In the Matter of The Organic Law on National and Local-Level Government Elections; Karo v Kidu [1997] PGNC 128; N1626 (9 October 1997)

Unreported National Court Decisions

N1626

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 7 OF 1997
BETWEEN
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS 1996
AND
IN THE MATTER OF A DISPUTED RETURN IN A GENERAL ELECTION FOR THE MORESBY SOUTH OPEN ELECTORATE IN THE NATIONAL CAPITAL DISTRICT
BETWEEN
IN THE MATTER OF ALBERT KARO - PETITIONER
AND
IN THE MATTER OF LADY CAROL KIDU - FIRST RESPONDENT
AND
IN THE MATTER OF THE ELECTORAL COMMISSION - SECOND RESPONDENT

Waigani

Injia J
7 September 1997
9 October 1997

ELECTIONS - Parliament - Petition disputing election - Grounds in a Petition - Allegations of bribery and undue influence - Application to strike out - Failure to comply with S. 208 (a) of the Organic Law on National and Local-Level Government Elections (OLNE) - Whether facts ial or relr relevant - Whether pleading of evidence permitted - OLNE, S. 208 (a).

ELECTIONS - Parliament - Petition disputing election - Attestati Petition by witness - Address of witness - Provision of&#1of wlace and postal address oess only - Whether sufficient compliance with “Address” requirement in OLNE, S. 208 (d).

ELECTIONS - Parliament - Petition disputing electionlegations of bribery, undueundue influence, illegal practices, errors and omissions - Application to strike out - Appearance of counsels - Two different Respondents - Electoral Commission and Winning candidate as Respondents - Different counsels appearing for each Respondent - Whether one counsel can represent both Respondents - OLNE, S. 222 (2).

ELECTIONS - Parliament - Petition disputing election - Grounds in a Petition - “Illegal acts” committed by polling officials - Polling officials failed to allow scrutineers into polling area - Whether failure constitutes “Illegal practice” under OLNE, S. 215 or “errors and omission” under OLNE, S. 218.

ELECTION - Parliament - Petition disputing election - Grounds in a Petition - Polling schedule - Variation of - Date not altered but time changed - Whether election open to challenge - OLNE, S. 117.

Cases Cited

Bourne v Voeto [1977] PNGLR 298

Papol v Temo [1981] PNGLR 178

Biri v Ninkama [1982] PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Poia v Valai N 909 (1990)

Badui v Philemon [1992] PNGLR 451

Agonia v Karo [1992] PNGLR 463

Counsel

M Wilson for the Petitioner

R Kubak for the First Respondent

DL Datoana for the Second Respondent

9 October 1997

INJIA J: These proces relate to theo the election of the First Respondent as the new member for the Port Moresby South Open Electorate in the National Parliament on 21 June 1997. e election, the First nden ndent polled 3906 and the Pthe Petitioner polled 2266, a difference of 1640 votes. The election was cted by t by the Second Resnt.

The two Respondents in this election petition haon have filed separate motions seeking to strike out various grounds of thition for failing to comply with inter alia S. 208 (a) and and (d) of the new Organic Law on National and Local-Level Government Elections No. 3 of 1997, (hereinafter abbreviated OLNE), and other relevant provisions of that Law. Before 15 March 1997, thetlaw that prevailed was the Organic Law on National Elections (OLNE). With the passing of the Pcovincial Government and Loevel Government reform laws, the OLNE was passed by the National Parliament in March 1997 a997 and it came into force on 9th April 19160; However, the two laws in most respects are similar.&#1r. Fstance, except for a few few changes, Part XVIII Division 1 (S. 206-227) of this new Organic Law which relates to disputed elections and returns is almost identical to Part XVIII (S. 206-227)he old Organic Law.

>

These motions to strike out the grounds of the Petition are filed in accordance with practice developed by this Court in the past in respect to previous National elections. The National Courtentertaiertained such applications and in some cases struck down election petitions filed under S. 206 as offending the mandatory provisions of OLNE, S. 208.&#1hese applications are made by the Respondent(s) at the prel preliminary stage referred to as “compulsory conference”. In the past, many election petition cases have come before the National Court some of which have ended up in the Supreme Court.

The principles relating to the Court’s scrutiny of election petitions at a preliminary stage have been settled by the Supreme Court in two cases namely, Biri v Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99. The provisionsLNE applicablicable to preliminary applications and considered by the Supreme Court are Ss. 208, 209, 210 and 217 which provide:

“208. REQUISITESETITION

A

A petition shall:

(a) #160; ҈ set oe fthe facts rcts relied on to invalidate the election or return; and

(b) ҈ fyecie rthe relief lief to which the petitiolaimse ent; and

(c) &#160  be0; be siby a candidate aate at the election in dispute or by a person who ualifo votthe elee electionction; and; and

(d) &&#160atte ted bted by two two witnesses whose occupations and addresses are stated; and

(e) ;ټ be file filed in t in the Registry of the National Court at Port Moresby or at the court house in any Provincial headqus wit0 days after the declaration of the result of the election in accordance with Sech Section tion 175 (1) (a).

