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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 4 OF 2002 N.C.D.
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE GOROKA OPEN ELECTORATE
Between:
MATHIAS IJAPE
And:
BIRE KIMISOPA
And:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
GOROKA: KANDAKASI, J.
2003: 3rd, 4th & 6th March.
ELECTION – Parliamentary – Petition – Practice and procedure – A petition must be addressed to the National Court – Only the National Court is empowered inappropriate cases to declare an election null and void – A petition addressed to a person other than the National Court is defective and does not grant the National Court with any jurisdiction to hear it – s. 206 of the Organic Law on National and Local –level Government Elections.
ELECTION – Parliamentary – Petition – Practice and procedure - Pleadings of facts relied on to invalidate an election – Statutory requirements to be strictly complied with – Where a statutory provision is pleaded as a ground for a petition, the facts pleaded must correspond the provision pleaded -– Material and relevant facts relied on must be pleaded with sufficient details – Petition on grounds other than bribery and undue influence must plead the facts relied on and demonstrate the results of the election was likely to be affected – Such facts should include names of people and number of votes - A failure to so plead amounts to the petition being incompetent – Organic Law on Provincial and Local-level Government Elections ss.208(a), 210 & 215(3).
Cases Cited:
Mune v. Agiru & Ors (unreported judgement delivered 17/02/98) SC590.
Ben Micah v Ian Ling-Stuckey and Electoral Commission (unreported judgement delivered 10/09/98) N1791.
Ludger Mond v. Jeffery Nape & Electoral Commission (unreported judgement delivered 14/01/03) N2318.
Delba Biri v. Bill Ninkama [1982] PNGLR 342.
Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463.
Herowa Agiwa v. The Electoral Commission and Ben Peri (unreported judgement delivered on 18/02/03) O.S. 29 of 2003.
The State v. Zachary Gelu & Monoburn (unreported judgement delivered 13/12/02) N2322.
Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.
Bank South Pacific Limited v. The Public Curator & Ors (unreported judgement delivered 20/01/03), N2320.
Holloway v. Ivarato [1988] PNGLR 88.
Torato v. Electoral Commission [1988-89] PNGLR 83.
Joel Paua v. Nagle [1992] PNGLR 563.
Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28.
Greg Mongi v. Bernard Vogae & Anor (unreported judgement) N1635.
Ludger Mond v. Jeffery Nape and Electoral Commission (unreported judgement delivered 14/01/03) N2318.
Fr. Louise Ambane v. Thomas Tuman (unreported judgement) SC559.
Daniel Tulapi v Charles Luta, David Basua and The Electoral Commission of PNG unreported judgement delivered 10/10/02) SC653.
Counsels:
Petitioner In Person.
Mr. A. Manase for the First Respondent.
Mr. T. Sirae for the Second Respondent.
6th March 2003.
KANDAKASI, J: This is an election petition by Mr. Mathias Ijape against Mr. Bire Kimisopa’s election as Member of Parliament for the Goroka Open Seat in the 2002 National General Elections. Mr. Kimisopa and the Electoral Commission object to its competency. By reason of s. 210 of the Organic Law on National And Local-level Government Elections (the Organic Law), the objection must be first dealt with. So I heard arguments on it on the 3rd and 4th and reserved a ruling on that to today. This is the judgement.
Preliminaries
At the outset of the commencement of the hearing of this matter, Mr. Ijape informed the Court that his lawyer, Mr. G. Shepherd of Maladinas Lawyers has withdrawn acting for him. I asked if he was able to proceed with the hearing on his own and he answered in the affirmative. I therefore, called on the matter and proceeded to deal with it. I was impressed with Mr. Injape’s performance on his on behalf to the extent that I could say he ably represented himself, both through his oral and written submissions. His written submissions include one prepared for him by Mr. G. Shepherd.
The Respondents to the petition, Mr. Kimisopa and the Electoral Commission present two main arguments for their objection. The first is that the petition is not addressed to the National Court as is required by s. 206 of the Organic Law. Instead, it is addressed to Mr. Biri Kimisopa and the Electoral Commission. Secondly, they claim that material facts relied on by Mr. Ijape to invalidate the election have not been pleaded with sufficient particulars. Reliance is placed on ss.208 (a) and 215, of the Organic Law and the case built around them.
Mr. Ijape, responds to the first basis of the objection by arguing that the provisions of s. 206 of the Organic Law must be given a fair large and liberal interpretation to uphold the intent of Parliament behind that provision. If that is done, he argues, his petition is correctly before the National Court and that vests this Court with the appropriate jurisdiction to hear it. As for the requirements to plead facts sufficient to invalidate the election, he argues that, he has pleaded sufficient facts for the purpose of s. 208 (a) of the Organic Law, if his petition is read as a whole. In so arguing he concedes that, if the various paragraphs of his petition are viewed alone, the objections could be sustained.
Both the Electoral Commission and Mr. Kimisopa submit in response to Mr. Ijape’s argument by saying a petition cannot be amended by submission after the expiry of the time limit imposed by s. 208 (e) of the Organic Law. They rely on the Supreme Court judgement in Dick Mune v. Anderson Agiru & Ors (unreported judgement delivered 17/02/98) SC590, particularly the judgement of Injia J. and the judgement of His Honour Kirriwom J in Ben Micah v Ian Ling-Stuckey and Electoral Commission (unreported judgement delivered 10/09/98) N1791. They also rely on my judgement in Ludger Mond v. Jeffery Nape & Electoral Commission (unreported judgement delivered 14/01/03) N2318.
