Koimanrea v Sumunda [2003] PGLawRp 4; [2003] PNGLR 261 (13 March 2003)

NATIONAL COURT OF JUSTICE

FRANCIS KOIMANREA

V

ALOIS SUMUNDA;
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA; AND
PAUL TIENSTEN

KOKOPO: SAKORA J

10-11 & 13th March 2003

ELECTIONS - Validity of election petition of 2002 Pomio Open Electorate.
DISPUTED ELECTION PETITION - Practice & Procedure - Organic Law on National and Local Level Government Elections ss 206, 208, 209, 210 Objection to elections on the basis of competency.

Facts

The third respondent objected to the competency of the petition on the basis that all the allegations made and intended therein to invalidate the election and return in the 2002 Pomio Open general elections did not comply with the requirements of s 208 (a) Organic Law on National and Local-level Government Elections (the Organic Law). Thus, the third respondent sought and seeks the declaration that the petition is incompetent and should be struck out with costs.

Held

1. The petitioner's allegations contained under paragraphs AA1 (i) to (vi) inclusive of the petition, purportedly to constitute grounds of errors and omissions on the part of the first and second respondents be struck out as incompetent.

2. The petitioner's allegations contained under paragraphs AA 2 (i) and (ii) inclusive, purportedly to constitute grounds of errors and omissions in the petition on the part of the first and second respondents be struck out as incompetent.

3. The petitioner's allegations contained under paragraphs AA3 to AA7 inclusive of the petition, in purported pleadings of facts to constitute grounds of errors and omissions on the part of the first and second respondents be struck out as incompetent.

4. The petitioner's allegations contained under paragraph BB8 (BB(i)) of the petition, in purported pleading of facts to constitute undue influence and bribery on the part of the third respondent be struck out as incompetent.

5. The petitioner's allegations contained under paragraph BB9 (BB(ii)) of the petition, in purported pleading of facts to constitute undue influence and bribery on the part of the third respondent be struck out as incompetent.

6. The petition registered as EP No.1 of 2002, ENBP, in all its constituent parts and aspects is hereby and consequently struck out with costs.

7. The law being that the costs of litigation generally follow the event, and that the event here being the upholding of an objection to the competency of the election petition and the consequent striking out of such, (rather than a dismissal if the court had embarked upon the consideration and determination of the merits or otherwise), and that costs are matters of discretion for the court, the petitioner pays to the three respondents their respective costs of and incidental to the preparation of their respective defences to the petition and the prosecution of their objections.

8. In respect of the last preceding order, the K2,500.00 security for costs deposited pursuant to Rule 5 of the Rules be paid to the three respondents in equal shares, and that any balance outstanding on their respective costs be taxed if not agreed upon.

Papua New Guinea cases cited

Agonia v Karo [1992] PNGLR 463.
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342.
Holloway v Ivarato [1988] PNGLR 99.
In re Menyamya Open Parliamentary Election, Neville Bourne v Manesseh Voeto [1977] PNGLR 298.
In re Moresby North East Election Petition [1977] PNGLR 429.
Ipe v Napas [1981] PNGLR 128.
Karo v Kidu (Unreported N1626 of 9/10/97).
Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).
Mapun Papol v Antony Temo & Electoral Commission [1981] PNGLR 172.
Michael Badui v Bart Philemon [1992] PNGLR 151.
Mond v Okoro & Electoral Commission [1992] PNGLR 501.
Paua v Ngale & Ors [1992] PNGLR 563.
Raymond Agonia v Albert Karo [1992] PNGLR 463.
Re Baiyer Mul Open Parliamentary Election [1977] PNGLR 496.
Siaguru v Unagi & Electoral Commission [1987] PNGLR 372.
Thompson v Pokasui & Electoral Commission [1988] PNGLR 210.
Torato v Electoral Commissioner [1988-89] PNGLR 83.
Vagi Mae v Jack Genia (1992) unreported N1105.

Counsel

D Lidgett and Ms E Suelip, for the petitioner.
Petitioner on his own behalf.
J Nonggorr, for the first and second respondents.
A Baniyamai, for the third respondent.

13 March 2003

Sakora j. By a notice of objection filed 11 October, 2002, the third respondent objected to the competency of the petition on the basis that all the allegations made and intended therein to invalidate the election and return in the 2002 Pomio Open general elections did not comply with the requirements of s208 (a) Organic Law on National and Local-level Government Elections (the Organic Law). Thus, the third respondent sought and seeks the declaration that the petition is incompetent and should be struck out with costs.

Introduction

This objection is supported in all respects by the first and second respondents. As the objection raised the crucial threshold issue of the jurisdiction of this Court pursuant to the combined effects of ss 206, 208, 209 and 210 Organic Law, the objection was heard on the first day of the proceedings. That is to say, I heard both Mr Baniyamai and Dr Nonggorr, counsel for and on behalf of the third and first and second respondents respectively, whereupon Mr Lidgett (appearing with Ms Suelip) for the petitioner rose to seek adjournment till the next morning to, as he put it, enable fresh instructions to be obtained in the light of the detailed submissions of the respondents. There being no objections from the respondents the Court granted the adjournment.

