Talita v Ipatas [2013] PGNC 175; N5333 (16 July 2013)

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IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (AMENDED) LAW 2006

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE ENGA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS.

PRACTICE & PROCEDURE – Election Petition – National Government Elections – Court of Disputed Returns – Objection to Competency – Pleadings of material facts in an Election Petition – Objection to Competency – Pleading grounds of petition – Requirements of s. 208 (a) and (d) of the Organic Law on National and Local-level Government Elections (Organic Law on Elections) – Inconsistent pleadings – Petitioners need to make a choice on which ground they rely on – In appropriate to plead in the alternative.

ELECTION PETITION – PRACTICE & PROCEDURE – Sufficiency of pleadings of facts required by s. 208 (a) of the Organic Law on Elections – Intention of the Organic Law – Petition must plead facts constituting grounds for the petition so as to inform the Respondents and the Court the basis for the petition – What fact must be pleaded is dependent on the grounds of a petition – Need to only plead the essential elements of the offence, irregularity, illegality or errors and omissions relied on to vitiate an election result – Petition failing to plead facts addressing all of the essential elements – Petition incompetent.

PRACTICE & PROCEDURE – National Government Elections – Objection to competency – Pre-requisite of s.208(a) and 209 of the Organic Law on National and Local-Level Government Elections – Allegations of 'illegal practices', 'errors' or 'omissions' – Meaning of - discussion of – Objection to Competency up-held in its entirety.

Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Paul Kamod-v-Stanley Pil (1983) (Unreported and Unnumbered Judgement of National Court
Sir Barry Holloway-v-Aita Ivarato and Electoral Commissioner [1988] PNGLR 99
David Arore-v-John Warisan (2008) SC1030
Dick Mune-v-Anderson Agiru (1998) SC590
Ben Michah-v-Ian Ling-Stuckie 1998) N1790
Raymond Agonia-v-Albert Karo & Electoral Commission [1992] PNGLR 463
Ludger Mond v Ben Okoro [1992] PNGLR 509
Joel Paua v Robert Nagle & Electoral Commission [1992] PNGRL 563
Mathias Karani-v-Yawa Silupa (10.4.2003) N2385
Francis Komanrea-v-Alois Sumunda (2003) N2421
Robert Lak v Pais Wingti & Others (2003) N2358
Sir Pita Lus-v-Gabriel Kapris (2003) N2326
Eddie Saweni- v-Patrick Pruaitch ( 2003) (Unreported and Unnumbered Judgment).
Aowa Olmi-v-Nick Kopia Kuman & The Electoral Commission (9.12.2002) N2310
Robert Kopaol v Philemon Embel (2003) SC728
Steven Pirika Kama-v-John Itanu, Andre Trawen & Michael Laimo (2007) N3246
Yama-v-Yagama (2012) N4928
Sir Arnold Amet-v-Peter Charles Yama (9.7.2010) SC1064
Simon Sanangke-v-William Duma (2012) EP No.10 & 11of 2012
Ludger Mond-v-Jeffrey Nape & The Electoral Commission of PNG (2013) N2318
Peter Waieng-v-Tobias Kulang & Electoral Commission (13.3.2013) E.P. No. 75 of 2012.

Mr. I. Molloy, with Ms. Copland assisting, for the Petitioner
Mr. P. Mawa, for the First Respondent
Mr. R. William, for the Second Respondent

1. LENALIA, J: The Petitioner in this petition Mr. Sandy Talita was a candidate in the 2012 General Elections for the Enga Regional or Provincial Seat. On 2nd August 2012, the First Respondent, the Honourable Peter Ipatas of Enga Province was declared duly elected having polled a total of 140,512 votes.

2. The Electoral Commission tally showed, the Petitioner and runner-up Mr. Sandy Talita polled a total of 77,064 votes, the difference of 63,448 votes.

3. The Petitioner names two parties on his Election Petition. As can be seen from the above number of votes, The First Respondent was duly elected while the Petitioner was the runner-up with a difference of 63,448 votes. Mr. Molloy of counsel representing the Petitioner in his preliminary submission on the Objection to Competency filed by the First Respondent made submissions on various aspect of law in relation to the process of election throughout the Province.

4. Mr. William of counsel for the Second Respondent raised concern on Mr. Molloy's submission that, the Second Respondent's counsel should not make submissions in relation to the objection to the competency of the petition because they did not file an objection. Mr. Molloy's submission may be argued from two perspectives.

5. It can be argued that, since there are no allegations of illegal practices or errors or omission alleged against the Honourable Governor who is the First Respondent, the Objection to the Competency should be dismissed on the basis that there in nothing pleaded in the petition against him. Then on the part of the Second Respondent, Mr. Molloy argued that, since they have not filed any Objection to Competency, they should not be heard. He made similar submission on the status of the First Respondent saying since there are no allegations made against him, the Objection to Competency should be dismissed.

6. Before I go to Mr. Molloy's substantive argument on the Objection to the Competency, let me raise the matter which I think touches on the jurisdiction of the Court on objections to competencies. The Petitioner is relying on the decision of the Supreme Court in David Arore-v-John Warisan (20087) SC1030 where the Judge said that, in absence of expressed provisions in the Election Petition Rules on filing and moving of Notices of Objection to Competency, it remains a matter of discretion on procedural nature for the Court to determine. (See also Robert Kopaol-v-Philemon Embel & Electoral Commission (2008) SC941, Soro Marepo Eoe-v-Mark Maipakai & 2 Others E.P. No.78 of 2012.

7. My view is that, the Second Respondent has been joined as a party to this Petition. There is an Objection to the Competency of this Petition filed by the First Respondent. If the Objection to Competency was filed by the Second Respondent and if rejected at the competency stage and the Petition continued to the trial proper and the decision is in favour of the Petitioner, such result will invalidate the First Respondent's election then the Second Respondent will go into the consequences of running a By Election in the Province. It means, both Respondents will suffer the consequences.

8. I adopt what my brother Cannings J said in Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285 where the Court in that case said that there are principles of law which need to be considered in the type of situations raised by the counsel for the Petitioner. Under such circumstances, the principle of natural justice on procedural fairness and the right to be heard ought to prevail. The minimum requirement under s.59 of the Constitution is "the duty to act fairly, and in principle to be seen to act fairly." It would be only fair and for the sake of natural justice that, the Court ought to hear both the First and Second Respondent jointly as they are both named as parties to these proceedings on the Election Petition.

