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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
E.P NO 99 0F 2012
IN THE MATTER OF THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND
AND IN THE MATTER OF A DISPUTED RETURNS FOR THE NIPA KUTUBU OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS.
BETWEEN:
PHILEMON EMBEL
Petitioner
AND
JEFFERY PESAB KOMAL
First Respondent
AND
ANDREW TRAWEN ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent
AND
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent
Waigani: Kawi J
2013: 8th April
NATIONAL GENERAL ELECTIONS – PRACTICE AND PROCEDURE – application for objections to competency of petition – petitioner disputing win of member elect – grounds of – errors and omissions by electoral officials – illegal practices by supporters of member elect – ss218 & 215 of Organic Law on National and Local Level Government Elections
PRACTICE AND PROCEDURE – first respondents amended notice of objection to competency seeking dismissal of petition – reasons of – petitioner not complying with mandatory requirements of filing petitions under the Organic Law – petition incompetent for incorrect attestation –
Cases Cited
Alfred Manase.v. Don Poyle 14th April 2008) EP 3 of 2007
Holloway.v.Ivarato[1988 – 89] PNGLR 99
Micah .v.Ling Stucky [1998] PNGLR 151
Philip Kikila v Nickson Mangape (January 2013) EP 18 of 2012
Sauk .v.Polye (2008) N3341
Saonu.v.Dadae (2004) SC763
Simon Sanagke .v. William Duma Ors (November 2012) EP No 10&11 of 2012.
Counsel:
Mr Paul Mawa & Ms Diane Mewerimbe, for the Petitioner
Mr. Paul Paraka & Mr Adam Ninkama, for the First Respondent
Mr. Kevin Kepo, for the Second and Third Respondent
DECISION ON OBJECTIONS TO COMPETENCY OF PETITION
8th April, 2013
1. KAWI J: BACKGROUND. This is an Election Petition brought pursuant to Section 206 of the Organic Law on the National and Local Level Government Elections ("Organic Law") by the Petitioner who was a candidate in the 2012 General Elections for the Nipa Kutubu Open Seat, Southern Highlands Province.
2. The First Respondent, Honourable Jeffery Pesab Komal, was declared elected the winner of that seat on 31st July 2012 with a total of 26,890 votes defeating the Petitioner who polled a total of 24,961 votes. The First Respondent won the elections wining by a difference of 1,929 votes.
GROUNDS OF THE PETITION
3. The grounds of the Petition are:
(a) Errors and Omissions under section 218 of the Organic Law.
(b) Illegal practices under section 215 of the Organic Law.
OBJECTION TO COMPETENCY.
4. The First Respondent objects to the Competency of this Petition and filed an Amended Notice of Objection to the Competency of the Petition on 26th October, 2012. The First Respondent than filed an Amended Notice of Objection on the 05th November 2012.
5. The First Respondent's Amended Notice of Objection to Competency seeks to dismiss the whole of the Petition on the basis that the Petition in the form filed, fails to strictly comply with the mandatory constitutional requirements of Section 208(a), (d) & (e) of the Organic Law on National and Local Level Government Elections.
6. The First Respondent therefore attacks the Competency of the Petition on two basic grounds:-
(i) Firstly, that the Petition does not comply with the mandatory constitutional requirement of Section 208 (a) of the Organic Law in that the facts relied upon by the Petitioner are not set out with sufficient particularity to enable the Respondents to prepare their case and for the Court to see with clarity the issues involved.
(ii) Secondly, that the Petition does not comply with the mandatory constitutional requirement of section 208(d) of the Organic Law in that the attestation by two witnesses as stated in the Petition is in breach of section 208(d) of the Organic Law for the reason that the witnesses have not attested or confirmed having knowledge of the content of the Petition itself apart from attesting generally to the filling of the Petition by the Petitioner.
7. The Petitioner opposes the objections to the competency of the Petition and submits that;
(i) he has sufficiently stated the material, relevant and base facts as required by Section 208 (a) of the Organic Law to enable the Respondents to prepare their case and for the Court to see with clarity the issues involved.
(ii) he has fully complied with the letter and spirit of the mandatory constitutional requirement of section 208(d) of the Organic Law in that the Petition has been attested to by two witnesses whose occupations and addresses are clearly stated. The First Respondent's contention that the witnesses have not attested or confirmed having knowledge of the contents of the Petition itself is a misconstruction and interpretation of the legislative intent, and meaning of the requirement of section 208(d).
8. The Respondents Counsels have submitted that the Petition in the form filed does not comply with section 208(d) of the Organic Law in that the two witnesses who attested to the Petition are Lawyers who are based in Port Moresby and are not eligible to be witness and attest to the Petition and for that reason the Petition is incompetent. They referred to the Obiter remarks of Makail J in the case of in Philip Kikala -v- Nixon Mangape and Kandakasi J in Philip Kikila v Nickson Mangape ( January 2013) EP 18 of 2012.
ATTESTATION BY WITNESSES.
9. The Respondents Counsels have submitted that the Petition in the form filed does not comply with section 208(d) of the Organic Law in that the two witnesses who attested to the Petition are Lawyers who are not eligible to witness and attest to the Petition and for that reason the Petition is incompetent.
10. Section 208(d) of the Organic Law is in the following terms;
s.208 Requisites of Petition
A Petition shall-
(a)...............
(b)...............