Upon resumption, Mr Lidgett rose to advise the Court that the petitioner wished to present his submissions in response to those of the respondents personally. Counsel further advised that the opportunity of the adjournment had enabled the petitioner to be apprised fully of the legal position, following which it was Mr Koimanrea's wish and instructions that leave be sought for him to present his arguments himself. It was intimated in this respect that the petitioner himself would be better able to put before the Court his exact views on the matter.

It would appear that the intention was that whilst Mr Lidgett and Ms Suelip would remain on record as Counsel for the petitioner, he would take over, as it were, temporarily and address from the Bar table on the objection to competency, at the end of which counsel and client would revert to their former positions and relationship.

Upon hearing both Mr Baniyamai and Dr Nonggorr on this somewhat unusual situation, both counsel greatly assisting with pertinent and helpful comments, the Court was able to properly rule on the petitioner's request.

It should be stated that what was being sought and intended was unusual only because of the provisions of s 222 Organic Law and the orders of the Court in the directions hearing of this matter on 7 November, 2002. Section 222 reads, in its entirety, as follows:

222. Counsel or solicitor

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of the party.

Subsection (1) of the provision having been complied with, the Court gave direction that the petitioner would be represented by Michael Wilson of Warner Shand Lawyers. Both Counsel for the respondents upon being confronted with two Counsel appearing for the petitioner on the commencement of the proceedings, in defiance of the Court's directions (supra) were, nevertheless, gracious enough not to raise any objections that they were entitled, and were at liberty to. Then on the second day of the proceedings, after their own submissions, were faced once again with another unusual and unexpected situation. I pause to note that the Court has also been subjected to similar situations. One cannot resist the temptation to ask as to what more and unexpected events await this proceedings.

The Court does not wish to be sounding censorious or any such thing, but there is the recurring thought from these unusual developments following the initial drafting and filing of the petition itself that there has not been a proper appreciation, and acknowledgement, of the law's requirements for challenging the propriety and integrity of the particular election and its return.

As I comment and emphasise in due course in the judgment, the law on this subject is well settled. So much so that it can, and does, properly attract the epithet trite law, unless and until the Supreme Court is persuaded in an appropriate case to renege or go back on its previous authoritative interpretative pronouncements, or the Parliament in its collective wisdom changes this law, whichever comes first.

After a brief adjournment counsel for the petitioner indicated that their position as stated earlier remained and that they should be granted leave to withdraw and the petitioner assume the future conduct of the petition. Fully appreciating Counsel's position as untenable and that we could not have the untidy and uncertain situation of the two counsel and their client representing the client, at the same, in defiance of the terms of s 222 Organic Law, granted Mr Lidgett and Ms Suelip leave to withdraw from the case, notice of such withdrawal to be formally filed with the Court soon after.

I note that I did make certain comments in relation to this in my formal ruling. These are on the Court's record and there is no need to restate those here, except only to note that in granting Mr Koimanrea (only because on record he had been represented by legal counsel) leave to represent himself, this Court acknowledged his original right.

Upon counsel's withdrawal, Mr Koimanrea assumed his position at the Bar table and proceeded to respond to the objections. With the intention only to put on record what has transpired here, I must respectfully note that what was meant by "the petitioner himself would be better able to put before the Court his exact views of the matter (petition)" became immediately and abundantly clear.

General Comments

As a very large portion of the petitioner's submissions in response to the respective submissions of the three respondents on their objection to the competency of this petition was devoted to telling and admonishing this Court as to how it should go about discharging its duties and functions in this instance, it becomes necessary that a few home truths about the powers and functions, not to mention the duties, of our Courts of law should be told at this juncture. This entails, unfortunately, some introductory lessons on Constitutional concepts and principles.

The passionate submissions of Mr Koimanrea which, if I may respectfully suggest, are reflective of his well known skilled oratory, were directed basically at this Court ignoring or going behind and beyond the applicable law so as to enable the serious allegations he has leveled against the respondents to be tried. It is his recurring call that only when this Court accedes to his wish for the petition to go to trial will justice, fairness and due process prevail.

But justice and fairness, and due process, important concepts that they are, and thus forming part and parcel of a civilised and democratic system, are not absolutes operating on their own and in complete isolation from all other democratic concepts and principles. Justice and fairness are not one-way streets, such that they would only apply to protect the rights and interests of losing candidates in elections, such as the petitioner here.

The universality and equal application of these fine concepts demand that they apply with equal force, in appropriate case, to the rights and interests of the winning candidate, the incumbent member of parliament. Indeed, they ought also to apply with equal force, once again in appropriate cases, to the rights and interests of the Electoral Commission and its officers and agents, as every dispute brought under s206 of the Organic Law challenges and questions the integrity of the electoral system and thus the validity of a particular election and its return.

Under our democratic system, justice is to be accorded, and achieved, according to law. This is nowhere made more prominent and obvious than in the most important and precious of our individual rights and freedoms. These rights and freedoms are to be accorded, and enjoyed, according to law.

