Mond v Okoro, Tualir, and Electoral Commission; Re Sinasina [1992] PGNC 99; [1992] PNGLR 501 (30 November 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 501 - Ludger Luker Mond v Kerenga Ben Okoro, Leo T Tualir, and Electoral Commission; Re Sinasina-Yonggamugl Open Electorate 

[1992] PNGLR 501

N1123

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND DISPUTED RETURNS FOR THE SINASINA-YONGGAMUGL OPEN ELECTORATE; LUDGER LUKER MOND

V

KERENGA BEN OKORO, LEO TUALIR AND THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Waigani

Sakora AJ

30 October 1992

30 November 1992

ELECTION PETITION - Application to strike out petition - Alleged failure to comply with s 208 of the Organic Law on National Elections - Alleged failure to set out "facts" relied on for the petition - Meaning of "facts".

PRACTICE AND PROCEDURE - Interlucutory application - Facts to be pleaded in ground by petition - No need to set out the evidence - Facts to be provided given normal meaning - National Court Rules O 8 r 8.

Facts

This is a preliminary application in respect of the validity of the election and return of the Sinasina-Yonggamugl Open Electorate for the 1992 national elections. The respondents applied to have the petition struck out for non-compliance with s 208 of the Organic Law on National Elections, in particular, that grounds 5, 6 and 7 of the petition do not contain or demonstrate sufficient facts to support the allegation contained in the petition.

Held

N1>1.       There is sufficient factual basis to support the petition.

N1>2.       The particulars and details insisted upon by the respondents are, in fact, the evidence necessary to establish the allegation.

N1>3.       The applications by the respondents to have the petititon struck out for non-compliance with s 208 of the Organic Law on National Election are not entertainable.

Cases Cited

Papua New Guinea cases cited

Biri v Ninkama [1982] PNGLR 342.

Holloway v Ivarato [1988] PNGLR 99.

In re Simbu Provincial Election [1983] PNGLR 28.

Siaguru v Unagi [1987] PNGLR 372.

Thompson v Pokasui [1988] PNGLR 210.

Torato v Electoral Commissioner [1988-89] PNGLR 83.

Mae v Genia (1992) unreported N1105.

Other cases cited

In Re The Norwich Election Petition, Birkbeck v Bullard (1886) 2 TLR 273.

J T Stratford & Son Ltd v Lindley [1964] 2 WLR 1002.

Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 QBD 127.

Prince v Gregory [1959] 1 WLR 177.

Counsel

D Lambu, for petitioner.

P Niningi, for first respondent.

J Bray, for second and third respondents.

Cur adv vult

30 November 1992

SAKORA AJ: The petition, the subject of this preliminary application, has been brought pursuant to s 206 of the Organic Law on National Elections (OLNE) disputing the validity of the election and return of the Sinasina-Yonggamugl Open Electorate in this year's general elections. The seat attracted a total of 47 candidates, with the petitioner, Mr Ludger Luker Mond, being the runner-up. He received 1450 votes, which was 82 votes less than the winning candidate, Mr Kerenga Ben Okoro, who polled 1532 votes.

The petition has a 2-pronged attack on the election and result: firstly, it disputes the result on the grounds that the election was not conducted and concluded properly by the third respondent, in that the electoral officers were guilty of errors and/or omissions and/or illegal practices, and, secondly, that the first respondent committed certain illegal practices.

The grounds of the petition appear at paragraphs 5, 6 and 7, set out in the following manner:

N2>"5.      The petitioner is not accepting the election results on the grounds that the election was not conducted and concluded properly by the second and third respondents themselves and through their agents and servants who committed a number of actions, errors and omissions which are both illegal and improper which in whole affected the overall election result. The particulars of these illegal and improper actions, errors and omissions which the petitioner relies on to invalidate the election are as follows:

(a)      The second respondent, unlawfully allowed a Second day of polling at Dumun polling place on the 23rd June, 1992 to allow some 350 persons whose names were not on the electoral roll by using a typed list which was not officially prepared by the third respondent as a supplementary electoral roll.

(b)      The second respondent during the counting wrongly declared 243 informal votes contained in Ballot Boxes 0564 and 0565 formal, by initialling them at the back. Most of these votes were for the first respondent.

(c)      The second respondent did not account for more than 2,000 cast ballot papers and yet he went ahead and declared the first respondent as the winner.

