Piari v Ipatas [2014] PGNC 278; N5969 (27 April 2014)

N5969

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 102 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE ENGA PROVINCIAL ELECTORATE

BETWEEN

NATHAN PIARI
Petitioner

AND

PETER IPATAS
First Respondent

AND

ANDREW TRAWEN, The Electoral Commissioner of
Papua New Guinea
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2014: 13th March & 2015: 27th April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency of petition – Grounds of – Insufficient facts – Vague and ambiguous allegations – Allegations of illegal practices at polling, errors and omissions at polling and counting, attempted bribery, bribery and undue influence – Relief sought inconsistent with relief in Organic Law on National and Local-level Government Elections – Sections 208 (a) & (b) & 212(f), (g) & (h).

Facts

The first respondent supported by the second and third respondents objected to the competency of petition on the ground that it failed to comply with section 208 (a) and (b) of the Organic Law on National and Local-level Government Elections. The grounds were; the allegations that the Chairman of the Enga Provincial Electoral Steering Committee was a brother in-law of the first respondent and Polling Officials were supporters of the first respondents were not proper grounds to invalidate or void an election or return, the petition failed to plead winning margin, failed to plead sufficient material facts, the allegations were convoluted, lacked clarity and confusing, pleaded evidence rather than facts constituting the grounds and that the relief sought was inconsistent with section 212(f), (g) & (h) of the Organic Law.

Held:

1. The objection in relation to the allegations the Chairman of the Provincial Election Steering Committee being a brother in-law of the first respondent and Polling Officials being supporters of the first respondent was upheld because on their own, they were not proper grounds to invalidate or void an election or return and were struck out.

2. The objection in relation to the failure to plead sufficient facts, petition being convoluted and allegations being vague and unclear was upheld and allegations in relation to attempted bribery, bribery, undue influence, illegal practices and errors or omissions were struck out.

3. The objection in relation to the allegations that the second and third respondents failed to publish Polling Schedule, changed polling dates, failed to provide updated Common Roll, failed to provide list of Polling Officials, failed to conduct last minute pre-counting of ballot-boxes and ballot-papers, failed to inform candidates and scrutineers of the pre-counting of ballot-boxes and ballot-papers were intact and secured for polling and failed to inform voters, candidates and scrutineers of delay of polling by one day was upheld because they were not proper grounds to invalidate or void an election or return and were struck out.

4. The objection in relation to the ground that the relief sought at paragraph 44 of the petition which essentially was a declaration that the election or return of and in respect of the Enga Provincial electorate failed and a supplementary election be conducted was inconsistent with section 212(f), (g) and (h) of the Organic Law on National and Local-level Government Elections, was dismissed as being misconceived.

5. The objection was upheld and the petition was dismissed as being incompetent.

Cases cited:

Philip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013)
SC1295
Mathias Karani v. Yawa Silupa & Electoral Commission (2002) N2385
Sir Pita Lus v. Gabriel Kapris (2003) N2326
Eddie Saweni v. Patrick Pruaitch (2003) N2387
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Pila Ninigi v. The Electoral Commission & Francis Awesa (2013) N5322
Sir Arnold Amet v. Peter Yama (2010) SC1060
Mongi v. Vogae (1997) N1635
Ludger Mond v. Jeffrey Nape (2003) N2318
Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5473
Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429

Counsel:

Mr. S. Soi, for Petitioner
Mr. P. Mawa, for First Respondent
Mr. H. Viogo, for Second & Third Respondents

RULING ON OBJECTION TO COMPETENCY

27th April, 2015

1. MAKAIL, J: The petitioner Mr. Nathan Piari and the first respondent Mr. Peter Ipatas were candidates for the Enga Provincial Seat in the 2012 General Election. The first respondent won and was re-elected to Parliament. The petitioner finished fourth. Aggrieved by the first respondent's election victory, the petitioner filed this petition. The first respondent supported by the second and third respondents objects to the competency of the petition on the ground that it fails to comply with section 208 (a) and (b) of the Organic Law on National and Local-level Government Elections ("Organic Law"). Section 208 (a) and (b) state that a petition must state the facts relied on to invalidate the election or return and specify the relief to which the petitioner claims to be entitled.
Grounds of Objection

2. The grounds of objection are: the allegations in relation to the appointment of Chairman of the Enga Provincial Electoral Steering Committee and Polling Officials are not proper grounds to invalidate or void an election or return, the petition fails to plead winning margin, fails to plead sufficient material facts, the allegations are convoluted, lack clarity and confusing, pleads evidence rather than facts constituting the grounds and that the relief sought is inconsistent with section 212(f), (g) and (h) of the Organic Law.

Grounds of Petition

3. It is said that the petition is grounded on the following allegations:

3.1. Attempted bribery;

3.2. Bribery;

3.3. Undue influence;

3.4. Illegal practices at polling; and

3.5. Errors or omissions at polling and counting.

4. Counsel for the first respondent Mr. Mawa, counsel for the second and third respondents Mr. Viogo and counsel for the petitioner Mr. Soi filed written submissions as directed by the Court and also presented oral submissions. I have considered them. Each has correctly referred to the relevant principles on pleading of material facts in cases of illegal practice, errors or omissions, bribery and undue influence, and past decided cases to support their respective cases. I will refer to them in my deliberation.

General Overview of Petition

5. This petition has been a difficult one to deal with. Contrary to the counsel for the petitioner's submission that more information in the petition is better than little or no information at all, the task of determining the objection against the allegations pleaded in the petition has been prolonged because of how the petition has been drafted. To start off with, it is 35 pages long with 44 paragraphs and countless sub-paragraphs. As a result, it is convoluted and riddled with vague and unclear allegations hence, making it difficult to work out the grounds of the petition. These has led to a lot of confusion as to what sort of allegations are being alleged against the respondents. I had thought that a petition is supposed to be simple, easy and straight forward. Notably, this petition was filed by a law firm, the petitioner's former lawyers and it is presumed that they had drafted it hence one, would have thought that it would be simple and straight forward to understand. Unfortunately, this is not the case here.

Preliminary Objection

6. First, I deal with the petitioner's preliminary objection to the notice of objection to competency. He objects on the ground that it was not verified by an affidavit, hence it is inadmissible. On this basis, there is no objection to competency upon which the respondents can move the Court to dismiss the petition. I reject this submission and accept the respondents' submission who submitted that the objection is misconceived because the notice of objection is a document which puts the other side on notice of the objection, the ground(s) of objection and where possible, the date of hearing. In my view, unless its service is in issue, it is not necessary to verify it by way of an affidavit. In this case, there is no issue as to service, thus it must be the case that it is properly before the Court. For these reasons, I dismiss the preliminary objection.

Appointment of Electoral Officials

7. Running through the allegations, at paragraphs 7.12, 7.13(a) to (t), 7.14(a) to (p), 7.15(a) to (j) and 7.16(a) to (j) of the petition, the petitioner alleges that the Chairman of the Enga Provincial Electoral Steering Committee Dr. Samson Amean is a brother in-law of the first respondent and Polling Officials are supporters of the first respondent. But is it unclear if these allegations are intended to be relied upon as grounds to invalidate or void the election of the first respondent or to support the allegations of illegal practice and/or errors or omissions, bribery and undue influence.

8. If the former were intended, I accept the respondents' submission that they are not proper grounds to invalidate or void an election or return. There must be a connection between them and illegal practices and/or errors or omissions committed at polling and/or counting and by their conduct, the result of the election was likely to be affected or was affected by this number of votes.

9. For instance, Dr. Amean and Polling Officials changed polling locations in order to deny or deprive the electors the opportunity to vote and by their conduct the result of the election was likely to be affected or was affected to constitute an illegal practice. Similarly, they marked all the ballot-papers in each polling location in favour of the winning candidate to constitute an illegal practice. It follows unless the allegations are to establish some form of illegal activity or errors or omissions committed by Dr. Amean and Polling Officials, I am satisfied on their own they, are not proper grounds to invalidate or void the election or return of the first respondent. These allegations are pleaded at paragraphs 7.12, 7.13(a) to (t), 7.14(a) to (p), 7.15(a) to (j) and 7.16(a) to (j) and are struck out.

10. However, if they were intended to support the allegations of illegal practice and/or errors or omissions and even attempted bribery, bribery and undue influence, are there sufficient facts to support those allegations? In other words, there must be a correlation or connection between them and those allegations.

