N4960
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 18 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE LAIGAP-PORGERA OPEN ELECTORATE

BETWEEN

PHILIP KIKALA
Petitioner
 
AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

NIXON KOEKA MANGAPE
Second Respondent

Wabag: Makail, J
2013: 07th, 08th & 18th January

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficiency of pleadings – Allegations of bribery – Allegations of illegal practices during polling – Allegations of errors and omissions – Pleading of relevant or material facts – Alternative pleadings – Whether permissible – Permissible if not contradictory or confusing – Organic Law on National and Local-level Government Elections – Sections 208(a), 210, 215, 217 & 218 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Attestation of petition – Meaning of attest – Purpose of – Failure of – Petition incompetent – Organic Law on National and Local-level Government Elections – Sections 208(d) & 210 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718 
Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727
James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899
Jeffrey Turia -v- Gabriel Nelson (2008) SC949
Iambakey Okuk -v- John Nilkare [1983] PNGLR 28 
In Re Moresby North East Election Petition (No 2), Patterson Lowa -v- Goasa Damena [1977] PNGLR 448 
Kevin Masive -v- Iambakey Okuk & Johannes Kenderop [1985] PNGLR 263
David Lambu -v- Peter Ipatas (1997) N1701
Delba Biri -v- Bill Ninkama [1982] PNGLR 342
Jimson Sauk -v- Don Pomb Polye (2004) SC769 
Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763
Barry Holloway -v- Aita Iwarato & Electoral Commission [1988] PNGLR 99
Sir Arnold Amet -v- Peter Charles Yama & Electoral Commission (2010) SC1064
In the matter of Re Lufa Open Electorate; Komane Asano Wasaenge -v- Mathias Karani & Electoral Commission (1997) N1617
Raymond Agonia -v- Electoral Commission & Albert Karo [1992] PNGLR 463
Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th December 2012) 
Albert Karo -v- Lady Carol Kidu [1997] PNGLR 28
Charles Luta Miru -v- David Basua (1997) N1628 
Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385
Re Ben Semri (2003) SC723
Paias Wingti -v- Rawali & Electoral Commission (2008) N3285
Ben Micah -v- Ian Ling-Stuckey & Electoral Commission (1998) N1791
John Wemin Mili -v- Simon Philip Gaima [1997] PNGLR 645 
Dick Mune -v- Anderson Agiru(1998) SC590
Ludger Mond -v- Jeffrey Nape (2003) N2318 
Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635
Alfred Manase -v- Don Pomb Polye and the Electoral Commission (2008) N3534
Francis Koimanrea -v- Electoral Commission & Paul Tiensten (2003) N2421

Text & References

Oxford Advanced Learner's Dictionary, 7th ed, 2007, Oxford University Press, London

Counsel:

Mr J Kennedy, for Petitioner 
Mr H Viogo, for First Respondent
Mr P Mawa, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

18th January, 2013

1.	MAKAIL J: I have delayed the ruling on two objections to competency filed by the respondents because parties have raised numerous compelling arguments which needed proper consideration. Counsel for each party prepared detailed written submissions and spoke to them at length during the hearing. The written submissions and oral arguments have greatly assisted me in my deliberation and I thank each counsel for his assistance. The objections challenge the competency of the petition by the petitioner who is disputing the election of the second respondent as member-elect for Laigap-Porgera Open Electorate following the 2012 General Election. 

Background

2.	The second respondent Honourable Nixon Koeka Mangape was declared member-elect on 27th July 2012 after he polled a total of 35,804 votes defeating the petitioner who polled a total of 30,648 votes. On 14th August 2012, the petitioner filed this petition. The petition raises five main grounds:

2.1.	Ground 8.1- The second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament.

2.2.	Ground 8.2 - The second respondent was occupying a public office as chairman of Porgera Development Authority ("PDA") and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament.

2.3.	Ground 8.3 - Bribery.

2.4.	Ground 8.4 - Illegal practices during polling.

2.5.	Ground 8.5 - Errors and omissions on the part of the first 
respondent.

3.	The respondents bring the objections to competency pursuant to section 210 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and Rule 15 of the National Court Election Petitions Rules, 2002 (as amended) ("EP Rules"). 

Grounds of Objection

4.	The grounds of the objections can be summarised into four main grounds:

4.1.	Name of second respondent on common roll.

4.2.	Holding of public office without resigning.

4.3.	Insufficient facts, lack of clarity and alternative pleadings of the petition.

4.4.	Attestation of petition by witnesses.

5.	The respondents raise specific objections in relation to the allegations of bribery, illegal practices, errors and omissions and submit that the facts are inadequate, lack clarity and contradictory. In general, they object and submit that the allegations of fact raising all the grounds are also pleaded in the alterative and alternative pleadings are not permitted in election petition cases. I propose to deal with each ground of objection by starting with the general ground of objection first. This is the ground on alternative pleadings.

Alternative pleadings 

6.	The ground on alternative pleadings is a general one as it applies to all of the grounds of the petition. The respondents object to the petition because the petitioner has pleaded each ground of the petition in the alternative. For example, in the first ground of the petition, he alleges that the second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament. In the alternative, he alleges that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. In the further alternative, he alleges bribery. In the further alternative, he alleges illegal practices during polling and in the final alternative, errors and omissions against the first respondent.

7.	Relying on the cases of Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718, Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727 and recently James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899, the respondents submit that alternative pleadings are not permitted. The reason being, they confuse the respondents in the defence of the petition. Thus, it is incumbent on the petitioner to elect which ground of the petition he intends to pursue against the respondents. He cannot have it both ways. As he has drafted and presented his grounds of the petition in the alternative, they are incompetent and must be struck out in their entirety.

8.	The petitioner submits that this ground of objection was not pleaded in the notices of objection to competency. Thus, he was not given notice that the respondents would be objecting to the petition on this ground, hence has been prejudiced. In the alternative, he submits that while the starting sentence of each ground begins with the words "Further to or in the alternative", they are not contradictory or confusing. Each ground of the petition is plain and clear and if read on its own or with the other grounds, it is reasonable to expect that the respondents will know what to meet at trial.

