Olmi v Kuman [2002] PGNC 40; N2310 (9 December 2002)

N2310

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. No. 01 of 2002

Between:

AIWA OLMI
-Petitioner-

And:

NICK KOPIA KUMAN
-First Respondent-

And:

RUEBEN KAIULO
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
-Second Respondent-

MT. HAGEN : JALINA, J.
2002 : 3rd, 6th & 9th December,

NATIONAL PARLIAMENT ELECTIONS – Petition Disputing Election –Competency of Petition -Motion to strike out Petition – Attestation of Petition – Attestation by finger print – Name on attestation page in Petition mis-spelt in two places in affidavit explaining the attestation - Whether attestation by finger print sufficient attestation - Attestation by finger print sufficient – Application to strike out refused - Organic Law on National and Local Level Government Elections S. 208 (d) and 210.

NATIONAL PARLIAMENT ELECTIONS – Petition Disputing Election – Competency of Petition -Motion to strike out Petition – Failure by Petitioner to set out or plead facts on which Petition is founded - – Whether whole or part of Petition should be struck out – Petition does not plead facts as required – Petition should be struck out - Organic Law on National and Local Level Government Elections S. 208 (a) and 210.

Cases cited:
Biri -v- Ninkama [1982] PNGLR 342
Kela -v- Lafanama [1997] PNGLR 151
Holloway –v- Ivarato [1988] PNGLR 99
Vagi Mae –v- Jack Genia and Electoral Commission [1992] Unreported Judgment N1105

Karo –v- Kidu [1997] PNGLR 28

Legislation referred to:
Organic Law on National and Local Level Government Elections
Evidence Act, Chpt. 48

Counsel:
J. Tonge for the Petitioner
K. Naru for the First Respondent

R. Williams for the Second Respondent

9th December, 2002

JALINA, J: The Petitioner herein has filed a Petition disputing the election of the First Respondent as Member of National Parliament for Gumine Open Electorate in the Simbu Province. The facts relied upon by the Petitioner to invalidate the election of the First Respondent are set out in paragraph 8 of the Petition as follows:-

8.1. The 2nd Respondent failed to conduct a proper election for purposes of complying with the Organic Law on National and Local Level Government Elections.

(a) It is alleged that on the 22nd of June, 2002 at Guleba polling place in Boromil Area the Presiding Officer, Mr. Michael Paglau allowed multiple and illegal voting. Further, the ballot box Number 1341 designated to Guleba (Boromil) never arrived. Only box numbers 1337 and 1338 were used to fill the ballot boxes which were never disputed though the Presiding Officer knew about it.

(b) It is alleged that on the 19th June, 2002, the Assistant Returning Officer of Kumai Bomai Local Level Government, Mr. Peter Are and the Presiding Officer to Gomgale Rest House received bribery monies, in K5.00 notes from the First Respondent.

(c) It is alleged that only 10 policemen were assigned to provide security for the Gumine Open Electorate who had arrived late on the afternoon of 22nd June, 2002.

(d) It is alleged that the Provincial Returning Officer, Mr. Steven Yakili failed to declare that certain boxes, those boxes after count 39 as disputed boxes after complaints were made to him.

(e) It is alleged that box number 1341 designed for Guleba (Boromil) polling was never brought there. When enquired with the Presiding Officer, Mr. Michael Paglan, he said it was left behind at Gumine Station saying there were not enough ballot papers to fill in all the boxes.

(f) On the 22nd of June, 2002, at Silgerua polling place, the Presiding Officer, Mr. Paias Dulume and the Polling Clerk, Mr. Aba Frank marked ballot papers in support of the First Respondent and did not mark the ballot papers in accordance with what the voters wished. Upon complaints made against the polling officials by one, Mr. To Komanda, he was assaulted by the First Respondent’s supports who were supporting the polling officials.

(g) Mr. To Komanda also saw at the said time at the said place eligible voters watched hopelessly while their votes were being marked and casted by the polling officers in amidst the supporters of the First Respondent in favour of the First Respondent.

(h) It is alleged that Mr. Otto M. Sine went to Silegru polling place on 22nd June, 2002 and eye witnessed a relative of the First Respondent, Mr. Aba Franky marking many ballot papers in favour of the First Respondent. Mr. Aba Franky who was polling clerk at the said polling booth.

