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Joseph v Kewano [2013] PGNC 312; N5152 (8 April 2013)

N5152


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO 64 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 MENDI OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS.


BETWEEN:


PASTOR ISSAC JOSEPH
Petitioner


AND


DEI KEWANO
First Respondent


AND


ANDREW TRAWEN ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent


Mendi: Kawi J
2013: 8th April


NATIONAL GENERAL ELECTIONS - Election Petition- Objection to Competency- Relevance on the need for and use of affidavit evidence in competency applications- Approaches to interpretation and application of constitutional laws-Objection to Competency of election petition dismissed with costs – full trial


Facts
An Objection was taken to the Competency of an Election Petition filed by the petitioner. The petitioner is a losing candidate in the 2012 general elections. He filed a petition disputing and challenging the election win. The winner filed an objection to the Competency of the petition. The principal grounds of objection were:


(a) errors and omissions under section 208(1) of the Organic Law.


(b) Illegal practises under section 215(3)of the Organic Law. It was argued that the Petition in the form filed, fails to strictly comply with the mandatory constitutional requirements of section 208 (a) and of the (d) of the Organic Law. In dismissing the Objection to Competency of the petition:


Held:
(1) The petitioner has pleaded sufficient relevant and material facts in compliance with the requirements of section 208 (a) of the Organic Law.


(2) Section 208 (d) of the Organic Law states only two statutory requirements that the two witnesses attesting to the petition are required to satisfy: (a) The two witnesses must attest to the petition; (b) The two attesting witnesses must state their occupation and addresses. There is no other statutory requirements.


(3) The word 'attest' means to verify and to authenticate that the filling of the Petition is true and genuine. Judges are in my view reading too much into the statutory requirements of section 208(d) of the Organic Law. By reading too much into section 208 (d) judges are importing a lot of mischievous intention and purposes never intended by Parliament.


(4) In an Objection to Competency care should be taken to rely on the use of affidavits filed by both the petitioner and the respondents. An objection to competency is a challenge to the jurisdiction of the Court. Affidavits deposing to contentious factual issues and other facts should not be used. This is because they may be adding to facts already pleaded in a petition or it may amount to amending a petition where facts pleaded in the body of the petition are deficient or lacking in material facts.


Cases Cited:


Counsel:
Mr. Paul Mawa, for the Petitioner
Mr Nicholas Tame, for the First Respondent
Mr. Harold Viyogo, for the Second and Third Respondents


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. The petitioner is the former member for Mendi open Electorate in the National Parliament from 2007-2012. He was a candidate and the runner up in the 2012 General Elections for the Mendi Open Seat, in the Southern Highlands Province.


2. The First Respondent, Honourable Dei Kewano, was declared elected as the winner on 22nd July 2012 with a total of 25,945 votes defeating the Petitioner who manage to poll a total of 25,389 votes. The First Respondent won the election winning by a difference of 278 votes. The petitioner challenges the win by the filing of an Election Petition by raising several grounds. Honourable Dei Kewano in turn responded by filing an objection to the competency of the election Petition citing section 208(a) of the Organic Law as the principal ground of objection.


GROUNDS OF THE PETITION
3. The principal grounds of the Petition are:


(a) Errors and Omissions under section 218 (1) of the Organic Law.


(b) Illegal practices under section 215 (3) of the Organic Law.


OBJECTION TO COMPETENCY


4. The First Respondent objects to the Competency of this Petition and filed a Notice of Objection to the Competency of the Petition on 08th October, 2012. The First Respondent then filed an Amended Notice of Objection on the 13th February, 2013.


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) and (d) of the Organic Law on National and Local Level Government Elections and that the Petition was served on the First Respondent, contrary to, and in breach of the requirements of Rule 6 of the National Court Election Petition Rules, 2002 (as Amended).


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(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 to or confirmed having knowledge of the content of the Petition itself apart from attesting generally to the filling of the Petition by the Petitioner.

(ii) Secondly, 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.

7. The Petitioner opposes the objections to the Competency of the Petition and argues 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 requirements of "attesting as a witness" under section 208(d) of the Organic Law.


JURISDICTIONAL BASIS


8. The Constitutional basis for raising an objection to Competency of the Petition is section 210 of the Organic Law which 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.


RELEVANT ISSUES.
9. The relevant issues this Honourable Court must resolve is:


(i) Whether the Petitioner sufficiently pleaded the material facts of the allegations of errors and or omissions, and illegal practices which affected or is likely to affect the election result for the Mendi Open Electorate in the 2012 National General Election?


(ii) Whether the Petitioner has complied with the requirements of section 208(d) of the Organic Law?


LAW APPLICABLE


10. Section 208 of the Organic Law sets out the pre-requisites or essential elements of an Election Petition. This provision stipulates:


"208. Requisites of a Petition

A petition shall:-


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

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

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

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

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

11. Section 209 of the Organic Law is also an important constitutional scheme that the Petitioner must satisfy in order for the proceedings to be heard on the Petition.


12. Section 209 of the Organic Law is as follows:


s.209 Deposit as Security for Cost.

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


13. Section 210 of the Organic Law states in no uncertain terms that a Petition shall not proceed and cannot be entertained if the mandatory constitutional requirements of both Sections 208 and Section 209 of the Organic Law are not duly complied with.


14. The interpretation, construction and application of sections 208,209 and 210 of the Organic Law by the Courts in our jurisdiction is well settled. The preponderance of judicial authority on the construction and application of these constitutional provisions in my view is importantly very critical. Counsel for the petitioner submitted that the interpretation and application of constitutional law provisions can be approached in two ways: He submitted that the two approaches are what he termed as "The Strict Approach" and the "The Liberal Approach". Due to the lack of adequate library and research facilities here in Mendi, I adopt counsel's submission on this approaches and his explanation of the principles involved.