Attempted Bribery

11. Given the convoluted state of the pleadings, it has been difficult but I have been able to identify at least three instances of attempted bribery. If I am wrong, then the petitioner should accept responsibility for my misjudgement given the state of the pleadings. The first case of attempted bribery is at paragraph 7.5. There, the petitioner alleges that the Provincial Election Steering Committee Chairman Dr. Samson Amean was "allegedly involved in attempted bribery." Under section 215 of the Organic Law, attempted bribery is a ground to void an election. Attempted bribery just like bribery is a criminal offence under section 103 of the Criminal Code. In order to sustain it, the petition must plead the necessary elements under section 103 (supra). They are essentially that the alleged offender attempted to give, confer or procure, or promise or offer to, on, or for, any person, any property or benefit of any kind in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election.

12. I accept the respondents' submission that this allegation lacks all the necessary and essential facts to show the elements of attempted bribery to sustain the allegation. The petition fails to state the name of the person(s) who Dr. Amean attempted to bribe, the property or benefit of any kind used in the attempted bribery and the purpose to which it was given. This ground is struck out.

13. The second case of attempted bribery is at Kanak polling place. It is pleaded at paragraph 17.1(u) of the petition. There, the petitioner alleges that the presiding officer Michael Yanowa who is a supporter of the first respondent attempted to bribe voters with cash of K20,000.00 which was given by the first respondent. It was rejected and was witnessed by Tanda Yalia, Mark Piuku and Alwin Nick. While the attempted bribery was witnessed by Tanda Yalia, Mark Piuku and Alwin Nick, this pleading is irrelevant and unnecessary because whoever saw the alleged attempted bribery is a witness and may be called upon to testify at trial. That aside and if one were to apply section 103 (supra), very important facts as to who was given the money by the presiding officer and was rejected and the purpose of the money are missing. Was it given as an attempt to procure the return of the first respondent? In my view, these are essential elements of the offence of attempted bribery as well as material facts and are missing.

14. In addition to that, the pleading is vague and unclear in relation to the sum of K20,000.00. It does not state if the presiding officer attempted to give K20,00.00 to one elector or distributed it amongst the electors and if so, how much he attempted to give to each elector. All in all, the allegation of attempted bribery at paragraph 17.1(u) of the petition suffers from these deficiencies and is struck out.

15. The third and last case of attempted bribery is alleged at paragraph 17.3(o) of the petition. There, the petitioner alleges that the presiding officer by the name of Kopata Nip of Yambali polling place who is a supporter of the first respondent attempted to bribe voters during polling but the voters refused to accept the bribe. He managed to get only 27 votes for the first respondent. The incident was witnessed by scrutineer Danny Waro.

16. The pleading suffers from the same deficiencies as were found in the first two cases of attempted bribery. The pleading that Danny Waro witnessed the incident is irrelevant and unnecessary because unless it is also pleaded that he is an elector and did vote for the first respondent, it is not a material fact. In any case, whoever saw the incident is a witness and may testify at trial. As to the material facts, there is no pleading as to the name of the person(s) who was attempted to be bribed by the presiding officer, the property or benefit of any kind used in the attempted bribery and the purpose to which it was given. In addition, to generally allege that the presiding officer attempted to bribe voters but the voters refused to accept the bribe must be rejected because it is vague and too general. Pleading the factual allegation in this manner does not assist the respondents to identify the person who was attempted to be bribed and runs counter to the requirement to plead the elements of the offence of attempted bribery under section 103 (supra). Paragraph 17.3(o) is struck out.

Bribery

17. The convoluted state of the pleadings has also made it difficult to identify or separate the allegations of bribery from illegal practices at paragraphs 7 to 17 of the petition, excluding paragraphs 7.5, 17.1(u) and 17.3(o) (Attempted Bribery) which have been dealt with. I say this because in these paragraphs, the petitioner purports to allege bribery and illegal practices at various polling locations in the Lagaip-Porgera Open electorate which also affected the election of the Provincial electorate. However, there must be a clear distinction in the pleadings between bribery and illegal practices as grounds to invalidate or void an election.

18. This is because under section 215 (supra), bribery and illegal practice are distinct legal grounds to void an election and the difference between them is that in a case of illegal practice, it must be pleaded and proven that by the illegal practice, the result of the election was likely to be affected or was affected and that it is just that the candidate should be declared not to be elected or that the election should be declared void.

19. In the case of bribery, pleading these facts is not necessary. Bribery is a criminal offence under section 103 (supra). In order to sustain it, the petition must plead the necessary elements under section 103 (supra). These are essentially that the alleged offender gave, conferred or procured, or promised or offered to give, or confer, or procure, or promise or offer on, or for, any person, any property or benefit of any kind in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election.

20. Going by what the petitioner has pleaded and doing the best as I can, I am able to identify sixteen (16) instances of bribery. They are pleaded at paragraphs 7.8, 17.1(c), 17.1(n), 17.1(p), 17.1(q), 17.1(r) & (s), 17.1(x), 17.2(b), 17.2(c), 17.2(d), 17.2(g), 17.2(h), 17.2(j), 17.4(l), 17.4(n) and 17.4(o) of the petition. The gist of the bribery allegations in these paragraphs is that Polling Officials (presiding officers) at Yokonda, Tumbiop Ward 9, Mapumanda, Pulukus, Lyamala, Wanepos, Yangiyangi, Kindarep, Tukusanda, Nagulam, Yamandi, Pipigus, Yambali, Politica, Porgera Station and Papaki polling places bribed voters. They gave money (cash) and/or goods to electors. The deficiencies identified are:

21. Starting at paragraph 7.8, the petitioner alleges that the first and third respondents' servants and agents used huge amount of cash to bribe voters. Their action directly impacted and/or induced eligible voters to cast their votes in favour of the first respondent, thereby preventing the free voting and interfering with the conduct of free and fair election. I accept the respondents' submission that this allegation should be struck out because it fails to plead sufficient facts as to the identity of the person who bribed the voters, the identity of the voter or voters who was or were bribed, the property or benefit of any kind in order to induce the named voter or voters to endeavour to procure the return of the first respondent at the election. These facts are missing.

22. In addition, the allegation that huge amount of cash money was given is vague and too general. The petitioner is required to specify the amount of cash given. Similarly, the allegation that first and third respondents' servants and agents were involved in bribing voters is vague and too general. He must name the servants and agents of the first and third respondents who committed the bribery. Furthermore, the allegation that voters were given the money is vague and too general. He must be specific. He must name the voters. Paragraph 7.8 is struck out.

23. At paragraph 17.1(c), the petitioner alleges that Max Mendai and Councillor Andrias Niata the presiding officer and assistant presiding officer of Yokonda polling place respectively who are supporters of the first respondent collaborated and marked out 419 votes for the first respondent. Councillor Andrias Niata was involved in bribery. This incident was witnessed by lawyer and candidate for Lagaip-Porgera Open electorate Jeffrey Abone and scrutineer Samas Yako.

24. While the alleged bribery was witnessed by Jeffrey Abone and Samas Yako, it is not pleaded if they are electors and they voted in favour of the first respondent. Thus, they cannot claim that they were bribed by Councillor Andrias Niata. In any case, it is irrelevant and unnecessary because whoever saw the alleged bribery incident may be a witness at trial. As to the facts establishing the elements of bribery, there are no facts as to identifying by name the person bribed, if he is an elector, the property or benefit of any kind and the purpose for it. That is it was given to induce the person to vote for the first respondent or procure the return of the first respondent. These are material facts and are missing. Paragraph 17.1(c) is, therefore, struck out.

25. Paragraph 17.1(n) alleges that the presiding officer of Tumbiop Ward 9 polling place Councillor Henry Sally and one other Linus Amail from Apulin Tribe and relatives of the first respondent bribed all voters at the polling place on the day of polling with K20,000.00 cash given by the first respondent. This incident was witnessed by the petitioner's scrutineers, Bill Lai and Stanley Kano. This allegation suffers from the same deficiencies as were found in the bribery cases at Yokonda polling location. While the bribery was witnessed by Bill Lai and Stanley Kano and it may be the case that all the voters received money, the pleading does not state that Bill Lai and Standley Kano also received the money. So they cannot claim that they were bribed by Councillor Henry Sally or Linus Amail.

