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National Court of Papua New Guinea |
N7233
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 53 OF 2017
IN THE MATTER OF AN ELECTION DISPUTED RETURN FOR THE WABAG OPEN ELECTORATE
BETWEEN
ROBERT SANDAN GANIM
Petitioner
AND
DR. LINO TOM MOSES
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail, J
2018: 29th March & 2nd May
ELECTION PETITION – Objection to competency of petition – Grounds of – Failure to plead facts – Lack of facts – Allegations of errors or omissions and illegal practices at polling and counting – Whether sufficient facts pleaded – Whether there are facts showing results likely to be affected as a result of errors or omissions and illegal practices by electoral officials – Failure to file petition within 40 days – Failure to pay security deposit of K5,000.00 at time of filing of petition – Incompetent attesting witness – Occupation of attesting witness – “Self-employed” – Organic Law on National and Local-level Government Elections – Sections 208 (a), (d) & (e), 209, 215 & 218
Cases cited:
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015 per Makail J)
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29th May 2015 per Kirriwom J)
Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155
Brian Kramer v. Nixon Philip Duban & Electoral Commission (2013) N5213
Dick Mune v. Anderson Aigiru (1998) SC590
Dr. Bob Danaya v. Ati Wobiro (2013) SC1292
Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569
Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712
Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247
Labi Amaiu v. Andrew Mald (2008) N3334
Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004
Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385
Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437
Paiyo Bale v. Hon. James Donald & Electoral Commission (2018) N7124
Paru Aihi v. Sir Moi Avei (2003) SC720
Peter Waieng v. Tobias Kulang: EP No. 75 of 2012 (Unnumbered and Unreported Judgment of 13th March 2013 per Batari J)
Pius Wingti v. Kala Rawala & Ors (2008) N3286
Sali Subam v. Aide Ganasi (2012) N5068
Samson Malcolm Kuli v. Electoral Commission & Anton Yagama (2013) N5275
Tony Puana v. Joseph Lelang & Electoral Commission: EP. No. 43 of 2012 (Unnumbered and Unreported judgement of 30th January 2013 per Mogish J)
Counsel:
Mr. M. Kombri, for Petitioner
Mr. R. Leo, for First Respondent
Mr. J. Simbala, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
2nd May, 2018
1. MAKAIL, J: This is a ruling on two objections to competency brought by the first and second respondents respectively.
Grounds of Objection
2. The first respondent’s objection filed on 3rd October 2017 is grounded on:
2.1. Non-compliance with Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”), that is, failure to plead facts.
2.2. Non-compliance with Section 208(e) of the Organic Law, that is, failure to file the petition within 40 days.
2.3. Non-compliance with Section 209 of the Organic Law, that is, failure to pay security deposit of K5,000.00 at the time of filing the petition.
3. The second respondent’s objection filed on 21st November 2017 is grounded on:
3.1. Non-compliance with Section 208(a) of the Organic Law, that is, failure to plead facts.
3.2. One attesting witness’s occupation of “self-employed” is contrary to Section 208(d) of the Organic Law.
Failure to file petition within 40 days
4. The first respondent submitted that the declaration of election was made on 27th July 2017. When computed from the date of declaration, the 40 day period expired on 4th September 2017. The petition was filed one day late, that is, on 5th September 2017 contrary to Section 208(e) of the Organic Law. Section 208 is set out in full below:
“208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40
days after the declaration of the result of the election in accordance with Section 175(1)(a)”.
5. In support of the proposition that the petition was filed out of time, the first respondent took exception to the decision of the
Court in Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004 contending that it was wrong and contrary to the binding decision of the Supreme Court in Kalit v. John Pundari & Electoral Commission (1998) SC569 where the Court did not follow the decision of the Supreme Court. In Amaiu v. Kaupa the Court held that the time limitation of 40 days to file a petition starts to run a day after the declaration.
6. That it was submitted by counsel for the first respondent that Kalit v. Pundari was authority for the proposition that the time limitation of 40 days to file a petition is computed from the date of declaration of result of an election and that it was a judicial pronouncement by the highest Court of the land on the law on computation of time limitation of 40 days under Section 208(e) of the Organic Law. Thus, the National Court was bound to follow it.