(d)      The second and third respondents did not make any declaration in public and the public does not know when and where the declaration was made.

N2>6.       On 29 June, 1992, the first respondent forced himself into the counting room and threatened and intimidated the counting officials as a result of which the counting officials were under pressure to ensure that he obtained more votes than the other candidates through irregular means and this resulted in the counting not being scrutinised properly up to the time of declaration.

N2>7.       Whilst the first respondent was in the counting room as referred to in the preceding paragraph, he also interfered with the counting process."

There is no pagination of the petition.

When this petition last came before Sheehan J on 23rd October 1992, a compulsory conference was scheduled one week hence. It was indicated then that the respondents would apply to have the petition struck out for non-compliance with s 208 of the OLNE. Such an application was made before me, and I reserved my decision till now.

Counsels advised the Court at the outset that they were appearing by consent of the parties, thereby complying with ss 211 and 222 of the OLNE. All three counsels made detailed submissions on the pertinent law, supported by well-canvassed case law in this jurisdiction.

The law is now well settled in this jurisdiction as to the essential elements of an election petition filed pursuant to s 206 OLNE. Firstly, the statutory provision under s 208 reads as follows:

N2>"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 within 40 days after the declaration of the result of the election in accordance with Section 176(1)(a)."

As if the mandatory nature of each of the requirements, illustrated by the use of the imperative term "shall", needed further emphasis and elaboration, we have s 210 stating in no uncertain language that a petition will not proceed and be entertained if the requirements of both ss 208 and 209 (deposit as security for costs) are not duly complied with. This was accorded judicial blessing by the Supreme Court in the case of Biri v Ninkama [1982] PNGLR 342 at 345 where the unanimous joint judgment said:

"In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with."

The Court went on to state that the right to dispute an election is given by statute, and that the OLNE gives no power to dispense with any of the s 208 requirements, not even s 217, which enjoins the Court to 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". The Court placed s 217 in its proper perspective when it declared at p 346 that the provision becomes relevant when the Court comes to determine the merits of the petition and when dealing with the evidence before it as relevant to the merits. It said that the provision is only procedural, thus it cannot be used to qualify either s 208 or s 210.

The Court described the rationale behind the mandatory nature of the s 208 requirements in the following terms at p 345:

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficult to see why. An election petition is not an ordinary cause [In Re The Norwich Election Petition, Birkbeck v Bullard (1886) 2 TLR 273], and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority." (italics mine).

It re-emphasised that it was beyond argument that, if a petition does not comply with all of the requirements of s 208 of the OLNE, then there can be no proceedings on the petition because of s 210. The undoubted and strong authority of this case has been acknowledged and adverted to in later National Court decisions such as Siaguru v Unagi [1987] PNGLR 372 (per Bredmeyer J) and Vagi Mae v Genia (1992) unreported N1105 (per Sheehan J).

In the application before me, the respondents say collectively that the petition should be struck out for failure to comply with s 208(a) OLNE. The respondents' overall submission is that the various grounds under paras. 5, 6 and 7 relied upon by the petitioner do not contain or demonstrate facts as required.

The provision requires the petition to contain the facts relied on to invalidate the election or return. It should be noted that the provision does not say "particulars" of facts nor "evidence" of the facts. It merely says "facts". These terms do not connote special meanings here. In their ordinary everyday use "particulars" means details or detailed accounts, "facts" means occurrence of events or things, and "evidence" means the information tending to establish or disprove facts (The Concise Oxford Dictionary, 5th ed.). In law, the distinction between these 3 terms, as illustrated above, is maintained, as a discussion of the case law soon will demonstrate.

What can be said to be the underlying reason for a provision such as s 208(a) OLNE? To attempt an answer, we must begin with the proposition found in Biri v Ninkama (supra) that an election petition is no ordinary cause. In an ordinary, say, civil cause, the procedural requirements under the National Court Rules would come into operation, and, more particularly, the requirements of the often long-drawn-out pleadings would apply. His Honour Woods J referred to the necessity for provisions such as s 208(a) OLNE in the following manner in Torato v Electoral Commissioner [1988-89] PNGLR 83 at 85:

"Under an Act and procedure where there is no requirement for pleadings and an emphasis on limiting the use of lawyers, the allegations must be more specific and therefore set out the details of the alleged malpractice, where, and when and what they are."