9.	While I accept that the respondents did not put the petitioner on notice that they would be objecting on this ground, I note at the hearing, his counsel ably made submissions on this ground. Thus, I am not satisfied that the petitioner has been prejudiced by the late notice and I will consider this ground. Without descending into a consideration on whether the facts supporting each ground of the petition are sufficient but simply taking each ground on face value, this ground can be disposed off fairly quickly. 

10.	The three cases relied upon by the respondents suggest that a petitioner is not permitted to plead grounds of a petition in the alternative. However, I am unable to find in the Organic Law on Elections or the EP Rules, a provision prohibiting alternative pleadings in the petition. Neither do the cases relied upon by the respondents cite any law prohibiting alternative pleadings in an election petition. Indeed, in submissions, the respondents conceded that there appears to be no law prohibiting alternative pleadings in election petitions. The above cited cases suggest that alternative pleadings are not permitted because they may be contradictory or confusing. I am of the view that as there is no law prohibiting alternative pleadings, pleading alternative grounds of a petition is permitted as long as they do not contradict each other or are not confusing. For this reason, I would dismiss this ground.

11. If I am wrong on this point, taking the pleading of the grounds in the petition as they are and appreciating that each ground begins with the words "Further to or in the alternative", I am not satisfied that the pleading of each ground is contradictory to the other or are confusing such that the respondents are prejudiced in their defence of the petition. In my view, the words "Further to or in the alternative", does not change the substance of each ground. Each ground is plain and clear and it can reasonably be expected that the respondents will know what to meet at trial. In any case, the words "Further to" means what it say. It is adding a further ground to an earlier ground or grounds that the petitioner would be relying on in the petition. 

12.	For example, if he fails to prove that the second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament, then he can rely on the further ground that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. Same reasoning is given for the other grounds. Thus, I fail to see how these grounds are contradictory or confusing. For these further reasons, I dismiss this ground.

Name of second respondent on common roll.

13.	Next, the respondents seek to strike out the first ground of the petition because it is misconceived and therefore, incompetent. They submit that if the second respondent's name is not on the common roll for the Laigap-Porgera Open Electorate, it does not mean that he is not a registered voter, hence disqualified from nominating and contesting the election. They submit that by virtue of sections 64(2) and 131(2) of the Organic Law on Elections, he is a registered voter and eligible to nominate and contest the election. These provisions of the Organic Law on Elections should put to rest the debate.

14.	In reply, the petitioner submits that this ground of objection is misconceived because it is not a jurisdictional ground under any of the "requisites" of a petition under sections 208 or 209 of the Organic Law on Elections. He relies on the Supreme Court decision in Jeffrey Turia -v- Gabriel Nelson (2008) SC949 where the Supreme Court held, inter-alia, that a proper ground of objection to competency is one that draws the Court's attention to a question of jurisdiction.

15.	In the alternative, he submits that it is a proper ground in law and one for trial because it raises the question of eligibility or qualification of the second respondent to nominate and contest the election. This ground is the same as the grounds on age and residential qualifications of a candidate under section 103 of the Constitution as was considered by the Court in Iambakey Okuk -v- John Nilkare [1983] PNGLR 28 where the Court said: 

"In my opinion, it is not conceivable that Parliament in adopting the Constitution could have contemplated that a man could be a candidate and stand for national elections when it was known that when he came to take his seat, he would not be qualified. It must follow from s. 103 of the Constitution that if the candidate is not twenty-five when he comes to take his seat, that he was not qualified to stand in the first place."

16.	As to the residential qualification, the Court said:

"If the candidate were declared disqualified on the basis of lack of residential qualification, then he was disqualified to be a member ab initio, and it followed that he was not qualified to be nominated as a candidate....... It would follow from such a declaration that the nomination was invalid at the outset."

17.	Finally, he submits that the provisions of the Organic Law on Elections, sections 64 and 131 are conflicting. They appear to have been amended by Parliament sometimes in 2006 and favour the respondents but there is no evidence of certification by the Speaker of the National Parliament to verify that these provisions were amended and are in force. He has a copy of the Organic Law on Elections that does not have the purported amendments. The conflict in provisions of the Organic Law on Elections is further reason for this ground of the petition to go to trial.

18.	I note in submissions, parties accepted that the question of qualification of a candidate to nominate and contest election can be raised in an election petition. There is also authority for this proposition: In Re Moresby North East Election Petition (No 2), Patterson Lowa -v- Goasa Damena [1977] PNGLR 448 and Kevin Masive -v- Iambakey Okuk & Johannes Kenderop [1985] PNGLR 263. Thus, the issue is properly before the Court for determination.

19.	I uphold the first part of the petitioner's submissions. It is clear that the ground of objection does not draw the Court's attention to the question of jurisdiction: Jeffrey Turia's case (supra). It goes to the merits of the ground of the petition; the question of qualification. In other words, the petitioner is saying the second respondent is disqualified from nominating and contesting the election because he is not a registered voter and the second respondent is saying, he is entitled to do so. These competing arguments raise a triable issue for proper consideration at trial. The parties' further submissions including the one on the application of the correct provisions (sections 64 and 131) of the Organic Law on Elections can be raisedat that time. Thus, I need not consider them. This ground is dismissed.

Holding of public office without resigning.

20.	The respondents seek to strike out the second ground of the petition because it is misconceived and therefore, incompetent. The petitioner alleges that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. They submit that this is not a ground in law that is capable of or can invalidate an election result. It has nothing to do with the qualification requirements of a candidate under section 103 of the Constitution. At the highest, it raises a leadership issue but that is a matter that can be dealt with by the Ombudsman Commission at its own time and separately from an election petition. They cite section 9 (Engaging in other paid employment) of the Organic Law on Duties and Responsibilities of Leadership and the case of David Lambu -v- Peter Ipatas (1997) N1701 to support their submissions.

