Eoe v Maipakai [2013] PGNC 241; N5066 (26 February 2013)

N5066

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP NO 78 0F 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF KIKORI OPEN IN THE 2012 GENERAL ELECTION

SORO MAREPO EOE
Petitioner

V

MARK IVI MAIPAKAI
First Respondent

ILAUA MAIKERE
Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Cannings J
2013: 21, 26 February

ELECTIONS – petitions – objection to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(d): whether necessary for attesting witnesses to depose to knowledge and veracity of grounds of petition – Section 208(b): whether relief to which petitioner claims to be entitled properly specified – Section 208(a): whether elements of grounds of petition and facts adequately set out.

A respondent to an election petition that contained 17 grounds (set out in three parts, A, B and C) objected to competency of the petition. It was argued that the petition failed to meet the requirements of Section 208 (requisites of petition) of the Organic Law on National and Local-level Government Elections in three respects. First it was argued that the two witnesses who attested the petition failed to depose that they each were in a position to testify, confirm, verify or prove all or any of the facts relied on to dispute the validity of the election in the petition, thus failing to comply with Section 208(d) (petition shall "be attested by two witnesses whose occupations and addresses are stated"). Secondly it was argued that the petition, to the extent that it is based on Section 215(1) of the Organic Law (bribery or undue influence committed by a successful candidate), did not claim relief precisely in terms of Section 215(1) (that the candidate's election "shall be declared void"), thus failing to comply with Section 208(b) (petition shall "specify the relief to which the petitioner claims to be entitled"). Thirdly, it was argued that each of the 17 grounds of the petition was defective in that it did not plead the correct provisions of the Organic Law and did not plead all the elements of any of the established grounds on which validity of an election can be disputed and was short of material facts and vague and confusing, thus failing to comply with Section 208(a) of the Organic Law (petition shall "set out the facts relied on to invalidate the election or return"). The petitioner argued as a preliminary issue that the objection to competency was not properly before the court as there was no constitutional basis for it. The court conducted a hearing on the objection to competency, including the preliminary issue raised by the petitioner.

Held:

(1) The petitioner's preliminary point was without merit as although the Organic Law makes no express provision for raising an objection to competency the issue of competency can be raised at any stage of the proceedings by any party to the petition or by the court on its own initiative (Sir Arnold Amet v Peter Charles Yama (2010) SC1064 followed).

(2) Though it might be desirable it is not necessary for a witness attesting a petition to depose that he is in a position to testify, confirm, verify or prove all or any of the facts in a petition. That would be an additional requirement not included in the Organic Law. If introduced now it would be the result of recent judicial interpretation of Section 208(c) which post-dates the filing of the petition. It would be unfair to the petitioner to subject the petition to legal requirements that did not exist at the time of its filing. The first ground of objection was refused (James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral commission (2012) N4899, Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960, not followed).

(3) Though it might be desirable it is not necessary for a petition based on Section 215(1) of the Organic Law to claim relief precisely in terms of Section 215(1) (that the candidate's election "shall be declared void"). It is sufficient that the petition seeks relief in terms of one of the paragraphs in Section 212(1) (powers of court) of the Organic Law, eg a declaration that the person "who was returned as elected was not duly elected" (Section 212(1)(f)) or a declaration that the election is "absolutely void' (Section 212(1)(h)). The petition adequately sought relief under Sections 212(1)(f) and (h). The second ground of objection to the petition was refused (Korak Yasona v Castan Maibawa (1998) SC552 followed).

(4) Objections to the allegations in Part A (allegation Nos 1 to 6) of the petition were upheld as each allegation is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 218(1); fails to sufficiently specify the breaches of the Organic Law that were allegedly committed; fails to specify the names of the persons who allegedly committed the irregular and illegal practices referred to and other material facts; and fails to plead that the irregular and illegal practices (what should have been pleaded as errors or omissions) affected the result of the election and how they affected the result. The combined effect of these defects is that allegation Nos 1 to 6 fail to set out the facts required to invalidate the election and do not comply with Section 208(a) of the Organic Law.

(5) Objections to the allegations in Part B (allegations 7 to 15) of the petition were upheld as each allegation, which was based on alleged bribery by an agent of the first respondent with his authority and/or knowledge) is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 215(3)(a); fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent's agent; and fails to plead that "the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void". The combined effect of these defects is that allegation Nos 7 to 15 fail to set out the facts required to invalidate the election and do not comply with Section 208(a) of the Organic Law.

(6) Objections to the allegations in Part C (allegations 16 and 17) of the petition were upheld as each allegation, which was based on alleged bribery by the first respondent is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 215(1); and fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent.

(7) In summary the first two grounds of objection, relating to Sections 208(d) and (b) of the Organic Law, were refused. The third ground of objection, based on Section 208(a), was upheld in respect of each of the 17 allegations in the petition. The objection to competency of the petition was upheld and the petition was dismissed in its entirety.

Cases cited

The following cases are cited in the judgment:

Application by Ludwig Patrick Shulze (1998) SC572
Assik Tommy Tomscoll v Ben Semri (2003) N2349
Benny Diau v Mathew Gubag (2004) SC775
David Lambu v Peter Ipatas (1998) N1701
Delba Biri v Bill Ninkama [1982] PNGLR 342
Desmond Baira v Kilroy Genia (1998) SC579
Dick Mune v Anderson Agiru (1998) SC590
Greg Mongi v Bernard Vogae (1997) N1635
Holloway v Ivarato [1988] PNGLR 99
James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral Commission (2012) N4899
Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769
Korak Yasona v Castan Maibawa (1998) SC552
Peter Isoaimo v Paru Aihi (2012) N4921
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960
Re William Wii SCR No 45 of 1994, 26.07.94 (unreported)
Robert Kopaol v Philemon Embel (2003) SC727
Robert Kopaol v Philemon Embel (2008) N3319
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

OBJECTION

This is a ruling on an objection to competency of an election petition.

