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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP No.97 of 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION
BETWEEN:
JAMIE MAXTON-GRAHAM
Petitioner
AND:
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Respondent
AND:
DR. WILLIAM TONGAMP
Second Respondent
Minj: David, J
2013: 5, 10 & 17 April & 16 July
ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objection to competency of petition – preliminary matter - allegation of irregularity of service of petition on Second Respondent for want of compliance with order for substituted service – two different versions of petition published in two dailies - exercise of discretion - substantial compliance with order for substituted service – no prejudice to Second Respondent as he is already aware of the content and allegations in the petition – content and allegations in advertised petitions same as one in Court's record - three grounds in petition only raise allegations against the First Respondent – preliminary objection rejected - National Court Election Petition Rules 2002 (as amended), Rules 6, 11, 15 and 18.
ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objections to competency of petition – three grounds raised in petition – allegations against the First Respondent of committing errors and omissions and illegal practices as to the appointment of the Provincial Returning Officer and the conduct of scrutiny by electoral officials - respondents allege that the petition does not comply with all pre-requisites of a petition under Section 208 of Organic Law on National and Local-level Government Elections – requirements under Section 208 are conditions precedent – strict compliance required – part of first ground as to allegations concerning appointment of counting officials struck out – part of first ground as to allegations concerning appointment of Provincial Returning Officer competent to go to trial - second and third grounds struck out – Organic Law on National and Local-level Government Elections, Sections 19, 149, 151, 175, 206, 208, 209, 210, 215 and 218.
Cases cited:
Mapun Papol v Antony Temo (1981) PNGLR 178
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Siaguru v Unagi [1987] PNGLR 372
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Joel Pepa Paua v Robert Timo Ngale [1992] PNGLR 563
Greg Mongi v Bernard Vogae (1997) N1635
Korak Yasona v Castan Maibawa (1998) SC552
Dick Mune v Anderson Agiru & Ors (1998) SC 590
Ephraim Apelis v Sir Julius Chan (1998) SC573
Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589
Aita Ivarato v Peti Lafanama [1998] PNGLR 297
Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on
30 March 1998
Dr Philip Basse v Electoral Commission of Papua New Guinea and John Tongri Hickey (2002) N2340
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Ludger Mond v Jeffery Nape (2003) N2318
Mathias Ijape v Bire Kimisopa (2003) N2344
Sai–Sail Beseoh v Yuntivi Bao (2003) N2348
Alfred Pogo v Guao Katucnane Zurenuoc (2003) N2351
Mathias Karani v Yawa Silupa (2003) N2385
Jim Nomane v David Anggo (No 1) (2003) N2496
Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice
Hinchliffe delivered on 16 June 2003
Ginson Saonu v Bob Dadae (2004) SC763
Jimson Sauk v Don Pomb Polye (2004) SC769
Paru Aihi v Sir Moi Avei (2004) N2523
Mikki Kaiok v Rimbink Pato (2005) SC877
Daniel Don Kapi v Samuel Abal (2005) N2856
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Steven Pirika Kamma v John Itanu (2007) N3246
Powes Parkop v Wari Vele (No 1) (2007) N3320
Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948
Paias Wingti v Kala Rawali (2008) N3285
Luke Alfred Manase v Don Pomb Polye (2008) N3341
Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Philomena Kassman v Kila Igaba (2012) SC1211
Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816
Peter Charles Yama v Anton Yagama (2012) N4928
Norbert Kubak v Andrew Trawen (2012) N4992, PGNC286
Patrick Basa v Bob Dadae (2013) N4991
Gabriel Lenny Kapris v John Simon & Ors (2013) N5001
Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (2013) N5134, PGNC74
Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (2013) N5216
Tobias Kulang, EP No.75 of 2012, a judgment by Makail, J delivered in Waigani
Legislation cited:
Organic Law on National and Local-level Government Elections
National Court Election Petition Rules 2002 (as amended)
Counsel:
Tony Yamarhai, for the Petitioner
Ray William, for the First Respondent
Michael Kuma, for the Second Respondent
RULING ON OBJECTIONS TO THE COMPETENCY OF PETITION
16th July, 2013
1. DAVID, J: INTRODUCTION: The petitioner, Jamie Maxton-Graham (hereafter "the petitioner") was an unsuccessful candidate for the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (hereafter "the Electorate") during the 2012 National General Election. Dr. William Tongamp, the Second Respondent (hereafter "the Second Respondent") in these proceedings was the successful candidate for the Electorate and subsequently declared as the winner and sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.
2. On 9 September 2012, the petitioner filed a petition addressed to the National Court at Waigani disputing the validity of the election or return of the Second Respondent as the successful candidate for the Electorate pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law). He raises issues of errors and omissions and illegal practices by the First Respondent or his servants or agents with respect to the appointment of the Provincial Returning Officer for Jiwaka Province and the conduct of scrutiny to vitiate the election. The petitioner seeks, amongst other things, a declaration that the Second Respondent was not duly elected as the member for the Electorate, an order for a recount of all ballot papers for the Electorate, and an order that the petitioner is the duly elected member for the Electorate.
3. On 2nd November 2012, the First Respondent, the Electoral Commissioner of Papua New Guinea (hereafter "the First Respondent" filed his notice of objection to the competency of the petition.
4. On 25th October 2012, the Second Respondent filed his notice of objection to the competency of the petition.
5. The respondents' objections collectively are that as the petitioner has failed to comply with all of the pre-requisites of a petition under Section 208 of the Organic Law more particularly the requirements under paragraph (a) (to set out in the petition the facts relied on to invalidate the election) and (c) (be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election) for purposes of Section 210 of the Organic Law, the petition was incompetent and should be dismissed. In his notice of objection, the Second Respondent, in support of his objection under Section 208 (c), also states that service of the petition was defective because; the petitioner failed to publish a Notice to Appear in accordance with Form 1 both in The National on 8 October 2012 and the Post Courier on 9 October 2012 which was a breach of Rule 6 (1)(a) of the National Court Election Petition Rules 2002 (as amended) (hereafter "the Election Petition Rules); and the petition published in the Post Courier on 9 October 2012 was an amended version of that which was published in The National on 8 October 2012 and which amendment was made outside the statutory period of 40 days therefore prohibited by Rule 11 of the Election Petition Rules. The petitioner refutes these assertions and states that, the petition has met all the mandatory pre-requisites of a petition, the petition was duly served on the Second Respondent therefore the petition should proceed to trial.
6. I will address these issues in detail later on in the judgment.
7. On 26th November 2012, the Judge Administrator for the Election Petitions Track, Makail, J fixed these proceedings for hearing for two weeks at Mt. Hagen and to commence on 1 April 2013. The venue was changed to Minj because I was circuiting Minj in April 2013 according to the Court's annual calendar and due to insufficiency of Court rooms in Mt. Hagen where the two Court rooms would be taken up with the hearing of the petition filed by Tom Olga against Hon. Paias Wingti, MP & Others, EP No. 100 of 2012 and the civil court. Sittings in Minj commenced on 2nd April 2013 because the 1st April 2013 fell on Easter Monday.
8. Prior to the hearing of the two objections to competency, I heard three other preliminary applications.
9. The first was an application to join as a party to these proceedings by an unsuccessful candidate, Paul Enn Murunga who also contested the seat for the Electorate at the 2012 National General Election. This application was opposed by all the parties to these proceedings. I dismissed that application on 2 April 2013. My full reasons for doing so are published in my written judgment: Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (application for joinder) (2013) N5216.