The purpose of pleadings in civil actions is to ensure that the scope of the dispute between the parties is defined with some precision. Every party is thereby made aware of the case to be made by his opponent, and his preparation for the trial can be directed to the actual controversy. They are intended to inform each party of the case he will have to meet at the trial, and to inform the court of the issues for adjudication. And pleadings require the parties to plead facts in support of a claim or defence. Facts must be specifically alleged so that the opposite party is not surprised. Certain rules of pleadings such as notices and time limits come into play also to ensure parties do not attempt "trial by ambush" (Bernard C Cairns, Australian Civil Procedure, 2nd ed. 1986, 96). See also Bredmeyer J in Siaguru v Unagi (supra) at p 373).

The basic requirements of pleadings are that they must contain in summary form a statement of all material facts relied on but not the evidence by which they are to be proved, and not propositions of law. These then ought to define the issues between the parties clearly and precisely, giving the opposite party fair notice of the case he has to meet. It is, therefore, not a device for parties to indulge in what has been called the "Particulars Game", under which each party seeks to open up the case of his opponent by requesting further and better particulars, so as to compel his opponent to reveal as much of his case as he possibly can (Jack Jacob, Sir The Reform of Civil Procedural Law and Other Essays in Civil Procedure, 1982, 73).

Pleadings of facts put parties on their guards telling them what they will have to meet when the case comes on for trial. This prevents "surprise at the trial" (per Cotton LJ in Philipps v Philipps [1878] UKLawRpKQB 96; (1878) 4 QBD 127). They show, or ought to, on their face whether a reasonable cause of action or defence is disclosed (Prince v Gregory [1959] 1 WLR 177).

The statement of claim in a writ of summons sets out in detail the facts which the plaintiff alleges in support of his claim. The purpose of this document is to make clear to all concerned on what grounds the plaintiff bases his case, and to warn the defendant of the allegations which he must prepare to meet. Every material fact must be specified, for the plaintiff will not be permitted at the hearing to make any allegation of which his opponent has not been given notice. He need not refer to the evidence by which he will seek to prove his allegations, provided the facts alleged are sufficient, if found to be true, to entitle him as a matter of law to succeed in his action.

In an election petition, the long-drawn-out pleadings do not take place. As alluded to earlier, such a petition is not an ordinary cause. He requires any legitimate allegations contained therein to be considered and determined with circumspection, but judiciously and expeditiously, for what Bredmeyer J said in Siaguru v Unagi (supra) at p 373 were "some high sounding principles" that the Supreme Court decision in Biri v Ninkama (supra) was based on. Moreover, the National Court Rules do not apply to election petitions. This was positively declared by the Supreme Court in the following manner:

"In our view, the National Court Rules can have no application to election petitions. The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court." (Biri v Ninkama (supra) at p 348).

A more recent restatement of this view is to be found in the Supreme Court decision in Thompson v Pokasui [1988] PNGLR 210 dealing with request for particulars. See also Mae v Genia (1992) unreported N1105, per Sheehan J. Of course, s 217 OLNE, which enjoins the National Court to observe real justice without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence, is supportive of the view, even if only tangentially.

Therefore, the OLNE under s 208(a) requires the petitioner to set out on the body of the petition the facts that he relies upon to invalidate the election or return. What this requirement means and entails are well illustrated in the following decisions. In Siaguru v Unagi (supra), Bredmeyer J said that for the purposes of s 208(a), the petitioner must state not only the grounds upon which he relies, such as bribery, undue influence etc., but the facts upon which they are based in the same manner as material facts might be pleaded under the National Court Rules, O 8 r 8.

His Honour went on to say at p 374 that:

"...I believe the law in Papua New Guinea is that you have to state not only the grounds like bribery and undue influence but the facts upon which they are based ... the pleadings shall contain a statement in summary form of the material facts on which the petitioner relies but not the evidence by which the facts are to be proved."

This case was approved and adopted in the Supreme Court case of Holloway v Ivarato [1988] PNGLR 99. The unanimous decision of the Court was contained in the judgment delivered by Kapi DCJ, with Los and Hinchliffe JJ concurring.

It was held there that the "facts" which must be set out under s 208(a) OLNE are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and enable the Court to see with clarity the issues involved.

The learned Deputy Chief Justice then went on to elaborate further by saying at p 101 that:

"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the grounds upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated."