9. In the Petition, the Petitioner raises serious allegations of illegal practices, errors and or omissions during polling in various polling booths in various Local Level Government Wards right throughout the Province. The Petitioner now alleges that the Second Respondent by its officers or agents made errors, omissions and committed illegal practices in the conduct of the election and the scrutiny of the votes were sufficient to affect the result of the election. The Petitioner seeks six relieves. They include:

10. The Notice of Objection to Competency contains 16 allegations on the grounds that, the petition failed to plead material facts as required by Section 208(a) of the Organic Law on National and Local Level Government Elections. The First Respondent says that, for reasons set out in the notice of objection to competency, the petition cannot be heard pursuant to Section 210 of the Organic Law. The First Respondent relies on the following grounds:

	Paragraph/s	Grounds of Objection
1.	4(d)	The winning margin is incorrectly stated as 804 votes when the actual margin was the difference between 140,512 votes scored by the First Respondent and 77,064 votes scored by the Petitioner which is 63,448 votes.
2.	7 – 19	It does not plead that Mr. Ipakan and Mr. Nai acted with the knowledge and authority of the First Respondent. The petition fails to plead the material facts whether objection was made at the counting by the Petitioner to the alleged wrongful inclusion of 863 votes. It does not plead how the 863 votes allegedly wrongly included affected the final result of the election.
3.	20 - 27	It does not plead that Peter Iki acted with the knowledge and authority of the First Respondent. The petition fails to plead the material facts as to whether objection was made at the counting by the Petitioner to the alleged wrongful inclusion of 632 votes. It does not plead how the 632 votes allegedly wrongly included affected the final result of the election.
4.	28 - 35	It does not plea that Peter Iki acted with the knowledge and authority of the First Respondent. The petition fails to plead the material fact whether objection was made at the counting by the Petitioner to the alleged wrongful inclusion of the 700 votes. It does not plead how the 700 votes allegedly illegally wrongly included affected the final result of the election.
5.	36 – 39	It does not plead how the 4,039 votes allegedly illegally cast affected the final result of the election.
6.	42 – 46	The pleadings do not give the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the result of the election. The pleadings fail to give the number of ballot papers in each ballot box cited prior to polling during the polling, and at the time of counting. The petition fails to plead the material fact whether objection was made at the counting by the Petitioner to the alleged number of excess papers.
7.	47 - 50	The pleadings do not give the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the result of the election. The pleadings fail to give the number of ballot papers in each ballot box cited prior to polling, during the polling, and at the time of counting. The petition fails to plead the material fact whether objection was made at the counting by the Petitioner to the alleged number of excess papers.
8.	51 – 54	The pleadings do not give the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the result of the election. The pleadings fail to give the number of ballot papers in each ballot box cited prior to polling, during the polling, and at the time of counting. The petition fails to plead the material fact whether objection was made at the counting by the Petitioner to the alleged number of excess papers.
9.	55 – 59	The pleadings do not give the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the result of the election. The pleadings fail to give the number of ballot papers in each ballot box cited prior to polling, during the polling, and at the time of counting. The petition fails to plead the material fact whether objection was made at the counting by the Petitioner to the allege d number of excess papers.
10.	60 – 65	The pleadings do not give the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the result of the election. The pleadings fail to give the number of ballot papers in each ballot box cited prior to polling, during the polling, and at the time of counting.
11.	66 – 77	The pleadings do not identify an illegal practice as defined in the Organic Law. The pleadings do not show how the alleged illegal practices affected the final result of the election. The pleadings do not state any commission of an illegal practice against Stanis Dick. The pleadings do not plead whether the person named Stanis Dick acted with the knowledge and authority of the First Respondent.
12.	78 – 81	The pleadings do not cite or state the relevant electoral law that was allegedly breached.
13.	82	This pleading is irrelevant to the whole proceedings. The pleading does not state what illegality was committed.
14.	83	The pleadings fail to set out any material fact showing how the First Respondent was declared the winning candidate in breach of the Organic Law.
15.	89 – 101	These paragraphs 71 – 83 and ought to be expunged from the petition.
16.	102 (a)	The Petitioner seeks to have the Court declare the election as failed when only the Electoral Commissioner has the power to fail an election.

11. Both Mr. Mawa & Mr. William of counsel for the First and Second Respondents spoke on their written submissions respectively. In the case of Mr. Mawa of counsel for the First Respondent, he went into a very deep discussion on the law on issues of calculation of a "winning margin", "pleadings of material facts" "illegal practices" "errors and omissions" and other irregularities covered by the Organic Law. Counsels for the Respondents referred to a host of case law authorities both on Supreme and National Court cases.

12. On the issue of whether or not the figure of 804 votes winning margin pleaded in the petition is correct. The basis of the Respondents' counsels' submissions is that, where grounds of a petition are relied upon to affect ballot papers or ballot boxes, the issue is, do the official irregularities affect the number of ballot papers in order to affect the election result. Counsel submitted further that in absence of a correct and winning margin figure pleaded in the petition, to show how the election result was likely to be affected, the Petitioner did not plead in the election petition the margin or difference of votes between the winner and the next runner-up and the petition should be dismissed.

13. On the allegations of "illegal practices", "errors" and or "omissions", the Respondents' counsel argued that, from paragraph 7 to 19 of the petition, the Petitioner pleads illegal practices, errors and omissions at various Wards and although the pleadings name two persons in paragraph 12 as Mr. Mark Nai and Mr. Luke Ipakan, there are no names pleaded as to who witnessed such illegal practices, errors or omissions. No witnesses have been named in the pleadings.

14. Mr. Molloy of counsel for the Petitioner argued that, the petition is competent and should not be struck out as there are serious allegations raised in the body of the petition. Counsel argued that, the allegations in the petition may be in three categories. In the first category, he set the allegations to involve, illegal practices, errors or omission during polling in particular where voters were denied their right to vote, improper and unauthorized marking of ballot papers and illegal casting of votes. All these irregularities are pleaded in paragraphs 7-39 of the petition. He submitted, the second category involved "stuffing of ballot papers" and failure to exclude such boxes of ballot papers pleaded in paragraphs 40-65. Counsel submitted that, to correct illegal practices, errors or omissions and what the pleadings reveal, the objection to competency should be dismissed and the election petition should proceed to trial.

15. The final category of allegations relate to what is alleged to be unlawful and unauthorized declaration following further serious irregularities in the conduct of the counting. He referred to the pleadings from paragraphs 66-101 of the petition.

16. As already alluded to, the gist of Mr. Molloy's submission is that, the Objection to Competency is incompetent and should be dismissed because, there is no allegation pleaded in the petition against the First Respondent and on the same token, no objection to the competency of the Election Petition has been filed by the Second Respondent. Counsel is saying that the Objection to the Competency is incompetent and should be entirely dismissed.

17. The Organic Law on National and Local Level Government Elections (OLN& LLGE) regulates election processes both in the National Government and Local Level Government elections. Sections 206 and 207 provide this Court jurisdiction to decide on the validity or otherwise of election returns and it may be disputed by petition addressed to the National Court. The above two provisions state:

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

207. Jurisdiction of National Court exercisable by single Judge. The jurisdiction of the National Court in relation to any matter under this Part may be exercise by a single Judge."

18. To start with s.210 of the Organic Law says that, proceedings in relation to an election petition cannot proceed if and where Sections 208 and 209 of the Organic Law have not been complied with. Section 210 of the Organic Law states:

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

19. There are four requirements set out under s.208(a) to (d) of the Organic Law. This provision sets out the requisites of a petition and what is required to be pleaded in the form of the petition. I quote Sections 208 and 209 as the two provisions that provide for prerequisites of what is required to be done by a Petitioner during preliminary stages in the drafting of an election petition.

Section 208 of the Organic Law states in uncertain terms that the petition must plead relevant facts relied on that if proved will invalidate the election or return. It provides:

(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).

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs."

20. On the issue of voiding election where a Court of Disputed Returns finds that a candidate had committed bribery or undue influence, s.215 of the Organic Law states:

"(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—

(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."

(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."