The right that every elector and candidate has and exercises once every five years is that provided for by the Constitution under s 50. This is a right special and specific for citizens as opposed to non-citizen residents. As this right features prominently in all election petitions, it is convenient and instructive that the provision be reproduced hereunder in full:

50. Right to vote and stand for public office.

(51) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who

(a) is under sentence of death or imprisonment for a period of more than 9 months; or

(b) has been convicted, within the period of 3 years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purpose of this paragraph, has the right, and shall be given a reasonable opportunity –

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. (underlining provided).

Section 103 Constitution is such an express limitation as envisaged by s 50 (1) Constitution (supra), and the two provisions can quite easily be read together: see Andrew J in Okuk v Nilkare [1983] PNGLR 28, at 32-33. Section 103 sets out in great detail the various qualifications for and disqualifications from membership of the National Parliament. For similar purposes as in the preceding provision, this provision is reproduced hereunder in its entirety:

103. Qualifications for and disqualifications from membership

(104) A member of the Parliament must be not less than 25 years of age.

(105) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(106) A person is not qualified to be, or to remain, a member of the Parliament if –

(a) he is not entitled to vote in elections to the Parliament; or

(b) he is of unsound mind within the meaning of any law relating to the protection of persons and property of persons of unsound mind; or

(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or

(d) he is otherwise disqualified under this Constitution.

(1) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3) (d) is suspended until –

(a) the end of any statutory period allowed for appeals against the conviction or sentence; or

(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is deterrnined.

(1) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.

(2) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by election has not been issued the member is restored to his seat.

(3) In this section –

"appeal" includes any form of judicial appeal or judicial review; "statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.

The regulation of the exercise of the s50 Constitutional right as allowed by sub-s (2) of s 50 (supra) is the Organic Law itself in its manifold procedural requirements and the rules promulgated under it (pursuant to s184 Constitution). The Organic Law, contrary to certain perceptions, regulates and enables or enhances the enjoyment and exercise of the rights under Constitution s50. It does not prevent or prohibit, or indeed discriminate, in the exercise of these special rights.

Moreover, these rights extend to and include the right of or a losing candidate under s206 of the Organic Law to dispute or challenge the election and return of a particular general election. It is in the following terms:

206. Method of disputing elections.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

But this right is not absolute. It is to be exercised according to or in compliance with the law on elections and election petitions as provided for under the Organic Law, and the Rules.

It is to be noted that an important regulation on the s206 Organic Law (supra) entitlement is provided by s220 of the law itself. It is in the following terms:

220. Decision to be final.

A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

There was and is a very good reason for this provision employing terms such as final and conclusive which speak for themselves. It has to do with all the beautiful concepts and principles associated with democracy and the specific rights under s 50 Constitution. And the lawyers and I know full well the fate of this provision.

By what I would respectfully characterise as some deft legal gymnastics, reminiscent of the best halfback or five-eight side-steps on a rugby field, the Supreme Court in the election petition In re Moresby North East Election Petition [1977] PNGLR 429 held that the privative clause under s 220 Organic Law could not exclude the Supreme Court's inherent power to review the judicial acts of the National Court. That is to say "review" was not appeal, and "questioned in anyway" did not involve review as envisaged by s 155 (2) (b) Constitution. Further, it would appear that the concluding part of the provision, "in anyway" did not include or mean "review" under s 155 (2) (b). However, it is respectfully acknowledged that the decision sits comfortably with the need to preserve the Supreme Court's judicial review powers. However, as some relief from the rigours of statutory law when there is no appeal provision or the right to appeal has been lost or forfeited in "exceptional circumstances" (Avia Aihi v The State [1981] PNGLR 82), I would find some quiet difficulty in not applying it (s 155(2)(b) Constitution) to the position of an aggrieved party (who may be either the original winning candidate or the loser) following the determination of the petition under s 206 Organic Law.

The second qualification or regulation, and a very important one, placed on the s 206 Organic Law entitlement to dispute the validity of an election or return is that coming under the combined effects of ss 208, 209 and 210 Organic Law. And these provisions are the subject of the submissions before me in relation to the objection and are discussed later in the judgment.

As the Constitutional Planning Committee (CPC) took great pains to explain, emphasise and make recommendations on for inclusion in the Independence Constitution (CPC Report Ch. 5, p. 13; Ch. 16, pp. 2 & 3), and as numerous judicial decisions have stressed over the years, considerable importance is attached to the electoral system; the system, as we all know full well, by which members of Parliament are chosen; the aim of which system is to make Parliament representative of the views of the people.

And as one author (whose name escapes me right now so I am unable to properly and respectfully acknowledge) has put it: "Democracy is not a spectator sport". Section 50 Constitution ensures this in its provision for participatory democracy, in consonance with Goal 2 of the National Goals and Directive Principles under the Preamble to the Constitution: Equality and Participation.

The recurring theme here is that justice and fairness must be according to law. To emphasize this point it is noted that various provisions guaranteeing individual rights and freedoms in the Constitution provide limitations and/or qualifications for the exercise and enjoyment of these rights and freedoms (located as follows: Basic Rights, ss 32 – 33; Fundamental Rights, ss 35 – 36; Protection of the Law, s 37; s 38 General Qualifications on Qualified Rights; Rights of all Persons, ss 42 – 49; and Special Rights of Citizens ss 50 – 58). Reason for these limitations and qualifications is pretty obvious as a reproduction of s 32 hereunder amply demonstrates:

32. Right to Freedom

(33) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(34) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that –

(a) does not injure or interfere with the rights and freedoms of others; and

(b) is not prohibited by law, and no person –

(c) is obliged to do anything that complies with provisions of paragraphs (a) and (b).