(i) It is alleged that the Presiding Officer for the polling team for Nigemarme ward of Gumine LLG area eye witnessed at about midday on 22nd June, 2002 that a young girl was shot dead using a gun at close range by a candidate, Mr. Philip Gore. This happened about 5 metres away from the polling booth. The polling officials there were forced to accept multiple voting by Philip Gore’s supporters but the box Nos # 1225, 1226 and 1227 were not set aside as disputed boxes through the Returning Officer was fully advised of it.

(j) It is alleged that on the 22nd of June, 2002, polling took place at Damagire, a non-gazetted area of polling due to lack of security personnel, another candidate, Mr. Fred Temai’s supporters with undue influence and false pretence marked many ballot papers in favour of Fred Temai.

(k) It is alleged that at Damagire polling place, Mr. Sogan Peter Kawale who was a candidate for the Gumine Open Seat eye witnessed that the supporters of Mr. Fred Temai putting the Presiding Officer under threat and pressure to mark the ballot papers in favour of Fred Temai.

8.2. The First Respondent, by himself, together with his servants or agents forced, threatened, bribed, cheated whilst carrying firearms to obtain votes in favour of him.

(a) It is alleged that on the 16th June, 2002, after Sunday Service both Polling Officials, Mr. Jacob Uri and Peter Are were given bundle of K5.00 notes. These monies were given by the First Respondent and his relatives in the First Respondent’s house.

(b) It is alleged that Alai Simin saw on the 22nd June, 2002 at Guleba in Boromil Area of the Kumai Bomai LLG Area, the supporters of the First Respondent did multiple voting. Though names were called, supporters of the First Respondent misrepresented the eligible voters being called and voted for the First Respondent. Further, two people from Bomomil School Polling place (Jessinta Nime and Samai Alai) voted at this said place unlawfully.

(c) It is alleged that on the 22nd June, 2002, Gomglae Sub-Health Centre polling place, the First Respondent’s supporters parked both the First Respondent’s Toyota Land Cruisers were purposely parked at the opposite ends of the said polling place with a youth armed with a M-16 rifle standing on the vehicle watching over the polling. The said supporters moved and took control of the polling both intimidating voters and polling officials by using firearms and other dangerous weapons like knives. They collected all ballot papers and marked them in favour of the First Respondent (Andrew Sini Kua).

(d) It is alleged that on the 22nd June, 2002, at Gomgale polling place (Ward 7), the First Respondents supporters drove into there with two vehicles, Toyota Land Cruiser, maroon in colour, open back and another a 10 Seater with tinted glass, Reg. No. LAN-501, grabbed hold of the ballot papers, marked them in favour of the First Respondent and filled the ballot boxes. The voters there were threatened with firearms. The voters being scared for their lives just observed helplessly.

(e) It is alleged that in between 2nd and 23rd June, 2002, at Mogaran polling place, the First Respondent’s supporters came in on a vehicle, Reg. No. LAJ-928 belonging to the First Respondent. The supporters confronted the Presiding Officer with his polling officials and threatened them to mark some of the ballot papers in favour of the first respondent and the polling officials in fear of their lives did just that which was totally unlawful.

(f) It is alleged that on the 22nd of June, 2002, two Land Cruisers belonging to the First Respondent, one a Toyota Land Cruiser, open back, maroon in colour, nicknamed Bomaiyal and secondly a Toyota Land Cruiser 10 Seater with a tinted glass, Reg. No. LAN-501 transported the First Respondent’s supporters who were armed with two high-powered M-16 rifles and bush knives took control of voting, marking the ballot papers in favour of Nick Kuman, the First Respondent in this proceedings. Many people were threatened and they went away. The First Respondent’s supporters continued marking the ballot papers until later after at 5.30pm.

(g) It is alleged that the supporters of the First Respondent, Philip Gore, Arol Tala Aimos, Kaua Robert Bartho, Fred Temai Arre and Max Sine Kaupa Ereman continued to bribe, intimidate, influence and forced voters whilst being armed to the teeth with dangerous weapons and continued in their illegal activities to obtain votes in their favour to win the election by unlawful means.

(h) In a nutshell, the candidates, especially the First Respondent with their supporters have deprive the Constitutional Rights to vote freely in this democratic country.

(i) The illegal means or activities was spread all over the Gumine Open Electorate and in all fairness the Court should order for a by election.

(j) The various acts of threats, undue influence and malpractice referred to in the grounds affected the out-come of the election result, that is that the First Respondent was declared the winner of the Gumine Open Electorate.

