Polytech is non-operational at this time.
          
       4. He also seriously questioned the reliability of the two witnesses posed and relied on by the Applicant /Petitioner as being Young and unreliable witnesses to support and sustain this Election Petition.
          

The Applicable Law.

Organic Law.

14. The Law applicable to Elections Petitions for Local Level Governments is Correctly referred by the Applicant/Petitioner and his Counsel Mr. Talipan and also by Ms. Sipani for the Respondents as follows;
    
    1. The organic Law especially Section 1 Compliance with Constitutional Requirements (f) the right to vote and stand for Public Office Conferred by Section 50 of the Constitution, and Section 2 Application of this Law Subject to Part XXII, Section 3 and Parts II to XVIII inclusive of this Law- (b) apply to and in respect of Elections to LLGs.
       
    2. The Organic Law has full application to LLG Related Petitions by virtue of Section 287 in its entirety except for the specific Provisions relating to the National Court in Sections 208(e), 209, 210, 212(2) and 213 as pointed out in Section 287.
       
    100. Section 215 of the Organic Law reads;
         

215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

(1) If the National 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 National Court under Subsection (1) does not bar or

prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void–

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’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 Court is satisfied that the result of the election 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 should be declared void.

Criminal Code.

4. Section 102 of the Criminal Code reads;
   

102. UNDUE INFLUENCE.

A person who–

(a) Uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector–

• (i) in order to induce him to vote or refrain from voting at an election; or
  
• (ii) on account of his having voted or refrained from voting at an election; or
  

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,
is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not

exceeding one year.

District Court Act.

5. Of Course also in the Conduct of Election Petitions specific to LLG’s before the District Court, the applicable and relevant provisions of the District Court Act, naturally and automatically apply as posed by the Applicant/Petitioner.
   
6. The Applicant/Petitioner Specifically relies on Sections 5, 15, 22, 145, 146 and 157 of the District Courts Act to seek summary Judgment against the First Respondent as follows;
   
   1. Section 5, 15 and 22 relates to Jurisdictional issues of the District Court.
      
   2. Section 145 of the District Court Act relates to Statement of Defenses in Proceedings before the District Court to be in writing or reduced into writing before the Court.
      
   3. Section 146 relates to the Court deciding cases wholly on the Evidence presented before it.
      
   4. Section 157 (4) relates to Giving of Notices of Intention to defend at least 48 hours before the first mention date in Default summons.

Case Law.

15. The Case Law referred by the Parties all have relevance to varying degrees and are noted for what they are worth to the present case as follows
    
    1. The case of Kuna vs. Eralia 2004 PGNC 17 N2771; p 15 -17 Cannings J, is relied on by Petitioner as to applicability of the Provisions of the Organic Law to LLG Election Petitions.
       
    2. The case of Jimson Sauk vs. Don Polye (2004) SC769, Ginson Saonu vs. BoB Dadae(2004) SC764 both relate to the boundaries between the Applicability of the Organic Law between the National Court and the District Court as between the applicability of the Organic Law.
       
    100. Neville Bourne vs. Manessah Voeto [1977] PNGLR 298 decision of Late Chief Justice Frost as he then was, cited by the Respondents counsel related to the issue of undue influence in election Petition cases to be subject to the tests in section 102 of the Criminal Code.
         

In that case the Respondent Manessah Voeto himself personally and directly told a gathering of electors that they would be Fined (Court Fines) if they did not vote for him thereby committing the undue influence alleged.

In the present case, it is alleged that someone-else said things that amounted to the undue influence, Not the Respondent Wango Lyala, himself.

4. In respect of the actual pleading of Set of Facts relied on in a claim in an election petition under section 208 of the OLNLLGE, the Respondents relied on the case of Jim Nomane vs. David Anngo, (2003) N2496 wherein Gavara-Nanu J, stated;
   

‘..the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents. In my opinion such particulars may only be necessary in allegations such as Undue Influence and Bribery, for which the fact constituting their elements as criminal offences must be sufficiently pleaded.’

Observations /Assessments:

16. In respect of this case I make the following Observations regarding The First Issue of failure to File ‘Notice of Intention to Defend, and a Defense’ in time.
    