Issues
These arguments present a number of issues for determination. The main ones are:
I will deal first with the first issue. Then I will discuss the relevant law in relation to the prerequisites to an election petition under s. 208 (a). Thereafter, I will examine each of the matters pleaded in the petition and say whether they meet the requirements under s. 208 (a) and any other relevant and applying provisions of the Organic Law. That will in effect address the second issue. An examination and determination of the third issue will follow that.
Petition Not Addressed to the National Court
Although there is no case on point, there is ample authority for the proposition that the right to dispute an election and have it declared null and void in appropriate cases, is a right given to a petitioner by statute namely, the Organic Law. Starting with the Supreme Court judgement in Delba Biri v. Bill Ninkama [1982] PNGLR 342 and all the judgement following it, such as that of Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463, make that position very clear. These cases also make it clear that, that right must be exercised strictly in accordance with the requirements of the Organic Law especially in the context of s. 208. The Supreme Court in Biri v. Ninkama (supra), stated that position in these terms at p.345:
" ... 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 ... 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."
What this means in my view is that, the prerogative belongs to the majority in an electorate to elect their representative to Parliament. It is a sacred right. Once that choice is made in a fair and free election, it can only be challenged strictly in accordance with the requirements of the Organic Law, which grants a right to a person aggrieved by an election to challenge it.
The Organic Law provides both as to the way in which such a challenge is to be brought and where the challenge is to be taken. It also provides as to the way in which such a challenge is to be framed. The relevant part of the Organic Law is Part XVIII, under the heading "Disputed Elections, Returns, etc." That part starts with s.206.
Section 206 reads:
"206. Method of disputing returns.
The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise."
As I recently said in Herowa Agiwa v. The Electoral Commission and Ben Peri (unreported judgement delivered on 18/02/03) O.S. 29 of 2003, at p.29:
"It is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. The aim here is to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that. Examples of these are the cases of The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491 at 506, 507, per Kearney J; Constitutional Reference No 1 of 1977 [1977] PNGLR 362 at 373, 374, per Prentice DCJ (as he then was) and Canisius Karingu v. Papua New Guinea Law Society (unreported judgement delivered on 9/11/10) SC674 for a recent reference to this principle.
Also it is trite law that, if "the words of a statute are themselves precise and unambiguous, then no more is necessary to expound those words in their ordinary and natural sense": Wemas -v- Kepas Tumdual [1978] PNGLR 173 at 176 per Wilson J. adopted in SCA No. 6 of 1984 Re Provocation [1985] PNGLR 31."
This was in the context of s. 206 when faced with a question of whether an election petition is an appropriate method to use when there has been no "election" or a "return" but a failure, having regard to the words "election" or "return." Also at p. 29, I answered that question in these terms:
"In the present case, I am of the view that, the words employed by Parliament in s.206 are so precise and unambiguous, so much so that there is no need to expound on the words used. This provision makes it abundantly clear that, a petition to the National Court is the only way to challenge an ‘election’ or a ‘return’."
I have not been presented with any reason to depart from this view or the meaning to be given to s. 206. The principles on which this Court can depart from its earlier judgement are clear. I covered those in The State v. Zachary Gelu & Monoburn (unreported judgement delivered 13/12/02) N2322 at pp. 22 –24, but summarised in the following words at page 22:
" ... once judgment is pronounced and subject only to the right of appeal, they should be allowed to prevail for the sake of finality on the issues determined and certainty in the legal principles stated in the judgements and for them to take their proper effect.
I do accept at the same time however that, there might be cases in which the law has been clearly misinterpreted or misstated or that the principles enunciated in a previous judgement may become obsolete due to changes in the circumstances and needs of the society which is never stagnant. The law does allow for a departure in such situations."
Given the timing of my judgement in the above case, the parties may not be aware of that judgement. But that does not mean that the principles came into being in that judgement only. They were in existence long before, an early expression of which is by the Supreme Court judgement in Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205. This means, unless Mr. Ijape’s arguments come within these principles, there is no reason for me to depart from my judgement in the Herowa Agiwa case.
Mr. Ijape’s only argument is that, the words "may" and "addressed" should be liberally interpreted and applied. He argues that by the use of the word "may" Parliament intended that it is not mandatory to address an election petition to the National Court. What does matter in his argument is that, as long has a petition is filed with the National Court and the National Court registry accepts it by affixing the seal of the National Court.
This requires a closer look at what s. 206 is really saying. In my view, this provision can be broken into three parts. The first part is the phrase "The validity of an election or return may be disputed". The second part is the phrase "by petition" and the third part is the balance of that section being, "addressed to the National Court and not otherwise." This is significant because, the first part creates the right to dispute an election or a return. The second describes the method to be used which is to be by a petition and the third part provides as to whom the process or dispute is to be "addressed to" or to use Mr. Ijape’s words, "directed to" or "dispatched to". By this part, the National Court is given the exclusive jurisdiction to deal with an election petition. This is the only way, manner and where an election petition can be pursued.
The word "may" is in the first part. This part can stand alone without the second and the third parts. Parliament could not have intended nor could it be conceivable that, all elections or returns should be disputed. Instead, it would have reasonably contemplated that some elections and or returns could be disputed for very good reasons. It therefore, made no mistake in my view, in using the word "may" to enable only those who have good reason to dispute an election or a return to do so rather than making every election or return subject to a petition.