209. & DEPOS SECURITYURITY FOR CFOR COSTS

At the time of filing the petition the petitioner shall deposit with the Registrar ofNatioourt the sum of K2,500.00 as security for costs.

210. ҈ NO0; NO PROC PROCEEROCEEDINGS UNLESS REQUISITES COMPLIED WITH

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

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.”

The Supreme Court in Biri v Ninkama, decided that an “electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to S. 206 of the Organic Law on National Elections must strictly comply with each and every requirement of S. 208 of that Law” (at p. 346, underlining is mine). At p. 345, the Suprourt unrt unanimously decided that “all the requirements in S. 208 and 209 must be complied with. Section 208 is in tory anms and being the Organic Law on National elections, it is a Constitutional Law.&#16. Sectionsimply precludes anes any pdings unless S. 208 and S. 209 are complied with. If “a petities not cnot complcomply with all the requirements of S. 208n there can be no proceedings on the petition because of S.of S. 210” (at p. 345). The applicaof S. 217 is &#is “onlevant when the National Coal Court determines the merits of the case and when dealing with evidence before it as relevant to the mer8221; (at p. 346), that is, when the substantive petition iion is heard. Section 217 does not aat t at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of S. 208.

In Hollo Ivarato, the Supreme Court considered the meaning of the wthe word “facts” in S. 208 (a). Although the Supreme Coud did not refer to the principles enunciated by the Supreme Court in Biri v Ninkama, the Court did interpret S. 208 (a) strictl60; Kapi, Dep. CJ with whom Los, J and Hinchliffe, J agreed said at p. 101:

“T220;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.” (My underlining).

litt little later at p. 101 His Honour said:

“I conclude that S. 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence ich those facts are to be p be proved.” (My underlining).

As to s to what are sufficient facts, His Honour said at p. 102:

“Setting out grounds without more does not satisfy the requirement of S. 208 (a)... What are sufficient fdepends on the facts allegelleged and the grounds those facts seek to establish. Anything falling shf that that would defeat thle purpose of pleading, that is, to indicate clearly the issues upon which the opposing parg party may prepare his case and to enableCourt to be clear about the issues involved.”

>

The Supreme Court’s decision in the above two cases have been used by the National Court to strike down election petitions at the preliminary or “Compulsory Conference” stage. To begin with, the Supreme Court in Biri v Ninkama was of the view that the Petition which did not contain the signatures of attesting witnesses failed to comply with s. 208 (d). In Badui lemon [1992] PNGL PNGLR 451, the National Court struck out a petition which failed to provide the address of the two attesting witnesses. In Agonia v Karo [199GLR 46LR 463, the National , Sheehan, J presiding, str, struck out an allegation which simply stated “(a) on date approximately one month before scheduleding, the First Respondent personally handed a cheque for K2or K200.00 to an individual at the Kaugere Settlement a Womens Fellowship Group, for no particular purpose”. Sheehan, J said:

“8220;As was submitted, there are simply no facts here that even approach a ground of bribery. The ‘individualis7; is not named, nor is there any identification of him a, male or female. Was; Was she was er or elir eligible voter in the electorate? Did he/she reside agere Sere Settlement?& Was he/she a member of a Wf a Women’s Fellowship Group and if so, which women’s group? Thereo allegation that thet the was given as a inducement to interfere with the proper conr conduct of the election. In fact it wasn ‘for6;for no particpurpose’.”

As with previous National Coul Courts, I am bound to apply the principles laid down by the Supreme CourBiri v Ninkama and Holloway v Ivarato.

The First Rest Respondent objects to clauses 4.1 - 4.2, 5 and 6 and 9.1 of the Petition. The Second Respondent ob tcts to clause 7, 8, 9, 10 and 12 of the Petition. Clause 11 (ularities and dand discrepancies sighted during polling and counting) is not objected to by either of the Respondents.