Counsel

S L Soi, for the petitioner
P Paraka, for the first respondent
L Okil, for the second, third & fourth respondents

Terminology and dates

In this judgment:

• 'the Organic Law' refers to the Organic Law on National and Local-level Government Elections;
  
• dates refer to the year 2012 unless otherwise indicated.
  

26th February, 2013

1. CANNINGS J: This is a ruling on an objection to competency of an election petition. The petition consisting of 17 allegations was filed by unsuccessful candidate Soroi Marepo Eoe disputing the election of first respondent Mark Maipakai as member for Kikori Open in the 2012 general election. The first respondent with the leave of the court on 13 February 2013 filed a notice of objection to competency through which he objected on numerous grounds, only three of which were pursued at the hearing of the objection on 21 February 2013 (the others being abandoned):

• First it is argued that the two witnesses who attested the petition failed to depose that they each were in a position to testify, confirm, verify or prove all or any of the facts relied on to dispute the validity of the election in the petition, thus failing to comply with Section 208(d) (petition shall "be attested by two witnesses whose occupations and addresses are stated").
  
• Secondly it is argued that the petition to the extent that it is based on Section 215(1) of the Organic Law (bribery or undue influence committed by a successful candidate) did not claim relief precisely in terms of Section 215(1) (that the candidate's election "shall be declared void"), thus failing to comply with Section 208(b) (petition shall "specify the relief to which the petitioner claims to be entitled").
  
• Thirdly, it is argued that each of the 17 grounds of the petition was defective in that it did not plead the correct provisions of the Organic Law and did not plead all the elements of any of the established grounds on which validity of an election can be disputed and was short of material facts and vague and confusing, thus failing to comply with Section 208(a) of the Organic Law (petition shall "set out the facts relied on to invalidate the election or return").
  

2. I will deal with the grounds of objection in what might appear to be an irregular order – (d) followed by (b) and (a) – as the first two – (d) and (b) – can be disposed of rather quickly while the third, (a), is more substantial and requires a determination of separate objections to each of the 17 allegations set out in the petition.

3. The first respondent is arguing that the entire petition should be dismissed and is supported by the other respondents, Ilaua Maikere (the returning officer), Andrew Trawen (Electoral Commissioner) and the Electoral Commission. In opposing the objection the petitioner argued a preliminary point which if upheld would result in summary dismissal of the objection, so I will deal with it first before moving on to the three grounds of objection.

PETITIONER'S PRELIMINARY POINT

4. Mr Soi for the petitioner submitted that the objection to competency is not properly before the court as there is no constitutional basis for it, there being no provision of the Organic Law that allows such objections to be made and the only mention of such objections in the Election Petition Rules 2002, which govern the practice and procedure of election petitions, being Rule 15, which states:

The Court shall deal with the petition and any challenges to the competency of it at the hearing.

5. Mr Soi submitted that Rule 15 does not create a right to object and that such a right must emerge from the Organic Law, but there is nothing in the Organic Law that provides for it. This is a radical proposition to say the least as it has been accepted almost without question since the seminal decisions of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99 that the requirements of Section 208 of the Organic Law must be strictly complied with and that respondents to an election petition have a right to object to its competency. The Supreme Court recently confirmed in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that the issue of competency, which relates to the jurisdiction of the Court, can be raised at any stage of the proceedings by any party to the petition or by the court on its own initiative. The petitioner's preliminary point is without merit. I will now proceed to the grounds of objection.

FIRST GROUND OF OBJECTION: ORGANIC LAW, SECTION 208(d)

6. This is the first of the three grounds of objection which allege breaches of Section 208 (requisites of petition) of the Organic Law, which states:

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).

7. Mr Paraka for the first respondent submitted that the two witnesses who attested the petition failed to depose that they each were in a position to testify, confirm, verify or prove all or any of the facts relied on to dispute the validity of the election, thus the petition does not meet the requirements of Section 208(d), which requires that the petition:

• shall "be attested by two witnesses whose occupations and addresses are stated".
  

8. The argument is that in order to "attest" a petition the witnesses must do more than merely state their occupation and addresses: they must demonstrate that they have knowledge of the grounds of the petition and are in a position to support the petitioner's case and they must each separately depose that the petition is being attested. Mr Paraka submitted that the present petition is defective in that neither of the witnesses, Hape Hape and Ilave Iko'o, deposed anything other than their occupations (each said he was a subsistence farmer) and addresses (each gave the same address) and that they signed a joint attestation (which stated "we the undersigned do duly sign and attest to the above petition"). Mr Paraka relies on two recent National Court decisions in support of the argument. First the decision of Kandakasi J in James Yoka Ekip & Simon Sanagke v Gordon Wimb & Electoral Commission (2012) N4899, which appears to be the first detailed judicial consideration of the meaning of "attested" in Section 208(d). Secondly the decision of Makail J in Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960 in which his Honour applied the decision in Ekip and upheld an objection to competency on the ground of failure by the two witnesses to properly "attest" the petition.