(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 to by two witnesses whose occupations and addresses are stated
11. On a plain reading of section 208(d) of the Organic Law, the words and terms of the statute are themselves precise and unambiguous so much so there is no need to expound or expand on the words used. This provision makes it abundantly clear that the Petition be attested to by two witnesses whose occupations and addresses are stated. There is no additional requirement in section 208(d) that the witnesses must be electors or persons who reside in the electorate and have knowledge of the facts pleaded in the Petition. On a plain reading of section 208(d) of the Organic Law, the words and terms of the statute are themselves precise and unambiguous so much so there is no need to expound on the words used. This provision makes it abundantly clear that the Petition be attested to by two witnesses whose occupations and addresses are stated. There is no additional requirement in section 208(d) that the witnesses must be electors or persons who reside in the electorate and have knowledge of the facts pleaded in the Petition. In my view judges are reading too much into the intent and purposes of the Organic Law. Parliament intended that the election petitions be drafted by Ordinary lay man and lawyers appear only by leave of Court. In this way technical and legalistic arguments are not unnecessarily raised and entertained. In my view under section 208 (d) there are only two requirements of attestation: the first is that the attesting witness must sign the petition;
12. Secondly such witnesses must also state their occupation and addresses. When a person attests to in a petition, he or she affirms that what is stated in the petition is true and genuine. In my view these are the only two requirements of section 208(d). There are no other additional requirements. The Blacks Law Dictionary defines the word "Attest" as follows: 1.To bear witness; testify; 2. To affirm to be true or genuine; to authenticate by signing as a witness. The Organic Law does not define what the word "attest" means. Neither does it provide for an attestation clause to state and verify the requirements of section 208(d). An Attestation clause would then strengthen the presumption that all the statutory requirements for executing the petition have been satisfied. In absence of these requirements, I will go by the ordinary meaning of the word "attest". In my view Section 208(d) requires the attesting witness to bear witness to or to testify that the fact of filing a petition is true. Here the two attesting witnesses, Mr. Paul Mawa and his Associate Ms Diane Mewerimbe co - signed the petition. Both are Practising lawyers in Port Moresby. They stated their residential addresses in Port Moresby. In my view they have fulfilled the ordinary requirements of attesting to a petition. In my view judges are reading too much into the intent and purposes of the Organic Law when that was never intended by the legislature. Parliament intended that the election petitions be drafted by Ordinary lay man and lawyers appear only by leave of Court only. In this way technical and legalistic arguments are minimised and not unnecessarily raised and entertained. In my view under section 208 (d) there are only two important requirements of attestation: the first is that the attesting witness must sign the petition. Secondly such witnesses must also state their occupation and addresses when they sign the petition. When a person attests to in a petition, he or she affirms that what is stated in the fact of filing of the petition is true and genuine. In my view these are the only two requirements of section 208(d). There are no other additional requirements such as that advocated by the first respondents. The Blacks Law Dictionary defines the word "Attest" as follows: 1.To bear witness; testify; 2. To affirm to be true or genuine; to authenticate by signing as a witness. The Organic Law does not define what the word "attest" means. Neither does it provide for an attestation clause to state and verify the requirements of section 208(d). An Attestation clause would then strengthen the presumption that all the statutory requirements for executing the petition have been satisfied. In absence of these requirements, I will go by the ordinary meaning of the word "attest". In my view Section 208(d) requires the attesting witness to bear witness to or to testify that what is stated in the Petition is true or genuine. Here the two attesting witnesses, Mr. Paul Mawa and his Associate Ms Diane Mewerimbe co - signed the petition. Both are Practising lawyers in Port Moresby. They stated their addresses in Port Moresby. In my view they have fulfilled the ordinary requirements of attesting to a petition. I will not read into nor import any other requirements into this petition. I will dismiss any objections based on alleged non compliance with this ground. The other preliminary matter raised by the first respondent is an application to summarily dismiss the petition. This ground is based on Rule 18 of the Election Petition Rules. It was submitted by the first respondent that the petitioner had failed to file and serve of "Agreed And Disputed Facts" in the time period made by the court. A draft copy of the statement was filed and served by the petitioner in Mendi during the hearing of these Objections. During the Pre- Trial hearing The judge made directional orders to the effect that 'Both parties will agree on disputed and agreed facts and then have them filed before the 5th of November 2o12."The Orders did not specify and direct the petitioner to file the statement. It directed both parties and not only one party. Counsel for the respondent made a big song and dance of this orders. In my view he only has to read the orders to make a sense of them. I will therefore dismiss the application to summarily dismiss the petition at this stage. The other reason why I will not dismiss these objections is for the reasons deposed to in Ms Mewerimbe affidavit. For all these reasons the application for summary dismissal is hereby dismissed. Finally in my view A statement of agreed and disputed facts is not required during the hearing of an objection to the jurisdiction of this court. It does not require the court to canvass and analyse the many detailed facts both agreed and disputed. The application to summarily dismiss the petition has defaulted is hereby dismissed.
JURISDICTIONAL BASIS OF AN OBJECTION.
13. The Constitutional basis for raising an objection to Competency of the Petition is section 210 of the Organic Law.
Section 210 of the Organic Law states in no uncertain language that a Petition will not proceed and cannot be entertained if the mandatory constitutional requirements
of both sections 208 and 209 of the Organic Law are not fully complied with.
14. The overriding consideration is to give effect to the legislative intent and purpose when interpreting and or construing and applying these provisions in such competency applications. All these frequent nit picking technical objections and adding extra considerations into the requirements of section 208 of the Organic Law in the guise of meritorious and substantive issues of competency by lawyers must be avoided and will not be entertained.
THE FIRST RESPONDENT'S OBJECTION TO COMPETENCY.
Objection under section 208(a) of the Organic Law.
First (1st) Ground of the Petition – Errors and Ommissions By Returning Officer.
15. According to the First ground of the Petition, the Petitioner alleges the Returning Officer to have been biased and had vested interest to ensure the First Respondent won the election.
16. Paragraphs 14 and 15 of the Petition alleges that the First Respondent is a very close relative and neighbour of the returning Officer John Harisol and his relatives and family members were the First Respondent's strong supporters.
Objection was taken by the first and second respondents as to Paragraphs 14 and 15:-
17. It is alleged that these paragraphs do not state clearly how the First Respondent is a relative of John Harisol, the Returning Officer. It does not state with particularity the tribal relationship of the First Respondent and that of John Harisol; It is argued that the paragraph does not state how the First Respondent and John Harisol are related. Finally they argue that the paragraph does not state with particularity how John Harisol's relatives are strong supporters of the First Respondent.
18. Therefore, they argue that in view of these apparent defects the pleading constituting Paragraphs 14 and 15 should be struck out for non-compliance with Section 208(a) of the Organic Law.
19. In my view paragraphs 14 and 15 of the Petition are pleaded with sufficient and relevant facts as required by section 208(a) of the Organic Law. Section 208(a) of the Organic Law only requires material facts to be pleaded and not the evidence which would drive those evidence. In my view the objection is raising issues relating to the details of the family and tribal relationship of the first respondent and the returning officer. Details of the family and tribal relationship are matters of evidence. Evidence cannot be pleaded in a Petition. This is the Law as stated in the case of Holloway.v.Ivarato. This ground is totally misconceived and must be dismissed.
20. Paragraph 16 of the Petition questions the actions and conduct of the Returning Officer. The respondents say that when taken individually or collectively this paragraph cannot establish any errors or omissions alleged for the following reasons:-
21. The pleaded allegation raises issues relating to correctness of the common roll and the National Court is prohibited by Section 214 of the Organic Law to make enquiries into the correctness of the common roll.