The First Respondent has filed a motion challenging the Competency of the Petition. Having abandoned paragraphs 1 and 3 through his Counsel Mr. Naru, the First Respondent only seeks orders under paragraph 2. Paragraph 2 provides that:-

"2. The Petition be struck out and or dismissed for failing to comply with the mandatory requirements of Section 208 (a) and (d) of the Organic Law on National and Local Level Government Election;"

Section 208 particularly paragraphs (a) and (d) and 210 of the Organic Law on National and Local Level Government Elections (the Organic Law) provide:-

"208. Requisites of petition

A petition shall –

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial Headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (i)(a).

210. No Proceedings unless requisites complied with

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

It should be pointed out at the outset that in hearing election petitions under Part X VIII of the Organic Law, the National Court has powers under S. 212 and by S. 217 the Court shall be guided by 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.

Counsel for the First Respondent has filed a detailed and well researched submissions on the laws appropriate and relevant to matters that should appear in election petitions and the consequence of failure to comply with the requirements of the Organic Law. I am most grateful to him for this and since Counsel for the Petitioner has not made any contrary submissions on the law and the cases that Mr. Naru has referred to, I accept and adopt the submissions as an accurate summary of the law.

The First Respondent attacks the petition on two basic grounds. He submits firstly that the Petition does not comply with S. 208 (a) of the Organic Law in that the facts relied upon by the Petitioner are not set out with sufficient particularity to enable the Respondents to prepare their case. Secondly, he submits that the Petition does not comply with S. 208 (d) of the Organic Law in that the attestation by one of the witnesses namely, Sali Bria by the use of his "finger print" was not a sufficient attestation. In making the application the First Respondent relies on the Supreme Court decision in Biri -v- Ninkama [1982] PNGLR 342 where it said at p. 346:

"An election 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 comply strictly with each and every requirement of S. 208 of that law."

Since attestation of a petition relates to the form of the petition and as such raises a threshold question which may result in the petition being dismissed at the outset, I propose to deal with it first. I will then proceed to the body of the Petition where application is made against the facts set out or pleaded by the Petitioner.

The application against attestation has been made as I have indicated earlier, under S. 208 (d) of the Organic Law. It is made against the signature or attestation as a witness to the petition by one SALI BRIA through the use of his "finger print" as I have said. Mr. Naru submits that the attestation by "finger print" was not sufficient attestation for purposes of S. 208 (d) of the Organic Law. It has however transpired during submissions by Mr. Naru that his real objection was not that the Petitioner had not been witnessed by two persons as required but that the name of the witness "Sali Bria" appeared differently in his affidavit which was filed herein on 31st October, 2002. The basis of his objection was that the name in several parts of the affidavit were "Sali Biria" and "Salia Biria" which were different from "Sali Bria" in the Petition. He sought to give weight to his submission by referring to the interpretation clause which did not indicate that the interpreter understood Sali Bria’s language and the English language. When pressed by me as to whether he had any statute or case law to support his contention, Mr. Naru responded in the negative and submitted that I should make a ruling on it and develop the underlying law on that aspect. He also sought to rely on Kela -v- Lafanama [1997] PNGLR 151 which was also concerned with attestation. In that case the names of the witnesses to the petition were typed in but not signed. The National Court ruled that the attestation was not a proper attestation for purposes of S. 208 (d). As that case is clearly distinguishable from the present case on the facts as this case is concerned with attestation by fingerprint, I do not propose to follow it.

In the absence of any case or statute law on the subject of attestation by "finger print", I am not prepared to accept the invitation by Mr. Naru and venture into the dark, as it were, in respect to it. In any event, it is not an express requirement of S. 208 (d) that attestation of a petition should be executed in the usual way by signature or in some other manner. Furthermore, since the attestation itself is not challenged to the extend of the First Respondent saying that Sali Bria was not the one who placed his finger print as a witness, it is not necessary even for the Petitioner to prove that Sali Bria was the one who in fact witnessed the Petition.

Although not referred to by both Counsel, S. 32 (1) of the Evidence Act, Chapter 48 lends weight to this. It says:-

"32 Proof by attesting witnesses

(i) It is not necessary to prove by the attesting witness an instrument, the validity of which attestation is not required, and as such an instrument may be proved as if there had been no attesting witness to it."

It should also be borne in mind that the majority of the people in Papua New Guinea are illiterate and for me to decide in the absence of express provision in the Organic Law as to the manner in which a petition is to be witnessed particularly an express provision stating that attestation by finger print was not a valid attestation, would be to deny a petitioner the right to have his petition determined according to law.