A.The Strict Approach


15. The law on s.208 of the Organic Law is well settled in our jurisdiction. The mandatory constitutional requirements of Sections 208 and 209 of the Organic Law ("OLNLLGE") was accorded judicial blessing by the Supreme Court in the authoritative and landmark case of Biri- vs- Ninkama [1982] PNGLR 342 at 345 where in the unanimous joint judgement, the Supreme Court made these authoritative comments:


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


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


16. The Supreme Court explained the rationale behind the mandatory nature of Section 208 of the Organic Law in the case of Biri-v- Ninkama in this way:


"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with Section 208. It is not difficult to see why. An election petition is not an ordinary cause and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislator has accordingly laid down very strict provisions before they can be any challenge to the expression of the will of the majority"


17. The Supreme Court re-emphasised that if a Petition does not comply with all of the mandatory constitutional requirements of Section 208 of the Organic Law then there can be no proceedings on the petition because of Section 210 of the Organic Law.


18. Section 210 of the Organic Law is in these terms:


"s.210- No Proceedings unless requisites complied with


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


19. The Supreme Court in Amet v Yama (2010) SC 1064 fully endorsed the law on section 208 of the Organic Law established by Delba Biri v Bill Ninkama. This is what the Supreme Court said:


"32. It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of allegations relied upon. This is the underlying principle of law behind s. 208 of the Organic Law as averted to by the Supreme Court in Delba Biri.v.Bill Ninkama [1982]PNGLR at p.342.


20. These provisions dictate that the Petitioner must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent.


21. The law relating to the "nature of facts" and the "sufficiency of facts" required under Section 208(a) of the Organic Law is now well settled in this jurisdiction. As to what constitutes "facts" was settled by the Supreme Court in the authoritative case of Holloway v Ivarato [1988] PNGLR 99. The head note reads:


"The facts which must be set out under s.208(a) of the Organic Law on the National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved".


22. The facts that are required to be pleaded in a Petition have been determined by various National and Supreme Court cases. These include the cases of: Biri.v.Ninkama [1982]PNGLR 342, Holloway.v. Ivarato [1988] PNGLR 99, Agonia .v. Karo [1992] PNGLR 463, Albert Karo .v. Lady Carol Kidu [1997] PNGLR 28, Paru Aihi .v. Moi Avei (2004) N2523, Gabriel Dusava .v. Peter Waranaka (2008) N3367 and Sir Arnold Amet .v. Peter Yama (2010) SC 1064.


23. The whole purpose of pleading relevant and material facts in a Petition is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved. This was made clear in the case of Holloway .v. Ivarato, where the Court stated the following:


"The purpose of the pleadings is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved."


24. The Supreme Court in Holloway v Ivarato, comprising their Honours Kapi DCJ, Los and Hinchliffe, JJ concurred and made these important comments at p.101-102:


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


"Setting out the grounds without more does not satisfy the requirements of s.208 (a) of the Organic Law. The facts set out under s.208 (a) of the Organic law would necessarily indicate the grounds on which a petitioner relies. The facts which must be set in s.208 (a) of the Organic Law are material or relevant facts which will constitute the ground or grounds upon which an election or return may be invalidated"


"In setting out the facts they must be sufficient so as to indicate or constitute the ground which an election may be invalidated. What are sufficient facts depend on the facts alleged and the grounds those facts seek to establish.


Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved".


25. In Vagi Mae-v- Jack Genia and Electoral Commission (1992) N1105 His Honour Sheehan J made these comments:


"Section 208 (a) stipulates that particulars of facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded".


26. The law is that whilst section 208(a) of the Organic Law requires that relevant facts must be pleaded, it does not require that evidence must be pleaded in a Petition.


27. In the case of Karo-v-Kidu [1997] PNGLR 28, His Honour Injia, J (as he then was) whilst affirming the rule enunciated in Holloway-v-Ivarato said at p.44.


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


28. From the weight of the above judicial authorities, there can be no doubt in any one's mind as to the extent to which a Petitioner must go in setting out 'facts only and not the evidence'; to satisfy the mandatory constitutional requirements of section 208(a) of the Organic Law to invalidate an election.


29. In Micah .v. Stuckey & Electoral Commission [1998] PNGLR 151, Kirriwom J, stated that the requirement is to set out sufficiently the relevant and or material facts relied on to invalidate an election because:


"....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."


30. The pre-requisites set out under section 208 of the Organic Law has to be strictly complied with. Failure to comply with the mandatory constitutional requirement of section 208 of the Organic Law is fatal to the petition in accordance with section 210 of the Organic Law.
B. The Liberal Approach .


31. The other approach is what Mr Mawa termed as the liberal approach.There has been a recent trend of flexibility and departure from the strict compliance with the requirements of sections 208 and 209 of the Organic Law by the National & Supreme Courts in a significant number of judgments since Biri .v. Ninkama, such as the Supreme Court Judgement in the case of Jimson Sauk .v. Don Polye ( 2004) SC 769 763.


32. In the case of, Sauk. v. Polye, the Supreme Court held that the Courts in determining applications under section 210 of the Organic Law are entertaining lawyers who are "nit- picking" with technical and unmeritorious objections which defeats the whole purpose, intent and spirit of section 222 of the Organic Law which intended that Petitioners themselves are to file Petitions without assistance of lawyers. Section 222 of the Organic Law is in the following terms:


s.222 Counsel or Solicitor.

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.


33. In the case of Mili.v. Gaima [1997] PNGLR 645 Justice Woods made these comments:


" Section 222 of the Organic law works two ways. Whilst there should not be overdue emphasis on legalities and pleadings and strict rules of law, then also the petition itself must clearly put all parties on appropriate notice of what the complaint is all about, thus the facts on which the allegation are grounded must be clearly expressed so there is no need for complicated application of particulars."