    1. The Provisions of the District Court Act Relied on, to make this Contention relate to civil proceedings mounted in the District Court and to that extent, these provisions and the Contention itself can all be deemed to be applicable to this case.
       
    2. Sections 5, 15, 22 all relate to Jurisdictions of Magistrates and Section 146 relates to the assessment of the totally of presented evidence in proceedings before the District Court, and it is my intention to fully comply with these provisions in this matter.
       
    100. Section 145 of the District Court Act, on the other hand, provides the General Rule for proceedings before the District Court in which the Defendant is generally held accountable to respond in a timely manner to pleadings made against him or her so as to progress cases before the District Court.
         

However, at this juncture, referring to Paragraph 2 and Row 3 and 4 of the table in this Judgment, the First Respondent at least was told by the court to file his Responses and Defense to the Petition on the 23/10/19 and he did file Affidavits and Statements in Response to the Petition on the 25/11/19 before the matter was mentioned again on the 05/12/19.

This was the Approach adopted by the Court then to satisfy section 145, and it was complied with fully and satisfactorily by the Respondent.

Further to that, Pursuant to Sections 217 and 222 of the Organic Law, The Parties were primarily appearing without Counsels at the Beginning of this matter and so the District Court did not endeavor to strictly adhere to court procedures and practice as would normally apply with Counsel Assisted Litigation.

This Claim of failure to file a ‘Notice of Intention to Defend and Defense is therefore Misconceived and so Rejected.

4. Section 157 of the District Court Act on the other hand relates specifically to Default Summons such as ‘Default summons for a Complaint upon a Civil Debt’.

In this case, the Petitioner has not sufficiently impressed this court that section 157 has relevance and applicability to Election Petitions and so his reliance on this provision is therefore ruled as being misconceived and erroneous.

In any case my ruling on the Petitioners reliance on Section 145 above equally nullifies this line of argument!

5. Therefore. the First Contention in the Notice of Motion for Judgment to be entered for the Petitioner on the basis of Failure by the Respondent to File a Notice of ‘Intention to Defend’ and Defense is not accepted by this Court!
   

17. The Next and more Substantial Contention of the Notice of Motion is for Alternate Declarations and Costs to be entered for the Applicant Petitioner under Section 212 (1) (f), (g), (h) (j) and (4), relying on Section 215 of the Organic Law.
    
    1. The Respondents contention that the Presiding officer Mr. Brian Kisa ought to have being named in the Petition is not deemed as a necessary argument given that as per accepted elections Petition procedures, it is normally the Returning Office that is named to explain the Conduct of Polling in Electorates or in this case the Council Ward.
       
    2. On the 22^nd of July 2019 at Akom village the Polling team set up and distributed 650 Ballot Papers.
       
       1. According to the Petitioner 650 ballot papers distributed, 543 ballot papers are used, including 2 Informal’s so technically 105 Ballot papers should remain, but only 96 ballot papers actually attested to be left by all. So a discrepancy of 11 missing ballot papers.
          
       2. The Difference between the Petitioners 173 votes and the 1^st Respondents 240 votes is therefore 67 votes.
          
       3. Mr. Brian Kisa the Returning Officer, on the other hand deposed that 650 ballot papers were distributed, 554 were used up and 96 ballot papers were leftover as informal or unused.
          
    100. The Respondents relied on the Affidavits and or Statement of a total of 6 people who were at the Polling at Akom and thereafter on the 22/07/19 while the Petitioner relies on himself and his two witnesses, whose maturity and standing in the community and reliability has being questioned by the Respondent Wango Lyala. A Ration of 2 to 1 in favour of the Respondent.
         
    4. All those who gave statements and affidavits in response to the Petition denied the allegations raised by the Petitioner and instead gave an account of orderly commencement, progress and ending to polling at Akom, whilst The Petitioner and his two witnesses depose otherwise.
       
    5. That being so, the following observations become prominent;
       
       1. 96 Ballot papers remain un-casted or declared informal, so why are those not also cast if people had a desire to hijack or influence Polling in a particular way especially if the Presiding Officer Brian Kisa was partial to the First Respondent and was allegedly seeing walking out with ballot papers?
          