22. The general principles of law governing what should be pleaded in an election petition have been stated and are well settled by both the National and Supreme Courts. By virtue of Schedule 2.5.8 of the Constitution, the common law doctrine of judicial precedent or what is sometimes referred to as "stare decisis," decisions of the Supreme Court on this jurisdiction binds the National Court and the decisions of both the Supreme Court and National Court bind lower Courts.

23. On the issue of what should be contained in the pleadings of an election petition, the Supreme Court in Sir Barry Holloway-v-Aita Ivarato and Electoral Commissioner [1988] PNGLR 99 said at page 101:

"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 constitutes the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements 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 would constitute a ground or grounds upon which an election or return may be invalidated."

24. The mandatory requirements of ss.208 and 209 of the Organic Law were settled earlier by the Supreme Court in the authoritative case of Delba Biri-v-Bill Ninkama [1982] PNGLR 342 at 345 where that Court unanimously said:

"In our view, it is clear that all requirements in Section 208 and Section 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 Section 208 and 209 are complied with."

25. Further down in that same page on the second last paragraph, that Court there said:

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary case (In Re The Norwich Election Petition; Birbeck-v- Bullard (1886) 2 T. L. R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority 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."

26. On very recent authorities, such as in Sir Arnold Amet-v-Peter Charles Yama (9.7.2010) SC1064, Davani, J on discussing s.208 of the Organic Law comparing it with the requirement under s.5 of the Claims By and Against the State Act, said at paragraph 134 of the judgment:

"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 Claims By and Against the 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 not exist."

27. In Aiwa Olmi-v-Nick Kopia Kuman & The Electoral Commission (9.12.2002) N2310, late Justice Jalina expressed similar concerns on election process and the people's choices of their leaders in the National Parliament should not be disturbed or invalidated unless there was cause for it. The Court in that case 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 relies on to overturn that election must go beyond a mere statement or assertion that certain things were done by or to electoral officials or by or on behalf of the winning candidate and with his knowledge and consent which affected or were likely to have affected the result.

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

A petition that falls short of these requirements must be struck out or dismissed so that the elected representative can continue with his or her responsibility of representing his or her constituents in Parliament without spending too much (of their) time defending their seats in the National Court. It would also avoid the kind of experience some elected representatives have had after the 1992 and 1997 elections where some petitions made continuous journeys between the National Court and the Supreme Court for the full 5 year term of Parliament or were completed only a year or so before the next elections."

28. GROUND 1 – "WINNING MARGIN". Counsel for the respondents argued in their submissions that, paragraph 4(d) of the petition is "factually inaccurate and deficient" in material terms to determine the accurate figure or number of votes in the "winning margin". Paragraph 4(d) pleads that the winning margin on the instant petition was 804 votes. Mr. Molloy of counsel for the Petitioner submitted that, the figure pleaded in that paragraph is correct on the basis that, at exclusion 16, the Second Respondent's tally showed there were 279,413 total votes remaining in the count. And that the absolute majority of 50% plus 1 of the total formal remaining votes was 139,708. On 2nd August 2012, the First Respondent was declared winner having polled 140,512 votes.

29. The issue is where a ground of petition pleads and alleges illegal practices pursuant to s.215(3) of the Organic Law, it is incumbent upon the Petitioner to plead the accurate difference between the winner and runner-up and accurate number of votes must be clearly and specifically pleaded in the petition in order for the Court to on the issue of the "winning margin" demonstrate and clearly reflect in the pleadings of the petition to show if the election result would be affected or likely to be affected.

30. On the issue of "the winning margin" all three counsel seem to have three varying formulas. In the case of Mr. Mawa, he argued that the winning margin was 31,722 vote and not 804 votes pleaded in paragraph 4(d) of the petition. Mr. William of counsel for the Second Respondent agreed but argued that the "winning margin" pleaded in the petition is inaccurate. He argued that the winning margin figure is actually the difference in the number of votes obtained by the winning candidate and the runner-up and it is not the deference of votes between the winning candidate and the absolute majority. On the part of the Petitioner's counsel, Mr. Molloy submitted that the proper formulas can be found in cases such as Alfred Manase-v-Don Polye & Electoral Commission of PNG (1.12.2008) N3534 and the case of Kikala-v Electoral Commission (2013) N4960.

31. I would agree with Mr. Molloy of counsel for the Petitioner that, the calculation on the "winning margin" stated in the Objection to Competency if it is incorrect, would affect the whole petition. However following case law authorities and looking at s.168(1)(b) (2) and (4) of the Organic Law, the Limited Preferential System where a seat is declared on the first preference, the candidate declared must retain a greater number of votes over, as was in this case, the runner-up or the Petitioner of this petition. On top of that, such candidate must receive an absolute majority calculating it from 50% plus 1 of the valid votes casted: Alfred Manase-v-Don Pomb Polye & Electoral Commission of PNG (1.12.2008) N3534.

32. The basis of the argument raised in the objection is that paragraph 4(d) of the petition is "factually inaccurate and deficient" in pleadings to determine the winning margin which can be applied as the grounds to determine whether the election result is likely to be affected under s.215 of the Organic Law or where the result is or has been in fact affected pursuant to s.218(1) of the concerned legislation.

33. I am in agreement with the calculation of the formula reached by Lay; J in Alfred Manase-v-Don Pomb Polye & Electoral Commission of PNG that, the "winning margin" is the number of votes received by a successful candidate in addition to the absolute majority required by s.168 of the Organic Law. I agree with Mr. Mawa that the "winning margin" figure on this election was 31,723 votes and not 804 votes as pleaded on paragraph 4 of the petition.

34. On "illegal practices" "errors" "omissions" I agree with the counsel for the First Respondent that, this Court cannot conduct an inquiry or make any speculations or even draw inferences as to where certain votes had gone to or what happened to them. This means that, where any types of "errors" or "omissions" committed against s.154 of the Organic Law which if proved to be material facts, ought to be specifically pleaded in the petition. The above provision provides for scrutiny of votes in elections. It states:

(2) The electoral officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorized scrutineers as choose to attend and any other person approved by the Returning Officer—

(a) open all ballot-boxes received from polling places within the electorate; and

(b) reject all informal ballot-papers, and arrange the unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference vote indicated for the same candidate; and

(c) count the first preference votes given for each candidate on all unrejected ballot-papers; and

(d) make out and sign a statement (which may be counter-signed by the presiding officer, poll clerk or officer present and, if they so desire, by such scrutineers as are present) setting out the number of first preference votes given for each candidate, and the number of informal ballot-papers; and

(e) place in a separate parcel all the ballot-papers which have been rejected as informal; and

(f) where an Assistant Returning Officer conducts the scrutiny, transmit the following information, by electronic advice or in some other expeditious manner. to the Returning Officer:—

(g) seal up the parcels and endorse on each parcel a description of the contents of it, and permit any scrutineers present, if they so desire, to counter-sign the endorsement; and

(h) where an Assistant Returning Officer conducts the scrutiny, transmit the parcels to the Returning Officer with the least possible delay, together with the statement referred to in Paragraph (d).

(3) The Regulations may provide for the counting of votes to be done electronically following the opening of the ballot-boxes and after rejecting informal ballot-papers and ballot-boxes not admitted to scrutiny."