1. PRELIMINARY OBJECTIONS(a) OLNE, S. 222(2) - Not More Than One Lawyer For A PartyParty

A preliminary objection was raised by counsel for the petitioner, Mr Wilson, under OLNE S. 222(2) that the lawyer for the First Respondent, Mr Kubak, should not make submissions on matters relating to the Second Respondent because to do so would breach the mandatory requirements of S. 222 (2) which provides that “In no case shall more than one counsel appear on behalf of a party”. It was alsoitted that the the allegations in the Petition against each of the Respondents were distinct and separate and each counsel should confine himself to those allens levelled against his client. I ruled in favour of r of the objection because S. 222 (2) was in clear and mandatory terms and also the allegations made against each respondent were distinct and separate. If the facts allagainst onst one respondent intricately connected with with the other respondents, then I would have allowed counsels to make submissions in respect of both resnts. eg. allegations of bribery or undue influence by a pola polling official acting as agent for a winning candidate. Conseque I required Mr Kubr Kubak, to confine himself to the allegations levelled against his client in clauses 3 - 6 and counsel for thond Respondent, Mr Datoana, to confine himself to clauses 7-10 and 12 which related to his his client, the Second Respondent.

(b) OLNE, S. 208 (d) Residential Address

The Second Respondent also objects to the attestation by one witness, Mr Allan Mahuru, at the end of the Petition where he fails to provide his “residential” address and only provides his work place and postal address. Inort, I have been referreferred to several previous cases such as Raymond Agonia v Albert Karo and the Electoral Commission [1992] PNGLR 463, Delba Biri v Ninkama [1982] PNGLR 342, Badui v Philemon [1992] PNGLR 451, and Papol v Temo [1981] PNGLR 178. In Agv Karo, Sheehan, J at J at p. 465 said:

“The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accory, I believe that thet the address requirement of the subsection is that an attesting witness should state his normal residentiaress. The adequacy of that addrhss, however, might well be determined by a witnesses&sses’ personal circumstances, but it should be the best succinct description available. In a large it may requirequire a street address or even Section, Lot number and Suburb. In the case of a ger, simp simply his village.”

In my view, OLNE S. 208 (d) simply requires an 0;address”. Sec; Section 208 (es not rnot require a residential address. I agree with Sheehan8217;s217;s statement f the purpose of S. 208 (d). I would alsoe with His Hons Honour that the requirement to specify the “residential address&#8221a Petition may depend on the “personal circumstances&nces” of the witness. In my view, S (d) should buld be looked at as a whole. If by the name, occup, wor, work place and postal addresses of the witnesses stated in the petition collectivelyer it possible to easily identify and locate the witness, tss, then it is not necessary for the witness to give his residential address. For example, in the present case, Mr Mahuru’s address is:

Allen Mahuru

Administrative Officer

Motu-Koita Assembly

PO Box 81

KONEDOBU

National Capital District

If one were looking for Mr Allen Mahuru, then it would not be difficult to locate him. One would simall in at thet the office of the Motu-Koita Assembly at Konedobu during working hours and ask for its Administrative Officer, Mr Allen Mahuru.

In the present case, I am of the view thataddress given in the Petitietition sufficiently complies with OLNE S. 208 (d).

2. OBJECTIONS RELATING TO CONDUCT OF THE FIRST RESPONDENT ONLY

The Petitioner objects to clause 4.1. of the Petition which alleges bribery and undue influence by the First Respondent “either by herself or by her supporters directly or indirectly”. In clause 4.1, it is al thed that the “First Respondent”, in the presence of 2 of her supporters, gave Michael Namba, an elector, money in e and cash in the sum of K1,5000.00 and some smokes and bettlenuts and said words to the efhe effect that she was giving K1,500.00 for him to share it among hiplpeople and “they must vote for me”. Mr Kubak submhat this alle allegation is totally false, scandalous, frivolous and vexations and should be struck out. He asks me to considerdaviidavits of various witn that he has filed on behalf of his client to determine thee the truth of this allegation.

Mr Wilson submits that the allegati bribery is clear enough and should remain and proceed to t to trial. He also submits that the ourt should not consider the affidavit evidence because they should be considered at the trial proper in the light of evidence the Petitioner will produce at tial.

I agree with Mr Wilson’s arguments. #160; At treliminary stage,tage, when the Court is considering whether the Petition complies with the requirements of s. 208 and s. 209, there is no consideration of the evidence involved. For thison, use to strike rike oute out clause 4.1 of the Petition.

This is the only allegation in the Petition which relates to the t involvement of the First Respondent. The next set of allegatiels relate to the invo involvement of the First Respondent’s committee members, agents, etc.

3. OBJECTIONS RELATING TO FIRST RESPONDENT’S COMMITTEE MEMBERS, AGENTS, ETC.

The allegations in clin clause 4.2., clause 5 and clause 9 of the Petition relates to the actions of one Mr Diroa Doriga, Bill Skate (and his wife) and Bebema Kamema respectively.

