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National Court of Papua New Guinea |
N7210
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 24 OF 2017
IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE EAST NEW BRITAIN PROVINCIAL ELECTORATE IN THE 2017 GENERAL ELECTIONS
BETWEEN
SIR LEO DION
Petitioner
AND
HON. NAKIKUS KONGA, MP
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Kokopo: Makail, J
2018: 4th & 9th April
ELECTION PETITION – Objection to competency of petition – Grounds of – Structurally defective pleadings – Failure to plead facts – Allegations of errors or omissions at counting – Whether sufficient facts pleaded – Whether there are facts showing errors or omissions by electoral officials did affect result of election – Pleading and claim of alternative or multiple relief – Organic Law on National and Local-level Government Elections – Sections 208 (a), (b), (d) & 218
ELECTION PETITION – Objection to competency of petition – Grounds of – Incorrect naming or mis-description of party – Legal capacity of party “Electoral Commission of Papua New Guinea” as opposed to “Electoral Commission” – Failure to sue servants and agents of Electoral Commission – Non-conformity of petition to prescribed form of petition in Form 1 – Effect of – Question of form as to substance – Whether petition incompetent – Organic Law on National and Local-level Government Elections – Sections 208 (a) & 218 – National Court Election Petition Rules, 2017 – Rule 4 – Form 1
Cases cited:
Barava Limited v. Mamalau (2013) SC1301
Ephraim Apelis v. Sir Julius Chan (1998) SC573
Ginson Goheyu Saonu v. Bob Dadae & Electoral Commission (2003) SC763
In re Fly River Provincial Executive (2007) SC917
John Keleva Kekeno v. Philip Undialu & Electoral Commission (2014) N5502
Joel Pepa Paua v. Robert Timo Nagle & Electoral Commission [1992] PNGLR 563
Korak Yasona v. Castan Maibawa (1998) SC552
Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (2009) N3718
Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437
Mongi v. Vogae (1997) N1635
Malakai Tabar v. Hon Jelta Wong & Electoral Commission (2018) N7121
Michael Kuman & Ors v. Digicel (PNG) Limited (2017) SC1638
Noah Kool v. Michael Bogai Dua & Electoral Commission: EP No. 75 of 2017 (Unnumbered & Unreported Judgment of 16th March 2018 per Makail J)
Philip Kikala v. Electoral Commission of Papua New Guinea (2013) N4960
Patrick Basa v. Bob Dadae (2013) N4991
Peter Charles Yama v. Anton Yagama & Electoral Commission (2012) N4928
Re William Wii SCR No 45 of 1994, 26.07.94 (unreported)
Rimbunan Hijau (PNG) Limited v. Enei & Ors (2017) SC1605
Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408
Sam Abal v. Robert Sandan Ganim & Electoral Commission: EP No. 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013 per Hartshorn J)
Samson Kirilyo v. Justin Tkatchenko (2017) N7008
Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348
Samson Malclom Kuli v. Anton Yagama & Electoral Commission (2012) N4929
Soro Marepo Eoe v. Mark Maipakai & Electoral Commission (2013) N5066
Walter Schnaubelt v. Byron Chan (2012) N4791
Counsel:
Mr. R. Asa, for Petitioner
Mr. A. D. Lora, for First Respondent
Mr. D. Dupre with Mr. J. Ole, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
9th April, 2018
1. MAKAIL, J: I have been greatly assisted by Mr. Asa of counsel for the petitioner, Mr. Lora of counsel for the first respondent and Mr. Dupre of counsel for the second respondent in relation to determining the question of competency of the petition. All counsels have displayed a high level of proficiency and understanding of the law and principles applicable to the question and as well as identifying the specific issues for consideration as demonstrated during the hearing. For that, I am grateful.
2. The respondents have put the petitioner on notice of the subject question by way of two notices of objections to competency; one filed by the first respondent on 29th September 2017 and the other by the second respondent on 9th November 2017.
Grounds of Petition
3. The petition itself is grounded on various allegations of errors or omissions at counting.
Grounds of Objection
4. The first respondent’s objection is based on seven grounds:
(a) Naming of incorrect or mis-description of a party (second respondent),
(b) Lack of legal capacity of second respondent “Electoral Commission of Papua New Guinea” to sue and be sued,
(c) Failure to join servants and agents of the second respondent as parties to the proceeding,
(d) Structural defects in the pleadings contrary to Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”),
(e) Failure to plead facts contrary to Section 208(a) of the Organic Law,
(f) Pleading of alternative o multiple relief contrary to Section 208(b) of the Organic Law, and
(g) Incompetent attesting witnesses under Section 208(d) of the Organic Law.
5. The second respondent’s objection is based on two grounds:
(a) Non-conformity of petition to prescribed form of petition under Form 1 of National Court Election Petition Rules, 2017 (“EP Rules”), and
(b) Failure to plead facts contrary to Section 208(a) of the Organic Law.