It is only stating the obvious to note that elections are very important and popular events. They raise very high expectations in ordinary people in both rural and urban areas, so much so these days with the increasing awareness of the seemingly untold benefits that can flow from the results of those. High expectations both for the voters (with their power of the ballot box) and possible direct beneficiaries, the nominated candidates, of the results of those elections.

It is important to the candidates for two possible reasons or motives. Firstly, as a genuine concern for and about the welfare and interests of the voters, the electorate. Thus, a selfless desire to be a channel, a conduit, for the provision of needy social services and the injection into the electorate of equally needy economic activities and development. Secondly, there are the purely personal considerations. Success at the polls may be the realisation of a dream, an aspiration, to reach the highest echelons of the national political leadership. Thus, it can be an achievement to enable one to reap the personal benefits of such a position or status.

No disrespect to the parties before me is intended at all in stating a fact of political life that this Constitutional process, through the provisions of the Organic Law once every 5 years, has the potential to foist onto national and international prominence, to the dizzy heights of powerful national leadership, one from relative obscurity, from humble roots. A leadership position that necessarily attracts the possession and exercise of enormous powers, as well as the enjoyment of certain material benefits and privileges not normally available or accessible to ordinary citizens. There is the power to make or unmake laws that affect the lives and interests of ordinary citizens. Power to decide policies and strategies as to what direction the country should be heading, how it should be governed, by whom and for what reasons or purposes. The power to decide the fate of ordinary people, as to their health, safety and lives, not to mention their social and economic well-being.

The terms and conditions of such leadership status and positions are comparatively over-generous. But, once again, the law must have a final say on this. The enjoyment of the material benefits is restricted by law as to the duration of the benefit or enjoyment. And it is 5 years, the life of a Parliament. But it should be noted also that by the operation of other laws (both ordinary and Constitutional) such enjoyment or benefit can be prematurely terminated. Hence the very high stakes involved.

Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered as, such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild, sensationalist, unmeritorious and unsustainable allegations. And these are by their very nature no substitutes for facts to be properly pleaded according to s 208 (a) Organic Law. Needless to say, the mere complaint of a losing candidate afflicted with "sour grapes" is not sufficient; it is no substitute for "material and relevant facts" as required. To employ the ordinary civil law language, it must be a complaint or grievance that is "actionable"; that is to say, the allegation must be capable of being sustained, being proven by legal and credible evidence, that there is a cause of action.

Thus the insistence by the Courts that the complaint, the allegations in a petition, be well-grounded in both law and facts. Mere allegations, generalised assertions, do not make them facts pleaded upon which a Court can begin to exercise jurisdiction over. What these are capable of doing, however, is to call into question the reputation and integrity of certain people who may not be enabled to properly defend themselves with a view to re-establishing their good names, characters and reputations.

This Court has an onerous and serious Constitutional duty and obligation to apply and enforce the laws of this country. The Organic Law under consideration before me is such a law. The duty and obligation are directly in consonance with the judicial oath which, amongst other things, enjoins and directs each and every judge to "uphold the Constitution and the laws of the Independent State of Papua New Guinea and do right to all manner of people in accordance therewith, without fear, favour, affection or ill-will".

Except in very limited situations recognised (and authorised) by the Constitution itself, Judges do not make laws (nor unmake them). Members of Parliament do. Leaders such as Mr Tiensten now, and Mr Koimanrea before him, have the authority of the people under the Constitution to make and unmake laws. If the judges began to ignore the stated laws of the country, or applied them selectively to cater to particular individual, sectional and political views, acceded to their wishes or whims, as Mr Koimanrea urges me to do here, there would be an understandable public uproar, outcry, nation-wide, against their dereliction of Constitutional duties, amongst many other misconducts. We would certainly be unfaithful to our judicial oaths. It is for this that I must note here and emphasize that this Court as constituted by myself does not come to decisions lightly.

This Petition was drawn up and filed by legally qualified persons pursuant to instructions given, presumably as to the circumstances surrounding both the campaign and polling periods of the election in question.

The Petition

The petitioner Mr Francis Koimanrea hails from Palmalmal, Pomio District of the East New Britain Province. The first respondent, Mr Alois Sumunda, was the duly appointed Returning Officer for the conduct of the elections in the Pomio Open electorate pursuant to the provisions of the Organic Law (ss 19 and 20). The second respondent is the Constitutional authority appointed (established) and empowered to "organise and conduct all elections for the Parliament and the legislative arms of the Local-level Governments," pursuant to ss 125, 126 and 187C of the Constitution and ss 5 and 15 Organic Law. The third respondent is the incumbent Member of Parliament (MP) for the subject electorate, having been declared as such on 5 July 2002 following the general elections in question, pursuant to s 25 (2), Division 5 (Part XIV) ss 168 and 169, and Part XVI (The Return of the Writs) s 175 (1) pursuant to ss 73, 76 – 80 (Writs for Elections) of the Organic Law.