3.1 Objections Relating Diroa Doriga

The allegation in clause 4.2. is stated as follows:

“4.2 turdah Jute 199e 1997 at a at about 5.30 pm, Mr Diroa Doriga, who owns the land at Vanama Settlement, and who was a campaign committee member for the First Respondent, went to that part of Newknownimbu ement aent and thnd threatereatened the people there of eviction if they did not vote for the First Respondent, and thereby coerced them to vote for the First Respondent. Mr Peter Kora, an ele vote voter and a resident of that Settlement took note of Mr Doriga’s threats which were spoken in words to this effect:

‘Graun yupela sindaun long en, emi blo mipela ol mna sapos yupela ino givim vvim vot long Lady Kidu, mipela bai rausim yupela long hia.’

Translation:

‘The land which you are living on, belongs to us motu people, if you do not give your vote to Lady Kidu, we will remove you all from here.’

Because of these unlawful and threatening words, Michael Namba, Peter Kora and other people of the Vanama Settlement who would have voted the Petitioner were unduly coerced to vote for the First Respondent in fear of being removed.”

Clause 13 of the Petition also is relevant to clause 4.2. Clause 13 alleges that &;B220;By virtue of the attempted bribery and attempted undue influence...specified in this humble Petition, the result of the said election for the Moresby Soutctorate was affected and such election should be declared vred void”.

Mr Kubak submits that there is no connection between the actions of Diroa Doriga and the First Respondent because it does not say if he was “authorized” by the First Respondent to say and do those things. Mr Wilson submits the Cour Court should infer that because he was the First Respondent’s “Campaign Committee member”, he was authorized to say and do those things by the First Respondent.

8220;(1) If the Nat Coult finds thas that a candidate has committed or ator attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) ҈ p>.(3

(3)&#160 ـ The Nat onal Court ourt shall not declare that a person returned as elected was not duly elected or declare antion

)ټ&##160;; on the the grounground of d of an illegal practice committed by a pe a person rson otherother than the candidate and without the candidate’s knowledge or authority; or

(b) ټ on the 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 eln wasly toffectedected, and that it is just that the candidandidate sate should be declared not to be duly elected or that the election should be declared void.”

The effect of Section 215 (1) & (3) is as follows. An ion will be voided for for illegal practices of bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candida160; In such case, it is not necessary for the Petitioner tner to show that the result of the election was likely to be affected. Likewise, under s. 215 (3) (a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate, in which case, it is also not necessary for the Petitioner to show the likelihood of the election being affected. An electio be declared void void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the know or other authority of the winning candidate provided the Cthe Court is satisfied that the result of the election was likely to be affected.

The facts pleaded in clause 4.2 is that Diroa Doriga was a member of the First Respondent’s “Campaign Committee” and that he did or said those things in that capacity. In my view, factsting to m to matters requiring proof prescribed by the OLNE cannot be left to inference in a Petition. They must be specificalladpleaded, not left to infe. It requirement of S. 215 (215 (3) to specifically plly plead whether the bribery and undue influence, in the present case by irst ndent’s Committee members, was committed wied with or without the authority or knowlenowledge of the First Respondent. Thading of this requiremenrement would clarify the exact basis under S. 215 (3) (a) or (b), under which the election is being soug be voided. By failing to pleade relevrelevant or material facts as to knowledge or a or authority of the First Respondent, it creates confusion between S. 215 (3) (a) and (b).

Also reading clause 13 together with clause 4.2, the former speaks of “attempted undue influence” whereas the latter speaks of actual undue influence, thereby aggravating the confusion between S. 215 (3) (a) and (b).

For these reasons, I strike out the whole of clause 4.2 as offending S. 208 (a) in conjunction with S. 215 (3).

3.2 Allegations Against Bill Skate and His Agent

The allegations set out in clause 5 and 6 relate to Mr Skate. The allegatiover four (4) (4) pages in the Petition. In clause 5, the Petit givr gives a detailed account of moneys given by Mr Bill Skate to various Church Groups and words spoken in order to unduly influence them not to vote for the ioner but to vote for the First Respondent. In clauselause 6, ttitionetioner sets out detailed accounts of conversation between Mr Bill Skate and various eligible voters suggesting some form of bribes and threatening words aimed at terminating certain jobracts which they had with tith the organization Bill Skate was heading, the National Capital District Commission (NCDC).

The First Respondent’s counsel submits that there is nothing in the facts to connect Mr Bill Skate’s actions to the First Respondent, Mr Bill Skate himself being a candidate for the NCDC seat who was entitled to campaign among these people for himself. The facts alleged agaiill Bill Skate should be brought against him separately in an Election Petition against him which is pending before the National Court. The facts alleged again SkMr Skate are criminal in nature and Mr Skate has a constitutional right to be heard on these allegations. It is dangerous anrecedentedented to level allegations of a criminal nature at another winning candidateidate in an election petition against another winning candidate.