7. Further, the first respondent criticised the decisions in Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6th March 2015 per Makail J) and Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29th May 2015 Kirriwom J) which were referred to in Amaiu v. Kaupa were unpublished judgments by submitting that first, they were unavailable to the parties to consider. Secondly, the decision by
Kirriwom J sitting as a single Judge of the Supreme Court in SCREV (EP) No. 2 of 2015 carried less weight than the Supreme Court
decision in Kalit v. Pundari and the National Court, being an inferior Court was bound to follow the decision in Kalit v. Pundari.
8. But counsel did concede that Kalit v. Pundari was about a dispute in relation to the correct date of declaration. In other words, the subject of review by the Supreme Court was
about when the declaration was made. Two dates were proposed; one 4th July 1997 and the other, 5th July 1997.
9. The date inserted in the Writ for the subject electorate was 4th July 1997 and the petition pleaded 5th July 1997 as the date of declaration. A determination of the correct date of nomination was critical to the survival of the petition, that is, whether it was filed within 40 days as required by Section 208(e) of the Organic Law.
10. The trial judge in the National Court accepted the date of 4th July 1997 as the date of declaration and went on to find that the petition was filed out of time and dismissed it: see Kelly Kuliyali Kalit v. John Pundari (1998) N1712. On review, the Supreme Court upheld the decision of the National Court and dismissed the review emphasising that the Writ was the official record of the Electoral Commission and the date inserted in it was conclusive evidence of the date of declaration.
11. The concession by counsel is an acknowledgment of the real issue that was before the National Court and also the Supreme Court. That it was about the date of declaration and not the computation of the 40 days. In other words, the Supreme Court was not asked to determine when the time limitation of 40 days was to run. It was asked to determine when the declaration was made. These are two distinct and separate questions.
12. The Court made that distinction in Amaiu v. Kaupa at [21]:
“21. The cases of Kelly Kuliyali Kalit and Labi Amaiu are distinguishable on their facts. In Kelly Kuliyali Kalit, there were two conflicting dates on the date of declaration; one 4th July 1997 and the other, 5th July 1997 and needed to be resolved before computing the 40 days. In this case, there is no dispute in relation to the date of declaration of the first respondent.”
13. The distinction formed the basis of the Court’s decision in Amaiu v. Kaupa not to follow the Kalit v. Pundari at [24]:
“In both cases, there was no contest as to when the 40 days starts to run. Parties had accepted that time ran from the date of declaration. In this case, it is an issue. Thus, those cases do not conclusively settle the issue”.
14. The Court went on to hold that the time limitation of 40 days ran from the date after the declaration. The decision was reached after a careful consideration of the facts and issues raised in Kalit v. Pundari in the National Court and also in the Supreme Court. It was not one made without due consideration to the Supreme Court decision.
15. It was also based on a careful consideration of Section 208(e) of the Organic Law and the National and Supreme Court decisions in Aluago Alfred Kaiabe v. Anderson Agiru: EP No 37 of 2012 per Makail J and Aluago Alfred Kaiabe v. Anderson Agiru: SCRev (EP) No 2 of 2015 per Kirriwom J.
16. The decisions in Aluago Alfred Kaiabe v. Anderson Kaiabe are unpublished judgments and may not be readily available to the parties and their lawyers for ease of reference. But, a request to the responsible Judge through the Associate or even the parties in those cases for a copy of the judgment would have adequately addressed the first respondent’s concerns.
17. The Aluago Alfred Kaiabe case in the National Court took the position propagated by the first respondent in this case. The position was noted to be wrong by the Court in the review case at the leave stage and leave was refused. Kirriwom J sitting as a single Judge of the Supreme Court held that the 40 days ran from the date after the declaration.
18. On the other hand, in Kalit v. Pundari, the Supreme Court did not consider the question because it was not raised. The Supreme Court simply upheld the decision of the National Court that the petition was filed outside the time limitation of 40 days and dismissed the review. It reached that conclusion after upholding the finding by the trial judge that the declaration of result was made on 4th July 1997. It accepted that the computation of the time limitation of 40 days applied by the National Court was from the date of declaration. It was an orbita dictum of the Court.
19. An orbita dictum is not binding on the lower Court, but has persuasive value. In this case, the orbita dictum of the Supreme Court in Kalit v. Pundari will not be followed because it is not consistent with Section 208(e) of the Organic Law. It follows that, computing the 40 days from the date after the declaration, it being 28th July 2017, the 40th day fell on 5th September 2017. The petition was filed on 5th September 2017. I find that the petition was filed within time. This ground of objection is dismissed.