If parliament intended to allow for every election or return to be subject to petitions that would be disastrous. There would be no certainty in an election or a return. There would also be substantial costs to both the State to run elections and for candidates to be involved in more than one election apart from pursuing or defending a petition. This would also affect proper administration of the affairs of the country through the parliamentary process because of uncertainties affecting the term of office for Members of Parliament. This would have created a lot of mischief as opposed to doing anything good for the country. Parliament exists, as I said in Bank South Pacific Limited v. The Public Curator & Ors (unreported judgement delivered 20/01/03), N2320, to avoid mischief and not to create it for its people.
Given this, I am of the view that, the use of the word "may" is significant only in the context of the first part of this section. That is to say Parliament intended to leave an option as opposed to a mandatory requirement for persons who may be dissatisfied with an election or return to dispute it.
It follows then that, if Parliament intended that a person disputing an election or a return should have the freedom to use whatever method he prefers and where or to whom his dispute should be "addressed" to, it could not have added the second and third parts to s. 206. By adding these parts to that provision, Parliament deliberately decided in my view, to prescribe both the method and to whom or where a dispute over an election or return should be addressed. In so choosing to employ the words in the second and third parts, Parliament decided that a dispute should be by way of a petition addressed or directed to the National Court.
I find that, this is a strict requirement in keeping with the well-established view that, the choices of the majority at an election is a serious and important matter. That means, the requirements of s. 206 must be strictly met to amount to a proper challenge to the choice of the majority. A failure to do so would result in the National Court not being properly vested with the necessary jurisdiction to deal with a petition.
In the present case, the petition is addressed to Mr. Bire Kimasopa and the Electoral Commission. They have no power to receive, hear and determine the petition for the very reason that they are the principle respondents to the petition. The fact that the National Court Registry has accepted the petition for filing and sealing it with the National Court seal does not amount to an acceptance by the Court that the petition meets all the requirements under the Organic Law. Instead, the issue of whether or not a petition has met all of the requirements of the Organic Law is an issue that has to be determined as a preliminary point at the outset of a trial. This is clearly stated in Rule 15 of the Election Petition Rules 2002. All that the National Court Registry does is, it receives petitions once filed and leaves all of the issues affecting the competency of petitions and the grounds of the petition to be dealt with by the Court. Hence, the fact that the National Court Registry has sealed an election petition is of no consequence in so far as s. 206 is concerned.
In these circumstances, I am of the view that, addressing the petition to Mr. Kimisopa and the Electoral Commission, who are the respondents to this petition is not presenting an election petition in accordance with the requirements of s. 206 of the Organic Law, which has to be strictly met. The effect of this is that, this Court does not have before it a petition that is addressed or directed to it, for a proper hearing and determination. The petition is therefore incompetent and as such it should be dismissed.
Assuming I am wrong in arriving at the above view, (which I believe not) then the next issue to turn to is the second issue, which is in effect the objections based on s. 208 (a) of the Organic Law.
Objections based on s. 208 (a)
(i) The Law
Section 215 provides for the grounds on which an election result could be voided. The provision stipulates:
"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."
The leading case authorities on this are the Supreme Court judgements in Biri v. Ninkama (supra) and Holloway v. Ivarato [1988] PNGLR 99. In the former case, the Supreme Court said at pp. 345, 436 and 349 (substantially already quoted above):
"... 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 T.L.R. 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 of 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"
...
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 comply strictly with each and every requirement of s. 208 of that Law."
In the judgement in Holloway v. Ivarato (supra), the Supreme Court at pp.101 and 102 made it clear that the grounds on which an election or return may be sought to be invalidated is different from the facts that must be set out in a petition. It held that, the setting out of the grounds could not satisfy the requirements under s. 208 (a). What is required is a setting out of the facts sufficient to invalidate an election or a return. The facts must be material or relevant facts, and must constitute a ground or grounds upon which an election may be invalidated. Then as to what facts are sufficient it said, that depends on the facts alleged and the grounds those facts seek to establish.
In Mune v. Agiru & Ors (supra) the Supreme Court re-stated the above statement of the law and added that setting out sufficient facts does not mean pleading " the evidence by which it or they might be proved" nor a pleading of the law. But where a ground alleged is founded on a breach of a statutory provision, it must be pleaded together with the facts disclosing or establishing the breach so as to enable the Court and the opposing parties to be clear about the allegations they have to meet.
Similarly, there is a good number of judgements that say that, where an offence such as bribery, undue influence or any other offence that is capable of invalidating an election is relied on, the petitioner must disclose in the statement of his facts each of the elements of the offence. See for example Agonia v. Karo & Electoral Commission (supra).
In Torato v. Electoral Commission [1988-89] PNGLR 83 at p.85 the Court made it clear that:
"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".
Then Joel Paua v. Nagle [1992] PNGLR 563 at 564, added that a clear and sufficient statement of the relevant facts relied upon must be stated. The Court and or the parties can not be left to "draw possible conclusions or infer possible situations and assume that there may be a possibility of errors and/or omissions."
In Micah v. Stuckey & Electoral Commission (supra), Kirriwom J., stated the obvious. The requirement to set out sufficiently the relevant and or material facts relied on to invalidate an election is because:
" ... each ground of a petition unlike in ordinary civil litigation ... is a triable issue on its own and is capable of determining the success or demise of the petition."
There are also a good number of cases built around s.215 (3) of the Organic Law. An example of that is Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28. In that case, Andrew J., held that:
"Section 215(3)(b) is confined to illegal practices other than bribery or undue influence or attempted bribery or undue influence committed by the duly elected candidate.
...
I think that s. 215(3)(b) should be read with s. 215(1). That is, that under s. 215(1), a successful candidate who commits bribery or undue influence or attempts either will have his election declared void, but if he commits some other illegal practice, then by s. 215(3)(b), the court must apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare the election void."