       2. Secondly, as per the Dictate of Section 102 of the Criminal Code Act which has primary bearing on Section 215 of the Organic Law, the First Respondent Wango Lyala is not alleged to have personally committed the Undue Influence himself and it can be Further stated that the Depositions do not even established that he did indeed know of the Undue Influence being occasioned by others on his behalf, if any.
          
       3. Further, it has not been clearly deposed for the Applicant/Petitioner as to the time and place of the Undue influence, and as to the people or number of people being thus influenced not to vote for the Petitioner pursuant to section 215 of the OLNLLGE and section 102 of the Criminal Code Act.
          
       4. As was the Ruling in the case of Nomane v. David Anngo as per Gavara Nanu J, ‘‘.the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents. In my opinion such particulars may only be necessary in allegations such as Undue Influence and Bribery, for which the fact constituting their elements as criminal offences must be sufficiently pleaded.’
          
       5. It is the Ruling of this Court that the Petitioner in this case has not fully discharge his obligation under law.
          
    6. The other prominent issue under Section 215 of the OLNLLGE that must be Resolved is whether the court is satisfied that if Undue Influence was committed, would the result of the Election have been likely affected?
       
       1. At the end of Polling on the 22^nd of July 2019 at Akom village, both the Petitioner and the Respondents conceded that about 96 ballot papers remained unused or informal out of the 650, clearly because all eligible voters had voted.
          
       2. Also, the Ballot Difference between the Declared Wango Lyala and Runner up Zechius Nita is 67 votes,
          
       3. The Petition does not allege that more or extra ballots were illegally cast for Respondent Wango Lyala or alternately that certain people were prohibited from voting for the Petitioner.
          
       4. This Court is thus not impressed that any undue influence was occasioned by anyone for and on behalf of Wango Lyala, but if indeed such influences or words were being occasioned or uttered by anyone on the 22/07/19, the Result of the election was not affected in anyway by any such activities or utterances.
          
       5. The fact of 96 Ballot papers remaining unused basically eliminates any notion of intended fraud at the polling booth in favour of anyone, especially when the Presiding Officer Brian Kisa is allegedly partial to the First Respondent according to the Applicant, and was in charge of all ballot papers and even the 96 unused ballot papers.
          
    7. Therefore, in respect of the Contentions raised under Section 215 of the Organic Law in conjunction with Section 102 of the Criminal Code that there was undue Influence directed at voters at Akom village on the 22/07/19 by persons other than the First Respondent;
       
       1. It is the finding of this Court that such contentions are not borne out by the evidence relied on by the Applicant.
          
       2. That if indeed the utterances alleged were indeed made by the persons alleged by the Applicant and his witnesses, still the outcome of the Election was not in any way affected.
          

RULING.

18. Accordingly, pursuant to Section 146 of the District Court Act, on the totality of Evidences and Submissions deposed and posed by all, this Court Finds and Rules as follows.
    
    1. The Applicants Motion that Judgment ought to be entered in his favour because the Respondent has failed to comply with the requirement to file a ‘Notice of Intention to Defend’ and a ‘Defense’ within reasonable time pursuant to Section 145, 146 and 157 of the District Court Act is ruled as being misconceived and misguided and therefore dismissed.
       
    2. Further, this Court is not convinced that it should declare the Election of First Respondent Wango Lyala as duly Elected Councilor for Akom Ward 29 in the Wabag RLLG as being Void pursuant to Sections 212(1) (f) and (h) and 215(5) of the Organic Law, and so the Declaration of 24^th July 2019 is allowed to stand in full force and effect.
       
    3. Furthermore, this Court therefore finds no reason to accede to the Applicants motion pursuant to Section 212(1) (g) of the Organic Law to have himself declared as being duly Elected Councilor for Akom Ward 29 in the Wabag RLLG instead of the First Respondent.
       
    4. Ultimately, this Notice of Motion is refused, and the Substantive Election

Petition No: 19 of 2019 is dismissed in its entirety with costs.

5. Costs awarded to the First Respondent against the Applicant Petitioner, to be agreed, if not to be taxed.
   

19. Orders Accordingly.

Kortal Lawyers for the Petitioner
Enga Provincial Legal Office for the Respondents.