I am therefore not satisfied that the attestation of the petition by Sali Bria by "finger print" is sufficient ground in law for me to dismiss the petition. I accordingly refuse the application founded on the failure by the Petitioner to comply with S. 208 (d) of the Organic Law.

I will now consider the application founded on the failure by the Petitioner to state or plead "facts" as required by s.208 (a) of the Organic Law. As to what constitutes "facts" was settled by the Supreme Court in Holloway –v- Ivarato [1988] PNGLR 99 where the head note reads:

"The "facts" which must be set out under s.208 (a) of the Organic Law on National Elections 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 to enable the court to see with clarity the issues involved."

In that decision Kapi DCJ with whom Los and Hinchliffe, JJ agreed said at p.101-102:

"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 those grounds. The requirement of s.208 (a) of the Organic Law is to set out the facts which constitutes the grounds upon which election or return may be declared invalid. Setting out the 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 on which a petitioner relies. The facts which must be set out in s.208 (a) of the Organic Law are material or relevant facts which will constitute the ground or grounds upon which an election or return may be invalidated."

"In setting out the facts they must be sufficient so as to indicate or constitute the ground which an election maybe invalidated. What are sufficient facts depend on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."

In Vagi Mae –v- Jack Genia and Electoral Commission [1992] Unreported Judgment N1105 of 30the August, 1992 Sheehan J said at p.4:

"Section 208 (a) stipulates that particulars of facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded."

Five years later in Karo –v- Kidu [1997] PNGLR 28 Injia, J. whilst affirming the rule in Holloway –v- Ivarato (supra) said at p.44:

"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 pleading only 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 materials 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 precise factual allegations are. This results in the court having to waste precious time reading through pages of evidence, which in this case runs to two (2) pages. It is not intended by s.208 (a) and s.210 of the OLNLGE 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 evidence in a petition."

From the above case authorities there can be no doubt in any one’s mind as to the extent a petitioner must go in setting out "facts" to satisfy the requirements of that word in S. 208 (a) of the Organic Law to invalidate an election.

Further reasons for such a requirement are as expressed by the Supreme Court in the leading case of Biri –v- Ninkama ( supra) 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, Birbeck –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.

In our opinion it is beyond argument that if a petition does not comply with all the requirements of S. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of S. 210".

What the Supreme Court is saying in the above statement in other words is that the electoral process has taken place and the people have chosen their representative in the National Parliament for the next five years and anyone challenging that decision must clearly show that the people’s exercise of that right was not free and fair. If the petitioner is serious about it then "facts" that he relies on to overturn that election must go beyond a mere statement or assertion that certain things were done by or to electoral officials or by or on behalf of the winning candidate and with his knowledge and consent which affected or were likely to have affected the result.

So the pleadings, in order to constitute "facts" within the requirement of S. 208 (a) of the Organic Law, must state the names of people who were involved, numbers, names of the place the incident took place, dates and even time.

A petition that falls short of these requirements must be struck out or dismissed so that the elected representative can continue with his or her responsibility of representing his or her constituents in Parliament without spending too much (of their) time defending their seats in the National Court. It would also avoid the kind of experience some elected representatives have had after the 1992 and 1997 elections where some petitions made continuous journeys between the National Court and the Supreme Court for the full 5 year term of Parliament or were completed only a year or so before the next elections. An example of this was the petition by or against the late Dick Mune for the Southern Highlands Regional Seat which was withdrawn in the Supreme Court only a few weeks before the writs were issued for the 1997 General Elections whilst the other one was the petition of Sir Julius Chan for the Namatanai Open Seat in the New Ireland Province which was still pending when the writs were issued for the 2002 General Elections. The result of such delays were that nothing constructive appears to have been done for the constituents by the sitting member because he had to continuously attend court and defend his seat.

I will now turn to the submissions in respect of failure by the Petitioner to comply with S. 208 (a) and in doing so may I point out that the submissions by the First Respondent were in writing and attacked each ground relied upon by the Petitioner whilst the submissions by the Petitioner were not only oral but general and broad. He did not defend the Petition paragraph by paragraph and the reason his lawyer Mr. Tonge gave was that he only received a copy of the First Respondent’s submissions in court on 3rd December before they were presented that morning so he did not have enough time to prepare a written submission.

I cannot accept such an argument because S. 208 (a) clearly requires "facts" to be set out or pleaded in the petition so if he was serious about it he should have prepared his submissions whether written or oral pointing out that each ground does plead or set out "facts" in accordance with S. 208 (a). In any event, Mr. Tonge’s broad and general submissions were that the grounds in the Petition were brought by the Petitioner in a nutshell and that they would be elaborated upon by the affidavits which have been filed by him and his witnesses. He submitted that this Court should look at the whole petition and not concentrate on specific statements and deny the Petitioner of the "facts" pleaded in the Petition but must in all fairness hear both sides and the issues raised.