9. As they are National Court decisions they are persuasive but not binding authority and I, sitting as a Judge of the National Court, am not obliged to follow them (Constitution, Schedule 2.9(2) and Underlying Law Act 2000, Section 19(2)). I have considered the careful reasoning of their Honours in those two cases. I can see that there are good reasons for requiring witnesses who are attesting to a petition to depose that they are able to testify, confirm, verify or prove at least some of the facts relied on to dispute the validity of the election. However I am not convinced that those requirements are presently embodied within the meaning of the term "attest".

10. Though it might be desirable I do not consider it is necessary for a witness attesting a petition to depose that he is in a position to testify, confirm, verify or prove all or any of the facts in a petition. Moreover, to introduce such a requirement now would be the result of recent judicial interpretation of Section 208(d) which post-dates the filing of this petition. It would be unfair to the petitioner to subject this petition to legal requirements that did not exist, or at least were not known to exist, at the time of its filing. The first ground of objection to the petition is refused.

SECOND GROUND OF OBJECTION: ORGANIC LAW, SECTION 208(b)

11. Mr Paraka submitted that the two allegations in the petition that allege that the first respondent committed bribery, Nos 16 and 17, are defective as they seem (though he submits that the allegation is so poorly drafted this is not entirely clear) to be based on Section 215(1) of the Organic Law (which is concerned with bribery or undue influence committed by a successful candidate), but do not claim relief in terms of Section 215(1) (that the candidate's election "shall be declared void"). The argument is that allegations Nos 16 and 17 fail to comply with Section 208(b) (petition shall "specify the relief to which the petitioner claims to be entitled").

12. To appreciate the argument it is useful to quote Section 215 (voiding election for illegal practices) in full and then focus on Section 215(1) and then compare what Mr Paraka asserts is the mandatory claim for relief that should have been made with what is actually claimed. Section 215 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—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

13. The terms "bribery" and "undue influence" in Section 215(1) refer to the offences created by Section 103 (bribery) and Section 102 (undue influence) of the Criminal Code (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980). Section 215(1) prescribes four grounds on which the validity of an election can be disputed:

• a candidate has committed bribery;
• a candidate has attempted to commit bribery;
• a candidate has committed undue influence;
• a candidate has attempted to commit undue influence.
  

14. It provides that if that candidate is the successful candidate:

• "his election ... shall be declared void".
  

15. That, Mr Paraka asserts, was the only proper way of seeking relief in respect of allegation Nos 16 and 17, but such relief was not sought. In literal terms Mr Paraka is correct as paragraph 33 of the petition, which was headed 'The relief and orders sought by the petitioner', does not include the form of words "his election ... shall be declared void". Instead it seeks amongst other relief and orders:

• a declaration that "the first respondent Mark Ivi Maipakai who was returned as elected was not duly elected" (paragraph 33(d)); and
  
• a declaration that "the election for Kikori Open electorate is absolutely void" (paragraph 33(f)).
  

16. Does this mean that there has been a failure to comply with Section 208(b) of the Organic Law? At first glance this argument might appear to fall into the category of nit-picking. Very serious allegations of bribery are being made against the first respondent and his lawyer wants the court to dismiss them simply because wrong words have been used by the lawyer who drafted the petition. Is this how election petitions are supposed to be determined? It is timely to digress and consider the cautionary words of the Supreme Court (Sakora J, Sevua J and Gavara-Nanu J) in Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769:

Because of the frequent nit-picking, technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law ... or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

17. However I have been persuaded by Mr Paraka that the argument underpinning the second ground of objection cannot be summarily dismissed as there is Supreme Court authority to support it. In the case of Re William Wii SCR No 45 of 1994, 26.07.94 (unreported) it was held that to comply with 208(b) of the Organic Law a petition that is grounded on bribery or undue influence under Section 215(1) of the Organic Law must in the claim for relief refer to the precise form of words in Section 215(1). Mr Paraka was unable to provide a copy of this judgment (though he assured the court of its authenticity as he said that he appeared as counsel in the case and put the argument to the Supreme Court, which was accepted) and unfortunately it remains unreported, but I have located a reference to key parts of it in the decision of Injia J as he then was in Greg Mongi v Bernard Vogae (1997) N1635. His Honour quoted the Supreme Court in Re William Wii as stating:

Section 208(b) of the [Organic Law] says that "the petitioner shall specify the relief to which the petitioner claims to be entitled". We are of the view that that does not mean that the petitioner can select a relief to his own liking. Certainly in Section 212 of the [Organic Law] the Court has certain discretionary powers, one of which is to "declare that a person who was returned as elected was not duly elected". But we are satisfied that when a section such as the said 215 spells out the relief precisely then that is the relief that the petitioner is "entitled" to in the event that he is successful. He cannot ask that a person be found to be not duly elected when the section says that it be found that his election be declared void. Where bribery and undue influence is committed and proved then the Court can only find that his election be declared void.

18. His Honour held that the decision in Re William Wii was binding on the National Court and proceeded to dismiss the entire petition. Interestingly in David Lambu v Peter Ipatas (1998) N1701 Sakora J took a different approach, taking the view that Re William Wii was decided per incuriam (wrongly, through want of care, in ignorance of the law) and that it was not binding on the National Court. The law on this issue took another turn in Korak Yasona v Castan Maibawa (1998) SC552 when the Supreme Court, agreeing with Sakora J in Lambu, held that Re William Wii was wrongly decided. Yasona supports the proposition that the exact relief referred to in Section 215(1) does not have to be sought in the petition (Assik Tommy Tomscoll v Ben Semri (2003) N2349). The conflict in authorities was noted but not resolved by the Supreme Court (Kapi DCJ, Sheehan J, Jalina J) in Application by Ludwig Patrick Shulze (1998) SC572 as it was not necessary to decide the issue.