The third respondent polled a total of 4,588 votes to come first whilst the petitioner came overall second with 3,842 votes, a difference of 746 votes.

Polling in the electorate took place between 15 June and 3 July 2002. Following the declaration (supra) and the return of the Writ pursuant to ss 168 and 175 of the Organic Law, Mr Koimanrea filed his petition as required on 14 August 2002 pursuant to s 206, disputing the validity of the election and return. In the process the petitioner duly complied with the statutory and procedural requirements such as payment of the filing fee (Rule 4 of the National Court Election Petition Rules for Presentation and Conduct of Election Petitions 2002, hereinafter the Rules) and the deposit as security on costs (s 209 Organic Law and Rule 5 of the Rules).

In his petition Mr Koimanrea lists a total of nine (9) grounds to challenge the election and return. These can be conveniently categorised into two (2) main headings: AA. Errors and Omissions on the part of the first and second respondents; and BB. Undue Influence committed by the third respondent. Thus, nine (9) specific allegations are made as constituting incidents or events/circumstances supportive of the petition.

The Objections

By notice of objection filed 11 October, 2002 the third respondent challenges the competency of this petition. The basis of this objection is that in all of the nine (9) grounds relied on to dispute the validity of the election and return, the petitioner fails to comply with the mandatory requirements of s 208 (a) Organic Law. The provision is in the following terms:

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).

As noted already, the first and second respondents support the objections on the same basis. The first seven (7) allegations (under Ground AA of the petition) allege "Errors and Omissions by the first and second respondents". The next two (2) allegations (under Ground BB) allege "Matters of undue influence committed by the third respondent". It is not intended to reproduce in this discussion every single allegation and its corresponding objection verbatim. These appear on record as formal documents filed with the Court.

The errors and omissions alleged under paragraph AA (1) relate to "truck loads of voters" being transported to five (5) named polling booths (or places) within the Sinivit Local-level government (LLG) area. It is alleged that these voters were transported in vehicles "engaged and organised by or on behalf of the third respondent and another leading candidate", and that the first and second respondents "committed serious errors and omissions" by allowing the transportation to take place and such voters to vote when they were not resident of the LLG area.

It is the further allegation that such people were allowed to vote "not under their own genuine names but under the names of their friends, relatives and acquaintances. . ."

The objection taken to these allegations is that facts material and relevant to the allegations are not pleaded as the law under s 208 (a) Organic Law insists. That is to say, the specific dates and details of the alleged transportation are not pleaded as facts material and relevant. The names of person who organised the vehicles on behalf of the third respondent, number and identity of voters voting when not enrolled or otherwise disqualified are not pleaded as required. And as a ground based on errors and omissions on the part of the first and second respondents, how such errors and omissions were or are alleged to have affected the result of the election are not pleaded as required also.

The errors and omissions alleged under paragraph AA (2) relate once again to errors and omissions against the first and second respondents by their allowing "underage (sic) voters and others to cast votes in the names of those who have died". It is the contention of the respondents in support of their objection that the ground raises "a general and vague complaint". As such it fails to specify the number and names of the under-age voters. Moreover, it is contended that the petitioner does not plead, as required, as to how the results of the election was or would have been affected by such errors or omissions.

As with the last preceding ground, the respondents say that the ground raises issues relating to the correctness of the Common Roll, and that s 214 Organic Law prohibits the Court from inquiring into this.

Ground AA (3) alleges tampering with or of ballot papers, the specific error or omission being allowing such interference on the part of the first and second respondents. It is alleged that a ballot box, No. ENB 0035, containing ballot papers for five (5) named polling places was opened and all ballot papers "removed and put on the ground to dry and left that way overnight". This "error or omission" on the part of the first and second respondents is alleged to have resulted in tampering. To this the respondents say that this is mere supposition failing to plead facts material and relevant, leaving them to "wonder as to how the results of the election are affected".

Ground AA (4) alleges that the appointment of certain officials to be electoral officials constituted errors and omissions on the part of the first and second respondents when these officials "had conflicts of interest". The objection to this is based on the fact that the Organic Law does not make any provision for the voiding of an election because of the appointment of a certain official. And how such appointment affects or would affect the result of the election is not pleaded as required.

Ground AA (5) of the petition contains allegations that raise, once again, issues relating to the correctness of the Common Roll, inquiry by the Court into which is specifically prohibited by s 214 Organic Law. The ground also fails to plead facts to show how the result of the election was supposed to have been affected.

The petitioner's ground AA (6) alleges errors and omissions against the first and second respondents by or in "allowing the campaign cards of the third respondent to be carried openly into polling booths at the time of voting". The respondents object that this allegation is unclear and ambiguous in that it contains "mere suspicions and assumptions", in that no names of persons displaying the cards are pleaded. Nor is it pleaded by material and relevant facts the authority of the third respondent for such activity. Once again it is not pleaded as to how the result of the election was affected by such activity.

Ground AA (7) of the petition alleges non-compliance with electoral procedures and directions. It relates to ten (10) identified ballot boxes that the first and second respondents are alleged to have committed errors and omissions over "by so manifestly mishandling the lawful election procedures directions and processes generally that of the total of the 26 ballot boxes in the electorate the results of 10 ballot boxes are firmly disputed by the petitioner . . ." (sic).