His Honour also reached the same conclusion as Bredmeyer J did in Siaguru v Unagi (supra) and emphasised that, in pleading the material and relevant facts, the petitioner need not plead or set out evidence which would go to prove the ground(s). Moreover, those facts "must be sufficient so as to indicate or constitute a ground..." (p 101 italics mine). What are sufficient facts depend on the facts alleged and the grounds those facts seek to establish (p 102).

It follows, therefore, that an election petition, by its very nature and because of the existence and requirements of s 208(a) OLNE, as demonstrated in the foregoing discussions, cannot allow and involve long-drawn-out pleadings as in an ordinary cause under the National Court Rules, nor allow particulars (further and better or otherwise) to be supplied as noted by Bredmeyer J in Thompson v Pokasui (supra, p 211), with whose judgment both Cory and Hinchliffe JJ concurred. The facts must be set out, therefore, in adequate detail or else the respondent is entitled to seek to have the petition struck out. This is, of course, similar to the situation with a statement of claim in an ordinary civil cause which fails to disclose a reasonable cause of action, either by being so vague that it is impossible to discover what story the plaintiff will tell, or by containing so many irrelevancies as to prejudice a fair trial. In either of these cases, the respondent may apply to have the statement of claim struck out.

Now, to deal with each of the heads of grounds relied upon to support the petition, in the order they appear in the petition. Paragraph 5, as noted previously, alleges instances of electoral "errors and/or omissions and/or illegal practices" on the part of electoral officials which affected the result to the detriment of the petitioner. I shall proceed in the order Mr Bray, counsel for the second and third respondents, dealt with these allegations.

PARAGRAPH 5(A)

Mr Bray submits that paragraph 5(a) should be struck out because not one of the 350 persons is identified in any way, nor is it alleged that any one of these persons voted for the "second respondent" (he probably means first respondent here because the second respondent was the returning officer). It is further stated that no particulars are given as to the names of the persons involved in using the typed list which was not officially prepared. No facts are alleged which point to the list not being officially prepared. What we are left with, Mr Bray contends, is an unparticularised assertion with no facts which, if proved, could give it the effect the petitioner desires. In any case, it is argued, s 117 of the OLNE comes into immediate play to prohibit such a challenge.

Mr Lambu, on the other hand, submitted that there is more in that paragraph than mere and general allegations. He said that if the petition merely alleged that due to the errors and omissions of the second and third respondents or their servants and agents, more people voted than allowed under the electoral roll, then that would certainly justify striking out.

I agree with Mr Lambu's submission on this. More and better information in the form of facts in adequate detail are furnished in the paragraph. The date, place and number of people (whose names were not on the roll) are indicated. The wrong thing that was done or omitted to be done which the petitioner complains of is described with clarity and specificity, in my opinion. Sufficient facts are contained and demonstrated here to enable the second and third respondents to properly prepare their responses. So much so that Mr Bray, on their behalf, can come up with the alternative s 117 argument. The 350 people that Mr Bray says should be named in the petition under this paragraph really need not be named at all in order for the respondents to know what exactly are the allegations they have to meet and consider how to meet them. In any case, their names, it is alleged, were not on the roll.

In respect of the s 117 argument, Mr Lambu says that the situation alleged under paragraph 5(a) is not one envisaged by this provision. Section 117 reads as follows:

N2>"117.   Election not open to challenge

An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of s 114, or of a variation or a departure from a polling schedule."

Implicit in the allegation is the fact that the second day of polling was not necessary. It was not justified for the reason that no duly enrolled voters remained after the first day of polling to warrant rescheduling an extra day to enable access and opportunity for them. It is alleged these 350 voters were unqualified voters since their names did not appear on the roll. It is contended by Mr Lambu that what was done was not in aid of further legitimate polling, which would understandably fit into the protection (from disputing) accorded by s 117. I am persuaded by Mr Lambu's argument here. The upshot of all this, in my opinion, is that sufficient facts are provided by paragraph 5(a) to enable the second and third respondents to come forward with this argument.

Mr Bray said also that no particulars of these 350 people who voted for the first respondent or for any other candidate were supplied in the petition. The Supreme Court decision in Thompson v Pokasui (supra) takes good care of this submission. In any case, such information would have been available to all parties concerned during the counting period. The point here, though, is that these 350 people were alleged to have been allowed to vote when not duly qualified to do so; that is the crucial issue, and I find no ambiguity or vagueness or insufficiency in the facts available.

I decline, therefore, to strike out the allegations contained in this paragraph.