21.	The petitioner repeats and adopts his submissions in relation to the ground on failure by the second respondent to have name on the common roll. Again, I uphold the first part of the petitioner's submissions. It is clear that the ground of objection does not draw the Court's attention to the question of jurisdiction: Jeffrey Turia's case (supra). It goes to the merits of the ground of the petition; the question of qualification. From the respondents' submissions, it is clear that they are contending that the ground has no merit, is frivolous and vexatious. But it must not be confused with the question of competency. The case of David Lambu (supra) can be distinguished. It appears the Court struck out a similar ground when it was raised in a "preliminary application." In this case, it is raised in an objection to competency. For these reasons, this ground is dismissed.

Insufficient facts and lack of clarity of pleadings in the petition.

22.	The next ground is in relation to insufficiency of facts or lack of clarity of pleadings in the petition. The parties took no issue with the principle that a petition will not proceed to trial if the mandatory requirement of section 208(a) Organic Law on Elections is not met or complied with. Section 208 states: 

"208.	Requisites of petition.

A petition shall –

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

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

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

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

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

23.	The second respondent submits that the Supreme Court has taken two positions when determining whether a petition is in compliance with the mandatory requirement of section 208(a). The first is a strict one as in the case of Delba Biri -v- Bill Ninkama [1982] PNGLR 342 and the other is a liberal one as in Jimson Sauk -v- Don Pomb Polye (2004) SC769 and Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763. The petitioner after distinguishing the latter two cases from the case of Delba Biri (supra), generally accepts the position that Delba Biri's case (supra) is still the authority for the proposition that the petitioner must strictly comply with the mandatory requirements of sections 208 and 209 (supra). 

24.	I accept the petitioner's submission. I am not satisfied that there is a distinction in the way the Supreme Court and the National Court has applied section 208(a) (supra). The Supreme Court in the cases of Jimson Sauk and Ginson Goheyu Soanu did not water down the strict requirement of section 208(a) (supra) and these two cases can be distinguished on their facts because they dealt with the application of section 206 of the Organic Law on Elections and not section 208(a). The Supreme Court held in each case that section 206 (supra) is not a "requisite" of a petition under section 208 (supra) such that failure to comply with it renders a petition incompetent. I agree with Kandakasi, J in his recent decision in James Yoka Ekip (supra) at 10 when the same kind of submission was made by counsel for the Returning Officer for Hagen Open Electorate and after referring to the cases of Jimson Sauk and Ginson Goheyu Soanu said:

"Contrary to the submissions of learned counsel for the First Respondent, Mr. Kongiri, I note that the Supreme Court in the Jimson Sauk and Ginson Saonu cases did not water down the need to meet the strict requirements of s. 208, 209 and 210 of the Organic Law on Elections."

25.	Section 208(a) (supra) only requires the petitioner to state the facts he relies upon to invalidate an election or return. However, case laws require the facts supporting the allegations to be made with clarity and sufficiency and not mere allegations. Many of them have been cited by counsel for the parties in their respective submissions and they take no issue with this principle of law. 

26.	Some of the cases are Delba Biri (supra), Barry Holloway -v- Aita Iwarato & Electoral Commission [1988] PNGLR 99, Sir Arnold Amet -v- Peter Charles Yama & Electoral Commission (2010) SC1064, In the matter of Re Lufa Open Electorate; Komane Asano Wasaenge -v- Mathias Karani & Electoral Commission (1997) N1617, Raymond Agonia -v- Electoral Commission & Albert Karo [1992] PNGLR 463 and Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th December 2012).

27.	Restating how a petitioner must plead the grounds of the petition to invalidate an election or return, in Barry Holloway's case (supra), the Supreme Court said:

"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute 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." 

28.	As to what constitutes "facts", the Supreme Court said:

"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."

29.	And how the facts must be set out, the Supreme Court said:

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

30.	Further emphasising the need to plead facts, in Albert Karo -v- Lady Carol Kidu [1997] PNGLR 28, his Honour Injia, J (as he then was) whilst affirming the principle in Barry Holloway's case (supra) said: 

"In my view, clause 6 breaches the "facts only and not the evidence" rule laid down by the Supreme Court in Holloway v Ivarato. The purpose of pleading only the relevant or material facts and not the evidence which constitute a ground is to indicate clearly to the Court and the opposing party the precise issues. To plead evidentiary materials in a vague and piece-meal manner as the present Petitioner has done in clause 6 is to leave the Court and the Respondents guessing as to what the precise factual allegations are. This results in the Court having to waste precious time reading through pages of evidence, which in this case runs for two (2) pages. It is not intended by OLNE S. 208 (a) and S. 210 that the Court should waste time reading through the material and working out for itself the precise relevant or material facts which may be buried in a load of evidence in a petition."

Bribery

31.	I turn to the ground on bribery. All the parties accept that an allegation of bribery or attempted bribery against a successful candidate is, in fact, a charge that an election should be overturned because a criminal offence under section 103 of the Criminal Code has been committed. In Raymond Agonia's case (supra), Sheehan, J said at 469:

".......... because "an election petition is a very serious thing," because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.

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."

32.	See also Charles Luta Miru -v- David Basua (1997) N1628 and in Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385, Sawong, J stated this in relation to pleading bribery or undue influence:

"The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of s. 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s. 103 of the Criminal Code. Anything short of that will offend against s. 208(a) and therefore will be fatal. See Bourne v Voeto [1977] PNGLR, Palme v Mel [1988] 808, Agonia v Karo [1992] PNGLR 463, Charles Luta Miru v David Basua and Others [1997] N1628, Ludger Mond v Jeffery Nape (14 January 2003), Miria Ikupu v Sir Mekere Morauta (19 December 2002) EP 05/02, Moses Murray v Sir Michael Somare & Others EP 36/2002, Francis Ali v Frank Oru & Others (EP 37/02).

In Ikupu v Morauta and Murray v Somare (supra), the allegations in the petitions were grounded on bribery. But in either case the petitioner failed to plead one essential element of the offence of bribery - that an elector was bribed. The petition referred to "eligible voter" or named a person without saying whether he was an "elector". In either case the Court struck down all the allegations for that reason."