Injia J., took the point further in Greg Mongi v. Bernard Vogae & Anor (unreported judgement) N1635. There he said:
"I agree with the submissions for the respondents. Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected."
On my part, after having reviewed all of the above cases and other relevant cases on point, I concluded in my recent judgement in Ludger Mond v. Jeffery Nape and Electoral Commission (supra) concluded at pp.15 – 16 that:
"It is clear from this that if a petition alleges an illegal practice or conduct other than a bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence."
I noted that, that position appears to be at variance with what the Chief Justice said in Fr. Louis Ambane & Anor v. Thomas Tumun Sumuno (unreported judgement) SC559. The Chief Justice said:
"It is trite that the ‘result’ means the return of the particular candidate and not the numbers of his majority, which means the result as between any of the candidates as determined by the allocation of the votes upon a count, and not the result between the winner and the runner up only, or between the winner and the petitioner as suggested by this contention."
That was in the context of s. 218 (1) and in a case where the court had earlier ordered a recount of ballot papers for the purposes of ascertaining the number of votes for each of the candidates in the election. Besides as the Deputy Chief Justice noted in the same case, the issue was:
"... overtaken or overruled by the Court in concluding as a matter of law that in order to satisfy the criteria set out in s. 218 (1) of the Organic Law, the Court must examine and count the total number of votes and determine the manner in which the votes may be distributed amongst the candidates and not merely speculate as was the true nature of what the trial judge did in determining the total number of votes. The trial judge based his finding on the estimates given by Electoral Commission officials and not on an examination of the votes. We have already determined that the trial judge fell into error in our earlier ruling.
I then observed that, it was apparent that, the Court still had to deal with the number of votes secured by the petitioning candidate and the winning candidate. The Court had earlier found that the National Court had acted on speculation instead of real numbers. It therefore, ordered a recount of the ballots to determine the real figures and to determine whether the conducts complained of was likely to have affected the election result. The recount of the votes established that the petitioner in that case secured more votes than the declared winner. Therefore, the Court ordered in favour of the petitioner. Consequently I said, what the Chief Justice said was relevant in the context of the case before him. That was in a case of a petition having progressed to trial. It did not concern arguments and determination on the pleadings in the petition. I therefore formed the view that, what the Chief Justice said do not affect the general import of the other cases as to the requirements that must be met under s.215 (3) (b) for which there must be proper pleadings as required by s. 208 (a) of the Organic Law.
Bearing these principles of law in mind, I will now deal with the objections to each of the grounds pleaded in this petition, adopting the order in which the petition is set out and taken up in the submissions of the parties before me.
(ii) Present Case
(a) Paragraphs 8 to 11
These allegations read:
"The Petitioner alleges the Second Respondent through its officers has contravened section 286 (1) (h) of the Organic Law by undue influence or in any other manner inducing or attempting to induce another person to vote or fail to vote at an election, or to vote for a particular person at an election.
"8. The polling for Goroka Open Electorate took place on Thursday the 20th June and continued to Friday 21st June 2002 due to the late commencement of the polling on the 20th of June 2002.
The Petitioner alleges that the Second Respondent has contravened section 286 (1) (j) of the Organic Law by fraudulently destroying ballot papers.
The Petitioner alleges that the Second Respondent through its officers has contravened section 286 (1) (o) & (q) of the Organic Law by the misconduct of its officers during polling and unlawfully interfering with ballot-papers.
In my view, the heading right before paragraph 8 suggests that the pleadings that immediately follow it will plead the facts relied on to substantiate that allegation. The facts pleaded in the paragraph immediately following it do not disclose any fact that would constitute or give rise not even at the least to an allegation of undue influence or an inducement or attempt thereof of voters. This paragraph merely states that polling for the Goroka Open Electorate took place on the dates specified. No fact as required by s. 208(a) and within the meaning of s. 215 of the Organic Law is pleaded on which Mr. Ijape relies to invalidate the election. At best, this paragraph is pleading the evidence and not the facts as required by s. 208 (a) as elaborated by the cases discussed above.
Further, s. 286 (1) (h) of the Organic Law falls under Part XIX, Division 13, which relates to Local-level Government Elections and not National Elections (s.234). It follows therefore that, s. 286 is not applicable to National Elections. So this part of the petition is premised on the wrong law. Nothing can be done to correct it, because the time to amend has already expired (s.208 (e)).
For these reasons I would strike out paragraph 8 of the petition.
Paragraphs 9 to 11(a) to (d) fall under the heading pleaded as "contravened section 286 (1) (j) of the Organic Law by fraudulently destroying ballot papers" as well as s.286 (1) (o) and (q). The clear indication from these pleadings is that the paragraphs that fall under it set out the facts relied on to allege that s. 286 (1) (j), (o) and (q) of the Organic Law as been contravened by fraudulently destroying ballot papers and unlawfully interfering with ballot papers. There are number of problems inherent in these pleading.
First as noted above s. 286 (1) (j), (o) and (q) of the Organic Law falls under Part XIX, Division 13, which relates to Local-level Government Elections and not National Elections (s.234). It follows therefore that, s. 286 does not apply and can not apply to National Elections. So this part of the petition is premised on the wrong law. Nothing can be done to correct it, because the time to amend has already expired (s.208 (e)).
Secondly, s.286 (1) and (j), (o) and (q) speak of specific offences. The heading to these paragraphs indicate in my view to the reader that the pleadings immediately following it will set out the facts relied on forming the basis for that allegation. A close examination of the matters set out in these paragraphs fail to set out any or sufficient facts disclosing a fraudulent destruction of or otherwise interfering with ballot papers. They in fact fall short of that.
