Mili v Gaima [1997] PGNC 194; [1997] PNGLR 645 (29 September 1997)

[1997] PNGLR 645

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

in the matter of THE ELECTION FOR THE KARIMUI-NOMANE ELECTORATE JOHN WEMIN MILI

V

SIMON PHILIP GAIMA; AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

GOROKA: WOODS J
18, 29 September 1997

Facts

The petitioner petitioned the Court of Disputed Returns disputing the validity of the results for the Karimui-Nomane Open seat in the Chimbu Province in the 1997 National Elections. The petitioner drafted his own petition in which he set out various allegations, which formed the basis for his petition. The respondents made an application to the court to have the petition struck out on the basis that the petition did not comply with the provisions of the Organic Law on National and Local-Level Government Elections.

Held

Whilst, in an election petition, there should not be overdue emphasis on legalities, pleadings and strict rule of law, the petition itself must clearly put all parties on appropriate notice of what the complaint is about. The facts on which the allegations are grounded must be clearly expressed.

Papua New Guinea cases cited

Agonia v Karo & Electoral Commission [1992] PNGLR 463.

Application of William Wii, unreported from July 1994.

Biri v Ninkama [1982] PNGLR 342.

Holloway v Ivarato [1988] PNGLR 99.

Counsels

S Wagaro, for the petitioner.
J Nonggorr, for the first respondent.
W Neil, for the second respondent.

29 September 1997

WOODS J. This is a petition disputing the validity of the election for the Karimui-Nomane open seat in the Chimbu Province in the 1997 National Elections. The respondents have moved the court to strike out the petition on the basis that the petition does not comply with the provisions of s 208 of the Organic Law on National and Local-level Government Elections.

Generally, the submissions raised by the respondents have been that the various clauses in the petition fail to specify the facts relied on to invalidate the election. As to what facts are required, that has been determined by the National and Supreme Courts in various cases, the main statements being in Holloway v Ivarato [1988] PNGLR 99, and the case Agonia v Karo & Electoral Commission [1992] PNGLR 463. And the principles outlined and highlighted in those cases are guided by the fundamental principles outlined by the Supreme Court in Biri v Ninkama [1982] PNGLR 342 which I will repeat here. This court, in acting under the Organic Law as what is often called a Court of Disputed Returns, is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the court sifts the complaints and report whether, on a balance of probabilities, the election can be considered satisfactory or whether a new election should be held. A Court of Disputed Returns has the duty of hearing and determining only those petitions, which challenge an election by specific charges that, if proved, will result in an election being set aside. As the Supreme Court said:

"The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with s 208. It is not difficult to see why. An election petition is not an ordinary cause...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 expressing of the will of the majority. In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s 208 of the Organic Law then there can be no proceedings on the petition because of s 210."

So what are the objections here?

There is some initial difficulty in that the petition itself seems to have been drafted by the applicant himself, not by a lawyer. This, of course, is in line with the suggestion in the Organic Law that petitions do not necessarily need the expertise of lawyers, see s 222 (1) which provides: "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." Since the petitioner drafted and filed the petition, he has obtained the services of a lawyer so now all parties are represented by counsel and leave has been given. However, s 222 of the Organic Law works two ways. Whilst there should not be overdue emphasis on legalities, pleadings and strict rules of law, the petition itself must clearly put all parties on appropriate notice of what the complaint is all about. Thus the facts on which the allegations are grounded must be clearly expressed so that there is no need for complicated applications for particulars.

I will now consider the various allegations made in the petition and the objections raised. Even if there was some clumsiness in the drafting of the allegations and the petition generally, because of the implications of s 222, clumsiness itself does not mean the petition is bad. As long as the allegations comply with the Organic Law and the principles enunciated by the Court and clearly set out the facts necessary to establish offences or irregularities, a petition must be heard.

Allegation A is not really an allegation to void an election. It contains background statements. Although, A 3 seems to go a bit further and appears to be an attack on the behaviour of certain officials of the Electoral Commission. I find that A 1 to 3 are not allegations but rather background facts or evidence and, whilst I will not strike them out, I find that they are not to be treated as separate allegations but merely introductory background.

Allegation B (1) seems to be an allegation that a certain ballot box was included without proper authorisation and that any ballot papers in it were irregular. It is submitted that the allegation is in effect a fishing expedition about the contents of a particular ballot box and there are insufficient facts in the allegation to ascertain what is alleged and how it is claimed the election may have been affected. However, it is submitted on behalf of the petitioner that the facts are quite clear in the allegation that a particular ballot box came from a certain village and because of the way the officials managed the polling and the counting, the petitioner was unable to find out details of number of votes in that box. So is the allegation so vague that parties are unable to properly answer it? I do not think that, in the circumstances alleged, there is any vagueness. It is not a vague fishing expedition. It is a petitioner alleging irregularities about a particular ballot box, an allegation that can very easily be answered. It may be that the answer itself, which may only come when parties produce the relevant documentation and box, may in the end not help the petitioner when the numbers of votes that are affected are considered but that is a risk that a petitioner has to take. This evidence is not facts that must be pleaded, but the answer that will come with the evidence. This perhaps is the area where the boundary between facts and evidence may appear to overlap. It is not up to the court at this stage to prejudge possibilities. When certain evidence is made available, following pre-trial, then parties must consider their position but at this stage the petitioner must be seen to have a legitimate complaint that he is entitled to air. It may turn out to not affect the result when all the evidence is in but I cannot consider that possibility now. I am satisfied that there are sufficient facts raised in allegation B (1) to go to trial.