35. The Organic Law itself defines what amounts to illegal practices in s.178. It sates:

(1) Subject to Subsection (2), the following are illegal practices at elections:—

(a) publishing an electoral advertisement, handbill or pamphlet or issuing an electoral notice (other than the announcement by advertisement in a newspaper of the holding of a meeting) without the name and address of the person authorizing the publication or issue being printed at the foot of it; and

(b) printing or publishing a printed electoral advertisement, handbill or pamphlet (other than an advertisement in a newspaper) without the name and place of business of the printer being printed at the foot of it; and

(c) printing, publishing or distributing an electoral advertisement, notice, handbill, pamphlet or card containing a representation of a ballot-paper or a representation apparently intended to represent a ballot-paper, and having on it any directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote; and

(d) printing, publishing or distributing an electoral advertisement, notice, handbill, pamphlet or card containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote; and

(e) wilfully informing an elector during the polling period that he is not enrolled or entitled to be enrolled for a particular electorate, or is not entitled to vote, when as a fact he is enrolled or entitled to be enrolled, or is enrolled or entitled to be enrolled for that electorate, or is entitled to vote, as the case may be.

(f) obstructs, damages or interferes with a public street or road with the intention to interfere with the conduct of an election; and

(g) assaulting or threatening to assault a Returning Officer, Assistant Returning Officer, Presiding Officer, other polling officer or police officer assisting in an election; and

(h) inciting or encouraging, whether publicly or otherwise, disturbances to interfere in an election.

(2) Nothing in Subsection (1)(c) or (d) prevents the printing, publishing or distributing of a card not otherwise illegal, which contains instructions on how to vote for a particular candidate, so long as those instructions are not intended or likely to mislead an elector in or in relation to the casting of his vote.

(3) A person guilty of an illegal practice is liable to a penalty of a fine not exceeding K1,000.00 or imprisonment for a term not exceeding six months.

(b) subject to the approval of the Public Prosecutor, Sections 99, 100, 102, 103, 108 and 110 of the Criminal Code Act (Chapter 262)."

36. The Electoral Commission may by approval of the Public Prosecutor prosecute offenders for committing "electoral offences" such as personation, double voting, undue influence, bribery, interference at elections or stuffing ballot boxes. (See Sections 99, 100, 102, 103, 108, 110 of the Criminal Code). Although there are other provisions in the Criminal Code providing for other election related offences, they are not mentioned in Subsection (4) of Section 178 of the Organic Law.

37. On the issue of illegal practices, the Supreme Court in reviewing the decision of the Court of Disputed Returns in the case of Dick Mune-v-Anderson Agiru (1998) SC590 said:

" It has been consistently decided in the past that the provision of the Organic Law on National and Provincial and Local-Level Government Elections (hereinafter abbreviated OLNE) must be strictly interpreted and applied by the National Court:Biri -v- Ninkama [1982] PNGLR 242; Holloway -v- Ivarato [1988] PNGLR 99. If a provision of that law prescribes a mandatory requirement, then it must be strictly complied with. If a provision of that law confers a discretionary power, then such provision be given effect to accordingly. This is indicated by the use of the words "shall" and "may" in OLNE, S. 206 — 207.

Section 210 empowers the National Court to strictly scrutinise election petitions filed under s.206 at a preliminary stage. Following the Supreme Court's decision in Biri -v- Ninkama, supra, the National Court has strictly scrutinised election petitions to see if they comply with the mandatory requirements of s.208(a) — (e). Failure to comply with any of the mandatory requirements in s.208 has resulted in either parts of allegations in a petition or the whole petition being struck out. In this review, there is no issue on this aspect of the National Court's procedure."

38. In Raymond Agonia-v-Albert Karo & Electoral Commission [1992] PNGLR 463 (at p. 466) Sheehan, J said:

"Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences ot 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 shifts the complaints and reports whether, on the 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, it proved, will result in an election being set aside."

39. Part of Mr. Molloy's submission for and on behalf of the Petitioner on the issue of illegal practices, errors or omissions is that, the Petitioner did not or does not know the persons who were responsible for committing illegal practices. So that, he could not be expected to plead something not reasonably within his knowledge. The issue is if there are no names pleaded in the petition, how on earth will the Petitioner prove allegations of illegal practices, errors or omissions. In the light of the volume of case authorities cited above, this argument is flawed.

40. Mr. William highlighted on s.215 (3) of the Organic Law by saying that, illegal practices committed pursuant to Subsection (3) of this provision can be committed by anyone including servants or agents of the Second Respondent. He further submitted that, s.218 concerns errors or omissions by only officers of the Electoral Commission and those illegal practices are not the same as errors or omissions. Counsel relied on the case of Mathias Karani-v-Yawa Silupa (10.4.2003) N2385 in which Sawong; J said:

"In so far as petition grounded on illegal practises or errors or omissions founded for instance on ss. 215 or 218 of the Organic Law the principles are fairly well settled. For instance if the petition is grounded upon illegal practices, (other than bribery or undue influence) under s. 215, then the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practises must plead material facts to show the following:

(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;

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

41. The gist of what I have tried to discuss above is that, where there is failure to plead any material facts supporting any of the elements under s 215 would offend s. 208(a) and would therefore be fatal to the petition. (See Paul Kamod-v-Stanley Pil (1983) (Unreported and Unnumbered Judgment of National Court; Sir Pita Lus-v-Gabriel Kapris (2003) N2326, Eddie Saweni- v-Patrick Pruaitch (2003) (Unreported and Unnumbered Judgment).

42. On the issue of pleadings of illegal practices, it has been repeatedly said that where illegal practices are alleged to be committed by persons other than the winning candidate, it must be pleaded that, such practice was committed with his knowledge or authority of the winning candidate. In Francis Komanrea-v-Alois Sumunda (2003) N2421 Sakora; J said:

"In relation to allegations of illegal practices, there are three types of these covered by s 215 Organic Law. Firstly, sub-s (1) covers the situation of bribery and undue influence committed by the successful candidate. Second is that alleged to be committed by a person other than the winning candidate but with his knowledge or authority (sub-s (2)). The third situation concerns any other type of illegal practice, including those including the successful candidate himself: sub-s (3). To prove the s 215 (3) allegation(s), the Petitioner needs to plead as required and satisfy the court according to the required standard the following:

(iii) the result of the election is likely to be affected by the illegal practice; and

·(iv) it would be just that the winning candidate be declared not to be duly elected or the election be declared void."

43. GROUND 2. On this ground of the Objection to Competency, it objects to the pleadings from paragraphs 7 – 19 because it says that Mr. Luke Ipakan and Mr. Mark Nai marked the ballot papers for Tombaip 1 and Tombaip 2 in the Maip Mulitaka Local Level Government in Lagaip Pogera Electorate by marking the first preference for the First Respondent for the Enga Regional Seat and also marking the first preference for Mr. Joseph Waitea for Lagaip/Pogera Open Electorate.

44. It is abundantly clear from the case law authorities cited and quoted above that on any illegal practice or errors and or omissions, names of persons ought to be stated in pleadings. If it was true that, Mr. Ipakan and Mr. Nai marked certain ballot papers, the pleadings does not identify who witnessed the markings of such ballot papers: Dick Mune-v-Anderson Agiru (1998) SC590, Sir Pita Lus-v-Gabriel Kapris (2003) N2326, Francis Komanrea-v-Alois Sumunda (2003) N2421.

45. Reading paragraph 7 – 19 of the Petition, the pleadings do not contain any material facts showing if there was any objection made at the polling booths by scrutineers for the Petitioner for the wrongful inclusion of the 864 votes pleaded in paragraph 19(v) in the Petition.