Mr Wilson for the Petitioner submiat the facts alleged againsgainst Mr Skate are proper in that they are alleged against him in his capacity as a supporter of the First Respondent who induly influenced voters to vote for the First Respondent. As Mr Skate isaffected by d by the relief sought by the Petitioner, he cannot be joined as a party to the petition and therefore, he does not stand to suffer any prejudice.In relation to clause 5.1 - 5.2., it is alleged that Mr SkMr Skate was a candidate for the NCDC Regional Seat of which the Moresby South Seat won by the First Respondent was a part of. In cl5.1-5.2, however, the, there is no reference to the First Respondent.

There are several references to the First Respondent in clause 5.3 Mr Skate is alleged to have uttered some words int of the some “eligieligible voters around there at the time in that village to vote for the First Respondent”. Alr Skate is said to have have said “I will make my in-laws vote for Lady Carol Kidu so Albert Karo will lose and you will s”. It is alleged these wotteruttered by Mr Skate were intended by him to undulynduly influence Messrs Isi Kevau and Puka Nou and eligible voters of their families not to vote for the Petitioner, a candidate of their choice, but the First Respondent, Mr Bill Skate’s choice.

In relation to clause 5.4, various sums of money are alleged to have been given out by Mr Skate in cheques to various Church Groups. It is alleged &#8220ill Skll Skate bribed eligible voters of members of the following Churches (mentioned) to influence them to vote for him for the National Capital District Regional Seat and Lady Carol Kidu, hididate, for the Moresby Souy South Open Seat”.

The allegations levelled against Mr Skate insofar as they relate to the First Respondent falls under s. 215 (3). The only connectinds here here between them are that the First Respondent was the “choice” or “candidate” of Mr Bill Skate and he was campaigning for both himself and her. But it dot sawhat was done done or e or said by Bill Skate was done with the knowledge or authority of the First Respondent. I strike oth cl5.3 and 5.4d 5.4 for the same reasons I struck out clause 4.2.

I also strike ouke out the whole of clause 6 of the Petitir the same reasons, that is, for failing to plead the relevant and material facts as to knoo knowledge and authority of the First Respondent in relation to the words uttered by Bill Skate. In, in clause 6, there is e is no mention at all of the First Respondent.

In the alternative, it is submitted by Mr Kubak that clause 5 and 6 should be struck out because they plead the ece and not the facts as reqs required by S. 208 (a) as interpreted by the Supreme Court in Holloway v Ivarato. In my view, the ations in s in clause 5 and 6 plead the evidence and not the facts. Even if some facts are pleaded, those facts are buried load evidence. This Court would havread tead the whole of clause 5 and 6 to work outk out for itself what the precise relevantaterial facts which support the ground of “undue infl influence and bribery cash” are. Tonstrate this point, I se I set out hereunder clause 6 in full:

“6. ҈ IDUEUENFLUENCE ANDE AND BRIBERY - CASH

6.1ټ On S, 11t 1997 1997 betweeetween 8.00 pm anpm and 9.00 pm, Mr Bill Skate sent a Mr Biri Dadi to invite Mr Isi Kevau oo hiser in#8217;s house to e to eye witness a presentation by him.

6.2 ; Mr I Mr Isi Kesi Kevau accu accepted the invitation because his daughter, Boio is married to Mr Bill Skate’s adopted son, Puka, who is also Mr Bill Skate’s brother in-law.

6.3;ټ Wh0; When Mren Mr Isi entu entered the common room, the following people were also in the room:

(a) ټ&#Rarua Srua Skate (ate (Bill Skate’s wife)

(b) ـ Kabua Nbua Nou (Bill Skate’s wife7;s s)

(c) &##160; Kore Edre Edea (Bilt Ska21’s Committemittee Chae Chairman)

(d) 0;ph titionerer’s 17;s potential supporter)

)

(

(e) Kero Kerowa’s 3 clansmen (Petitioner’s potenl suprs)(f) &#Russ Russel Siel Simon (mon (mon (Bill Skate’s supporter)

6.4 ټ Mr Sthen Mr Mr Ivau pointing to Mr Joseph Kero#8216;Do you know this man?’

When Mr Isi Kevau svau said, aid, ̵‘Yes6;Yes’, Mr Bill Skate said:

&;I cayou to eye witnesitness the presentation of Ten Thousand Kind Kina to Joseph Kerowa not to support Albert Karo any longer.’

6.5 ate then said to his wife:wife:

‘Rarua oi laso ruma dekenai ten thousand kina oi abidia bona sisia isedia rua.’

Translation:

‘Rarua you go to the house and get ten thousand kina and two dog’s teeth.’