34. In the case of Ginson Soanu .v. Bob Dadae (2004) SC763, the Supreme Court at page 6, commented on the application of construction of section 222 of the Organic Law and the involvement of lawyers in Election Petitions as follows:


" We have adverted to these matters on the basis that we considered that the Petition was intended to be drawn up by a lay person as a Petitioner having no legal background and presented to the National Court by lay persons and that is the intention of the Organic Law, until the day when the Court first allowed representation by Lawyers in an Election Petition. If we accept the intent of the legislature then all the arguments that are being raised by the Lawyers on forms and technicalities of a Petition should never be allowed to be entertained at all. And with respect, the Courts have, over the years, allowed this to happen thereby defeating the intention of the Legislature."


35. In the case of Jimson Sauk.v. Don Pomb Polye (2004) SC769, the Supreme Court in interpreting and applying section 22 of the Organic Law made the following pertinent comments on page 9 of the Judgment:


"It is obvious to us that the legislative intent is to exclude or limit professional legal involvement in the initiation and conduct of Election Petitions. Never was there any intention that this special jurisdiction of the court would end up being a game for legal eagles to play around with depending on whose instructions they were acting on."


36. The discussion of the law by the Supreme Court in Soanu .v. Dadae and Sauk v Polye has been adopted and applied by His Honour Justice Kandakasi in Steven Pirika Kamma .v. John Itanu, Andrew Trawen & Michael Laimo (2007) N3246, where he commented:


" the application of these principles have become more and more strict to the point that objections to competencies have become far too highly technical and in some cases purely nit picking to say the least. In the process, the courts at the instance of lawyers have effectively built into section 208 additional requirements in almost total disregard of the requirements of the Organic Law such as section 217 which obligates the Court to be 'guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.


The unfortunate end result of this trend and approach has been a ready defeat of many good and meritorious election petitions at the very door steps of justice. That has happened in a number of otherwise clear cases of bribery or illegal practices and errors or omissions and irregularities seriously questioning the integrity of the election process and the eventual outcome of elections. Consequently, ordinary citizens of PNG who are concerned over the integrity of the election process and the duty of the Courts to inquire into any allegations of foul play and remedy them are left to marvel at why and how the Court can prevent a petition getting to a proper hearing and a determination on its "substantial merits". It is this kind of practice which only lawyers and the Courts have become familiar with and can understand that adds to a lack of respect for the integrity of the election process and the court system because of the systems failure to properly scrutinize the election process when faced with an allegation of illegal practices or,errors or omission, or irregularities and remedy them.


I am firmly of the view that, we have come to this result because of two important failures of lawyers and their clients as well as the courts. Firstly, we have failed to give any due and proper consideration to the intention of parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of section 217 of the Organic Law. Secondly, we have failed to have a close look at the particular wording in sections 208 and 210 from which this trend has originated."


37. In the case of Benias Epe Peri. v. Nane Petrus Thomas (2005) unreported judgement –His Honour Justice Hinchliffe (as he then was) made the following comments at page 4 of the judgement:


"we are making it more and more difficult for petitions to proceed when that was not the intention of the legislature in the first place. Our legislators obviously saw a situation where the Petitioner could appear on his own Petition without a Lawyer and in fact if a Petitioner did wish to be represented by a counsel (see Section 222 of the Organic Law). Clearly the preparation on and the presentation of a petition and the subsequent court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all to turn into a nightmare"(emphasis added).


38. It should be pointed out here that not all facts need to be pleaded where such facts are known to all parties and are readily available to all parties. The authority for this proposition is Supreme Court case of Review Pursuant to Constitution Section 155(2)(b); Application by Ben Semri [2003] PGSC 21; SC 273.


39. That was an appeal from the decision of His Honour Justice Injia (as he then was) where the Supreme Court affirmed His Honour's decision. In the Supreme Court Ground 5 (1) of the consolidated review, it was alleged that the trial judge erred in law in not dismissing the pleadings appearing in paragraphs 9D(iii),10,11 and 13 of that Petition. These pleadings relate to the allegation that electoral officials failed to secure ballot box 0056 in that they failed to affix the inner and outer seals in respect of the box and that officials further erred in counting the ballot box.


40. Upon Review in the Supreme Court, the Counsel for the Applicants submitted that the trial judge erred in law in not striking out these grounds on the basis that they did not disclose sufficient material and relevant facts pursuant to s.208 (a) of the Organic Law.


41. In particular, they alleged that the grounds did not plead the name of the presiding officer and other polling officers, the names of scrutineers who objected to the counting of the ballot box, the date and the time when the presiding officer failed to call out the serial numbers of the seals.


42. In their ruling, the Supreme Court unanimously held, inter alia, that:


" In any case, we consider that the pleading in the present case is sufficient. The relevant particulars which are said to be in need of pleading were known to all parties and they are readily available to all parties from the results of scrutiny of the votes at the counting centre. We do not see how the lack of pleading of the particulars in the present case prejudiced the Applicants in the preparation and the conduct of the trial."[emphasis ours]


43. Where the grounds are sufficiently identified and where any lack of pleading of the particulars does not go to prejudice the opposing parties in the preparation and the conduct of the trial then mere lack of pleading of particulars cannot be used as a ground for an objection to competency.


44. This gives more effect to the very purpose of Section 208(a) of the Organic Law, which is clearly spelt out in the judgment in the case of Biri. v. Ninkama [1982] PNGLR 342 and Holloway .v. Ivarato [1988] PNGLR 99. This statement of law fundamentally makes allowance for the fact that the overall intention of the Organic Law which through the implication of Section 222 of the Organic Law was to enable Petitioners in person to file and argue Petitions in the court without having to use lawyers; Mune .v.Agiru [1998] SC 590; Re Application by Ben Semri [2003] PGSC 21; SC 273.


45. Also in the case of Wingti v Rawali (2008) N3285, His Honour Justice Cannings held that what is important is that the Respondents understand what they have to meet. In that case, Justice Cannings held at paragraph 42 of his judgment:


"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. If a petition makes absolutely no sense or is so verbose or the grammar and syntax is so poor that it defies comprehension or the respondents are genuinely prejudiced by not knowing what case they have to meet, then the court should seriously consider striking out the ground of the petition or the entire petition. But that is not the case here. In my view the allegations made in ground No.1 of the Petition the Respondents will know the case that is to be met. The issues are clear cut. The Respondent should not pretend that they do not understand the case they have to meet and come to court and be permitted to play dumb"


46. The Respondent in that case sought review of Justice Canning"s decision in the Supreme Court. On the hearing of the Application for Leave, His Honour Justice Injia, in his unreported decision styled Olga v.Wingti [2008] SC 938, affirmed Justice Canning's decision and held that he found no errors in His Honour's ruling.