Incorrect Name or Mis-description, Lack of Legal Capacity and Failure to join servants and agents of Second Respondent
6. Mr. Lora submitted that first, the petitioner has incorrectly named or mis-described the “Electoral Commission” by referring to it as “Electoral Commission of Papua New Guinea”. There is no body referred to or described as “Electoral Commission of Papua New Guinea”.
7. He referred to Section 126 of the Constitution and Section 5 of the Organic Law and submitted that these provisions refer to “Electoral Commission” and not “Electoral Commission of Papua New Guinea”. Given this, the petitioner must refer to the correct name or description of the “Electoral Commission because it is not a trivial matter and should be ignored. Furthermore, it may not have been relied upon as a ground of objection by the second respondent prior to this case but it does not stop the first respondent from relying on it. As it has been raised, the Court is obliged to determine it.
8. Mr. Lora referred to Form 1 of the EP Rules and further submitted that it refers to the second respondent as the “Electoral Commission”. It reinforces the argument that it is not a trivial matter but a deliberate decision by the judges to require a petitioner to refer to the second respondent as the “Electoral Commission.” A use of a different name or mis-description is fatal to the entire petition.
9. Second, and following on from that, Mr. Lora submitted that the name “Electoral Commission of Papua New Guinea” does not exist. It would follow that “Electoral Commission of Papua New Guinea” lacked legal capacity to sue and be sued.
10. Finally, as the Electoral Commission is a separate legal entity, it can only act through its servants and agents and in turn be liable for the acts or omissions of its servants and agents. It would follow that the petition is incompetent because the petitioner has failed to join the servants and agents of the Electoral Commission who allegedly made errors or omitted to carry out their mandated duties and functions at counting.
11. Mr. Asa appeared to concede to these grounds of objection for the reasons advanced by Mr. Lora. But he submitted that the grounds do not fall within Section 208 and Section 209 of the Organic Law. For a question of competency of petition is based on whether there has been compliance with the requisites of a petition under Section 208 and Section 209 of the Organic Law. As the grounds are not based on any of the requisites of a petition under Section 208 and Section 209, they are misconceived and the objection should be dismissed.
12. I agree with Mr. Asa’s submission. These grounds do not raise issues of competency of a petition. A ground or grounds of competency may only arise where there is non-compliance with one or more of a requisite of a petition under Section 208 (a) to (e) and Section 209 of the Organic Law. A ground not directed to the requisites of a petition under Section 208 (a) to (e) and Section 209 is irrelevant and misconceived.
13. An analogy can be made from the case of Ginson Goheyu Saonu v. Bob Dadae & Electoral Commission (2003) SC763 where the Supreme Court considered the question of whether Section 206 of the Organic Law is a requisite of a petition and failure to comply with it can render a petition incompetent and dismissed.
14. Section 206 provides for the method of disputing returns in that “The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise”.
15. The Supreme Court unanimously held that Section 206 was not a requisite of a petition and failure by a petitioner to correctly address a petition to the National Court does not render the petition incompetent. Similarly, I find that the grounds relied upon by the first respondent are not requisites of a petition and if they are not complied with, they do not render the petition incompetent. For these reasons, I would dismiss these grounds of objection.
16. Alternatively, I refer to Mr. Lora’s submission and say that Section 5 of the Organic Law refers to “the establishment of the Electoral Commission under the Organic Law on National Elections (repealed by this law) to continue in establishment”. The Electoral Commission derives its authority from Section 126 of the Constitution. Section 126 states that elections to the National Parliament are to be conducted in accordance with an Organic Law, by an Electoral Commission.
17. For that, it is true that the word used in both provisions is “Electoral Commission” and not “Electoral Commission of Papua New Guinea”. In other words, the Constitution and Organic Law make no reference to an “Electoral Commission of Papua New Guinea”. In addition, Form 1 of the EP Rules reinforces Section 126 of the Constitution and Section 5 of the Organic Law by making provision for “Electoral Commission” as the second respondent.
18. However, it has not been shown how the incorrect use of name or mis-description of the Electoral Commission has confused the defence in its defence of the petition to the point where it has been misled to believing that the “Electoral Commission” is a separate body or organisation to the “Electoral Commission of Papua New Guinea” and ended up communicating with and serving documents on a wrong party.
19. On the other hand, the inclusion of the word “Papua New Guinea” to the word “Electoral Commission” is a matter of form rather than substance. In my view, a question of form should not step in the way of substance or overburden a petitioner who is seeking justice from the Court to be removed from the judgment seat of the Court simply because of an incorrect name or mis-description of a party.
20. The point the petitioner raised that the second respondent did not object to the petition on this ground is perhaps an acknowledgment that the second respondent does not perceive an incorrect name or its mis-description worthy of consideration.
21. Legal capacity of the Electoral Commission does not arise because if the first respondent’s assertion is that, the Electoral Commission is a separate legal entity and has legal capacity to sue and be sued like for instance, a company under company law, there is no equivalent provision in the Constitution or the Organic Law to support this proposition.