6.6 ҈ g the shhe short wart waiting period, Mr Bill Skate was doing all the talking and saying words to this effect:

‘Ah, mi king blo ol Jiga (Joseph Kerowa’s clan), sapos mi tok yumi kilim wanpela man, yumi bai kilim stret, tru o fols?’

Translation:

‘I’m the King of Jiga (Joseph Kerowa’s clan). If we kill a man, we will will kill, that’s true or false.’

Mr Bill Skate also said words to this effect:

<216;I’m the King of Papua, whatever I say, will happen!’

6.7 #160;ـ Mru Rarua Skat Skate returned within 20 minutes and sat next to Mr Skate. Then she took out a brolkybulky envelope and placed it inside a white plasticping nd handed it to Mr Skate who said:

‘8216;You gYou give it to Joseph.’

Then Mrs Skate handed it to Mr Josephwa who shook hands with Mr h Mr Bill Skate. Mr Bill Skate then

‘Yu kam tumoro na kisim dok tit blo yu.’

Translation:

‘You come tomorrow and pick up your dog’s teeth.’

6.8 &#1r Joserowa then said:

‘OK em klostu kefiu taem, mipela bai go nau.’

Translation:

‘OK8217;ost c time, we are going now.’

6.9 After ther they lefy left,left, Mr Bill Skate turned to Mr Isi Kevau and said, words to this effect:

‘Lau na king of Papua, dahaka do lau hereva do ia vara inai Eleksin dekenai be d hereika ii, do ia gina gini, mai, ma daik daika do ia gini lasi, ia gini lasi.’

Translation:

‘I am king of Papua, whatever I say will happen during this Election, whoever I say will stand, that person will stand, and whoever I say will not stand, will not sand.’

6.10 Mr Bill Skate then eoint M to Mr Isi Kevau and said words to this effect:

‘I will terminate your contract and you will be poor again.’

6.11 When ate said thiMr Isau, sau, Mate gote got up a up and sand said words to this effect:

‘Kara haraga, ita daekau ruma dekenai, taunima nima haida idia .&#82p>

‘Hurry up, letet’s217;s go u go up to our house, there are some people waiting.’”

In my view, clause 6 breaches the “facts only and not the evidence” rule laid down by the Supreme Court in Holloway v Ivarato. The purpose of png only thly the relevant or material facts and not the evidence which constitute a ground is to indicate clearly to the Court and the opposing party the precise issues. To plead evidentiary ials ials in a vague and piece-meal manner as the present Petitioner has done in clause 6 is to leave the Court and the Respondents guessing as to what the precactual allegations are. This re in the Court havt havt having to waste precious time reading through pages of evidence, which in this case is runs for two (2)s. I60; It is not intended by OLNE S. 208 (a) and S. 210 that the Court should waste time reading through the material and working out for itself the precise relevant or material facts which may be buried in a load of eviden a petition. For ther these re, I strikstrike out clauses 5 and 6 of the Petition as offending OLNE S. 208 (a) as interpreted by the Supreme Court in Holloway v Ivarato.

3.3 Undue Influence by the First Respondent’s Supporter

In clause 9 entitled “undue influence by the First Respondent’s Supporter”, it is alleged that during polling at Gorobe polling place, Mr Bebema Kamena who is “a Committee member of the First Respondent, was seen by Mrs Rose Duaba telling a female elector, namely Kakanato Debewana, whose intention was to vote for the Petitioner but was persuaded to vote for the First Respondent”. Mr Kamena #8220;also seen seen trying to influence another elector namely, Isawato Bakumi. However, Mr Kadid not succ succeed and Isawato Bakumi voted for the Petitioner”. (My underlining).

is t is submitted by Mr Da that Clause 9 should be struck out because it fails to set out sufficient facts as to undu undue influence within the meaning of S. a) or (b) of the Criminal Code as decided by Frost, CJ in B in Bowne v Voeto [1977] PNGLR 298. at case, Frost, CJ held thld that undue influence in S. 215 of the OLNE (old OLNE), is to be given the same meaning as in S. 102 (b) of the Criminal Code, that must be shown “that a person by fraud prevented or o or obstructed the free exercise of fraud by an elector and...fraud does include a false a false statement made by a person to an elector” (p. 303). Alternati under S. 102 (a)2 (a) it must be shown that a person used or threatened to use on any elector any force or restraint to do temporal or spiritual injury or causriment of any kind at an election. I accept these prie principles enunciated by Frost CJ. Applthese principles to thto the facts of this case, the allegation simply that Mr Kamena told or influenced the other person to vote for the First Respondent to sy the requirementements of S. 208 (a) in conjunction with Sith S. 102 of the Criminal Code. Tha there is no reference ence to any force or threat used by Mr Kamena on Mrs Duaba and Mr Dakumi.