22. The objector argues that a Returning Officer is authorized by the sections 113 and 118 of the Organic Law, to determine polling schedules showing anticipated dates and times, as well as to appoint such persons who would be Polling Officials to preside at individual polling booths. As such it is argued that the paragraphs fail to show any errors or omissions on the part of the Returning officer; even if there were some errors or omissions by the Returning Officer in the exercise of his powers under the Organic Law, this paragraph is so vague and lacks clarity as to the particulars of any errors or omissions and how errors or omissions would affect the election results;
23. In my view the whole of Paragraph 16 of the Petition relates to the overall actions and conduct of the Returning Officer in the whole conduct of the election process ie, from pre-polling to polling and scrutiny stages.
24. The pleadings clearly raises issues relating to John Harisol's conduct. It says that the Returning Officer was biased towards the First Respondent and therefore schemed a number of different strategies at different stages of the election process to give the First Respondent an unfair advantage over the other candidates including the Petitioner.
25. Paragraph 16(i) of the Petition alleges that the Returning Officer directly and deliberately inflated the elector numbers in the villages of the First Respondent in Injip 1& Injip 2 polling places. The electoral roll figures in that were inflated from 2300 in 2007 to nearly 6000 electors in 2012.
26. This pleadings may perhaps be questioning the correctness of the electoral roll. But when it is read together with the rest of the allegations made in Paragraphs 16, the pleadings question the conduct of the Returning Officer in trying to devise ways that would give an unfair advantage to the First Respondent. I see it as basically providing the factual basis for alleging that the Returning Officer was biased towards the First Respondent. In my view this paragraph of the Petition sufficiently complies with the requirements of pleading sufficient material facts pursuant to section 208(a) of the Organic Law The objection as it is must be dismissed.
27. Paragraph 16(ii) of the Petition pleads the conduct and actions of the Returning Officer in refusing to recognise and engage the officially approved and sanctioned polling officials and handpicked his own team of polling officials who are known relatives of the First Respondent.
28. I view this pleading as clearly demonstrating the actions and conduct of the Returning Officer which were actuated by malice and bad faith in refusing to recognise and engage officially sanctioned and approved polling officials who were appointed after a proper and transparent screening process to conduct the election.
29. Section 113 of the Organic Law provides for the Polling Schedule and has no relevance or application on appointment and engagement of polling officials. In any case, section 113 of the Organic Law starts with the opening phrase, "subject to the direction of the Electoral Commissioner". This means that the Returning Officer is required to follow the directions of the Electoral Commission and in this allegation, the Retuning Officer refused to recognise and engage the officially approved and sanctioned by the Electoral Commission. Therefore section 113 of the Organic Law has no application here.
30. Section 118 of the Organic Law provides that, Returning Officer can make arrangements such as appointing polling officials only on one condition. That is if on the day of nomination the proceedings stand adjourned to the commencement of the polling but this situation never arose here so the Returning Officer could not invoke the powers vested in him by section 118 of the Organic Law.
31. This pleading is very clear and the facts demonstrate clearly that the Returning Officer refused to recognise and engage polling officials who were appointed by the Electoral Commission after a proper screening process to perform the roles and functions of polling officials. In my view the pleadings here satisfy the requirements of section 208(a) of the Organic Law and I would dismiss this ground of objection.
as regards sub paragraphs 16(iii) – (viii)
32. The objector argues that specific material facts are not pleaded in respect of each of the sub paragraphs of Paragraph 16 of the Petition as follows:-
(i) the dates and times when the two lawful written directives were issued by the Electoral Commissioner are not pleaded;
(ii) the particulars of dates and times the returning officer allegedly issued by the Electoral Commissioner are not pleaded;
(iii) the dates and times the Returning Officer caused to be counted the seven (7) alleged disputed boxes are not pleaded
(iv) the date and time Returning officer allegedly stated in public and through the print media that he would not comply or follow the Electoral Commissioner's directives are not pleaded.
Therefore, the first and third respondent argue that the pleadings constituting Paragraph 16 sub paragraphs (i) – (viii) be struck out for non-compliance with Sections 208(a) of the Organic Law.
In relation to paragraph 16, subparagraphs 16(iii) and (viii) of the Petition, the Petitioner on the other hand argues that the pleading is sufficiently clear and sets out in a clearer fashion what the thrust of the allegations are. He argues that paragraph 16 clearly puts the Respondents on notice what they have to meet at the trial and for the Court to see with clarity the issues involved.
In my view the pleadings clearly satisfy the requirement of section 208(a) of the Organic Law and the objection is dismissed.
The issue of when the two lawful directives were issued in terms of dates and times is clearly matter for evidence. The Petitioner
pleads that these two lawful directives were issued by the Electoral Commissioner in writing and therefore when the two written directives
are tendered in the trial, the date of the directives should be ascertained. This is a matter for evidence and evidence cannot be
pleaded in an Election Petition.
In my view the contents of the Directives are clearly pleaded and as Justice Cannings said in Wingti.v.Rawali the Respondents cannot come to court and say that they are not clear about the issues and play dumb over these vital issues.
In fact I find that in sub-paragraph 16(v) one of the written directives was issued on 20th July, 2012 in which the Electoral Commissioner gave directives which are pleaded in sufficient detail to give the opposing parties to prepare their case.
In my view all these pleadings from paragraphs 13 to 16 of the Petition adequately and sufficiently demonstrate that the Returning Officer was biased and had a vested interest to make the First Respondent a winner.
This objection taken to paragraph 16 of the Petition is herby dismissed as having no merit.
Second (2nd)Ground of the Petition: Errors and Ommissions.
33. The second ground pleaded in the Petition raises allegations that the ballot papers were hijacked by illegally appointed polling officials and there were errors and omissions conducted during the pre-polling preparation.
34. Regarding Paragraph 18 of the Petition, the grounds of objection under Paragraph 3.1 is adopted and relied on as if it were pleaded here.
35. The respondents state that Paragraphs 19 – 20 of the Petition when taken individually or collectively insufficient facts are pleaded to constitute an error or omission under Section 218(1) of the Organic Law for the following reasons:-
36. The pleading are too vague and lack clarity as to where the Candidates and Scrutineers enquired with the Returning
37. Officer about a pre-count of ballot papers and names of Candidates and Scrutineers who enquired are not stated.
38. There is no pleading on how that alleged error or omission regarding pre-count of ballot papers would affect the result of the election.
39. In my view Paragraph 18 of the Petition pleads material and relevant facts as required by section 208(a) of the Organic Law.
40. Paragraph 19-20 of the Petition clearly demonstrates the bias and unfair conduct and actions of the Returning Officer in not conducting a pre-count of ballot papers. The pleading clearly demonstrates a biased behaviour of the Returning Officer in not conducting a fair and democratic election.