33.	But the parties differ in relation to how the facts supporting the allegation of bribery are to be pleaded. Relying on the above cited cases, the respondents contend that the facts must be specific and must set out the details of malpractice, where, when and what they are. The facts are incomplete because one important material fact that is missing is the location where the second respondent is said to have bribed these persons. There are also no facts setting out the nexus between the PDA and the second respondent and the persons allegedly bribed are not electors. There are no facts setting out the nexus between the persons who received the money and the other electors. 

34.	The petitioner in response firstly submits that the respondents have ventured outside the grounds of objection in the notices of objection and that has caught him by surprise and given him insufficient time to respond to them. Such conduct by the respondents, he submits amounts to trial by ambush and is completely prejudicial to his defence of the objections. In the alternative, he submits that in the Statement of Agreed and Disputed Facts and Legal Issues for Trial, the second respondent conceded that cheque payments, the subject of the allegations of bribery were made. He relies on the case of Re Ben Semri (2003) SC723 to support this submission.

35.	In the further alternative, he submits he has sufficiently and adequately pleaded the relevant or material facts on bribery in each case. The location is the Bank South Pacific Limited ("BSP Bank"). When each person presented the cheque for payment and received cash, that is where the alleged act of bribery took place in each case. He relies on the case of Paias Wingti -v- Rawali & Electoral Commission (2008) N3285, a decision by Cannings, J and submits that the facts are very clear and the respondents can reasonably make out what he is alleging and the issues involved. "They should not pretend that they do not understand the case they have to meet and come to court and be permitted to play dumb." 

36.	In any case, location is not a material fact and if he has not clearly pleaded it, it does not significantly prejudice the respondents in their defence of the petition because at the very least, it is reasonable to work out that the payments were made at BSP Bank when the cheque payments were made. He has sufficiently pleaded the material facts and they also establish the basic elements of the offence of bribery under section 103 of the Criminal Code. These are:

(a)	a person;

(b)	gives, confers or procures, promises or offers to give or confer or procure;

(c)	a property or thing of any kind; and

(d)	to any person.

37.	While I accept that the respondents have ventured outside the grounds of objection in their notices of objection, the petitioner has not shown to my satisfaction that he has been prejudiced by the lack of or insufficient notice. Indeed, again, I note at the hearing, his counsel ably made submissions in response to this ground. Thus, I am not satisfied that he has and will be prejudiced if I consider this ground. 

38.	The issue is whether the facts pleaded in support of each ground of bribery are sufficient, adequate and clear. First, I am not satisfied that I should rely on the Statement of Agreed and Disputed Facts and Legal Issues for Trial in addition to the petition to determine which facts are not disputed by the respondents. An objection to competency is restricted to the petition: sections 208 & 209 (supra). A Statement of Agreed and Disputed Facts and Legal Issues for Trial is derived from evidence, in most cases, from the affidavits filed by the parties in the proceedings. In my view, it is not a pleading and not even part of a pleading. It is a statement of each party's case incorporated into one document for purposes of trial. Thus, if I were to consider the facts set out in the Statement of Agreed and Disputed Facts and Legal Issues for Trial, I would be embarking on a trial without first giving the parties an opportunity to call evidence.

39.	The case Re Ben Semri relied upon by the petitioner is inapplicable. It can be distinguished on its facts. That was a case where one of the issues was whether the inner and the outer seals of a ballot box were removed. It was conceded at trial in the National Court and in submissions on review in the Supreme Court by parties that the inner and the outer seals of the ballot box were removed. The Supreme Court held that it was not open to the applicant to dispute that fact once it was conceded. In this case, although the petition is fixed for trial, it is still at the competency stage because of objections raised by the respondents. The Court is therefore not at the stage of receiving evidence, hence it is not open to consider the Statement of Agreed and Disputed Facts and Legal Issues for Trial which purportedly contains undisputed facts in relation to the nexus between the PDA and the second respondent and the money allegedly used to bribed the 9 named persons. For these reasons, I will not consider it.

40.	Notwithstanding the above finding, parties have accepted that the petitioner has pleaded 9 instances of bribery. In bribery cases, a petitioner must plead specific or details of malpractice. That is, what the allegations of bribery are, including where, when, name of person allegedly bribed, number of persons allegedly bribed, nature of the property or gift, and the reason that it is was given or offered to get the person bribed to vote in favour of the successful candidate or not to vote for the petitioner or another candidate, as the case may be. The reason being as correctly acknowledged by the parties, an allegation of bribery or even attempted bribery against a successful candidate is, in fact, a charge that an election should be overturned because a criminal offence under section 103 of the Criminal Code has been committed. The cases of Raymond Agonia and Mathias Karani stand for this proposition. 

41.	Unlike ordinary civil litigation, each ground of a petition is a triable issue on its own and is capable of determining the success or demise of a petition: Ben Micah -v- Ian Ling-Stuckey & Electoral Commission (1998) N1791. It is also open to read the petition as a whole: John Wemin Mili -v- Simon Philip Gaima [1997] PNGLR 645 and Dick Mune -v- Anderson Agiru (1998) SC590. 

42.	Reading the petition as a whole from paragraph 8.2 inclusive of subparagraphs 8.2.1 - 8.2.4 and paragraph 8.3 inclusive of sub-paragraphs 8.3.1 - 8.3.11, I note that it sets out facts in relation to the nexus between the PDA and the second respondent and the persons allegedly bribed. It names these persons. It also states the number as 9 and out of 9, 7 are electors. The allegations are that the second respondent held the position of Chairman of PDA and did not resign to nominate and contest the election. As Chairman, he "caused" money in various sums from the PDA bank account at BSP Bank to bribe these named persons to vote for him and to be "biased" towards him and solicit votes for him from other electors in the 9 polling areas. 