10. The other two applications were to strike out the two objections to competency of the petition on the basis that the respondents' written submissions in relation to the objections to competency of the petition were not filed within the time fixed by the court and that the First Defendant filed his notice of objection to competency out of time. The respondents contested the applications. On 5th April 2013, I refused both applications. My full reasons for doing so are published in my written judgment which has been circulated to the parties already: Jamie Maxton-Graham v Electoral Commissioner & Dr. William Tongamp (2013) N5134, PGNC74.
11. The parties have produced lengthy, comprehensive and extensive written submissions. The petitioner's written submissions filed in response to the objections to competency by the First Respondent was filed on 5 March 2013. The petitioner's written submissions filed in response to the objections to competency by the Second Respondent was also filed on 5 March 2013. The petitioner's Further Submission in Response to Objection to Competency by the Respondents was handed up at the hearing on 5 April 2013. The First Respondent's written submissions was filed on 22 March 2013. The Second Respondent's written submissions was filed on 5 February 2013. I have considered all the written and oral submissions advanced by counsel.
LAW ON OBJECTION TO COMPETENCY OF PETITION
12. It is trite law that the question of competency of a petition in itself raises the issue of jurisdiction and this can either be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in the petition and at any stage of the proceedings: see Sir Arnold Amet v Peter Charles Yama (2010) SC1064; Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Powes Parkop v Wari Vele (No 1) (2007) N3320; Norbert Kubak v Andrew Trawen (2012) N4992, PGNC286; and Peter Charles Yama v Anton Yagama (2012) N4928.
13. It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds: Peter Charles Yama v Anton Yagama (supra). It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed: Norbert Kubak v Andrew Trawen (supra). . Any prejudice caused to the petitioner can be accommodated by an order for costs: Peter Charles Yama v Anton Yagama (supra). It was held in Sir Arnold Amet v Peter Charles Yama (supra) that issues of competency of a petition can also be raised in the Supreme Court in the case of a review even if they were not raised before the National Court.
14. According to Rule 15 of the National Court Election Petition Rules 2002 (as amended)(the Election Petition Rules), the Court can deal with any challenge to the competency of a petition at the hearing of the petition.
15. Issues relating to competency of a petition arise because of the requirements under Sections 208, 209 and 210 of the Organic Law.
16. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law and the petition must strictly comply with each and every requirement: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, Holloway v Ivarato (1988) PNGLR 99.
17. Section 208 (Requisites of petition) of the Organic Law stipulates the five pre-requisites of a petition. It states:
"A petition shall:
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a)."
18. A further pre-requisite is set out under Section 209 (Deposit as security for costs) of the Organic Law. It provides that a security deposit in the amount specified must be paid at the time of filing the petition. It states:
"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."
19. Section 210 (No proceedings unless requisites complied with) of the Organic Law provides that unless the pre-requisites under Sections 208 and 209 are met, a petition cannot be heard. It states:
"Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."
20. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court at p.345 said:
"The requisites in s.208 and s.209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s.208 and s.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 proceeding unless s.208 and s. 209 are complied with.....
21. Similar sentiments were expressed by the Supreme Court in Mapun Papol v Antony Temo (1981) PNGLR 178 and Paru Aihi v Sir Moi Avei (No 2) (2003) SC720.
22. A reason behind the need for strict compliance with Section 208 if not the most important or fundamental one in my respectful view was expressed in Delba Biri v Bill Ginbogl Ninkama (supra) at p.345 in the following terms:
"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
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."
23. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
24. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:
"But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v Antony Temo (supra) )."
25. The requirements under Section 208 (b) and (d) and Section 209 of the Organic Law are not in issue in the present case.
SERVICE OF PETITION ON SECOND RESPONDENT
Brief background
26. At the hearing on 5 April 2013, the Second Respondent through his counsel Mr. Kuma took issue with the service of the petition on himself. This issue is raised at pages 16 and 17 of the Second Respondent's notice of objection to competency as well under the heading "Preliminary issues with the Petition and Service". Mr. Kuma tried to lead evidence from documents already filed in the proceedings to show that following orders granted by Makail, J on 28th September 2012 for substituted service of the petition on the Second Respondent due to the petitioner's inability to serve the petition within 14 days of filing as is required by Rule 6 (1) of the National Court Election Petition Rules 2002 (as amended)(the Election Petition Rules), the petitioner published in the National and Post Courier on 8th and 9th October 2012 respectively two different versions of the petition. He said the petitioner took issue because he did not know which particular version of the petition he was to respond to and in view of the need for strict compliance with the requirements under Section 208 of the Organic Law.
27. Mr. Yamarhai of counsel for the petitioner submitted that the issue of service of the petition following publication of the petition in the National and Post Courier as per the extension granted was raised at the directions hearing stage and Makail, J dealt with it in favour of the petitioner and it was not an issue any more. Just like what Mr. Kuma had proposed to do, Mr. Yamarhai also tried to lead evidence by referring to affidavit material already filed when Mr. Kuma kept on pressing the issue.
28. Following exchange between the bench and counsel, Mr. Kuma conceded that the petition had been served on the Second Respondent, but subject to the objections the Second Respondent had raised in his notice of objection to competency of the petition. As will be observed later on in the judgment, the Second Respondent reneged from the concession he had made on 5 April 2013 and continued to dispute service of the petition on him when parties were given a further opportunity to address me on the issue on 17 April 2013, hence the need for me to determine the issue.
29. The terms of the order made by Makail, J on 28th September 2012 (the order for substituted service), inter alia, were:
30. Placed in a difficult situation where the Court file does not have any minute of an order or direction or an endorsement on the issue of service of the petition following the order for substituted service or the transcript of the relevant proceedings produced, I refused to accede to the proposals by the petitioner and Second Respondent to lead evidence on the subject and continued with the hearing of the objections to competency. This was because; the issue might have been definitively settled at the directions or pre-trial hearings by the Court and the principle of res judicata might apply as to my mind, without that being the case, these proceedings would not have been progressed to an expedited hearing fixed for the first two weeks of April 2013 through directions and pre-trial hearings; and given two weeks was allocated for the hearing of these proceedings, time was of the essence in dealing with the question of competency or otherwise of the petition and should the matter get past the competency stage, the conduct and completion of trial. I then reserved my ruling to Wednesday, 10th April 2013.
31. During the course of drafting my ruling and on reflection, I considered it necessary in the interest of all the parties including myself that I should make an order for the transcript of the relevant proceedings to be produced by the Court Reporting Division (Transcription Service) at Waigani and have it presented to the Court and the parties to put to rest whether or not the issue of service had been formally raised and definitively determined one way or another at the directions or pre-trial hearings. At the resumption of the sittings on Wednesday, 10 April 2013, I ordered the Court Reporting Division (Transcription Service), Waigani to produce the transcript of the directions hearing conducted on 12 October 2012 being the date when the issue might have been raised and addressed and for it to be made available to the Court and the parties by or before 9:30 am on 17 April 2013 at Minj. This entailed a deferment of the ruling and the adjournment of the matter to 17 April 2013 at 9:30 am.