41. The second and third respondents refer paragraphs 19 and 20 of the Petition. They say that in isolation it is so badly pleaded that it cannot affect result of the election. In my view paragraphs cannot be read in isolation from each other. All these paragraphs rely on each other and together they a build up the ground constituting errors and omissions . When viewed in totality they constitute the ground of errors and omissions under section 218 of the Organic Law and how the result was affected.
42. The objector states in Paragraphs 21 – 26 of the Petition and generally as regards to the whole of those paragraphs that the facts pleaded when considered individually or even collectively cannot constitute an error or omission under Section 218 of the Organic Law for the following reasons:-
(i) these paragraphs on the facts pleaded are not substantiated by the Organic Law when Sections 18, 19 and 118 are read together empowers the Returning Officer to determine Polling Officials, if errors or omissions did exist the facts as pleaded are insufficient to establish a ground for voiding an election under Section 218 of the Organic Law;
(ii) The test under Section 218 of the Organic Law to vitiate an election on immaterial errors is whether the error or omission is likely to affect the result, as pleaded the facts do not state and show the result was affected.
43. Therefore, in view of the above defects in the pleading, constituting Paragraphs 18 – 26 should be struck out.
44. Paragraphs 21-26 of the Petition relates to the conduct and actions of the Returning Officer in refusing to recognise and engage the officially appointed and sanctioned polling officials and personally handpicking persons from the streets to conduct polling and these purported polling officials approved by the Returning Officer and not Electoral Commission or officials approved by the commission who conducted the polling in the Nipa Kutubu Open Electorate.
45. The Respondents state that the Petitioner should state the law beside the allegation but in a Petition as required by section 208(a) of the Organic Law, you only the material facts that constitute grounds to invalidate or nullify the election are required to be clearly pleaded.
46. The facts stated in each sentence and paragraph of the Petition all constitute a ground and in my view each paragraph in the petition must be read as a whole to constitute a ground. The ground under these paragraphs is errors and omissions under section 218 of the Organic Law.
47. The pleadings are set out in paragraphs under different sub-headings to indicate clearly to the Court and the opposing parties the factual basis and the precise factual and legal issues involved.
48. These objections are in my view are in my view nit-picking technical arguments", which I find have no merits and should be dismissed.
Third (3rd) Ground of the Petition - Polling
49. According to the Third (3rd) ground of the Petition the Petitioner alleges the polling in all polling stations were hijacked by handpicked polling Officials and ballots papers were marked in favour of the First Respondent without electors exercising their constitutional and democratic right to vote.
50. Paragraphs 27 – 35 when taken individually or even collectively are in its entirety confusing and misleading in that, Paragraphs 13 – 26 alleges errors and omissions under Sections 218 of the Organic Law and Paragraphs 27 – 35 appear to allege illegal practices under Sections 215(3) of the Organic Law.
51. Furthermore and generally Paragraphs 27 – 35 of the Petition when taken individually or collectively insufficient material and relevant facts are pleaded that would show illegal practices under Sections 215(3) of the Organic Law for the following reasons:-
52. Therefore, in view of the above defects in the pleadings constituting Paragraphs 27 – 35, the whole petition should be struck out for non-compliance with Section 208(a) of the Organic Law.
53. There is no I cannot find pleading that is misleading and confusing as the facts pleaded in paragraphs 27 to 35 of the Petition. The pleadings as I find them relate the facts and events which occurred during the polling period. It does not relate to the pre-polling or scrutiny of votes but only related to the polling process.
54. The pleading from paragraphs 27 to 35 of the Petition show how the handpicked polling officials went about conducting the polling as schemed by the Returning Officer. I find That the pleadings raise issues which are very serious that in my view a proper trial should be conducted to determine them.
55. The pleading is crystal clear and specific in that 15 polling stations were the polling where the unauthorised and illegally appointed polling officials hijacked the ballot papers and marked it for the First Respondent as schemed and orchestrated by the Returning Officer. The names of the witnesses who witnessed what transpired are also named for each polling area.
56. I find that there are no confusing pleading nor do I find pleadings that lacking clarity and is misleading.
57. The subsequent paragraphs after paragraph 35 of the Petition pleads seven(7) ballot boxes because of the manner in which polling was conducted. The Electoral Commission gave directive to the Returning Officer not to subject these 7 ballot boxes to scrutiny and count 7 ballot boxes which the in the Electoral Commissioner's view was affected by illegal practices and errors and omissions. There is no allegation that is misleading and confusing.
58. The allegations are clearly and concisely pleaded in chronological sequence and under different sub-headings in a logical sequence and I find them to be pleaded in a coherent and cohesive manner giving the Court and the opposing party to see with clarity the precise facts and legal issues involved.
59. The Respondents contend that paragraphs 27-35 of the Petition plead insufficient facts in that the polling officials alleged to be not duly appointed engaged and lawfully authorised are not pleaded. How can their names be pleaded when they are persons from the street appointed by the Returning Officer. Some of the persons known to electors are named, such as Pius Sikap in paragraph 32, Ronald Mala in paragraph 33 and John Alop in paragraph 34 of the Petition.
60. The names of the persons who witnessed some of the polling places where the hijacking of polling places are named as witnesses in paragraph 30 of the Petition.
61. The issue of whether Security Personal were in attendance is not relevant and not pleaded but the Respondents are not precluded from calling them as witnesses in defence of their case and they suffer no prejudice in not pleading the presence of security personnel.
62. The names of electors who were denied their right to vote are in the thousands and the Respondents are asking the Petitioner to name them all in the Petition. These are matters for evidence during trial and the Court can be guided by section 217 of the Organic Law.
63. It was argued that the pleadings in paragraphs 27 to 35 of the Petition satisfies the requirements of section 208(a) of the Organic Law and that the objections which are not only 'nit-picking' but unnecessarily adding further requirements to section 208(a) of the Organic Law not intended by the legislature must be dismissed.
64. According to the fourth (4th) ground of the Petition, the Petitioner alleges errors and omissions by the Returning Officer during the Scrutiny process.
65. Objection was taken to Paragraphs 36 and 37 of the Petition. The objectors state that when considered together insufficient material facts are pleaded in that;
(i) names of other Candidates apart from the Petitioner who petitioned the Electoral Commissioner is not pleaded;
(ii) names of the scrutineers of the number of Candidates and concerned individuals who provide witnesses statements against alleged illegal practices conducted in those alleged 25 polling stations are not pleaded;
(iii) dates when Candidates petitioned the Electoral Commissioner regarding alleged hijacking of polling are not pleaded;
(iv) as there are insufficient facts pleaded it is not clear procedures under Sections 153A of the Organic Law were followed in raising objections to the exclusion of those ballot boxes from (ii) and those 25 polling stations.