47. In that case, the Review ground 2.4-2.7 relates to Justice Canning's refusal to dismiss paragraphs B(1), (c ), (D) and (E) of the Petition on Objection to Competency. They relate to how Mala No.2 and Korkum ballot boxes were included in the count and pleading of how the votes in those boxes affected the result of the election.


48. The trial judge agreed with the applicant's submission that it was not difficult to see the logical connection between these pleadings but said ground 1 contained serious allegations which remains to be proven by evidence at the trial. The trial judge accepted submission from the First Respondent's counsel. His Honour Chief Justice Injia, in affirming Justice Canning's decision, held, inter alia, at paragraph 20 of his judgment that:


"...I agree with the trial judge that the results of the election is a matter of evidence. Under the LPV system of vote scrutiny process, it is difficult at the outset to work out the likely result of the election in terms of votes affected, with mathematical precision and plead those figures in a Petition. These grounds have no merit."


49. Furthermore in relation to Review Grounds 2.8 to 2.10 His Honour Chief Justice Injia held at paragraphs 23 and 24 of his judgment as follows:


"23. These grounds relate to the trial judge's refusal to specify names of security force personnel, who were allegedly involved in committing illegal practices on 5th August, 2008. The judge ruled that the names of those officers would have been known to the Returning Officer and the Electoral Commission; the First Respondent would not be reasonably expected to know their names in order to plead them in the Petition.


"24.Although case authorities suggest that the Petitioner must plead the relevant facts concisely, clearly and sufficiently this may include names of alleged perpetrators who committed the illegal act or witnesses to it, I do not see any gross error in the finding and conclusion reached by the judge. This ground does not raise an important point of law which has merit".


50. The question then is: "What is a material or relevant fact for the purpose of Section 208(a) of the Organic Law?" This issue was dealt with in depth by the Supreme Court in Holloway v Ivarato. Although the Supreme Court did not interpret section 208(a) strictly, Kapi DCJ (as he then was), with whom Los J and Hinchliffe agreed, commented at page 101:


"The facts which must be set under s.208(a) of the Organic law are material or relevant facts which would constitute grounds upon which an election or return may be invalidated."


51. Further down the same page, His Honour stated:


" I conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved."


52. As to what constitutes sufficient facts, His Honour said at page 102:


"Setting out grounds without more does not satisfy the requirement of s.208(a). What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved (emphasis added).


53. It is therefore clear that the liberal approach to dealing with and deciding on applications to challenges to Competency of the Petition under section 210 of the Organic Law is the most preferred and appropriate approach to be taken in interpreting and applying the law to the facts raised in the grounds presented. This is consistent with the sentiments and views expressed by the Supreme & National Courts in the cases of Sauk v Polye, Soanu v Dadae, Kamma v Itanu, Peri v Thomas on the proper construction and interpretation and application of sections 208, 209, 210 and 222 of the Organic Law.


54. The overriding consideration is to give effect to the legislative intent and purpose when interpreting and construing and or applying these provisions in such competency applications. All the 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.


55. The court must ensure that in the dispensation of justice, it must give a fair and liberal meaning to sections 208 and 210 of the Organic Law. The court must be cautious and mindful of the need not to indulge in a mischievous importation of an intention or purpose never intended or envisaged by the Legislature.


REAL JUSTICE TO BE OBSERVED-RELEVANCE OF SECTION 217 OF THE ORGANIC LAW


56. It is important for the purposes of this application that Section 217 of the Organic Law be put in its proper perspective, in order to deal with any contention that its provisions should be invoked at this stage. Section 217 of the Organic Law provides:


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


57. The Supreme Court's binding authority on Section 217 of the Organic Law is that this section applies only in the trial of an Election Petition and it does not apply where the Competency of a Petition is taken as a preliminary matter.


58. The decision in Biri-v- Ninkama established this principle. At page 346, the unanimous joint judgement of the Supreme Court stated:


" It is clear that s.217 of the Organic Law is relevant only when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only.'


59. The Supreme Court quoted with approval a passage from the judgement in Tapun-v-Anthony Temu [1981] PNGLR 178, where the following is stated:


"However, in my view, this provision [s.217] is not applicable in considering the preliminary point raised. This provision becomes relevant only when it has been determined that there is a Petition instituted pursuant to ss.184 and 185 equivalent to ss.208 and 209 of the Organic law (as applied). This provision becomes applicable when the Court is considering the merits of the case and all matters connected with the determination of the merit. To read section 139 of the Regulation (identical to s.217 of the Organic Law) as applicable to this preliminary point is to bring it in into conflict with the intentions of s.186 (s.210 of the Organic Law."


60. The principles established in the celebrated and seminal case of Biri-v-Ninkama on section 217 of the Organic Law as set out above has been applied in numerous cases, including Michael Badui-v-Bart Philemon[1992]PNGLR 451; Raymond Agonia-v- Albert Karo [1992]PNGLR 463, Vagi Mae.-v- Jack Genia (1992) N1105.


RELEVANCE OF AFFIDAVIT EVIDENCE IN OBJECTION TO COMPETENCY


61. Counsel for the petitioner Mr. Mawa objected to the use of affidavit evidence in raising preliminary issues. He argued that attempts have been made in a number of Petition trials where the question of competency has been raised and argued, reliance was placed on affidavits filed in support of a party's case. This, it is argued is not only improper but it is inconsistent with Section 210 of the Organic Law.