32. On 17 April 2013, the transcript of the directions hearing conducted on 12 October 2012 comprising 6 pages was produced. It showed that on 12 October 2012, Mr. Yamarhai for the Petitioner, Ms. Kapi for the First Respondent and Mr. Dalid for the Second Respondent appeared before Makail, J. It also shows that Mr. Dalid had brought to the attention of His Honour that the Second Respondent had an application on foot by way of his notice of motion filed on 11 October 2012 disputing, amongst other things, competency of the petition for want of form and compliance by the petitioner of the order for substituted service by publication in the two national dailies of the petition and other forms. During the exchange that ensued between Mr. Dalid and the bench, His Honour indicated that if Mr. Dalid's client took issue with the competency of the petition for want of form and non-compliance with the order for substituted service, the Second Respondent should file an objection to competency of the petition. Mr. Dalid then said that he would not move his application, but would pursue the issue at the hearing of the objections to competency of the petition instead. As I have mentioned already, the Second Respondent's notice of objection to the competency of the petition was filed on 25th October 2012. This issue is raised in detail at pages 16 and 17 of the Second Respondent's notice of objection to the competency of the petition. Given the scenario and convinced that the issue of service was not res judicata, I vacated my ruling and then allowed parties to make submissions on the issue including compliance with the order for substituted service.
Submissions of the Second Respondent
33. As he had contended earlier, Mr. Kuma for the Second Respondent maintained that two different versions of the petition were published in the National and Post Courier on 8th and 9th October 2012 respectively and these were not done in accordance with the terms of the order for substituted service. He relied on the Second Respondent's Affidavit sworn on 3rd November 2012 and filed on 6th November 2012. Counsel submitted that the publications in the print media followed a successful application by the petitioner for leave to serve the petition outside the 14 days required by Rule 6 (1) of the Election Petition Rules as he had not served the petition on the Second Respondent within the requisite period. As I have mentioned already, the application was granted by Makail, J on 28th September 2012.
34. Counsel submitted that the petition published in the National on 8th October 2012 had the following significant defects:
35. Counsel submitted that service of a defective petition by publication in the National on 8th October 2012 was improper as it does not meet the strict and mandatory requirements of Section 208 (c) of the Organic Law and could therefore not constitute service and should be dismissed according to the leading authority of Delba Biri v Bill Ginbogl Ninkama (supra).
36. Counsel further submitted that the petition published in the Post Courier was an amended version of the petition published in the National on 8th October 2012 which was made out of time and not permitted by Section 208 (e) of the Organic Law. Counsel submitted that the two petitions had these differences:
37. It was submitted that as the amendment made was contrary to the strict and mandatory requirements of Section 208 (e) of the Organic Law, the petition was defective, its service upon the Second Respondent for that reason was defective and therefore it should be dismissed according to the principle in Delba Biri v Bill Ginbogl Ninkama (supra).
38. Mr. Kuma conceded however that the content and allegations in both versions of the petition were the same.
39. Mr. Kuma submitted that the filing of the Statement of Agreed & Disputed Facts & Issues on 22 November 2012 was not in any way indicative of the Second Respondent conceding service of a petition that met the strict requirements of the Organic Law or that he was not prejudiced in any way. The filing of the Statement of Agreed & Disputed Facts & Issues was necessary to progress the matter to a hearing counsel said.
Submissions of the First Respondent
40. Mr. William for the First Respondent submitted that the petition served on the First Respondent bore the petitioner's signature and that his client had no issue with service of that petition. In the Second Respondent's case, counsel submitted that the Second Respondent was concerned about service of two different versions of the petition, one signed and the other not so signed which begged the question whether Section 208 (c) of the Organic Law had been complied with. Counsel referred me to four cases for assistance although not directly on point and these are; Aita Ivarato v Peti Lafanama [1998] PNGLR 297, Alfred Pogo v Guao Katucnane Zurenuoc (2003) N2351, Luke Alfred Manase v Don Pomb Polye (2008) N3341, and Tobias Kulang, EP No.75 of 2012, a judgment of Makail, J delivered in Waigani. Of these four cases, I have not been able to find a copy of the judgment in Tobias Kulang if a written one had been delivered and counsel has not provided me with a copy either so I have not considered it. I have considered the others.
41. On the question of whether the petitioner had complied with the terms of the order for substituted service, counsel submitted that compliance with court orders by the petitioner was vital in the progress of the proceedings and this included publication in the print media, once in either of the two dailies in accordance with the terms of the order for substituted service. Counsel drew my attention to Daniel Don Kapi v Samuel Abal (2005) N2856 which highlighted the point.
Submissions of the petitioner
42. Mr. Yamarhai for the petitioner vigorously contested the objection and submitted that the petition has been served on the Second Respondent by publication in The National and the Post Courier in accordance with the terms of the order for substituted service. Serving the petition on the Second Respondent had proven difficult so that necessitated the taking out of the order for substituted service counsel said. He relied on the Affidavit of Publication of Michael N. Wilson sworn on 10th October 2012 and filed on 11th October 2012 to confirm publication of the petition in both The National and the Post Courier.
43. He conceded however that the petition published in the National on 8th October 2012 was without the signature of the petitioner, but this was due to the fault of the daily. Having discovered that a wrong copy was forwarded to the daily for publication earlier, a correct copy was sent to the daily, but was not published counsel argued. On the other hand, the petition published in the Post Courier on 9th October 2012 was signed by the petitioner which accorded with the requirement under Section 208 (c) of the Organic Law counsel said. Contrary to the assertions of the respondents, this petition was not amended at all and the court's own record of the petition filed on 9 September 2012 which was within the statutory period should confirm that counsel further contended. Both versions of the petition were published within the extended period of service granted by the order for substituted service so the requirement under Section 208 (e) of the Organic Law was complied with counsel said. He further submitted that the Judge Administrator having been satisfied with service of the petition on the Second Respondent continued with directions hearing. The Second Respondent did not dispute service or were not prejudiced in any way as he was aware of the allegations of the challenge notwithstanding the different versions published so this resulted in the filing of the Statement of Agreed & Disputed Facts & Legal Issues counsel said.
44. Counsel further submitted that the circumstances arising from the publication of the two versions of the petition warranted the Court to apply Section 217 of the Organic Law in the petitioner's favour.
Reasons for ruling
45. From submissions of Mr. William of counsel for the First Respondent, there is no dispute that the petitioner served on the First Respondent his petition which bore the petitioner's signature and that his client had no issue with service of that petition. This implies that, subject to the determination of the objections raised by the respondents with respect to compliance with Section 208 (a) of the Organic Law, the petitioner is deemed to have filed a petition which met all of the conditions precedent under Section 208 of the Organic Law. The Court's record of the petition filed by the petitioner on 9 September 2012 appears to reflect that. The petitioner and Second Respondent have annexed to the affidavits they rely on copies of an advertisement of the plaintiff's petition placed in The National on Wednesday, 10 October 2012 which shows that it was signed by the petitioner: see annexure A2 of the Affidavit of Publication of Michael N. Wilson sworn on 10th October 2012 and filed on 11th October 2012 and annexure "C" of the Second Respondent's Affidavit sworn on 3rd November 2012 and filed on 6th November 2012. The deadline for complying with the order for substituted service was 12 October 2012. The advertisements of the petition in The National on 8 and 10 October 2012 and the Post Courier on 9 October 2012 were advertised within the deadline. The content and allegations in the different versions of the petition published in The National and the Post Courier are the same as those in the petition held by the Court. For these reasons, the arguments by the Second Respondent that the petition was not signed by the petitioner contrary to Section 208 (c) of the Organic Law or that the petition was amended out of time contrary to Section 208 (e) of the Organic Law (and Rule 11 of the Election Petition Rules) are rejected as having no basis or misconceived. It is not necessary now for me to consider the application or not of Section 217 of the Organic Law in the determination of these matters as the petitioner has suggested.
