Kopaol v Embel [2008] PGNC 43; N3319 (23 April 2008)

N3319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 38 OF 2007

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND

IN THE MATTER OF A DISPUTED RETURN FOR THE NIPA-KUTUBU OPEN ELECTORATE

BETWEEN:

ROBERT KOPAOL
Petitioner

AND

PHILEMON EMBEL
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Mendi: Salika, J
2008: 15, 16, 17, 18 and 23 April,

ELECTION PETITION – Notice of Objection to Competency – Election Petition Rules – Pleadings to be clear – Allegations of moving a polling place to another place without lawful authority – whether moving or shifting of a gazetted polling place to another polling place is unlawful - Where pleading state that a law has been breached it should also state what law has been breached – Pleadings do not support a breach of the law.

Cases Cited:
Steven Pirika Kamma v John Itanu, Andrew Trawen & Michael Laimo (2008) N3246
Holloway v Ivarato [1988-89] PNGLR 99
Ijape v Kimisopa – N2344
Wingti v Olga (March 2008) in EP 55 of 2007
Petrus Thomas v Benais Peri (2006) SC830
Peipul v Niningi (1988) SC580;
Amaiu v Maki (2003) N2364

Legislations Cited:
Organic Law on National and Local Level Government Elections
Electoral Law (National Elections) Regulations 2007

Counsel:
Mr G J Sheppard, for the Petitioner
Mr P Paraka, for First Respondent
Mr A Kongri, for Second Respondent

23 April, 2008

1. SALIKA J: Background: The Petitioner in this matter was the runner up to the First Respondent in the 2007 National Elections for the Nipa-Kutubu Open Electorate. He filed an election petition in the National Court claiming "undue influence by the First Respondent and errors and omissions of the Second Respondent and illegal practice by the First and Second Respondent".

2. The original petition was filed on 5 September 2007. An amended petition was filed the next day on 6 September, 2007.

3. A notice of objection to competency was filed on 26 October 2007 and served on the petitioner through its lawyer’s office. The Second Respondent was also served a copy of the notice of objection to competency on the same day. The original notice is document number 23 on the Court file.

4. An amended notice of Objection to Competency was filed on 29 October 2007 some 3 days after the original one. This notice was not served on the petitioner or his lawyers until the 9 April 2008, 5 days before the trial date.

5. The Petition was scheduled for hearing on 14 April 2008 in Mendi. As per the Election Petition Rules, any Objection to Competency applications are to be heard at the time of the trial. Thus the competency application usually precedes the trial. The First Respondent presented his arguments through a lengthy submission that took the entire day on the 15 April 2008.

The Court then adjourned for the Petitioner to reply to the First Respondent’s submission.

6. As a result of the First Respondent’s submission the Petitioner withdrew substantial parts of the petition giving it a virtually new look. At this juncture, I pause to say that the Petitioner took it upon himself with his lawyers to take that cause of action. Ordinarily it is the court that would usually determine if the grounds as withdrawn were competent or not. .

7. Again as a result of the wholesale change to the petition, the court adjourned for the First Respondent to reply to the Petitioner’s reply. After hearing the First Respondent reply the court adjourned to deliberate on the matter.

THE ORIGINAL PETITION

8. Because of the various changes made to the petition it is only sensible that the full text of the original petition be cited.

The Petition of ROBERT KOPAOL, an unsuccessful candidate for the NIPA-KUTUBU OPEN seat in the National Parliament, respectfully shows that –

1. The Petitioner was a candidate for the NIPA – KUTUBU OPEN seat in the National Parliament in the election held between 4 May 2007 and 6 August 2007.
   
2. At the declaration of the poll on 28 July 2007, the First Respondent was declared elected having polled 18,829 votes.
   
3. The petitioner was the runner-up having polled 18,186 votes, a difference of 645 votes.
   
4. The conduct of National Elections and related matters are the responsibility of the Second Respondent pursuant to the Organic Law on National and Local-Level Government Elections.
   

UNDUE INFLUENCE BY THE FIRST RESPONDENT AND ERRORS AND OMISSIONS OF THE SECOND RESPONDENT AND ILLEGAL PRACTICES BY THE FIRST AND SECOND RESPONDENTS.

5. The Second Respondent, by its officers and agents made errors and omissions, and committed illegal practices in the conduct of the election and the scrutiny of the votes which were sufficient to affect the result of the election, particulars of which are as follows:
   
6. The First Respondent committed undue influence. The First Respondent and his agents or servants, with the knowledge and authority of the First Respondent, committed several acts of undue influence and illegal practices with the intention to interfere in the free voting in the elections by voters, which affected the result of the election.
   

Particulars

1. Polling Team for Ward 20 Kum in Poroma LLG polling at Kapit Community School.
   

At Kum village.

7. The Second Respondent had declared that on 30 June 2007 polling for the Nipa-Kutubu Open electorate was to take place.
   
8. Polling for Ward 20 Kum was gazetted to take place at Kum Village in the Nipa Basin Local Level Government. In fact Kum Village is part of Poroma Local Level Government of Nipa Kutubu Open Electorate.
   
9. Ward 20 Kum was assigned by the Second Respondent ballot box numbered 0642 with 1,245 ballot papers. The Second Respondent gazetted team 105 would conduct the polling for Ward 20 Kum, at Kum Village.
   
10. On 30 June 2007, on the day of polling, the security personnel assigned to Kum Village for polling arrived at the village with the ballot box. The security were dropped off at Kum Village by an army truck organized by Second Respondent and informed that they would be picked up at the same place when polling was complete.
    
11. At Kum Village, the security personnel discovered that the polling team was not present and the polling area had not been set up for polling. Voters were also waiting at Kum Village for the polling, about 400 to 500 voters.
    
12. Between 9.30 am and 10:30 am the First Respondent appeared at Kum Village, driving his Toyota Land Cruiser troop carrier registration number BCC 810.
    
13. The First Respondent told the security personnel that the polling had moved to Kapit Community School and that he would take the security personnel together with the ballot box there
    
14. The voters at Kum Village were upset about the change of polling place and objected to the move to Kapit Community School, a long distance away.
    
15. the Presiding Officer for Kum Village gave no notice to voters at Kum village that polling would take place at Kapit Community School.
    
16. The Security Personnel went with the first Respondent in his vehicle together with the ballot box to Kapit Community School.
    
17. Immanuel Mark Panga, a voter, travelled with the First Respondent and the security personnel to Kapit, in is vehicle.
    