62. In the Supreme Court case of Aihi v Avei [2003] SC720, the Supreme Court stated the law that the requirements in section 208 of the Organic Law are formal and technical procedural requirements only, the determination of which is based on the information of facts endorsed or pleaded on the face of the Petition. It was and further held that "the determination of these matters do not involve any discussion and consideration of the merits in the Petition".


63. The rationale of the reasoning in this Supreme Court case is that Affidavit Evidence and Statement of Agreed and Disputed Facts and Issues cannot be considered at the Competency stage when one is challenging the Competency of the Petition under section 210 of the Organic Law.


64. The affidavit evidence filed by both the Petitioner and the Respondents cannot be considered at this stage. For instance, the Petitioner cannot refer to the affidavits filed to support the allegations and argue that the facts are stated in the Affidavits.


65. There are several reasons why facts in affidavits cannot be considered in a Competency Challenge:


- First and most importantly, this is a jurisdictional challenge under section 210 of the Organic Law. That provision says that a Petition cannot be heard unless it complies with the requirement for facts to be pleaded as required under section 208 of the Organic Law. To consider affidavits at this stage is to hear the Petition and or amend the petition.


- Secondly, I find that to use facts contained in affidavits is to supplement or add to a Petition that is deficient in material facts. In my view this is tantamount to amending a Petition. The Law is clear that the Petition cannot be amended or added to after the expiration of the mandatory forty (40) days period (Biri v Ninkama).


- Thirdly, any facts set out in affidavits, which are filed for consideration in a trial remain untested in cross examination. It is therefore inappropriate at this stage to use affidavits.


- Fourthly, the facts stated in the body of the Petition forms the pleadings. Pleadings drive the evidence. Evidence must have a foundational basis in the pleadings. Section 208(a) of the Organic Law is concerned with pleadings in a Petition and not evidence (Karo v Kidu).


66. In the Supreme Court case of Dick Mune.v.Anderson Agiru & Ors (1998) SC 590, the Supreme Court said that in drawing a fine line between form and merits of the grounds of a Petition, section 210 of the Organic Law involves an inquiry with the form of the Petition only and not the merits or the evidence.


67. For these reasons I hold the view that any allegation in a Petition that is deficient in material facts, where the material or relevant facts are not set out as required by Section 208(a) of the Organic Law cannot be rectified by reference to facts stated in affidavits filed by the Petitioner and Respondents.


THE RESPONDENTS' OBJECTION TO COMPETENCY


Ground 1 ATTESTATION OF WITNESSES.
Objection under Section 208(d) of the Organic Law .


68. The Respondents Counsels argued 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 whole Petition is incompetent and should be dismissed.


69. 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(emphasis added)


70. On a plain reading of section 208(d) of the Organic Law, the words and terms of the statute are themselves precise and unambiguous. There is no need to expound on the words used or to import additional requirements into section 208 (d).


71. This provision makes it abundantly clear that the Petition be attested to by two witnesses whose occupations and addresses are stated. There is no need for and to import additional requirements into section 208(d) of the Organic Law such as that the witnesses must be electors or persons who reside in the electorate and who must have knowledge of the facts pleaded in the Petition.


72. The proper construction and or interpretation of section 208(d) of the Organic Law and its effect has not been decided by the Supreme Court, however the National Court has applied this provision in a number of Election Petitions since the seminal case of Biri v Ninkama and other early post independence cases.


73. In the case of Raymond Agonia.v.Albert Karo [1992] PNGLR 463, Sheehan J at page 465 said:


"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located."(emphasis added).


74. In the case of Albert Karo .v. Lady Carol Kidu [1997] PNGLR 28, His Honour Injia J (as he then was) said:


"In my view s 208 (d) of the OLNLGE simply requires an "address". Section 208 (d) does not require a residential address. I agree with Sheehan J's statement of the purpose of s 208 (d). I would also agree with His Honour that the requirement to specify the "residential address" on a Petition may depend on the "personal circumstances" of the witness. In my view, s 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address"


75. Their Honours Justice Sheehan and Justice Injia (as he then was) both agree that the whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Why do we need attesting witnesses?


76. In my view the answer is provided by Section 214 of the Organic Law.


77. The Supreme Court in Aihi v Avei comprising of five (5) Judges, considered the purpose of the requirement in section 208(d) of the Organic Law, as with the other requirements in section 208 of the Organic Law. The Court made these comments:


"The purpose of the requirement in s.208 (d), as with the other requirements in s.208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-election process. An election by its very nature involve the masses with polarized political ideologies and a family ties. One's election loss can easily spur trouble or mischief if the procedural requirements for challenging an election are not strictly adhered to. The importance of the requirements in s.208 (d) to state the attesting witness' occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witnesses attaches to the witness' capacity to verify the petition. For instances, an infant or mute person lacking full capacity would not be expected to verify or attest a petition."(emphasis added)


78. It is clear from the Supreme Court reasoning that the purpose, intent and spirit of section 208(d) of the Organic Law is to retain or verify the genuineness or veracity of the Petition and not the facts pleaded in the Petition. There is nothing said about verifying the facts pleaded in the body of the Petition by the witnesses.


79. Such an interpretation and construction of section 208(d) of the Organic Law that the attesting witnesses must be electors or voters from the electorate and who must have some knowledge of the facts pleaded in the Petition would in my view be reading too much and stretching the provision too far than what is plainly clear.


80. Furthermore I am of the opinion that it would be to indulge in a mischievous importation of an intention or purpose never intended by Parliament. Such an interpretation would be absurd, and repugnant to the overall Constitutional scheme as envisaged by sections 208 (c) & (d) and 214 of the Organic Law.


81. Only recently, His Honour Justice Kandakasi, in the case of James Yoka Ekip .v. Gordon Wimb &Ors [2012] N4899, by way of obiter dictum, stated that the two attesting witnesses to a petition must be electors or people who reside in the electorate and have knowledge of the facts pleaded in a petition.