66. Therefore, in view of the above defects in the pleadings constituting Paragraphs 36 and 37, they be struck out for non-compliance with Section 208(a) of the Organic Law.
67. In my view these paragraphs 36 and 37 of the Petition when considered together satisfy the requirement of section 208(a) of the Organic Law in that material and facts have been pleaded with sufficient particularity to enable the Court and the opposing party the precise factual and legal issues involved.
68. What the respondents submit as lacking is evidence. The allegation pleaded in paragraphs 36 and 37 relate to the scrutiny process and the material facts giving rise to them in my view are pleaded with sufficient particularity.
69. The names of other candidates can be ascertained from the Petition addressed to the Electoral Commissioner. Those are matters of evidence and evidence cannot be pleaded.
70. There is no need to plead facts to show whether the procedure under section 153A of the Organic Law were followed in the objections because the objections were not made to the Returning Officer but made to the Electoral Commissioner by-passing the Returning Officer because he was alleged to be biased that the First Respondent and would not given them a fair hearing.
71. The date in which the Electoral Commissioner was petitioned can be ascertained from the Petition. As long as the material fact that the Electoral Commissioner was petitioned by the candidates to decide on the disputed ballot boxes, it is sufficient compliance of the requirement of section 208(a) of the Organic Law because whether section 153A was complied with or not is a matter of substantive argument at trial.
72. As regards to Paragraph 38 – 41of the Petition insufficient materials facts are pleaded in that:-
(i) Particularly Paragraph 38 – 41 do not plead facts but evidence as quotations from letters written by the First Respondent are cited.
(ii) if there was some defiance of directive from the Electoral Commissioner as to the alleged disputed seven (7) boxes so as to constitute an error or omission under Section 218 of the Organic Law that relevant provision is not pleaded;
(iii) date upon which the alleged lawful directive was defied is not pleaded;
(iv) date on which the Returning Officer engaged in an argument with Mr. Ray William as to the stripping off the numbers from the progressive tallies of Candidates is not pleaded;
(v) it is not pleaded by the Petitioner that the act allegedly committed had a likely effect on the results of the election. The first respondent says that these are defects which should have been pleaded but they were not.
73. Therefore, in view of the above defects, in the pleadings constituting Paragraphs 38 – 41, those paragraphs be struck out for non-compliance with Section 208(a) of the Organic Law.
74. In relation to paragraph 38-41 of the Petition, the facts pleaded are sufficient and satisfies the requirement of section 208(a) of the Organic Law.
75. The quotations of the letters as pleaded are not evidence but quoted to demonstrate the seriousness and effect of the Directives of the Electoral Commissioner and the defiant actions of the Returning officer who is required by law to follow the Electoral Commissioners directives.
76. It was pleaded to demonstrate the ill will and bad motive of the Returning Officer in not complying with the Directive of the Electoral Commissioner and to bolster the allegation that the Returning Officer was biased and had one motive and that was to make the First Respondent winner even to the extent of going to jail as pleaded in paragraph forty( 40) of the Petition.
77. There is no need to plead in every paragraph the relevant provisions of law that is alleged to be breached. The requirement of section 208(a) of the Organic Law is to state at the end of each paragraph that as a result of the alleged act of illegal practice or errors and omissions the result is likely to be affected. Such a concluding statement that the result was in fact affected or likely to be affected can be made at the end of a ground of the Petition and not necessarily after every paragraph.
78. The whole grounds in the Petition must be read as a whole and not in a microscopic manner on each Paragraph. To plead every paragraph in the way advocated by the first respondent is in my view nit picking very minor details.
79. Regarding Paragraphs 42 and 43 of the Petition the pleadings constituting those paragraphs do not consist of sufficient material facts in that:-
(i) the Petitioner pleads certain tables of results which are evidence and does not constitutes facts;
(ii) illegal practice is merely mentioned without the relevant provision of the Organic Law being pleaded to substantiate the allegations;
(iii) the pleading of illegal practice is a mere conclusion pleaded when the preceding Paragraphs 27 – 35 of the Petition have not pleaded the relevant and materials facts disclosing illegal practices as required under Section 215(3) of the Organic Law.
Therefore, Paragraphs 42 and 43 of the Petition states evidence which does not constitute facts and so be struck out.
80. Paragraphs 42 to 43 of the Petition constitute material and relevant facts as required by section 208(a) of the Organic Law. The table of results is are not evidence but material facts to demonstrate to the Court and the opposing parties the names of the seven specific polling places and the number of votes affected in each polling place by illegal practice as directed by the Electoral Commissioner in his directive to the Returning Officer. It is important to show the number of votes affected to show how the result is affected or likely to be affected.
81. The allegation of illegal practice is not a mere conclusion pleaded. It is the basis stated by the Electoral Commissioner for directing the Returning Officer to exclude the 7 ballot boxes from scrutiny and to remove or strip the 10,379 primary votes from the progressive tally.
82. As to Paragraphs 42 – 52 of the Petition pleading regarding the distribution of the votes from the alleged seven (7) disputed boxes cannot be made out for the following:-
Therefore, in view of the above defects in the pleading constitutes Paragraphs 44 – 52 be struck out for non-compliance with Section 208(a) of the Organic Law.
83. Paragraphs 42 to 52 of the Petition, there is no need to actually show how the votes from the 7 alleged disputed boxes were distributed to each candidate to show how the result was affected or likely to be affected. It is sufficient to show the total number of votes affected and demonstrate it against the difference of votes between the winner and the runner-up and or the winning margin.
84. Paragraphs 46 and 47 are obvious conclusions of fact drawn from the preceding facts and state the basis for the succeeding paragraphs of the Petition.
85. I find that Paragraphs 44 to 52 of the Petition are well pleaded and puts the allegations in a systematic and coherent fashion. They set out clearly the issues involved for the Court and the opposing parties to prepare their case. I do not see anything wrong in these pleadings.
86. As regards to Paragraphs 53 – 57 of the Petition when taken individually or collectively insufficient facts are pleaded that the ground cannot be made out:-
(i) date as to appointment of Acting Returning Officer not pleaded;
(ii) date of Electoral Commissioner's final warning to Acting Returning Officer not pleaded;
(iii) particularly Paragraph 56 of the petition is constituted by evidence as quotations from a letter is cited as opposed to pleading of facts.
87. Therefore, in view of the above defects in the pleading constitutes Paragraph 56 -57 they be struck out for non-compliance with Section 208(a) of the Organic Law.
88. I find that in paragraphs 53 to 57 of the Petition, the facts which are pleaded comply with the requirements of section 208(a) of the Organic Law.