43.	The Court has differing views in relation to whether date of the alleged bribery is an essential material fact that must be pleaded in the petition. I am of the view it is essential to plead it because it enables the respondents to know exactly when the alleged bribery took place and will be in a position to identify and locate the witnesses to testify at trial. In the present case, the dates the petitioner relies on are the dates when the cheques were presented for payment at the BSP Bank. In my view, the information is sufficient. 

44.	The other material fact is the location of the alleged bribery. In my view, it is not sufficient to plead that the alleged bribery took place at the BSP Bank because it was the place where the cheque was presented in return for cash. This information is too vague and will not assist the respondents to identify and locate the witnesses to testify at trial. For all we know is that the recipients of the cheques presented them at the bank but as to where they received them, we do not know. Further, in relation to other electors, we do not know where the recipients gave the money to them. This leads me to the next material fact which is, my view, missing in the petition. 

45.	There are no facts setting out the intention as required by section 103(a)(i) of the Criminal Code. Intention is a subjective matter and in order to establish it, there must be facts setting it out clearly. Thus, when the cheque payments were made, what where the words allegedly made or uttered by the second respondent to the recipients of the cheques for the petitioner to draw the conclusion and plead that "the payments were made with the intention to procure the recipients' votes and also to induce them to be biased and solicit votes for him." These facts are not set out in each ground of the petition. In my view, while there are facts establishing the nexus between the PDA, the second respondent and persons allegedly bribed, it is not sufficient to establish the intention.

46.	In the cases of James Mark (para 8.3.5), Susan Takili (para 8.3.6), Samson Aipit (para 8.3.7) and Grayson Apakali (para 8.3.8), while these persons are electors and the cheque payments were made to induce them to favour the second respondent and further solicit votes for him, there is no nexus in the pleadings between them and the other electors that they used the money to bribe the electors to vote for the second respondent. In other words, there are no facts establishing that the second respondent gave the cash to induce these persons (the named persons) to attempt to obtain votes from third persons. By merely using the words "the alleged payments were made with the intention of procuring the recipients (sic) votes and to be biased towards the Second Respondent and further solicit votes for the Second Respondent", in my view lacks the element of inducement of the second person (named persons), an element of the bribery as set out in section 103(a)(iii) of the Criminal Code. It is also a conclusion of fact not supported by facts in the pleadings.

47.	Emphasising the insufficiency of pleadings, how do we know that the cash that these 9 persons received from the bank were used to solicit votes for the second respondent at polling at the named polling areas? All we know is that the petitioner has in each case named the place or area of responsibility each of these 9 named persons took charge. For example, for Ben Penale, the location is Tipinini No 1 Polling Area, for Councillor Ruben Nalepe, Kulapi, Lupilama and Panadaka Polling Areas, for Councillor Palo Wape, Kairik No 1 Polling Area, for Councillor Jack Yanjol, Kairik No 2 Polling Area, for James Mark, Paiam-Suyan (Lukale) Polling Area, for Susan Takili, Paiam Town Polling Area, for Samson Aipit, Yanzakali Polling Area (comprising of Upper Maipage and Lower Maipage), for Grayson Apakali, Apalaka No 1 Polling Area and for Martin Kelei, the entire electorate as he is the Rural Police Commander. But in my view, this information is insufficient.

48.	I find the pleadings are insufficient and lack clarity in each case. For these reasons, all grounds alleging bribery are struck out.

Illegal Practices at Polling

49.	The next ground is illegal practices at polling. The petition pleads illegal practices at 13 different polling locations. In objecting to these grounds, the respondents refer to section 215(3) of the Organic Law on Elections which provides for illegal practices and rely on Mathias Karani's case (supra) and Ludger Mond -v- Jeffrey Nape (2003) N2318 and submit that any allegations in a petition alleging illegal practices must plead material facts to show the following:

(a)	the illegal practice;

(b)	the illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate's knowledge or authority;

(c)	the result is likely to be affected by the illegal practice;

(d)	it would be just that the candidate should be declared not duly elected or the election be declared void.

50.	They emphasise that the petitioner must clearly plead the facts in relation to how the illegal practice is likely to affect the result of the election and rely on the cases of Mathias Karani, Ludger Mond (supra) and Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635. They submit that while there are some statements on the nature of illegal practice in each case, first, the petitioner has failed to plead if the illegal practice was committed by the second respondent or committed by another person but with the second respondent's knowledge or authority. Secondly, he has failed to plead that as a result of the illegal act, the result is likely to be affected. 

51.	In addition, they submit that the pleadings are confusing because the petitioner alleges illegal practices and at the same time alleges errors and omissions. The allegations on illegal practices are distinct and separate from allegations of errors and omissions and they should not be lumped together. This is because the test for proving allegations of illegal practice is different from proof of errors and omissions. The former is whether the result is likely to be affected by the illegal practice (section 215) and the latter is whether the result was affected (section 218). Finally, they submit the petitioner alleges in the alternative errors and omissions and the allegations contradict the allegations of illegal practices. 

52.	The petitioner in response repeated his earlier submission that the respondents did not give notice in their objections that they would object on this ground. As a result, he was caught by surprise when they objected on this ground and this has prejudiced him. In his alternative submission, he submits that the respondents' complaint about the lack of particulars in relation to the names of persons who marked the ballot papers in favour of the second respondent is without merit because it is impossible for the petitioner to know such facts when such illegal practices occur in secret either behind closed doors or in hiding. He relies on Paias Wingti's case (supra), where the Court held that the petitioner cannot reasonably be expected to know exactly by how many votes the third respondent's tally was inflated in that case. Further, the Court held that the names of the electoral officials allegedly involved in an illegal practice are agents or servants of the Electoral Commission and as such, it is reasonable to expect the Returning Officer and Electoral Commission to know their names.

53.	In his further alternative submission, he submits that the case of James Yoka Ekip (supra) can be distinguished on its facts. It was a case where two petitions for the Hagen Open Electoral were consolidated. In one petition, the petitioner accepted the decision of the Returning Officer to reject 21 ballot boxes for scrutiny while in the second petition, the petitioner rejected it. The Court held that the grounds of the contradictory and dismissed them in their entirety.