Paragraph 9 talks about polling team No. 36, where it was located and who was its presiding officer, namely Baro Kuripana. Without more, paragraph 10 then says the presiding officer was a blood cousin of Mr. Kimisopa. Paragraph 11 without indicating any connection between the earlier pleadings introduces new allegations of Mr. Baro Kuripana breaching unspecified procedure for the fair and proper conduct of an election and thereby committing illegal practices and electoral irregularities. The subparagraphs to that paragraph then purport to set out the relevant facts giving rise to those allegations. The only thing the subparagraphs speak of is what Mr. Kuripana is alleged to have told the voters per subparagraph a (i) – (vii) as to the voting procedure, falling to make a roll call, instructing most but for one unnamed other polling officials to cut serial numbers to ballot papers and ignoring protests from voters against the procedure he had outlined.
There is no specification of what the correct procedure is, whether the procedure outlined by Mr. Kuripana was followed and how many votes were cast through the process outlined by him. Also, no names and number of the voters who are alleged to have protested and how they protested and how that was ignored are disclosed. Similarly, except for only one other polling official named, the names of the other polling officers who allegedly received instructions from Mr. Kuripana to cut serial numbers of ballot papers are disclosed. Also, nothing is said about most of the unnamed other polling officials in fact cutting the ballot papers as instructed and if they did, what caused them to comply with Mr. Kuripana’s instructions, the details of number of ballot papers involved and their corresponding serial numbers.
In his oral submissions in Court, Mr. Ijape said by virtue of Mr. Kuripana being a blood cousin of Mr. Kimisopa, he was there to assist Mr. Kimisopa win the election. Apart from there being a lack of allegation in those terms against Mr. Kuripana, there is no corresponding allegation that suggests that the other polling officers were also the servants and agents of Mr. Kimisopa acting with Mr. Kimisopa’s knowledge and authority. Section 215 (3) (a) and (b) in association with s. 208 (a) required relevant and sufficient facts to be set out in the petition. Likewise, the pleading in the petition should also disclose that, what Mr. Kuripana and the other mostly unnamed polling officials did was likely to affect the result of the election and that it is fair and just that Mr. Kimisopa’s election should be invalidated. This requires names, numbers and or figures. No such facts are set out in this part of the petition.
For these reasons I would strike out paragraphs 8, 9, 10, and 11 of the petition.
(b) Paragraphs 12 to 19
These paragraphs read as follows:
"12. On the same day, there were protests by people who wanted to vote for other
candidates but Baro Kirupana persistently refused them the right to do so.
First Respondent and other candidates. The First Respondent, and his supporters took the opportunity during this fight to steal large quantities of unused ballot papers and convey them from the polling place to other locations of their own choosing.
These part of the petition starts with or are immediately under the heading:
"The Petitioner alleges that the Second Respondent through its officers has contravened section 286 (1) (o) & (q) of the Organic Law by the misconduct of its officers during polling and unlawfully interfering with ballot-papers."
It follows therefore that, the matters pleaded immediately under this heading concern the allegation in that opening. This part of the petition is again premised upon s. 286 (1) of the Organic Law. What I already said in respect of this manner of pleading equally applies here.
In addition to what has already been said, I add that, as with the parts of the petition already covered, the paragraphs presently under consideration also fail to set out sufficient facts. Paragraphs 12, 14, 15, 16 and 19 concern voters, ballot papers and marking or casting of ballot papers. They all fail to specify the names and the number of the people or voters that were involved or affected, whether they were eligible voters and whether they were on the common roll. Also, they fail to state whether these conducts were likely to affect the result of the election and whether, it is fair and just that the election should be invalidated.
Paragraph 13 also lacks the kind of facts missing in paragraphs 12, 14, 15, 16 and 19. In addition to that, it fails to name the supporters of Mr. Kimisopa and state whether they were his servants and or agents and that they were acting with his knowledge and authority. In the course of the hearing of the objection, Mr. Ijape informed the Court that, the First Respondent was not in fact present at the polling. In so doing he was amending his petition by submission, which can not happen after the expiry of the 40 days limit under s. 208(e) of the Organic Law. In any event that is of no consequence as to the lack of the kind of facts in question.
Paragraph 17 introduces a new allegation of no roll call being conducted by the presiding officer. But it fails to show what effect this had on the voters’ right to vote. If any of the voters were adversely affected, it does not say how many were affected and it fails to show how that was likely to affect the result of the election. Furthermore, it fails to set out facts showing that conducting a roll call is the only way in which polling could be conducted. Indeed, I know of no law that requires a roll call to be conducted at polling. Section 133 of the Organic Law requires a person wishing to vote to state his full name or names and any other particulars the presiding officer may require to identify him on the common roll. This in my view eliminates the need for any roll call. I consider this is so for a very good reason. Any person may answer to a call and it would be difficult to confirm his identity without the aid of a proper identification card or a system close to that. Conducting a poll through a roll call may allow ineligible voters or those who might have already voted to vote again.
Paragraph 18 introduces a new and different allegation from the rest of the pleadings and speaks of threats by the supporters of Mr. Kimisopa, policemen and other persons loyal to him which actions could amount to undue influence. As with the other paragraphs, this paragraph also fails to name the supporters, policemen and other persons loyal to Mr. Kimisopa and whether they were his servants and or agents and were acting with his knowledge and authority: See Agonia v. Karo (supra). Further, it fails to set out the names and number of voters, and therefore votes that were affected in this way.
For these reasons I would also strike out paragraphs 12, 13, 14, 15, 16, 17, 18 and 19 of the petition.