46. My dissertation of the Second Respondent's principal argument is that the petition should be dismissed because the petitioner failed to fully comply with the order for substituted service. Should I dismiss the petition on that basis? I have partly determined the objection based on the alleged failure by the petitioner to sign the petition and the amendment of the petition in favour of the petitioner. What remains is the determination of the question of the alleged failure by the petitioner to fully comply with the order for substituted service when he did not publish together with the petition and Form 2, Notice of Date, Time and Venue of Directions Hearing in bothThe National and the Post Courier, a Form 1, Notice to Appear. I have perused the advertisements and they confirm the Second Respondents allegations. No explanation by affidavit evidence has been provided by the petitioner why he did not publish in both dailies a Notice to Appear. The respondents, but more particularly the Second Respondent, did not point to the Court the jurisdictional basis for the Court to dismiss the petition for this reason. The petitioner neither.
47. It has been held in Patrick Basa v Bob Dadae (2013) N4991 that the Election Petition Rules regulate and complement the practice and procedure relating to election petition proceedings. They are subservient to the provisions of the Part XVIII (Sections 206-227, Disputed Elections, Returns, etc.) of the Organic Law. They are comprehensive, exhaustive and generally expressed in mandatory terms. Hence, the courts have time and again emphasised the need for timely disposition of petitions through strict compliance with the requirements of the rules including compliance with Court directions: Philomena Kassman v Kila Igaba (2012) SC1211; Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983; Daniel Don Kapi v Samuel Abal (supra); Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816; Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948; Mikki Kaiok v Rimbink Pato (2005) SC877; and Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589.
48. The Court's power to summarily dismiss a petition for non-compliance with Court directions is set out at Rule 18 of the Election Petition Rules. The rule states:
"Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:-
(i) order that the petition be dismissed where the defaulting party is the petitioner; or
(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(iii) make such other orders as it deems just.
49. The power is discretionary as it is granted by the Election Petition Rules and not a mandatory requirement of the Organic Law. The discretion must be exercised on a proper basis either by the Court on its own volition or on the application of a party and at any stage of the proceedings.
50. It is obvious from sub-rule (i) that where the defaulting party is a petitioner, his or her petition may be dismissed.
51. Is there any proper basis why I should not exercise my discretion against the petitioner and dismiss the petition for failing to publish a notice to appear? I consider that there is and I will give my reasons why shortly.
52. However, before I address this matter, it appears from the Court's record that the Second Respondent filed a notice to appear in these proceedings on 11 October 2012 which was soon after the petition and Notice of Date, Time and Venue of Directions Hearing was published in both dailies. It was not made conditional. Does this mean that the Second Respondent submitted to the jurisdiction of the Court and accepted service of the petition? A conditional notice filed under Order 7 Rule 7 (Conditional Notice) of the National Court Rules may be filed, inter alia, when issues of irregularity of service of a writ is raised. I have already observed in Jamie Maxton-Graham v Electoral Commissioner & Dr.William Tongamp (application for joinder) (supra) that the National Court Rules do not apply to election petition proceedings. There at paragraph 20, I said:
"The National Court Rules applies to all proceedings instituted under those rules: see Order 1 Rule 2 of the National Court Rules. The Organic Law does not expressly adopt the National Court Rules as applying to election petition proceedings. In Delba Biri v Bill Ginbogl Ninkama, it was held that the National Court Rules have no application to election petition proceedings particularly if they were inconsistent with any provision of a statute. There the court observed:
"The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court..."
53. Unlike the National Court Rules, the Election Petition Rules does not provide for the filing of a conditional notice to deal with issues of irregularity of service of a petition or for any other basis. So the fact that one was not filed cannot be held adversely against the Second Respondent. It is clear however from his notice of objection to competency of the petition that he has at the outset disputed service of the petition and one of the basis advanced in the notice was the petitioner's failure to publish a notice to appear. The transcript of proceedings of 12 October 2012 at pages 3 and 4 also confirms that position when it indicates that a notice of motion was filed by the Second Respondent to dismiss the petition for want of compliance with the order for substituted service, but was not pursued following exchanges with the bench and the suggestion by Makail, J that the matter could be raised as a competency issue by way of notice of objection to competency and his counsel at the time concurred with the suggestion.
54. Notwithstanding the failure by the petitioner to provide by affidavit evidence an explanation for the failure to publish a notice to appear as was required by the order for substitute service, in the exercise my discretion, I am not inclined to dismiss the petition for the reasons I give below.
55. It is trite that not complying with an order of the National Court is a serious matter. In the present case, except for the failure to publish a notice to appear, the petitioner has substantially complied with the order for substituted service. That, in my view, dilutes the seriousness of the lack of full compliance with the order for substituted service. The requirement for a petitioner to provide to respondents notices to appear when serving a copy of his or her petition on them is set out in Rule 6 (1)(a). The Second Respondent is already aware of the content and allegations made by the petitioner in his petition through the advertisements placed in The National and the Post Courier. The content and allegations in those advertised petitions are the same as the one in the Court's file. I consider that the Second Respondent will not be prejudiced in any way for purposes of responding to the petition. The Second Respondent has already been advised of the date, time and place where directions hearings were being conducted in accordance with the order for substituted service. The initial date and time fixed for directions hearing of 5 October 2012 at 9:30 am may have preceded the dates of publication in the two dailies, but I find that of no consequence.
56. Finally, the three grounds of petition all raise allegations against the First Respondent to invalidate the election or return of the Second Respondent on the basis of; errors and omissions committed with respect to the appointment of the Provincial Returning Officer and counting officials; illegality of counting of ballot papers on the night of 31 July 2012 and early hours of 1 August 2012, and errors and omissions and illegal practices in relation to the counting of ballot papers. The Second Respondent is an interested party hence his joinder was necessary thereby giving him an opportunity to respond to the allegations in the petition.
57. For these reasons, I will reject the objection as I consider that gross injustice will result if the petition were dismissed for want of publication of a notice to appear in the two dailies contrary to the terms of the order for substituted service.
PLEADING OF RELEVANT MATERIAL FACTS
Pleadings
58. In determining the objections raised by the respondents in the respective notices of objections to the competency of the petition under Section 208 (a) of the Organic Law, I have considered the pleadings contained in the petition.
59. The merits or otherwise of the grounds raised in the petition will be determined at the substantive hearing should it survive scrutiny which is being undertaken now under Section 210 of the Organic Law.
60. In Paru Aihi v Sir Moi Avei (No 2), the Supreme Court addressed this pertinent point as follows:
"It is settled that pursuant to s. 210, a Petition must strictly comply with the mandatory requirements of s. 208, before the petition qualifies for a substantive hearing. The requirements in s. 208 are formal and technical procedural requirements, the determination of which is based on the information endorsed on the face of the petition. As Mr Sheppard submitted, a determination of these matters do not involve any discussion and consideration of the merits of the grounds in the petition. The merits of the grounds in a Petition are determined at the substantial hearing only after the petition survives the formal scrutiny under s. 210. At the substantive hearing, the procedural and evidentiary rules in s. 212 and s. 217 apply, in determining the merits of the grounds in a petition. These principles to me are the clear import of the five-man Supreme Court bench decision in Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342."