With regard to paragraph 8 (1) (a) he submitted that the matters alleged were supported by affidavits filed by the Petitioner’s witnesses. With regard to paragraph 8 (1) (b) which relate to bribery, he submitted that whilst it did not show where the location was, such omission was supported or cured by what are stated in the affidavits. He went on to submit generally that the reason the grounds were set out or pleaded in general terms were that the Petitioner wanted to indicate to the court as to what actually went on throughout the Gumine Open Electorate during the 2002 General Elections instead of pointing only to certain grounds of the Petition. Mr. Tonge submitted therefore that the grounds contained "facts" which have been sufficiently pleaded for this matter to proceed to trial.

The Second Respondent, through his lawyer Mr. Williams, merely supported the submissions of the First Respondent. He did not file any written submissions.

As the law is clear on the requirements to set out or plead "facts", I cannot see why Mr. Williams has failed to prepare written submissions bearing mind that the First Respondent’s motion to strike out the Petition for failure by the Petitioner to comply with S. 208 (a) and (d) of the Organic Law was filed on 18th October, 2002 and this Petition was set down for trial on 3rd December, by Hinchliffe, J. on 25th October, 2002 which was more than one month and one week ago. So there is no excuse.

What I have just said about the failure by Mr. Williams for the Second Respondent to file written submissions in respect of each ground of the Petition also applies to Mr. Tonge for the Petitioner. He had more than one month since the First Respondent’s motion was filed on 18th October, 2002 to prepare his submissions in some detail to present either orally or in writing to this Court. He also did not raise any objections to the motion being heard on the date of trial which was 3rd December. In fact he was the one who informed me that the First Respondent had a motion before the Court so one would have expected that he was fully prepared to oppose the motion to dismiss or strike out the entire petition.

When I consider the submissions by Counsel for the parties herein, against the facts set out or pleaded in Paragraphs 8 of the Petition, I am impressed by the well researched and detailed submissions on each ground (of the Petition) by Mr. Naru for the First Respondent.

The law relating to the requirements to state or plead "facts" in an election petition as decided by both the National Court and the Supreme Court are clearly set out in his submissions. The manner or respects in which each ground in Paragraph 8 of the Petition fails to comply with the requirements under s.208 (a) to set out or plead "facts" are also clearly demonstrated.

Mr. Tonge for the Petitioner has on the other hand made general submissions as I have indicated earlier. However, without a submission from him in respect of each ground to demonstrate to this Court that the facts set out or pleaded in the Petition do comply with the meaning of "facts" as decided by the Supreme Court in Holloway –v- Ivaroto (supra), I cannot possibly decide that they do comply. I am not persuaded by the broad and general submissions put to me on behalf of the Petitioner. The law relating to "facts" that are required to be set out or pleaded in an election petition for purposes of s.208 (a) of the Organic Law is clear. It says that only relevant or material facts which would clearly indicate to the Court and the opposing party the precise issues to be determined at trial are to be set out or pleaded. To make general assertions and then to say that the "gaps" would be "patched up" by evidence of witnesses who have filed affidavits on behalf of the Petitioner, is not pleading "facts" as required by law.

For this Court to accept the facts as pleaded by the Petitioner which are too general and vague as demonstrated in Mr. Naru’s submissions, would be for the Respondents and this Court to proceed to trial without knowing what the precise factual allegations are and the issues raised by them.

Again in the absence of an equally forceful response from the Petitioner ground by ground and paragraph by paragraph to demonstrate to (this Court) that the "facts" set out or pleaded do comply with the meaning of "facts" as decided by the Supreme Court in Holloway –v- Ivarato (supra) and other subsequent cases, it is not necessary for me to consider each ground in the Petition. There is virtually nothing of substance put to me by the Petitioner which may require some serious assessment.

I am therefore satisfied that the grounds in Paragraph 8 of the Petition do not satisfy the requirement to set out or plead "facts" for purposes of s.208 (a) of the Organic Law. I accordingly dismiss the entire Petition with costs to the Respondents to be taxed if not agreed.
_______________________________________________________________________

Lawyer for the Petitioner : Jerry Tonge Lawyers

Lawyer for the First Respondent : Pacific Legal Group
Lawyer for the Second Respondent : Nonggor and Associates