(c) Paragraphs 20 to 26
These paragraphs read:
As its heading suggests, these paragraphs concern objections Mr. Ijape took at the counting of a number of ballot boxes from being counted. That included two ballot boxes, numbers 1404 and 1405 from polling team No. 36 at Rothmans Gate. No error, omission, illegal practice or irregularity is alleged. They are simply a narration of what Mr. Ijape did at the counting of votes. In my view they amount to evidence which is not required to be pleaded: See Holloway v. Ivarato (supra) as well as Mune v. Agiru (supra). If they are intended to be facts, then they fail to disclose sufficient facts within the meaning s. 215 (3) (a) and (b) coupled with s. 208 (a) of the Organic Law and in any case, they are irrelevant in my view. In the circumstances, I would order a strike out of these grounds of the petition.
(d) Paragraphs 29 - 59
These paragraphs read:
"29. The scrutiny of ballot papers took place at the Goroka Sport Institute.
30. On 18 July 2002 at about 2:00 pm, several policemen who were present at the
National Sport Institute counting center instructed counting officials who were also present to open Ballot Boxes identified and numbered 1404 and 1405.
34, On the same day, policemen assaulted Nathan Mote at the National Sports Institute Counting center.
46. On 25 July 2002, at the final count the results were as follows:
(i) Mathias Ijape 5978
(ii) George Herepe 5243
(iii) Huk Avut 5230
(vi) James Gomae 5082
(v) *Bire Kimisopa 5081
55. On 29 July 2002, at the hearing of originating summons number 414, in the
course of making comments refusing the Electoral Commission application, the National Court made observations that the Goroka returning officer had already determined that those ballot papers that had had their serial numbers removed were informal.
These paragraphs are preceded by the headings:
"The Petitioner alleges that the Second Respondent through its officers and agents
Has contravened section 286 (i) (0) & (q) of the Organic Law by the misconduct of
its officers during polling and unlawfully interfering with ballot-papers.
The Petitioner alleges that electoral errors, omissions and or misconduct of the electoral officers affected the results of the election of the Goroka Open electorate or was likely to affect the result of that election"
To the extended that these pleadings are preceded by the reference to the s.286 (1) (o) and (q) of the Organic Law, what I already said in relation to that equally applies here.
Paragraph 29 on its own can not be any basis to invalidate the election in terms of s. 215 of the Organic Law. For none of the matters specified in that provision is specified. The same can be said for the remainder of the paragraphs. In addition to that, paragraphs 30, 31, 32, 33, 34 do not disclose the names of the policemen allegedly involved. These paragraphs also fail to set out facts in terms of the unnamed policemen being either servants or agents of Mr. Kimisopa and they acted in the way alleged with his knowledge and authority.
The allegations in paragraphs 35 to 47 do no come within the ambit of s. 215 or an illegal practice, error, omission or an irregularity that can invalidate an election. The Supreme Court in the recent judgement in SCR 4 of 2002: Reference by Francis Damem, Attorney General for the Independent State of Papua New Guinea (Unreported and not yet numbered delivered 26.07.02), held that the Electoral Commission has the ultimate power under the Organic Law to run elections. Its powers are wide, and that there is no need for the Court to restate the powers the Commission has. Going by a similar reasoning, the National Court in Benias Peri v. The Electoral Commission (unreported and unnumbered judgement) O.S. 317 0f 2002, declined to grant an application to revoke the appointment of a returning officer for the Koroba/Lake Kopiago Open electorate in the 2002 National General Elections. Else where, in MP 389 of 2002; Enforcement Pursuant to s. 50: Application by Daniel Kapi (unreported judgement delivered 03/08/02) N2259 this Court per Gavara-Nanu J. expressed the view that the Electoral Commission has the ultimate power even to override the powers of returning officers in appropriate cases. I followed that line of authority in Herowa Agiwa v. Electoral Commission & Peri (supra).
What this means is that, a decision of the Electoral Commission should as a matter of law prevail over that of a returning officer in cases where there is some controversy as to what should be the result of an election. It also means it is inappropriate for the National Court to interfere, in the election process. The only instance at which the National Court is empowered to inquire into the conduct of an election at the end of the election process. This normally when an election petition is filed under s. 206 of the Organic Law, after an election or a return or a failure of an election.
When it comes to a decision on whether on not to include a ballot paper in a counting of votes, it is a matter that is vested in the returning officer under s.152 of the Organic Law. He has wider powers to determine whether or not a ballot paper should be declared formal or informal. In this context, s. 153 provides as to the circumstances in which a ballot is informal. Of course, where a returning officer arrives at a decision that is erroneous for whatever reason, he is not immune from scrutiny. There is always the right of review under s. 155(4) of the Constitution if he decides to fail an election or if he decides in favour of an election, an election petition under s. 206 of the Organic Law. Where there is an election petition, facts disclosing an illegal practice, error, omission or irregularity of the kind spoken of in s. 215 of the Organic Law must be pleaded.
The paragraphs under consideration in this case do not set out sufficient facts disclosing an error, omission, illegal practice or irregularity. For example, there is no facts pleaded as to what error, omission, illegal practice or irregularity the returning officer perpetrated in including the alleged 2959 informal votes in the counting of the votes, given the provisions of s. 152 and 153 of the Organic Law. By the same token, there are no facts set out disclosing the basis for the claim that those votes were informal having regard to the provisions of ss.152 and 153. Further, there is nothing indicating that the Electoral Commission and its servants or agents or any of the persons involved in the election were the servants and or agents of Mr. Kimisopa acting with his knowledge and authority and that it is fair and just that the election should be invalidated.