Before I proceed with the next paragraph of allegations under attack from the respondents, I should make mention of something which appeared to me to be the recurring feature of the submissions of the 2 counsel for the respondents. And this concerns what I consider to be, or to have been, confusion or misapprehension on their part as to the distinction between facts constituting grounds for petition, and the evidence necessary to prove those grounds. The foregoing discussions of the pertinent case law together with counsel's submissions on the various heads of allegations (already dealt with in respect of the one and to follow in respect of the others) illustrate and emphasise this confusion or misapprehension. For example, Mr Niningi had to cite an English case, J T Stratford & Son Ltd v Lindley [1964] 2 WLR 1002, to find comfort from Lord Denning's definition of "intimidation" to emphasise his point about the need, according to him, to describe in the petition itself the nature and extent, etc. of an alleged intimidation. Mr Bray's confusion of or misapprehension about the requirements of s 208(a) OLNE has been demonstrated already by his insistence on "particulars" in his submissions on paragraph 5(a) in the face of the Supreme Court decision in Thompson v Pokasui (supra).

PARAGRAPH 5(B)

Mr Bray attacks this paragraph as providing inadequate particulars in that the time(s) at which votes were dishonestly initialled are not given here. Nor are the dates. Moreover, it is argued, over what period of time the illegal practice occurred has not been indicated or specified. It would seem to me, when this paragraph is read against the background of the pertinent case law and the well-known rules and principles of pleading in ordinary causes, that the second and third respondents want the evidence on the alleged illegal practices to be set out here.

Mr Lambu's submission is that sufficient facts are pleaded in the paragraph to enable the second and third respondents to meet the allegations. He says the law on this aspect is quite clear, that it is wrong for the returning officer to initial ballot papers in the counting room; that is the responsibility of the presiding officer at the time of polling. The 243 informal votes, he says, constitute quite a large number indeed when compared with the 83 (sic) votes that was the difference between the petitioner and the first respondent.

Without concerning myself with the merits or otherwise of the petition, it would appear to me that the paragraph is quite clear as to when the alleged error or illegal practice took place. It is alleged it occurred during counting. Secondly, the petition describes the nature and number of votes in question, identifying from which ballot boxes. Moreover, it alleges the act complained of, which is wrongly initialling the ballot papers on the back. In my judgment, the allegation and the supporting facts have been adequately pleaded, and could not be any clearer or more specific. What else or more is necessary short of divulging the actual evidence at this juncture?

I decline also to strike out the allegation contained in this paragraph.

Before I embark upon the next contested paragraph of allegation, I must refer to and deal with the final point in Mr Bray's submission on this paragraph. This relates to the suggestion that the "illegal practice" alleged here was not committed by the first respondent nor has it been alleged that it was committed with his knowledge and or authority. I am then referred to s 215(3)(a) OLNE, which was considered by Andrew J in In re Simbu Provincial Election [1983] PNGLR 28, wherein the opinion was expressed that the provision was not qualified by the proviso that follows s 215(3)(b). It will assist if I set out hereunder the provision in full:

N2>"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."

It is suggested by Mr Bray, therefore, that since s 215(3)(a) has been interpreted to mean that the National Court shall not declare that a person returned as elected was not duly elected or declare an election void if the illegal practice was not done with the knowledge or authority of the candidate, the Court does not have to go so far as to consider the proviso that follows immediately after s 215(3)(b), i.e. "... unless the court is satisfied that the result of the election was likely to be affected ...". It is further suggested in this regard that if I were of the contrary view, that is, that the proviso or the qualification does apply and, therefore, the Court should consider if the result was likely to be affected, the Court is obliged to consider also if it is just that the candidate should be declared not to be duly elected.

The first point to be made in respect of these suggestions and the brief analysis that followed of the likely effects of the 243 informal votes is that there appears to be some confusion or misapprehension about the Court's role at this juncture, upon an interlocutory application. The Court is not concerned at this stage with the merits or otherwise of the allegations that have been preferred to dispute the election and result, which function would directly entail considering and assessing the evidence produced. There has not been, nor is this, a trial proper. Thus, I need not be considering s 215 at this stage.

The second point is that if the Court had properly reached the stage where it was necessary to consider the meaning and implications of the provision, more particularly of s 215(3)(a) and (b), I would be inclined to the view that both parts of the provision ought to be read together. Otherwise, in my judgment, the provision would make no sense at all if (a) were read in isolation, from (b). Secondly, when read together, it would be my view that the proviso or qualification that follows (b) would apply to (a) as well.