46. GROUNDS 3 & 4. These two grounds of the Objection to Competency concern paragraphs 20 – 27 and paragraphs 28 – 35 of the Petition. These grounds raise similar objections as the one immediately above. Although paragraph 22 and 30 of the Petition names the President of the Maip-Mulitaka Local Level Government, Lagaip-Porgera Electorate, Mr. Peter Iki, as being at Lumbapes Ward with electors to witness the arrival of the polling team with ballot boxes, there is no pleading to show if, the said President acted with authority or knowledge of the First Respondent. As president of that Local Level Government, he was duty bound to meet the polling team. In my view that was courtesy due to electoral officials.

47. As to how the 632 and 700 votes pleaded in paragraphs 27 and 35 of the petition were erroneously included and which would affect the final result of the election result has not been specifically pleaded. If the petition is grounded upon illegal practices, (other than bribery or undue influence) under s. 215, of the Organic Law, then the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practices must plead material facts to show there were illegal practices, errors or omissions on the part of named persons.

48. Mr. Molloy of counsel representing the Petitioner argued that, the winning margin was 804 votes and the number of votes that should have been excluded was 632. He submitted if these were the only ground in the petition, then it would be the basis for saying that the petition should be dismissed. Counsel argued however that there are other grounds and they must be looked at to determine whether the result or return may have been affected. He referred to Mr. Peter Iki's action as an example.

49. Again it has been stated by both the National Court and Supreme Court either on review or appeal over and over again that, the pleadings in an election petition should show, there was "illegal practise" or that the "illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate's knowledge or authority" and that "the result is likely to be affected by the illegal practice" and that "it would be just that the candidate should be declared not duly elected or the election be declared void.": Mathias Karani-v-Yawa Silupa (2003) N2385.

50. Paragraph 26 of the petition pleads that Sections 130, 136 and s.138 of the Organic Law were breached. The earlier section sets out how the polling in elections should be carried out. The earlier proviso talks about how the polling is to be conducted. The other provision governs the manner of handing over ballot papers to voters. But before giving ballot papers out, the returning officer of polling clerk is required to check if the person is certified to vote by checking the name on the common roll. Sections 130 of the Organic Law states:

(1) Subject to Subsections (2) and (3), the polling shall be conducted as follows:—

(a) before the first ballot-paper is placed in an empty ballot-box, the Returning Officer or, if he is not present, the presiding officer, shall exhibit the ballot-box empty, and shall then securely fasten its cover; and

(c) the doors of the polling booth shall be closed at 6 p.m. and no person shall be admitted after that hour to the polling booth for the purpose of voting; and

(d) at the close of the polling on each day of the polling period at a polling place, the presiding officer shall, in the presence of the poll clerk and of any scrutineers who are in attendance, publicly close, fasten, lock and take charge of the ballot-box; and

(e) when a ballot-box is full or no longer required for the polling, or at the end of the polling period for all polling places for which he is the presiding officer, whichever first occurs, the presiding officer shall, with the least possible delay, forward the ballot-box for the purposes of scrutiny, and it shall on no account be opened except in accordance with this Law.

(b) the presiding officer considers that all electors entitled and likely to vote at any particular polling place have done so, or the Returning Officer so directs, the poll may close at that polling place at a time earlier than 6 p.m."

51. Then s.136 of the Organic Law talks about the right of an elector to receive a ballot paper from the presiding officer or a poll clerk. It says:

(a) if the name under which he claims to vote is on the certified list of voters for the polling place and his right to vote is not challenged; or

(b) if the name under which he claims to vote is on the certified list of voters for the polling place and his right to vote is challenged, and his answers to the prescribed questions show that he is entitled to vote; or

(2)The presiding officer, at the request of a scrutineer, shall note any objection by the scrutineer to the right of a person to vote, and shall keep a record of that objection.

(3)If the presiding officer puts to a person all or any of the prescribed questions, his right to vote shall be deemed to have been challenged."

52. The next section that is s.138 of the Organic Law provides for votes to be marked in private and says that after a voter has received a ballot paper, he is to retire some unoccupied compartment in the polling booth where he then marks votes for three candidates. This provision states:

Except as otherwise prescribed, a voter upon receipt of a ballot-paper shall without delay—

53. Paragraph 26 of the petition pleads the law but does not plead the relevant facts as to how the illegal practices, errors or omissions were committed at Lumbapes Ward of Maip-Mulitaka Local Level Government, Lagaip-Porgera Electorate. I agree with the statement that, any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process through various forms of illegal practices. However, it was said in Raymond Agonia-v-Albert Karo & Electoral Commission (supra) that:

"an election petition 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 shifts the complaints and reports whether on the balance, the election can be considered satisfactory or whether a new election should be held.

55. GROUND 5. In ground 5 of the Objection the First Respondent objects to paragraphs 36 – 39 of the petition. These allegations concerns illegal practices, errors and omission during the polling at Yaramanda Ward of the Wap Local Level Government at the Wapenamanda Open Electorate. The objection is raised on the basis that, those paragraphs do not plead how the 4,039 votes were allegedly and illegally casted and how the figure could affect the final result of the election.

56. Again looking through the pleadings in the petition referred to in ground 5 of the objection, the name of the Presiding Officer Mr. Steven Kia and Luke Isingi and an elector are referred to in paragraph 36(a) and (b) of the petition. How would the Court know if the result of the election was likely to be affected if the 4,039 votes were illegally casted? The Petitioner pleads that supporters of the First Respondents signed some ballot papers. But the issue is who were they and why not name those supporters in the petition to enable the First Respondent or even the Second Respondent to prepare for their defence or even concede as the case may be: Simon Sanangke-v-William Duma (2012) EP No.10 & 11of 2012. This in my view would be left to the guess-work of calling any witnesses at random to testify to what they may have not seen during the polling period. I up-hold ground 5 of the Objection to Competency.

57. GROUNDS 6-10 of the objection to competency raise similar objections for paragraphs 42-46, 47-50, 51-54, 55-59 and 60-65 of the petition. The objection on these paragraphs is based on the grounds that, the pleadings in those paragraphs in the petition do not give the total number of alleged excess ballot papers as they do not plead how those alleged excess ballot papers affected the result of the election.

58. Counsels for the First Respondent and Second Respondent argued that where an election petition raises ground of errors and or omissions, pursuant to s.218(1) and illegal practices under s.215(3) of the Organic Law, it is essential that the "winning margin" and the difference of votes between the winner and runner-up be specifically pleaded in the petition which can be applied to determine the number of votes affected by any illegal practices and or errors or omissions which exceeded the winning margin.

59. Mr. Williams of counsel for the second respondent submitted that, the Petitioner pleads s.110 of the Criminal Code in paragraph 26 of the petition where the petitioner says there was breach of that section. Because the petitioner is alleging illegal practices, the petition must name the persons who allegedly committed such illegal practices.

60. Mr. Molloy of counsel for the Petitioner argued in reply that, the allegations in the petition are illegal practices, errors or omissions at Tombaip No1 and 2 committed in Maip Mulitaka Local Level Government, Lagaip-Porgera Electorate. Counsel submitted that the pleadings in the petition go into detail revealing illegal practices, errors or omissions. He referred to the Presiding Officers Mr. Luke Ipakan and Mr. Mark Nai for Tombaip 1 and 2 marking the ballot papers which the Petitioner says such votes were not casted by electors. Counsel submitted that this objection is incompetent and misconceived and should be dismissed.