18. On the way to Kapit, the First Respondent stopped at a trade store and gave money to one of his agents to buy the security personnel and a voter Immanuel Mark Panga, drinks and food.
    
19. At the trade store the First Respondent said to voters including Immanuel Mark Panga, "Turn around and go to Kapit, I’m bringing the policemen there."
    
20. The Security Personnel arrived at Kapit Community School at approximately 11:00 am, and the polling was already set up and the Presiding Officer with his team was there.
    
21. When the First Respondent dropped off the security personnel he said to them, "See you later, I’ll be back."
    
22. The First Respondent did the above, from paragraph 12 to 21, to unlawfully obstruct the free exercise of franchise by electors, by attempting to induce them to vote for him by controlling the polling for Ward 20 Kum. The First Respondent unlawfully and with intent to interfere unlawfully in the free voting by voters of the Nipa Kutubu Open Electorate, moved the polling without lawful authority, to Kapit Community School, with intent to corruptly induce, Immanuel Mark Panga, a voter and others whose names are registered on the common roll for the Nipa Kutubu Open Electorate, to vote for the First Respondent in the 2007 General Election.
    
23. The Second Respondent, by its servants and agents without lawful authority moved polling from a gazetted polling place to another polling place, to obstruct the free exercise of franchisee by electors to vote in the Nipa Kutubu Open Electorate.
    

At Kapit Community School.

24. At Kapit Community School a polling team besides team 105 was polling about 20 meters away from polling team 105. Kapit Community School was not a gazetted polling place for any polling.
    
25. The polling at Kapit Community School was done illegally, names were called out and people came forward to receive ballot papers, without verifying their names or details from the common roll, marked their ballot papers and placed the marked ballot papers in the ballot box. People voting were not verified as voters, and that their names appeared on the common roll before been given ballot papers to mark and place in the ballot box. People who were under age were also given ballot papers to vote.
    
26. At the polling, the First Respondent’s agents delivered food and drinks for the security personnel and polling team.
    
27. At about 6.00 pm the security personnel told the polling team that they had to stop polling as it was getting dark, and that the electoral laws provided that polling had to end at 6.00 pm.
    
28. The polling officials insisted that polling would continue. The supporters and agents of the First Respondent were aggressive and threatening and also insisted that polling continues. The security personnel were fearful for their safety and therefore went along with the presiding Officer’s decision to continue polling. At that time approximately 700 ballot papers were unused, but as the Presiding Officer did not announce the number of unused ballot papers, the exact number is unknown.
    
29. The Second Respondent, by its servants and agents, without lawful authority – set up polling at Kapit Community School, allowed under age persons to cast votes, did not verify persons identities before allowing them to vote, and continued polling beyond 6.00 pm. The Second Respondent, by its servants and agents, committed acts from paragraph 24 to 28 herein, to unlawfully obstruct the free exercise of franchisee by electors to vote in the Nipa Kutubu Open Electorate.
    
30. The First Respondent, by his agents, with his knowledge and authority – illegally provided drinks and food to polling officials and used threats and intimidation against the polling team, including the security personnel to continue polling beyond 6.00 pm. The First Respondent, by his servants and agents, with the First Respondent’s knowledge and authority committed the acts referred to in paragraph 26 and 28 herein, to unlawfully obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
31. Therefore because of events in paragraphs 8 to 30 above, polling at Kapit Community School was illegal and all ballot papers returned from the polling should be excluded from scrutiny and counting, from the Nipa Kutubu Open Electorate. There were 1,245 ballot papers provided to Ward 20 Kum for polling, but as polling at Kapit Community School was illegal and the First Respondent received 1,063 votes from ballot box 0642, and the Petitioner received no votes from ballot box 0642, when the First Respondent’s 1,063 votes are taken from the tally the number of votes exceeds the difference between the First Respondent and the Petitioner, which is 645 votes, the petitioner then leads the count by 418 votes and therefore the result of the election is affected.
    
32. Alternatively, when illegal polling ended at Kapit Community School at 6.00 pm, approximately 700 unused ballot papers remained. Had those unused ballot papers been returned, as the difference between the First Respondent’s final tally and the petitioner’s final tally is 645 votes, the Petitioner would have won the election by 55 votes and the outcome of the election would have been affected
    

At the Club House

33. Polling was moved to another location, in the premises of a club where liquor is sold, and where a generator had been set up for the polling to continue. The ballot box had remained unlocked and was carried by a polling team member to the new location, at the clubhouse.
    
34. At the clubhouse the polling was done as at Kapit Community School, names were called and people came forward to receive ballot papers without verifying their names or details from the common roll, marked their ballot papers and placed the marked ballot papers in the ballot box. People voting were not verified as voters before been given ballot papers to mark and place in the ballot box. People who were obviously under age were also given ballot papers to vote. The supporters of the First Respondent were intimidating as they were carrying knives and axes and insisted on the continuation for polling.
    
35. Polling at the club house ended at about 10.00 pm and security personnel, Mr Mathew Mai then attempted to place the outer seal on the ballot box and to lock it, but he was prevented from doing so by the Presiding Officers and supporters and agents of the First Respondent. Mathew Mai was intimidated and threatened by the Presiding Officer and supporters and agents of the First Respondent and therefore he did not attend to the outer seal or lock the ballot box.
    
36. There remaining unmarked ballot papers were placed in a separate box by the Presiding Officer. As the presiding officer did not announce the remaining number of ballot papers, the number of unused ballot papers at that time is not known.
    
37. The Second Respondent, by its servants and agents, without lawful authority – set up polling at a clubhouse after 6.00 pm, set up polling at a place not gazetted, allowed under age persons to cast votes, did not verify persons identities before allowing them to vote, and continued polling beyond 6.00 pm. The Second Respondent, by its servants and agents committed acts from paragraph 31 to 34 herein, to unlawfully obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
38. The First Respondent, by his agents, with his knowledge and authority – used threats and intimidation against the polling team, including the security personnel to continue polling beyond 6.00 pm, prevented the servants and agents of the Second Respondent to seal and lock the ballot box. The First Respondents knowledge and authority committed the acts referred to in paragraph 31 and 34 herein, to unlawfully obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
39. Therefore because of events in paragraphs 32 and 37 above, polling for Ward 20 Kum was illegal and all ballot papers returned from that polling should be excluded from scrutiny and counting from the Nipa Kutubu Open Electorate.
    

At the First Respondent’s house

40. Between 10.30 pm and 11.00 pm the security personnel, in the company of the presiding officer, the assistant presiding officer and agents of the First Respondent were led to the First Respondent’s house.
    
41. When the security personnel, the Presiding Officer and assistant presiding officer arrived at the First Respondent’s house, the First Respondent’s wife provided tea for the security team. A short while later, when the First Respondent arrived at the house, the presiding officer and the assistant presiding officer went with him into his house, taking with them the box containing the unused ballot papers.
    
42. After a while, the First Respondent, the Presiding Officer and the Assistant Presiding officer came outside the house and the First Respondent said to the security personnel, "Your life is in my hands and my life is in your hands. This is not a good place, during the SOE, they shot two army security personnel lately. Get in the car and I will take you to Kar Station. The security personnel understood that First Respondent’s words and actions to be threatening and that he determined whether they got back to base safely.
    
43. The security personnel, the presiding officer, and the assistant presiding officer and a few supporters and agents of the First Respondent got into the First Respondent’s vehicle and the First Respondent drove the vehicle.
    
44. While the First Respondent drove, he spoke in the local language to those in the vehicle, and one of the First Respondent’s agents directed Mathew Mai to open the ballot box. Mathew Mai opened the ballot box and marked ballot papers were stuffed in the box by agents of the First Respondents. After the ballot papers were stuffed in the ballot box, the outer seal and the lock were put in place by Mathew Mai.
    
45. In the vehicle when they arrived in Kar, the First Respondent said to the security personnel. "I will get your names, because when I win, I will come and see you in Wewak." The First Respondent then provided his telephone number to Kenneth Wani. The security personnel understood the First Respondent’s words and actions to mean that they needed to be silent about what they saw that day, and if he won the seat in the elections, he would reward the security personnel.
    
46. When the security personnel returned to base, Kar Station, they made a report to their superior about the above incidents, from paragraph 10 to 42.
    
47. The Second Respondent, by its servants and agents, without lawful authority – allowed ballot papers to be marked and stuffed in the ballot box after poling had closed and not sealed and locked the ballot box after polling. The Second Respondent, by its servants and agents, committed acts from paragraph 37 to 41 herein, to obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
48. The First Respondent unlawful used threats and intimidation against the polling team, including the security personnel. The First Respondent, by his agents with the knowledge and authority of the First Respondent, unlawfully prevented the servants and agents of the Second Respondent to seal and lock the ballot box. The First Respondent, and his servants and agents, with the First Respondent’s knowledge and authority committed unlawful acts referred to in paragraph 37 and 42 herein, to unlawfully obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
49. Therefore because ballot box 0642 was included for scrutiny and counting the First Respondent wrongfully tallied 1,063 votes from the box. Had the ballot box been excluded, including 1,063 votes assigned to the First Respondent from the ballot box, the Petitioner would have won the election by 418 votes and consequently, the outcome of the election was affected.
    

C: Nipa Kutubu Open Electorate Counting Centre.

50. The counting centre for Nipa-Kutubu Open Electorate was at Momei Oval, Mendi, Southern Highlands Province.
    
51. Counting started on 8 July 2007,.
    
52. Ballot Box 0642 from Kum village was one of several boxes that were the subject of serious objections by scrutineers of various candidates at the counting centre.
    
53. The Petitioner wrote a letter to the Returning Officer, dated 12 July 2007 objecting to the counting of Ballot Box 0642, amongst others, as there was evidence that the ballot box was wrongfully in the possession of the First Respondent.
    
54. On 17 July 2007, the Returning Officer, Mr Robin K Pip declared Ballot box 0642 would be excluded from scrutiny and count.
    
55. On 18 July 2007 the Deputy Electoral Commissioner erred in law when he wrote to the Electoral Commissioner advising him that ballot box 0642 should be counted.
    
56. On 19 July 2007, the Electoral Commissioner erred in law when he wrote to the Returning Officer to count the marked ballot papers in ballot box 0642, after the Returning Officer had made a declaration that ballot box 0642 is excluded from scrutiny and count.
    
57. On 19 July 2007, the Returning Officer wrote to the Electoral Commission confirming his position the Ballot Box 0642 should remain excluded, and he stated reasons of illegal practices.
    
58. Soon thereafter, ballot box 0642 was wrongfully admitted for scrutiny and counting. At the time the ballot box was admitted for scrutiny and counting the petitioner’s scrutineer was rejected admittance to the counting centre and did not witness the scrutiny and count to the ballot box.
    
59. The Second Respondent made an error and omission, and by allowing scrutiny and counting of ballot papers in ballot box 0642 as the Returning Officer had excluded the ballot box from scrutiny and counting, as the only way the decision of a Returning Officer may be challenged is by way of petition.
    
60. The Second Respondent by its servants and agents had no lawful authority to include ballot box 0642 for scrutiny and counting, once the Returning Officer had declared the ballot box would be excluded from scrutiny and counting.
    
61. The Second Respondent by its servants and agents, committed acts from paragraph 51 and 54 herein, to obstruct the free exercise of franchise by electors to vote in the Nipa Kutubu Open Electorate.
    
62. Therefore because Ballot box 0642 was included for scrutiny and counting the First Respondent wrongfully tallied 1,063 votes from the box. Had the ballot box been excluded, including 1,063 votes assigned to the First Respondent from the ballot box, the Petitioner would have won the election by from the ballot box, the Petitioner would have won the election by 418 votes and consequently, the outcome of the election was affected.
    
63. The relief and orders sought by the Petitioner are as follows:
    
    • (i) An order that the First Respondent was not duly elected.
      
    • (ii) An order that the Petitioner is duly elected.
      
    • (iii) In the alternative an order that there be a recount.
      
    • (iv) An order excluding the ballots in Ballot box No 0642.
      
    • (v) In the alternative, an order that the Petitioner be declared to be the winner of the election after the recount, in the event that he polls the highest number of votes.
    • (vi) In the alternative that the election is null and void, and a by-election be declared.
      
    • (vii) An order for refund of the K5,000.00 security deposit in the National Court to the Petitioner.
      
    • (viii) Costs
      
    • (ix) Other orders the Court deems fit.
      

9. It was to this petition that the Objection to Competency application was made.

10. The Objection to Competency was addressed in 3 parts:

(a) it challenged the petition as not pleading "relevant and material facts" sufficient to constitute a ground under s.208(a) of the Organic Law.

(b) It challenged the petition as not having pleaded the relevant "relief" in respect of the allegations in the petition in breach of s.208(b) of the Organic Law.

(c) It addressed the issues of lack of compliance with the requirements of s.206 of the Organic Law, in particular for addressing the petition to 3 different addresses.

ALLEGATIONS

11. The petition alleged instances of undue influence and illegal practices against the First Respondent and errors and omissions against the Second Respondent at a certain polling area but in various locations namely:-

(d) Allegations at Kum village

The allegations there are from matters pleaded in paragraphs 7 to 23. Allegations of malpractices and undue influence were made against the respondents.

(e) Allegations at Kapit Community School

Allegations there are from paragraphs 24 to 32 of the petition. Allegations of illegal voting, undue influence and errors and omissions were made against the respondents.

(f) Allegations at the Club House

They range from paragraphs 33 to 39 of the petition. Allegations of illegal voting, undue influence, illegal practices and errors and omissions were made against the respective respondents.

(g) Allegations at the First Respondent’s house

Those are alleged from paragraphs 40 – 49. Those allegations involve allegations of illegal practices against the respondents.

(h) Allegations at the Counting Centre.

Those allegations are from paragraphs 50 – 67.

The allegations there are that the officers of the Electoral Commission unlawfully counted a disputed ballot box, which constituted a ground of error and omission on the part of the Electoral Commission.

WITHDRAWAL OF CERTAIN PARAGRAPHS OF AMENDED PETITION.

12. As alluded to earlier in paragraph 11, after the First Respondent made his competency application the court adjourned to the next day. On the next day the petitioner withdrew a bulk of the petition.

13. The following paragraphs of the Amended Petition were withdrawn:-
6,17,18,19, 21, 22,25, 26, 27, 28, part of 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 61 and 63(i) and (vi).

14. The above named withdrawn paragraphs pleaded undue influence and illegal practices by the First Respondent and the facts alleged illegal polling at Kapit Community School, up to the beginning of the scrutiny and count.

SUBMISSION BY PETITIONER THAT OBJECTION TO COMPETENCY IS ABUSE OF PROCESS

15. The petitioner in his reply to the submissions on the Objection to Competency by the First Respondent submitted that the First Respondent’s objection to competency was an abuse of the process of the Court in that he had filed his original notice of objection to competency on 26 October 2007 pursuant to a Court order filed on 18 October 2007. He argued that Order 13 of that court order provided that any Objection to Competency must be filed and served before the pre-trial conference. Order 11 of that same court order provided that the pre-trial conference be conducted at the Waigani National Court on Monday 29 October at 9.30 am. The petitioner does not dispute the original Objection to Competency filed.

16. The petitioner further argued that the First Respondent filed an Amended Notice of Objection to Competency on an unknown date and served on him only on 9 April 2008 and that the amended notice to objection to competency was not pursuant to any court order. This he submitted was not fair and did not give him sufficient time to adequately prepare. He said he was ambushed by the notice and the submissions. It is the amended notice and the lengthy submission that the Petitioner says is an abuse of process.

17. The First Respondent replied that his original Notice of Objection to Competency was filed on 26 October 2007 which is document 23 in the court file and that the pre-trial conference was set for 29 October 2007. He submitted that the notice was served on the petitioner through his lawyers on 26 October 2007 which complied with the Court order.

18. I do note that document number 23 on the court file was filed on 26 October 2007.

19. The Amended notice of Objection to Competency was filed on 29 October 2007, the same day the pre-trial conference was set.

20. The amended notice was not served on the petitioner until 9 April 2007. The amended notice added the additional ground that the petition be struck out pursuant to s.117 of the Organic Law on National and Local Level Government Elections.

21. If there was any argument with the Notice of Objection to Competency it should be the addition of ground 7 in the Amended Notice and the lengthy submission. That is because the Amended Notice does not comply with the court order of 18 October 2007 in that it was not filed and served before the pre-trial date.

22. I accordingly strike out the amended notice to ensure fairness and equity. The effect to that is that the original notice of objection to competency filed on 26 October suffices.

23. Counsel for the Petitioner submitted that the First Respondent also had been unfair on him to suddenly, on the day of trial, spring up on him, a 91 page submission, and that he only provided him a copy so reluctantly.
23. He argued that, while the grounds stated in the Notice itself were general, the 91 page submission was elaborate and detailed, which gave him very little time to adequately respond, thus arguing that it was unfair and that this was an ambush.

24. I agree with the petitioner on that submission in that the lengthy submissions were only given to him in court when the counsel stood to make the submissions and I agree that this was not fair on the Petitioner.

25. The Election Petition Rules overlook this aspect of the pre-trial process, that any submissions or extracts of submission to be relied on, be filed and served one or two weeks before trial. This would ensure fairness to the responding party or the petitioner.

26. Such submissions or extract of submissions filed well in advance will help or inform a petitioner in advance to carefully consider the competency of his petition.

27. As has happened in this case such a submission or an extract of it, may compel the petitioner to either withdraw a part of the petition, withdraw the entire petition or amend the petition (if he is still within the time allowed to make amendments).

28. In this case the petitioner at a very short notice was confronted with an elaborate and voluminous submission and this has prompted him to withdraw some parts of the petition.
29. The pre-trial process must also determine in no uncertain terms the length of submissions and that extract of submission in objection to competency application and also at the trial proper. The length of the submission and extracts of this may be determined by the number and competency of issues to be considered.

30. I do note the sentiments expressed by Kandakasi, J in Steven Pirika Kamma v John Itanu, Andrew Trawen and Michael Laimo N3246 where he said:

"Hence, I am of the view that, respondents to petitions should in fairness and equity be required to precisely and clearly state the nature of their objection with the grounds and the relevant particulars within a specified time from the date of service of the petition on them and formally notify petitioners and the Court at the directions hearing stage, which is the first time an election petition gets to the attention of the Court. A failure to do so should result in the defaulting respondent being precluded from raising any objection. Where a notice of objection is given in this way, respondents should not be readily permitted to depart from the grounds of their objection save only for an abandonment of the objection or a ground of the objection. As there has been too much free and easy ride for respondents and the adverse consequence this has on the right of petition to invoke the jurisdiction of the Court and have it determined on the substantial merits of his case, I consider the time has come for prescribing such requirements

31. While I agree with the sentiments he raises in that case I am of the belief that the Election Petitions rules should provide for such a practice, but if the rules do not provide for them, the pre-trial process should take care of such matters, to ensure fairness and equity. Such rates should also provide sanctions for non compliance

32. As it is, no such specific orders for filing and serving the submissions or extracts of it, one or two weeks before the trial date were made at the pre-trial process.

33. I do note however that the court did make an order that written submissions of not more than 15 pages and extracts of not more than seven and half pages be filed prior to trial. The expression "prior to trial" in my view is vague.

34. While the petitioner has complained about the manner the First Respondent brought about the lengthy submission, he has nevertheless accepted the submissions and gone ahead and withdrawn some paragraphs of the petition. He is now stuck with it. The objection should have been made right from the time he was served the same and before the First Respondent proceeded to make his submissions. The petitioner did not do that. He only complained after the submissions were made.

35. The First Respondents submissions have helped him to consider the Competency of his petition. He has acted accordingly on the strength of those submissions before he finally took the court to his own submissions. He appeared to have conceded somewhat to the submissions made despite the late service.

36. The new petition looks like this as a result of the withdrawals.

The Petition of ROBERT KOPAOL, an unsuccessful candidate for the NIPA-KUTUBU OPEN seat in the National Parliament, respectfully shows that –

1. The Petitioner was a candidate for the NIPA – KUTUBU OPEN seat in the National Parliament in the election held between 4 may 2007 and 6 August 2007.
2. At the declaration of the poll on 28 July 2007, the First Respondent was declared elected having polled 18,829 votes.
3. The petitioner was the runner-up having polled 18,186 votes, a difference of 645 votes.
4. The conduct of National Elections and related matters are the responsibility of the Second Respondent pursuant to the Organic Law on National and Local-Level Government Elections.
   

UNDUE INFLUENCE BY THE FIRST RESPONDENT AND ERRORS AND OMISSIONS OF THE SECOND RESPONDENT AND ILLEGAL PRACTICES BY THE FIRST AND SECOND RESPONDENTS.

5. The Second Respondent, by its officers and agents made errors and omissions, and committed illegal practices in the conduct of the election and the scrutiny of the votes which were sufficient to affect the result of the election, particulars of which are as follows:
   
6. _______________________________
   

Particulars

1. Polling Team for Ward 20 Kum in Poroma LLG polling at Kapit Community School.
   

At Kum village.

7. The Second Respondent had declared that on 30 June 2007 polling for the Nipa-Kutubu Open electorate was to take place.
8. Polling for Ward 20 Kum was gazetted to take place at Kum Village in the Nipa Basin Local Level Government. In fact Kum Village is part of Poroma Local Level Government of Nipa Kutubu Open Electorate.
9. Ward 20 Kum was assigned by the Second Respondent ballot box numbered 0642 with 1,245 ballot papers. The Second Respondent gazetted team 105 would conduct the polling for Ward 20 Kum, at Kum Village.
10. On 30 June 2007, on the day of polling, the security personnel assigned to Kum Village for polling arrived at the village with the ballot box. The security were dropped off at Kum Village by an army truck organized by Second Respondent and informed that they would be picked up at the same place when polling was complete.
11. At Kum Village, the security personnel discovered that the polling team was not present and the polling area had not been set up for polling. Voters were also waiting at Kum Village for the polling, about 400 to 500 voters.
12. Between 9.30 am and 10:30 am the First Respondent appeared at Kum Village, driving his Toyota Land Cruiser troop carrier registration number BCC 810.
13. The First Respondent told the security personnel that the polling had moved to Kapit Community School and that he would take the security personnel together with the ballot box there.
14. The voters at Kum Village were upset about the change of polling place and objected to the move to Kapit Community School, a long distance away.
15. The Presiding Officer for Kum Village gave not notice to voters at Kum village that polling would take place at Kapit Community School.
16. The Security Personnel went with the first Respondent in his vehicle together with the ballot box to Kapit Community School.
    
17. ___________________________________
18. ___________________________________
19. ___________________________________
    
20. The Security Personnel arrived at Kapit Community School at approximately 11:00am, and the polling was already set up and the Presiding Officer with his team was there.
    
21. ____________________________________
22. ____________________________________
    
23. The Second Respondent, by its servants and agents without lawful authority moved polling from a gazetted polling place to another polling place, to obstruct the free exercise of franchisee by electors to vote in the Nipa Kutubu Open Electorate.
    

At Kapit Community School.

24. At Kapit Community School a polling team besides team 105 was polling about 20 meters away from polling team 105. Kapit Community School was not a gazetted polling place for any polling.
    
25. ____________________________________
26. ____________________________________
27. ____________________________________
28. ____________________________________
    
29. The Second Respondent, by its servants and agents, without lawful authority – set up polling at Kapit Community School, allowed under age persons to cast votes, did not verify persons identities before allowing them to vote, and continued polling beyond 6.00pm. The Second Respondent, by its servants and agents, committed acts from paragraph 24 to 28 herein, to unlawfully obstruct the free exercise of franchisee by electors to vote in the Nipa Kutubu Open Electorate.
    
30. ____________________________________
    
31. Therefore because of events in paragraphs 8 to 30 above, polling at Kapit Community School was illegal and all ballot papers returned from the polling should be excluded from scrutiny and counting, from the Nipa Kutubu Open Electorate. There were 1,245 ballot papers provided to Ward 20 Kum for polling, but as polling at Kapit Community School was illegal and the First Respondent received 1,063 votes from ballot box 0642, and the Petitioner received no votes from ballot box 0642, when the First Respondent’s 1,063 votes are taken from the tally the number of votes exceeds the difference between the First Respondent and the Petitioner, which is 645 votes, the petitioner then leads the count by 418 votes and therefore the result of the election is affected.
    
32. ____________________________________
    

At the Club House

33. _____________________________________
34. _____________________________________
35. _____________________________________
36. _____________________________________
37. _____________________________________
38. _____________________________________
39. _____________________________________
    

At the First Respondent’s house

40. ____________________________________
41. ____________________________________

42 ____________________________________

43 ____________________________________

44. ____________________________________

46. ____________________________________

47. ____________________________________
48. ____________________________________
49. ____________________________________
    

C: Nipa Kutubu Open Electorate Counting Centre.

50. The counting officer for Nipa Kutubu Open Electorate was at Momei Oval, Mendi, Southern Highlands Province.
51. Counting started on 8 July 2007,.
52. Ballot Box 0642 from Kum village was one of several boxes that were the subject of serious objections by scrutineers of various candidates at the counting centre.
53. The Petitioner wrote a letter to the Returning Officer, dated 12 July 2007 objecting to the counting of Ballot Box 0642, amongst others, as there was evidence that the ballot box was wrongfully in the possession of the First Respondent.
54. On 17 July 2007, the Returning Officer, Mr Robin K Pip declared Ballot box 0642 would be excluded from scrutiny and count.
55. On 18 July 2007 the Deputy Electoral Commissioner erred in law when he wrote to the Electoral Commissioner advising him that ballot box 0642 should be counted.
56. On 19 July 2007, the Electoral Commissioner erred in law when he wrote to the Returning Officer to count the marked ballot papers in ballot box 0642, after the Returning Officer had made a declaration that ballot box 0642 is excluded from scrutiny and count.
57. On 19 July 2007, the Returning Officer wrote to the Electoral Commission confirming his position the Ballot Box 0642 should remain excluded, and he stated reasons of illegal practices.
58. Soon thereafter, ballot box 0642 was wrongfully admitted for scrutiny and counting. At the time the ballot box was admitted for scrutiny and counting the petitioner’s scrutineer was rejected admittance to the counting centre and did not witness the scrutiny and count to the ballot box.
59. The Second Respondent made an error and omission, and by allowing scrutiny and counting of ballot papers in ballot box 0642 as the Returning Officer had excluded the ballot box from scrutiny and counting, as the only way the decision of a Returning Officer may be challenged is by way of petition.
60. The Second Respondent by its servants and agents had no lawful authority to include ballot box 0642 for scrutiny and counting, once the Returning Officer had declared the ballot box would be excluded from scrutiny and counting.
    
61. ____________________________________
    
62. Therefore because Ballot box 0642 was included for scrutiny and counting the First Respondent wrongfully tallied 1,063 votes from the box. Had the ballot box been excluded, including 1,063 votes assigned to the First Respondent from the ballot box, the Petitioner would have won the election by from the ballot box, the Petitioner would have won the election by 418 votes and consequently, the outcome of the election was affected.
    
63. The relief and orders sought by the Petitioner are as follows:
    
    1. ______________________________
    2. ______________________________
    3. An order that there be a recount.
    4. An order excluding the ballots in Ballot box No 0642.
    5. In the alternative, an order that the Petitioner be declared to be the winner of the election after the recount, in the event that he polls the highest number of votes.
    6. _____________________________
    7. An order for refund of the K5,000.00 security deposit in the National Court to the Petitioner.
    8. Costs
    9. Other orders the Court deems fit.
       

37. As alluded to earlier after the withdrawal of about half of the paragraphs of the petition the outlook of the entire petition has been dramatically altered.

38. For instance and most importantly the main legal issues meant for determination by the court in the trial have been reduced to just one main issue.

39. What had originally been alleged against the First Respondent at Kum village, at the Club House and at the First Respondent’s own house, have now all been withdrawn.

40. The petition is now left with a simple ground or allegation that the Electoral Commission by its servants and agents without lawful authority moved polling from a gazetted polling place to another polling place.

41. The issue is: Did the Electoral Commission by its servants and agents unlawfully move the polling place from Kum village to Kapit Community School?

42. The petitioner relies on s.43 of the Organic Law to maintain his petition. S.43 provides:

43: POLLING PLACES

(2) The Electoral Commission may, by notice published in the National Gazette or in a newspaper circulating in the electorate

• (a) appoint such number of polling places for each electorate as it thinks necessary and practicable; and
  
• (b) abolish a polling place
  

(3) No polling place shall be abolished after the issue of the writ and before the time appointed for its return.

43. The petitioner submitted that "a polling place cannot be abolished after the issue of the writ, and as Kum was the gazetted place for polling for Ward 20" at the time the writ was issued, polling could not be lawfully shifted, as it had not been previously abolished.

44. The Petitioner submitted that the Second Respondent without lawful authority illegally shifted the polling place without proper notice to the electors and with no regard for the law as stipulated under s.43 of the Organic Law.

45. The relevant paragraphs of the petition relating to this issue are paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 20 and 21.

46. Those above named paragraphs do not plead that the polling place at Kum was unlawfully abolished by the Electoral Commission, by its servants or agents, so as to render it consistent with Section 43 of the Organic Law.

47. The petitioner at paragraph 13 alleged that the polling had "moved" to Kapit Community School.
48. Paragraph 14 says voters at Kum were upset about the "change" of polling place and objected to the "move" to Kapit.

49. Paragraph 23 says the Second Respondent, by its servants and agents without lawful authority "moved" polling from a gazetted polling place to another polling place.

50. Nowhere in the petition does the petition allege that Kum polling place had been unlawfully abolished by the Second Respondent by its servants or agents, such that it could rely on s.43 of the Organic Law..

51. The petitioner in my respectful view cannot rely on S.43 of the Organic Law because he has not pleaded so in his petition.

52. The requirements for pleading sufficient relevant and material facts to comply with s.208(a) of the Organic Law has been repeated time and again since Holloway v Ivarato (1988) PNGLR 99 at 101 and 102 where Kapi DCJ (as he then was) said:-

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

Two questions arise for consideration at this point:

1. Whether the facts set out should include the evidence by which those facts are to be proved and,
   
2. the sufficiency of facts which may be set out.
   

In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.

It would be an unreasonable rule to require the petitioner to set out all the evidence by which a petitioner may rely to prove the material facts. In actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.

It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s.208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s.212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s.208(a) of the Organic Law. I conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the ground 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 so enable the court to be clear about the issues involved."

53. Unless petitioners can come up with an alternative and a persuasive argument that that authority is bad law, or is a draconic law, the National Court will continue to apply and treat that statement of the law as good law.

54. Moreover paragraphs 13, 15, 23, 29 and 31 of the petition while making certain allegations do not state what provisions of the Organic Law had been breached. That omission may be fatal to a petition.

55. The National Court in Ijape v Kimisopa N2344 said:

...... 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.

56. In this case the allegation relates to an alleged breach of a statutory duty by the Electoral Commission but the statutory provision that provides that duty has not been specifically pleaded in the petition. To me that is fatal because the petitioner alleged unlawful actions by the Second Respondent by its servants and agents by moving or shifting polling from a gazetted polling place to another place, but has not stated what law they broke by doing that. It would be only fair if he was to clearly state what law the servants and agents of the Second Respondent broke.

57. As the petition is only founded on this one ground of unlawfully moving or shifting of a polling place to another polling place I find that the law relied on to have been breached has not been pleaded. That is fatal.

58. Moreover, the facts as pleaded and relied on are not consistent with the wording of s.43(2) of the Organic Law.

59. On the basis of what I stated in paragraphs 65 and 66 above alone this petition is not competent to go on to trial and I accordingly dismiss it.

OBSERVATIONS

60. While the Organic Law outlaws abolition of a polling place after the issue of a writ and before the return of the writ, I make an observation here that the same Organic Law does not provide for moving or shifting of polling places to other places and under what circumstances they may be moved or shifted..

61. Another observation I make here is that it’s the Electoral Commission that is constitutionally charged with the task of running an election and not security personal, be it the police, the army or correctional services personnel. The security personnel’s only duty in an election is to provide security and maintain peace and good order.

62. Another observation I make regarding this petition is that when the polling was conducted at the other polling place at Kapit Community School, what happened to the 400 to 500 eligible voters or electors. Did they get to Kapit to cast their votes or did they not vote at all as a result of the shifting of the polling place. This aspect was not pleaded in the petition as to whether such a move deprived them totally of their free exercise of franchise to vote in the elections.

RELIEFS

63. One of the reliefs sought by the petitioner is a recount. The petitioner alleged an unlawful or illegal act presumably coming under s.215 of the Organic Law. The relief under s.215(3)(b) may be the provision this allegation would come under and if that was the case the reliefs there do not include a relief for a recount.

64. What is the basis for a relief for a recount in this case? The basis for a recount is premised on the basis that on 12 July 2007, the petitioner wrote to the Returning Officer objecting to the counting of Ballot Box number 0642 which was the ballot box for Kum village and used at Kapit Community School.

65. The allegation was that Ballot Box number 0642 was wrongfully in the possession of the First Respondent thereby inferring that it may have been tampered with and the integrity of the ballot box was in question. This was pleaded in paragraph 53 of the petition.

66. On 17 July 2007 the Returning Officer Mr Robin K Pip declared Ballot Box 0642 would be excluded from scrutiny and counting. On 18 July 2007 the Deputy Electoral Commissioner wrote to the Electoral Commissioner advising him to count Ballot Box 0642. On 19 July 2007 the Electoral Commissioner wrote to Returning Officer to count the marked ballot papers in Ballot Box 0642. On the same day 19 July 2007 the Returning Officer wrote to the Electoral Commission that he would not count the ballot papers in Ballot Box 0642 and stated reasons of illegal practices. The basis of the relief for a recount might have been available had the allegations at the Club House and the First Respondent’s house still survived. Those allegations have been withdrawn. There are now no more allegations of any illegal practices at the Club House or the First Respondent’s house which might have raised the issue of the integrity of the ballot papers in the Ballot Box Number 0642.
67. On that basis the relief for a recount in my respectful opinion is no longer available. In other words there is now, no more reason why the ballot papers in the allocated ballot box cannot be counted.

DECISION BY RETURNING OFFICER NOT TO COUNT BALLOT BOX 0642.

68. The Returning Officer’s powers to exclude a ballot box from being counted is founded in s.153A of the Organic Law.

69. Section 153A provides:-

153 A. EXCLUDING BALLOT BOX FROM SCRUTINY

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot box containing marked ballot papers where he is of the opinion that:-

(a) the ballot papers in it were not lawfully casted; or

(b) the ballot box was tampered with and the integrity of the ballot papers in it were compromised.

(2) Where objection is taken to a ballot box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.

70. The Petitioner relies on this provision to make out his case that once the Returning Officer made his decision to refuse to admit the ballot box for scrutiny, that decision could not be challenged, other than by way of a petition. The submission is that not even the Electoral Commission can challenge that decision.

71. This calls for an examination of the powers granted to the Returning Officer by Section 153A and Section 90 of the Electoral Law (National Elections) Regulations 2007.

72. Section 90 of the Regulations provides:

"90: OBJECTION TO ADMISSION OF BALLOT BOX FOR SCRUTINY.

(4) A scrutineer who wishes to object to a ballot box being admitted to scrutiny shall lodge the objection in writing with their reasons to the Returning Officer or Assistant Returning Officer.

(5) An objection under Subsection (1) is to be made by a scrutineer who was present at the polling place where the ballot box was used for polling.

(6) A candidate who did not have a scrutineer at a polling place where a ballot box is used for polling and who wishes to object to the ballot box from being admitted to scrutiny shall lodge the objection in writing with the Returning Officer or Assistant Returning Officer.

(7) A scrutineer or candidate who lodges an objection under Subsection (1) and (3) shall state in a statutory declaration the facts supporting the objection.

(8) An objection under this section shall be made within three days of the end of polling or within such further Sod as the Returning Officer or Assistant Returning Officer extends.

(9) A Returning Officer or Assistant Returning Officer, upon receipt of an objection under Subsection (1) or (3), shall register the objection and may require the presiding officer, other polling officials or such other person as he considers necessary to comment on or respond to the objection in writing.

(10) The Returning Officer or Assistant Returning Officer is to receive a ballot box the subject of an objection under this section at the scrutiny centre and is to make a decision on the objection as to whether or not the ballot box will be admitted to scrutiny.

(11) A decision of a Returning Officer or Assistant Returning Officer on an objected ballot box made under Subsection (7) shall not be challenged other than by way of petition.

(12) The Electoral Commissioner may require a Returning Officer or Assistant Returning Officer not to make a decision on a objection under this section, until the Electoral Commissioner or other person acting under the Electoral Commission authority for the purpose reviews an objection.

(13) Where an objection is reviewed under Subsection (9), the Electoral Commission may direct a Returning Officer or Assistant Returning Officer to accept or not to accept a ballot box into scrutiny and a Returning Officer or Assistant Returning Officer is to give effect to such direction.

73. Section 153A of the Organic Law is a new Amendment certified on 21 September, 2006, while the Electoral Law (National Elections) Regulation 2007 were enacted and came into being on 1 February 2007.

74. The amendments to the Organic Law and the enactment of the Regulation came about after the Supreme Court pointed out the lack of such provisions in Petrus Thomas v Benais Peri (2006) SC 830 where the Court said:

"However, the question we raise for future consideration is: whether the direction by the Electoral Commission not to count the 6 ballot boxes is a lawful direction under the Organic Law?

...

...

There does not appear to be any power granted to the Electoral Commission for (1) receiving any complaints from anyone not to scrutinize any ballot papers contained in a ballot box (2). If such an objection is raised, there is no provision for the procedure for dealing with such objections (3). There is no provision for the basis upon which such an objection may be resolved by the Electoral Commission. The question is: does the Electoral Commission have any power to direct a Returning Officer not to scrutinize a ballot box on the complaint that the votes may have been tampered with or there has been illegal practices in respect of the votes in the ballot box. How would the Electoral Commission determine whether or not if the ballot papers in a ballot box have been tampered with? These are matters which come within the powers of the National in a Petition.

This matter should be fully argued and determined in a future case"

75. Cannings J discussed these provisions in Paias Wingti v Tom Olga & Ors (March 2008) in EP 55 of 2007. He said:-

"By the same token, I consider that Section 153A requires a returning officer who receives an objection to a ballot box to put in place some discrete procedure that ensures that the objection is recorded and determined in an orderly and systematic fashion. The returning officer’s decision-making must be documented and demonstrate that the returning officer has properly his or her discretion to admit or refuse to admit a ballot box to scrutiny. A proper exercise of discretion will occur when the returning officer’s documentation of the decision making process shows that he or she has formed the opinion for the purposes of Section 153A(1) that:-

(i) the ballot papers in the ballot box were not lawfully case; and/or

(ii) the ballot box was tampered with and the integrity of the ballot-papers in it was compromised.

They are the only circumstances in which the Organic Law permits the returning officer not to admit a ballot box to scrutiny. So it must be clear to an objective observer – a reasonable person following the election – under what provision of the Organic Law the returning officer has made the decision to reject the ballot box. More importantly, if the returning officer’s decision is challenged by way of a petition (that being the only method of challenge permitted) it must be clear to the National Court (the only authority empowered to hear a petition) under which provision of Section 153(A) the returning officer made the decision. It must also be clear how and why the required opinion was formed.

The decision to reject a ballot box is a significant decision, which may directly influence the result of an election. It affects many people, especially voters and candidates and the exercise of their rights under Section 50 of the Constitution to vote for and be elected to elective public office at genuine, periodic free elations. It follows that the returning officer must give reasons, in writing, for the decision to reject a ballot box. I consider that this is essential even though Section 153(A) does not expressly require it."

76. Cannings J concluded by saying:-

"To sum up this issue: if a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must document the objection, record his decision-making process and clearly state when opinion has been formed for the purposes of Section 153A(1) and the reasons for forming that opinion."

77. Section 153A of the Organic Law in my view is intended to cover situations where the Returning Officer has gone through the s.90 of the Regulations process.

78. Section 90 of the Regulations provides a very elaborate and almost exhaustive process before a Returning Officer exercises his powers under s.153A of the Organic Law.

79. The powers under s.153A should not be exercised without going through s.90 of the Regulations process.
80. The exercise of the Returning Officers powers under s.153A and his other powers under the Organic Law are exercised upon delegation on appointment by the Electoral Commission under s.18 of the Organic Law. This is clear from s.18 of the Organic Law.

81. Section 18 of the Organic Law provides:-

1. DELEGATION
   
   • (i) The Electoral Commission may, be instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.
     
   • (ii) Every delegation under subsection (1) is revocable, in writing, at will.
     
   • (iii) No delegation under this section prevents the exercise or performance of a power or function by the Electoral Commission.
     

82. Section 19 of the Organic Law provides for the appointment of Returning Officer. Section 19 says:-

"19: RETURNING OFFICERS

(i) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to the Law within or for his electorate, subject to any directions of the Electoral Commission

(ii) A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.

(iii) A Returning Officer may, following consultations wit the Electoral Commission, seek the assistance of each person, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or, in accordance with this Law remain the functions and powers of the Electoral Commission.

(iv) Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under subsection (3).

(v) The Electoral Commission may, on the nomination of a Returning Officer appoint authorized enrolment agents in a Ward under the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.

(vi) Regulations may make further provisions for the duties and responsibilities authorized enrolment agents appointed under Subsection (5).

(vii) A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.

83. Section 90(9) and (10) of the Regulations have been stated earlier in paragraph 84 and are also relevant in this discussion.
84. From this discussion, it is clear to me that the Returning Officer exercises all his powers under the Organic Law and the Regulations "subject to any direction of the Electoral Commission. " This includes the power under s.153A of the Organic Law.

85. It would be nonsensical to suggest that the Electoral Commissioner, who is the Returning Officer’s principal and whose delegated powers the Returning Officer is performing, has no power of direction or control when it comes to exercising those powers under s.153A.

86. The Electoral Commissioner must still have a supervisory role over the Returning Officer’s powers under s.153A.

87. This is clearly indicated in s.90(9) and (10) of the Regulations and s.19 of the Organic Law.

88. But the powers of the Electoral Commissioner to give directives must be valid and lawful Peter Peipul v Pila Niningi (1998) SC 580; and also Amaiu v Maki (2003) N2364 per Salika J at page 6).

89. After having discussed the various provisions of the Law and the case authorities, I am convinced that the petitioner’s prayer for a recount cannot stand on the ground that the decision by the Returning Officer not to admit Ballot Box number 0642 could not be challenged by the Electoral Commission. In my respectful view the Electoral Commissioner still has a supervisory role over the Returning Officer. The Returning officer is still subject to directions from the Electoral Commissioner. Therefore in this case the direction by the Electoral Commissioner to count Ballot box 0642 was in my respectful view lawful and proper.

90. In any case after the withdrawal of the allegations at the Club House and the First Respondent’s House, there exist no more impediments to count Ballot Box Number 0642.

91. Again on the pleadings of his reliefs, I dismiss the petition.

SECTION 206 – METHOD OF DISPUTING RETURNS

92. I do not wish to be drawn into this debate as I believe the Supreme Court has determined this issue already. This court is bound by the decision of the Supreme Court. Perhaps the proper forum for this debate is before another Supreme Court.

AMENDMENT OF PETITION

93. Counsel for the First Respondent consented to the withdrawal of certain paragraphs of the petition and took no issue as to whether the withdrawal of the paragraphs amounted to amending the petition. This was not argued before me but I make a comment in passing that such withdrawals, as happened in this case, of certain paragraphs of the petition by the petitioner on his own volition could effectively amount to an amendment of the petition.

CONCLUSION

94. In the end result, I make the following orders:

1. The entire petition is dismissed as being incompetent for the reasons given in this judgement.

2. Costs are awarded to the First Respondent against the Petitioner.

3. The Second Respondent is to pay its own costs.

_______________________________________

Young and Williams: Lawyers for the Petitioner
Paul Paraka Lawyers: Lawyer for the First Respondent
Nonggorr & Associates: Lawyer for the Second Respondent