19. So where does that leave the argument? Mr Paraka asserts unsurprisingly, supported by Mr Okil for the second, third and fourth respondents, that Re William Wii was correctly decided. Mr Soi submits that it should be disregarded and that the more recent decision in Yasona should be followed. I agree with Mr Soi. When in doubt follow the most recent decision is a good rule of thumb for the National Court to adopt when dealing with conflicting Supreme Court authority. I actually prefer the Yasona approach. I acknowledge the importance of strictly complying with the requirements of Section 208 of the Organic Law but I feel that if too much attention is focussed on the need to stick literally to the words of the Organic Law we will lose sight of the real purpose of election petitions, to allow people who are genuinely aggrieved for good reason with the result of an election to challenge the result in court.

20. I find that the form of relief sought in paragraphs 33(d) and 33(f) of the petition – declarations that the first respondent was not duly elected and that the election is absolutely void – was in conformity with the nature of the relief provided for in Section 212 (powers of court) of the Organic Law, which states:

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d) order a re-count of ballot-papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment.

(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

21. I conclude that though it might be desirable it is not necessary for a petition, to the extent that it is based on Section 215(1) of the Organic Law, to claim relief precisely in terms of Section 215(1) (that the candidate's election "shall be declared void"). It is sufficient that the petition seeks relief in terms of one of the paragraphs in Section 212(1) (powers of court) of the Organic Law, eg a declaration that the person "who was returned as elected was not duly elected" (Section 212(1)(f)) or a declaration that the election is "absolutely void' (Section 212(1)(h)). The petitioner has in paragraphs 33(d) and 33(f) adequately sought relief under Sections 212(1)(f) and (h). There has been no failure to comply with Section 208(b) of the Organic Law. The second ground of objection to the petition is refused.

THIRD GROUND OF OBJECTION: ORGANIC LAW, SECTION 208(a)

22. The first respondent argues that each of the 17 allegations set out in the petition breaches Section 208(a). The 17 allegations are divided into three categories:

• Part A: allegations against the second, third and fourth respondents for the conduct of their servants and agents during the counting period, 13 to 27 July: allegation Nos 1 to 6.
  
• Part B: allegations against the first respondent for the conduct of his servants and agents during the polling period, 23 to 29 June: allegation Nos 7 to 15.
  
• Part C: allegations against the first respondent for his conduct during the polling period, 23 to 29 June: allegation Nos 16 and 17.
  

23. I will deal with the objection to each allegation in turn and focus attention on the first allegation in each category, ie Nos 1, 7 and 16, as each of the other allegations in each category is modelled on the first allegation in that category.

Allegation No 1

24. This is the first of the allegations in Part A of the petition. It is introduced by the heading "Breach of Sections 50 and 59 of the Constitution and Sections 151-169 and 215 of the Organic Law on National and Local-level Government Elections".

1. Between 13th July, 2012 and 27th July, 2012, at the counting venue at Electoral Office, Kerema, Gulf Province, the scrutineers of the candidates including the scrutineers for the Petitioner were denied their rights under Section 50 of the Constitution by the second, third and fourth respondents their servants and agents namely their counting officials to fairly and openly inspect the scrutiny of the first, second and third preference votes in accordance with Section 168 of the Organic Law on National and Local Level Government Elections.
   
2. The Particulars of facts supporting Allegation No 1 in the preceding paragraph upon which the petitioner seeks to invalidate the election of the first respondent are:-
   
   1. There was absence of a free and fair scrutiny of the proceedings in the counting of votes during the counting period whereby the scrutineers of the candidates including the scrutineers for the Petitioner were deprived of their rights to a free and fair scrutiny of the ballot papers from the twenty three (23) ballot boxes from Kikori Open Electorate at the counting venue at Electoral Office, Kerema, Gulf Province, further particulars are outlined hereunder.
      
   2. After the polling, prior to counting and until the declaration of the First Respondent, the Second Respondent and his presiding officers of the twenty three (23) polling teams in the Kikori Open Electorate failed to provide the returns of ballot papers of their respective polling, teams showing the total number of ballot papers allocated for the electorate, the total number of ballot papers used, the number of spoiled ballot papers, and the balance of the good ballot papers with the sequence of their serial numbers in the order of the twenty three (23) polling teams for Kikori Open Electorate at the commencement of scrutiny at Electoral Office, Kerema, Gulf Province on 13th July, 2012.
      
   3. During the counting period the scrutineers of the candidates for the Kikori open electorate were not allowed the opportunity to inspect and verify ballot papers when the servants and agents of the second, third and fourth defendants kept the scrutineers at a distance of about five (5) meters from the table where the Second Respondent and his counting officials were sorting out and distributing the ballot papers among the candidates.
      
   4. During the counting period the Second Respondent organized the counting officials in such a manner that they were specially directed to ensure that no objections were raised regarding:-
      
      • (a) The manner of counting used by the counting officials at the counting centre.
      • (b) The Proper returns of ballot boxes and papers.
      • (c) The requests for returns of the Kikori electorate.
      • (d) The manner of counting and requests to verify individual candidate's ballot papers.
      • (e) The conduct of polling officials and the counting officials at the counting centre.
        

5. During the counting period the 'controlled' manner employed during the whole scrutiny by the second, third and fourth respondents, servants and agents namely the counting officials deprived the right of the scrutineers of the candidates including scrutineers for the Petitioners to inspect and verify ballot papers that were considered 'informal' and 'exhausted' by the Second Respondent and his counting officials during counting of ballot papers in all elimination counts.
   