82. His Honour Justice Kirriwom refused to follow the position taken by His brother Judges Kandakasi J and Makail J in the cases of James Yoka Ekip.v.Gordon Wimb and Philip Kikala v Nickson Magape respectively and dismissed that ground of Objection to Competency under section 208(d) of the Organic Law and allowed the Petition to proceed to trial.


83. His Honour, Justice Kirriwom stated at pages 7 and 8, the following:


" Having said that while I appreciate the thrust of Mr Nii's submission on this ground of objection to competency, I am afraid that I am unable to construe and apply section 208(d) OLNLLGE in the same way was as he invites me to do for the following reasons;


In my view this issue can be dealt with by calling evidence and that is not the purpose for competency application."


84. His Honour, Justice Kirriwom further said at page 8 of his judgment as follows:


" But to accord this particular issue the hearing that I alluded to above, the legal position of what section 208(d) entails or intends by use of the word 'attest' must be firstly made very clear by the Parliament. Section 208(d) as it is clearly deficient in conveying precisely what is argued before me. With respect, there is already far too many Court or Judge made laws in the way the Court or different Judges have read and construed what is meant by or what are 'facts' as provided in section 208(a) OLLNGE"


85. In the present case, the Respondents contend that the Petition was attested to by two Lawyers who work in Port Moresby and whose residential addresses are in Port Moresby. The two attesting witnesses do not have personnel knowledge about what happened during the elections at Mendi Open Electorate. I am quite satisfied that they have fulfilled the statutory requirements of section 208 (d) of the Organic Law. I cannot read too much into the intent and purpose of section 208(d) for such would be delving into the unknown. It would be importing a mischievous importation of what the organic law intended and in my view should be avoided at all costs.


Ground 2 OBJECTION__- BREACH OF SECTION 208(a) OF THE ORGANIC LAW.
Part B(a)- Illegal Practices- General Objections.


86. The Petition clearly pleads from paragraph 11-41 the material and relevant facts which demonstrate the ground of illegal practice under section 215 of the Organic Law.


87. The Petition does not have to show that the illegal practices were either committed by the successful candidate or was committed by other persons, with the knowledge and or authority of the successful candidate.


88. Section 215 of the Organic Law provides for voiding of an election for illegal practices. It provides for three (3) categories of illegal practices:


(i) Illegal practices of bribery and undue influence or their attempt by the winning candidate (Section 215(1)).


(ii) Illegal practices of bribery or undue influence by other persons committed on behalf of the winning candidate and with his full knowledge and authority (Section 215(3)(a); and


(iii ) Other illegal practices other than bribery or undue influence or attempted bribery or undue influence that have been committed without the candidate's knowledge or authority (Section 215(3)(b).


89. What is pleaded in this Petition is the category of Illegal Practice provided under section 215(3)(b) of the Organic Law and that is that, other illegal practices other than bribery or undue influence or attempted bribery or undue influence that have been committed without the candidate's knowledge or authority. The qualification is that as long as the court is satisfied that the result of the election is 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.


90. The First Respondent argues that the Petitioner has failed to plead that the illegal practice was either committed by the successful candidate or with the knowledge and authority of the successful candidate is totally misconceived and erroneous in law by reason of section 215(3)(b) of the Organic Law.


91. In my view the Petitioner clearly pleaded in the body of the Petition that the result is likely to be affected by reason of illegal practices as demonstrated and pleaded in paragraphs 45,55,62,66,70,84,88,89 and 91 of the Petition.


92. In my opinion, it is erroneous in law to argue that the Petitioner should have pleaded that the candidate should be declared not duly elected or the election be declared void because that is the conclusion or finding that the court will make after the end of the substantive trial (See Manase v Polye).


Part B(a)- Illegal Practices- Objections against paragraphs.
Paragraphs 17 -21, 36,49-53,56,57,63,67,71 and 73.


93. The First Respondent argues that whilst these paragraphs allege illegal practices by security personnel led by a Major Nonge Serum, a soldier in the PNG Defence Force, the Petitioner failed to state the crucial particulars of Major Nonge Serum, namely his rank and file numbers and which battalion he is attached to.


94. It is argued in response that the pleading is succinct, precise and unambiguous in terms of the illegal practices committed by the Security Personnel led by Major Nonge Serum. In my view there is no need for further particulars. What the First Respondent contends as lacking is evidence and evidence cannot be pleaded in the Petition. In my view to give details of the battalion a soldier is attached to, his file no. and his rank are evidentiary matters which require the petitioner to plead hard evidence. In my view this petition has been pleaded with material and sufficient particularity and therefore does comply with the mandatory requirements of section 208(a) of the Organic Law. Case authorities supporting this proposition are: Holloway .v.Ivarato, Karo .v. Kidu, Dick Mune .v. Anderson Agiru & Ors and Alfred Manase.v. Don Polye.


Paragraph 18
95. It is contended that material facts are pleaded in paragraph 18 of the Petition and what the First Respondent's contention that it is lacking in evidence. The law is that Evidence cannot be pleaded in a Petition. I find that this paragraph complies with section 208(a) of the Organic Law. The case authorities supporting this proposition are: Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Paragraph 20
96. Furthermore, I find that paragraph 20 complies with section 208(a) of the Organic Law in that material particulars have been pleaded. What in my view the First Respondent is asking for is evidence. Evidence cannot be pleaded in a Petition. There are many case authorities for this proposition. Some of these case authorities are: Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Allegation 1- Nene Polling Place


97. I find that the facts pleaded from paragraphs 22- 45 of the Petition are sufficient and they do comply with the requirements of section 208(a) of the Organic Law. Particulars, such as ballot boxes' serial number and the polling team number are all matters of evidence. Which cannot be pleaded in a Petition (see Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Paragraph 32


98. It is my finding that paragraph 32 of the Petition complies with the mandatory requirements of section 208(a) of the Organic Law, Material facts are pleaded in the paragraphs.What is submitted as lacking is evidence which cannot be pleaded in a Petition (see Holloway v Ivarato Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye).