26. Similarly, proof of one instance of bribery is sufficient to void an election and while it may be that all the voters were bribed, there are no facts as to the identity of the voters who received the money. The minimum required of the petitioner is to name one of the voters. He has not done that so the respondents are left to guess who the voter is. In addition, the pleading is vague and too general because it does not state if Councillor Henry Sally gave K20,000.00 to one voter or all of them. If he distributed it, the petition does not state the amount given to each voter. Paragraph 17.1(n) is struck out.

27. Paragraph 17.1(p) alleges that the campaign coordinator of the first respondent in Laiagam District one Joseph Yakapus Nanai was appointed presiding officer of Mapumanda polling place. He was involved in bribery and marked out 336 votes for the first respondent. This incident was witnessed by the petitioner who says that he captured it in a video camera. This allegation suffers from the same deficiencies as were found in the bribery cases at Yokonda and Tumbiop Ward 9 polling places. While the alleged bribery was witnessed by the petitioner and was captured in a video camera, it is not pleaded if he is an elector and he voted in favour of the first respondent. Thus, he cannot claim that he was bribed by Councillor Joseph Yakapus Nanai. In any case, it is irrelevant and unnecessary because whoever saw the alleged bribery incident and captured it in a video camera may be a witness at trial.

28. As to the facts establishing the elements of bribery, there are no facts as to the identity of the person bribed by name, if he is an elector, the property or benefit of any kind and the purpose to which it was given. That is, it was given to induce the person to vote for the first respondent or procure the return of the first respondent. These are material facts and are missing. Paragraph 17.1(p) is, therefore, struck out.

29. At paragraph 17.1(q), the petitioner alleges that Moses Pyale and Lowan Kandi the presiding officers of Papayuku 1 and 2 polling places respectively were involved in alleged bribery and marked out 576 votes for the first respondent. David Pitai witnessed the incident. This allegation suffers from the same deficiencies as were found in the bribery cases at Yokonda, Tumbiop Ward 9 and Mapumanda polling places. While the alleged bribery was witnessed by David Pitai, it is not pleaded if he is an elector and he voted for the first respondent. Thus, he cannot claim that he was bribed by Moses Pyale and Lowan Kandi. In any case, it is irrelevant and unnecessary because whoever saw the alleged bribery incident and captured it in a video camera may be a witness at trial.

30. As to the facts establishing the elements of bribery, there are no facts as to the identification of the person bribed by name, if he is an elector, the property or benefit of any kind and the purpose for it. That is, it was given to induce the person to vote for the first respondent or procure the return of the first respondent. These are material facts and essential elements of the offence of bribery and are missing. Paragraph 17.1(q) is, therefore, struck out.

31. Paragraph 17.1(r) & (s) alleges that the presiding officer of Pulukus polling place Aaron Luwai and the assistant presiding officer Kaspet Palangu who are Provincial Health Advisor and current Peoples Party General Secretary of Laiagam District respectively divided K50,000.00 given by the first respondent with Cathy Luwai and used K30,000.00 to buy 2 cartons of lamb flap meat, 10 cartons of coke soft-drinks and gave them with K2,000.00 each to all members of Kilo sub-clan. Kaspet Palangu paid K50.00 for each vote cast for the first respondent and an official was paid K200.00.

32. These allegations suffer from the same deficiencies as were found in the bribery cases at Yokonda and Tumbiop Ward 9 polling places. While the bribery was witnessed by Danny Molos and it may be the case that voters received goods and money, the pleading does not state that Danny Molos was an elector and he voted for the first respondent and also received the goods and money. So he cannot claim that he was bribed by Aaron Luwai and Kaspet Palangu. Similarly, proof of one instance of bribery is sufficient to void an election and while it may be that voters were bribed, there are no facts as to the identity of one voter and or the voters who received the goods and money. The minimum requirement is that the petitioner must plead the name of one of the voters. He has not done that. This factual allegation is missing. Again, the respondents are left to guess who the voter was. For all these reasons, these allegations at paragraph 17.1(r) & (s) are struck out.

33. Paragraph 17(1)(x) alleges that at Lyamala polling place, the presiding officer and headmaster of Taluma Primary School Iso Norm was given K20,000.00 by the first respondent and marked out 96 votes for the first respondent. This incident was witnessed by the petitioner and Godfry Waip. Again, while the incident was witnessed by the petitioner and Godfry Waip, it is not pleaded that both are electors and did cast their votes in favour of the first respondent. So, they cannot claim that they were bribed by the presiding officer. Repeating what I said earlier, this pleading is also irrelevant and unnecessary because whoever saw the alleged bribery is a witness and may be called upon to testify at trial. Apart from this defect, the petition fails to plead the purpose to which the money was given to the presiding officer and it cannot be inferred nor assumed that just because the money was given to the Headmaster of Taluma Primary School who happened to be the presiding officer of Lyamala polling place that it was given as a bribe to induce him to mark 96 votes for the first respondent.

34. In addition to that, the allegation is confusing because on the one hand, it purports to allege bribery and on the other, illegal practice. The petitioner seems to allege that the presiding officer marked 96 votes for the first respondent but it is not pleaded if there was polling or no polling at that location. If there was polling, there is no pleading as to how the 96 votes were marked for the first respondent. Paragraph 17(1)(x) is struck out.

35. At paragraph 17(2)(b), the petitioner alleges that at Wanepos polling place, the presiding officer by the name of Jimmy Waka a supporter of the first respondent and father in-law of Chain Ipatas marked out 1,015 votes for the first respondent. He collaborated with Councillor Lata Kandata the ward councillor of Wanepos and owner of Lyonge Liquor Club and used 10 cartons of beer to bribe youths and paid K50.00 each for each vote and marked 696 ballot-papers out of 1,222 ballot-papers. This incident was witnessed by scrutineer and an elector Lato Peter.

36. This allegation suffers from the same deficiencies as were found in the bribery case at Lyamala polling place. Again, while the incident was witnessed by Lato Peter who is also an elector, it is not pleaded that he cast his vote in favour of the first respondent. So, he cannot claim that he was bribed by the presiding officer. Other than this, the petition does not plead the purpose to which the goods and money were given and it cannot be inferred nor assumed that just because they were given to the youths they were given as a bribe to induce them to mark out 696 votes for the first respondent.

37. In addition to that, just like the bribery allegation at Lyamala polling place, the allegation is confusing because on the one hand, it purports to allege bribery and on the other, illegal practice. The petitioner seems to allege that the presiding officer marked 696 votes for the first respondent but it is not pleaded if there was polling or no polling at that location. If there was polling, there is no pleading as to how the 696 votes were marked for the first respondent. Paragraph 17(2)(b) is struck out.

38. At paragraph 17.2(c), the petitioner alleges that the presiding officer of Yangiyangi polling place Erick Sukulin a supporter of the first respondent received bribe from Nixon Mangape and the first respondent and totally messed up the ballot-papers. As a result, the petitioner lost 600 plus votes. This incident was witnessed by scrutineer Sikite Ware. For the same reasons as earlier stated, the petition does not plead that Sikite Ware is an elector and did cast his vote for the first respondent. Thus, he cannot claim that he was bribed and in any case, he may be a witness at trial. The other reason is that important material facts as to the property or benefit given to the presiding officer and the purpose to which it was given are not pleaded. So what was given to the presiding officer and why was it given are facts that are missing.

39. In addition to that, just like the bribery allegation at Lyamala polling place, the allegation is confusing because on the one hand, it purports to allege bribery and on the other, illegal practice. The petitioner seems to allege that the presiding officer marked 696 votes for the first respondent but it is not pleaded if there was polling or no polling at that location. If there was polling, there is no pleading as to how the 696 votes were marked for the first respondent. Paragraph 17(2)(c) is struck out.

40. I could go on like this and give my reasons to uphold the objection and strike out the remaining seven (7) instances of bribery but it would be repetitious of me and not an ideal thing to do in the light of the lengthy petition. As the allegations are very much similar with minor variations in relation to names of polling places, polling officers, number votes affected etc, I propose to dispose of them in this way.

41. Paragraph 17(2)(d) – Bribery at Kindarep. Presiding Officer is Kandaro Kaki and he gave K5,000.00 to voters. This paragraph is struck out for the reasons as earlier stated.