Payment of Security Deposit
20. The next ground of objection pursued by the first respondent was the non-compliance with the requirement to pay security deposit of K5,000.00 at the time of filing of the petition under Section 209 of the Organic Law. Section 209 states:
“209. Deposit as security for costs.
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.”
21. This ground was mooted to challenge the competency of the petition because the evidence of payment produced by the petitioner in the form of a BSP Bank deposit slip dated 4th September 2017 did not establish that the security deposit was paid “at the time of filing the petition”. For Section 209 of the Organic Law stipulates that a security deposit must be tendered at the date of filing the petition. In this case, the petition was filed on 5th September 2017. The security deposit was tendered a day earlier, that is, 4th September 2017. This was contrary to Section 209 of the Organic Law and rendered the petition incompetent.
22. Support was drawn from the Supreme Court case of Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247 which according to counsel stood for the proposition that the sum for security for costs must be tendered at the time of filing the petition. However, that case can be distinguished from this case. That was a case where a post-dated cheque for the security deposit was tendered at the time of filing the petition. In this case, the actual payment was made a day prior to the filing of the petition.
23. It should be noted that Section 209 does not prescribe the form or method of payment of a security deposit. It is found in Rule 7 of the National Court Election Petition Rules, 2017. Rule 7 states:
“Security for costs
The security deposit required by Section 209 of the Organic Law shall be paid in cash or by bank cheque into the National Court Registrar’s
Trust Account at the appropriate bank and evidence of the deposit shall be filed with the petition.”
24. The form or method of payment of security deposit is cash or bank cheque. The cash or bank cheque must be paid to the National
Court Registrar’s Trust Account at an appropriate bank. Finally, evidence of the deposit shall be filed with the petition.
25. In my view, Rule 7 of the EP Rules complements Section 209 of the Organic Law because it gives details of the form or method of payment, place of payment and delivery of evidence of payment. Reading Section 209 in conjunction with rule 7 and given that payment of security for costs must be made to a nominated bank account, it may be made prior to or on the date of filing of the petition. Secondly, the evidence of payment must be presented with the petition on the date of filing of the petition.
26. It would be a case of non-compliance if the security deposit was paid on a date after the filing of the petition or after the 40th day. Another case is where the evidence of payment of the security deposit is not presented with the petition on the date of filing the petition. In these circumstances the Registrar has no discretion to receive the petition for filing. The petition should be rejected.
27. In this case, the payment of security deposit was made on 4th September 2017. The payment was by cash which was one form or method of payment allowed by Rule 7. The cash was deposited into the nominated bank account at BSP Bank a day prior to the filing of the petition that is, 4th September 2017. The evidence of the payment in the form of a Bank Deposit Slip was tendered at the time of filing of the petition on 5th September 2017. This is proper and compliant of Section 209 of the Organic Law.
28. For all these reasons, this ground of objection is dismissed.
Failure to Plead Facts
29. Next, the first respondent attacked the pleadings in relation to allegations of fact supporting errors or omissions under Part CI “Hijacking of Polling and compromise by Presiding Officers and Supporters” by contending that they are not errors or omissions but illegal acts or practices.
Hijacking of Polling and compromise by Presiding Officers and Supporters
30. As an illegal act or practice under Section 215 of the Organic Law is different from an error or omission under Section 218 of the Organic Law because different tests or considerations apply, it is important that the pleadings must make this distinction. This is because pleadings drive the evidence that will be led at trial to prove the allegation. If the petitioner is alleging an error or omission by a polling official, evidence to be adduced at trial must go to prove the error or omission. Such an allegation will give the respondents the opportunity to identify witnesses to refute it. Otherwise, such a pleading will end up confusing the respondents in their defence. Such a pleading would be contradictory and confusing.
31. As for the second respondent, counsel submitted that in each case, there are no facts to support an allegation of illegal practice. For example, if the allegation is that, polling at Malaund/Pokale the ballot box was hijacked and taken to Pasalagus and as a consequence, 1,522 eligible voters at Malaund/Pokale polling venue did not vote then, it has not been pleaded that 1,522 ballot papers were illegally marked. Secondly, it has not been pleaded that polling took place at Malaund/Pokale polling venue. Further still, there are no facts pleaded to show the total number of votes received by the first respondent and finally, how the result was affected or likely to be affected.
32. The petitioner maintained that the facts pleaded under this Part alleged that polling officials made errors or omissions during polling. For instance, polling officials “colluded, convened, facilitated and were involved with the supporters of the first respondent with the knowledge and authority of the first respondent in the hijacking of the ballot papers” (see para. (iii) at page 22 of the petitioner’s written submissions) and moved polling venues. As a result, voters who turned up at the designated polling venue discovered that there was no polling booth set up and did not vote. Then the ballot-box for the designated polling venue was taken to a different location and polling officials illegally marked the ballot-papers for the first respondent and stuffed them in the ballot-box.
33. Voting at Malaund/Pokale Ward 2, Maramuni LLG.
34. According to the Oxford Advanced Learner’s Dictionary 7th ed Oxford University Press at p. 494, an error is defined as “a mistake, especially one that causes problems or affects the result of something”. An omission is defined by the same dictionary at p. 1017 as “the act of not including somebody or something or not doing something; the fact of not being included or done”.
35. Given the definition of an error and likewise, omission, I am of the view that for an act to constitute an error or omission, it must be unintentional or accidental. In other words, in a case of an error, it was a mistake, that is, something happened that caused a problem or affected the result of something and in the case of an omission, something was not included or not done that caused the problem.
36. In the case under consideration, bearing in mind the requirements of polling locations under Section 43 (Polling places) of the Organic Law, facts must be pleaded to show that it was unintentional or accidental that a polling official changed the polling venue by moving it from a designated location to another. For instance, facts must be pleaded to show that a venue by name is a designated polling venue and secondly, the duty of the presiding officer to ensure that the polling is conducted at the designated polling venue. However, the name of the polling venue was not communicated to the presiding officer. As a result, the subject presiding officer conducted polling at another venue. Voters of the subject polling venue turned up to vote and discovered that there was no polling booth set up and did not vote. These facts would show that the presiding officer failed in his duty to ensure that polling was conducted at the designated polling venue in order to give voters the opportunity to exercise their right to vote. In my view, this would be an example of pleading of facts supporting an error at polling.
37. It would constitute an omission if the list of designated polling locations was published and communicated to the presiding officer but the presiding officer did not include and conduct polling at the designated polling location because he had a long held belief that the designated polling location fell outside the geographical location of the electorate like in the case of two polling locations in Nomad LLG in the North Fly Open electorate case of Paiyo Bale v. Hon. James Donald & Electoral Commission (2018) N7124. That decision is now subject of a Supreme Court review.
38. A close examination of the facts pleaded under consideration shows that, apart from identifying the presiding officer as Maso Neserta, the alleged designated polling location as Malaund/Pokale, Ward 2, in the Maramuni LLG and the other polling location as Pasalagus and the presiding officer as Samuel Amene, there is use of the words such as “collaboration”, “hijacking”, “directed the chopper”, “without lawful authority”, “obstructing” and “tampering” which convey to a reader an entirely different meaning altogether.
39. For example, the use of the word “hijacking” conveys to a reader that there was “use of violence or threats to take control of” something, “a vehicle, especially a plane in order to force it to travel to a different place or to demand something from a government”. See Oxford Advanced Learner’s Dictionary (supra) at p. 705.
40. To my mind, the use of such words is intended to convey to the reader that it was a pre-planned act by the presiding officers of Malaund/Pokale and Pasalagus to move the polling location from Malaund/Pokale to Pasalagus to deprive voters at Malaund/Pokale the opportunity to exercise their right to vote. If they planned the movement of the ballot-box, then it must be a deliberate act. The plan was, accordingly, executed by directing the chopper carrying the ballot-box for Malaund/Pokale to land at Pasalagus. A reason was coined to explain the change of polling location which was apparently the existence of a Court order which directed polling to move from Malaund/Pokale to Pasalagus. However, there was no notice of abolition or change of polling venues.
41. All in all, the use of these words conveyed to a reader that the conduct of the presiding officers to move polling and the ballot-box from one location to another was deliberate, hence illegal. In my view, the circumstances, as described, does not support an allegation of error or omission within the meaning of Section 218 of the Organic Law but an illegal act or practice under Section 215 of the Organic Law.
42. As to the second respondent’s attack on the sufficiency of pleadings, except for the assertion that there are no facts to show how the result of the election was likely to be affected, the rest are matters for evidence at trial. As to whether the result of the election was likely to be affected by the illegal act, it has been pleaded that 1,522 eligible voters did not cast their votes. To my mind, it is sufficient. Whether the figure of 1,522 is likely to affect the result of the election is to be considered together with the rest of allegations in the petition.