Paragraph 35
99. It is argued that paragraph 35 of the Petition pleads material facts and complies with the mandatory requirements of section 208(a) of the Organic Law, What is submitted as lacking is evidence which cannot be pleaded in a Petition (see Holloway v Ivarato, Karo v Kidu [supra], Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Paragraph 36
100. It is my finding that paragraph 36 of the Petition pleads material facts and in my view complies with the mandatory requirements of section 208(a) of the Organic Law, What is submitted as lacking is evidence and which cannot be pleaded in a Petition. Case authorities supporting this proposition are: Holloway .v.Ivarato], Karo .v. Kidu, Dick Mune .v. Anderson Agiru & Ors and Alfred Manase.v. Don Polye.


Allegation 2- Kerenda Polling Place.-General Objections


101. Constituents their constitutional rights to vote freely. Paragraphs 46-55 of the Petition deals with security personals at Kerenda polling station. The thrust of the allegation is that the security personal stopped the polling and denied the electors their constitutional rights to vote freely in the elections.


102. In my view what the First Respondent alleges as facts being deficient is the evidence required. Paragraphs 46-55 of the Petition is about the form as pleaded. In my view the pargraphs contain allegations which clearly establishes a ground of illegal practice under section 215(3)(b) of the Organic Law This is likely to affect the result of the election and therefore such pleading clearly satisfies the requirement of section 208(a) of the Organic Law: Holloway v Ivarato, Karo v Kidu [supra], Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Specific objections on each paragraphs – Paragraphs 48-53


103. Paragraphs 48-53 of the Petition do not breach the mandatory requirement of section 208(a) of the Organic Law in that they do plead sufficient material facts constituting the ground of illegal practice under section 215(3)(b) of the Organic Law. What the First Respondent says is lacking is evidence required to prove what is alleged in this paragraphs. Under section 208(a) of the Organic law evidence cannot be pleaded in a Petition. There are various cases which stand as authorities for these propositions: Holloway v Ivarato, Karo v Kidu, Dick Mune .v. Anderson Agiru & Ors and Alfred Manase.v. Don Polye


Allegation 3- Kombal 1 & 2 Polling Places.


104. Paragraphs 56-62 of the Petition deals with security personnel at Kombal 1 & 2 polling stations. The trust of the allegation is that the security personnel abruptly disrupted and stopped the polling and denied the electors their constitutional rights to vote freely.


105. What the First Respondent alleges as facts being deficient is the evidence that is required to prove these allegations for the trial proper. Paragraphs 56-62 of the Petition in the form as pleaded clearly establishes a ground of illegal practice under section 215(3)(b) of the Organic Law which is likely to affect the result of the election. Therefore such pleading in my view clearly satisfies the requirement of section 208(a) of the Organic Law. See Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye


Allegation 4- Kuma 1 Polling Place.


106. Paragraphs 63-66 of the Petition deals with security personnel at Kuma 1 polling station. The thrust of the allegation is that the security personnel stopped the polling and denied the constituents their constitutional rights to vote freely.


107. What the First Respondent alleges as facts being deficient in my view is the evidence required to prove these allegations. I find that Paragraphs 63-66 of the Petition in the form as pleaded clearly establishes a ground of illegal practice under section 215(3)(b) of the Organic Law which is likely to affect the result of the election. Furthermore I find that the pleadings clearly satisfy the requirement of section 208(a) of the Organic Law: Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors, and Alfred Manase v Don Polye.


Allegation 5- Pongai Polling Place


108. Paragraphs 67-70 of the Petition deals with security personnel at Pongai polling station. The thrust of the allegation is that the security personnel stopped the polling and denied the electors their constitutional rights to vote freely.


109. What the First Respondent alleges as facts being deficient is the evidence required to prove this allegations. Paragraphs 67-70 of the Petition in the form as pleaded clearly establishes a ground of illegal practice under section 215 (3)(b) of the Organic Law which is likely to affect the result of the election and therefore such pleading in my view clearly satisfies the requirement of section 208(a) of the Organic Law. see Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye


Allegation 6- Wakia Polling Place


110. Paragraphs 71-74 of the Petition deals with security personnel at Wakia polling place. The thrust of the allegation is that the security personnel stopped the polling and denied the constituents their constitutional rights to vote freely.


111. What the First Respondent alleges as facts being deficient is the evidence required. Paragraphs 71-74 of the Petition in the form as pleaded in my view clearly establishes a ground of illegal practice under section 215(3)(b) of the Organic Law which is likely to affect the result of the election. I find that such pleading clearly satisfies the requirement of section 208(a) of the Organic Law (see Holloway v Ivarato, Karo v Kidu Dick Mune v Anderson Agiru & Ors, and Alfred Manase v Don Polye).


Allegations on Errors & Omissions by the Electoral Commission's servants and Agents
112. Paragraphs 75-83 of the petition deal with allegations of errors and omissions committed by the Electoral Commission and its servants and agents. These paragraphs in the form, style and manner pleaded in my view clearly complies with mandatory requirements of section 208(a) of the Organic Law. I am clearly of the view that sufficient material facts are pleaded which establishes the ground of errors and omissions within the meaning of section 218(1) of the Organic Law.


113. The First Respondent alleges that the pleadings are deficient of facts or wanting or lacking of facts is the evidence required to prove these allegations. In my view evidence and law cannot be pleaded in a Petition by operation of section 208(a) of the Organic Law. Cases in support of this proposition are the following: Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye.


Concluding Submission on the First Respondent's contention on section 208(a) of the Organic Law.


114. The allegations on illegal practices are pleaded from paragraphs 22 to 74 of the petition, and the allegations of errors and omissions as pleaded from paragraphs 75 to 91 of the Petition. In my view they are clearly in compliance with section 208 (a) of the Organic Law. The pleadings are precise and very clear. There is no need for the petitioner to re-plead or restate the pleadings. What has been pleaded already in the petition is sufficient and clear.