54.	For the same reasons I have given in relation to the preceding grounds, I am not satisfied that he has and will be prejudiced if I consider this ground. 	In relation to pleading relevant or material facts relevant to allegations of illegal practices at polling, in Tom Nunue's case (supra), Gauli, AJ noted that the pleading in the petition showed that the electoral officials conducted the polling in a manner that appeared contrary to or not in compliance with section 136(1) of the Organic Law on Elections. The presiding officer signed a number of ballot papers and gave them to one John West, a supporter of the candidate John Aaron who marked them out on behalf of the other voters instead of giving a ballot paper to each individual eligible voter to mark it. The presiding officer repeated in the same manner to an unknown supporter of the first respondent. His Honour held that the petition failed to comply with the requirements of section 208(a) (supra) because it did not specifically identify the unknown supporter of the first respondent by name, sex, age and address. 

55.	I have perused each ground and address them as follows:

(a)	Illegal polling at Taiapoko Polling Area.

The allegation of illegal polling is that there was no polling at Taiapoko Polling Area because the polling team comprising of the presiding officer Mr Sam Nicky, Assistant Presiding Officer Pastor Solomon Pikopol, Polling Clerk Jeffrina Ipulu, Door Keeper Isara Pore, Ballot Box Guard Gideon Agamas and Councillor for Taiapoko Mr Lepos Yawauri were dropped off by helicopter at Mandopa. Despite that, the second respondent polled 602 first preference votes out of 611 ballot papers. The second respondent polled this number of votes because Mr Nicky, Mr Pore and Mr Yawauri marked the ballot papers in his favour during the night.

However, the petitioner does not plead that what these persons did was with the knowledge or authority of the second respondent as required by section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

(b)	Illegal polling at Politika Polling Area.

The allegation of illegal polling is even though that a polling team was sent to Politika Polling Area comprising of the presiding officer Mr Aken Puluku who is also the Deputy Chairman of PDA, Assistant Presiding Officer Francis Tapuko, Polling Clerk Peter Yanden, Door Keeper Felix Aken and Ballot Box Guard Nopiawe Amo by helicopter, no polling took place on that day. Despite that, the second respondent polled 802 first preference votes out of 1,091 ballot papers. The second respondent polled this number of votes because ballot papers were marked in his favour during the night.
It may well be that Mr Puluku is the Deputy Chairman of PDA and may be in a conflict of interest situation but it is not sufficient. There must be facts set out that the illegal polling was with the knowledge or authority of the second respondent as required by section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

(c)	Illegal polling at Suyan No 2 (Yaparepp) Polling Area.

The allegation of illegal polling is that there was no polling at Suyan No 2 (Yaparepp) Polling Area because the polling team comprising of the some unnamed electoral officials did not conduct one. Despite that, the second respondent polled 802 first preference votes out of 1,091 ballot papers. The second respondent polled this number of votes because ballot papers were marked in his favour during the night.

However, the petitioner does not plead that what these persons did was with the knowledge or authority of the second respondent as required by section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

(d)	Illegal polling at Kumbipera/Ayoko Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(e)	Illegal polling at Suyan-Paiam Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(f)	Illegal polling at Palipaka Polling Area

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(g)	Illegal polling at Anawe Council Ward Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(h)	Illegal polling at Mungelep No 2 Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(i)	Illegal polling at Apalaka No 2 Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(j)	Illegal polling at Maip/Mulitaka Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(k)	Illegal polling atYengiyengi Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(l)	Illegal polling at Aiaka No 2 Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

(m)	Illegal polling at Ipai Polling Area.

Same type of allegations raised here. Same reasons are given as above. This ground is struck out.

56.	For the reasons given, it is not necessary to consider the ground on pleading alterative ground (that is pleading of errors and omissions).

Errors and omissions against the first respondent

57.	This is a separate ground of the petition. The respondents object to this ground and submit that while the petitioner has set out in a table form the names of polling areas, 2012 enrolment figures of voters, ballot papers issued and ballot papers short fall, he does not state the winning margin. Instead, he has pleaded at paragraph 7 the "total margine" of 5,156 votes. They are not the same thing. The petitioner submits that it is not necessary to plead the winning margin because it is a matter for evidence and under the Limited Preferential Voting system ("LPV"), it is difficult at the outset to work out the likely result of the election in terms of the votes affected with mathematical precision and plead the figures in a petition. It is only sufficient to identify the number of votes affected and further plead that it is sufficient to affect the election win of the successful candidate as in the case of Paias Wingti (supra).

58.	His Honour Lay, J in the case of Alfred Manase -v- Don Pomb Polye and the Electoral Commission (2008) N3534 succinctly sets out what the winning margin is under the LPV system. In that case, his Honour said:

"It has long been the law in Papua New Guinea that, where the petition grounds are relied upon to affect certain ballot papers or ballot boxes, that the issue is always, do the proven grounds of the petition in respect of official irregularities affect sufficient number of ballot papers so as to actually "affect the results of the election"?, s218(1) of the Organic Law: Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354; Louis Ambane v Electoral Commission & Ors (1988) SC 559. Or where illegal practice committed by a person other than the candidate is proven, "the Court is satisfied that the result of the election was likely to be affected": s215(3) of the Organic Law.

If the number of votes affected does not exceed the winning margin the results of the election are not affected or likely to be affected: Re Moresby Northwest Parliamentary Election: Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338. Only if the number of ballot papers affected exceeds the winning margin, could the court be satisfied that the loss of the ballot papers could have affected the result of the election. That was the approach taken by the trial judge in Dick Mune v Paul Poto (No.2) [1997] PNGLR 356 and the Supreme Court did not comment adversely on that approach. In the case of Baki Reipa v Yuntivi Bao [1999] PNGLR 232 Woods, Los and Salika JJ, the Supreme Court said:

"However as soon as the number of disputed or lost votes exceed the winning margin then as the court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied."