61. Counsel relied on cases of Amet-v-Yama (2010) SC1064 and Barry Holloway-v Ivarato [1988] PNGLR 99 for the proposition that, the conduct complained of if proven is sufficient ground in itself without any requirement to prove knowledge or authority of the First Respondent. Counsel submitted that, the First Respondent has misstated s.215(3) of the Organic Law where they say that, where there is allegation of illegal practices, there is no need to plead and prove the persons who committed the illegal practices.

62. With respect, I do not agree with Mr. Molloy's submission that, the Petitioner does not intend to allege at the hearing of the petition that, the conduct complained of was carried out with the knowledge or authority of the First Respondent. In my view this would be contrary to the ruling of the Supreme Court case of Amet-v-Yama (supra). The Court notes from paragraphs 51 of the petition pleads that the officers of the second respondent erred in including in the counts ballot papers from ballot boxes that contained excess ballot papers more than the number of electors in the common roll. Case law authorities establish that, a petitioner must plead three elements. They include:

(See also Karani-v-Silupa & Electoral Commission (2003 N2385, or Eddie Saweni-v-Patrick Pruaitch (2003) N2387).

63. On that part of the First Respondent's objection, it is not entirely correct to say that paragraph 42 of the petition does not give the total number of alleged access ballot papers. I note from the pleadings in paragraph 42(a)-(vv) of the petition contain excess figures some of them not substantial margin. However, what this paragraph fails to plead is it does not plead how such excess ballot papers got themselves into the ballot boxes. And secondly, no persons have been named or pleaded to have caused or aided in accumulation of such excess ballot papers. I up-hold grounds 6-10 of the Objection to Competency.

64. GROUND 11. This ground of the objection concerns paragraphs 66-77 of the petition. Mr. Mawa of counsel for the First Respondent submitted that the pleadings in those paragraphs of the petition do not identify any illegal practice defined in the Organic Law as such pleading do not show how such illegal practices could have affected the final result of the election.

65. Paragraphs 75(a) & (b) of the election petition refer to a person by the name Stanis Dick. This person is supposed to have picked up persons who were not properly appointed Counting Officers to the counting centre and participated in the counting.

66. Mr. Molloy's reply to paragraph 11 of the objection attacks the respondent's submission by saying that, the first respondent fails to read through the whole allegations from paragraphs 66 to 83 which do state the relevant law in illegal practices. Counsel argued that paragraph 82 of the petition is not a material fact but at best be a matter of evidence.

67. Obviously, the whole of paragraph 75 does not state what errors or omissions were committed by Mr. Dick and there is no reference to what law the said Dick infringed. Secondly, there are no names of those unauthorized counting officers. Again, I note on that part of the pleadings that, it does not plead whether this Dick or the other Dick Kapilyaka or Charlie Agato referred to in paragraph 82 of the petition does not show if anyone of them acted with authority or knowledge of the First Respondent.

68. The pleadings do not show if they acted on behalf of the First Respondent. Noteworthy is the fact that, those paragraphs do not state whose supporters those two persons were. Again the pleadings in those paragraph contradict established case law authorities on pleadings which say that a petitioner is required to set out the facts which he relies on to invalidate the election result. In Amet-v-Yama (supra) at page 2-3 at paragraph 7-13 the Supreme Court said:

"The petitioner in an election petition must set out the facts relied on to invalidate the election or return. Failure to do will render the proceedings incompetent (Davani J to the same effect);

69. In relation to the proof of allegations of "undue influence" "force" or "fraud", the Court continued at paragraph 9 in the following terms:

"To prove the allegation undue influence under s.102(b) of the Criminal Code (read together with illegal practices under s.215(3) of the Organic Law, the petitioner must plead [56]:

a) the ground relied upon and whether "force" or "fraud" was used to induce or restrain an elector from voting at the election;

b) if fraud is relied upon it must be pleaded that "a false statement was made by a person to an elector known to be false or without belief in its truth or careless as to whether it be true or false, with the intention that the elector acted on it",

c) the inducement or illegal practice of the winning candidate was likely to affect the election result;

"Where the presence of the winning candidate is relied upon to prove "knowledge" or "authority" it must be alleged that the candidate was present with knowledge or approval of what his supporters would say.

The term "knowledge" and "authority" must denote a pre-existing state of a candidate knowing or auhorising an illegal act or undue influence on his behalf. It must be proven that the candidate willfully encouraged the statement by his supporters."

71. In their submission on the issue of illegal practices, Mr. Ray Williams submitted that, the law on voiding an election return for illegal practices is clear from ss.215 and 218 of the Organic Law when the later provision provides that immaterial errors ought not to be applied to vitiate an election return. Counsel relied on cases such as Karani-v-Silupa & Electoral Commission (2003) N2385, Sir Peter Lus-v-Gabriel Kapris (2003) N2326, Ben Michah-v-Ian Ling-Stuckie 1998) N1790 and other cases. Ground 11 of the objection is up-held.

72. GROUND 12. This ground alleges that paragraphs 78-81 on the petition do not cite or state the relevant electoral laws which were breached. In support of this objection, Mr. Mawa and Mr. William submitted that, these paragraphs of the petition do not plead what illegal practices were committed. Paragraphs 78 of the election petition names Mr. Iarume who publicly declared the First Respondent elected but paragraph 79 says he was not present.

73. On this ground, Mr. Williams submitted that, grounds of errors and omissions are separate distinct and triable grounds under s.218 and illegal practices are similarly separate and distinct and triable under s.215 of the Organic Law with differing tests and elements to be proven to invalidate the election. I agree with this part of Mr. Williams' submission.

74. As case law authorities show it is necessary to plead and set out separately as distinct grounds of their own. He further submitted that pleadings cannot be lumped together as on the instant election petition they will be ambiguous and confusing: Barry Holloway-v Ivarato (supra),

75. Counsel referred to the case of Joel Paua-v-Robert Nagle [1992] PNGLR 562 where Woods; J at page 565 said that, a Court of Disputed Return cannot merely draw conclusions or inferences possible situations that there may be the possibility of errors or omissions or illegal practices. (See also James Yoka Ekip & Simon Sanangke-v-Gordon Wimb, Electoral Commission of PNG & William Duma (2012) N4899).

76. Mr. Molloy representing the Petitioner submitted in reply to the respondents' counsels' submissions that, if the petition proceeds to trial, the Petitioner does not intend to argue that the conduct complained of was carried out with the knowledge or authority of the first respondent. Counsel cited the case of Sir Arnold Amet-v-Peter Yama (2010) SC10645 for the third situations referred to by Davani, J in the above case where Her Honour discussed the types of illegal practices which can be committed under s.215 of the Organic Law. The Court in that case said the third situation (other than bribery or undue influence) would be where illegal practices can be committed by anyone including the successful candidate.

77. Counsel submitted that if the conduct of illegal practices is proved, there is no requirement or no need to plead or prove knowledge or authority of the first respondent.