6. During the counting period questions on the integrity of the ballot papers were also raised because of the many delays and suspensions with the counting process during the course of the whole scrutiny including the suspension prior to the elimination count for Ezra Kerut who was the last candidate to be eliminated to find the winner between the Petitioner and the First Respondent.
   
7. During the suspension of the count 54 all ballot papers were bundle and sealed with packing tape and put in two (2) respective boxes belonging to the two (2) remaining candidates and exhausted ballot papers in two (2) large parcels and taken to storage container at Electoral Office, Kerema, Gulf Province.
   
8. It is contended that the allegations and the particulars of facts supporting the allegation outlined under this ground herein constitute an irregular and illegal practice under Sections 151, 152, 153, 153A, 154, 168 and 169 of the Organic Law on National and Local Level Government Elections (Amendment) Law, 2006.
   
9. It is contented that the allegations and the particulars of facts supporting the allegation outlined under this ground herein constitute an irregular and illegal practice under Section 215 (3)(b) of the Organic Law on the National and Local Level Government Elections (Amendment) Law 2006.
   

25. In summary allegation No 1 alleges that the second, third and fourth respondents denied to the scrutineers of the candidates, including the petitioner's scrutineers, their right to fairly and openly conduct the scrutiny, in that:

• there was an absence of free and fair scrutiny;
• returns of ballot papers by the 23 polling teams, showing the total number of ballot papers allocated, used, spoiled and 'good' ballot papers and other details were not provided;
• scrutineers were not allowed the opportunity to inspect and verify ballot papers as they were kept five metres from the sorting table;
• counting officials were directed to ensure that no objections were raised regarding the manner of counting etc;
• scrutineers were deprived of the right to inspect and verify ballot papers that were considered informal or exhausted;
• there were many delays and suspensions in the counting process, raising questions as to the integrity of the ballot papers;
• during the suspension of count 54 all ballot papers were bundled and sealed with packing tape;
• the above allegations and facts "constitute an irregular and illegal practice under Sections 151, 152, 153, 153A, 154, 168 and 169 of the Organic Law";
• the above allegations and facts "constitute an irregular and illegal practice under Section 215(3)(b) of the Organic Law".
  

26. Having considered the submissions of Messrs Paraka and Okil for the respondents and those of Mr Soi for the petitioner I find that allegation No 1 despite the seriousness of the complaints that it raises is defective in a number of respects.

1. It is incorrectly based on Section 215(3)(b) of the Organic Law. It should be based on Section 218(1). Section 215(3) sets out a number of grounds for disputing the validity of an election that are centred on 'illegal practices' including bribery and undue influence. The Supreme Court in Dick Mune v Anderson Agiru (1998) SC590 held that an "illegal practice" means a criminal offence of the sort created by Section 178 (illegal practices) of the Organic Law or Division III.3 (corrupt and improper practices at elections) of the Criminal Code. It does not include a breach of Organic Law provisions such as those in Part XIV (the scrutiny), containing Sections 147 to 172, that regulate the manner of counting votes. The breach of any of those provisions will not amount to commission of a criminal offence and can only be properly described as an "error" or "omission", which is the terminology used in Section 218(1) (immaterial errors not to vitiate election) of the Organic Law, which states:
   

... 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.

27. Mr Soi submitted that Section 218(1) is irrelevant as it refers to errors and omissions by "officers", whereas the subject matter of allegation No 1 is irregularities and breaches of the law committed by servants and agents of the second, third and fourth respondents. He refers to the definition of officer in Section 3 of the Organic Law, which states:

"officer" means an officer or employee of the National Public Service, a member of the Defence Force, a member of the Police Force, a member of the Correctional Service, an officer or employee of a Provincial Government or an officer or employee of a Local-level Government or an officer or employee of a governmental body.

28. The argument is that the persons who conducted the counting (more correctly called "scrutiny") were not officers, as defined by Section 3, so Section 218(1) had no application to them. The argument gains some traction by the use of the word "means" in the definition of "officer", so it appears to be an exhaustive, not an inclusive, definition. But the argument is ultimately neutralised by Section 3's introductory words:

In this Law, unless the contrary intention appears ...

29. The contrary intention does indeed appear in Section 218(1). The officers it refers to are those public officials appointed under the Organic Law to conduct the scrutiny, in particular the Returning Officer for each electorate appointed under Section 19 (returning officers) of the Organic Law who is charged by Section 149 (officers to conduct scrutiny) of the Organic Law with the responsibility of conducting the scrutiny. I am unpersuaded by Mr Soi's argument that Section 218(1) is not a proper foundation for the sort of complaints that are the subject of allegation 1. It was the only provision that related to those complaints. The failure to refer to it and make it the foundation of allegation No 1 was a serious defect.

2. It fails to sufficiently specify the breaches of the Organic Law that were allegedly committed. The introductory reference to Sections 50 and 59 of the Constitution and Sections 151 to 169 and 215 of the Organic Law is too vague. I agree with the approach taken by Salika J as he then was in Robert Kopaol v Philemon Embel (2008) N3319 (which is consistent with what Injia J said was required in Mune):
   

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

For example the statement in allegation No 1(b)(i) that there was an absence of free and fair scrutiny should have been cross-referenced to the particular law that conferred on the candidates or scrutineers the right to such a scrutiny or imposed on the respondents a duty to provide it. Allegation No 1(b)(ii) alleges a failure to provide returns of ballot papers by each polling team but fails to refer to the law that imposes a duty to provide such returns. Other particular complaints in allegation 1 are similarly unsupported by cross-references to the relevant law. The narrowing down of the relevant provisions that occurs in allegation No 1(b)(viii) (where a reference is made to Sections 151, 152, 153, 153A, 154, 168 and 169 of the Organic Law) is still too general to save the inherent vagueness and defect in the whole allegation.