Requirement to plead relevant material facts
61. The requirement under Section 208 (a) is to set out the relevant and material facts relied on to invalidate an election or return and not the evidence by which those facts are to be proved. These are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated. The purpose of this type of pleading is to demonstrate to opposing parties with clarity the issues involved in the petition so that the opposing parties may prepare their case and also to enable the Court to see the issues clearly: Holloway v Ivarato (supra). The facts are separate from the grounds relied on to invalidate an election or return.
62. In Holloway v Ivarato (supra), the Supreme Court considered the meaning of the word "facts" under Section 208 (a). In approving and following the conclusion arrived at by Bredmeyer, J in Siaguru v Unagi (1987) PNGLR 372, it held that what that word meant was the material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated should be pleaded, but not the evidence by which it or they might be proved. It is instructive and necessary to cite the relevant passages of the judgment of Kapi, DCJ at pages 101 to 102 with whom Los, J and Hinchliffe, J concurred:
"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s.208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s.208(a) of the Organic Law. The facts set out under s.208(a) of the Organic Law would necessarily indicate the grounds upon which a petitioner relies. The facts which must be set out under s.208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
Two questions arise for consideration at this point:
1. Whether the facts set out should include the evidence by which those facts are to be proved and,
2. the sufficiency of facts which may be set out.
In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.
It would be an unreasonable rule to require the petitioner to set out all the evidence by which a petitioner may rely to prove the material facts. In actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.
It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s.208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s.212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s.208(a) of the Organic Law. 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. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.
In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the ground 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 so enable the court to be clear about the issues involved."
63. The case of Paru Aihi v Sir Moi Avei (2004) N2523 advocates a liberal approach in applying Section 208 (a). In that case, it was held that pleading of relevant facts did not, inter alia, mean pleading the elements of the offence in some meticulous manner in view of the fact that the intention of the Organic Law (as can be inferred from Section 222) was to allow petitioners being ordinary citizens aggrieved by the result of an election to come to court and prosecute their petitions without the assistance of lawyers if they chose not to engage any.
64. The liberal approach was also advocated in Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice Hinchliffe delivered on 16 June 2003; Korak Yasona v Castan Maibawa (1998) SC552; Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on 30 March 1998; Jimson Sauk v Don Pomb Polye (2004) SC769; and Jim Nomane v David Anggo (No 1) (2003) N2496.
65. In Electoral Commission v Henry Iyapo Smith and Biri Kimisopa (supra), the Supreme Court said:
"...But the Organic Law also stipulates strict compliance with certain requirements in the petition. For purposes of expediency, the Court has allowed for a procedure of preliminary objections to ensure that such matters as to compliance with the requirements of the Organic Law are dealt with as expeditiously as possible. These preliminary objections are not designed to deliberately hinder or obstruct the petitioner going to trial, they are to ensure that the Court does not waste its time with matters that are not clearly pleaded. Petitioner must be allowed to proceed to trial and he has the onus to convince the Court that there have been serious errors in the election and that the relief he seeks must be granted. Similarly, we are also mindful of the need by the Court to protect the second respondent as the duly elected member for Goroka Open electorate.
...If more and more unrepresented petitioners come to the Court of Disputed Returns, Courts must be prepared to receive and entertain them without being seen to be too legalistic and rigid in their approach. Otherwise section 222 of the Organic Law becomes superfluous and illusory. Even now, observing from the perspective that the election laws have evolved through judicial pronouncements, the desirability of section 222 remaining as an enforceable law in the Organic Law becomes patently apparent. A judge has to be careful that he does not act too arbitrarily in depriving a petitioner of his right to a hearing before the Court of Disputed Returns.
...The issue really boiled down to evaluation and understanding of the facts. The way the courts have addressed this task had therefore let to a body of judicial determinations that appear to isolate and distance the election petition process further and further away from the ordinary citizen who is entitled to be heard on his petition in person. In other words, citizens are being forced to engage lawyers to represent them in their election petitions because the rules have become so rigid and so technical that the only way to get a hearing is to strictly comply with the requirements of the Organic Law in the way the lawyers understand the rules of the game.
We find that the relief sought by the petitioner is clearly stated. To strike out the petition of a self-represented petitioner for failure to use the terminology or phraseology in the Organic Law, although it is quite obvious as to what the petitioner, on plain and common usage and understanding of English language is seeking or wants in his petition, is really doing an injustice to the citizen."
66. In Jimson Sauk v Don Pomb Polye (supra) the Supreme Court took the liberal approach and reasoned that:
"Because of the frequent nit-picking, technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections."
67. In Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea (supra), Justice Hinchliffe made these observations:
"...It would seem to me that developments in recent years have created a situation that I must say I do not totally agree with. Strict compliance with Section 208(a) appears to have developed into "very, very strict compliance" and I doubt that I would be incorrect in saying that because of the extremely strict compliance it is becoming more and more difficult to get an election petition off the ground. Many of them do not get past the competency stage and are thrown out, at times, on mere technicalities. Is that what the Legislature intended? I don't think so. We hear and read time and time again that an election petition, if one reads Section 222(1) and (2) of the organic Law, was really intended for a non-lawyer to draft and in fact a lawyer cannot appear for a party to a petition unless by consent of all parties or with leave from the National Court. If that is the case then it seems quite bizarre to me that if a non-lawyer was to draft his own petition then I have no doubt at all that it would be torn to pieces, so to speak, by lawyers for the sitting member and the Electoral Commission. In fact, I would be brave enough to say that under those circumstances, a non-lawyer's petition would never get past the first base because it would be certain to be found incompetent. To that extent, we seem to have gone the wrong way because again, it seems to me that most petitions which are found to be incompetent (and there are many of them) are in fact drafted by lawyers. One could only imagine what would happen to a petition that was drafted by a non-lawyer. Is he meant to understand what "material facts" and "relevant facts" are? Is he meant to understand what is the difference between "pleading the facts" and "evidence"? I wouldn't have thought so. This petition would not last long. Petition hearings attract a large crowd of observers and it must be very difficult for the non-lawyers amongst them to understand why a petition was thrown out of Court before it barely commenced. Would that person believe that the petitioner had had a fair hearing and that justice had been done? I don't think so. However, our case law has developed over the years in such a way that one wonders whether justice is really being done. I agree with those people who say that we should be careful when dealing with those cases where the majority of people have put the member in Parliament. On the other hand, we should also be concerned that the person was validly elected to Parliament and thereby being the true representative of his/her people. No matter what a Court case is all about everyone involved should get a fair hearing and never be denied natural justice. Most importantly also, justice must be seen to be done. May be it is time for the Election Petition Rules Committee to take a look at this and develop a system similar to the National Court Rules where, for example, a party can ask for further and better particulars and so on."
68. Section 217 (Real justice to be observed) of the Organic Law could be viewed as lending support to the liberal approach, but it was stated in Delba Biri v Bill Ginbogl Ninkama (supra) that that provision only applies when determining the merits of a case: see also Mapun Papol v Antony Temu (supra).
69. Section 222 (Counsel or solicitor) of the Organic Law has been considered and analysed in a number of election petition cases supporting the liberal approach because the right of a petitioner, who is usually an ordinary citizen, to challenge the validity of an election or return granted by the Organic Law which is a constitutional law is denied on mere technicalities and evade judicial scrutiny despite serious allegations of the propriety of an election or return being raised. I have mentioned some of these cases already.