89. I find that the pleadings in paragraphs 53 to 57 of the Petition, state what I consider to be essential and material facts that constitute this ground. Matters such as dates of events are not facts in issue and are matters of evidence which can be deduced from documentary evidence such as letters.
90. I find that Paragraph 56 of the Petition is not evidence but restating the contents of a directive from the Electoral Commission to demonstrate the seriousness and effect and the need for compliance of the Electoral Commissioner's directive. This is perfect pleading of a directive that one fails to implement when he is required by law to give effect to.
G Fifth (5) Ground of the Petition- Errors and Ommissions prior to declaration.
91. According to the fifth ground of the Petition, the Petitioner alleges errors and omissions prior to and during the declaration.
92. As regards to Paragraph 58 of the Petition the Petitioner pleads his assumption or opinion when he stated that " The Election Manager and Acting Returning Officer brought the count result, albeit defective and flawed" and as such that paragraph be struck out for non-compliance with Section 208(a) of the Organic Law.
93. Regarding Paragraph 59 and 60 of the Petition the pleadings constituting that paragraph does not disclose material facts as to:-
(i) dates when those letters of objection were written;
(ii) other Candidates who wrote letters arguing as to the results being defective are, do not have their names pleaded.
94. Therefore in view of the apparent defect the pleading constituting Paragraph 59 and 60 be struck out for non-compliance with Section 208(a) of the Organic Law.
95. I find that paragraph in the pleadings in paragraph 58 of the Petition, to be sufficient pleading of material facts and are not an assumptions or opinion as these paragraph follows directly from the pleadings in the preceding paragraphs to the scrutiny of votes and constant defiance of lawful directives by the Returning Officer.
96. What the Respondents say is lacking or deficient in paragraphs 59-60 of the Petition are matters of evidence and cannot be pleaded in the Petition. The pleadings set the foundation for evidence to be led or adduced.
97. I find that the pleadings in paragraphs 59-60 of the Petition satisfy the requirements of section 208(a) of the Organic Law.
98. The objector says that Paragraphs 58, 59, 60 and 62 are assumptions and conclusions drawn by the Petitioner and upon the facts pleaded do not disclose a ground which could be sustained.
99. Therefore, the first respondent supported by the Electoral Commission argue that in view of the apparent defect the pleadings constituting Paragraphs 58, 59, 69 and 62 be struck out for non-compliance with Section 208(a) of the Organic Law.
100. I find that paragraphs 58,59, 60 and 62 of the Petition, are not assumptions and conclusions of fact but are very relevant and material facts that demonstrate clearly the errors and omissions made by the Electoral Commission and its officers in the manner they declared the winner.
101. I find that these paragraphs contain pleadings that satisfy the requirement of section 208(a) of the Organic Law.
102. As regards to Paragraph 70 of the Petition the Petitioner is pleading evidence and not facts when he states a table of results and so this paragraph should be struck out for non- compliance to Section 208(a) of the Organic Law.
103. I find that in paragraph 70 of the Petition, the pleading does not contain evidence but relevant and material facts in a table format to demonstrate the error in the calculation of votes striped from the total count or tally.
104. These pleadings in my view satisfy the requirement under section 208(a) of the Organic Law.
105. As to Paragraph 71 of the Petition the Petitioner pleads his opinion or conclusion and so be struck out.
106. As to Paragraphs 73 and 74 of the Petition the pleadings disclose a conclusion or opinion made by the Petitioner when calculation were made of possible/likely results as shown in the table. The objector argues that these are clear defects in the pleadings.
107. Therefore, in view of the apparent defect the pleading constituting Paragraphs 70, 71,73 and 74 should be struck out for non-compliance with Section 208(a) of the Organic Law.
108. Paragraphs 71-74 are related as pleadings and they are based on the Petitioners own calculations which is not based on any pleaded facts in the preceding paragraphs indicating actual votes distribution from those seven (7) alleged disputed boxes.
109. Therefore, it was argued that in view of the apparent defects the pleading constituting these Paragraphs 71-74 be struck out for non-compliance with Section 208(a) of the Organic Law.
110. I therefore find that the pleadings in paragraphs 71 to 74 of the Petition are not opinions. Nor are they conclusions. These are pleadings based on the preceding facts which are pleaded in logical sequence and in coherent fashion. In my view they form the foundational basis for these pleadings.
111. These pleadings put into perspective the correct result to have arrived at if it was not for the error and omissions of the Electoral Commission and its officers.
112. It was argued by the first respondent that in regards to Paragraphs 86,87 and 89 it is improperly pleaded in a confusing and incoherent manner where provisions of the Organic Law alleging illegal practices are all lumped up together and are not properly pleaded with the actual facts in the preceding paragraphs.
113. Therefore, the first respondent claims these as apparent defects in the pleadings constituting Paragraphs 86,87 and 89 they be struck out for non-compliance with Section 208(a) of the Organic Law
114. The first respondent argues that the pleadings in paragraphs 86 to 89 of the Petition clearly satisfy the requirement of section 208(a) of the Organic Law. He argues that the paragraphs on illegal practices are identified and put together under the ground of illegal practices so as to clearly indicate to the Court and the opposing parties the factual basis of illegal practices and the issues involved to enable them to prepare their case.
115. Although Section 110 of the Criminal Code is pleaded in Paragraphs 88 and 89 as a basis of alleging illegal practice the Petitioner has not pleaded sufficient material facts to show:-
(i) names of persons who committed the illegal practice,
(ii) dates when the illegal practices were committed.
(iii) the result is likely to be affected by the illegal practice alleged,
(iv) that would be just that the Second Respondent be not duly elected.
116. Therefore, in view of the apparent defects the pleadings constituting Paragraphs 88 and 89 be struck out for non-compliance with Section 208(a) of the Organic Law.
117. In relation to paragraphs 88 and 89 of the Petition, the preceding paragraphs when read as a whole would provide the factual basis to see that paragraphs 88 and 89 of the Petition clearly satisfy the requirement of section 208(a) of the Organic Law.
118. The first respondent argues that in Paragraphs 91 of the Petition the Petitioner relies on Section 218(i) of the Organic Law and alleges errors and omissions against the Returning Officer, Election manager and Electoral Commission, however, the provisions cited is incorrect and does not exist within the Organic Law.
119. If the Petitioner claims that to be a typing error then it cannot be amended and is so fatal.
120. Therefore, in view of the apparent defect the pleading constituting Paragraph 91 be struck out for non-compliance with Section 208(a) of the Organic Law.
121. The petitioner argues that paragraphs 91 of the Petition clearly relies on section 218(1) of the Organic Law. He submits that there is no wrong provision cited and section 218(1) does exist within the Organic Law.