Besides, it is clear that the National Court orders of 24th July 2002, directed the returning officer to recount the ballot boxes numbered 1404 and 1405 and was done resulting in 2959 ballot marked ballot papers being declared informal. A subsequent National Court order on 27th July 2002, ordered a discharge of the earlier orders making it possible for the alleged informal votes to be included. Consequential on that, Mr. Kimisopa was declared the winner of the election. The Electoral Commission has recognised that declaration. The pleadings do not disclose if there as been a reversal of the 27th July 2002 orders of the National Court.
For these reasons I would strike paragraphs 29 to 59 of the petition.
(e) Paragraphs 94 to 103
These paragraphs read:
"Kosayufa Polling Irregularities
95. Kosayufa Community School was known as polling station number 24.
99. The number of voters listed on the common roll for polling place No. 24 is 1,765.
100. 2978 votes were cast and counted from polling place No. 24.
101. 1192 extra votes were cast for polling place No. 24.
These paragraphs talk about polling at Kosayufa. Paragraphs 94, 95, and 96 merely state what happened without setting out any material fact sufficient to constitute a ground to invalidate the election. They are instead, in my view, a pleading of the evidence of what may have happened at Kosayufa. Paragraphs 97 and 98 are statements of conclusion that a ballot box was unsecured without setting out material facts from which it could be inferred that the ballot box in question was not secured. It also leaves a lot of questions unanswered as to who was responsible to secure the ballot box and how? What was the identity of that box? If tampering is the suggestion, then who tampered with it? Whether the person involved was Mr. Kimisopa or a third party? If it was a third party, was he a servant or agent of Mr. Kimisopa acting with his knowledge and authority? What was the effect of such conduct on the election? Was it likely to affect the election?
Similarly, paragraphs 99, 100, 101, 102 and 103 require a lot more facts to disclose a possible ground to invalidate the election. This gives rise to a number of unanswered questions as well. These are amongst a list of others:
The law, as already noted requires a petitioner to plead the material facts sufficient to disclose a ground to invalidate an election in terms of s. 215 coupled with s. 208 (a) and the case law that has built around these provisions. These paragraphs do not meet that requirement. In any case, I note that, in the course of his argument, Mr. Injape correctly conceded to the objection taken as against paragraphs 97, 98 and 99. So this paragraphs are struck out without contest from Mr. Ijape. As for the other paragraphs I would also order a strike out of those paragraphs for reasons already given.
Reading the Petition as a Whole?
As noted already, in a bid to avoid a strike of the petition on the basis of its incompetence, Mr. Ijape is strongly urging this Court to read the petition as one. He argues that if I do that, I will be able to find that, he has set out sufficient and material facts on which he relies on to invalidate the election.
The import of all of the cases (most of which were already discussed) dealing with requirement to set out the facts relied on to invalidate an election according to the dictates of s. 208 (a), makes one point very clear. The requirements under s. 208 (a) must be strictly met. This is because, it is a very serious matter to seek to invalidate an election which represents the wishes of the majority which is in turn a very sacred right vest in the electors in an electorate once every five years. Based on these authorities, I have already expressed the view that, every provision that deals with an election petition must be strictly met because that is the only way in which the choice of the majority can be challenged.
This is way my brother Kirriwom J., noted in Micah v. Stuckey and the Electoral Commission (supra) noted that:
"... each ground of a petition unlike in ordinary civil litigation ... is a triable issue on its own and is capable of determining the success or demise of the petition."
In Ludger Mond v. Jeffery Nape & Electoral Commisson (supra) I expressed the view at p.24 that:
"The law requires a petitioner to be precise and clear in his allegations. It is not for the Court or the Respondents to work out what is alleged. If the Court were to do that, it would in effect be amending the petition, which can not happen after the expiration of the time limit under s. 208 (e)."
That was in response to a submission in relation to a number paragraphs in the petition that they should be read together in order to find, that all the necessary elements of an allegation bribery were disclosed in the pleadings.
I drew Mr. Ijape’s attention to my judgement and granted him an adjournment to consider it and make submissions on the effect of what I said to his case concerning his argument that I should read his petition as one. He was not able to address me specifically on that point but he did address me in other aspects of the case.
Injia J., took a view in Albert Karo v. Carol Kidu (unreported Judgement October 1997) N1626 to the ones expressed by Kirrowm and myself. This is what he said at p. 25 of his judgement:
"Clause 8 does not specify which electoral law was violated by the action of these officials. It is not in the interest of justice to leave the court and the Second Respondent (Electoral Commission) guessing as to what the provision breached might be. Where the Petitioner relies on the breach of statutory or constitutional duty by an electoral official, then that provision must be set out besides the alleged facts."
His Honour subsequently carried that view through in Mune v. Agiru & Electoral Commission (supra) in his capacity as a Supreme Court judge with whom, the Chief Justice agreed. This is how His Honour put it at p.12 of the judgement:
"In the present case, sitting as a judge of the Supreme Court, I am not persuaded that I should change my view. In the interest of clarity and precision and good pleading, I hold the view that where a petitioner relies on breach of statutory duties by the officers of the electoral commission or by other persons, either or their own or in association with each other, then the specific provision breached should be set out beside the alleged facts."
In the same Supreme Court judgement, Woods J., who was the other judge with whom the Chief Justice also agreed, appears at p. 7 of the judgement to have read the whole petition when he said:
"I note that the judge did deal with the allegation in 6 (C) (vi) separately and said that there was insufficient particularity, however a reading of the petition show that this allegation involves quite a number of sub-paragraphs which includes a complete list of ballot boxes and the polling area they came from, and an analysis of the number of votes and details of the alleged behaviour over each of the boxes referred to. I find that this allegation is pleaded with sufficient particularity such that the petitioner should be allowed to bring the evidence to a trial and then for the judge to make the relevant decisions in relation to the law on elections."