For these reasons, the whole of Clause 9 is struck out.

4. OBJECTIONS RELATING TO ALLEGATIONS AGAINST THE SECO SECOND RESPONDENT

4.1 Alteration of Polling Schedule and Polling Areas Without Adequate Publicity and Denial of Constitutional Right to Vote

Clause 7 of the Petition sets out a mixture of “facts” and “evidence” as to the alteration, by the Second Respondent, of polling schedules in various polling places in the Moresby South Open electorate which prevented a total of 1,104 eligible voters from voting in the election. It is alleged that tange inge in the time of the polling schedules on polling day on 16/6/97, were done by the Second Respondents without prior notification thereby causing confusion among eligible voters and resulting in eligible voters not turning up at the correct polling place or turning up at the wrong polling place at the wrong time. They allege that many voters were turned away because their names were either not on the common roll or were on the common roll but their names were placed b the wrong polling place.

At the outset, it is clear from reading the whole of clausclause 7 that the electors were previously notified that there was going to be a one day polling scheduled for 16 June 1997 and this date was not altered because polling was actually conducted on 16 June 1997. There is no facts ed to shto show if the polling times at different polling places on that day was also pre-fixed so that the times were altered thereby making it impracticable for eligible electors to vote at polling place at the specifpecified time. Therefore, insofar asse 7 se 7 purports to challenge any alteration as to polling schedule, both in date and time, it has no factual basis and should be struck out for this reason.

Alternatively, this Clausuld be struck out under S. r S. 117 which provides:

“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 Section 114, or of a variation or a departure from a polling schedule.” (My underl)

Mr Dato Datoana submits that clause 7 should be struck out as being not permitted by S. 117. He submits, as with otheriSections in the OLNE such as Ss. 208, 209 and 210, this se should be strictly appliedplied.

Mr Wilson submits that S. 117 should be read in the light of S. 113 - 115. It is submithat 7 operatesrates to baro bar election petitions from being brought on the basis that polling schedules had been changed when suchges were necessitated by justifiable and reasonable grounds such as bad weather, emergencieencies or other special circumstances (under S. 115). It is submitte117 “d220;does not authorize cancellation of a polling place or failure to adhere to the polling schedule to such an extent that eligible voters are prevented from voting at all” which in turn would have affected the result of an election: Poia v Valai N 909 (1990) at p. 10.

In Poia v Valai, Sheehan, J was interpreting S. 94 of the now repealed Provincial Government (Electoral Provisions) Regulations in the light of S. 90, 91 and 92 of that regulation which are the same (except for the use of the word electorate for constituency) as that of S. 113 - 117 of OLNE.

In my view, although the provisions under consideration by Sheehan, J in Poia v Valai are similar to those in the OLNE, I would be loath to apply his approach and reasoning to the present case because in the former, the provisions were in the form of regulations affecting a Provincial Government election, whereas in the present case, we are dealing with provisions of an Organic Law - a form of Constitutional Law, which deals with National Government elections. As laid down by the Supreme Court in Biri v Ninkama, in relation to S. 208, Section 117 must be strictly applied. In my vi. 117 is intended nded to cover all possible situations covby Division 1 of Part XIII (Ss. 113 - 116 inclusive). #160; This sects the last oast of Section 5 in Part XIII - (The Polling), ion 1. - Polling Schedule.&ule. The Sections are S. 113 (113 (Polling Schedule), S. 114 (Publication of Polling Schedule), S. Adherence to Polling Scheduchedule) and S. 116 (Appeal). Section 117ntended to cove cover all possible situations covered by the earlier situation spelt out in Ss. 113 - 116.

It is clear from S. 116 that Parliament intended that perceived difficulties ag from polling schedules shes should be administratively resolved and not in a Court of disputed returns. Section 116 gives a vthe rthe right to appeal to the Second Respondent 14 days before the commencement of a polling period, for an “order varyipolling schedule on the ground that it does not give to all electors in the electorate or i or in a part of the electorate a reasonable opportunity for voting in the election”.

The facts in the Petition allege that the polling schedule was advertised on 19 April 1997 but none of these electors lodged such an appeal. They turned up at thling ping places on the day of polling and complained about not being given reasonable opportunity to vote. Now the Petitioner s on thon that in an attempvoid the election. This is not permiby S. 117. 117.

Further, the facts and evidence alleged in the whole of clause struck out insofar as they plead the evidence and not factsfacts.