42. Paragraph 17(2)(g) – Bribery at Tukusanda. Presiding Officer is Cathy Luwai. In addition to the reasons as earlier stated, the petition does not plead the property or benefit of any kind given to the voters. The missing pleading is a material fact and essential element of the offence of bribery. Its omission is fatal and renders the pleading in this paragraph incompetent. This paragraph is struck out.

43. Paragraph 17(2)(h) – Bribery at Nagulamp. Presiding Officer is Jacob Yakapo. In addition to the reasons as earlier stated, the petition does not plead the property or benefit of any kind given to the voters. Again, the missing pleading is a material fact and essential element of the offence of bribery. Its omission is fatal and renders the pleading in this paragraph incompetent. This paragraph is struck out.

44. Paragraph 17(2)(j) – Bribery at Pipigus. Presiding Officer is Raymond Etami. In addition to the reasons as earlier stated, the petition does not plead the property or benefit of any kind given to the voters. Again, the missing pleading is a material fact and essential element of the offence of bribery. Its omission is fatal and renders the pleading in this paragraph incompetent. This paragraph is struck out.

45. Paragraph 17(4)(l) – Bribery at Politica. Presiding Officer is Sam Micky. In addition to the reasons as earlier stated, the petition does not plead the property or benefit of any kind given to the voters. Again, the missing pleading is a material fact and essential element of the offence of bribery. Its omission is fatal and renders the pleading in this paragraph incompetent. It is struck out.

46. Paragraph 17(4)(n) – Bribery at Porgera Station. Presiding Officer is Leo Kuala and he was given liquor licence. This paragraph is struck out for the reasons as earlier stated.

47. Paragraph 17(4)(o) – Bribery at Papaki. Presiding Officer is Leo Luwai Yakapo. In addition to the reasons as earlier stated, the petition does not plead the property or benefit of any kind given to the voters. Again, the missing pleading is a material fact and essential element of the offence of bribery. Its omission is fatal and renders the pleading in this paragraph incompetent. This paragraph is struck out.

Illegal Practices

48. Turning to the allegations of illegal practice, the petition must plead:

(a) The illegal practice;

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

(c) The result was likely to be affected by the illegal practice;

(d) That it would be just that the candidate should be declared not duly elected or the election be declared void: see Mathias Karani v. Yawa Silupa & Electoral Commission (2002) N2385; Sir Pita Lus v. Gabriel Kapris (2003) N2326 and Eddie Saweni v. Patrick Pruaitch (2003) N2387.

49. In Philip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295, which was a review against my decision, the Supreme Court suggested that preferably the relevant provision of the Organic Law or the Criminal Code should be pleaded. I follow that decision because as an illegal practice is a criminal offence, a clear, concise and coherent way of pleading the allegations of legal practices is to plead the facts constituting the elements of the offence and also plead the relevant provision of the law that was allegedly breached. The reason for this proposition is this there are many offences which are commonly referred to as "electoral offences" in the Organic Law and the Criminal Code and one can easily become confused if they are not pleaded in the petition. Some of them are those that the petitioner has pleaded at paragraphs 7.1 and 7.2. They are:

• Under the Organic Law:
  
  • ➢ Section 130 – The polling
  • ➢ Section 139 – Method of marking ballot-paper
  • ➢ Section 190 – Making marks on ballot-Papers
  • ➢ Section 191 – Electoral offences (There are 14 of them, some are)
    • Voting more than once at the same election
    • Wagering on the result of an election
    • Wilfully defacing, mutilating, destroying or removing a notice, list or other document affixed by the Returning Officer or by his authority
    • Fraudulently taking a ballot-paper out of the polling booth
    • Taking a ballot-paper out of a polling booth
    • Unlawfully destroying, taking, opening, or otherwise interfering with ballot-boxes or ballot-papers
      
• Under the Criminal Code:
  
  • ➢ Section 100 – Double voting
  • ➢ Section 105 – Illegal practices
  • ➢ Section 106 – Other illegal practices
  • ➢ Section 108 – Interference at elections
  • ➢ Section 110 – Stuffing ballot-boxes
  • ➢ Section 111 – Offences by presiding officers at elections
  • ➢ Section 113 – Interfering with secrecy at elections.
  • ➢ Section 114 – Breaking seal of packets used at elections
    

50. Given that there are so many different types of electoral offences, it is therefore preferable for the petitioner to plead the electoral offence (the relevant provision of the law either the Organic Law or the Criminal Code) in each allegation of illegal practice. The reason is that it will enable the respondents to know the charge they will meet at trial.

51. First, I accept the respondents' submission that the pleadings and grounds raised at paragraphs 7.9 to 7.16 are convoluted, confusing and lack clarity as to what particular ground the petitioner wishes to rely on to invalidate the election of the first respondent. It is unclear whether the petitioner alleges illegal practices under section 215(3) (supra) or errors or omissions under section 218 (supra). It is not for the Court to draw inferences from the confusing pleadings. In addition to the reasons given earlier (see paragraph 7, 8 and 9 above), the pleadings and grounds at these paragraphs are struck out for this further reason.

52. Secondly, at paragraph 17 and its sub-paragraphs, the petitioner purports to allege illegal practices at polling. He asserts that presiding officers illegally marked ballot-papers in each polling places. But I have to agree with the respondents who submitted that the pleading in these paragraphs are so convoluted that it is difficult to establish whether the petitioner is relying on illegal practices or errors or omissions to void the election of the first respondent.

53. Let me explain further. At paragraph 17.1(d), the petitioner alleges that at Tupangus polling place, the presiding officer Newman Pain forcefully marked out 1,228 votes for the first respondent. This incident was witnessed by the petitioner and his driver Tuvi Kandakasi. While the petitioner asserts that this constitutes an illegal practice, he does not specify the electoral offence with reference to the relevant law. This is important because as I said earlier, there are many electoral offences. Hence, it is necessary for him to specify it. Is it double voting under section 100 of the Criminal Code or is it stuffing of ballot-boxes under section 110 of the Criminal Code or both? It is unclear. The Court cannot assume nor draw inferences in this case.

54. The ambiguity is further compounded by the assertion that the person involved in the illegal marking of the ballot-papers is a presiding officer, so there must be a clear distinction between illegal practice and errors or omissions committed by the presiding officer because he is an electoral official. Otherwise, one can be misled to think that the ground relied on is errors or omissions.

55. I give the same reasons for allegations pleaded in subsequent paragraphs:

- Paragraph 17.1(e) - Porgeras Polling Place - Presiding Officer George Titakai;
- Paragraph 17.1 (f) - Yangi polling place - Presiding officer David Ezekiel;

- Paragraph 17.1 (g) - Yangi Team 2 polling place - Presiding officer Charles Ponoso;

- Paragraph 17.1 (l) - Kailam Polling place - Presiding officer Wane Late;

- Paragraph 17.1 (m) - Pyakain polling place - Presiding officers Lombati Lasal and Comallar Apeto;

- Paragraph 17.1 (n) - Tumbiop polling place - Presiding officers Linus Amail and Comallar Henry Sally;

- Paragraph 17.1 (o) - Kepelam Polling Place - Presiding Officer Anderson Piuk;

- Paragraph 17.1 (p) - Mapumanda Polling Place - Presiding officer Joseph Yakapus Nanai;

- Paragraph 17.1 (q) - Papayuku 1 & 2 polling place - Presiding officers Moses Pyale and Lowan Kandi;

- Paragraph 17.1(r) - Pulukus (1) polling place - Presiding officer Aaron Luwai;

- Paragraph 17.1 (v) - Yango (1) Polling place - Presiding officer Wapit Kumbuni;

- Paragraph 17.1 (w) - Tendep polling place - Presiding officer Joel Opos;

- Paragraph 17.1 (x) - Lyamala polling place - Presiding officer Iso Norm;

- Paragraph 17.1 (y) - Landelyam polling place - Presiding officer Daniel Waiyon;

- Paragraph 17.2 (a) - Wapele polling place - Presiding officer David Miukin;

- Paragraph 17.2 (b) - Wanepos polling place - Presiding officer Jimmy Waka;

- Paragraph 17.2 (c) - Yangiyangi polling place - Presiding officer Erick Sukulin;

- Paragraph 17.2 (d) - Kindarep polling place - Presiding officer Kandaro Kaki;