In their objection the respondents describe the allegation as general with no pleading of facts as to which directions and procedures were not complied with, and, further, how these would have affected the results of the election. Finally, it is contended that the allegation does not contain details of the alleged mal-administration relied on.

In respect of the grounds dealing with undue influence and bribery (BB), ground BB (i) alleges that the third respondent and or his agents widely distributed his political party membership cards to potential voters and induced them to vote for the third respondent by advising them that if the third respondent won, the cards would be redeemable for cash at a bank. This ground thus alleges bribery and undue influence. The objection of the respondents is that the ground fails to plead facts material and relevant, specifically as to dates, places, names of alleged agents (of the third respondent), names and number of people intended to be induced and bribed. Nor is the element of intention to bribe pleaded in the ground. Moreover, no facts are pleaded as to the third respondent's knowledge and or authority in relation to the distribution of the cards.

Finally, on this ground, it is the respondents' contention that the petition does not plead facts as to when and how the redemption value was said to be valued at the sum of K10,000.00, and the identity of the person or persons who are alleged to have made this offer of inducement.

The last ground, BB (ii), alleges that the third respondent and or his agents threatened and intimidated a large number of supporters of the petitioner in the voting areas covered by polling teams 4, 10, 11 and 12. The respondents object to these allegations and say that they are very general, and fail to plead facts as to the alleged crime committed by the third respondent or his agents, the date and place of the offence. Similarly, the names of people allegedly intimidated and threatened, and the nature of these intimidations and threats.

Dr Nonggorr counsel for the first and second respondents spoke to his detailed and written submissions and well-compiled case authorities in support of the objection by the third respondent. Learned counsel emphasized the consistency in the upholding of the mandatory requirements of s 208 Organic Law by the courts. Thus, he submitted that facts pleaded as required must be facts capable of invalidating an election, and, that here firstly, certain facts had not been pleaded, and, secondly, that those allegations that tended to disclose facts were or had not been sufficient to invalidate the election.

In respect, generally, of the allegations of errors or omissions on the part of the first and second respondents, it was the contention of counsel that, whilst failing to plead facts material and relevant as required, the petitioner had not pleaded how these allegations were said to have affected the result. The Court, therefore, could not come to any conclusion about the result on nothing, as it were. Mere allegations were not enough, Dr Nonggorr submitted. Dates, places, names and number of people had to be pleaded as facts, just as such details of the alleged perpetrators had to be with specificity.

The petitioner's response

As adverted to, in the general comments (supra), Mr Koimanrea's submissions were directed at urging the court to ignore or go behind or around the law, the well-established consistently applied principles in order to do justice to him. It was his contention that the 40 days limit for filing a petition was harsh, unfair and discriminatory (to petitioners such as himself from remote electorates), arguing that an extended time limit would have enabled him to comply with s 208 Organic Law. That is to say, if more time had been available he would have been able to have access to the remote parts of the electorate to gather "sufficient facts" to comply.

Nevertheless, it was his submission that the petition contained enough facts "to have the petition given a fair trial". The limited time was relied on also to explain why he was not able to amend the petition. But as the petition stood, Mr Koimanrea submitted that his witnesses had "filed statements of facts" which divulged information upon which the Court could grant him an opportunity to be heard so that "justice will be done".

It was the petitioner's contention that s208 Organic Law was discriminatory in that it denied him his s206 right to challenge the validity of the election of the third respondent. In this respect, he referred to and relied on s214 Organic Law, suggesting the Court had power to inquire into his allegations. It was his submission that if the court "continues to apply s 208 people of Papua New Guinea will never have the right to be heard".

Section 217 Organic Law was referred to and relied on also, urging the court to do "real justice". And Mr Koimanrea suggested this would be achieved if "proceedings (sic) are relaxed because justice must be seen to be done". He characterized the objection to competency and its reliance on s208 as putting "a cart before the horse" (sic) when the allegations could not be proven without a trial.

The Law

I have had the benefit of helpful and exhaustive submissions from learned counsel for the three respondents on the law's requirements under ss208, 209 and 210 Organic Law. I have also had the opportunity, as adverted to already, of hearing the passionate views of Mr Koimanrea, a former legislator, on what he perceives to be the proper relationship between these laws, more particularly s208(a) Organic Law, and the fine concepts of justice and fairness.

As both learned counsel readily and properly acknowledged, the judicial attitude to and interpretation of these provisions are not in doubt at all. The enunciation and application of these principles have been consistent and without qualification since the Supreme Court's authoritative decision in Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342, where, at page 346, it declared the law.

In our view, it is clear that all requirements of ss208 and 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on Elections is a Constitutional Law. Section 210 simply precludes any proceedings unless ss208 and 209 are complied with. In our opinion it is beyond argument that if a petition does not comply with all the requirements of s208 of the Organic Law on National Elections then there can be no proceeding on the petition because of s210.

Before this there had been the National Court decision of his Honour Miles J in Ipe v Napas [1981] PNGLR 128, dealing with identical provisions (to ss208, 209 and 210) in the Provincial Government (Electoral Provisions) Regulations 1977 (as applied to Southern Highlands Province). His Honour stated the mandatory nature of those requisites of a petition.