The Limited Preferential Voting system does not change that position on a seat declared on the first preferences, except to this extent, not only must the successful candidate retain a greater number of votes received over the candidate receiving the next largest number of votes, but he must also receive and retain an absolute majority, at least 50% plus 1, of the valid votes cast: Organic Law Section 168(1)(b). The provision reads:

"the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;" (Emphasis added).

59.	His Honour is saying that in the new LPV system, the winning margin is the number of votes received by the successful candidate above or in addition to the absolute majority required by section 168 of the Organic Law on Elections. As to how to arrive at the winning margin under the LPV system, his Honour said:

"The proper course in this case, following the case law authority and s 168 of the Organic Law is simply to compare the number of votes affected by the allegations in the Petition with the relevant winning margin. In this case the total number of valid votes case was 31,592 (from the Form 66) giving an absolute majority of 15, 799. Mr. Polye received a total of 21, 820 votes, therefore the relevant winning margin, the number of votes the successful candidate received above the absolute majority is 6023. Consequently the number of votes still in dispute, 14,999, assuming ground E1 not proven, substantially exceeds the winning margin."

60.	In other words, in order to arrive at the winning margin under the new LPV system, the petitioner has to plead: 

(a)	what the total number of allowable ballot papers remains in count after the final exclusion before the declaration.

(b)	What was the absolute majority (50% + 1) of votes required to win the election.

(c)	The total number of votes that the winning candidate scored above and beyond the absolute majority required to win is the "winning margin."

61.	I accept that the law remains that if a petitioner is trying to overturn an election result on the basis of illegal practice, errors or omissions or other electoral irregularities, he is obliged to plead and prove to the Court that whatever the electoral irregularity was is sufficient to affect the election result or is likely to affect the election result. The information should readily be available to the petitioner because he would have had scrutineers at the counting centre and the figures including the 50% + 1 absolute majority votes publicly announced by the Returning Officer. Yet they are missing, so how do we know that the petitioner won by the second preference votes or third preference votes as he contended? Thus, he has to show that the number of votes affected does exceed the winning margin. This means that it is incumbent upon him to plead the winning margin in the petition.

62.	In the current petition, in paragraph 7 of the petition, the petitioner pleads that he scored 30,648 votes and the second respondent scored 35, 804 votes but he does not plead if the second respondent scored these votes at the first preference count, second preference count or third preference count. He goes on to say that the total margine is 5,156. In fact, the 5,156 votes is not the "total margine" (or winning margin?) but the difference in votes between him and the second respondent. This is not the winning margin. In other parts of the petition, he refers to the difference in votes as the winning margin which is incorrect.

63.	I accept the respondents' submission that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these very relevant facts are not pleaded, how can the Court make a finding that as a result of these election irregularities, the election was likely to be affected or indeed was affected? Furthermore, how can the Court make a finding that the number of votes affected by the alleged illegal practice or errors and omissions is less than or more than the winning margin when what the winning margin is has not been properly pleaded? I am satisfied the facts setting out the errors and omissions by the first respondent in relation to the winning margin are insufficient. This ground is struck out. 

Attestation of petition by witnesses

64.	The final ground is in relation to attestation of the petition by witnesses. The respondents submit that the petition is incompetent because it was not attested by witnesses who are proper and qualified as required by section 208(d) of the Organic Law on Elections. They submit that the witnesses who attested to the petition are not qualified and proper persons because they are employees of JEMA Lawyers. Thus, they are in no position to verify the correctness or otherwise of the contents of the petition. They rely on the recent decision by Kandakasi, J in James Yoka Ekip's case (supra) to support their submissions.

65.	If the petitioner argues that he was not put on notice that they will be objecting to the petition on this ground, they submit that the attestation of the petition by witnesses is a jurisdictional issue under section 208(d) (supra) and can be raised at any stage of the proceedings by a respondent or the Court. Thus, even if they did not plead it in their notices of objection to competency, it is still open to them to raise it at the hearing and it is open to the Court to consider it.

66.	The petitioner's response is two-fold. First, he argues that the respondents did not plead the ground of attestation in their notices of objection to competency. As such, it is not open to them to raise it in their submissions. By raising it in their submissions, they have caught him by surprise and have given him insufficient time to respond to it. This has greatly prejudiced him and he submits that the Court should dismiss it. Secondly and in the alternative, he submits that the views expressed by the Court in James Yoka Ekip's case (supra) were made by way of obiter dictum and therefore are not binding on this Court. Thus, this Court should not follow it. Further, they submit that the Court did not apply the reasoning in that case and dismissed the petition for non-compliance with section 208(d) (supra). It dismissed the petition on the grounds of insufficient pleadings and lack of address of witnesses in the petition.

67.	Further to the second ground, he submits that the interpretation given by the Court in James Yoka Ekip's case (supra) is very restrictive. If this Court were to adopt that interpretation, it would cause grave injustice to the petitioner. It would render compliance impossible, in that the two witnesses alone cannot be presumed to know all the facts of an election petition or have personal knowledge of what transpired in the whole of the electorate and be in position to prove them. Furthermore, the Court would be seen as reading into a provision of a constitutional law a meaning not intended by the legislator. If the legislator intended to such an interpretation of the term "attest", it would have further qualified it and restricted it to a class of person known as electors or a person who resides in the electorate. 

68.	He invites the Court to give the following meaning to the word "attest" by submitting that as section 208(d) is a constitutional law, schedule 1.5 of the Constitution provides that provisions of any constitutional law be given a fair and liberal meaning. If it is given a fair and liberal meaning, it means as defined by the Oxford Dictionary "to bear witness to". Thus, it means any person is entitled to attest to the petition and it is open to the employees of JEMA Lawyers to attest to the petition.

69.	The ground raised by the respondent is a new development in the jurisprudence on election petitions in this jurisdiction. It has not been raised before until the case of James Yoka Ekip (supra). Even then, I must agree with the petitioner that it was not raised as a ground to dismiss the petition. On the other hand, it was raised and discussed by the Court on its own volition. It appears the Court received "some" submissions from the parties and went on to express an opinion on the meaning of the word "attest". Even though it did that, it did not dismiss the petition on this ground. 