22. But it should be noted that unlike in the past where there was no control on the number and who should be a respondent in a petition and petitioners have named as many respondents as they want, this time round, there is. Form1 of the EP Rules attempts to control the number and who should be respondents by requiring the petitioner to name two respondents; one the successful candidate and the other, the Electoral Commission. Any additional party will be with leave of the Court. In other words, Form 1 does make provision for additional respondents, but joining them, must be with leave of the Court.
23. In this case, accepting the petition as it is, the Electoral Commission of Papua New Guinea is named as second respondent. Unless proven otherwise, the non-joinder of servants and agents of the second respondent does not render the petition incompetent per se. If the first respondent perceives that it is necessary to join servants and agents of the second respondent, there is nothing stopping him from applying for leave to join them as additional respondents. As he has not done that, it would be quite unfair to the petitioner to dismiss the petition if the first respondent has not first tried to address the non-party issue.
24. For these further reasons, the first respondent’s grounds of objection are dismissed.
Non-conformity of Petition to Form of Petition
25. Mr Dupre submitted that the petition does not conform to the form of petition in Form 1. He cited for example, parts A to D are not set out in order of chronology as required by Form 1. In Form 1, Ground B refers to “THE FACTS” and in the petition, Ground B refers to “THE GROUNDS.....”. Another example is Part D of the petition where it stated “THE RELIEF SOUGHT BY THE PETITIONER” instead of “THE RELIEF to which the petitioner claims to be entitled is:” as what Form 1 states.
26. The second respondent pursued this ground because of what it asserted as a mandatory requirement under Rule 4 of the EP Rules. According to the second respondent, prior to the new EP Rules coming into being, there was and had been no prescribed Form for a petition. This can be seen from a number of cases where the Courts have observed that neither the Organic Law nor the EP Rules prescribed a form for a petition. One such case is Ginson Goheyu Saonu v. Bob Dadae (supra) where the Supreme Court relevantly observed that although Section 206 of the Organic Law provided the method of challenging a return “it did not specify the form of the petition.”
27. Another is the case of Peter Charles Yama v. Anton Yagama & Electoral Commission (2012) N4928 where Cannings J observed in the context of pleading a date of declaration in the petition that, “Mr Nii was unable to point me to any law that prescribes the precise form in which a petition is to be drafted. It seems that the form of a petition is a matter of practice and convention”.
28. Mr. Dupre referred to past Supreme and National Court cases where the Courts have held that compliance with rules and forms are mandatory and failure to do so will render the proceedings incompetent and liable to dismissal. Where lawyers are engaged to represent the petitioner, the duty to comply is heavier and it is open to a petitioner to sue the lawyer where it can be established that the lawyer failed in observing the requirements of the rules resulting in the dismissal of the petition.
29. Some of these cases are Michael Kuman & Ors v. Digicel (PNG) Limited (2017) SC1638; Rimbunan Hijau (PNG) Limited v. Enei & Ors (2017) SC1605; Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408; Barava Limited v. Mamalau (2013) SC1301; In re Fly River Provincial Executive (2007) SC917; Walter Schnaubelt v. Byron Chan (2012) N4791; Patrick Basa v. Bob Dadae (2013) N4991; Sam Abal v. Robert Sandan Ganim & Electoral Commission: EP No. 61 of 2012 (Unnumbered & Unreported Judgment of 16th July 2013 per Hartshorn J) and recently, Samson Kirilyo v. Justin Tkatchenko (2017) N7008 where the National Court dismissed a petition for failing to comply with Form 1.
30. I accept the general proposition advanced by Mr. Dupre that it is mandatory to comply with the Rules and Forms of the Court. Failure to comply will result in the dismissal of the proceedings for being incompetent. But each case must be considered on its own merits. However, different considerations apply to the Rules and Forms in the Supreme Court to those in the National Court.
31. The Supreme Court cases which Mr. Dupre referred to were decided based on the application of the Supreme Court Rules and Forms. For instances, in Kuman & Ors v. Digicel the question of competency of an appeal was based on whether it was open to the appellants to appeal from a judgment of the National Court by way of a notice of appeal (as of right) even though some of the grounds of appeal raised questions of fact where leave was required and not sought by way of an application for leave to appeal. This is not the case here.
32. In Barava v. Mamalau the correct form for bringing an application for stay in the Supreme Court was an “Application” under Form 4 of the Supreme Court Rules. The Court held that the use of a notice of motion to bring the application was incompetent and struck out.
33. There was no contest to the correct form being used in the National Court case of Kirilyo v. Tkatchenko but the attesting witnesses’ addresses. The respondents’ objection that the attesting witnesses failed to state their addresses to comply with Form 1, in turn Section 208(d) of the Organic Law was upheld and the petition was dismissed. It is not the case here.
34. In this case, Form 1 has been adopted to draft the petition. Except for the chronological sequence in terms of how the paragraphs A to D are set out and use of additional words in the introductory part of each Part, I am satisfied that the petition conforms to the spirit and intent of Form 1. As to whether the petition satisfies the requisites of a petition is another matter. That issue will be considered in a moment. For now, this ground of objection by the second respondent is dismissed.
Structural Defects in the Pleadings and Failure to Plead Facts
35. These grounds go hand in hand so will be considered together. Mr. Lora submitted that the petition is structurally defective and poorly drafted. The pleadings are so ambiguous, vague, convoluted and incoherent, thus confusing, contradictory, contains assumptions and speculations. In addition, it does not plead facts and importantly, show how the result of the election was affected within the meaning of Section 218 of the Organic Law. Finally, some of the allegations contain evidence rather than facts contrary to Section 208(a) of the Organic Law.
36. Mr. Dupre made the same sort of submissions but emphasised that there are no facts to show how the alleged errors or omissions affected the result of the election. He pointed out that the facts do not show the absolute majority, the winning margin and the difference of total votes received by the petitioner and the first respondent to work out if the result of the election was affected. The parties would be working on guess work and speculations as it were if the petition were allowed to proceed to trial.
37. I consider that there are two aspects to Section 218 of the Organic Law. First, is the identification of the alleged error or omission, and second, if the alleged error or omission did affect the result of the election. As to the latter, the facts must show how the alleged error or omission affected the result of the election.
38. In Peter Charles Yama, Cannings J explained it this way:
“A petition alleging errors or omissions by election officers must perforce of Section 208(a) of the Organic Law “set out the facts relied on to invalidate the election or return”, which means it is necessary to plead not only the errors and omissions but also that they did “affect the result of the election” (as required by Section 218(1) of the Organic Law). A nexus or causal connection must be pleaded between the errors and omissions and the result of the election”.
39. Earlier on, as Injia J (as he then was), stated in Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348 that:
“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”.
40. In terms of the technique of drafting an allegation of error or omission under Section 218 of the Organic Law, in Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437 the Supreme Court cited some examples on how to plead an allegation of error or omission in a clear and concise manner to show how the error or omission did affect the result of the election.
41. The first example is in a case where the number of votes affected by one instance of error or omission is higher than the winning margin. In such a case, it is preferable (and advisable) to plead and rely on it instead of pleading and relying on many instances of errors or omissions. To rely on one instance of error or omission which has a higher number of votes affected the winning margin would require an honest and serious assessment of the evidence in support of it and the evidence must be credible and sufficient to prove it at trial.
42. The converse of that is also true. Where the number of votes affected by the error or omission is less than the winning margin, it would be necessary to plead and rely on more than one instance of an error or omission in order to secure sufficient number of votes higher than the winning margin to prove that the result of the election was affected.
43. Mr. Asa submitted that it is the petitioner’s case that numerous and a variety of errors or omissions were made by counting officials at the start to the end of counting. At the forefront of the allegations is Thomas Nakui. He is the main perpetrator of the errors or omissions. He was the person who took over and controlled the counting instead of the Returning Officer Mr. Joab Voivoi just like the person who took over and control counting at the expense of the duly appointed Returning Officer in the Usino Bundi Open electorate cases of Peter Charles Yama (supra) and Samson Malclom Kuli v. Anton Yagama & Electoral Commission (2012) N4929.
44. The petition has been drafted to reflect those matters, beginning with general background facts at Part A and then, the specifics
or each instance of error or omission, set out at Part B and Part C. Part D sets out the type of relief being sought by the petitioner.
45. From this and what I have heard, doing the best as I can to piece together Mr. Asa’s submission with the pleadings, it is
easy to see why the first respondent has objected to the competency of the petition on the ground that it is structurally defective
and poorly drafted. It is quite difficult to work out the alleged error or omission or identify what the duties and responsibilities
of the counting officials are and where or how they failed to discharge their duties and responsibilities. It was with the help
of Mr. Asa during submissions that he attempted to clarify that there are numerous and different types of errors or omissions alleged
by the petitioner against counting officials at counting between 9th and 21st July 2017. Collectively, these errors or omissions, the petitioner asserts, affected the result of the election.
46. They are as follows:
Part C1.)
47. For these series of allegations against the conduct of Thomas Nakui, there are no facts pleaded in a concise, coherent and logical manner to show the duties and responsibilities of a Returning Officer at counting bearing in mind that the duties and responsibilities of a Returning Officer are prescribed by law, in this instance, Sections 153A, 154, 168 of the Organic Law.
48. Secondly, there are no facts to show the different stages of counting and who is responsible for each stage of counting. For instance, there are no facts showing that there are empting of ballot-papers from ballot-boxes, sorting out of ballot-papers and allocation of ballot-papers to candidates at the primary counts. Then, there are no facts to show the tallying of votes collected by each candidate and the elimination stage.
49. Thirdly, if the petitioner is alleging that Thomas Nakui “was also responsible for the recording and data keeping on the computer”, there are no facts pleaded to show that as part of counting of votes, the number of votes scored by each candidate is recorded and stored in a computer. Fourthly, there are no facts to show if objections and queries can be made and by whom and to whom. Fifthly, there are no facts to show that the Returning Officer can “also gave directive to security personals (sic) to remove scrutineers”.
50. Finally, there are no facts to show if the Returning Officer can authorise or assign counting officials to perform tasks at these various stages of counting. If not, there are no facts to show that the Returning Officer is not authorised to assign counting officials to conduct counting at the different stages of counting. Importantly, that he is not authorised to assign a counting official to supervise and control counting.
51. The facts pleaded assume that the Returning Officer Joab Voivoi is:
52. Further, it is assumed that there are different stages in the counting process, the Returning Officer is responsible for the recording and data keeping on the computer and he can also direct security personnel to remove scrutineers.
53. The facts identified at [47] to [50] above as lacking or missing are material or relevant because, if pleaded, would set the base for the assertion that the Returning Officer failed to discharge his duties and responsibilities as required by the Organic Law to constitute errors or omissions.
54. On the other hand, these facts are lacking or missing and instead, the facts pleaded raise all manner of allegations of errors or omissions against the Returning Officer and Thomas Nakui. Put it the other way, it cannot be assumed that Thomas Nakui was not authorised to perform the task of a counting official including supervising and controlling the counting process. This may also explain why part of the facts in relation to the Returning Officer not doing anything at counting can be described as evidence rather than facts, thus resulting in a long and convoluted pleading under Part C1.).
55. For these reasons, the allegations in Part C1.) are struck out.
Part C2.)
As a result, scrutineers “were not able to fairly inspect, verify and scrutinise the counting and sorting of ballot papers”.
The petitioner’s scrutineer Henry Turme requested to get closer and observe the counting from primary counts 1 to 32. His request was denied by Thomas Nakui.
“This adversely affected the scrutiny of the primary counts 1 to 32 because it was impossible to scrutinise and observe from that distance when counting officials turn their backs on the scrutineers blocking what was going on in front of the table.”
“........the lack of fair and open scrutiny resulted in votes been distributed to candidates including the First Respondent without proper or lawful scrutiny as well as bringing the whole integrity of scrutiny process into question”.
56. The allegation of long distance between scrutineers and counting table presupposes that there is a certain distance that is fixed by the Returning Officer for scrutineers to stand or sit to observe counting of votes. Failure to expressly plead this may mean it may or may not constitute an error or omission if scrutineers are not given that opportunity. In other words, just because the petitioner’s scrutineers think that the distance is too far does not make it an error or omission.
57. By analogy, the Supreme Court made this point in the context of the distance between the scrutineers and a polling booth in Ephraim Apelis v. Sir Julius Chan (1998) SC573. It held:
“We find that there is no requirement under the Organic Law as to the exact distance scrutineers are required to stand away from a polling booth. Under s 129 of the Organic Law, scrutineers and others are entitled to enter and remain in the polling booth. A scrutineer is not entitled to enter a compartment of a polling booth whilst a voter is present in the compartment (s 128 (1) (c) of the Organic Law). There is no other requirement. The distance pleaded of itself cannot constitute a ground for invalidating an election under s 218 of the Organic Law.” (Underlining added).
58. If there is no requirement for the distance between the scrutineers and the counting table, then the allegation that the petitioner’s scrutineer Henry Turme’s request to get closer and observe counting and was refused is of no consequence. Even if the allegation that scrutineers were not allowed near the counting table and they did not have a clear view of the courting does not in itself constitute an error or omission. In other words, what is it that is being alleged that the counting officials were required to do and failed to do that affected the result of the election? Next is whether the sufficiency of the allegation that “........... lack of fair and open scrutiny resulted in votes been distributed to candidates including the First Respondent without proper or lawful scrutiny as well as bringing the whole integrity of scrutiny process into question”. This allegation is too general, broad and vague. It does not identify the error or omission made by the counting officials. Finally, it is based on an assumption and also, speculative.
59. For these reasons, the allegations in part C2.) are struck out.
Part C3.)
The ballot-boxes in these counts were from the petitioner’s stronghold or base votes.
Counting officials had their backs turned to the scrutineers.
Additionally, the figure for each count were not called out in the “Public Address system” before they were tallied and posted.
60. For the allegation on the long distance between the scrutineers and the counting table and second request to get closer and was refused again, it is struck out for the reasons stated at [56] to [58] above.
61. As to the allegation that the ballot-boxes in these counts were from the petitioner’s stronghold or base votes, do we assume that the petitioner is expected to receive a high number of votes at that polling location? Do we also assume that counting officials are supposed to face scrutineers when counting votes and the figures must be publicly announced before they are posted on the tally board? Is the petitioner required to plead these matters to form the basis of the assertion that counting officials failed in their duties when they:
62. These are questions that are left unanswered by the petitioner. They go to show the defects in the pleading of these series of allegations made against counting officials. In other words, the facts that constitute errors or omissions are lacking or missing. For these reasons, the allegations at part C 3.) are struck out.
Part C4.)
“Restriction was placed without any justification or reason. From this position the inspection and verification of counting was only observed up to the sorting table. The petitioner’s scrutineers still did not fully observe and scrutinise the counting table”.
In summary, the petitioner’s scrutineers were not allowed to inspect and scrutinise the counting of votes.
63. For the allegation on the long distance between the scrutineers and the counting table and third request to get closer and was refused again, it is struck out for the reasons stated at [56] to [58] above.
64. Next, the allegation that restriction was placed without any justification or reason does not bring this allegation anywhere. It must be shown that by the restriction, counting officials misallocated or misplaced ballot-papers of candidates such as allocating or placing ballot-papers marked for the petitioner in the tray for the first respondent or another candidate.
65. For these reasons, these allegations are struck out.
Part. C5.)
Scrutineers “were allowed free excess (sic) without restriction they observed various instances or (sic) errors, omissions and irregularities which was (sic) did affect the result of the election”.
66. If the allegation is that scrutineers were allowed free access to observe counting from elimination no. 15 to the final elimination, various instances of errors, omissions an irregularities were committed is very general and vague. A respondent will not know what sort of error or omission or irregularity was committed during the elimination rounds. A more specific error or omission like misplacement or misallocation of ballot-papers marked for the petitioner in the first respondent’s or another candidate’s tray would satisfy the test under Section 208(a) of the Organic Law. Better still, if names of counting official(s) are given to enable the respondents to identify the alleged perpetrator. That was what the petitioners in the Usino Bundi Open electorate case did after the 2012 General election: see Peter Charles Yama v. Anton Yagama and Malcolm Samson Kuli v. Anton Yagama.
67. For these reasons, the allegation in part C5.) is struck out.
Part. C6.)
68. There are no facts to show that one of the duties or responsibilities of the Returning Officer or a counting official is to announce
in public the result of each primary count and each elimination count. The facts as pleaded assume that there is such a duty or
obligation imposed on the Returning Officer or a counting official and was not complied with.
69. Numbers were changed when numbers were passed between counting officials and tally recorders to the tally entry person and the
tally board.
70. The scrutineers, counting officials, tally officials and data entry person would have to hear and see the one same figure recorded however, this apparently did not occur. This was compounded by no scrutineers allowed to approach the tally laptop data entry official or tally board.
71. There are very broad and general allegations based on an assumption that there is an obligation on the Returning Officer or a counting official to announce the result of each count in public and scrutineers of candidates must heard and see the result being conveyed to the data entry person to enter into the computer and the tally board.
72. They are also speculative because just because one was not able to hear and see the result of each count means that results may have been tampered with and changed by counting officials on their way to the data entry person and tally board.
73. For these reasons, the allegations in part C6.) are struck out.
Part C7.)
Pre-planning of exclusion of Tolai counting officials including Josephine Voivoi and replacing them with others.
74. The allegation that the exclusion of ethnic Tolais and replacing them with other counting officials does not in itself constitute an error or omission. Nor is the allegation of pre-planning by Mr. Nakui to have them replaced with other counting officials. There must be something more to show that the replacement counting officials misplaced or misallocated ballot-papers for the petitioner or even other candidates during the primary and/or elimination counts just like what happened in Peter Charles Yama v. Anton Yagama and Malcolm Samson Kuli v. Anton Yagama.
75. In Noah Kool v. Michael Bogai Dua & Electoral Commission: EP No. 75 of 2017 (Unnumbered & Unreported Judgment of 16th March 2018 per Makail J) one of the allegations was that a large number of counting officials were related to the successful candidate and Governor-elect of Simbu Province either by blood or marriage or former work colleagues. They were alleged to have manipulated the counting through various acts such as allocating ballot-papers marked for the other candidates to the first respondent to favour the first respondent.
76. The first respondent objected to this allegation on the ground that the petitioner failed to name the counting officials or identify them by name. This ground of objection was dismissed because the pleadings identified these persons by name and not only that but the type of relationship or nexus between the first respondent and them. Significantly, an estimated 15,000.00 ballot-papers were misplaced or misallocated during the counting which affected the result of the election when in addition to pleading the absolute majority of 50% + 1, it pleaded that the winning margin was 11,071 votes.
77. In the present case, given the convoluted, incoherent and illogical way the petition has been drafted, it is difficult to work out from these allegations what the other counting officials did that affected the result of the election.
78. Vaguely as it appears though, the petitioner alleges that these other counting officials with Thomas Nakui were responsible for the loss of the petitioner, as it seems, from the allegations in the subsequent paragraphs from Part C8.). Thus, are there facts to show, in figure terms, if the errors or omissions did affect the result of the election?
Part C8.)
No proof or verification that the missing 6 ballot-papers were found and included.
79. If the allegation is that, 6 ballot-papers were uncounted at counting, is it sufficient to affect the election? It is unclear because there are no facts to show the absolute majority, the winning margin and the difference of votes between the first respondent and the petitioner to work it out. Putting that to one side for a moment, we look at the next allegation to see if there is any improvement in the pleadings.
Part C9.)
Discovery of this error shows counting officials participated in manipulating the figures in the counting to favour the first respondent.
80. If the allegation is that the figure 12,175 was discovered by a scrutineer to be wrong during the counting and the correct figure was12,575 and brought to the notice of counting officials and subsequently, corrected or rectified (400 votes restored to the petitioner’s tally), then the error has been corrected or rectified and there is nothing for the Court to determine. For this reason, this allegation is dismissed.
Part C10.)
Distance made it impossible to clearly see the discrepancy in the figure, but for the permission to scrutineers to access the counting table, the discovery of the discrepancy by Alphonse Malau was made and saving of 720 votes for the petitioner.
81. If the allegation is that the figure of 1,087 was wrongly recorded on the tally board instead of 1,807 and subsequently identified, corrected or rectified by the counting officials at counting, there is no basis to have the Court review the complaint because it has been corrected or rectified.
82. If the true reason for making this allegation is to show that there may have been similar errors or omissions made by the counting officials which affected the result of the election, in my view, such an allegation(s) amounts to an assumption as well as a speculation. And the Court is not going to be asked to draw possible inferences based on such pleadings. To do that would be stretching the test under Section 208(a) of the Organic Law which I am not prepared to do.
83. In any case, this long winded pleading is evidence rather than facts and should be struck out for this further reason.
Part C11.)
84. Again, if the alleged error has been corrected or rectified, there is nothing further for the Court to inquire into. It has been resolved. This allegation is struck out.
Part C12.)
85. It is difficult to work out precisely what is being alleged as constituting the error or omission in this case. Much of what has been pleaded is evidence. If the allegation is that one vote was allocated to the top five candidates, the real question is whether it affected the result of the election.
86. There are no facts to show, in figure terms, the absolute majority to work out if the five votes did affect the result of the election. This allegation is struck out.
Part C13.)
Three ballot-papers marked second and third preferences for petitioner wrongly were placed in candidate no. 24 Levi Orongs’s tray. After the error was picked-up, the ballot-papers were removed and placed in the petitioner’s tray.
Given this, it is highly likely that scores were manipulated by the counting officials.
87. Adding 10 and 3 votes give a total of 13 ballot-papers for the petitioner that were misallocated but removed and returned to the petitioner’s tray. In my view, the errors have been corrected or rectified and there is nothing further for the Court to inquire into.
88. It is not for the Court to be asked to assume or draw possible inferences that if the errors were not identified, the ballot-papers could have been counted for the first respondent or another candidate resulting in less number of votes for the petitioner or that there may be other similar unidentified errors made in the counting process which require an inquiry. If it were, it would be, in my view, stretching the test under Section 208(a) of the Organic Law too far and I am not prepared to do that: Joel Pepa Paua v. Robert Timo Nagle & Electoral Commission [1992] PNGLR 563.
90. If the petitioner’s assertion that the winning margin was 388 votes (it is unclear how this figure was arrived at), the return of the 13 ballot-papers to the petitioner would not change the result.
91. For these reasons, the allegations under Part C13.) are struck out.
Part C14.)
92. This allegation was withdrawn at the hearing. Thus, it is not necessary to consider it.
Part C15.)
93. This allegation was withdrawn at the hearing. Thus, it is not necessary to consider it.
Summary
94. Having gone through each of the allegations in Part C of the petition, the allegation in relation to an unaccounted 6 ballot-papers at Part C8.), remains outstanding. If the petitioner asserts that the winning margin was 388, there are no facts to show how the 388 winning margin was arrived at.
95. The structure of the pleading is so bad that there is no clarity and logic in what the petitioner seeks to convey to the reader. If Part A1. to A6. is intended to set out the background facts, then there is no need to plead or alleged contentious factual matters. For example, at Part A5, it is alleged that on 21st July 2017 after the 17th Elimination and final count, the Returning Officer declared the first respondent the winner after the first respondent scored a total of 25,030 votes which was 388 votes over and above the absolute majority mark and the petitioner scored a total of 24,643 votes.
96. The winning margin is the difference between the absolute majority votes and the total number of votes collected by the winning candidate after the last elimination count: Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (2009) N3718 and Philip Kikala v. Electoral Commission of Papua New Guinea (2013) N4960. In this case, it is unclear how the figure of 388 came to be the absolute majority because there are no facts and figures to show how it was arrived at. Without these basic facts, it is difficult to work out how the result of the election was affected. Such contentious matter should be raised in the main part of the petition.
97. Except for Part B10 which was withdrawn at the hearing, the rest of the allegations from Part B1 to B9 are general assertions which, in my view, were made in contemplation of further details or specifics. Those details or specifics are set out in Part C which I have canvassed above. Whether they remain or are struck out is really of no consequence. It brings home the point of the first respondent’s submission that the pleading of the allegations is structurally defective and a result of poor draftmanship.
98. It is a disappointing result for the petitioner and I can only echo the sentiments of the Deputy Chief Justice in John Kelewa Kekeno v. Philip Undialu & Electoral Commission (2014) N5502:
“32. I am disappointed in the way this petition has been drafted in that there may have been good grounds to invalidate the elections in the Koroba Kopiago Electorate but for the way the pleadings have been drafted. The requirements under s.208(a) of the Organic Law are rigid although they are meant to be simple and without the engagement of lawyers. However as the Election Petition laws have evolved to date it has now become very difficult to satisfy the courts of the competency of an election petition.”
Pleading Alternative or Multiple Relief
99. Mr. Lora relied on the decision of the Supreme Court in Re William Wii SCR No 45 of 1994, 26.07.94 (unreported) which was adopted in Mongi v. Vogae (1997) N1635 and submitted that these cases held that according to Section 208(b) of the Organic Law, a petitioner shall specify the relief to which the petitioner claims to be entitled. That does not mean that the petitioner can select a relief to his own liking. By seeking in Part D a host of relief listed at paras. 1 to 6, the petitioner has breached the mandatory requirement of Section 208(b) and such breach rendered the petition incompetent.
100. Mr. Asa did not cite any case authority to support his submission in response that a grant of relief is discretionary. I have found the case of Korak Yasona v. Castan Maibawa (1998) SC552 which supports the proposition that the exact relief referred to in Section 215(1) does not have to be sought in the petition. That decision was adopted by the National Court in Soro Marepo Eoe v. Mark Maipakai & Ors (2013) N5066 where the Court dismissed the objection on the ground that the terms of the relief being sought were not in the same terms as those set out in Section 212 of the Organic Law. The reasoning was that so long as the essence of the claim for relief is expressed and understood, it complies with Section 208(b).
101. I adopt the approach taken by the Supreme Court in Korak Yasona v. Castan Maibawa and adopted in Soro Marepo Eoe v. Mark Maipakai. I agree that so long as the essence of the claim for relief is expressed and understood, it complies with Section 208(b).
102. The relief sought at Part D, paragraphs 1 to 6 are for recount of votes and declaration that the first respondent who was returned as elected was not duly elected and that the petitioner is duly elected and returned as member for East New Britain Provincial electorate. An order for re-count of votes is one of the relief provided for and open to grant under Section 212(1)(d) of the Organic Law. That is what the petitioner seeks by way of relief. If the allegations are proved, it is open to the Court to grant.
103. For these reasons, this ground of objection is misconceived and dismissed.
Incompetent attesting witnesses
104. Mr. Lora submitted that the two attesting witnesses Nakikus Matalau, Lawyer of PO Box 714, Rabaul and Matupit Island, East New Britain Province and John Henry, School Teacher of PO Box 92, Tapo Primary School, Kokopo, East New Britain Province are ineligible to attest the petition because first, there is no evidence that they are eligible voters from East New Britain Province and second, they participated in the voting. Third, they were aware and had personal knowledge of the events and able to verify and attest to the petition.
105. I reject the first and second grounds because they are not requirements of Section 208(d) of the Organic Law. As to the third ground, there are two views expressed by the Supreme Court on whether an attesting witness must have some personal knowledge about the events subject of the petition.
106. As it was noted in Malakai Tabar v. Hon Jelta Wong & Electoral Commission (2018) N7121:
“7. There is one view that any person can attest to a petition, as long as, sufficient details of their address and occupation is stated. This is the view expressed by the Supreme Court in Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242, Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295 and Riddler Kimave v. Poevare Tore & 2 Ors (2013) SC1303.
8. The other view is that, an attesting witness to a petition should be able to attest to the signing of the petition and to the facts pleaded in the petition. Recently the Supreme Court in Sandy Talita v. Peter Ipatas & Electoral Commission (2016) SC1603 held this view.
9. This view is based on the reasoning that a person who attests to the petition must be someone who lives within the locality of where the petition originates. And the determination of the question of a witness’s personal knowledge and locality is a question of fact and that extrinsic evidence can be called to prove it”.
107. In that case, the Court was not satisfied that the petition should be dismissed because the respondents did not call extrinsic evidence to prove that the attesting witnesses were not residents of the electorate and had some personal knowledge of events that occurred and subject of the petition. I adopt the same reason in this case and dismiss this ground of objection.
Conclusion
108. I am satisfied that the respondents have made out the grounds of objections on structurally defective pleadings and failure to plead facts under Section 208(a) of the Organic Law. The rest of the grounds have not been made out and were struck out. The end result is that the petition is incompetent and must be dismissed.
Order
109. The orders are:
2. The petition is dismissed as being incompetent.
________________________________________________________________
Warner Shand Lawyers: Lawyers for Petitioner
AD Lora Lawyers: Lawyers for First Respondent
Kimbu & Associates: Lawyers for Second Respondent
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