3. It fails to specify the names of the persons who allegedly committed the irregular and illegal practices referred to and other material facts. Only the second respondent is named (and then only inferentially) as the person responsible for the breaches of the law that are at the centre of allegation No 1. This is not sufficient.
   
4. It fails to plead that the irregular and illegal practices (what should have been pleaded as errors or omissions) affected the result of the election and how they affected the result. I reiterate that allegation No 1 should have been framed as an allegation centred on errors or omissions by officers for the purposes of Section 218(1) and that being the case it should have alleged that the errors or omissions did "affect the result of the election". Injia J as he then was explained this in Sai-Sail Beseoh v Yuntivi Bao (2003) N2348:
   

Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.

30. The Supreme Court in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 emphasised the importance of pleading both that the result of the election was affected and how it was affected. Allegation No 1 fails to meet these requirements.

31. The combined effect of these defects is that allegation No 1 fails to set out the facts required to invalidate the election. It does not comply with Section 208(a) of the Organic Law. The objection to its competency is upheld and it must be struck out.

Allegation Nos 2 to 6

32. These are described in the following terms:

• Allegation 2: Breach of Sections 168 and 215 of the Organic Law;
  
• Allegation 3: Breach of Sections 50 and 59 of the Constitution and Sections 151-169 and 215 of the Organic Law;
  
• Allegation 4: Breach of Sections 50 and 59 of the Constitution and Sections 151-169 and 215 of the Organic Law;
  
• Allegation 5: Breach of Sections 50 and 59 of the Constitution and Sections 151-169 and 215 of the Organic Law;
  
• Allegation 6: Breach of Sections 50 and 59 of the Constitution and Sections 151-169 and 215 of the Organic Law.
  

33. I find that each of these allegations, although raising matters of serious concern, suffers from the same defects as allegation No 1 in that:

1. it is incorrectly based on Section 215(3)(b) of the Organic Law, it should be based on Section 218(1);
   
2. it fails to sufficiently specify the breaches of the Organic Law that were allegedly committed;
   
3. it fails to specify the names of the persons who allegedly committed the irregular and illegal practices referred to and other material facts;
   
4. it fails to plead that the irregular and illegal practices (what should have been pleaded as errors or omissions) affected the result of the election and how they affected the result.
   

34. As in the case of allegation No 1 the combined effect of these defects is that allegation Nos 2 to 6 fail to set out the facts required to invalidate the election. They do not comply with Section 208(a) of the Organic Law. The objection to their competency is upheld and they must be struck out.

Allegation No 7

35. This is the first of the allegations in Part B of the petition. It is introduced by the heading "Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Rex Vilapoi, an elector, at Larihauru village". It states:

1. It is alleged that at about 5.00 pm on Thursday, 28th June, 2012 at Larihairu village, Ihu, Gulf Province, Marepo Marepo an elector and agent of the first respondent gave K150.00 to Rex Vilapoi, an elector on account of the said Rex Vilapoi an elector to vote for the first respondent for the Kikori Open Seat.
   
2. The Particulars of facts supporting Allegation No 7 in the preceding paragraph upon which the petitioner seeks to invalidate the election of the first respondent are:-
   
   1. At about 5.00 pm on Thursday, 28th June 2012, Rex Vilapoi an adult male person was in his Larihairu village, Ihu, Gulf Province. Mr. Vilapoi was in company of his clan members and they were preparing a traditional feast. While the clan members were feasting he was approached by Marepo Marepo another adult male person. Mr Marepo Marepo was in company of David Hulamari and Eka Haulahela. Messrs Marepo Marepo, David Hulamari and Eka Haulahela are committees and agents of the first respondent, Mark Maipakai. Mr. Marepo Marepo in the presence of David Hulamari and Eka Haulahela gave K150.00 to Rex Vilapoi and told him to vote for Mr. Mark Maipakai for Kikori Open Seat. Mr Rex Vilapoi after receiving the K150.00 voted for the first respondent Mark Maipakai during the polling period at Larihairu village, Ihu, Gulf Province.
      
   2. The actions by the committee and/or agents of the first respondent, Mark Maipakai constitutes bribery under Section 103 of the Criminal Code and amounted to illegal practice under Section 215(3)(b) of the Organic on National and Local Level Government Elections.
      
   3. It is further alleged that the said acts of bribery set out herein was carried out with the authority and/or knowledge of the first respondent Mark Maipakai.
      
   4. It is contended that the allegations and the particulars of facts supporting the allegation outlined under this ground herein constitute and irregular and illegal practice under Section 215(3)(b) of the Organic Law on the National and Local Level Government Elections (Amendment) Law 2006.
      

36. In summary allegation No 7 alleges that agents of the first respondent committed the offence of bribery under Section 103 of the Criminal Code by giving money to an elector to get him to vote for the first respondent and that this was done with the knowledge and/or authority of the first respondent.

37. Having considered the submissions of Messrs Paraka and Okil for the respondents and those of Mr Soi for the petitioner I find that allegation No 7 despite the seriousness of the complaints that it raises is defective in a number of respects.