This conclusion, I suggest, is supported by the use of the conjunctive term "or" between s 215(3)(a) and (b). Otherwise, it would make good sense to use the other conjunctive term "and". The use of "or" there connotes the intention that the National Court shall not make either of the declarations under s 215(3) based on either of the two grounds described under (a) and (b) unless the Court is satisfied that the result of the election is 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.

Finally on this point, my conclusion is further supported by noting the fact that electoral officials can and do commit errors and/or omissions which are capable of rendering an election void. And they do these, more often than not, without the knowledge and or authority of a candidate. But the Court is enjoined by s 215(3) not to make either of those declarations unless the proviso contained under and at the concluding part of the provision is satisfied. It should be noted here also that the proviso or qualification appears, from or by its location, to be part and parcel of the entire subsection (3) and not exclusive to (3)(b). Otherwise, why did it not continue immediately after the term "influence".

PARAGRAPH 5(C)

The allegation contained herein is attacked on the basis of vagueness. It is submitted that more facts need to be known about the alleged "2,000 cast ballot papers". The petitioner says that these were not accounted for, meaning that they were neither accepted as valid votes for allocation nor declared informal. They were not considered and dealt with.

For the reasons outlined, and supported by authoritative case law, in the foregoing discussions, I consider that there is insufficient factual basis for the allegation. I, therefore, strike out this head of allegation.

PARAGRAPH 5(D)

It is submitted by Mr Bray that the allegation contained in this paragraph should be struck for failure to comply with s 208(a) OLNE. He says that the petitioner needed to have indicated the result allegedly flowing from the errors or omissions complained of. Section 176 OLNE requires the returning officer to make a public declaration of the result of the election after ascertaining the result. Section 178 provides for extension of time to return the writ, such extension to be granted by the Head of State, acting on the advice of the Electoral Commission. And s 79 provides as follows:

N2>"79.    Date of return of writ.

The date fixed for the return of the writ shall not be more than 21 days after the end of the polling period."

I have noted arguments for and against the application to strike out this paragraph of allegation. It would seem to me that whether or not any one of these provisions is or all are mandatory and with what effect, if any, are all matters best left for submissions on law at the trial of the petition. Concerned as I am now only with whether or not sufficient facts are provided in the petition itself to support the allegation(s) in the way our Courts have said they must, I would have to rule here that paragraph 5(d) as presently constituted suffices.

I decline, therefore, to strike out this paragraph as sought by Mr Bray.

PARAGRAPHS 6 AND 7

I will deal with these 2 paragraphs jointly because similar arguments were levelled against them and because the allegation in the latter directly followed, and was an extension of, the incidents complained of in the former.

The gist of Mr Niningi's argument on behalf of the first respondent was that the use of terms such as "forced", "threatened", "intimidated" and "interfered" in these 2 paragraphs merely described, by way of summary or conclusion, the act(s) complained of. He submitted that more and better facts with specificity and particularity, needed to be furnished. It would appear from that submission that the first respondent would need to know the nature and degree of the use or application of each of those acts complained of. And, as adverted to previously, Mr Niningi sought comfort and support for this line of argument from the definition of "intimidation" offered by Lord Denning in the English case cited, as an illustration.

What Mr Niningi says the petition needed to include under these 2 paragraphs in order to comply with the requirements of s 208(a) would seem to me to demonstrate what I said earlier about counsel for the respondents being confused or misapprehensive about those requirements.

It would seem to me that the particulars and details counsel insists upon here are, in actual fact, the evidence necessary to establish the allegations. Considering the contents of these 2 paragraphs against the background of the requirements of law as declared by our Courts, I conclude that sufficient factual bases have been demonstrated in the petition supporting each of the allegations under the 2 paragraphs. What Mr Niningi has done in attacking the use of those terms referred to above has merely been to try to overstretch what appears to be the plain everyday meaning of the words. He thereby presented, in my opinion, an exaggerated picture of what is actually required under s 208(a) OLNE.

In the end, I decline to strike out paragraphs 6 and 7 of the petition.

Costs are awarded in favour of the petitioner in defending the petition against the applications to strike out.

Lawyers for the petitioner: David Lambu and Associates.

Lawyers for the first respondent: Pila Niningi.

Lawyers for the second and third respondent: Pato Lawyers.