(Emphasis added)
In my view, these authorities make it clear that a petitioner is under an obligation to set out the facts he relies upon to invalidate an election, with precision and clarity. He must not leave the Court and the respondents to the petition guessing as to what is being alleged. Where a petition relies on a breach of a statutory or constitutional duty, that provision must be set out besides the alleged facts. A petition could stand on either one or more grounds. As such, each ground of a petition must be clearly pleaded together with any relevant provision of a statute or the Constitution by setting out the facts relied on. A petition could be read as a whole if the way in which the facts relied on to invalidate an election, shows the necessary connection by for example using a number of subparagraphs. Unless that is done, it is not for the Court and the parties to work out what is really being alleged by the petitioner. If the Court were to read a petition as one without that being indicated in the petition, it would have the effect of amending a petition which is not possible by reason of s. 208 (e): See, Daniel Tulapi v Charles Luta, David Basua and The Electoral Commission of PNG (unreported judgement delivered 10/10/02) SC653 and before that Biri v. Ninkama (supra).
In the present case, Mr. Ijape orally and in the written submissions of his former lawyer, Mr. G. Shepherd of Maladinas, Lawyers submits that paragraphs 8, 9, and 10 as well as the rest of it should be read together with paragraphs 1 to 103. There are a number of problems with this submission. Firstly, there is nothing in these paragraphs to show that all of these paragraphs should be read together.
Secondly, they speak of a number of different possible grounds for the petition, for which specific and clear set of facts need to be set out with precision. Reading the petition as a whole does not help fill in the missing facts.
Thirdly, a combined reading of any number of the petition does not make the case any clearer for the petitioner. Instead, it creates confusions and difficulties in trying to work out what facts Mr. Ijape is relying upon to invalidate the election. A much clearer example of this is a reading of paragraphs 14 and 18 where one speaks for there being polling while the other speaks of a gate being locked and thereby keeping out voters. These kinds of inconsistencies are apparent when the petition is read as a whole.
A further example is paragraph 11. This paragraph speaks of Mr. Kuripana being a blood cousin of Mr. Kimisopa issuing instructions to most unnamed polling officers to destroy serial numbers to ballot papers, whilst it speaks at the same time of no roll call being conducted without specify what effect it had on the election. This could hardly be to assist Mr. Kimisopa to win. At the same time it does not match up with the reference to s. 286 (1) (h) and (j). Similarly, the allegations in paragraphs 94 to 103 have nothing to do with the other paragraphs. If all of the paragraphs are read together, they are incompatible as they speak of two different polling places and number of different possible grounds for the petition without the relevant and sufficient facts to form the basis for them.
Finally, even a reading of the petition as a whole fails to fill in all of the missing facts as highlight in the specific examination of each of the paragraphs constituting the petition. This case is unlike the case of the petition in the Mune v. Agiru and Electoral Commission (supra). In that case a reading of the whole petition disclosed clearly the basis of the petition with details such as names of persons, places, the number of votes in question and a demonstration of how the result of the election was likely to be affected being clearly set out. In the current case, as already seen in the examination of each of the paragraphs, it fails to disclose any such details.
The only improvement a reading of the whole petition would present for Mr. Ijape is the combined effect of paragraphs 9 to 19 and 29 to 59 and then 20 to 26. This would show that there were a total 2959 informal votes because of the destruction of the serial numbers of ballot papers at Rothmans Gate polling, out of 3020 ballot papers in ballot box numbers 1404 and 1405. If this ballots were excluded from being counted in accordance with the National Court orders of the 24th of July 2002, the result was likely to be affected as he became the winner at the end of the count that excluded the 2959 ballot papers though not yet acknowledged and approved or endorsed by the Electoral Commission.
But this would be contrary to the subsequent order of the National Court of the 27th of July 2002, which in effect returned the process to the position prior to the orders of 24th July 2002. The position then was a decision was made by the returning officer to include the 2959 votes in the count. Consequential on that Mr. Kimisopa was declared the winner, which the Electoral Commission accepted.
In any case, the particular lack of facts as highlighted in the examination of each of the paragraphs under their respective headings do not disappear on a reading of the petition as one. Hence this submission is of no assistance to Mr. Ijape because the defects already identified remain.
In short, a reading of the petition as one is not possible as matter of law in the absence of any indication in the pleadings for this to be done in order to avoid an amendment to the petition outside the time limit set by s. 208 (a) of the Organic Law. In any case, the statement of the facts relied on for the petition makes it not possible to read the petition as one because of different facts and grounds that are being alleged. Even if this were possible, the defects already identified would still render the main parts of the petition incompetent.
That being the case, there is nothing to prevent me to strike out paragraphs 8 to 103. I therefore order a strike out of those paragraphs for being incompetent for the reasons already given. The remaining paragraphs of the petition from 1 to 7 do not constitute any sufficient facts to invalidate the election. They therefore, do not warrant this matter proceeding to trial. Accordingly, I order a dismissal of the whole of the petition for incompetence with costs.
Summary
In summary I answer each of the issues raise as follows:
The formal orders of the Court are:
________________________________________________________________________
Lawyers for the Petitioner: Nil.
Lawyers for the First Respondent: Pato Lawyers.
Lawyers for the Second Respondent: Nonggorr & Associates Lawyers
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