1. It is incorrectly based on Section 215(3)(b) of the Organic Law. It should be based on Section 215(3)(a). Section 215(3) states:
   

The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

38. Section 215(3) draws a sharp distinction between on the one hand 'bribery or undue influence' (which fall within Section 215(3)(a)) and on the other hand other illegal practices (which fall within Section 215(3)(b)). Offences of bribery or undue influence are examples of illegal practices but they are dealt with separately by the Organic Law. If a petitioner is alleging that a person other than the successful candidate has committed bribery or undue influence the petition must be framed in terms of Section 215(3)(a). In fact Mr Soi conceded the point during submissions but contended that it was a minor error, almost like a typographical error. I disagree.

39. I could have been persuaded otherwise if allegation No 7 had in all respects been cast in terms of Section 215(3)(a) other than having a mistaken reference to Section 215(3)(b). But in addition to the wrong provision being referred to in the heading to the allegation it appears twice in the text of the allegation, and the confusion this inevitably creates is exacerbated by a vague reference to "an irregular and illegal practice in the final paragraph of the allegation. The error is a major one.

2. It fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent's agent. As pointed out earlier "bribery" in Section 215 means one of the offences of bribery created by Section 103 (bribery) of the Criminal Code. The petitioner has the burden of pleading, and proving according to the criminal standard of beyond reasonable doubt, that one of those offences was committed by the first respondent's agent. I commented in Peter Isoaimo v Paru Aihi (2012) N4921 that Section 103 is a very complex provision, which states:
   

A person who—

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

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

40. Because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a petitioner must specify what particular bribery offences are alleged to have been committed. In Isoaimo the petitioner argued that the first respondent committed bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code. To prove an offence under Section 103(a)(iii) the petitioner must plead, and prove, that the person alleged to have committed bribery:

• gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;
  
• any property or benefit of any kind;
  
• in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election and that the procurer of the benefit acted with some criminal intent, in particular the intention to bribe someone (Desmond Baira v Kilroy Genia (1998) SC579).
  

41. To prove an offence under Section 103(d) the petitioner must plead, and prove, that the person alleged to have committed bribery:

• advanced or paid any money to or to the use of any other person;
  
• with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose (ie the money must be applied for the purpose of endeavouring to procure the return of any person (the first respondent) at an election or the vote of any elector at an election (paras (a) and (c)) or doing or omitting to do something at an election in the capacity of an elector (para (b)).
  

42. The Supreme Court's decision in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 shows that this level of precision and attention to detail is required when bribery or undue influence or any other illegal practice is alleged in an election petition. Allegation No 7 fails to meet these requirements and is therefore seriously defective.

3. It fails to plead that "the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void". The Supreme Court in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 held that if a ground of a petition is based on either Sections 215(3)(a) or (b) it is necessary to plead, and prove, not only that an illegal practice has been committed but that the two further requirements of the final part of Section 215(3) have been met:
   
   • 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.
     

43. In addition it must be pleaded how the result was likely to be affected and why it is just that the candidate should be declared not to be duly elected or that the election should be declared void. Allegation No 7 is silent on these matters. This makes it seriously defective.

44. The combined effect of these defects is that allegation No 7 fails to set out the facts required to invalidate the election. It does not comply with Section 208(a) of the Organic Law. The objection to its competency is upheld and it must be struck out.

Allegation Nos 8 to 15

45. These are described in the following terms:

• Allegation 8: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Ernest Kevao, an elector, at Larihauru village.
  
• Allegation 9: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Oakore Mahiro, an elector, from Larihauru village.
  
• Allegation 10: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Iva Koau, an elector, from Larihauru village.
  
• Allegation 11: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Moses Marapo, an elector, from Larihauru village.
  
• Allegation 12: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Haraha Haraha, an elector, from Larihauru village.
  
• Allegation 13: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of David Ania, an elector, from Amoke village.
  
• Allegation 14: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Miria Dumuru, an elector, from Moka No 1 village.
  
• Allegation 15: Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Kobe Sorome, an elector, from Moka No 1 village.
  

46. I find that each of these allegations, although raising matters of serious concern, suffers from the same defects as allegation No 7 in that:

1. it is incorrectly based on Section 215(3)(b) of the Organic Law. It should be based on Section 215(3)(a);
   
2. it fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent's agent;
   
3. it fails to plead 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".
   

47. As in the case of allegation No 7 the combined effect of these defects is that allegation Nos 8 to 15 fail to set out the facts required to invalidate the election. They do not comply with Section 208(a) of the Organic Law. The objection to their competency is upheld and they must be struck out.

Allegation No 16

48. This is the first of the allegations in Part C of the petition. It is introduced by the heading "Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Caine Paul, an elector, from Kibeni village". It states:

1. It is alleged that at about 11.00 am on 23rd June, 2012 the first respondent's Mark Maipakai gave two (2) PMV trucks to Kibeni and Omati villages on the eve of polling for the Kikori Open Electorate to Caine Paul. The first respondent Mark Maipakai gave K22,000.00 to Caine Paul, and elector and polling official for the Kikori Open electorate on account and elector on account of the said Caine Paul to vote for him and conduct polling for the first respondent for the Kikori Open Seat.
   
2. The Particulars of facts supporting Allegation No. 16 in the preceding paragraph upon which the petitioner seeks to invalidate the election of the first respondent are:-
   
   1. On 23rd June, 2012 at Kikori Station, Kikori, Gulf Province the first respondent gave to Caine Paul two (2) PMV trucks for Kibeni and Omati villages. The first respondent also gave K22,000.00 to Caine Paul. At the material time Caine Paul was the presiding officer for Kibeni and Omati villages, West Kikori Local Level Government area of the Kikori Open Electorate.
      