- Paragraph 17.2 (e) - Kaipare polling place - Presiding officer Charles Bannah;

- Paragraph 17.2 (f) - Sirunki polling place - Presiding officers Jeffery Don and Kundus Lari;

- Paragraph 17.2 (g) - Tukusanda polling place - Presiding officer Cathy Luwai;

- Paragraph 17.2 (h) - Nagulam polling place - Presiding officer Jacob Yakapo;

- Paragraph 17.2 (i) - Yomandi 1 & 2 polling places - Presiding officers Betani Nota and Joel Pesaul;

- Paragraph 17.2 (j) - Pipigus polling place - Presiding officer Raymond Etami;

- Paragraph 17.2 (k) - Aiyaka polling place - Presiding officer Stanley Yakapus;

- Paragraph 17.3 (k) - Mulitaka polling place - Presiding officer Ivor Kaope;

- Paragraph 17.3 (l) - Paitenges polling place - Presiding officer Robert Poko;

- Paragraph 17.3 (m) - Ipalop polling place - Presiding officer Isep Yowane;

- Paragraph 17.3 (n) - Ulipa polling place - Presiding officer Luke Pakui;

- Paragraph 17.3 (o) - Yambili polling place - Presiding officer Kopata Nip;

- Paragraph 17.3 (p) - Yuyango polling place - Presiding officer Role Status;

- Paragraph 17.4 (k) - Yuyan polling place - Presiding officers Councillor John Pawe and Andape Tende;

- Paragraph 17.4 (l) - Politica polling place - Presiding officer Sam Micky;

- Paragraph 17.4 (m) - Apalaka polling place - Presiding officer Gayson Tau;

- Paragraph 17.4 (n) - Porgera station polling place - Presiding officer Leo Kuala;

- Paragraph 17.4 (o) - Papaki polling place - Presiding officer Leo Luwai; and

- Paragraph 17.4 (p) - Kolombi polling place - Presiding officer Silas Aiyala.

56. Furthermore, paragraph 17.1(g) to (k) is confusing because the allegations are convoluted. It is unclear whether the petitioner alleges illegal practices under section 215 (supra), or errors or omissions under section 218 of the Organic Law. I am not certain because if he is alleging illegal practice, it is not clear what sort of illegal act or offence the respondents have committed. Is it stuffing of ballot-boxes which is an offence under section 110 of the Criminal Code or is it unlawfully destroying, taking, opening or otherwise interfering with ballot-boxes or ballot-papers, which is an offence under section 191 of the Organic Law? The pleading in these paragraphs does not specify or state them.

57. If he is alleging errors or omissions at polling and at counting, again, with respect to polling, the pleadings do not specify the error or omission committed by the polling official in the discharge of his duties. If it is failing to ensure that each elector was given a ballot-paper to cast his or her vote or is it allowing persons who were not eligible voters to vote in breach of his or her duties under the Organic Law, section 131 (Elections at which Electors are entitled to vote) section 132 (Where electors may vote) and section 133 (Persons claiming to vote to give name and particulars). The pleading must specify the duty and the breach of the duty by the polling official. Again, the pleading does not specify or state them.

58. With respect to counting, the pleading does not state the alleged error or omission committed by the Returning Officer in charge of counting. I can see that the petitioner is complaining about the ballot-box for Yangil polling place being admitted to scrutiny despite discovery of three (3) different signatures at the back of ballot-papers and it was disputed by his scrutineers. The Returning Officer allowed them to be counted and on 25th July 2012, he made an "official dispute letter" to the second respondent and highlighted the discrepancies in the counting at various polling places stated in the table at sub-paragraph (k) of the petition.

59. But there is an established procedure for objection to ballot-box from being admitted to scrutiny. It is provided under section 153A of the Organic Law. This provision states:

"153A. Excluding ballot-box from scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: —

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition."

60. In Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286, the Court held amongst others that if a scrutineer, candidate or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny. Secondly, the Returning Officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of section 153A and the reasons for forming that opinion.

61. I consider that where a petitioner alleges that an electoral official (the Returning Officer) committed an error or omission by refusing or admitting a ballot-box to scrutiny, it is necessary to plead material facts to support the allegation under section 153A (supra). A clear statement on pleading of material facts may be found in the judgment of the learned Chief Justice in Pila Ninigi v. The Electoral Commission & Francis Awesa (2013) N5322. They are essentially the procedure outlined in Paias Wingti v. Kala Rawali's case (supra).

62. In this case, there is no pleading that the Returning Officer had a duty under section 153A (supra) and that he breached it. This is because there is no pleading that the Returning Officer had a duty to deal with an objection and failed in the discharge of that duty. For instance, there is no pleading identifying where the Returning Officer failed in complying with the procedure for objection. That is if petitioner brought the objection to the disputed ballot-box for Yangil polling place and even the other polling places as stated in sub-paragraph (k) to the attention of the Returning Officer, that he did not addressed his mind to the objection and did not make an independent decision, (subject only to direction by the Electoral Commission), to admit or refuse to admit the ballot-box to scrutiny. Secondly, I find no pleading in relation to the Returning Officer's decision to dismiss the objection and admit the ballot-box to scrutiny and the reasons for forming that opinion.

63. Furthermore, the allegation at sub-paragraph (k) that on 25th July 2012 the petitioner made an "official dispute letter" to the second respondent in relation to discrepancies in the votes at polling places stated in the table in the said sub-paragraph is irrelevant and must be rejected because the objection is contrary to the procedure under section 153A (supra). This pleading lacks material facts and is struck out.

Errors or Omissions

64. For errors or omissions, the pleadings must plead with particularity the following:

(a) The error or omission;

(b) The error or omission committed or made by the electoral official was either committed by the successful candidate or another person but with the successful candidate's knowledge or authority;

(c) The error or omission "did affect the result of the election" and demonstrate that by "facts in figures".

(d) That it would be just that the candidate should be declared not duly elected or the election be declared void: see Mathias Karani v. Yawa Silupa (supra); Sir Pita Lus v. Gabriel Kapris (supra) and Eddie Saweni v. Patrick Pruaitch (supra).

65. Paragraphs 8, 8.1, 8.2(a) to (g), 9(a) to (d) and 10(a) to (i) of the petition purports to allege that polling at a number of polling locations in the Lagaip-Porgera Open electorate namely Yangil, Yapai, Kindarep, Yangiyangi, Torenam, Walya, Net, Paela/Hewa and Lower Porgera were not properly conducted because of a number of reasons. According to paragraph 8, one of them was failure to publish Polling Schedule, the other was changing of polling dates, another was failure to provide updated Common Roll, next failure to provide list of Polling Officials, next failure to conduct last minute pre-counting of ballot-boxes and ballot-papers, next was failure to inform candidates and scrutineers whether the pre-counting of ballot-boxes and ballot-papers were intact and secured for polling and failure to inform voters, candidates and scrutineers of delay of polling by one day.

66. According to paragraph 9, despite the petitioner and other candidates for the Provincial seat and Open seat request to delay polling until the next day due to late arrival of ballot-boxes, polling went ahead. This and other reasons raised in paragraph 8 (above) resulted in most voters not attending and voting, polling was continued the next day and over night, ballot-boxes were not secured with locks. By these acts or omissions, the Returning Officer compromised:

66.1. the safety of the ballot-boxes and its contents;

66.2. allowed foul play to be employed by all of the polling officials, candidates, their agents/servants and their supporters and relatives when the boxes were kept by candidates and supporters of candidates overnight in the absence of security personnel and polling officials;

66.3. by bribing the polling officials to mark extra votes for the first respondent and certain candidates during the night;

66.4. hijacking of the ballot-papers during the night and marking them in favour or certain candidates or destroying them; and

66.5. hijacking of the ballot-boxes by candidates and their supporters to undesignated polling locations and marking them.

67. According to paragraph 10, the polling at the earlier stated polling locations were hijacked and that no security personnel escorted the ballot-boxes. As a result, 25, 000 voters did not vote. While these paragraphs expressly state errors or omissions as a ground, in many respects, the pleading also alleges illegal practices and bribery. For example, the gist of the allegation at paragraphs 8 and 9 is electoral officials failed to comply with pre-polling requirements and at the latter part of paragraph 9 and paragraph 10, the petitioner alleges that polling officials were bribed and hijacked ballot-papers. In my view, this is confusing. The petitioner must be clear and specify the grounds he relies on to void the election of the first respondent. This is because different tests apply and the Court and the respondents cannot be left guessing.