115. The pleadings constituting the grounds of illegal practices and errors and omissions are concise, and very clear and unambiguous. I find that there are no inherent contradictions and confusions in the pleadings. In my view the pleadings as it is are enabling the Court and the parties to see with clarity the factual and legal issues involved. It enables the opposing parties to prepare their case for the trial.


116. In my view the thrust of the Respondent's argument that material facts are missing or deficient or lacking in the facts constituting the grounds of errors and omissions and illegal practices as pleaded in the Petition is nothing more than venturing into evidence that is required to prove these allegations in trial.
117. To demonstrate the point that the Respondents are asking for evidence to be pleaded, I will set out some of the extracts of His Honour Justice Lay's judgment in the case of Manase v Polye at page 10, where His Honour made the following comments:


"The Respondents objects to paragraph B1(c)(4) because it is alleged the polling officials are not named. They are named in subparagraph (2), No name of voters who were deprived of a vote are given, but I consider that those names would be evidence, just as they would be if there was an allegation that unqualified persons were allowed to vote: Sinesine Yongmulg, Ludger Mond.v.Kerenga Ben Okoro & Ors [1992]PNGLR 501 Sakora J. His Honour, Lay J further said at page 11 of his judgement as follows;


"Objection is taken to the time mentioned in subparagraph B1(d) as to when ballot boxes were dropped off. The general rule in criminal pleading is that the day and time are immaterial unless there is special reason for their relevance, such as an act only being an offence at certain times of the day or after a certain day. I have been referred to no authority on the issue by the parties. I take the same view of times in an election petition. Times are not material facts unless special circumstances are shown or are material facts, such as in bribery allegations. Gavara-Nanu J takes a similar view in Jim Nomane.v. David Anggo (no.1)(2003)N2496. I reject this objection." (emphasis added)


118. As the statement of law cited above clearly demonstrate, the specific particulars such as time, date, names of electors, rank and file of security personal, details of family relationships, mode of communication, where and when, serial numbers of ballot boxes, mode of transport, these are all matters of evidence and evidence cannot be pleaded in a Petition (see Holloway v Ivarato, Karo v Kidu, Dick Mune v Anderson Agiru & Ors and Alfred Manase v Don Polye).


RESPONSE TO THE FIRST RESPONDENT'S SPECIFIC SUBMISSIONS.

  1. Failure to plead the Law in the Petition.

119. Counsel for the First respondent argued 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 thrust of the submission by the First Respondent's Counsel and reiterated a number of times.


120. With respect, I find this argument to be totally absurd, baseless and has no foundation in law. It is in fact a misstatement of the law. The law is settled in our jurisdiction and that is, in an election petition, section 208(a) of the Organic Law, requires a Petitioner to plead and state only the basic 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 made the following comments which I find provide the answers to the bold submission made by the first respondent:


"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 at 48 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 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."


121. In the case of Paias Wingti .v.Rawali & Ors (2008) N3285, where his Honour Justice Cannings said at page 9:


"I reject Mr Nii's submission for two reasons. First, as highlighted by Mr Manase, there is no requirement for a Petition to state the particular provision of the Organic Law being relied on to dispute the election. section 208 of the Organic Law prescribes the requirements of a Petition and does not say that the provision relied on has to be referred to;


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."


122. It is therefore my view that the relevant provision must not be pleaded beside the facts is misconceived and this argument is hereby rejected by this Court.


Failure to plead distribution of votes to the Candidates to show how the votes were affected or likely to be affected.


123. The First Respondent submitted that the Petitioner failed to plead how the affected votes would be distributed to the candidates and how it would have affected or likely to affect the results of the election.


124. I find such a submission is erroneous in law. Since voting is done by secret ballot, it would be speculative to plead the possible distribution of votes between the different candidates.


125. In the case of Baki Reipa.v.Yuntivi Bao [1999] PNGLR 232, Woods, Los and Salika JJ, comprising the Supreme Court said:


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


126. In the case of Alfred Manase.v. Don Pomb Polye (2008)N3534, His Honour Justice Lay adopted the principles laid down in the case of Baki Reipa (supra) and said as follows;


" The proper course in this case, following the case law authority and section 168 of the Organic Law is simply to compare the number of votes affected by the allegations in the Petition with the relevant winning margin"


127. It is therefore not a requirement of law to plead and demonstrate the calculation and distribution of the votes affected to different candidates to determine how the result was affected or likely to be affected. The only test is to compare the number of disputed or affected votes against the number of the winning margin to determine if the result is affected or likely to be affected.


SUMMARY OF SUBMISSIONS
128. This is a Petition in which I find that the petition clearly leads what I see as material and relevant facts under different sub headings. The paragraphs clearly set out the material facts which constitute the ground of errors and omissions and illegal practices to nullify the election result of the Mendi Open Electorate.


129. The Objection to Competency of the Petition filed by the Respondents is nothing but sheer 'nit-picking' technical objections raised in the guise of real substantive issues of competency or jurisdiction.


130. This is a case where there was interruption and interference of polling and denial of the electors' right to vote freely by security personnel at various polling places, resulting in some 5,688 electors being denied of their constitutional right to vote a leader of their own choice. The winning margin is only 278 votes and therefore it is clear that the results of the election is likely to be affected.


131. These are serious issues that question the final election result and question the integrity of election process.


132. In view of the sentiments expressed by the Supreme Court in Sauk v Polye and Soanu 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.


133. It is a constitutional dictate that Courts must be liberal in its approach and give paramount consideration to the dispensation of justice in dealing with the Competency Application.


134. As the Supreme Court in the case of Soanu v Dadae said at page 11.


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."


135. I am mindful of this constitutional mandate and I adopt the above reasoning to the present case and dispense justice.


DECISION
136. The Respondents Objection to Competency is hereby dismissed with costs and the court orders that this Petition proceeds to a full trial on all the grounds and issues raised. I also order that costs of preparing and arguing the Objection to Competency is hereby awarded to the Petitioner to be taxed by the registrar.


____________________________________________________________________
Mawa Lawyers: Lawyer for the Petitioner
Tame Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for Second & Third Respondents

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