70.	The present case appears to be the second time this ground has been raised, indeed in submissions by the respondents and I should say, counsel for each party has ably made submissions for and against it, despite the respondents not pleading it in their notices of objection to competency and insufficient time given to the petitioner to respond to it. It raises a jurisdictional issue. It strikes at the heart of the petition. It is one of the "requisites" of a petition that the Supreme Court canvassed in detail in the cases of Jimson Sauk and Ginson Goheyu Soanu and may be raised at any stage of the proceedings either by the respondents or by the Court on its own motion. Therefore, I am satisfied no real prejudice has been shown by the petitioner if the respondents are allowed to raise it in support of their objections and I will consider it. 

71.	The issue raised in this ground is one of construction of a provision of a constitutional law, more particularly, the meaning of the word, "attest" in section 208(d) (supra). The respondents have argued that it be given a strict meaning and the petitioner has argued that it be given a fair and liberal meaning. In my respectful opinion, I do not see any difference between the two. The plain English definition of attest as correctly defined by the petitioner is "to bear witness to" or "to show or prove that something is true": Oxford Advanced Learner's Dictionary, 7th ed 2007, London, Oxford University Press at 81. 

72.	In the legal context, I would define it as to show or prove to the Court that something is true. This will require a witness to show or prove to the Court that something is true. Thus, in the context of an election petition, it must mean a person who has witnessed the occurrence of an event or events during the election in the electorate to attest to them in the petition. This interpretation is consistent with the interpretation given by Kandakasi, J in James Yoka Ekip's case (supra) where his Honour defined "attest" as:

"........... someone who witnesses not just a document but also he or she is someone who witnesses and is in a position, to verify, confirm, substantiate, testify, certify, prove, or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return, or someone who is eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts." (Emphasis added).

73.	It must be appreciated that unlike ordinary civil cases, election petition cases fall into the special jurisdiction of the Court. They challenge the result of an election. A petitioner invokes the special jurisdiction of Court under section 206 of the Organic Law on Elections for the Court to enquire into how the election was conducted before it is able to say if the end result was valid or not. A long line of case authorities, some of which have been cited above such as Delba Biri, including Jimson Sauk and Ginson Goheyu Soanu have emphasised the need for petitioners to strictly comply with the requirements of sections 208 and 209 of the Organic Law on Elections before the Court can exercise jurisdiction under section 210.
 
74.	In my view the "requisite" under section 208(d) (supra) for two witnesses to attest to the petition before it is filed at the National Court registry is put there for a reason. It is to ensure that the petition that is filed is genuine and not one that is fabricated and filed purposely to undermine the leadership and representation of the successful candidate as the member-elect of the electorate in Parliament. If I can borrow the words of Sakora, J and Kandakasi, J in Francis Koimanrea -v- Electoral Commission & Paul Tiensten (2003) N2421 and James Yoka Ekip respectively, "wild sensationalist, unmeritorious and unsustainable allegations"in the petition must not go to trial. 

75.	I do not think it would be an over statement if it is said that in Papua New Guinea, prosecuting and defending a petition is a pain staking exercise. This is because it is time consuming, costly and politically charged. It also involves people's emotions, and at times, people resort to violence as a means of resolving the dispute. That is why in my view, it is crucial that the election petition that the petitioner is prosecuting and the respondent defending and of course the Court is determining must be genuine. It must be genuine right from the start; from the time it is being drafted and then presented for filing at the National Court registry and this must not be confused with the proof of the allegations in it. That is an entirely separate matter and a matter for evidence at trial. Thus, in my view the petition must be attested to by a person who has direct knowledge of all or some of the events that occurred during the election in the electorate and subject of the dispute in the petition.

76. 	This is where, with respect, I reject the petitioner's submission that if this Court is to adopt the interpretation given by the Court in James Yoka Ekip's case (supra), it would cause grave injustice to the petitioner. It is not even an attempt to importing words into a constitutional provision not intended by Parliament as suggested by the petitioner. In my view, his Honour's interpretation in that case is not restrictive but one that is plain and clear. It is reasonable to expect the two witnesses to know all the facts of an election petition or have personal knowledge of what transpired in the whole of the electorate or some of them and be in position to prove all or some of them. In other words, one cannot attest to a petition if he has no knowledge of what actually happened on the ground during the election in the electorate.

77.	Indeed, a closer examination of his Honour's reasons shows that his Honour did qualify his reasoning that the person attesting the petition must be in a "position to testify, confirm, verify or prove all or any of those facts." So there is a qualification. The witness attesting the petition need not know all the facts supporting the grounds of the petition. Some will suffice. One cannot look far to find persons or witnesses who can attest to the petition. They may be voters, scrutineers or mere observers. Thus, while I accept that the views expressed by his Honour were made in passing, I am not satisfied that his Honour's interpretation is wrong. For these reasons, I would adopt and apply the definition given by his Honour in this case. (Emphasis added).

78.	There is no dispute that Mr Jackson P. Kola, a lawyer and Mr Kieeh C. Kendakali, a para-legal are employees of JEMA Lawyers and have attested to the petition. There is also no dispute that these two gentlemen did not witness or voted in the election in the electorate and would therefore have witnessed all or some of the events now the subject of the petition. That being the case, I find that they are in no position to verify the contents of the petition. I further find that they are not proper persons or qualified to attest to the petition. It follows the petitioner has failed to comply with one of the "requisites" of the petition under section 208 (supra). The failure to comply with this mandatory requirement renders the petition incompetent. This ground is upheld and the petition is dismissed.

Order

79.	The orders are:

(a)	The respondents' objections to competency are upheld.

(b)	The petition is dismissed.

(c)	The petitioner shall pay the cost of the proceedings to be taxed if not agreed.

(d)	The security deposit of K5,000.00 held by the Registrar shall be released and paid to the respondents in equal share.

_______________________________________________________________

JEMA Lawyers: Lawyers for Petitioner
Niugini Legal Practice: Lawyers for First Respondent
Paul Mawa Lawyers: Lawyers for Second Respondent