68. At paragraphs 11 to 16, the petitioner alleges that objections were made to ballot-boxes from 15 polling places from being admitted to scrutiny but were rejected by the Returning Officer. These polling places are Yangil, Piyakain, Yangiyangi, Porea, Mulitaka Station, Ipalop, Puaipaka, Paitenges, Yuyango, Yambali, Lauk, Tombaip, Pundak, Lumbapes and Pokolip. He asserts that a further 11 ballot-boxes from 11 polling places from his strong hold and power base were excluded from scrutiny by the Returning Officer. They contain 8,356 votes which he asserts was likely to affect the result of the election if they had been counted. In my view, this is the only part of the pleading which can be described as sufficient for the purpose of raising an objection to a ballot-box from being admitted to scrutiny under section 153A (supra) and relied on as an error or omission. Whether the result of the election was likely to be affected by the stated figure is another matter, which I will discuss in a moment.

69. Apart from this, and proceeding on, the petition does not have paragraphs 18 and 19. This is another example of how confusing and difficult it is to understand this petition. It only makes the task of identifying the grounds difficult. Proceeding at paragraphs 20 to 32, the pleading of the allegations is convoluted, vague and unclear. It does not specify if the petitioner is relying illegal practices to void the election of the first respondent or to support the allegations of error or omissions at counting. I say this because on the one hand, he alleges that at polling, ballot-papers were illegally marked for the first respondent and on the other, he alleges that "....petitioners (sic) scrutineer raised abjection (sic) but were not entertained by the respective Returning Officer (sic)." The subject polling places are Yangil, Wanepos, Lyamala and Yomandi.

70. If the former were intended, except for Yomandi polling place, these are the same allegations pleaded at paragraphs 17.1(f) to (k) Yangil polling place), 17.2(b) (Wanepos polling place) and 17.1(x) (Lyamala polling place) and have been covered earlier [paragraphs 33, 35 and 51 above]. The pleading in each case was found wanting. In any case, pleading these allegations in separate paragraphs on entirely different pages (pages 24 and 25 of the petition) does not assist. In order for the Court and the respondents to identify the grounds, it is important to plead the allegations together in a logical sequence.

71. If the latter were intended, I have already covered the procedure for objection to ballot-box from being admitted to scrutiny and breach of duty by Returning Officer under section 153A (supra) [paragraphs 55 and 56 above]. I adopt them here. I am unable to find any pleading to that effect. Further, the pleading at paragraph 20 that "....petitioners (sic) scrutineer raised abjection (sic) but were not entertained by the respective Returning Officer (sic)," must be rejected because it lacks facts to support the grounds for objection(s) and reasons for the Returning Officer to reject it.

72. Finally, paragraph 32 makes refers paragraphs 7.1 and 7.2 of the petition and pleads that the respondents breached section 50 of the Constitution, sections 25, 43 to 50, 113 to 115, 130 to 134 and 215 of the Organic Law and sections 99 to 102, 105, 106, 110 and 116 of the Criminal Code. I accept the respondents' submissions that paragraph 32 pleads law without pleading the base facts which constitutes grounds to invalidate or void an election or return. In any case, I repeat what I said earlier at paragraph 49 (above) that if the petitioner is intending to establish that the respondents committed offences under these laws, it is important to specify by pleading the base facts constituting the offence(s) and cite the relevant law which is relied upon to void the election or return. In the present state, in addition to the pleading being convoluted and confusing, it fails to make reference to the relevant law.

73. Moving on to paragraph 33, what is pleaded there is a general statement. It does not set out the base facts to constitute a ground to invalidate the election or return of the first respondent. Thus, whether it is struck out or left in the petition bears on consequence. In any case, it is misleading because it makes reference to "paragraph 5.3" but there is no such paragraph in the petition. It can be ignored.

74. Moving on to paragraph 33.1(a) to (d), the allegation is that on the day of polling, the first respondent and/or his servants and agents with his knowledge and authority committed illegal practices. It is alleged that polling booths were tempered with by various presiding officers who were relatives of the first respondents. It is further alleged that the appointment of Dr. Amean as Chairman of the Provincial Election Steering Committee was biased because he is a brother-law of the first respondent. He was involved in an attempted bribery incident. The petitioner and a Paul Torato's supporters foiled a plan to bribe voters when they confiscated cash of K50,000.00 in Dr. Amnea's official motor vehicle driven by Dr. Amean's younger brother one Robin Amean at Kanak check-point and damaged it. Later the petitioner took responsibility for the damage and paid compensation of 18 pigs, 3 goats and K25,000.00 to Dr. Amean in a ceremony held at Niugu village which was witnessed by 20,000 plus people, security forces and village court mediator Mr. Godfry Waip.

75. It goes on to allege that the appointments of a Mr. George Poio as Lagaip-Porgera Returning Officer and a Mr. Mori Yarome as Assistant Returning Officer were bias because they were District Administrators and directly answerable to Dr. Amean as Provincial Administrator. Mr. Yarome and his wife were heavily involved in public campaign for the first respondent in Porgera/Paiyala Districts. Huge amount of cash totalling well over K100,000.00 was given out at all polling places a day before the polling date by Mrs. Yarome and witnessed by the petitioner's scrutineers.

76. A number of observations must be made in relation to these allegations. First is that, the pleading of these allegations is convoluted. On the other hand, the petitioner seems to alleged illegal practices, and on the other, he seems to allege attempted bribery. Then he claims that the polling officials who were appointed were relatives and supporters of the first respondent. The person behind their appointment was Dr. Amean. It was also Dr. Amean who appointed the Returning Officer and Assistant Returning Officer for Lagaip-Porgera Open Electorate. Dr. Amean is a brother in-law of the first respondent. The pleading throws up these possible scenarios and leads to confusion as to the ground to invalidate the election or return of the first respondent. The petitioner must come out clear on ground he intends to rely on. It is not for the Court to make that decision for him. If he intends to rely on all of them, he must plead them separately.

77. Secondly, assuming that the petitioner intends to rely on the ground of attempted bribery, the pleading lacks facts which are necessary to establish the elements of attempted bribery. I covered the material facts necessary to establish the elements of this offence at paragraph 11 of this ruling and I need not repeat them save to apply them here. The name of the person attempted to be bribed is missing. Any suggestion that the persons attempted to be bribed were presiding officers must be rejected because it is vague and too general. The property or benefit namely cash of K50,000.00 is vague and too general and must be rejected because it is not clear if K50,000.00 was given to a presiding officer or an elector. If it was distributed, it is unclear how much a presiding officer or an elector received and refused. Finally, the purpose of the money is missing. It is also not sufficient to infer that just because the money was confiscated prior to the date of polling and from the official vehicle of Dr. Amean and driven by his brother, it means that it was for the purpose of bribing presiding officers and/or electors.

78. Thirdly, the allegation that the petitioner took responsibility for the damage and paid compensation of 18 pigs, 3 goats and K25,000.00 to Dr. Amean may be relevant if the allegation of attempted bribery was properly pleaded. At present, it is not and it would follow that this further allegation is of no consequence. So as the allegation that the compensation ceremony was held at Niugu village and was witnessed by 20,000 plus people, security forces and village court mediator Mr. Godfry Waip. In any case, this is pleading evidence and such is prohibited.

79. The fourth matter is that, the allegation of bias against Dr. Amean as Chairman of the Provincial Election Steering Committee because he is a brother in-law of the first respondent is not a ground to invalidate the election or return of the first respondent. I have explained this in detail earlier (see paragraphs 8 & 9 above). I give the same reasons for the allegation of bias against the Returning Officer and Assistant Returning Officer for Lagaip-Porgera Open electorate.

80. Fifthly, if the allegation against Mrs. Yarome is one of bribery, the pleading lacks material facts in relation to the elements of the offence of bribery under section 103 of the Criminal Code. Material facts as to the identity of the person bribed, the amount received by the person and purpose for the money are missing. The allegation that Mr. and Mrs Yarome were involved in public campaign is vague and too general and is not sufficient to establish the purpose of the money and in any case, seemed to have happened before the alleged bribery incident. Finally, the allegations raised in this paragraph should have been pleaded under the grounds of attempted bribery, bribery and illegal practice at paragraphs 7, 8, 17 of the petition respectively so that it is logical, consistent and coherent, thus making it easy to follow the allegations against the respondents.