122. The Respondents cannot pretend to play dumb as Justice Cannings said in Wingti.v.Rawali(supra). In the Wingti .v.Rawali case, Justice Cannings said;
"Secondly, even if it is accepted that the provision of the Organic Law being relied on should as a general practice be specifically referred to, it is not fatal to the petition if an incorrect provision is referred to or if incorrect words are inserted"
123. I accept the petitioner's submission that although section 218 (i) of the Organic Law is interpreted as being incorrect or wrongly cited, it is not fatal to the Petition as stated by Justice Cannings in the Wingti .v.Rawali (supra) case cited above.
124. Counsel for the First respondent submitted that the relevant provisions of the Organic Law or its Regulations allegedly breached by the members of the Electoral Commission or Polling Officials or third parties are not pleaded beside each of the facts constituting the ground of illegal practices and errors and omissions. This was the main trust of the submission by the First Respondent's Counsel and reiterated it a number of times.
125. With respect to learned Counsel, this submission is clearly misconceived and has no basis in law. It is in fact a misstatement of the law. The law is settled in our jurisdiction. In an election petition, as required by section 208(a) of the Organic Law, the Petitioner is only required to state the material facts and not law. There is a long line of Judicial Authorities which affirm this position. In the case of Alfred Manase.v. Don Poyle (14th April 2008) EP 3 of 2007, His Honour Justice Lay said at page 7, paragraph 2 of his judgement as follows:
"There is no requirement to plead the law; SC590(1998) Dick Mune.v.Anderson Agiru &Ors; Amet CJ, Woods J and Injia J.J. per Wood's J(Injia J, as he then was disagreeing on that point). In the earlier National Court case of Albert Karo .v Lady Carol Kidu &ors[1997]PNGLR 28 at48 Injia J, as he then was, said "where the Petitioner relies on the breach of a statutory or constitutional duty,
by an electoral official, then the provision must be set out beside the alleged facts". His Honour cites the passage at page 102 of Holloway .v.Ivarato(supra) as authority for the proposition. With the greatest respect to his Honour my view is that passage in Holloway.v.Ivarato does not support the proposition. It is only saying that if the section of the enactment had been pleaded without the facts it would have breached Section 208(a) of the Organic Law on Elections. In my view it is not saying that the law and the facts have to be pleaded together. My respectful view is that any requirement to plead the law would be quite contrary to the intent of section 222 and I concur with those authorities holding that it is not necessary to plead the law. Indeed I would go further and say there is no more requirement to plead the law than there is to plead the evidence."
126. It is therefore my view that the submission made by counsel for the First Respondent Counsel is misconception an is herby rejected by this Court.
127. Counsel for the First Respondent submitted in Court that, paragraphs 86 to 92 of the Petition makes alternative pleadings. He further submitted that this "perceived" alternative pleading, creates inherent contradictions and confusions and that the Petitioner should have chosen either to pursue his case for illegal practices under section 215(3) or on the errors and omissions under section 218(1) of the Organic Law and he cannot have it both ways.
128. Whilst I am clearly of the view that in an election Petition,a petitioner is not allowed to make pleadings in the alternative or you cannot have alternative pleadings, I am of the view that there is no alternative pleading in this Petition. When the Court considers very carefully, the pleadings under paragraphs 86 to 92 of the Petition it is very clear that the pleadings are concise, coherent and unambiguous. There are no inherent contradictions or confusions in the pleading.
129. The pleadings clearly establish two grounds of the Petition. These are illegal Practices under section 215 (3) and Errors & Omissions under section 218(1) of the Organic Law. These are two separate, distinct and triable issues on their own and which are capable of nullifying or invalidating the election. As Justice Kirriwom said in the case of Micah v Ling Stucky (supra) that, "each ground of a Petition unlike in ordinary civil litigation is a triable issue on its own and is capable of determining the success or demise of the Petition".
130. There is nothing wrong for the Petitioner to rely on both grounds of illegal practices and errors and omissions in a Petition. In relying on this ground on alternative pleadings Counsel for the Respondent has relied on the cases of Robert Kapaol .v. Philemon Embel (2003)SC737 and Simon Sanagke .v. William Duma Ors ( November 2012) EP No 10&11 of 2012.and tried to argue that the principles of law applied in those cases are applicable to the present case. But the facts in the pleadings in those cases are different to this case.
131. In the case of Kopaol.v.Embel, the Petitioner on the one hand accused the polling officials of not conducting polling at Mt Bosavi LLG area, which is a complaint of official irregularity or error or omission under section 218 of the Organic Law, whilst at the same time the Petitioner contradicted himself by saying there was polling in the area but in some polling places the electoral officials committed illegal acts by stuffing ballot boxes with illegally marked ballot papers. This was a clear case of a pleading that was a mishmash of inconsistency, contradiction and alternative pleadings that clouded the cogency of the pleadings.
132. In the case of Sanangke.v.Duma the Petitioner's on the one hand pleaded that the Returning Officer fell into error, omitted to carry out his duties and acted unlawfully in rejecting 21 ballot boxes. The Petitioner further pleaded that on the other hand and in the alternative the rejection of the 21 ballot boxes by the Returning Officer was in order because the 21 boxes were tainted by errors and omissions and illegal practices on the part of the Electoral Commission's polling officials and security force members. This was a clear case of alternative pleading.
133. In the present case, there is no such case of alternative pleadings as the pleadings in the Kapoal and Sanangke cases demonstrate. In this Petition the pleadings are clear, coherent, complete and unambiguous. The pleadings clearly establish two separate and distinct grounds of Illegal Practices and Errors & Omissions which are not pleaded in the alternative but as separate grounds on their own.
Relevant and Material Facts Lacking in Grounds of Illegal Practices .
134. Counsel for the First Respondent has submitted repeatedly and emphatically stated in his oral and written submission( in the
entire body of his submission) that under section 215(3) of Organic Law, the Petitioner apart from pleading the relevant material facts constituting the illegal practices failed to plead the following
facts,
(i) That the result of the elections were likely to be affected.
(ii) To do that, it is necessary to plead the relevant number of votes secured by the winner and the runner up to determine whether or not the result has or would have been affected.
(iii) In the context of the new preferential voting system under the Organic Law, it is necessary also to set out the" winning margin" which is determined as the "absolute majority vote",(which is determined as 50%+1 of votes remaining in count) and the total votes scored by the winner.
(iv) And it must also be pleaded why and how it is just that the First Respondent ought to be declared as not duly elected or his election be declared void.
(v) It must also be pleaded that the illegal practice was either committed by the successful candidate by the successful candidate or committed by another person but with the winner's knowledge or authority.