70. I have considered the cases advocating the liberal approach, but as I stated in Gabriel Lenny Kapris v John Simon & Ors (2013) N5001, I must apply the law that prevails now and the principles enunciated in Delba Biri v Bill Ginbogl Ninkama and Holloway v Ivarato were binding on this Court because they are decisions of the Supreme Court and these principles have been applied in numerous election petition cases and considered good law.
71. In Dick Mune v Anderson Agiru & Ors (1998) SC 590, the Supreme Court held that there is no requirement to plead the law which defines a ground. It follows that pleading the law is no substitute for the requirement to plead material and relevant facts which constitute a ground or grounds relied on to invalidate an election or return.
72. The petition has been presented in three main parts namely, Part A and B and the relief sought.
73. Part A comprising paragraphs 1 to 10 is the introductory part of the petition. Paragraphs 1 to 5 briefly set out the background as to the conduct of the 2012 general election for the Electorate by the First Respondent. A total of 48 candidates contested the seat. Polling was conducted in June and July 2012 and scrutiny was conducted from 16 July 2012 to 1 August 2012. On 1 August 2012, the Second Respondent was declared the winner having polled 35,320 votes. The petitioner polled 27,956 and came third. At paragraph 6, it is pleaded that the petitioner disputes the validity or return of the Second Respondent as winner and duly elected member for the Electorate and seeks a recount of all ballot papers for the Electorate. Paragraphs 7 to 10 briefly state that the grounds based on alleged errors and omissions and illegal practices by the First Respondent or his servants or agents with respect to the appointment of the Provincial Returning Officer for Jiwaka Province and the conduct of scrutiny generally and facts to constitute the grounds to invalidate the election or return of the Second Respondent as the duly elected member for the Electorate are pleaded at Parts 1 to 3 of the petition.
74. Part B comprising paragraphs 11 to 49 sets out the grounds and the facts relied on by the petitioner to invalidate the election or return of the Second Respondent as the duly elected member for the Electorate. Part B is divided into three Parts. Part 1 comprising paragraphs 11 to 22 raises the ground that the First Respondent committed errors and omissions in relation to the appointment of the Provincial Returning Officer (the PRO) and counting officials and contains facts relied on to support the ground. Part 2 comprising paragraphs 23 to 33 raises the ground that the First Respondent through his counting officials who were his servants or agents illegally conducted counting after 4:00 pm on 31 July 2012 to the early hours of 1 August 2012 and contains facts relied on to support the ground. Part 3 comprising paragraphs 34 to 49 raises the ground that the First Respondent through his counting officials who were his servants or agents committed errors, omissions and illegal practices during the conduct of the entire scrutiny and contains facts relied on to support the ground.
75. All the grounds are based on Section 208 (a) of the Organic Law. I will shortly deal with each ground and the facts supporting each ground separately in the order as they are pleaded in the petition.
76. The principal issue for my consideration and determination therefore is whether the petition sets out the relevant and material facts relied on to support the grounds to vitiate the election or return of the Second Respondent as the successful candidate for the Electorate?
77. The reliefs sought by the petitioner are specified at paragraph 50 of the petition. They, inter alia, are:
Errors or omissions
78. Section 218 (Immaterial errors not to vitiate election) of the Organic Law is a relevant provision that must be considered in relation to the petitioner's allegations of errors or omissions committed by the First Respondent or his servants or agents. Only sub-section 1 is relevant for the present purposes and it states:
"Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election."
79. As was stated by the Supreme Court in Ephraim Apelis v Sir Julius Chan (1998) SC573, this provision is concerned with errors of election officials dealing with the process of election commencing with the nominations, polling, the declaration of poll or the return of writ.
80. In Sai–Sail Beseoh v Yuntivi Bao (2003) N2348, Injia, J (as he then was) made the following observations about Section 218 (1):
"Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice."
81. The pleading in the petition therefore must set out the relevant material facts to demonstrate clearly the following;
1. The error or omission complained of;
2. The error or omission was committed by an electoral officer; and
3. The error or omission did affect the result of the election.
82. These three criteria of pleading was applied by Sawong, J in Mathias Karani v Yawa Silupa (2003) N2385.
Ground 1 - The First Respondent committed errors and omissions in the appointment of the Provincial Returning Officer and counting officials
Submissions of the First Respondent
83. In support of his objection to this ground and the facts pleaded to support the ground, the First Respondent through Mr. William of counsel submitted that without the petitioner pleading the numbers of votes said to be affected by the errors and omissions alleged, it was fatal to the advancement of this ground. He said that amounts to failing to plead the material facts on how the alleged errors and omissions affected the result of the election. Counsel referred me to some cases he said were on point and these are, Joel Pepa Paua v Robert Timo Ngale [1992] PNGLR 563, Greg Mongi v Bernard Vogae (1997) N1635, Ludger Mond v Jeffery Nape (2003) N2318, and Sir Arnold Amet v Peter Charles Yama (supra).
Submissions of the Second Respondent
84. Mr. Kuma of counsel for the Second Respondent adopted the Fist Respondent's submissions and proceeded to advance his client's arguments on why the ground should be struck out. The Second Respondent's objections concerning this ground are contained in pages 3 to 6 of his notice of objection to competency. In support of the objections, it is submitted that paragraphs 11 to 22 of the petition should be struck out essentially because they are too vague or general and do not plead with clarity the necessary details as to how the alleged errors and omissions could have affected the result of the election.
Submissions of the petitioner
85. It was submitted that this ground questions the legitimacy or the integrity of the scrutiny from the start of the process to the subsequent declaration of the Second Respondent as the winner of the election. The facts supporting the ground when read together show that sufficient facts are pleaded to support the ground it was further submitted. It was further submitted that the facts show that the appointment of a Mr. Joseph Karap by the Jiwaka Province Election Steering Committee was irregular as being done contrary to Section 19 (1) of the Organic Law therefore all decisions he made or actions he undertook in the conduct of the scrutiny including the declaration under Section 175 of the Organic Law affected the result of the election because they were all null and void. The ground therefore was competent and should be allowed to proceed to trial for determination it was further submitted.
Reasons for ruling
86. Have relevant material facts been pleaded to support the ground? I have carefully considered the facts supporting this ground and the arguments raised by the parties with respect to the ground. Whilst dealing with facts separately from each other is desirable, I am of the view that in this particular case, reading the facts pleaded from paragraphs 11 to 17 and from 19 to 22 together as was submitted by Mt.Yamarhai raise the principal issue of who the Provincial Returning Officer for Jiwaka Province was at the material time and the question of whether the alleged error or omission adversely affected the integrity of the scrutiny? This was the approach taken by Kandakasi, J in Steven Pirika Kamma v John Itanu (2007) N3246. I think they set out the relevant material facts to demonstrate clearly the three criteria of pleading.
87. As to the facts in paragraph 18 of the petition, I would accept the Second Respondent's submission that it is too vague and general and not specific as to the names of counting officials who allegedly took control of the counting room and those who were removed from the counting room: see Mathias Ijape v Bire Kimisopa (2003) N2344. I rule that this paragraph be struck out.