81. For these reasons, paragraph 33.1(a) to (d) is struck out.

82. Turning to paragraphs 34 to 36, these are general statements and/or conclusions drawn from the grounds which I have struck out so far. Thus, they are of no consequence.

83. At paragraph 37 I) & II), the allegation is that on the days of polling of 03rd and 04th July, 2012 the presiding officer at Tukudanda 2 polling place Mrs Cathy Luwai with other officials with the knowledge and authority of the first, third and fourth respondents committed illegal practices. She displayed K20,000.00 cash in her bag to all voters (sic) that after successfully voting for the first respondent, she will distribute K20,000.00 to all voters who have voted for the first respondent. There was disagreement amongst the voters so they divided into two groups. She marked ballot papers for the first respondent for one group. The other group was chased away and did not receive any money. In her house, she paid a total of K20,000.00.

84. It is unclear from these allegations if the petitioner is relying on illegal practices under section 215 of the Organic Law or bribery under section 103 of the Criminal Code to invalidate the election or return of the first respondent. For instance, is he relying on the offence of stuffing of ballot-boxes under section 110 of the Criminal Code or is he relying on the offence of bribery under section 103 of the Criminal Code? It is unclear. The other reason is that even if these allegations were allowed, it is unclear from the pleading that the result of the election was likely or would have been affected by the 964 votes said to have been marked for the first respondent because the winning margin is not stated or pleaded, a point, which I will come to consider shortly. For these reasons, paragraph 37 I) & II) is struck out.

85. As to paragraph 37 (a) to (i), this is yet another long winded pleading that does not specify the ground on which the petitioner relies to invalidate the election or return of the first respondent. The first part from (a) to (d) refers to some genealogy of the petitioner and Mr Torato's ancestors, how they are related and their relations to the people of Tiagun tribe of the Papayuka polling place. The expectation, or rather, the assumption is that, because of the strong family relations, the petitioner and Mr Torato would score greater number of votes from this polling place. This is a misconception and a direct breach of an elector's constitutional right to vote for a candidate of his or her own choice. These allegations are irrelevant. They are struck out.

86. The second part from (e) to (i) alleges that the presiding officer Moses Pyale used force to mark out 576 votes for the first respondent. Other voters were chased away by polling officials and supporters of open electorate candidates. Then it further alleges that Moses Pyale received bribery of K20,000.00 from the first respondent's son Mr Chain Ipatas. As a result, he, Lowan Kandi and other polling officials marked all the ballot papers for the first respondent. I struck out these allegations for the reasons I have given earlier in relation to Tukudanda 2 polling place. [see paragraph 84 above].

87. At paragraph 37(j) to (o), the petitioner alleges that at Tendep polling place, a Mr. Luso Lolan, a member of the Provincial Assembly rounded up supporters and forcefully got 500 plus votes and despite the presiding officer's objection, polling continued until very late in the afternoon. He further alleges that Luso Lolan was involved in bribery in the sum of K20,000.00. The money was to be delivered to him a day prior to the polling by a Mr. Peter Kewa. The plan was foiled when his supporters confiscated K60,000.00 in the motor vehicle driven by Mr. Kewa at the Kandep/Laiagam border. Mr. Kewa admitted this plan. I strike out these allegations for the reasons as were given for the Tukudanda 2 polling place at paragraph 84 above.

88. From paragraphs 38 I) to 39, the same kind of allegation is alleged. On the polling dates of 03rd and 04th July 2012, the presiding officers in Kepelam polling place, Landelam polling place and Tupangus polling place with supporters of the first respondent hijacked polling by chasing away voters who supported other candidates and marked ballot-papers for the first respondent. As a result, it is alleged that at Kepelam polling place, 1,019 votes were marked for the first respondent and a further 1,608 votes were not cast, Landelam polling place, 1,004 votes were marked for the first respondent and finally at Tupangus polling place, 1,142 votes were marked for the first respondent. Excluding 1,608 votes not cast, 3,165 votes were marked for the first respondent.

89. I accept there are sufficient material facts to establish the illegal practice and it appears to be one of stuffing of ballot-boxes under section 110 of the Criminal Code. However, given that the petition does not state or plead the winning margin (issue for discussion shortly) and that I have struck out the other grounds thus far, it is difficult to work out if the result of the election was likely or was affected by the illegal practices given that 3,165 votes were illegally marked for the first respondent. Thus, even if they were allowed to go to trial, they will be of no consequence. These allegations in the stated paragraphs are, therefore, struck out.

90. The information set out in the table at paragraph 40 and further, those at paragraphs 41 to 43 can either remain or be struck out, or best still, be ignored because they are merely conclusions drawn from the grounds which have been struck out for various reasons stated above.

Undue Influence

91. Undue influence is an offence under section 102 of the Criminal Code and a ground to void an election under section 215 of the Organic Law. In relation to the proof of allegations of "undue influence" "force" or "fraud", the Court in Sir Arnold Amet v. Peter Yama (2010) SC1060 said at paragraph 9 of the judgment:

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

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

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

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

d) the number of vote secured by the winning candidate and the runner-up;

e) it is just that the winner should be declared not duly elected."

92. I adopt these principles and apply them to this case.

93. Paragraph 17.1(h) alleges that the presiding officer of Nagulam polling place Jacob Yakapo used "influence" to secure the position of presiding officer and then marked out 880 votes for the first respondent. Note that the allegation here is Jacob Yakapo used "influence" to secure the position of presiding officer, not the marking of 880 votes for the first respondent. Applying the above stated principles, I am satisfied that the pleading lacks sufficient facts as to the type of "influence" Jacob Yakapo applied to get appointed as presiding officer. Put simply, it is insufficient to allege that he used influence to get the position of presiding officer. It is also vague and a bare assertion. In any case, it is not alleged that Jacob Yakapo forced electors to vote for the first respondent. Furthermore, the pleading does not state the identity of the person (elector) who was induced or restrained from voting. The pleading that the incident was witnessed by the petitioner's scrutineer Pandi Tombel who is a registered voter must be rejected because it does allege that the presiding officer induced or restrained him from voting. This paragraph is struck out.

94. The second case of undue influence may be found at paragraph 17(1)(j) of the petition. There, it is alleged that the presiding officer of Pipigus polling place Raymond Etami, a non-public servant and supporter of the first respondent "applied pressure" on voters and marked 243 votes for the first respondent. I am satisfied the pleading does not specify the type of "pressure" Raymond Etami applied to secure and mark 243 votes for the first respondent. The pleading is vague and too general. Also, the pleading does not state the identity of the person (elector) who was induced or restrained from voting. Paragraph 17(1)(j) is, therefore, struck out.

95. Thirdly, at paragraph 17.4(l) of the petition, the petitioner alleges that the presiding officer for Politica polling place Sam Micky with "influence" cast 640 votes out of 1,092 ballot-papers for the first respondent. For the same reasons given in the case of Pipigus polling place, the undue influence alleged in this paragraph is struck out.

96. The fourth case of undue influence is pleaded at paragraph 17.4(n) of the petition. There, the petitioner alleges that Leo Kuala a supporter of the first respondent and presiding officer of Porgera Station polling place "forcefully" cast 340 votes for the first respondent and was witnessed by all voters and himself. I struck out this pleading for the same reasons given in the case of Nagulam polling place.

97. The fifth and final case of undue influence is pleaded at paragraph 17.4(o) of the petition. At the polling place at Papaki, the presiding officer Leo Luwai used "undue influence" to get 651 votes out of 676 ballot-papers for the first respondent. It was witnessed by the petitioner's unnamed scrutineer. I struck out this pleading for the same reasons given in the case of Nagulam polling place.

98. Recapping, the allegations of undue influence set out in these stated paragraphs are struck out.

Winning Margin

99. The last but critical issue in the pleading which adds to the long list of problems and issues encountered in the consideration of the competency of the petition is the respondents' claim that the petition fails to plead the winning margin. In order to arrive at the winning margin, the total number of allowable ballot-papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be pleaded. It is on this basis that I accept the respondents' submission that it is necessary for the petitioner to plead the number of votes received by him and the winning candidate, the absolute majority from which the winning margin can be calculated if not already calculated on the face of the petition. In my view, this is a critical and material fact that must be pleaded to later demonstrate in the grounds of the petition that results were likely to be affected or were affected.