Allegation B (2) suggests irregularities in the voting by double voting. This allegation must be read with allegation B (4). First, the argument is that this is clumsy pleading and therefore too vague. Each allegation must be whole in itself. But I do not think that the Organic Law demands that exactness in ‘pleading’. The Organic Law requires the facts to be stated. Whilst the method used by this petitioner may be clumsy, he has clearly stated in (4) that the persons referred to in (2) were responsible for multiple voting. Whilst the Organic Law states in s 214 that the National Court shall not inquire into the correctness of the Common Roll, this allegation does not ask that. This allegation gives facts of double listing and double voting by people whose names are repeated on the Common Roll. The allegation is that the electoral officials allowed certain specified persons to vote twice because their names were repeated on the Common Roll. This is not an inquiry into the correctness of the roll, it is simply saying that certain people took advantage of that double listing and voted twice. This allegation asserts sufficient facts that it can be very easily answered by the production of the relevant documents and figures from the Electoral Commission. Again, it may be that, when all the evidence is before the parties, it may appear that the result of the election would not have been affected, but that is risk that a petitioner takes. There may still be a legitimate complaint, and the court or the parties may not be sure of this until the evidence is produced.

Allegation B (3) states that a number of voters were transported from another electorate and told to vote in this electorate and they did so vote. It alleges that these voters were not eligible to so vote. Whilst the date and place is given in the allegation, there are no names given. So it is submitted that the allegation is not specific enough with facts to understand it. The allegation clearly states that on a specific date, a specific number of people who were ineligible, from a village in another electorate, were brought to this electorate and voted. This allegation is clear enough. Whilst the names of these voters were not given, I do not feel that this is necessary at this stage. The result of this alleged irregularity must be added to any other irregularities to see whether the result of the election may have been affected and that will only be found when all the evidence is in. I find no reason to strike out this allegation.

Allegation B (4) has been referred to above.

Allegation B (5) alleges serious impropriety in the marking of a specific number of voting papers, the word surplus clearly suggests voting papers that were left over after polling had been done by registered voters. I am satisfied that this allegation is specific enough for the purpose of s 208.

Allegation C refers to an undertaking to destroy a certain ballot box. This appears to be the same ballot box referred to in clause B (1). I do not see that this is a specific allegation of irregularity. It may be part of the evidence for the consideration of earlier allegations but is not an allegation on its own. I strike out this allegation.

Allegations D and E can be read together as they allege that polling did not take place as scheduled. However, there is no allegation that people were deprived of their right to vote and that must be the critical point. I find that this allegation is irrelevant without any allegation that eligible voters were deprived of their right to vote. I strike these allegations out.

There is also an objection to the petition in that the petitioner has failed to properly specify the relief to which he claims to be entitled, see s 208 (b). It is submitted that if the petitioner is claiming that, because of illegal practices, the result of the election was likely to be affected then the only relief he can claim is that in the words of s 215 (3) the candidate should be declared not to be duly elected or that the election should be declared void. The respondents refer to the principles and the law as laid down by the Supreme Court in the case Application of William Wii, unreported from July 1994, that the wording must be exactly in accordance with the provisions of s 215 (1). I must admit that I have trouble understanding the ruling in that case. I must note that that case is an unreported case from 1994, it is not reported in the Law Reports, nor is it an issued numbered judgement. So is it an authorised judgement for this court to consider, where do we find an authorised copy. Perhaps because it has been unpublished and unnumbered it is not meant to be of general application, perhaps it was only meant to apply to the circumstances of the particular case. The court in that case apparently said on the one hand "we are satisfied that the relief sought is sufficiently clear" but then said that the wording should have been in a different form. Is that the only wording that can be used? The wording suggested is not itself strictly the same as in s 215, and also overlooks the fact that s. 226 of the Organic Law seems to recognise other reliefs that are not worded in Section 215. So what is that court saying. This is where I have difficulty understanding the principle set out by that case. In the case before me now, it is not allegations of bribery but allegations of illegal practices or errors and omissions by electoral officials where s. 215 (3) applies. So is the Petitioner asking that "the election should be declared void" under s 215 (3)? Whilst certain parts of the relief sought in the petition are clumsy, there is in paragraph 2 of the relief sought, the words "a declaration, that ....the 1997 National Election be ruled null and void...." This seems to me to be clear enough. And then by virtue of s 226(c) a new election must be held. I refer to the implication of s 222 that petitions are supposed to be able to be drafted and run by candidates and citizens themselves without legal advice. It is submitted that the use of the words ‘1997 national election’ in that juxtaposition without the words Karimui-Nomane seems to refer to the whole of the National Election for the whole country. I do not see that. This is a petition for the electorate of Karimui-Nomane and therefore the words 1997 National Election refers to that electorate. If we are going to be that exact according to the court in that unobtainable William Wii case, then s 215 should have left appropriate spaces in its wording for the insertion of the words of the particular electorate. I am satisfied that the petitioner has sought an appropriate relief in his petition.

The result of my findings above is that, allegations C, D, and E are struck out but allegations B (1) to (5) will need to go to trial and it is the responsibility of the petitioner to bring the evidence to the court to show that there were illegal practices which affected the result of the election. Of course, I must repeat what I have already said that a petitioner must carefully consider the evidence once he has obtained access to any appropriate documents and figures and still assess whether the evidence will support a finding that the result of the election would have been affected.

The matter must now be pre-trialed.

Lawyers for the petitioner:

Lawyers for the first respondent: Nonggorr & Associates.
Lawyers for the second respondent: