Kumbakor v Sungi [2012] PGNC 287; N5002 (7 December 2012)

N5002

PAPUA NEW GUINEA
IN THE NATIONAL COURTOF JUSTICE AT WEWAK

EP No. 23 OF 2012

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

AND IN THE MATTER OF A DISPUTED RETURN FOR THE NUKU OPEN ELECTORATE

BETWEEN:

ANDREW KUMBAKOR
Petitioner

AND:

JOSEPH SUNGI
First Respondent

AND:

JOSEPH AFLATAWA
Second Respondent

AND:

ANDREW TRAWEN,
THE CHIEF ELECTORAL COMMISSIONER OF PNG
Third Respondent

AND:

ELECTORAL COMMISION OF PNG
Fourth Respondent

Wewak: Kirriwom, J.
2012: 4, 5 & 7 December

NATIONAL PARLIAMENT – Elections – Petition by unsuccessful candidate – Grounds of undue influence – Polling irregularities, illegalities – Errors and omissions – Objections to competency of petition – Petition dismissed - Organic Law on National and Local Level Government Elections, ss.43, 113, 114, 115, 116, 117, 206, 208, 210, 215, 217 and 218 – Criminal Code, s.102.

PRACTICE AND PROCEDURE – Objection to competency of petition – Failure to plead material facts – Lack of particulars – Need for particulars to crystallize grounds relied upon – Lack of coherent and cohesive pleading – Objection to competency upheld – Petition dismissed.

PRACTICE AND PROCEDURE – Objection - Competency of Objection – Objection dismissed – National Court Election Petition Rules 2002, r.15, Practice Direction (Election Petitions) No.2 of 2012 (2/8/12)

Detail facts in the judgment

P filed petition challenging the return of R1 as the duly elected Member of Parliament for Nuku Open Electorate in the East Sepik Province. He relied on three main grounds to petition the Court: (1) undue influence alleged against R1, R2 and other unnamed and unknown officials, (2) polling irregularities or illegalities alleged against R2 and other unnamed and unknown officials and (3) errors and omissions by R2, R3 and R4.

As undue influence, it was alleged that R1, as Provincial Administrator of Sandaun Province and Chairman of Provincial Election Steering Committee immediately before the National Elections, appointed R2 who was the District Manager of Nuku LLG as the Returning Officer (RO) for the Nuku Electorate and R2 appointed his own cousin as Presiding Officer (PO) for Team 52 who were both known supporters of R1.

Illegalities and irregularities at polling were committed by Teams 52 and 64 led by presiding officers who were supporters of R1 and they conducted polling in unscheduled venues named in the petition, allowed double voting, allowed under-age voting despite objections being raised.

Errors and omissions at counting were committed by R2 when he refused to reject Ballot Boxes Nos 52 and 64 objected to by P and R3and R4 are liable for the actions and omissions of their servants and agents.

Objections were raised by the respondents as to the competency of the petition for failing to meet the requirements of section 208(a) Organic Law on National and Local Level Government Elections (OLNLLGE).

Held:

1. Allegations of undue influence against R1 and R2 fell far short of criminal complicity of the offence of undue influence as defined in section 102 of the Criminal Code and the facts pleaded were incompatible with the elements of the offence of undue influence. All paragraphs in the petition pertaining to this ground were incompetent.
   
2. Illegalities and irregularities at polling lacked material facts to go to trial and therefore incompetent.
   
3. Errors and omissions also lacked material facts to go to trial and this ground was also incompetent.
   

According to the general scheme of this petition, with the collapse of the undue influence allegation, the two other grounds of illegal polling and errors and omissions really had no legs to stand because they rode on the undue influence bandwagon and their demise was also inevitable.

P-Petitioner
R1- 1st Respondent
R2- 2nd Respondent
R3- 3rd Respondent
R4- 4th Respondent

Cases cited:

SC182–Arthur Gilbert Smedley v The State [1980] PNGLR 379
SC1037–Andrew Trawen v Steven Pirika Kama (2009) SC1037 (1); Michael Laimo v Steven Pirika Kama (2009) SC1037 (2)
Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority — Lae (2001) N2085
Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995)
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Delba Biri –v- Bill Ninkama [1982] PNGLR 342
Ephraim Apelis v Sir Julius Chan (1998) SC573
Saonu 1;v- Dad- Dadae & Electoral Commission (2004) SC763
Sauk –v- Polye (2004) SC769
Holloway –v- Ivarato [1988] PNGLR r>ru –v- Unaggi (1987) N641
Kopaol paol ̵–v- Embel (2003) SC727.
Raymond Agonia –v- Albert Karo and Electoral Commission [1992] PNGLR 463
Olmi11;v- K;v- Kuman (2002) N2310
Vagi Mae –v- Jack Genia and Electoral Commission (1992) N1105,
Dick Mune –v- Anderson Agiru &Ors (1998) SC 590
(2012) (Unreported and unnumbered judgment of 21st November 2012)
Torato v Electoral Commission [1988-89] PNGLR 85
Joel Paua v Robert Nagle [1992] PNGLR 563
Ben Micah v Ian Ling Stuckey (1998) N1791
Karo v Kidu (Unreported N1626 of 9/10/97);
Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).
Re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298
Miru v Basua (1997) unreported N1628
Baira v Genia (1998) Unreported SC579
Jim Nomane v. David Anggo (2003) N2496
Kopaol v Embel [2008] PGSC 26; SC941
In re Central Provincial Government Elections: Mathew Poia v Socrates Valerian Valai and Electoral Commission of Papua New Guinea [1990] PNGLR 388
Laina v. Tindiwi (1991) unreported N979unreported N1628
Mongi v Vogae (1997) Unreported N1635

Counsel:

M. Philip, for the Petitioner
J. Kennedy, for the 1st Respondent

1. Kongri, for the 2nd, 3rd & 4th Respondents
   

7th December, 2012

1. KIRRIWOM, J.: The National Court Election Petition Rules 2002 section 15 provide for a respondent in an election petition to file objection to competency of a petition filed pursuant to section 206.of the Organic Law on National and Local Level Government Elections (OLNLLGE). By Practice Direction (Election Petitions) No.2 of 2012) amending rule 15 of the National Court Election Petition Rules 2002 issued by the Registrar dated 2nd August, 2012, any objection to competency of an election petition must be filed within 21 days of the service of the petition on the respondent.
   
2. Two preliminary applications were made on the first day of the scheduled ten days allocated for this election petition filed by Andrew Kumbakor, the runner-up in the 2012 National Elections for the Nuku Open Electorate which was won by the First Respondent, Hon Joseph Sungi, MP who polled 9,056 votes and the petitioner polled 8,713, a difference of 343 votes. I take judicial notice of the fact that Andrew Kumbakor was the former Member for the same Electorate but lost to the First Respondent in the last National Elections.
   
3. Both preliminary matters were the objections by the First, Second, Third and Fourth Respondents as to the competency of the petition. Mr Moses Philip appearing for the petitioner took issue with the objection filed by the Second, Third and Fourth Respondents as it was filed outside the 21 days requirement in the Practice Direction. Notwithstanding the objection I decided to hear both applications for objections to competency of the petition subject to hearing the Petitioner’s reply.
   

OBJECTION TO COMPETENCY OF OBJECTION

4. Now that I have had the opportunity to hear Mr Philip on this and the basis for his vigorous objection against my entertaining Mr Andrew Kongri’s submissions on this preliminary point, let me express my views on Mr Philip’s submissions.
   
5. Mr Philip’s arguments were focussed on strict and rigid interpretation and application of the Practice Direction I referred to earlier that complimented the Rules that prescribed and defined time limits within which objections must be filed. And he is right, because Rules and those Practice Directions that emanate from them are in place for reasons and they must be adhered to.
   
6. It must also be appreciated that the law also provides exceptions to the strict compliance with some Rules where circumstances permit, particularly in situations where non-waiver of the Rules or strict adherence to them is going to result in injustice to a party in the proceeding. And this flexibility exists in all spheres of the law, whether it is constitutional law, criminal law, family law, torts law, contract law and so forth.
   
7. It has long been established and recognised in nearly all cases coming before the court under whatever discipline of the law that a case must have a good solid foundation meeting all the requirements in order to be heard. This is a threshold issue. Threshold issues deal with procedural matters that determine whether a case is one that is appropriate for the court to deal with. This is why questions of jurisdiction and procedural competency is often addressed at the outset of a case and continues to remain alive throughout the life of a case until judgment. Therefore it is immaterial whether this threshold issue is dealt with now or later, with the assistance of parties’ legal counsel or court’s own initiative, once raised the court is obliged to hear it. As the Supreme Court in SC182–Arthur Gilbert Smedley v The State [1980] PNGLR 379 said: “Whether r. 23 (1) is mandatory or merely regulatory, a respondent is not debarred from objecting to the competency of an application for leave to appeal out of time, because questions of competency, like questions of jurisdiction, may be raised at any time.”
   
8. And the same point was made by the Chief Justice in SC1037–Andrew Trawen v Steven Pirika Kama (2009) SC1037 (1); Michael Laimo v Steven Pirika Kama (2009) SC1037 (2) where he was hearing an application for leave to appeal to the Supreme Court at the Directions Hearing where he said: “In my view, the merits of the application are open for determination if the application surpasses the jurisdiction issue or other competency issues. Issues of jurisdiction are fundamental threshold issues that remain to be determined by the Court at any stage of the proceedings, with or without being invoked by the parties. It would be an exercise in futility or mere academic exercise to proceed to the merits if the proceeding cannot survive the jurisdictional challenge.”
   
9. Again citing from another decision of the Chief justice Sir Salamo Injia in N2085 –Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority — Lae (2001) N2085 where His Honour said: “There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose as reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party: see Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995). It is for this reasons that I raised the issue of competency on any initiative.”
   
10. It was in the light of this overwhelming line of case law authorities including Sir Arnold Amet v Peter Charles Yama (2010) SC1064 cited by Mr Kongri where the Supreme Court (per Salika DCJ Batari J Davani J held; “The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings. The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below” and given the already settled law on this in this jurisdiction, I felt no discomfort or had any hesitation in allowing Mr Kongri to make his presentation on the issue of competency. And this was the correct thing to do in the circumstances anyway because as parties named in the proceeding Second, Third and Fourth Respondents, like the First Respondent, had every right to be heard even on procedural issues at the start of the trial just as they have every right to raise objection to the competency of the petition during the course of the trial as the law says that can be done.
    
11. The objections raised are pursuant to the mandatory requirement of section 210 OLNLLGE that stipulates that “proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.” Section 209 makes it mandatory that before any petition is accepted a petitioner must pay the security deposit of K5,000. In this case, the objections are based on section 208(a) of OLNLLGE which states:
    

“A petition shall—

(a) set out the facts relied on to invalidate the election or return”.

12. I set out the full text of both sections 208 and 210:
    

208. REQUISITES OF PETITION.

A petition shall–

(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was
(d) qualified to vote at the election; and
(e) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

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

The Law

13. The Supreme Court first considered Section 208 of the Organic Law in the landmark case of Delba Biri –v- Bill Ninkama [1982] PNGLR 342. Two questions were referred by the National Court to the Supreme Court in that case. The questions were:
    
    • (1) “To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with Section 208?”
      
    • (2) “To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s. 206 of the Organic Law on National Elections permit or allow an amendment of an election petition which does not comply with all or any of the provisions of the Organic Law on National Elections?”
      
14. The Court when considering those two questions and especially question one, stated:
    

“The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view, it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections, it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with”.

15. The Supreme Court went on to state that:
    

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

16. The Supreme Court answered question one in the following way:
    

“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”. Emphasis added

17. I agree with Mr Kongri that Section 208 prescribes 5 prerequisites in a petition:
    
    • (a) The facts relied on to upset or invalidate an election;
    • (b) The relief the Petitioner claims he is entitled to;
    • (c) The petition must be signed by a candidate or by a person who was qualified to vote;
    • (d) The petition must be attested by two witnesses whose addresses must be stated; and
    • (e) The petition must be filed within 40 days.
      
18. And because of the above pre-requisites, if a petition does not comply with any one of these prerequisites, it is incompetent and cannot be heard because of Section 210.
    
19. Counsel quite rightly acknowledges that the authoritative statement of law pronounced in Delba Biri has been followed and applied in a long line of cases. The Supreme Court recently in Amet –v- Yama (2010) SC1064 fully endorsed the law on s. 208 of the Organic Law established by and since Biri v Ninkama (supra), in the following terms –
    

“32. It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of the allegations relied on. This is the underlying principle of law behind s.208 of the Organic Law as avert b tohe Supreme Coue Court stated in Delba Biri v Bill Ninkama [19NGLR 342 at 0;at p.345:

<

"...The Statute has clearly expressed its intention that ation stricomply with sith s 208. It is not difficult to see why. An election petition is not an t an ordinordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. 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."

....

35. These provisions dictate that the petitioner must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent because of s. 210: Delba B Bill Ninkama (160;(supra);&#160aim ApeliApelis v Sir Julius Chan (1998) SC573.”

20. Further reference was also made to Saonu –v- Dadae &amectormmission (200 (2004) SC763, where the Supreme Court stat stated at page 7:

“It is our opinion that nothing can be clearer than s.210 of the Organic Law. It is crystal clear that Sections 208 and 209 are the only requisites of a petition. A petitioner must comply with those two provisions. So long as a petitioner complies with those mandatory requirements, the Court must allow his petition to proceed to trial. Section 206 is not a requisite of a petition therefore a petition is not incompetent by reason of not specifically stating the words or phrase "To: The National Court or Justice" or "To: The National Court".

21. The Supreme Court also went further to state:
    

““It is pertinent to note here, and we do not hesitate to say, that it is trite law that petitions must comply with s.208 of the Organic Law otherwise, the petition is precluded from proceeding to trial because of s.210. Interestingly enough, the Supreme Court in that case did not say that the petition must also strictly comply with s.206 of the Organic Law. In our view, it is not difficult to see why. In simple terms, s.206 is not a requisite of a petition therefore there is no requirement for a strict compliance”.

22. A further case authority of this requirement is found In Sauk –v- Polye (2004) SC769, the Supreme Court after giving some consideration and meaning to the word “competency” stated at pages 6 and 7:
    

“In election petitions the subject of the National Court’s determination and the resultant application for review before us now, what provision in the Organic Law creates or vests jurisdiction? We would, without hesitation, hold that s 208 does by its enumeration of five (5) requisites of an election petition. The mandatory nature of these requisites is well established from a line of judicial authorities starting with the seminal decision of the Supreme Court in the case of: Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342, where the Court stated (at 345) that:

In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with.

The Supreme Court interpreted ss. 208, 209 and 210 and laid down the law that unless a party (petitioner) strictly complies with the requirements of ss 208 and 209, pursuant to s 210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s 206 (Method of Disputing Returns), but unless each and every requirement of ss 208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return.

............

The dictionary definition of "requisite" means something that is needed for a purpose; necessary. Without it, nothing can be done. Thus, it is a thing needed for a particular purpose. And, in the context of an election petition under the Organic Law, each of the five (5) requisites under s 208 is an essential element (or ingredient) of a petition capable of invoking the jurisdiction of the National Court. Absence of or non-compliance with any one or more of the requisites will render the petition incompetent. Similary s. 209, where, at the time of filing the petition, if no deposit of the sum of K2,500.00 is made with the Registrar of the National Court, the National Court cannot exercise jurisdiction over the challenge to the election or return. It is not a valid petition.

23. What do we mean by pleading facts? The term “facts” under s. 208(a) of the Organic Law, was addressed by the Supreme Court per Kapi DCJ (Los & Hinchliffe JJ agreeing) in Holloway –v- Ivarato [1988] PNGLR 99 (approving what Bredmeyer J said in Siaguru –v- Unaggi (1987) N641), stated:
    

“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 ground 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”.

24. As to what are “facts”, Kapi DCJ stated:
    

“What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved”.

25. Again in Amet –v- Yama (supra) the Supreme Court after citing what was stated in Holloway –v- Ivarato (supra) said:
    

39. Those approved authoritative statements of the Supreme Court do not only confirm the mandatory compliance with the Organic Law, it also state the underlying need for that compliance”.

SC727. The Court there fully approved the passage by Justice Sheehan in his judgment in Raymond Agonia –v- Albert Karo and Electoral Commission [19960;PNGLR 463 where here his Honour said –

“Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process.u>But an election petition tion does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside”.(emphasis is added)

27. And the above statement of the law is very relevant and quite pertinent in this case. And this is further complimented In Olmi –v- Kuman (2002) N2310, His Honour the late Justice Jalina, commenting on the law established in Biri v Ninkama, said –
    

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

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

>A pen that falls shor short of t of these requirements must be struck out or dismissed so that the elected representative can continue with his or her responsibility of representing his or her constituents in Parliament without spending too much (of their) time defending their seats in the National Court...” (Emphasis added).

28. Mr Kongri also referred to the following cases (1) Vagi Mae –v- Jack Genia and Electoral Commission (1992) N1105, where Sheehan, J said: “Section 208(a) stipulates that particulars of facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded”: Dick Mune –v- Anderson Agiru &Ors (1998) SC 590, where the Supreme Court held that there is no requirement to plead the law. However Injia, J (as he then was) in his judgement said that:
    

“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”

29. And in the most recent decision of this court in Simon Sanagke –v- Gordon Wimb, Electoral Commission & William Duma (2012) (Unreported and unnumbered judgment of 21st November 2012), where Kandakasi, J took a more rigid approach towards the need to plead specific facts, with clarity and detail where the trial judge said:
    

“35. Then as to what kind of specifics that must be stated to meet the requirement to “set out the facts relied on” under s. 208 (a) I note that, they include facts which describe what happened or should have occurred but did not which form the foundation for a ground for a petition (Vagi Mae v Jack Genia & Electoral Commission (1992) N1105). Such specifics include the total number of votes casted, disputed and or secured by a winning candidate, the runner up and other candidates, (see Greg Mongi v Bernard Vogae & Anor (1997) N1635) names of people responsible for the matters complained of, when and where the events, be it errors, omissions or illegal practices have occurred (see Torato v Electoral Commission [1988-89] PNGLR 85 at 88; and Olmi v Kuman (2002) N2310) and a description of the conduct, error, omission or illegal practice complained of. Statement of facts in general terms without the relevant and necessary details of the kind just mentioned which would give a complete story would fail to meet the requirements of s. 208 (a), (Vagi Mae v Jack Genia & Electoral Commission (supra). For it is not the role of the Court to draw possible conclusions or infer possible situations (Joel Paua v Robert Nagle [1992] PNGLR 563 at 564, per Woods J) or speculate (Arnold Amet v Peter Yama (2010) SC1064). This is the case because, unlike any other matter that goes to the National Court, election petitions fall in a special jurisdiction, in which each ground stated in a petition is a separate issue for trial (see Ben Micah v Ian Ling Stuckey (1998) N1791, per Kirriwom J.”.

30. All the discussions in the law in these case authorities show the significance of pleading facts and meeting the requirement of section 208(a) OLNLLGE for the petition to move forward.
    
31. I will adopt the approach taken by Mr Kongri for the 2nd, 3rd and 4th Respondents in my endeavour to comprehend the petition as pleaded by its author. The challenge to the return generated in this petition primarily is focussed on two polling teams described as Team 52 and Team 64 and the respective disputed ballot boxes being Box 52 and Box 64. It is pleaded in very general terms from paragraphs 12 to 22 that polling in scheduled venues were not adhered to when additional polling places were created by the two teams and despite objections raised at the counting those ballot boxes were counted. There is also an allegation of undue influence against the First Respondent.
    
32. Under the sub-heading (C) Illegal Polling the petition is complaining about illegal polling by Team 52 and Ballot Box 52 which are pleaded in paragraphs 23 to 30 and under sub-heading (D) paragraphs 31 to 36 the Petitioner complains of illegal polling by Team 64 and contaminated votes in Ballot Box 64.
    
33. Under subheading (E) the Petitioner complains of irregularities, errors and omissions at the counting centre when the Returning Officer proceeded to count the disputed Boxes 52 and 64 despite objections and then failed to give reasons for over-ruling the objections.
    
34. Under subheading (F) further particulars of failure, errors and omissions from paragraphs 39 to 43 are set out setting out figures of ballot papers contained in a tabular form obtained from the record of the ARO for Nuku LLG Paul Mirin submitted as his poll returns for teams 51, 52, 53 and 55.
    
35. Then there is a subheading (G) which is on undue influence only and purports to give particulars of undue influence while referring to earlier paragraphs and trying to link it with sub-paragraphs (i) to (iv) under that heading. Paragraphs 44 to 45 attempt to provide particulars of errors during counting.
    
36. Before I address the objections to individual paragraphs, it is necessary to examine some of the most pertinent provisions that directly or indirectly bear upon the petition as pleaded. It must be appreciated at the outset that not all provisions in the OLNLLGE give a losing candidate a ground or basis to mount an election petition challenging the result of an election. Some provisions, the breaches of which need not come by way of an election petition but as electoral offences, unless it can be shown that they affected the result of the election. See for example Part XVII-Offences, from section 178 illegal practices all the way to section 191 electoral offences to section 205 of the Organic Law. These offences per se do not create grounds for disputing election results unless they affect the outcome of the election.
    
37. The relevant provisions when a petitioner is relying on illegal practices, errors and omissions and irregularities are sections 215, 217 and 218. These are in addition to the strict requirements of sections 208 and 209 of OLNLLGE.
    
38. Section 215 provides:
    

“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 gr ound 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.”

Section 217 Provides:

“217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

Sections 218 provides:

“218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

39. I have in the Tables below set out the main body of the Petitioner’s petition which I take to be his grounds for petitioning this court to have the result of the election for Nuku Open Electorate nullified. The proposed grounds commencing from paragraph 12 to 45 are set out in verbatim and also in the next column after the paragraph number and content column, I have included the responses from one of the Respondents, in this case the First Respondent as being the first in time to present his case, and the person most affected by the petition. The fourth and the last column under the heading remarks are my preliminary observations and comments from reading the paragraphs as pleaded in the petition and the response by the Respondents.
    
40. After each Table is followed by a summary of discussion of the paragraphs of the petition set out in the Table. After the tables, I discuss the case generally under three main grounds as I perceive the Petitioner’s case and the applicable laws and the end result under those respective grounds.
    

TABLES SETTING OUT PETITION & OBJECTIONS

	PETITION GROUNDS	OBJECTION GROUNDS
Paras	Petition: Subheading (B)	The Respondents’ replies:	Remarks
12.	The Petitioner challenges the validity of the First Respondent on the basis of illegalities and irregularities committed by two respective polling teams which are Team No. 52 and Team No. 64. Team No. 52 consist of ballot box identified as Box No. 52 in Nuku LLG the polling covers Alimo, Wulbowe, Tuginaro, Bali, Wiwil, Yiminum and Mansuku, all the polling venues except Bali was not an authorised polling area.	Paragraph 12 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to a ground or grounds for disputing the declaration of the First Respondent and further it does not disclose or fails to provide material facts including but not limited to the following: names of the persons known as Team No. 52 and Team 64; acts and or omission constituting illegal practices; acts and or omission constituting irregularities; and date, time and venue where the alleged illegalities and irregularities were committed. Further paragraph 12 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the same.	Generic statement. Not a ground per se.
13.	The polling schedules provided that the polling to commence on the 23rd of June and to complete on the 3rd of July 2012. It is alleged that on Thursday 28th of June 2012; the Presiding Officer conducted polling at Bali (Senkom) thus; creating an additional polling venue and it amounted to illegal polling.	Paragraph 13 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to a ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 13 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the polling schedule pleaded therein; Name of Presiding Officer; and Time when the alleged illegal polling was conducted; Further paragraph 13 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the same.	What’s illegal polling for purposes of s.206 OLNLLGE? See ss.43, 113, 114, 115, 116 &117.
14	Further, there was a failure by the Second, Third, Fourth Respondent (Electoral Commission) at the counting to set aside the said ballot boxes from being counted, despite objection raised on polling illegalities and irregularities witnessed at the polling. .	Paragraph 14 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to a ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 14 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the objection; Name of person making the objection; When and where was the objection made; Who was the objection made to; How was the objection presented, whether written or oral; Particulars of the irregularities alleged to have been witnessed at the polling; and Particulars of the ballot boxes objected to. Further paragraph 14 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	Very generic statement. Does not amount to a ground.
15	The Petitioner also challenges election of the First Respondent on the grounds of undue influence committed by the First Respondent contrary to Section 102 of the Criminal Code Act Chapter 262 accordance with Section 215(1) of the Organic Law on his part when he recommended the appointment of his supporter, the First Respondent as the Returning Officer for the Nuku Open Electorate.	Paragraph 15 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to a ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 15 does not disclose or fails to provide material facts including but not limited to the following: Particulars the authority the First Respondent is alleged to have to make recommendation for the appointment of Returning Officer for the Nuku Open Electorate; Name of person alleged to be related to the First Respondent; Particulars of the relationship between the First Respondent and the person alleged to have been recommended for appointment has the Returning Officer; When and where was the alleged recommendation made for appointment of the Returning Officer; and Who was the alleged recommendation for appointment of the Returning Officer made to; and Particulars of the alleged recommendation, whether written or oral. Further paragraph 15 alleges illegalities without identifying the material facts alleged to have constituted the breached alleged to have been committed.	Just a statement. Does not amount to a ground.
16	The polling should commence on the 23rd of June to the 2nd of July 2012.	Paragraph 16 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate.	Just a statement. Not a ground for petition.
17	The other ground of the Petition is that Second Respondent failed to apply his discretion to refuse to admit to Scrutiny Ballot Box No. 52 and Ballot Box 64 containing marked ballot papers when there was overwhelming evidence provided and objections made by scrutineers that; (a) The ballot papers in it were not lawfully casted. (b) The Ballot Box was tampered with and the integrity of the ballot papers compromised.	Paragraph 17 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 17 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the objection; Name of person making the objection; When and where was the objection made; Who was the objection made to; How was the objection presented, whether written or oral; Particulars of the irregularities alleged to have been witnessed at the polling; Further paragraph 17 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	Generic statement. Not a ground for petition.
18	The grounds of the Petition and alleged offences committed by the Presiding Officer, the Second Respondent who acts for and on behalf of the Third and Fourth Respondents as their agents or servants.	Paragraph 18 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 18 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the offense including the acts or omission constituting the alleged offense; Name of persons alleged to have committed the offense; and When and where was the offense was committed; Further paragraph 18 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. .	General allegations. Mere statement
19	It is further alleged that prior to leaving the office to contest the elections on the 11th of November 2011. The First Respondent was the Provincial Administrator of the Department of Sandaun Province (West Sepik) and being the Provincial Administrator; he was chairman of the Provincial Election Steering Committee and he was party to making recommendation to the Electoral Commission for the appointment of the First Respondent to be the Returning Officer for the Nuku Open Electorate.	Paragraph 19 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 19 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the appointment of the First Respondent as the Chairman of the Provincial Election Steering Committee; Name of person alleged to be related to the First Respondent; When and where was the alleged recommendation made for appointment of the Returning Officer; and Who was the alleged recommendation for appointment of the Returning Officer made to. Particulars of the alleged recommendation, whether written or oral.	Blanket self-serving statement.
20	It is further alleged that the First Respondent being the Provincial Administrator and with the intention to contest the 2012 National General Elections was directly responsible for the appointment and the Management of the District Public Service including the appointment of the First Respondent who the Manager of Nuku LLG and was recommended for appointment as the Returning Officer for the Electorate for the 2012 Elections by the First Respondent before he resigned on about the 11th of November 2011.	Paragraph 20 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 20 does not disclose or fails to provide material facts including but not limited to the following: When and where was the alleged recommendation made for appointment of the Returning Officer; and Who was the alleged recommendation for appointment of the Returning Officer made to; Particulars of the alleged recommendation, whether written or oral. Further paragraph 20 pleads the state of mind of the First Respondent and as such it is incompetent.	Ambiguous. Too late to amend.
21	It is further alleged that after the Writs were issued on the 18th of May 2012, the Second Respondent was then involved in the appointment of Mr. Vincent Wansasa his first cousin as the Presiding Officer of the Team No. 52, the man whose Ballot Box is under dispute. He also appointed Joe Kufunele as the Assistant Presiding Officer for Team No. 52.	Paragraph 21 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 21 does not disclose or fails to provide material facts including but not limited to the following: Particulars the alleged involvement of the First Respondent in the appointment of a Mr. Vincent Wansana as presiding officer of team 52. Particulars of the First Respondent’s authority to appoint a Mr. Joe Kufunele as the assistant Presiding Officer for Team 52; Particulars of the relationship between the First Respondent and a Mr. Vincent Wansana; Particulars of the appointment of a Mr. Joe Kufunele as an assistant presiding officer;	Mere statement. Not a ground.
22	Mr. Vincent Wansasa was the leader of Team No. 52 and Ballot Box No. 52 for the Nuku LLG which brought serious conflict of interest as the Presiding Officer and Second Respondent are cousins from Yifkindu Village and is a known supporter of the First Respondent.	Paragraph 22 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 22 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the relationship between the First Respondent and a Mr. Vincent Wansana; and Particulars of the Conflict of Interest between the First Respondent and Mr. Vincent Wansana;	Just a base statement. Not a ground.
23.	During the polling the following irregularities were committed by polling Officials in Team No. 52 presided over by Mr. Vincent Wansasa. After polling at Tuginaro which is an authorised polling venue the team proceeded to Bali (Senkom).	Paragraph 23 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 23 is ambiguous and does not disclose or fails to provide material facts.

Observation

41. Paragraph 12 in the petition is not a ground that is alleging any specific act or omission of an illegal practice, an irregular act or omission or error or omission by attributing it to any specific person or persons at specific times and places with authority and knowledge of the 1st R (First Respondent) such that that act or omission or error has affected the result of the election. This paragraph is more like a base statement that lays the foundation for other paragraphs to follow suit. It is simply a general statement of facts that means nothing on its own as it is. And in the way Mr Philip for the petitioner argued in response to the objections to the competency of the petition, that is precisely how the petition is pleaded and to make sense of any individual paragraphs, the reader must gloss over the pages paragraph by paragraph to find a matching pair in order to understand the ground.
    
42. Paragraph 13 talks about the scheduled polling dates commencing 23 June and ending 3 July, 2012. Consequently when polling commenced, one that took place on 28 June 2012 at Bali (Senkom) was an additional polling venue that was not in the gazetted polling schedule. Petitioner describes this as illegal polling. Is this a proper ground for challenging the result of an election? Supposing it is, the petitioner fails to explain why it is illegal polling in the light of all the powers that Polling Officers and Returning Officers have under the Organic Law to make such necessary changes or adjustments in polling to enable everyone who is eligible to vote casts his or her vote. All these are provided in sections 113 to 117 of the Organic Law. If any of these laws on polling have been violated, the petition must plead how these laws have been violated, who violated them, when and how many voters were affected, were they all electors, etc? This paragraph purports to create a ground for petition as far as polling is concerned but is grossly deficient and does not meet the requirements of section 208(a) OLNLLGE.
    
43. The petitioner cannot unilaterally brand a polling venue illegal without laying a proper foundation for calling it illegal. Even if it is illegal, it does not automatically invalidate an election unless the Petitioner can show by sufficient number of votes that had it not been for this illegal act, the result of the election would have been different. But that must be properly pleaded and that is what section 208(a) is all about. This is not pleading facts, it is pleading conclusion, the end result that the court is mandated to make that decision, not the petitioner. For polling to be bad, irregular, illegal the petitioner must plead the material facts as why he says polling in those named locations were contrary to law and specify the laws that were violated so that the Respondent can properly prepare to defend the case.
    
44. Paragraph 14 complains about ballot boxes 52 and 64 being counted despite objections being raised saying ‘based on polling illegalities and irregularities witnesses at the polling’. The petitioner here has pleaded conclusion rather than facts as to the validity of the marked ballot papers or votes in Boxes 52 and 64 in the polling conducted by Teams 52 and 64 and in this paragraph expected that the Returning Officer should have rejected those two Ballot Boxes. If there were any foul-plays, illegal acts during polling at polling venues where teams set up polling in unauthorised places that the petitioner wants to rely on to mount his petition, his task is to set out or plead the facts as he sees the events unfolding description by description from which the court can determine whether those amount to illegal practice, errors and omissions or gross irregularity that affected the election result or the election must be voided. It is not for the petitioner to plead the outcome or conclusion as opposed to facts that will assist the court to reach that outcome or conclusion. Paragraph 14 is bad for being judgmental and not pleading facts.
    
45. Paragraph 15 suffers a number of defects. First, it is pre-judgmental as it concludes that the First Respondent is guilty of undue influence by recommending appointment of his supporter as Returning Officer for Nuku LLG. It does not plead the facts in accordance with section 102 of the Criminal Code that set out the elements of the offence of undue influence but wants it known that appointment of known supporter to be an election official for the electorate that he stood as candidate amounted to undue influence. That is bad pleading.
    
46. The second reason is that the paragraph is talking about the First Respondent appointing the “First Respondent” as the RO for Nuku LLG. It is obvious that this is a typing error or an error by oversight but the law has been very strictly applied in the case of election petitions even to correct a typographical error that would give correct meaning as first intended. Any amendment to the petition must be done within the 40days, past that there can be no amendment. Given the strict requirement of the law, the paragraph cannot be changed and as it remains unaltered as it stands, it is meaningless and ambiguous so it is clearly incompetent.
    
47. And I adopt what Davani, J said in Amet v Yama (supra):
    

“The significance of applicants complying with the requirements of s.208 are clear. It is not for a Court to draw conclusions on what are clearly omissions be they typos or incorrect citing of statutes, etc. They all go towards satisfying the requirements in s.208. It is the applicant and his counsel who must ensure that the Petition is entirely correct, before it is filed. If not done, then there are no proceedings (petition) because of s. 210. This is analogous to the giving of s. 5 Notice under The Clay and Against the Sthe State Act which is a condition precedent. In election petition matters the requirements under s. 208 must be fully complied with failing which, the Petition does nost&#8/i>.(Emphasis adds added)

48. Paragraph 16 is just a self serving statement and is not a ground of petition.
    
49. Paragraph 17 is repeating the same argument in paragraph 14 above about disputed ballot boxes 52 and 64 that ought not to have been counted because the boxes were tampered with and integrity of ballot papers were compromised and votes casted were illegal. Again the petitioner has pre-judged what must have happened on the ground when such facts must be pleaded with sufficient particularity so that only the court can decide if those ballot papers were lawfully cast and whether the ballot boxes were tempered with and ballot papers were compromised. As pleaded, this paragraph cannot be improved and must be struck out as incompetent.
    
50. Paragraph 18 is judgmental and the entire text is all about the Presiding Officers, and the Second Respondent acting on behalf of Third and Fourth Defendants having committed unspecified offences through their servants or agents.
    
51. Paragraph 19 is all about the First Respondent being the Provincial Administrator for Sandaun Province and Chairman of the Provincial Election Steering Committee. The allegation here is that he used his position as Provincial Administrator and Chairman of PESC and appointed the District Manager of Nuku LLG as the Returning Officer of that electorate intentionally knowing that he was going to contest that seat. But how does that affect the result of the election? There is no suggestion that the RO stuffed ballot boxes with illegal votes which he marked himself for the First Respondent.
    
52. There is even a typo mistake in this paragraph that has the First Respondent appointing the “First” Respondent as the Returning Officer for Nuku Electorate. Change of typing error can make a big difference in the meaning of the paragraph. If law says you cannot amend your petition after forty days, the Petitioner is stuck with his meaningless and bad draftmanship. The end result is that paragraph 19 is therefore incompetent.
    
53. Paragraph 20 is similar to the above paragraph 19. It is an allegation against the First Respondent appointing the Manager of Nuku LLG as Returning Officer in preparation for the election.
    
54. The same defect of mis-description of the Second Respondent as the “First” Respondent also repeats itself here and this paragraph is already self-destructive as it is too late to amend it. I cannot go along with Mr Philip’s submission that it is easily correctable by amendment as superficial error. It is not.
    
55. Paragraph 21 has no relevance to the First Respondent, the winning candidate. What the Second Defendant did or who he appointed as the Presiding Officer for Nuku Electorate is of no consequence to the First Respondent if the pleading does not connect him and his win in the election.
    
56. Paragraph 22 however, read together or in conjunction with paragraph 21 seem to convey what the Petitioner is saying in a long winded way. What both these or other earlier paragraphs are implying, not directly though, is that the First Respondent appointed Nuku District Manager, the Second Respondent or had a voice as the Provincial Administrator prior to his resignation to content the elections, in his appointment, being the Chairman of the Provincial Election Steering Committee. The Second Respondent then appointed Vincent Wansana, his own cousin, as Team Leader of Team 52 in charge of Ballot Box 52 and both are known supporters of First Respondent.
    
57. However, how does this story or theory of relationship between the First Respondent and the Second Respondent and his relatives and supporters of the First Respondent raising questions of serious conflicts of interest affect the result of the election? If this was intended to be construed as undue influence, the Petitioner got it all wrong. How could such be implied of honest forthright hardworking senior public servants called on for election duties every five years come election time without stating in plain simple and unambiguous words such facts of their illegal acts deliberately orchestrated to facilitate the First Respondent’s win? In some places unless there is any truth in such malicious publication can amount to character assassination which is actionable in defamation.
    
58. If petitioner relies on undue influence, case authorities are clear on the requirement to plead the necessary elements of the offence. Section 102 of the Criminal Code provide:
    

“102. Undue influence.

A person who—

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

59. The pleading or material facts that must be pleaded is that whether it is the winning candidate or some other person acting with his knowledge and authority uses or threatens to use any force or restraint or threatens to cause any injury to an elector in order to induce him to vote or refrain from voting in an election by whatever means is guilty of misdemeanour. The elements that must be pleaded are the name or names of persons who used threat or force against name or names of persons forced or threatened, what time, what place and is that person or are those persons forced or threatened electors? And was that done to induce him to vote or refrain from voting? These elements must be pleaded so that the Respondents can see clearly what the Petitioner is complaining about and properly respond.
    
60. It is not right to say that it is okay, just let it go to trial and evidence can fix it. Evidence cannot rectify a structural defect. At the competency stage we are talking about the structure of the petition, a threshold issue.
    

Para	Petition: Subheading (C)	Respondents Replies	Remarks
23	During the polling the following irregularities were committed by polling Officials in Team No. 52 presided over by Mr. Vincent Wansasa. After polling at Tuginaro which is an authorised polling venue the team proceeded to Bali (Senkom).	Paragraph 23 fails to comply with the requirement of Section 208 of the Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 23 is ambiguous and does not disclose or fails to provide material facts.	Self-serving statement. Not a ground.
24	Areas to be covered by Team No. 52, Box No. 52 were Alimo, Tuginaro, Wiwil, Yifkindu, Yiminum and Mansuku. In this case, the Presiding Officer created an illegal polling venue at Bali (Seknom) and conducted polling resulting in the tempering of the Ballot Papers. The official polling venue for all of the people there have traditionally been at Tuginaro. It is the illegal polling conducted at Bali that had contaminated rest of the Ballot Papers in Box No. 52.	Paragraph 24 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 24 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the offense including the acts or omission constituting the alleged offense; Name of persons alleged to have committed the offense; and When and where was the offense was committed; Particulars of tampering alleged to have taken place; Particulars of the polling illegalities alleged to have taken place. Further paragraph 24 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	Convoluted. Several allegations in one paragraph. Too general.
25	The Petitioner, having noticed the illegal polling at Bali (Seknom), raised the concern with the Assistant Presiding Officer Mr. Paul Mirin on a Saturday, the 30th of June 2012, who responded by stating that the unauthorized polling at Bali (Seknom) was the work of the Presiding Officer and the Second Respondent and that he was not aware of the extra polling venue.	Paragraph 25 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 24 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the offense including the acts or omission constituting the alleged offense; Name of persons alleged to have committed the offense; and When and where was the offense was committed; How was the concern raised, was it written or oral; How was the response of the ARO Mr. Paul Mirin conveyed, whether written or oral; Particulars of any objection raised by ARO Mr. Paul Mirin. Further paragraph 25 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	No particulars of offence (if any).
26	The Petitioner then directed his two Election Coordinators John Haulai and John Mirin to take the matter up with Second Respondent. They suggested to the Second Respondent to at least seal off the Box No. 52 and allocate a new box because there will likely be disputes over Box No. 52. The request was made on the same date (30th June 2012). The Second Respondent bluntly told the Coordinators that he is the sole authority and if Candidates so wish, can take the dispute to the Court of Disputed Returns.	Paragraph 26 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 26 pleads hearsay.	No particulars of illegal acts.
27	In the past Elections, the whole of Nuku as well as Team No. 52, the polling officials have always adhere to the authorised polling schedule approved and gazetted by the Third and Fourth Respondent.	Paragraph 27 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate.	Self-serving statement
28	The Voters at Bali (Seknom) have always in the past elections voted at Tuginaro. The action of the Second Respondent was such the act was deliberate so as to facilitate double voting and tempering with the ballot papers to make the First Respondent win.	Paragraph 28 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 28 pleads the state of mind of the First Respondent and as such this ground is incompetent. . Further paragraph 28 does not disclose or fails to provide material facts including but not limited to the following: double entries in the electoral rolls; ballot boxes being opened or tampered with upon it being returned to the Returning Officer. large number of people being allowed to vote by the electoral officials without being identified as eligible voters in the particular electorate. threats of violence, etc. to the electoral officials or the electoral officials simply allowing people to vote without taking proper measures to identify them as eligible voters for the electorate.	Serious allegation without particulars.
29	In addition to the illegal polling, there were instances of double voting, at all of these polling places presided over by the officials of Team No. 52.	Paragraph 29 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 29 pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	Allegation of double voting without particulars of who, when, how?
30	As a result of the illegal polling and double voting by the polling officials of Team No. 52 there was massive voting that affected the outcome of the elections considering the difference was only 343 votes between the Petitioner and the First Respondent.	Paragraph 30 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Further Paragraph 30 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate. Further paragraph 30 pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed.	Conclusion, pre-judged result. No particulars of who, where, when, how, how many?

Observation

61. For the same reasons that I have explained in the earlier paragraphs, the same comments apply to all these paragraphs.
    

Paras	Petition: Subheading (D)	Respondents’ Replies	Remarks
31	The same applies to Team No. 64, the team headed by John Wanur who is a known supporter of the First Respondent and his polling officials were under the influence of liquor whilst conducting polling at Yimin to Maimai. In the process election materials (ballot papers and boxes) were exposed and open to tempering and were not safe.	Paragraph 31 is ambiguous and incomprehensible and further fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph 31 further pleads the state of mind of unknown person.	Lacking particulars of who, when, why and how, did what. Furthermore, how many votes and likelihood of result being affected.
32	According to the polling schedule, the authorised polling venues were Yamin, Yimawi, Yauwo and Maimai. However for some reasons, the Presiding Officer conducted illegal polling at Wawadi on 25th June 2012, Alaki on 26th June 2012, Kaikom ( supposed to vote at Yamawi ) 26th June 2012, Porowate 1st July 2012 and Waspom 2nd July 2012. In doing so the Presiding Officer facilitated double voting.	Paragraph 32 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 32 pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Paragraph 32 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	No particulars as to why the need for change, what law was breached, how it was breached, who double voted, how many, where, when in each of the places named and who were the polling officials besides the named team leader of Team 64.
33	There were two Auxiliary Police Officers and a regular female Police Officer namely Mrs Doreen Mirin were the ones who accompanied Team no. 64 with the Ballot Box No. 64 from Yamin to Maimai. Whilst conducting polling at Kaikom which is an illegal polling venue the female officer was harassed by male counterparts and she left. After Kaikom, Porowate, Waspom, Yauwo, the team proceeded to Maimai bypassing a lawful polling venue which was at Yamawi Community School.	Paragraph 33 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 33 pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Paragraph 33 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	How many votes were cast in these places covered by this Team at Kaikom where these allegations of harassment of female policewoman are raised.
34	The Presiding Officer facilitated and allowed under age kids to vote for the First Respondent at Waspom which is another illegal polling venue. One student at the age of 14 and goes by the name of Noah Wasal was forced to vote for the First Respondent.	Paragraph 34 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 34 pleads hearsay and alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Paragraph 34 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	How many under aged kids voted, names, when, why, how? Is the number of votes received likely to affect the result of the election?
35	The Presiding Officer further arranged and facilitated double voting by the allowing others to vote for people who were not even physically present there. The reasons for these irregularities were simply to have the First Respondent win.	Paragraph 35 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 35 pleads hearsay and alleges irregularities without providing the material facts constituting such irregularities. Paragraph 35 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	Who double voted? Where? How many? Are the votes collected likely to affect the result of the election?
36	As a result of the illegal polling and double voting by the polling officials of Team No. 64 there was massive voting that affected the outcome of the elections considering the difference	Paragraph 36 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 36 alleges irregularities and illegalities without providing the material facts constituting such irregularities and or identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Paragraph 36 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	Conclusion, not fact.

Observation

62. I find all the above grounds incompetent because they fail to plead material facts of double voting, tampering with ballot boxes or papers, who did what and how. Serious allegations like this must name those involved so that those persons must be summonsed to answer for their actions if true.
    
63. Polling schedules are often gazetted and published. If polling was allowed to be conducted in unauthorised polling places, provide facts showing why section 117 OLNLLGE does not apply here. One cannot simply take issue with polling in not gazetted polling venues without also demonstrating how that would have affected the result of the election for purposes of section 215 or 218 OLNLLGE.
    
64. This challenge to the polling at those villages named without pleading how this affects the result of the election clearly is prohibited by section 117 because it is a challenge just for sake of challenge without substance.
    

Paras	Petition: Subheading (E)	Respondents’ Replies	Remarks
37	The counting of the Nuku Open Electorate commenced on Monday the 9th of July 2012 at the counting centre, the Nuku District Office and the vote counting ended on the 16th of July 2012.	Paragraph 37 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph 37 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	General statement. Not a ground. Can be taken as abase statement.
38	On Wednesday the 12th of July 2012, the Scrutineers of candidates petitioned the Second Respondent to set aside Box No. 52 and Box No. 64 based on the irregularities and more importantly during polling especially the creating of unlawful polling venues. That objection was overruled by the Second Respondent and allowed the counting of these boxes. The Returning Officer failed to give reasons for his decision.	Paragraph 38 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it does not amount to ground or grounds for disputing the declaration of the First Respondent and further to dispute the return of the writs for the Nuku Open Electorate. Further paragraph 38 does not disclose or fails to provide material facts including but not limited to the following: Particulars of the objection; Name of person making the objection; When and where was the objection made; Who was the objection made to; How was the objection presented, whether written or oral; Particulars of the irregularities and illegalities alleged to have been witnessed at the polling; Further paragraph 38 alleges illegalities without identifying any provision of any statute alleged to have been breached and particulars of the breach alleged to have been committed. Paragraph 38 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	Who petitioned? Why? How petitioned? Names of scrutineers.

Observation

65. Paragraphs 37 – 38 are complaining about RO’s refusal to exclude boxes 52 and 64 from being counted. But what is the basis for RO not counting the boxes?
    
66. In any event, where the Returning Officer makes a decision regarding ballot boxes for counting is not that can constitute a ground for petition unless the Petitioner can plead with particularity that those boxes clearly contained illegal and contaminated votes and they contained sufficient votes that could affect the result of the election.
    
67. It is not good enough to not name the scrutineers in the petition because the law says that you must plead specific facts in respect of whatever allegation made so that Respondent can easily respond to the petition.
    

Paras	Petition: Subheading (F)	First Respondent’s Replies	Remarks
39(a)	The following notable failures, errors or omission overlooked by the Second Respondent; (a) The Returning Officer failed or erred in counting Ballot Box No. 52 and Box 64 when those boxes were tainted with illegal and irregular practice, despite being objected to by Scrutineers of respective candidates.	Paragraph 39 and its sub-paragraphs fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph 39 alleges illegalities, errors and omission without providing and material facts constituting such illegalities, errors, omission. Paragraph 39 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	Conclusions without particulars.
39(b)	(a) The Second Respondent was biased and favoured the First Respondent in that he was appointed by the First Respondent when he the chairman of the Provincial Election Steering Committee.		How was 2nd R bias? How he related to 1st R? How result affected?
39(c)	(a) The Second Respondent was biased because of the fact that the Presiding Officer of Team No. 52 in charge of Box No. 52 are first cousins who come from the Yifkindu village, one of the village covered by Team No. 52 and both are known supporters of the First Respondent.		What did 2nd R do that affected result of election? Did he commit any electoral offence?
39(d)	(a) The Presiding Officer of Ballot Box No. 52 and Box No. 64 and the Second Respondent were not partial and were favouring the First Respondent to win because when he was the Provincial Administrator and Chairman, Provincial Election Steering Committee he made sure they were placed in those positions before the First Respondent resigned to contest the Elections on the 11th of November 2011.		How were PO of T52 and B64 and RO not impartial in favouring 1st R? How does 1st R being former PA of Vanimo have anything to do with electoral officials doing their jobs?
39(e)	(a) The Third Respondent also erred in not responding to the objections by the Petitioner disputing the appointments of the Second Respondent when he was appointed Returning Officer of Nuku.		How does that affect result of election?
39(f)	(a) The Third and Fourth Respondents erred in offering or accepting the decisions made by the Second Respondent in the light of paragraph (a) to (e) and are vicariously liable to the said actions and inactions of the Second Respondent.		What does vicarious liability have anything to do with elections?
39(g)	(a) Despite the protest and the fact that the margins were so close, the Second Respondent erred in not allowing for quality check before elimination took place.		Quality check is not pleaded as ground of petition.
40	As a result of the failures, errors and/or omissions by the Second, Third and Fourth Respondents alluded to above. The said Ballot Box No. 52 has the following discrepancies in ballot papers which could balance.	Paragraphs 40, 41, 42 and 43 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph 40, 41, 42 and 43 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	General base statement.
41	On the 10th of July 2012, when Box 52 was opened for counting there were irregularities of two figures posted on the score board, first was 2564 votes, later count reduced it to 2555 a difference of 10 ballot was not accounted for.		Speculative and witch-hunt. How does difference of 10 votes affect the result of election?
42	In Box No. 52, the First Respondent polled 1591, when the figures were adjusted extra 10 ballots were added to him, which increased his total to 1601 votes. There was no explanation from the Second Respondent as to why there was a decrease in the ballot papers and has extra 10 vote were posted to the First Respondent’s tally.		How does that affect the result of the election?
43	Going by the above table, the ballot papers issued was 3444, ballot papers return was 1459 and the ballot papers expected be in the box was 1982. However, there was a difference of 582 and that will obviously change the Election result considering the fact the difference was 343 votes after the final elimination.		Lacking particulars to make such assumptions. How many candidates would have shared those votes, how many would have gone to P or 1st R is all speculative. How could it have affected the result?

Observation

68. Paragraphs 39 – 43 are all incompetent because they do not raise any proper grounds of petition but trying to tell a story. Election petition is a serious matter and an expensive one and it must not be approached in this manner
    
69. How does or would the RO know that the ballot boxes 52 and 64 were tainted with illegal practice? Proper facts needed to be pleaded that showing that certain events took place that tainted the ballot like it happens in some places where boxes are hi-jacked and ballot papers filled in by criminals.
    

Paras	(G) Ground 3 – Undue Influences	First Respondent’s Replies	Remarks
G(i)	GROUND 3 – UNDUE INFLUENCE Particulars As indicated in paragraph – the First Respondent being the Provincial Administrator and in his capacity as the Chairman of the Election Steering Committee appointed the recommended the appointment of the Second Respondent.	Paragraphs G is ambiguous and incomprehensible and further fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph G further pleads the state of mind of unknown person.	General innocent statement. Maybe a base statement. Not a ground.
G(ii)	The Second Respondent then appointed the Presiding Officer of Nuku Electorate including Vincent Wansasa, leader of the Team No. 52 and John Wanur Presiding Officer in charge of Team No. 64.		Another general innocent statement. Maybe another base statement. Not a ground.
G(iii)	The Second Respondent and the Returning Officer of Team No. 52 are first cousins from the same Yifkindu Village and are known supporters of the First Respondent.		Mere statement without malice. Another based statement.
Giv)	The recommendation and appointment of Joe Kufunele, a retrenched Public Servant as Assistant Presiding Officer, who is also the Campaign Manager of the First Respondent influencing the duty of the Presiding Officer in the performance of his function.		Where is the malice? What has he done that affected the election?

Observation

70. I have covered discussion on undue influence elsewhere in the judgment but this is the other difficulty with the petition. While undue influence is mentioned in one part of the petition there is a wide gap in the petition where other allegations are raised and then the petition returns to the same allegations of undue influence.
    
71. It is really quite a task moving from one paragraph to another and flipping back and forth between pages to link different paragraphs to give some rationality to the Petitioner’s draftsmanship of the petition.
    
72. Maybe Mr Kongri could be correct after all that the Petitioner under the heading was not raising a ground founded under section 102 of the Criminal Code because he is actually not talking about undue influence in the context of section 102 in the above paragraphs. He must be talking about other illegal practices falling short of section 102. Unfortunately he refers to section 102 of the Code so there can be no mistake about that in his intention except that his intention is not manifested in the allegations he raised against the First Respondent and the Returning Office and the Presiding Officer concerned
    
73. All these paragraphs must therefore be dismissed.
    

Paras		First Respondent’s Replies	Remarks
44	During the elimination process the Scrutineers objected to various errors and omissions. They objected but the Scrutineers were forced out of the counting venue.	Paragraph 44 and its sub-paragraphs is ambiguous and incomprehensible and further fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Further Paragraph 44 and its sub-paragraphs also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	Lacking particulars of who objected? Names? When? How? Why? Maybe a base statement too.
	Particulars of errors during counting
44(i)	On the 13th July 2012, during the 5th elimination of Jacob Naflou, two of the candidate’s papers for the primary count were missing from his tray. There was a recount for about three times and still the two ballot papers were not found. The Counting Officials rechecked the score board for the candidate but the figures on the board remain the same. Since the two papers cannot be found the Second Respondent suspended the counting.		How does that affect the result of election? S.218 OLNLLGE
44(ii)	The next day (14th of July 2012) the second Respondent walked over to an eliminated candidate namely, Aron Tombala’s exhausted sealed envelope, opened it and pulled out two ballot papers, held them up and announced that those were the two lost papers without showing them to the Scrutineers to see and identify them for themselves.		How does that affect the result of the election? S.218
44(iii)	In another instance, on the 7th elimination of candidate Sam Saikra, there were two ballot papers left but his score on the scoreboard was short by one ballot. In order to balance there must be one remaining ballot. In order to balance the figures on the scoreboard and that of actual papers the Second Respondent and his assistant held the two papers neatly to make it look as one paper and tried to count it as one ballot when in fact there were two ballots.		How does this affect the result of the election? S.218
44(iv)	When the Scrutineers disputed that method or practice the Second Respondent and his Assistant Presiding Officer Mr. Ben Gawi move the Scrutineers out of the counting room at gun point using the Security Forces.		Self-serving statement.s.218
44(v)	On the Saturday the 14th of July 2012 during the elimination of candidate, Zachery Mainek, eight (8) of his ballot papers were missing. The Polling Officials recounted over and over but cannot find the ballot papers. The counting was suspended and on the next day the 15th of July 2012, the Presiding Officer claimed to have found the papers and did not explain to the Scrutineers how the scores were balanced.		How does that affect the result of the election? S.218
45	The Petitioner further alleged that the above are errors to Court the attention of Scrutineers, and he belief that there may be more error committed and that warrant a recount of the votes.		Paragraphs 45 fails to comply with the requirement of Section 208 of Organic Law on National and Local Level Government Elections in that it fails to provide material facts sufficient to constitute ground or grounds for disputing the declaration of the First Respondent and or to dispute the return of the writs for the Nuku Open Electorate. Paragraph 45 also fails to provide particulars of the number of votes affected by any alleged errors, omissions, irregularities or illegalities and further provide particulars of how such alleged errors, omissions, irregularities or illegalities may affect the outcome of the election for the Nuku Open Electorate.	This is speculative and like going on a witch-hunt.

Observation

74. If there are any errors here, they are so immaterial because they can hardly make any impact at all on the result of the election. Section 218 is clear, immaterial errors must not vitiate an election. If it is the intention of the petitioner to plead the combined effect of these trivial error or irregularities with other similar mistakes pleaded in the body of the petition elsewhere, his pleading is far from demonstrating that intention.
    
75. I can address paragraph 45 as clearly a witch-hunt. This paragraph shows to me that the petitioner really did not have anything substantial to level against the First Respondent in person and had gone on a hunt looking for reasons to invalidate the result of Nuku Open Electorate by picking on Teams 52 and 64 whose Team Leaders he suspected of rigging the election in favour for the First Respondent. Petitions cannot be founded on suspicions of losing candidates. Election is a serious matter and this has been repeated time and again since Bourne v Voeto (supra) and has been repeatedly stated for example in Amet v Yama (supra) where the Supreme Court said:
    

“112. Sufficient and material facts are required to be pleaded to demonstrate the likelihood or tendency to affect the result of the election. Frost CJ: In re Menyamya Open Parliamentary Election, Neville Bourne –v- Manasseh Voeto (supra) and Sakora J: Lambu –v- Ipatas N1701 (19 November 1997).

113. When allegations of undue influence and bribery are made in a petition, these constitute allegations of criminal offences as well as electoral offences. Since the case of z, the law requires undue influence and bribery (ss 102 and 103 Criminal Code respectively) to be pleaded and proven as criminal offences. That is to say, firstly, that all the constituent elements of these two offences be pleaded (according to s 208 (a)) in the ground of a petition, and secondly, proven or established in evidence by the criminal standard of proof, proof beyond reasonable doubt. See, Agonia v Karo [1992] PNGLR 463; Karo v Kidu (Unreported N1626 of 9/10/97); and Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).

114. As criminal offences, allegations of these misdemeanours must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence. If any element of the offence alleged is omitted or not pleaded, then the facts have not been pleaded as required by s 208 (a), rendering the allegation liable to be struck out.”

76. I endorse and adopt these comments.
    

PETITIONER’S SUBMISSION IN REPLY

77. Be that as it may, I heard Mr Philip’s submissions in reply who says otherwise. He was bombarded by the heavily loaded submissions from two counsel for the Respondents on this preliminary issue which Mr Philip competently responded to. Mr Philip submits that both objections are unnecessary, the main foundation of the petition is clear and that is there were unauthorised or additional polling venues created outside of the authorised polling schedule which is not disputed except that Respondents are taking cover under Section 117 of the Organic Law on National and Lovel –Level Government Elections by saying the Petition is barred within the meaning of this provision which says:
    

“ An election shall not be challenged on the grounds of failure to observe a polling schedule or to comply with the provision of Section 114 or a variation or departure from the polling schedule”

78. He submits that this provision is clear, and is intended to allow the Presiding officers on the ground to make decision where it is not practicable to conduct polling at a scheduled polling venue. Only then can the variation be made to cater for the polling to be conducted skipping the original polling venue. However, he submits that the foundation of the petitioner’s argument is the First Respondent and the appointed presiding officer Mr Vincent Wansana of Team 52 went outside the polling schedule as opposed to variation under section 117 of the Organic Law to conduct polling at Bali (Senkom). Unfortunately, this is not the way pleadings are showing in the petition.
    
79. It is the petitioner’s argument therefore in the nutshell that the polling schedule provides for Alimo, Tuginaro, Wilwil, Yifkindu.Yiminum and Mansuku. The petitioner alleges that traditionally people at Bali (Senkom) have always voted at Tuginaro and in this case the people already voted there
    
80. Mr Philip therefore submits that section 117 does not apply in this case. He says this is not a variation of the polling schedule where there was no polling at Tuginaro. What is clear and not disputed is the fact that there was polling at Tuginaro and an extra polling outside of the schedule as well as Bali/Senkom on the next day the 28th of June 2012 (refer to paragraph 13 of the petition).
    
81. Mr Philip maintains that if there was no polling at Tuginaro and through the variation under Section 117 of the Organic Law polling was conducted at Bali/Senkom because of some circumstance arose which one could clearly argue that the polling fall within the provision of Section 117. It then follows that the polling at Bali/Senkom amounted to illegal polling and double voting. He accused Mr Kongri counsel for the Second, Third and Fourth Respondents for not deny that fact that there was polling there and people voted there. Unfortunately, it is not what Mr Kongri did or did not do as far as the substance of the case is concerned. That is a matter for trial but the issue here is one of competence of the petition.
    
82. Mr Philip goes onto submit that what is alleged here by the Petitioner is that there was polling already conducted at Tunginro as scheduled and the illegal polling at Bali/Senkom amount to double voting or for that matter those votes casted at Bali(Senkom) are illegal votes and should not be counted. However, the response to this is that pleading fails to indicate how many eligible voters lived in those places he mentioned and if they had voted already where did the others come from to vote and how many additional ones voted.
    
83. With respect to what happened at counting he submits that there was objection raised at the counting which was overruled by the Second respondent. There were question raised as to who raised those objection. The First objection was raised by the Petitioner himself on Saturday 30th of June 2012 to the Assistant Returning officer Mr Paul Mirin ( refer to paragraph 25 of the petition) and at paragraph 26 by the Petitioner’s Election coordinators Mr John Haulai and John Mirin raised the matter with Second Respondent who refused to hear them and bluntly told them to take the matter to court. It is further submitted that Team 64 was led by John Wanur and he was in charge of Box no 64 (refer to paragraph 31 of the petition) In that paragraph the polling officials were under the influence of liquor whilst conducting polling at Yimin to Maimai and that the Presiding Officer is a known supporter of the First Respondent. There was no objection regarding this paragraph in terms of the consumption of alcohol.
    
84. What the petitioner failed to grasp is that failure by the Returning Officer to exercise his discretion in his favour in itself is not a basis for over-turning an election. He must plead sufficient material facts that support his contention that ballot boxes 52 and 64 were tampered with and contained illegal votes and there were legitimate reasons for raising these objections. That is not what the facts pleaded are showing except contending that these are illegal votes because of illegal polling.
    
85. Counsel submits that the Respondents did not dispute polling at the eight locations namely:
    
    • (i) Yimin
    • (ii) Yimawi
    • (iii) Yauwo
    • (iv) Maimai
      
86. He submits that those above are the polling places where the polling schedule covered for team 64. In this case there were extra polling conducted at:
    
    • (i) Walwadi
    • (ii) Alaki
    • (iii) Kaikom
    • (iv) Porowate
    • (v) Waspom
      
87. Mr Philip argued that those additional unauthorised polling venues were created by the presiding officer. The submission by the Respondent’s counsel especially for the Second Respondent was that section 117 of the Organic Law provides for variation. As argued above the variation would be justified if again for some unforeseen circumstances that it is impractical (refer to Section 115(4) of the organic law) to conduct the election they substitute one original polling venue for another but one cannot create one additional polling venue.
    
88. Mr Philip submits that pleadings in paragraphs 32-34 of the petition is of creation of the additional polling venues which amounted to illegal polling within the meaning of section 115 and 117 of the Organic Law. But the pleadings were not drawn in the terms of any of those sections for some correlation.
    
89. Mr Philip submits that pleading on these grounds were sufficiently pleaded that every body who are entitled to vote have lawfully voted at the scheduled polling venues. The numbers of votes casted at the illegal polling venue should be excluded from counting. That gives all the reason that box 64 should be excluded from counting. Even there is also pleading regarding underage voting and by a 14 year old namely Noah Wasal. But the facts failed to disclose how many. It must be able to affect the result of the election.
    
90. He also submits that the names of scrutineers who raised the objections “will come to light during the trial”. This is the surprise that section 208(a) is trying to avoid. No surprises at the trial. Names must be revealed at pleading so that the other side the Respondents are not taken by surprise. This is a clear admission of trial by ambush.
    
91. He also submits that the table in paragraph 40 of the petition speaks for itself, in that, under team 52 in the table (2nd row) shows the total ballot papers issued were 3444, the unused ballot papers were 1459, the ballot papers spoiled were 3, the number of ballot papers used were 1982. When the ballot box was opened at counting there was a total ballot of 2564 posted the score board later 10 ballots were removed and posted to the First Respondent (refer to paragraph 42 of the petition). When the 10 ballots were removed the final figure posted was 2555. There is an unexplained difference of 573 ballots papers this is a very huge figure and obviously that alone can change the result of the election.
    
92. There was also submission based on section 217 of the OLNLLGE which says:
    

“217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

93. The Petitioner relied on this section for the petition to proceed to trial. The Respondents rebutted this submission saying that section 217 does not come into play until a petition has survived the competency test. I agree with the Respondents on this argument despite recent National Court decisions that support this view. As I have said having a sound and solid foundation is critical and relevant to any case, not just election petition matters. Justice Davani referred to the requirement of section 5 notice under the Claims By and Against the State Act being the pre-requisite to suing the State in Amet v Yama (supra). You have to meet that requirement. You don’t walk into any exclusive club that has strict membership rules without becoming a member upon payment of the prescribed fees. Only after you are lawfully inside then you can reap the benefits of short-cuts available in the interest of justice.
94. I have taken note of all counsel’s detailed submissions for which I am grateful. I have tried to be fair and viewed all your arguments from all angles. I am greatly assisted by them.
    

SUMMARY

95. Under the heading Summary, I paraphrase the Petition in my own understanding of what the Petitioner is trying to tell the Court or present to the Court as the basis for seeking to invalidate the return of this electorate.
    
96. As I peruse the petition there are three main grounds for this petition: undue influence, polling irregularities and illegalities and errors and omissions at the scrutiny. The allegations of undue influence in most cases must be attributed directly to the winning candidate. If it is indirect, it must be done by a third party with express knowledge and approval and authority of the winning candidate in order for the latter to be held liable as the principal for the acts or omissions of his agents.
    
97. With regard to polling irregularities or illegalities, this is usually levelled against the electoral officials but whatever the irregularity or illegality complained about must be such that the result of the election was affected or likely to be affected. And the pleadings must clearly state this potential pitfall.
    
98. And the same thing applies to errors and omissions. These are allegations directed at electoral officers. It must be shown that these errors and omissions actually affected the result of the election. A good example of this is Peter Yama v Melchior Kasap where during the scrutiny of the votes at the counting centre, the Returning Officer miscalculated the ballots counted and made a declaration on the figures before him thereby elevating Melchior Kasap as the winner ousting the sitting Member Tom Pais. The petition was filed by Peter Yama and the relief sought was one of re-count. During the trial while cross-checking the master tally sheet with the returns from the six Open electorates, the blunder was discovered. Had it not been for that error in the counting, the sitting Member should have been declared instead. So the court had Tom Pais declared the winner and declared Melchior Kasap as not duly elected.
    
99. This is a classical example where errors and omissions at the counting affected the result of the election.
    
100. In this petition there are a total of 33 grounds, can be 34 if paragraph 9 is included as raises complaint about lack of quality check. But quality check or lack of it is a matter going to the merits of the petition.
     
101. When I break up these 33 grounds and post them under the three broad categories alluded to earlier, paragraphs 15,19,20,21,22 and (G)(i),(ii),(iii) and (iv) come under undue influence, paragraphs 12,13,18,23,24,25,26,27,28,29,30,31,32,33,34,36 under polling irregularities and illegalities and paragraphs 14, 17, 37, 38, 39(a), 39(b) ,39(c) ,39(d) ,39(e), 39(f), 39(g) ,40 ,41 ,42,43,44(i),44(ii),44(iii),44(iv),44(v) and 45 under error and omissions at the counting
     
102. The petition seeks, inter alia, the following relief:
     
     • (1) A declaration that Ballot Box No 52 is removed from scrutineers and set aside with all its contents.
       
     • (2) A declaration that Ballot Box No 64 is removed from scrutineers and set aside with all its contents;
       
     • (3) A declaration that Ballot Box No 52 as counted be removed from the final tally sheet from the said Open Electorate
       
     • (4) A declaration that Ballot Box No 64 as counted be removed from the final tally sheet from the said Open Electorate
       
     • (5) A declaration that the First Respondent was not duly elected.
       
     • (6) In the alternative, an order for recount with the exclusion of Ballot Boxes 52 and 64
       
     • (7) In the further alternative, an order declaring that the election and return of the First Respondent is void and accordingly a by-election is ordered pursuant to section 212 of the Organic Law.
       
103. While it is easy to determine the competency of the petition in the light of grounds relied upon in the context of section 208(a) OLNLLGE, one must not lose sight of the relief being sought in the petition. The judge must always be reminded of the relief being sought so that in considering the submissions made especially on the basis of section 208(a), he must approach his task with an open mind in evaluating the parties’ positions.
     
104. In this case, the relief sought as to setting aside ballot boxes numbered 52 and 64 as sought in (1) – (4), the Petitioner needs to establish proper ground, firstly, for the grounds pertaining to these relief going to trial and secondly, if he does go to trial on those grounds, he must produce evidence to show that all votes contained in those two boxes are all illegal votes. The Petitioner is not asking for straight re-count, but a conditional re-count which is recount without ballot boxes 52 and 64.
     
105. The Petitioner’s case in a nutshell is this. The Court must remove Ballot Box Numbers 52 and 64 that were used by Teams 52 and 64 because they were tampered with and contaminated and all those ballot papers contained in them are also contaminated as they are illegal votes because they were collected from unauthorised polling places in the polling led by Teams who were supporters of the First Respondent that the First Respondent personally had a hand in their appointment to those teams when he was the Provincial Administrator for Sandaun and chairman of the Provincial Election Committee and the First Respondent orchestrated all these before he resigned to contest the election to suit his convenience. And because of that Teams 52 and 64 did not conduct proper election; they polled in unauthorised places, allowed double-voting and encouraged under-age voting as well. For these reasons the Returning Officer at the Counting Centre was requested to set aside Ballot Boxes 52 and 64 but he proceeded to count them and told his scrutineers to take their complaint to the Court of Disputed Returns. Throughout this petition I have searched for any facts setting the foundation for the Petitioner claiming Ballot Boxes 52 and 64 as illegal, contaminated, compromised but I have found none other than polling officials conducting elections in unauthorised places led by Teams 52 and 64.
     
106. It took nine pages and 33 paragraphs for the Petitioner to file this complaint in his petition which took me only two or three sentences and less than a third of A4 size paper using Times New Roman Font Size 12 to re-state his case without losing any of his story. When you start dressing up his story with facts that crystallise his claims or allegations, that should take no more than two to two and half pages of well pleaded grounds for petition to go to trial.
     
107. To make sense of the petition as pleaded is like walking in the park looking for matching balls that someone has scattered them in an induction program to help new recruits find their way home by pairing matching balls in a new work environment in a new city. It is not my job to sift through pages and paragraphs to combine pleadings in order to understand a party’s case. A statement of claim not properly pleaded can be struck down for ambiguity. Some petitions fall straight into the same pitfall.
     
108. This petition is not pleading facts, instead it is pleading conclusions that the court must make instead proving the material facts from which the court can reach that conclusion. And if the court does reach that conclusion, then how does that affect the result of the election? That is not explained. The court is left to speculate and guess by scrolling through the petition and make some guestimates from a Table that is in the petition where some figures are set out without much or any explanation as to how that Table is to be read and understood as supporting any of the grounds in the petition.
     

UNDUE INFLUENCE

109. In the final analysis therefore, all those grounds purporting to support allegations of undue influence (namely paras. 15,19,20,21,22 and (G)(i),(ii),(iii) and (iv)) are incompatible with the elements of the offence of undue influence and are therefore incompetent and struck out because:
     
     1. Those paragraphs are completely way off the mark in raising any complaint of undue influence as understood in law under section 102 of the Criminal Code and as discussed in Re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298
        
     2. No particulars of who did what to who to vote for who, when, where and how? Like in bribery under section 103, it needs only one act of undue influence to be established to send the entire election back to the polls.
        
110. The law on pleading allegations of undue influence, like bribery, as they are the only two electoral offences that can invalidate an entire election in an electorate, is well settled as pointed out by both Respondents in their written submissions for which I am indebted to them, some of which are summarised below. And it starts with section 215 which provides:
     

“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”

111. The following passage in the judgment of Sawong J in Miru v Basua (1997) unreported N1628 is relevant:
     

“It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purposes of securing votes, a election victory by a candidate or otherwise interfere with the proper conduct of elections. Speaking of the need to plead the elements of undue influence my brother Sawong J., in Charles Luta Miru v. DavsuaBasua & Ors (unreported jent) N162;N1628 said:
<">"... becausecause an election petition very serious matter, because of the serious charges and consequences that petitions entail,tail, it is certainly necessary that any groundging minalnce muse must stat state alte all relevant material facts to establish such an offence. That includes the necessity to spell out in clear and precise terms facts constituting the elements of the offence.

Thus, in my view, in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words the pleading must nly incluinclude the specific allegations of undue influence, but must also go further and state the name of the person who used orce or threats and the name of the victim and state whether he or she is or was an electorector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him."

112. The pleading requirements for bribery were discussed in by His Honour Sheehan J in Agonia v Karo [1992] PNGLR 63. This has been cited and approved in many cases including the Supreme Court in Baira v Genia (1998) Unreported SC. 579. Justice Sheehan said that:
     

"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."

113. Applying these principles to the case before him in respect of one of the grounds alleging bribery, His Honour Sheehan J observed that:
     

"It cannot be said sufficient relevant material facts are stated here to ground a charge of bribery. The unnamed leaders of each unnamed "various church groups" were each given a cheque. There is no allegation as to whether the leader or the various church groups were electors or eligible voters in the electorate, nor any allegation as to whether those leaders were to vote or not in a particular way or induce others in their group to vote in any particular manner. The same applies to the Sabama group and the statement that the money was given for ‘voting coming up takes the issue no further’"

114. Counsel also referred to the case of Jim Nomane v. David Anggo (2003) N2496 where the Court stated that particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded. Hence it not enough for the Petitioner to plead facts alleging criminal offences but must also plead facts that constitute the elements of the criminal offence as alleged.
     
115. And it seems more likely than not to me that the allegations of undue influence was an accusation of general nature implying that the First Respondent directly either alone or together with the electoral officials in Teams 52 and 64 orchestrated his win through illegal polling in unscheduled places, from double-voting and under-age voting. Undue influence provided the legs for this petition. If it goes, that is the end of this petition. Without the legs, the allegations of illegal polling and errors and omissions at the counting venue cannot survive on their own.
     
116. In this respect, Mr Kongri's approach where he made an alternative submission could be the correct conclusion. It may not have been the Petitioner's intention to raise undue influence in the context of section 102 of the Code. Even then, as he submits, section 208)(a) requirements are still not met.
     

POLLING IRREGULARITIES & ILLEGALITIES

117. Consequently all those grounds in paragraphs 12, 13, 18, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34,36 raising allegations of illegal polling, irregularities, under age and double voting lack clarity and particularity and are therefore incompetent because:
     
     1. What are the facts constituting illegal polling?
     2. By what law is polling in unscheduled venue illegal?
     3. Who decides when polling is illegal?
     4. Why are polling conducted in Alimo, Wulbowe, Tuginaro, Bali, Wilwil, Yifkindu, Yiminum and Mansuku illegal except Bali?
     5. Who voted in those places?
     6. How many electors voted in those places?
     7. How many, where, how, double-voted?
     8. How many under-age voters? Where? When?
     9. How do they affect the result of the election?
        
118. Change of polling venues by officials on the ground have been discussed in many cases before this court and some went as far as the Supreme Court such as Kopaol v Embel [2008] PGSC 26; SC941 and Saonu v Dadae [ 2004] PGSC 12; SC763 which principally state that in order to bring a ground in a petition within the ambit of s 43, one must plead if a polling place was not lawfully appointed or abolished under s 43. Simply grounding a petition on the basis of polling activities being moved from one polling place to another polling place, in order to meet any sudden change caused by bad weather, time constraints, security issue in order to facilitate voting does not amount to breach of s43.
     

118. Section 43 of the Organic Law provides as follows:

43. POLLING PLACES.

(1) The Electoral Commissio, bay, 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 inks necessary and practicabticable; and

(b) abolish a polling place.

(2) No polling placll be aboliabolished after the issue of the writ and before the time appointed for its return.

119. There are alctions 113 to 117 OLNLLGE which are quite relevant. I set them out below:

113. Polling Schedule.

(1) Subject to any directions given by the Electoral Commission, the Returning Officer shall, as soon as practicable after the close of nominations, prepare a polling Schedule showing the anticipated dates and times, within the polling period for the electorate, during which the polling booths will open at the polling places in the electorate, in such manner as he considers will give all electors in the electorate a reasonable and sufficient opportunity to vote at the election.

(2) Nothing in Subsection (1) or in this Law shall be construed to mean that polling shall be conducted on each day throughout the polling period or on any particular day in the polling period.

114. Publication of Polling Schedule.

(1) The polling Schedule shall be published in the National Gazette and in a newspaper circulating in the electorate, and the Returning Officer shall take such other action as he considers necessary or desirable, or as is directed by the Electoral Commission, to ensure adequate publicity for the polling schedule.

(2) A copy of the polling Schedule shall be forwarded to each Provincial Government and Local-level Government in the electorate and shall be exhibited at such other places in the electorate as the Returning Officer appoints.

(3) A copy of the polling Schedule for an electorate shall be forwarded to each candidate in the electorate.

115. Adherence to Polling Schedule.

(1) As far as possible, polling booths shall be open in accordance with the polling schedule, and the Returning Officer and presiding officers shall take all such action as is necessary or desirable for that purpose, whether expressly authorized by this Law or not.

(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case the provisions of Section 114 shall, as far as practicable, be observed in relation to the variation.

(3) Subject to any directions given by the Returning Officer, a presiding officer may where in his opinion it is necessary or desirable in order to meet an unforeseen contingency of emergency and it is impracticable for the Returning Officer to vary the polling Schedule under Subsection (2), depart from the polling Schedule in relation to a polling place, and shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.

(4) Where the presiding officer departs from the polling Schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it.

116. Appeal.

(1) An elector may, not less than 14 days before the commencement of the polling period for an electorate, appeal to the Electoral Commission for an order varying a polling Schedule on the ground that it does not give to all electors in the electorate or in a part of the electorate a reasonable opportunity for voting in the election.

(2) Notwithstanding an appeal under Subsection (1), but subject to Section 115, a polling Schedule remains valid and in force until varied by order of the Electoral Commission under Subsection (1).

(3) In making an order under Subsection (1) the Electoral Commission shall give such directions as it considers desirable and practicable to ensure adequate publicity for the order.

117. Election not open to challenge.

An election shall not be challenged on the ground of failure to observe a polling Schedule or to comply with the provisions of Section 114, or of a variation or a departure from a polling schedule.

120. Section 117 is particularly quite relevant here as the Second, Third and Fourth Respodents relied on this provision and argued that the petitioner's grounds based on polling irregularities are prohibited by this provision. This is a very critical submission in the light of what this court said in In re Central Provincial Government Elections: Mathew Poia v Socrates Valerian Valai and Electoral Commission of Papua New Guinea [1990] PNGLR 388 which I discuss later in this judgment.

121. Section 115 which relates to adherence to polling schedules makes allowance for variations where necessary under subsections (2), (3) and (4) and these are clearly set out. Even section 116 gives an elector a right of appeal to request a change in the polling venue to the Electoral Commissioner. It is therefore incumbent upon the Petitioner in his pleading by clearly articulating his grounds where any of these provisions have been violated and how have these violations affected eligible voters' right to vote and denied them their right and whether the result of the election could have been affected.

122. In Mathew Poia v Socrates Valerian Valai and Electoral Commission of Papua New Guinea (supra) there was a vote difference of 13 between the petitioner and the respondent for the Zarima Constituency of Goilala District Central Province in the first past the post-election system for Central Provincial Government elections. The petitioner filed his petition citing failure of the polling officials to adhere to polling schedule and not conducting polling at a designated polling venue denying sufficient number of eligible voters sufficient to affect the result of the election from voting. At the trial 31 eligible voters gave evidence of not being able to vote because of the no-show by the poling team. Upholding the petition and declaring the election void, Sheehan, J said:

"The last ground stipulated by the petitioner was the failure of the officers of the second respondent, the Electoral Commission, to conduct polling at a designated polling place, namely Karuama No 2 village.

The validity of this ground was questioned by counsel for the second respondent on the basis that s 94 of the Provincial Government (Electoral Provisions) Regulations (Ch No 56) precludes an election challenge based on a failure to adhere to a polling schedule. That section reads:

"94. Election not open to challenge.

An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of Section 92, or of a variation or a departure from a polling schedule."

The submission that this ground of the petition should therefore be struck out was not upheld. While s 94 excludes a challenge to an election because polling was not conducted at a particular time or place; this section is not authority for a "variation" of the schedule that results in the prevention of eligible voters from voting at all.

Part XIII of the Provincial Government Election Regulations is intended to ensure that voters are informed of the times and places for voting. The first requirement is that a schedule is prepared. Section 90 states.

"90. Polling Schedule.

(1) Subject to any directions given by the Electoral Commission, the Returning Officer shall, as soon as practicable after the close of nominations, prepare a polling schedule showing the anticipated dates and times, within the polling period for the constituency, during which the polling booths will open at the polling places in the constituency, in such manner as he considers will give all electors in the constituency a reasonable and sufficient opportunity to vote at the election.

(2) Nothing in Subsection (1) or in this Regulation shall be construed to mean that polling shall be conducted on each day throughout the polling period or on any particular day in the polling period."

Plainly that section requires a clearly detailed timetable of dates and places shall be prepared so that voters will have a reasonable opportunity to vote. To ensure that proper public notice of the schedule is given, s 91 goes on to say:

"91. Publication of polling schedule.

(1) The polling schedule shall be published in the National Gazette and in a newspaper circulating in the constituency, and the Returning Officer shall take such other action as he considers necessary or desirable, or as is directed by the Electoral Commission, to ensure adequate publicity for the polling schedule.

(2) A copy of the polling schedule shall:

(a) be forwarded to the provincial government body and any Local Government Authority and Council and local level government in the constituency; and

(b) be exhibited at such other places in the constituency as the Returning Officer appoints.

(3) A copy of the polling schedule for a constituency shall be forwarded to each candidate in the constituency."

But it is also clear that it is not intended that the published polling schedule shall be a rigid timetable, absolute and unchangeable.

"92. Adherence to polling schedule.

(1) As far as possible, polling booths shall be open in accordance with the polling schedule, and the Returning Officer and presiding officers shall take all such action as is necessary or desirable for that purpose, whether expressly authorized by this Regulation or not.

(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case Section 91 shall, as far as practicable, be observed in relation to the variation.

(3) Subject to any directions given by the Returning Officer, a presiding officer:

(a) may, where in his opinion it is necessary or desirable in order to meet an unforeseen contingency or emergency and it is impracticable for the Returning Officer to vary the polling schedule under Subsection (2), depart from the polling schedule in relation to a polling place; and

(b) shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.

(4) Where the presiding officer departs from the polling schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it." (Emphasis added.)

A schedule therefore may be varied upon adequate notice to allow for unforeseen circumstances arising at the time. This may be for such incidents as bad weather, transport difficulties, and the like.

But what this part of the Regulations does not authorise is the cancellation of a polling place or failure to adhere to the schedule to such an extent that eligible voters are prevented from voting at all. In the event that an emergency or special circumstance arises, then certainly a schedule may be varied, with adequate notice being given to the voters affected so that they are able to vote at a different place or at a different time.

Mr Bobby Bireo, the presiding officer for team 1 in the Zarima electorate made a report on why the voting was not conducted at the designated polling place, Karuama No 2. In that report he says:

"... it wasn't the intention of the officials at all to exclude the voters from Karuama No 2. It was or had been arranged by the people through their councillors, namely: (a) Andrew Auri — Councillor for Karuama No 2 (b) Gregory Gitaia — Councillor for Karuama No 1 to let the polling officials know in advance of the people [sic] intentions to gather at Karuama No 1 to cast their votes."

.....

Under s 92 of the Regulations, returning officers for the electorate and presiding officers are enjoined to take all action necessary to try to adhere to the schedule. Section 92 (3) states (as

I have noted and emphasised in that section quoted above that a presiding officer may, when it is necessary to meet an unforeseen contingency or emergency, ... vary the polling schedule. But as can be seen from the evidence of Mr Bireo there was no unforeseen contingency or emergency; he says there was simply a request by the voters through their councillors that Karuama No 1 and No 2 be joined as polling places.

The right to vary the polling schedule does not lie with voters or councillors. In any case the arrangement described by Mr Bireo is repudiated by all those persons he said agreed to it. There is no need for me to decide whether there was a request to combine polling places or if it was a unilateral decision of the polling team. I am inclined to accept the story of Mr Bireo since there was no obvious reason at that stage to short-circuit the schedule. But even if these people had made such a request, or even if Mr Bireo were able to produce some written agreement acknowledging the proposal to combine polling places, it seems to me that any such arrangement would be invalid in any case.

With no emergency, no unforeseen contingency, and, in his own words, no discretion not to go to Karuama No 2, it was not open to the presiding officer to make that decision that he did.

In my view the failure to conduct polling at the designated polling booth without just cause is a serious breach of election procedure.

...

The results declared in this constituency were that Socrates Valerian Valai won the election by 13 votes. If 32 eligible voters were prevented from voting in the election and I believe there were at least that number, then that margin could easily have been overturned.

Accordingly my finding is that the election must be declared absolutely void, and the person who was returned as elected namely Socrates Valerian Valai must be declared to have been not duly elected."

123. The scenario that Sheehan, J was dealing with in Poia v Valai (supra) was not the same as in this case. In that case the Presiding Officer did not take the Polling Team to a designated polling place and skipped it because time was not on their side and they had to reach the final destination to await their transportation out. In doing so 31 plus eligible voters were denied right to vote. So regardless of section 94 which is the corresponding section to section 117 of the Organic Law that prohibited challenge to an election result for failing to observe an election schedule, Sheehan, J said that as long as that variation to the schedule did not deprive eligible voters right to vote and the number of votes denied were sufficient to affect the result of the election, section 94 had no application. A difference of 13 votes was well within the number of those who missed out on voting which was 31 that could have made a difference in the result so declared the election void and by-election was ordered.

124. But the Petitioner here is not arguing that eligible voters have been denied the right to vote. He is saying that unspecified number of voters who cast their votes in those places that Polling Teams 52 and 64 conducted polling and whose votes are in Ballot Boxes 52 and 64 must be denied their right to vote or ought not to have voted because:

1. They cast their votes in places not designated for polling, without specifying who those persons were, how many, when and why;
   
2. People double-voted in those places but does not specify who those persons were, how many, when and why?
   
3. Under-aged persons voted but does not specify who those persons were except one named, how many, when and why?
   
4. The identity of those persons, how many involved is to assist the court to determine whether the result of the election was likely to be affected.
   
5. To specify where, when and why is to enable the Respondents an opportunity to obtain evidence to be able to respond to the allegation as section 215 OLNLLGE is clear except for bribery and undue influence, all other illegal practices falling short of bribery or undue influence, even attempts, must qualify one further element, those infringements must affect or have the likelihood of affecting the result of an election.
   
6. And the same goes for errors and omissions by officials, if sufficient number of votes enough to affect the result of the election as in Yama v Kasap (supra) that became corrupted or contaminated by errors and omissions or irregularities, section 218 says no immaterial errors must vitiate an election.
   

ERRORS AND OMISSIONS AT COUNTING

125. At the same time all those grounds, namely paragraphs 14, 17, 37, 38, 39(a), 39(b),39(c) 39(d),39(e), 39(f),39(g),40,41,42,43,44(i),44(ii),44(iii),44(iv),44(v) and 45 under the heading errors and omissions at the counting are equally incompetent because:

1. No particulars of the electoral offence;
2. Who was responsible?
3. Particulars of number of votes sufficient to affect the result of the election?
4. Inadequate facts provided to explain the Table under paragraph 40 as to what it is trying to establish other than being inquisitive, speculative and presumptuous.
5. There is no explanation as to how many candidates in the Nuku Open Electorate apart from the Petitioner and the First Respondent who would benefit from the vote counts in the Table especially from Team 52?
6. It is the duty of the petitioner to lay it out all clearly in the petition these facts so that the Respondents and the court can appreciate what the Petitioner is complaining about. At the counting, let alone those polling venues complained about, the petitioner does not make out such a case of election result being affected by such illegalities.
   

126. Section 218 provides that immaterial errors must not vitiate the election. It provides:

"218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

127. In relation to the pleading requirements of a ground of errors or omissions likely to affect the results of the election, I rely on the principle in Torato v The Electoral Commissioner and Ors [1988-89] PNGLR 83 where it was held that to determine whether the result of the election was likely to be affected by the errors or omissions in the conduct of the election it was relevant:

(i) to consider whether there was no real electing at all, or whether the election was not really conducted under the subsisting election Laws; and

(ii) to compare the actual voting and what the voting would had been held the election be free from irregularities.

128. In that case the Court further went on to state at page 85 that:

"Under an Act and procedure where there is no requirement for pleadings and an emphasis on limiting the use of lawyers, the allegation must be more specific and therefore set out the details of the alleged malpractice, where, when and what they are"

129. Counsel also referred to the case of Paua v. Ngale [1992] PNGLR 563 in which the Court held in its head notes that;

"(i). ...clear evidence of errors and omissions are required. The Court cannot merely draw possible conclusions or infer possible situations and assume that there may be a possibility of errors/omissions: Laina v. Tindiwi (1991) unreported N979 referred to.

(ii). If the main thrust of the petition is errors and omissions of electoral officials then the law is quite clear that such can only vitiate the election if it is established before the Court that the result of the election is likely to have been affected and that the candidate is considered not to be duly elected."

130. The court went further and said at page 564 that a clear and sufficient statement of the relevant facts relied upon must be stated. The Court and or the parties cannot be left to "draw possible conclusions or infer possible situations and assume that there may be a possibility of errors and/or omissions"

131. I agree with counsel for the First Respondent that the Petitioner when relying on errors and omissions likely to affect the results of elections has to show:

(i) how there was no real electing at all; or
(ii) how there was no election conducted under the subsisting election Laws; and
(iii) the actual voting and what the voting would have been had the election been free from irregularities.

132. Counsel also made reference to the National Court case of Mongi and Vogae (1997) Unreported N1635 where the court held that 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 omissions on the part of the election officials are material as such that the result of the election was likely to be affected.

133. No such pleading is evident in the way the entire body of the petition other than telling a story in a long winded manner of the Petitioner's misgivings of the election results.

CONCLUSION

134. I find the purported grounds set out in the petition from paragraphs 12 to 45 do not plead material facts commensurate with the allegations of undue influence, illegal practices and errors and omissions capable of going to trial individually or collectively and therefore incompetent. The end result is that with all these paragraphs struck out as being incompetent, the petition cannot go further and must be dismissed.

135. Petitioner pays the costs of the Respondent and security for costs shall be divided evenly amongst the Respondents.

ORDERS

136. The orders of the court are:
(1) Petition is incompetent and is hereby dismissed.

(2) Petitioner pays the Respondents costs of this petition.

(3) Petitioner's security for costs of K5000 held by the Registrar be evenly divided amongst the Respondents.

Korerua Lawyers: Lawyers for the Petitioner
Jema Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the 2nd, 3rd and 4th Respondents