100. For allegations other than bribery and undue influence, Injia J (as he then was) stated in Mongi v. Vogae (1997) N1635 that:

"Figures are material in demonstrating the likelihood of the result being affected on the face of the Petition. Also, it is necessary to plead how the errors or omissions on the part of the election officials are material as such that the results of the election was likely to be affected."

101. Kandakasi J puts it this way in Ludger Mond v. Jeffrey Nape (2003) N2318:

"It is clear from this that if a petition alleges an illegal practice or conduct other than a bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence."

102. In Amet v. Yama (supra), Davani J said at paragraph 118 of the judgment this:

"In relation to s.215(3)(b) of the OLNGLE, the following are the material and relevant facts that must be pleaded;

(a) The Petitioner must plead that the illegal practice or conduct by the winning candidate was likely to affect the election results and show that. To do that, it is necessary to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.

(b) And a further requirement is that the pleading must also include that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. If it was pleaded, then evidence can be led to support the pleadings."

103. Recently in Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5473, in upholding the respondents' objections to competency the learned Chief Justice held that:

"4. Pursuant to s 208 (a) read in conjunction with s 215 (3) and s 218, the petition must plead the essential facts in terms of the number of eligible voters or votes cast at the polling and valid votes assigned to candidates at the scrutiny that were affected by the illegal practices, error, omissions and irregularities complained of, and demonstrate how the result of the election was affected or likely to be affected."

104. His Honour reasoned that:

"It is therefore critical for the survival of an election petition from judicial scrutiny under, s 210 for a petitioner who raises grounds in a petition under s 215 (3) and s 218 to plead the essential facts in figures to demonstrate how the result of the election was affected or is likely to have been affected by those illegal practises, errors, omissions and irregularities."

105. His Honour further emphasised:

"It would be extremely difficult for anyone so to speak in terms of the results of an election been affected any reference to numbers of eligible voters or votes at all."

106. This "essential facts in figures" is essentially the total number of votes affected and measured against the winning margin to ascertain whether or not the result of the election is likely to be affected.

107. For example, the Supreme Court in Philip Kikala's case (supra) accepted that it is sufficient to plead that the winning margin as the difference between 'the total number of votes allocated to the second respondent after the final exclusion alleged to be 35,804', minus 'the total number allocated to the applicant after the final exclusion: alleged to be 30,648' = 5,156.

108. The underlying reason why a petition is required to demonstrate how the result was likely to be affected or was affected is to avoid it going to trial only to find in the end that the total number of votes affected by the illegal practices and errors or omissions did not affect the result. In that situation, a trial would be a futile exercise.

109. In the present case, at paragraphs 4 and 6 of the petition, the petitioner attempts to show the purported absolute majority at the completion of primary votes count. This absolute majority does not remain constant in the elimination counts for the 02nd and 03rd preferences. It eventually decreases with the increase occurrences of exhausted ballot-papers. At paragraphs 7.9 and 7.10 of the petition, the petitioner again attempts to reiterate that the declaration of the first respondent was made prematurely as none of the five (5) remaining candidates had reached the absolute majority of 161,101 votes. This kind of pleading is vague and lacks clarity. Is the petitioner alleging that there was no final exclusion result hence, the declaration of the first respondent was illegal? If so, he does not state so and the Court cannot infer it.

110. I accept the respondents' submission that the petitioner erroneously presumed that the 161,101 votes is fixed. This is a lack of understanding and appreciation of the limited preferential voting system. Coupled with this, the petitioner fails to show the difference in the votes scored by the first respondent, the runner-up candidate Mr. Sandy Talita, and even himself as the fourth runner-up. He only pleads the votes scored by each of the remaining candidates at the time of declaration but not the votes differences between them and the winning candidate.

111. I am satisfied that there are no facts in figures in the petition to demonstrate the number of votes scored by the first respondent to be declared winner, votes collected by the petitioner as runner-up, absolute majority at the time of declaration or even the winning margin. In my view, this is a fatal omission. I uphold this ground and dismissed the petition as being incompetent.

Relief Sought

112. Finally, parties have made submissions on the ground on pleading the correct and specific relief under section 208(b) (supra). Section 212 of the Organic Law provides for the type of relief or orders the Court may grant in an election petition. The common ones which the Court grants, usually at the conclusion of the petition are those set out in sub-section (d), (f), (g), (h) and (i). They are;

112.1. order a re-count of ballot-papers in an electorate;

112.2. declare that a person who was returned as elected was not duly elected; and

112.3. declare a candidate duly elected who was not returned as elected; and

112.3. declare an election absolutely void; and

112.4. dismiss or uphold a petition in whole or in part.

113. In this case, the petitioner seeks the following relief at paragraph 44 of the petition are:

"(i) An Order declaring within the meaning of Section 97 and other relevant provision of the Organic Law on National and Local Level Government Elections that the election or return of and respecting the Enga Provincial Electorate failed and further order that a supplementary election be conducted by the First Respondent for the said Electorate.

(ii) An Order that the Third Respondent declaration and return of the Writ to the Governor General was not duly returned or any person was not duly elected.

(iii) A declaration that result of the said election was absolutely null and void.

(iv) An Order that a By Election be ordered in respect of the Enga Provincial Electorate.

(v) An Order that By Election be conducted by other officials from the Highlands Province or PNG not the entire Public Servants who are currently serving under the Department of Enga, including the Provincial Administrator and District Administrators.

(vi) Cost to be paid by the Respondents, and

(vii) Such other Orders as this Court deems fit."

114. The essence of the claim for relief is a declaration that the election or return of and in respect of the Enga Provincial electorate has failed and a supplementary election be conducted. If a by-election is to be held, it must be conducted by officials outside the Enga Province. I reject the respondents' submission that this relief is incorrect and inconsistent with the Organic Law, section 212(f), (g) and (h). I dismiss the objection as being misconceived because although the relief is not worded in terms of the relief set out in section 212(f), (g) and (h), a grant of a relief is a discretionary matter and the Court is nonetheless competent to grant it once the allegation or allegations are established under the empowering provision: see Nick Kopia Kuman v. Dawa Lucas Dekena & Electoral Commission (2013) N5429.

Conclusion

115. To conclude, with respect, this petition highlights the challenges faced by petitioners and unsuccessful candidates who are contemplating and embarking on election petitions in disputing election results. It is a daunting task. Over the years since this country had its first General Election, there have been cases that have been dismissed for failing to comply with section 208(a) (supra) and there have been many that have survived and gone to trial because they have met the test under section 208(a) (supra). The issues highlighted in this case, particularly in relation to the convoluted state of the pleadings, are in my view, a statement that there is now a need for a clear, concise and coherent pleading in election petitions. I believe the time has come for key stakeholders and may I suggest, the Judges, lawyers and parties involved in election petition disputes, to sit down together and draw up pleading precedents for election petitions for future references and guidance.

116. It is beyond doubt that contesting an election is an expensive exercise time wise and cost wise and prosecuting or defending an election petition is another expensive exercise. Concerns have been raised by successful candidates that, they have been dragged into Court by petitioners who have baseless, vague and spurious allegations. This is a fair complaint. Equally, petitions that raise serious allegations in relation to the conduct of an election by successful candidates and/ or electoral official such as corruption and illegal practices must be allowed to go further rather than be dismissed at the competency stage. I believe standard precedent pleading on election petitions will go a long way to resolving some of these problems and addressing some of those concerns raised by the parties, by the same token enabling the Court to maintain some consistency and uniformity in its judicial determination of the issues in so far as the requirements of section 208 (supra) are concerned.

117. In the end, to answer the question posed earlier [paragraph 10 above], the pleadings in this case are so bad, convoluted, lacking sufficient material facts, vague and lack clarity such that they render the entire petition incompetent.

Order

118. The objection is upheld, the petition is dismissed as being incompetent and the petitioner shall pay the costs of the proceeding, to be taxed, if not agreed. The security deposit of K5,000.00 held by the Registrar shall be paid to the respondents in equal shares.
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Soi & Associates: Lawyers for Petitioner
Mawa Lawyers : Lawyers for First Respondent
Niugini Legal Practice : Lawyers for Second & Third Respondents