4.2 Violations of Electoral Laws by Polling Officials

Clause 8 entitled “Violation of Electoral Laws by Polling Officials” alleges that polling officials at Sabama - Bundilamp polling place and 2 Mile Memorial Hill polling place commenced polling some 2-3½ hours late instead of 8.00 am as previously scheduled thereby preventing many voters from casting their votes, or of those who voted, they allowed the wrong persons to vote under the names of different persons and that scrutineers were kept 10-15m away from the polling booths.

Mr Datoana submits that this clause should be struck out because it is vaguely worded and lacks relevant facts such as failure to provide date of polling, names of voters whose names were allegedly crossed out from the common roll, names of scrutineers kept out and the names of some 70 eligible voters who were turned away without casting their votes.

I accept this submission. In ion, clause 8 does not not specify which electoral law was violated by the actions of these officials. It is not in the ist oficestice to leave the Court and the Second Respondent guessing as to what the provisiovision breached might be. Where the ioneres on the bthe breach of statutory or constitutional duty by an electoral official, thl, then that provision must be set out beshe alleged facts: see Holloway v Ivarato, at p. 102.

For these reasons, the whole ofle of clause 8 is struck out.

4.3 Illegal Practices by Officials During Counting

In Clause 10 of the Petition entitled “Illegal Practices by Officials during Counting”, the Petitioner alleges that during the four days of counting, scrutineers of most of the candidates including the Petitioner’s scrutineers were made to stand 3-5 metres from the counting areas and therefore they were unable to conduct a proper scrutiny of the counting of votes. As alt, on the fourth day day of counting, all Scrutineers of all candidates except those of the First Respondent, Mr Bill Skate and Mr Bill Dihm, protested and boycotted the counting but the cou continued and the result oult of the election of the First Respondent announced in their absence. The Petitioner alleges that as a result, “the final figures declared for each candidate remains questionable”.

Mr Datoana submits that thause should be struck out because it fails to specify the “illegal practice” wi1; within the meaning of OLNE S. 178 and S. 105 and S. 106 of the Criminal Code.

Mr Wilson submits that the “illegal practice” pleaded here is a breach by the electoral officials of OLNE S. 151 (c) which provides that “all the proceedings at the scrutiny shall be open to the inspection of the scrutineers”. He submits an actrary to l to law is an illegal act and to not allow proper scrutiny as directed by S. 151 (c) comes within the meaning of an “illegal act”.

In my view, an “illegal pra” at an election is n is not the same thing as an “illegal act” at an election. The phrase “illegal practice” as used in S. 215 has a statutory definition given by OLNE, S. 178 (1).

The conduct of electoral officials o kind complained of in clause 10 of the Petition is not included in S. 178. Section 1ion 105 an of thef the Criminal Code (Ch. 262) also set out instances of “illegal practices” at an election but the conduct of the electoral officials complaif in this petition is also not included in those two sectioections. The actions complained of here in this Petition which are in breach of OLNE S. 151 (c) amounts to “an error of, or omission by, an officer” of the Electoral Commission within eaning of OLNE S. 218. They are of error or omis omis omissions constituting breach of S. 151 (c) in that they failed to perform their statutory duty in ensuring that the counting of the votes was sufficiently open to scrutineers.

In my view, clause 10 of the Petition as explained by Mr Wilson is misconceived in law and should be struck out.

4.4 Irregularities During Polling and Counting

In clause 12 of the Petition entitled “Irregularities during Polling and Counting”, the Petitioner alleges 10 instances of irregularities noticed by one of the Petitioner’s Scrutineer, namely Sevese Sarea. Exs of instances include &ude “the vote recorded of the Petitioner were obviously reduced during counting”, “onlormal votes displayed for inspection” and “requests for re-checking were compleompletely ignored”. In summary instances complcomplained of amounted to “careless attitude of counting” which resulted in there being “extras, as well as lost votes” and this in turn “greatly affected the final outcome come of the election result”: see clause 12.

It is submitted by Mr Datoana that this clause should be struck out because it fails to plead sufficient material facts such as which ballot boxes numbers, when, who, and the number of votes effected.

I agree with this submission. These allegations are too broad and vague in that they lack relevant and material facts referred to by Mr Datoana which would amount to a “material error or omission” sufficient to affect the result of an election to invalidate an election. Therefore, the whole of clause 12 should be struck out.

5. CONCLUSION

The end result of this ruling is that the allegations contained in clause 4.2 - 10 (inclusive) and 12 are struck out for failing to comply with OLNE S. 208 (a). C 4.1 also remains in the the petition. In addition clause 11 (ulaegularities and discrepancies sighted during polling andting) which has not been objected to by the Second Respondent remains.

Costs of thes these motions is reserved.

Lawyer he Petitioner: Warner ShandShand Lawyers

Lawyer for the First Respondent: Kubak Lawyers

Lawyer for the Second Respondent: Allens Arthur Robinson Lawyers