88. The First Respondent through Mr. William of counsel contended that the petitioner in not pleading the numbers of votes said to be affected by the errors and omissions alleged was fatal to the advancement of this ground. He relied on a number of National Court decisions and the Supreme Court decision in Sir Arnold Amet v Peter Charles Yama (supra) which are proponents of the proposition that it is necessary to plead the number of votes secured by the winner and the runner up in order to determine whether or not the result was likely to be affected. I am not bound by decisions of the National Court unless they are of high persuasive value. The decision in Sir Arnold Amet v Peter Charles Yama (supra) which approved the proposition expressed by Kandakasi, J in Ludger Mond v Jeffery Nape (supra) concern illegal practices under Section 215 of the Organic Law. I would think that the proposition applies equally to the determination of conduct of electoral officers based on errors or omissions under Section 218 (1) of the Organic Law. However, I would reject the First Respondent's suggestion to strike out this ground. This is because the ground raises a serious allegation as to the First Respondent's conduct which might have adversely affected the integrity of the scrutiny as if upheld could reasonably be likely to have affected the result of the election.
89. Only part of this ground relating to the allegations concerning the appointment of the Provincial Returning Officer will proceed to trial.
Ground 2 - The First Respondent illegally counted ballot papers after 4:00 pm on 31st July to the early hours of 1st August 2012
Submissions of the First Respondent
90. The First Respondent's objections concerning this ground are contained in paragraphs 3 to 7 of his notice of objection to competency. In support of the objections, it is submitted that:
Submissions of the Second Respondent
91. The Second Respondent's objections concerning this ground are contained at pages 6 to 10 of his notice of objection to competency. In support of the objections, it is submitted that this ground should be struck out because except for paragraph 24 where no objection is raised, the facts pleaded at paragraphs 23 and 25 to 33 to support the ground essentially are too vague or general and do not plead with clarity the necessary details as to how the conduct complained of could have affected the result of the election.
Submissions of the petitioner
92. It was submitted by Mr. Yamarhai that relevant and sufficient material facts in relation to the errors and omissions committed by the First Respondent are pleaded to support the ground. It was further submitted that the legitimacy or the integrity of the scrutiny during the period in question was affected by the decisions of Mr. Alawa to suspend counting and to resume counting either of his own volition or at the direction of another person purporting to act on behalf of the First Respondent. This had a significant bearing on the result of the election it was further submitted. It was also submitted that going by the authority of the National Court decision of Paias Wingti v Kala Rawali (2008) N3285, pleading the names of counting officials was not necessary if it did not prejudice the respondents for lack of detail. These were matters for evidence at trial counsel said.
Reasons for ruling
93. Have relevant material facts been pleaded to support the ground? I have carefully considered the facts supporting this ground and the arguments raised by the parties with respect to the ground. At the outset, I must concur with the First Respondent that paragraph 23 of the petition does not plead whether the conduct complained of constitutes an illegal practice or was an error and omission. Paragraph 23 is the foundation allegation of fact which is particularized by the facts which follow from paragraphs 24 to 33. It is important to make a distinction because considerations to apply may differ. Whilst the word "illegally" has been employed by the petitioner at paragraph 23 to suggest that the conduct complained of could be treated as an illegal practice, I would treat the allegation as being one which should be considered as an error or omission under Section 218 (1) of the Organic Law. The petitioner in his submissions addressed the allegation in the context of an error or omission. The rest of the paragraphs supporting the allegation will be treated similarly.
94. The respondents generally assert that this ground fails to plead the relevant material facts on how the conduct complained of affected the result of the election. Officers who are tasked to conduct the scrutiny at a counting centre are specified by Section 149 of the Organic Law and they are the Returning Officer and in his or her absence from the counting area, by an Assistant Returning Officer. The power to adjourn scrutiny from time to time as necessary until the counting of votes is completed is provided by Section 151 (d) of the Organic Law. The conduct complained of in paragraph 23 is attributed to Mr. Alawa, referred to as the officer in charge of counting. Was he the Assistant Returning Officer? He could not have been the Provincial Returning Officer as part of ground 1 of the petition which I have already upheld to go to trial addresses that matter. I would concur with the Second Respondent that this allegation is too vague and general. I rule that this paragraph be struck out.
95. There is no dispute that the scrutiny was conducted at the Waghi Klos Building in Banz from 16th to 1st August 2012 as is pleaded at paragraph 24.
96. As to the facts pleaded at paragraph 25, I would adopt my earlier remarks about Mr. Alawa in connection with paragraph 23 and would concur with the Second Respondent that the paragraph is too vague and general. I rule that paragraph 25 be struck out.
97. As to the facts pleaded at paragraph 26 of the petition, I would accept the assertions of the respondents that it is too vague and general and not specific as to the names of counting officials alleged to have committed errors or omissions alleged and those affected by fatigue: see Mathias Ijape v Bire Kimisopa (supra). I am not bound by the decision of Paias Wingti v Kala Rawali (supra). I rule that this paragraph be struck out.
98. As to the facts pleaded at paragraphs 27 and 28 of the petition, I would again accept the assertions of the respondents that it is too vague and general and not specific as to the names of counting officials who allegedly left the counting centre as a result of the suspension of scrutiny and those counting officials who participated in the scrutiny after the resumption of scrutiny: Mathias Ijape v Bire Kimisopa (supra). I am not bound by the decision of Paias Wingti v Kala Rawali (supra). I rule that this paragraph be struck out.
99. As to the facts pleaded at paragraph 29, I concur with the respondents that it is too vague and general about how formal or countable votes were removed from the petitioner's tray and placed in trays of candidates yet to be eliminated whose names were not specified thereby reducing his total votes and subsequent elimination. I rule that this paragraph be struck out.
100. As to the facts pleaded at paragraphs 30, 31, 32 and 33 which raise the issue of the legitimacy of the scrutiny attributed to the decisions of Mr. Alawa and the conduct of "few counting officials" whose conduct is alleged to have affected the result of the election, I would adopt my earlier remarks about Mr. Alawa in connection with paragraph 23 and the fact of not naming the "few counting officials" at paragraph 32 as reasons to find that these paragraphs are too vague and general or cannot stand alone even if some details have been provided about the way the scrutiny was conducted at the material time. I rule that paragraphs 30, 31, 32 and 33 be struck out.
101. For all these reasons, I rule that the three criteria of pleading errors and omissions have not all been satisfied. and as a consequence, this ground must be struck out.
Ground 3 - The First Respondent committed errors and omissions and illegal practices in relation to the counting of ballot papers
Submissions of the First Respondent
102. The First Respondent's objections concerning this ground are contained in paragraphs 8 to 14 of his notice of objection to competency.
In support of the objections, it is essentially submitted that the failure to plead specific numbers of votes that have been affected
by the alleged illegal practices or errors or omissions was fatal to the advancement of this ground. This argument is directed at
paragraphs 35, 39, 41 and 47 of the petition. It was further submitted that the names of counting officials whose conducts are alleged
to have affected the result of the election are not pleaded particularly at paragraphs 39 and 43 of the petition. It was therefore
difficult to demonstrate how the conduct complained of affected the result of the election it was further submitted. In his notice
of objection to competency, the First Respondent does not raise specific objections to paragraphs 36, 37, 38, 40, 42, 44, 45, 46,
48 and 49 of the petition.
Submissions of the Second Respondent
103. The Second Respondent's objections concerning this ground are contained at pages 10 to 16 of his notice of objection to competency. The Second Respondent raises objections to all the relevant paragraphs of the petition except for paragraph 37. In support of the objections, it is submitted that this ground should be struck out because the facts pleaded to support the ground essentially are that they are too vague or general or confusing and do not plead with clarity the necessary details as to how the conduct complained of could have affected the result of the election.