78. Two issues arise from the argument raised by Mr. Molloy. First and foremost is the requirement of s.215 of the Organic Law. Under this section, a petitioner must establish that a candidate has either committed or attempted to commit bribery or undue influence. A candidate can also be criminally prosecuted for illegal practices according to s.215(2) of the Organic Law. An essential element of Subsection (3) of s.215 which affects the status of the instant Election Petition is that, the Court cannot declare an election void if it is proved that, illegal practices had been committed by other persons other than the candidate and if other persons other than the candidate committed such practice, should have been committed with the candidate's knowledge or authority.

79. The Petitioner's counsel's line of argument does not go down well with the case law authorities. Before discussing the second part of the argument by the Petitioner, I note that Section 210 of the Organic Law empowers the National Court to strictly scrutinise election petitions filed under s.206 at a preliminary stage.

80. This Court is duty bound to strictly comply with the mandatory requirements set out under s. 208(a) to (e) and s.209 to see if they comply with those mandatory requirements. Failure to comply with any of the mandatory requirements in s.208 has resulted in either parts of allegations in a petition or the whole petition being struck out: Dick Mune-v-Anderson Agiru, Dick Mune-v-Anderson Agiru, Sir Pita Lus-v-Gabriel Kapris, Francis Komanrea-v-Alois Sumunda, Mathias Karani-v-Yawa Silupa (supra).

81. The second aspect of Mr. Molloy's argument is that, abundant case law authorities say that allegations on illegal practices must be clearly pleaded to avoid ambiguity and confusion. (See Ludger Mond-v-Jeffrey Nape & The Electoral Commission of PNG (2013) N2318, see also James Yoka Ekip & Simon Sanangke-v-Gordon Wimb, Electoral Commission of PNG & William Duma (supra).

82. The Organic Law defines illegal practices in s.215(3). On discussing what needs to be pleaded in the body of an election petition, Sawong; J said in Karani-v-Silupa & Electoral Commission (2003) N2385:

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

Failure to plead any material facts supporting any of the elements under s 215 would offend s. 208(a) and would therefore be fatal to the petition. See Paul Kamod v Stanley Pil [1983] (Unreported and Unnumbered Judgement of National Court; Sir Pita Lus v Gabriel Kapris (2003) Unreported judgement N 2326, Eddie Saweni v Patrick Pruaitch (March 2003) (Unreported and Unnumbered Judgement)."

84. GROUND 13. This objection is grounded on reasons that the pleading in paragraph 82 of the petition does not state what illegality was committed and the pleadings in that paragraph are or is irrelevant to the whole petition. Paragraph 82 of the election petition names Stanis Dick, Dick Kapilyaka, Charlie Agato, and Jack Sandan. It further states that Mr. Agato delivered K50.00 each to the above persons and some alcohol. The pleadings do not disclose who or which candidate did these persons support. It does not specifically plead if K50.00 or the alcohol referred to in that paragraph was the subject of bribery.

85. Mr. Mawa and Mr. Williams of counsel for the first and second respondent submitted that, this again goes against the grains of the Supreme Court decision in Robert Kopaol-v-Philemon Embel (2003) SC727 where that Court said that, a petitioner's pleadings must be "coherent, clear" and they ought to be "complete and must avoid ambiguity, confusion and alternative pleadings."

86. Mr. Molloy made almost similar submission covering grounds 66-83 of the election petition. Counsel submitted that, paragraphs 66-67 of the petition alludes to many irregularities during the counting processes. Counsel's submission is that the objection by the first respondent is confined to the above two paragraphs, those two paragraphs should be read together with paragraphs 78 to 83 of the petition.

87. Counsel argued that s.175(1) of the Organic Law was breached because the writ was not signed by a gazetted officer. He submitted that, those two paragraphs of the petition should be read together with paragraphs 78 to 83 which state the relevant provisions of concerned legislations. This version in my view contradicts case law authorities on coherent, clear and complete pleadings to avoid confusion and ambiguity and alternative pleadings: James Yoka Ekip & Simon Sanangke-v-Gordon Wimb, Electoral Commission of PNG & William Dum (supra), Nunue-v-Kimisopa (2013) SC935.

88. This part of the Petitioner's counsel submission cannot be accepted. The pleadings in an election petition must be coherent, succinct and precise to enable the respondents to prepare their cases if they go to trial. This Court cannot draw conclusions or inferences and assume the possibility of illegal practices, errors or omissions: Joel Paua-v-Robert Nagle [1992] PNGLR 563. Ground 13 of the Objection is up-held.

89 GROUNDS 14-15. On the objections from ground 6 to 15 of the objection to competency they relate in part to insufficient pleadings on the total number of alleged excess ballot papers and do not plead how those alleged excess papers affected the election result. Ground 6 of the objection says that paragraphs 42-46 of the petition fail to plead the number of ballot papers in each box cited before and during the polling and at the time of the polling. Similar objection is raised in relation to paragraphs 47-77 of the petition.

90. Arguments in favour of the above grounds from Mr. Mawa and Mr. William is that, the petition fails to plead the ballot boxes which contained the affected votes had been disputed by scrutineers and candidates at the counting centre when they were brought to the counting room for scrutiny or counting.

91. Mr. Mawa further raised a legitimate question as to how would the Returning Officer or counting officials know if those ballot boxes contained votes which were affected by illegal practices as there was no alarm or dispute raised at the counting centre on the admissibility of such ballot boxes. Such alarm should have been raised by srutineers.

92. For the Second Respondent, Mr. William argued that the whole petition fails to plead relevant facts and materials. Counsel cited examples in his written submission. For instance, in allegations of errors or omission by the Second Respondent in relation to ballot boxes for the Wapenamanda Electorate which were supposed to contain extra ballot papers as pleaded in paragraphs 60-65 of the petition. In these paragraphs of the petition, the petitioner alleges that such ballot boxes should have been excluded. Looking at the pleadings as they have been pleaded, the petitioner failed to clearly plead the facts relating to the alleged error or omissions.

93. Reading paragraphs 60, it says, the Second Respondent breached s.168 of the Organic Law. This paragraph refers to 47 Rest Houses located in various Local Level Governments in the Province, the total number of electors, and the number of total ballot papers. At the last column on the far right hand side, the Petitioner pleads the number of excess ballot papers. Section 168(1)-(4) of the Organic Law provides for scrutiny of votes in elections and defines how the Returning Officer is to ascertain first preference votes and absolute majority votes.

94. From my reading of paragraphs 60 to 65 of the petition, it is not clear, who committed errors or omissions. There are no names of officials of the Second Respondent been pleaded and although excess figure are shown on the right-hand column, the pleadings do not show who was responsible for the errors and omissions and how the excess ballot papers got into the ballot boxes. Again no names have been pleaded.

95. On discussing the issue of pleading of identity of persons in a petition in Tom Nunue-v-Bire Kimisopa & Electoral Commission (6.2.2013) SC Rev. No. 51 of 2012, His Honour the Chief Justice Sir Salamo Injia said in paragraph 11 of the judgment:

"I agree with counsel for the applicant that requiring a petitioner to plead more particulars than is necessary to establish the identity of the person would be unnecessary and superfluous. It is sufficient to plead a person's name and village of origin. In the present case, two key player's names and their Council Ward and Polling Place were pleaded (John Aaron and John West) and those were sufficient. However their role were intricately linked to the supporter of the first respondent and Mr. Aaron's supporters whose identities were not disclosed. This was a material deficiency which failed to lend any substance to the pleadings concerning the roles played by John Aaron and John West."