135. I find that in making the above submission, Counsel for the First Respondent has misled the Court in saying that the above facts are deficient in the Petition, when the Petition in the form pleaded and filed clearly pleads the above facts. This conclusion is reached because:
(i) The fact about the result of the election likely to be affected is already pleaded in paragraphs 90 and 92 of the Petition.
(ii) The fact about the relevant number of votes secured by the winner and runner up is pleaded in paragraph 6 and 7 of the Petition. in unambiguous terms.
(iii) The fact about stating the winning margin is clearly pleaded in paragraphs 8,9 10 and 11 of the Petition.
(iv) The fact about stating how and why it is just that the Respondent ought to be declared as not duly elected or his election be declared void. It's a point of submission at the end of the trial after all evidence has been adduced.
(v) The fact about pleading that the illegal practice was either committed by the by the successful candidate or committed by another person but with the winner's knowledge or authority, is not necessary because the allegation of illegal practice pleaded in this Petition is under section 215(3)(b) and not section 215(3)(a) of the Organic Law in that the alleged illegal practices have been committed without the knowledge and authority of the candidate,. Therefore it is not necessary to show that the alleged illegal practices were committed with the knowledge and authority of the winning candidate.
136. I therefore conclude that the submission by the First Respondent has no basis and lack merit, as the pleadings in the Petition adequately cover the facts which he claims are deficient. I will over rule the first respondent on this aspect in his learned submissions.
Relevant and Material Facts Lacking in Grounds of Errors & Omissions.
137. Counsel for the First Respondent has repeatedly and emphatically emphasised in his oral and written submission in the entire
body of his submission that under section 218(1) of Organic Law, the Petitioner apart from pleading the relevant material facts constituting the Errors & Omissions failed to plead the following
facts;
(i) Material facts constituting the breach of statutory obligations or duties by the Electoral Commission and its officials must be pleaded in the Petition.
(ii) The relevant provisions allegedly breached must also be stated for clarity beside the facts.
(iii) The total number of votes scored by the winner and runner up respectively, and the winning margin between them must be stated.
(iv) The total number of affected votes by the errors and omissions must be stated.
(v) It must also be stated and shown by the pleading how the results were actually affected as opposed to likely to be affected.
138. In making the above submission, Counsel for the First Respondent has in my view misled the Court in saying that the above facts are deficient in the Petition, when the Petition in the form pleaded and filed clearly pleads the above facts. We say this because;
(i) All relevant and material facts constituting the ground of errors and omissions is clearly pleaded in the body of the Petition from paragraph 13 to 85 of the Petition..
(ii) There is no requirement to plead the relevant provisions allegedly breached beside the facts (see Manase .v.Poylye.
(iii) The total number of votes scored by the winner and runner up is pleaded in paragraphs 6 and 7 of the Petition and the winning margin is also pleaded in paragraphs 8,9, 10 and 11 of the Petition.
(iv) The total number of votes affected by Errors and Omissions is pleaded in paragraphs 84, 85 and 91 of the Petition.
(v) The fact about showing how the results were actually affected is pleaded in paragraphs 85 and 91 of the Petition.
139. It is therefore obvious that the submission by the First Respondents has no basis, as the pleadings in the Petition adequately covers the facts which he claims are deficient.
The Effect of Striking out one Ground and its Resultant Effect on the other Ground of the Petition.
140. Counsel for the First Respondent submitted that, the pleadings on the grounds of illegal practices under section 215 of the Organic Law are struck down than the pleadings on the basis of Errors & Omissions under section 218(1) of the Organic Law cannot survive and must suffer the same fate.
141. The effect of what Counsel submitted is that the Grounds of Errors and Omissions and Illegal Practices are like connected in a series circuit. So if there is a problem with one circuit, than the whole apparatus fails. This is not the same effect in this Petition. This is a Petition where it is like a Parallel circuit, when one of the circuit falls the other stands.
142. We say this because the grounds based on Errors & Omissions under section 218(1) of the Organic Law and Illegal Practices under section 215(3) of the Organic Law are separate distinct and triable grounds on their own and are capable of nullifying the election. These grounds have separate elements and test to be satisfied. In the Petition, when one of the grounds or allegations is struck out, the Court still has the duty to determine whether the remaining grounds of the Petition involve sufficient votes likely to affect the result pursuant to section 215(3) and which would affect the result pursuant to section218(1) of the Organic Law. In making that determination, the Court will have to determine if the Petition is still viable to proceed to trial.
143. In the case of Alfred Manase.v. Don Poyle (2008) N3341, His Honour Justice Lay held that, when one of the grounds of the Petition is struck out, the Court still had to determine whether the Petition is still viable to proceed to trial by determining whether the remaining ground of the Petition involve sufficient votes which affect or likely to affect the result. Therefore, in the present Petition the demise of one ground of the Petition will not necessarily affect the other and the Court must still consider whether there is a viable Petition.
SUMMARY
144. It is a constitutional mandate imposed upon this court that paramount consideration must be given to the dispensation of justice.
section 158(2).
145. In view of the sentiments expressed by the Supreme Court in Sauk .v.Polye and Saonu.v.Dadae and other National Court Judgments cited herein, the need for the Courts to be mindful of its duty to dispense justice cannot be overstated nor wavered.
146. It is a constitutional dictate that Courts must give paramount consideration to dispensation of justice and should be liberal in their approach in dealing with competency application.
147. The Supreme Court in Saonu .v.Dadae made these instructive comments.
" Furthermore, it is a constitutional dictate that Courts must give paramount consideration to the dispensation of justice. Section 158(2) of the Constitution provides this and the Courts are bound by this mandate. It is part of the overall exercise of judicial power granted to the Courts by the Constitution. We consider that injustice was done to the applicant when the National Court dismissed his petition because of a minor defect which was not crucial to the overall form and substance of the petition.
With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start. This is not dispensation of justice, and we consider that the National Court, in the present case, was not mindful of this important constitutional mandate."
CONCLUSION.
148. Therefore for all these reasons the Respondent's Objection to Competency is hereby dismissed in its entirety with costs and the
Petition is hereby restored to go through a full trial. I hereby order that this whole petition will now proceed to a full trial
on all the grounds. For avoidance of doubt the respondents will pay the Petitioner's costs of arguing this Objection to Competency
which will be taxed by the Registrar of the National Court.
__________________________________________________________
Mawa Lawyers: Lawyer for the Petitioner
Paul Paraka Lawyers:: Lawyer for the Hon. Jeffrey Pesab Komal
Niugini Legal Practice: Lawyer for the Electoral Commission
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