Submissions of the petitioner
104. It was submitted by Mr. Yamarhai that relevant and sufficient material facts in relation to the errors and omissions committed by the First Respondent are pleaded to support the ground. Some were stand alone allegations of fact whilst others should be read together counsel submitted. It was also submitted that facts supporting the ground must be viewed in their entirety as was the approach taken in Steven Pirika Kamma v John Itanu (supra). It was further submitted that the legitimacy or the integrity of the scrutiny was seriously affected by the conduct of electoral officials in the discharge of their legal and constitutional obligations which in turn had a significant bearing on the result of the election. It was also submitted that going by the authority of Paias Wingti v Kala Rawali (supra), pleading the names of counting officials was not necessary where it did not prejudice the respondents for lack of detail.
Reasons for ruling
105. Have relevant material facts been pleaded to support the ground? I have carefully considered the facts supporting this ground and the arguments raised by the parties with respect to the ground. At the outset, I must concur with the First Respondent that paragraph 34 of the petition does not plead whether the conduct complained of constitutes an illegal practice or was an error or omission. It is not in the interest of justice to leave the Court and the respondents guessing as to what provision the several conducts complained of should be determined. That paragraph and paragraphs 35 and 36 lay the foundation for the allegation which is particularized by the facts which follow from paragraphs 37 onwards. It is important to make a distinction because considerations to apply differ. In the present case, the petitioner alleges that acts of errors or omissions and illegal practices were committed by electoral officials. Where allegations of illegal practices are made, Section 215 (3) of the Organic Law applies in their determination. Where allegations of errors or omissions are made, Section 218 (1) of the Organic Law applies in their determination.
106. I now make this further observations with respect to the facts relied on to support this ground.
107. As to paragraph 34, I accept the Second Respondents submission that it is too vague and general. It fails to specify; the names of the counting officials who committed the conduct complained of; the total number of the petitioner's ballot papers which were removed and either placed in trays for exhausted and or informal votes or added to the Second Respondent's votes which led to the decrease in the petitioner's votes and subsequent elimination of the petitioner. I rule that paragraph 34 be struck out.
108. As to paragraph 35, I accept the submission that it is too vague and general. It essentially fails to specify; the actual figures of votes or ballot papers; the particular ballot box(es) which did not balance with the actual number of votes or ballot papers; and how the imbalance occurred. I rule that paragraph 35 be struck out.
109. As to paragraph 36, I accept the submission that it is too vague and general. It fails to specify; the ballot box which was not subject to a quality check and the number of ballot papers involved. I rule that paragraph 36 be struck out.
110. There is no dispute that the scrutiny for the Electorate was conducted from 16th to 1st August 2012 as is pleaded at paragraph 37 of the petition.
111. As to paragraph 38, this is a general statement which is of no consequence.
112. As to paragraph 39, I accept the submission that it is too vague and general. It fails to specify the names of counting officials
who were involved in the conduct complained of and the number of formal and countable votes or ballot papers involved. I rule that
paragraph 36 be struck out.
'
113. An allegation of bribery is pleaded at paragraph 40 of the petition and provides some details. Are these details sufficient for
the purpose of Section 208 (a) of the Organic Law? In Mathias Karani v Yawa Silupa (supra), Sawong, J observed that in a petition alleging illegal practices as a ground to invalidate an election, it must plead the following
material facts:
1. the illegal practice;
2. the illegal practice was either committed by the successful candidate or committed by another person, but with the successful candidate's knowledge or authority;
3. the result of the election is likely to be affected by the illegal practice;
4. it would be just that the candidate should be declared not duly elected or the election be declared void.
114. As I have mentioned already, in Sir Arnold Amet v Peter Charles Yama (supra), the Supreme Court said that it will be helpful too to plead the relevant number of votes secured by the winner and the runner-up when determining whether or not the result of the election was likely to be affected. In that case, the Supreme Court also observed that the pleadings must be clear, concise and in sufficient terms so that the opposing party is properly and adequately informed to defend the alleged improper or illegal conduct.
115. Of the four elements required to be pleaded, paragraph 40 will only meet the first and second elements. The relevant number of votes secured by the Second Respondent and the runner-up is not pleaded hence fatal to the establishment of the third element. There is no pleading either at paragraph 40 or elsewhere that it would be just that the candidate should be declared not duly elected or the election be declared void. For these reasons, I will strike out paragraph 40.
116. As to paragraph 41, I accept the submission that it is too vague and general. It fails to specify the numbers of formal and countable votes or ballot papers involved in the conduct complained of and the names of other candidates affected by the alleged conduct. I rule that paragraph 41 be struck out.
117. As to paragraph 42, I accept the submission that it is too vague and general. It fails to specify whether an objection was raised by a scrutineer with respect to the conduct complained of: see Dr Philip Basse v Electoral Commission of Papua New Guinea and John Tongri Hickey (2002) N2340. I rule that paragraph 42 be struck out.
118. As to paragraph 43, I accept the submission that it is too vague and general. It fails to specify the names of counting officials who were involved in the conduct complained of. I rule that paragraph 43 be struck out.
119. As to paragraph 44, I accept the submission that it is too vague and general. It fails to specify; the names of counting officials who were involved in the conduct complained of; the number of the petitioner's formal and countable votes which were affected by the alleged conduct; and whether an objection was raised by a scrutineer with respect to the conduct complained of: Dr Philip Basse v Electoral Commission of Papua New Guinea and John Tongri Hickey (supra). I rule that paragraph 44 be struck out.
120. As to paragraph 45, I accept the Second Respondent's submission that it is too vague and general. It fails to specify; the number of formal and countable ballot papers allegedly removed from ballot box No.18; and whether the conduct complained of was reported to the Provincial Returning Officer or Assistant Returning Officer. I rule that paragraph 45 be struck out.
121. As to paragraph 46, I accept the Second Respondent's submission that it is too vague and general. It fails to specify; the names of counting officials who committed the conduct complained of; the number of formal and countable ballot papers for the petitioner allegedly removed from the identified ballot boxes and placed in the exhausted tray which were never counted; the number of formal and countable ballot papers for the petitioner allegedly removed from the identified ballot boxes and placed in the informal trays which were never counted; the number of formal and countable ballot papers for the petitioner allegedly removed from the identified ballot boxes and placed in the Second Respondent's trays which were counted in his favour; the total number of votes polled by the petitioner, the runner-up and the petitioner at the 40th elimination and the total polled by each of them at the end of counting in the early hours of 1st August 2012; and whether the conducts complained of were reported to the Provincial Returning Officer or Assistant Returning Officer. I rule that paragraph 46 be struck out.
122. As to paragraph 47, I accept the submission that it is too vague and general. It fails to specify; the names of the First Respondent's agents and servants involved in the conduct complained of; the figure by which the Second Respondent's votes increased; and the figure by which the petitioner's votes decreased. I rule that paragraph 47 be struck out.
123. Paragraphs 48 and 49 are general statements.
124. I have struck out most of the facts supporting this ground namely, those pleaded at paragraphs 34 to 36 and 39 to 47. Paragraph 37 concerns a fact which is not disputed by the parties, i.e., the scrutiny for the Electorate was conducted from 16th to 1st August 2012. Paragraphs 38, 48 and 49 are general statements. The three criteria of pleading errors or omissions have not all been met by the petitioner more particularly that the errors or omissions complained of did affect the result of the election.
125. For these reasons, I rule that this ground be struck out.
ORDER
126. The formal orders of the Court are:
Warner Shand: Lawyers for the Petitioner
Niugini Legal Practice: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent
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