In relation specifically to the s208 (a) Organic Law requirement, it is to be noted that this provision in fact contains two requirements: firstly, that the petition shall set out the facts, and, secondly, that these facts must be sufficient to invalidate the election or return. These facts need to be simple, clear and capable of disclosing matters that are material or relevant in order to invalidate the election or return. In the subsequent Supreme Court case of Holloway v Ivarato [1988] PNGLR 99, Kapi DCJ (with whom Los and Hinchliffe JJ agreed) enunciated the principles as to facts in the following terms:

The facts which must be set out under s208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.

A host of Supreme and National Court election petition cases have consistently applied these principles (for example, Siaguru v Unagi & Electoral Commission [1987] PNGLR 372; Thompson v Pokasui & Electoral Commission [1988] PNGLR 210; Mond v Okoro & Electoral Commission [1992] PNGLR 501; and Agonia v Karo [1992] PNGLR 463.

In relation specifically to allegations of errors and omissions relied on as grounds of a petition, the law requires that facts must be pleaded to show the nature of these errors and omissions. It must be emphasized that errors and omissions do not automatically void an election. Thus, even if these are established by evidence, it must be shown (by pleading and proving facts) that the result or results would have been affected. The court must be satisfied that the result of the election is likely to have been affected and that it is just that the declared winner (respondent) be declared not to be so duly elected. This is the only way an election can be vitiated on the grounds of errors and omissions on the part of electoral officials: Paua v Ngale & Ors [1992] PNGLR 563; see also Torato v Electoral Commissioner [1988-89] PNGLR 83; and Re Baiyer Mul Open Parliamentary Election [1977] PNGLR 496.

When allegations of undue influence and bribery are made in a petition, these constitute allegations of criminal offences as well as electoral offences. Since the case of In re Menyamya Open Parliamentary Election, Neville Bourne v Manesseh Voeto [1977] PNGLR 298, the law requires undue influence and bribery (ss 102 and 103 Criminal Code Act respectively) to be pleaded and proven as criminal offences. That is to say, firstly, that all the constituent elements of these two offences be pleaded (according to s 208 (a) Organic Law) in the grounds of a petition, and secondly, proven or established in evidence by the criminal standard of proof, proof beyond reasonable doubt. See, Agonia v Karo [1992] PNGLR 463; Karo v Kidu (Unreported N1626 of 9/10/97); and Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).

To emphasize these requirements it is convenient and instructive that the definition of these two criminal offences in the Code should be reproduced hereunder. Section 102 reads as follows:

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

(a) 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.

Section 103 is defined in the following terms:

102. Bribery

A person who –

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind –

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on any account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(a) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(b) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(c) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in paragraph (a), (b) or (c) (sic) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(d) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(e) is privy to the transfer or payment referred to in paragraph (e) that is made for his benefit; or

(f) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors.

is guilty of a misdemeanour.

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

As criminal offences (supra), allegations of these misdemeanours must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence. If any element of the offence alleged is omitted or not pleaded, then the facts have not been pleaded as required by s208 (a) Organic Law, rendering the allegation liable to be struck out.

Finally, on these two grounds, it needs to be emphasized that it is a necessary element for each that the person (or persons) alleged to be the subject/object of the undue influence or bribery must be an elector (or electors), eligible and registered (enrolled) as such. Needless to say, one cannot influence unduly or bribe (or attempt to do these) a person who is not eligible to or cannot vote.

In relation to allegations of illegal practices, there are three types of these covered by s215 Organic Law. Firstly, sub-s (1) covers the situation of bribery and undue influence committed by the successful candidate. Second is that alleged to be committed by a person other than the winning candidate but with his knowledge or authority (sub-s (2)). The third situation concerns any other type of illegal practice, including those defined under the Organic Law (for example, under s178), committed by any one including the successful candidate himself: sub-s (3). To prove the s 215(3) allegation(s), the Petitioner needs to plead as required and satisfy the court according to the required standard the following:

· the illegal practice the subject of the complaint; and

· the illegal practice other than bribery or undue influence committed by the successful candidate; or the illegal practice (including bribery and undue influence) committed by another person but with the knowledge and authority of the winning candidate, and

· the result of the election is likely to be affected by the illegal practice; and

· it would be just that the winning candidate be declared not to be duly elected or the election be declared void.

In his submissions Mr Koimanrea made references to and relied on ss214 and 217 Organic Law as supporting his repeated pleas for the petition to be allowed to be tried. Section 214 is in the following terms:

214. Inquiries by Court

The National Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.

This provision does not assist the petitioner in the way he thinks it does. It is relevant here only to operate against him where he disputes or challenges the correctness of the Common Roll to suggest persons not on the Roll were allowed by the first and second respondents to vote, or, indeed allowed under-age voters and others to vote in the names of deceased persons. In any case, the inquiry envisaged here would take place only after there has been due compliance with s208 Organic Law.