   2. The giving of the two (2) PMV trucks and K22,000.00 in cash by the first respondent to Caine Paul amount to bribery of a polling officials.
      
   3. The Actions by the first respondent, Mark Maipakai constitutes bribery under Section 103 of the Criminal Code and amounted to illegal practice under Section 215 (3) (b) of the Organic on National and Local Level Government Elections.
      
   4. It is contended that the allegations and the particulars of facts supporting the allegation outlined under this ground herein constitute and irregular and illegal practice under Section 215 (3) (b) of the Organic Law on the National and Local Level Government Elections (Amendment) Law 2006.
      

49. In summary allegation No 16 alleges that the first respondent committed the offence of bribery under Section 103 of the Criminal Code by giving property (two trucks) to villages and cash to an elector and polling official to get him to vote and conduct polling for the first respondent.

50. Having considered the submissions of Messrs Paraka and Okil for the respondents and those of Mr Soi for the petitioner I find that allegation No 16 despite the seriousness of the complaints that it raises is defective in two respects.

1 It is incorrectly based on Section 215(3)(b) of the Organic Law. It should be based on Section 215(1). Section 215(1) is concerned with the precise allegation being raised here: bribery committed by a successful candidate. It states:

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.

51. Section 215(1) should have been relied on. Mr Soi conceded the point during submissions but, as in the case of the Part B allegations, contended that it was a minor error. I disagree. I could have been persuaded otherwise if allegation No 16 had in all respects had been cast in terms of Section 215(1) other than having a mistaken reference to Section 215(3)(b). But in addition to the wrong provision being referred to in the heading to the allegation, it appears twice in the text of the allegation, and the confusion this inevitably creates is exacerbated by a vague reference to "an irregular and illegal practice" in the final paragraph of the allegation. The error is a major one.

2 It fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent. As pointed out earlier "bribery" in Section 215 means one of the offences of bribery created by Section 103 (bribery) of the Criminal Code. The petitioner has the burden of proving according to the criminal standard of beyond reasonable doubt that one of those offences was committed by the first respondent. It fails to comply with the level of precision and attention to detail required when bribery is alleged against a successful candidate. The allegation that two trucks were given to two villages is particularly vague. Allegation No 16 fails to meet these requirements and is seriously defective.

52. Unlike the allegations based on Section 215(3) there was no obligation to plead, or prove, whether the alleged bribery committed by the first respondent was likely to have affected the result of the election or that it was just he be declared not to be duly elected or that the election be declared void. Proof of bribery by a successful candidate without more results in his election being declared void.

53. However the combined effect of the two major defects is that allegation No 16 fails to set out the facts required to invalidate the election. It does not comply with Section 208(a) of the Organic Law. The objection to its competency is upheld and it must be struck out.

Allegation No 17

54. This is described in the following terms:

• Breach of Section 103 of the Criminal Code and Section 215(3)(b) of the Organic Law: bribery of Stanley Baive, an elector, from Komaio village.
  

55. I find that this allegation, although raising matters of serious concern, suffers from the same defects as allegation No 16 in that:

1 it is incorrectly based on Section 215(3)(b) of the Organic Law. It should be based on Section 215(1); and

2 it fails to sufficiently specify the particular bribery offence that was allegedly committed by the first respondent.

56. As in the case of allegation No 16 the combined effect of these defects is that allegation No 17 fails to set out the facts required to invalidate the election. It does not comply with Section 208(a) of the Organic Law. The objection to its competency is upheld and it must be struck out.

CONCLUSION

57. The first two grounds of objection, relating to Sections 208(d) and (b) of the Organic Law, are refused. The third ground of objection, based on Section 208(a), is upheld in respect of each of the 17 allegations in the petition. It follows that the objection to competency of the petition is upheld and that the petition is dismissed in its entirety.

58. The question of costs of the petition is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court "may make such orders as to costs as it deems fit". Subject to any specific orders for costs that apply to any interlocutory hearings I deem it fit that, although the first respondent supported by the other respondents)has succeeded, it is just and appropriate for all parties to bear their own costs for the following reasons:

• earlier objections to competency by both the first respondent and the other respondents were struck out due to their failure to prosecute the objections in a timely manner in accordance with the Court's directions;
  
• a number of grounds of objection were abandoned on the day of the hearing without notice to the petitioner, which meant that he had unnecessarily incurred some costs in preparation for the hearing;
  
• two of the three principal grounds of the objection were refused;
  
• the petitioner has acted in good faith in filing the petition, which raised matters of genuine concern to the petitioner who fairly exercised his constitutional right to dispute the validity of the election;
  
• unsuccessful candidates should not be dissuaded by the prospect of incurring large costs orders against them from bringing matters of genuine concern to the Court.
  

59. It follows that the petitioner will be refunded any security for costs that he has under Section 209 of the Organic Law and Section 5 of the Election Petition Rules deposited with the Registrar.

ORDER

(1) The objection to competency of the petition is upheld.

(2) The entire petition is dismissed.

(3) Subject to any specific orders for costs that apply to any interlocutory hearings, all parties shall bear their own costs of the petition including the costs of the objection to competency.

(4) The Registrar of the National Court shall forthwith refund to the petitioner any security for costs that the petitioner has under Section 209 of the Organic Law and Section 5 of the Election Petition Rules deposited with the Registrar.

Ruling accordingly.
___________________________________________________
Soi & Associates Lawyers: Lawyers for the Petitioner
Paul Paraka Lawyers: Lawyers for the 1st Respondent
Parua Lawyers: Lawyers for the 2nd, 3rd & 4th Respondents