96. In the present petition, there is no pleadings showing if there were any objections raised by scrutineers in various polling places and it will compound the issue of determining who were the people responsible for the alleged illegal practices, errors and or omission.

97. The Petitioner's counsel replied to the above submission that, though the first respondent says paragraphs 78-81, the first respondent has failed to read the whole of the allegations from paragraphs 66-83 inclusive which do state the relevant law. He submitted paragraph 83 of the petition is based on the foregoing paragraphs from 66-83.

98. Mr. Molloy further argued that, to follow the pleadings from paragraphs 89-101 of the petition, reference must be made to foregoing pleadings in other paragraphs. Counsel conceded that paragraphs 66-83 of the petition contain some repetition, but it is not to the extent alleged by the respondents' counsels.

Similar submission was made in relation to paragraphs 89, 90, 91 and 92 of the petition that, those paragraphs substantially repeat what is being alleged in paragraphs 71, 73(a) and 74 of their petition. On paragraph 93 of the petition, counsel submitted that, it pleads with more particularity what is alleged by the Petitioner in paragraph 76. Counsel further argued that, paragraph 94-95 of the petition complement paragraph 77. He further agreed that paragraph 96 is substantially repetition of paragraph 78 of the petition and paragraph 97-99 is also a repeat of what is contained in paragraph 79-81of the petition.

99. Paragraph 96 of the petition, the Petitioner pleads that Mr. Yarume declared the First Respondent as the elected representative of the Electorate. It does not plead if the First Respondent was elected to the Regional or Provincial Seat. Mr. Molloy submitted that, paragraph 96 repeats what is pleaded in paragraph 78 of the petition.

100. Mr. Molloy made similar submission on paragraphs 97, 98 and 99, by saying these three paragraphs repeat what is pleaded in paragraphs 79, 80 and 81. 88. The pleadings in the earlier paragraphs relate to the declaration that was made in the counting room at what date and place is not specified. Paragraph 81 of the petition alleges that s.175 of the Organic Law was breached in that as pleaded in paragraph 97, the First Respondent did not sign the Writ. Under that provision, there is no requirement for an elected candidate to sign the writ.

101. Counsel made similar submission in relation to paragraphs 100 and 101 of the petition saying the earlier paragraph amplifies paragraph 83 and the later paragraph 66 and onwards.

102. Obviously, reading through the paragraphs in the petition, particularly those paragraphs where Mr. Molloy referred to in the last part of his submission, may not have links to previous paragraphs because there is no references made in those later paragraphs indicating to any readers, the Respondents and the Court how such paragraphs should be read together with those earlier ones.

103. It has been said that alternative pleadings are not permitted in election petitions: Robert Kopaol-v-Philemon Embel (2003) SC727, see also James Yoka Ekip & Simon Sanangke-v-Gordon Wimb, Electoral Commission of PNG & William Duma (supra). The manner in which the current petition is being pleaded in my view creates ambiguity, confusion and lacks coherency. I up-hold these grounds of the Objection.

104. It is settled law now that any gaps, typographical errors or deficiency in pleadings of an election petition cannot be filled, rectified or amended by counsels submission during the hearing of an objection to competency after the time limited by s.208(e) of the Organic Law: Ben Micah-v-Ian Ling-stucky (1998) N1791, see also Dick Mune-v-Anderson Agiru, Ruben Kaiulo & Electoral Commission of PNG (1998) SC590.

105. The Supreme Court case of Delba Biri-v-Bill Ginbogl Ninkama [1982] PNGLR 342 establishes and many cases after it both in the Supreme Court and National Court say that, an election petition is a challenge to the wishes of the majority of the people in an electorate or as in the instant petition where the Regional Seat is being challenged. It is for this reason that where s.208(a) of the Organic Law is not strictly complied with, it is in breach of s.210 of the Organic Law.

106. I have read through the pleadings of the whole petition and come to this conclusion that material facts constituting illegal practices, errors or omissions have not been specifically pleaded to show that those alleged illegal practices if proven can invalidate the election results. What more s. 218 of the Organic Law requires is that the Petitioner ought to establish elements of errors or omissions in order to invalidate an election result. He must show that the "result was affected".

107. Where illegal practices are alleged, it must plead material facts and it must plead whether such practices were committed by the person elected or if by another person, it must be pleaded that it was committed by the knowledge of the elected candidate. This is the requirement of s.215 of the Organic Law. I must say this again, this Court is not sitting as a tribunal to conduct an inquiry into the allegations that are pleaded in the election petition so that where the tribunal finds that, there may be evidence that needed to be called, it can issue summons upon such witnesses under s.21, 31 or 32 of the Organic Law on Duties and Responsibilities of Leadership.

108. Having read through the Petition, I reach the conclusion that, it fails to state the material facts in complete manner. The pleadings are not clear, it is rather confusing and not clear and concise as required by s.208(a) and (d) of the Organic Law. I agree with Mr. Mawa of counsel for the First Respondent that, the deficiency and defective pleadings cannot be rectified by any evidence deposed to in the affidavits of witnesses. The whole petition is inundated with insufficient pleadings, confused and looking at it from a learned perspective and from the point of view a layman, elements of illegal practices are lumped together with those of errors or omissions.

109. Let me say again, elements of "illegal practices" are different from those of "errors" and or "omissions". Section 215 (3) of the Organic Law deals with illegal practices committed pursuant to Subsection (3) of this provision and they can be committed by anyone including servants or agents of the Second Respondent. The other provision which is s.218 of the Organic Law only concerns errors or omissions committed by officers of the Electoral Commission and those illegal practices are not the same as errors or omissions: Mathias Karani-v-Yawa Silupa (2003) N238.

110. According to s.210 of the Organic Law a Petition cannot proceed to be heard unless the requirements of s.208(a) of the Organic Law. Mr. Williams of counsel for the Second Respondent also referred to Subsection (d) of the above Section which requires that the Election Petition ought to be attested by two (2) witnesses. The Petitioner's second witness has set out his address in full and there is also indication of his occupation as an electrician.

111. The pleadings refer to "North Waigani". With respect, the second attested witness gives his residential address as Section 47 Allotment 77. Where an address is incomplete and occupation is not stated, there is no compliance with s.208(d) of the Organic Law: Peter Waieng-v-Tobias Kulang & Electoral Commission (13.3.2013) E.P. No. 75 of 2012.

112. I reached the conclusion that, the Petition has been badly pleaded and therefore it cannot proceed past this stage. Due to the foregoing discussions, I am of the view that, EP. No. 101 of 2012 lacks sufficient pleadings. Such pleadings need to plead persons' names and village of origin. In the present case, the pleadings in the paragraph I have referred to names few people but what rolls they played which would have affected the election returns and whose supporters they were is all blank or not known. The Court cannot accept Mr. Molloy's submission that, the later paragraphs can be read together with the earlier ones which he referred to in his written submission. The Court therefore up-holds the Objection to Competency filed by the First Respondent in its entirety. The entire Petition must be dismissed with costs.

Young & Williams Lawyers: Lawyer for the Petitioner.
Mawa Lawyers: Lawyer for the First Respondent.
Niugini Legal Practice: Lawyer for the Second Respondent.

National Court of Papua New Guinea

Talita v Ipatas [2013] PGNC 175; N5333 (16 July 2013)