Section 217 provides as follows:

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

I agree with both counsel for the respondents that s 217 is not relevant here. The Supreme Court in Delba Biri v Bill Ninkama (supra) declared that this provision applies only in the trial of an election petition, not where the competency of a petition (and hence a challenge to the jurisdiction of the court) is taken as a preliminary issue. The unanimous decision of the court (at page 346) says:

It is clear that s 217 of the Organic Law is relevant only when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only.

The Supreme Court quoted with approval a passage in the judgment of Kapi J (as he then was) in the National Court case of Mapun Papol v Antony Temo & Electoral Commission [1981] PNGLR 172. His Honour was considering the equivalent and identical provision in relation to a Provincial Government election under the Provincial Government (Electoral Provisions) Regulation (as applied in the Southern Highlands Province, s193). The extract (page 180) is in the following terms:

However, in my view, this provision is not applicable in considering the preliminary point raised here. This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss 184 and 185 of the Regulation (as applied) (s 184 is in somewhat similar terms to s208 Organic Law, and there for similar purpose). This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of the merit. To read s193 of the Regulation as applicable to this preliminary point is to bring it in conflict with the intentions of s 186 (identical to s210 Organic Law). These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statutes that an Act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another.

Subsequent cases have interpreted and applied s217 Organic Law in similar fashion: see Michael Badui v Bart Philemon [1992] PNGLR 151; Mond v Okoro & Electoral Commission [1992] PNGLR 501; Raymond Agonia v Albert Karo [1992] PNGLR 463; and Vagi Mae v Jack Genia (1992) unreported N1105.

Conclusion

Now, applying the law as stated in the foregoing discussion to the allegations in the petition and the objections as to competency that the respondents have raised in respect of these, it is the judgment of this Court that the petition is incompetent for the various defects and deficiencies that have been advanced as grounds for the objection, and constituting non-compliance with the mandatory requirements of s 208 (a) Organic Law. I am satisfied that the grounds of the objection or challenge to the competency of each of the allegations under the two main headings (Grounds AA and BB, supra) have been well demonstrated. There is no need for me to retrace those here. The law is clear, the allegations of the petition speak for themselves.

The mandatory requirements or requisites of a petition are not intended to be complied with subsequent to the filing of a petition pursuant to s206 Organic Law. The Supreme Court pursuant to a

s18 (2) Constitution reference from the National Court in Holloway v Ivarato (supra) gave its interpretation on what "facts" under s208 (a) Organic Laws mean. These are "material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated . . ." The Court said further that the requirement did not mean the evidence by which it or they might be proved (see also: Mond v Okoro & Electoral Commission, supra). The purpose of such pleading under s208 (a) Organic Law was stated to be "to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved".

Section 210 in no uncertain terms lays down the law as to when the National Court can exercise jurisdiction over disputes or allegations arising from national general elections. If s 208 (a) is not strictly complied with, this Court has no jurisdiction to decide on the validity or otherwise of an election or return, or the other mandatory requirements under s208 (b) to (e) inclusive. Likewise if the monetary security for costs (of the petition) as required by s 209 Organic Law is not deposited according to Rule 5 of the Rules, then, there will strictly be no petition for consideration and determination by the court.
Under the circumstances it is the judgment of this court that the petition being incompetent, the court has no jurisdiction to consider and determine the validity or otherwise of the election or return in the Pomio Open parliamentary elections in 2002.
The objections of the respondents should be upheld, and I do so, with the following formal and consequential orders:

1. The petitioner's allegations contained under paragraphs AA1 (i) to (vi) inclusive of the petition, purportedly to constitute grounds of errors and omissions on the part of the first and second respondents be struck out as incompetent.

2. The petitioner's allegations contained under paragraphs AA 2 (i) and (ii) inclusive, purportedly to constitute grounds of errors and omissions in the petition on the part of the first and second respondents be struck out as incompetent.

3. The petitioner's allegations contained under paragraphs AA3 to AA7 inclusive of the petition, in purported pleadings of facts to constitute grounds of errors and omissions on the part of the first and second respondents be struck out as incompetent.

4. The petitioner's allegations contained under paragraph BB8 (BB(i)) of the petition, in purported pleading of facts to constitute undue influence and bribery on the part of the third respondent be struck out as incompetent.

5. The petitioner's allegations contained under paragraph BB9 (BB(ii)) of the petition, in purported pleading of facts to constitute undue influence and bribery on the part of the third respondent be struck out as incompetent.

6. The petition registered as EP No. 1 of 2002 ENBP, in all its constituent parts and aspects is hereby and consequently struck out with costs.

7. The law being that the costs of litigation generally follow the event, and that the event here being the upholding of an objection to the competency of the election petition and the consequent striking out of such, (rather than a dismissal if the court had embarked upon the consideration and determination of the merits or otherwise), and that costs are matters of discretion for the court, the petitioner pays to the three respondents their respective costs of and incidental to the preparation of their respective defences to the petition and the prosecution of their objections.

8. In respect of the last preceding order, the K2,500.00 security for costs deposited pursuant to Rule 5 of the Rules be paid to the three respondents in equal shares, and that any balance outstanding on their respective costs be taxed if not agreed upon.

Lawyers for the petitioner: Warner Shand Lawyers.
Lawyers for the first and second respondents: Nonggorr & Associates Lawyers.
Lawyers for the third respondent: Stevens Lawyers.