43. But the critical issue is this, as the petitioner has maintained in his submission that the allegation is one of error or omission, this is contradictory, and confusing and constitutes a fundamental defect in the pleadings. Furthermore, it was not put to me that the petitioner was willing to accept that the facts as pleaded supported allegations of illegal practices and I am not sure if a concession by the petitioner to that effect would correct or improve the state of the pleadings. For all these reasons, this allegation is struck out as being incompetent.
44. Voting at Sopas Village, Ward 8, Wabag LLG.
45. For this allegation, in opposing the objection, counsel for the petitioner argued that the conduct of the presiding officer at Sopas Village, Mark Kambia to allow the first respondent into and seated inside the polling booth area constituted an error. For the first respondent’s conduct as described, was contrary to Section 111 of the Criminal Code. Secondly, the presence of the first respondent intimidated and influenced voters to vote for him. Such conduct was contrary to Sections 102, 108 and 113 of the Criminal Code.
46. However, I have to agree with the first respondent. The pleadings are in no way near to an allegation of error or omission. For the use of the words “intimidated voters” can hardly be described as an error or omission. At best, they refer to undue influence which is a criminal offence under Section 102 of the Criminal Code. It is also an illegal act or practice within the meaning of Section 215 of the Organic Law. Notwithstanding these glaring features of the pleadings, the petitioner maintained that it is an error or omission. This sort of allegation is also deficient and lacked facts because there are no facts to show the duties of the presiding officer at the polling and the breach. In addition, there are no facts to show how the error or omission affected the results of the election: see Section 218. The end result, the allegation is contradictory and confusing resulting in a fundamental defect in the pleadings. This allegation is struck out.
47. Voting at Keas 2, Ward 36, Wabag Rural LLG.
48. From a close examination of the facts pleaded, the use of the words “hijacked”, “conspired”, “stuffed” and “illegally marked ballot papers”, convey to a reader that the conduct of the presiding officer identified as Danny Suruk conspired with Councillor Laki Nete and his clansmen to hijack the ballot-box and signed ballot-papers and stuffed them into the ballot-box. Again, the allegation about the conduct of the presiding officer can hardly be described as an error or omission. On the contrary, the facts pleaded described a case of illegal act or practice within the meaning of Section 215 of the Organic Law. Again, the allegation is contradictory and confusing resulting in a fundamental defect in the pleadings. This allegation is struck out.
49. Voting at Manjop, Ward 40, Wabag Rural LLG.
50. The allegation that polling at Manjop, Ward 40 was not conducted because the vehicle carrying the ballot-box was held up at gun point, a shot was fired by Fred Kalpyn, ballot-box taken to Tole Ward 14 and an attempt to retrieve it by Ward Councillor of Manjop was met with stiff opposition from identified supporters of the first respondent armed with firearms also suffers from the same defect for the reasons given for the previous polling locations. It is struck out.
51. Voting at Tole, Ward 14, Wabag Rural LLG
52. The allegation that polling at Tole, Ward 14 was not conducted because the ballot-box was opened together with the ballot box for Manjop ward 40 and ballot papers endorsed by the two presiding officers Keram Madand and Diapen Sakarao and an attempt to retrieve it by Ward Councillor of Manjop was met with stiff opposition from identified supporters of the first respondent and another candidate Philip Samuel Kenai armed with firearms also suffers from the same defect for the reasons given in the previous polling locations and should be struck out.
53. However, if the import of the allegation is to support the further allegation that despite objection to the admission of the ballot-box to scrutiny, the Returning Officer failed to exclude it and further, failed to give reasons for not excluding it is to support the allegation that the Returning Officer made an error or omission when he admitted the subject ballot-box to scrutiny, I am prepared to allow this allegation. That said, there must be facts in figure terms to show if the result of the election was affected. Are there facts to that effect?
54. It has been pleaded at para. 21 that 1,378 ballot-papers were illegally marked and stuffed into the ballot-box. If the petition is read as a whole, it has been pleaded at para. 4 that the first respondent was declared elected with 22,463 votes while the petitioner polled 17,551 votes. The difference was 4,912 votes. If the affected votes were 1,378, then it is less than 4,912 votes and the result of the election was not affected. I would strike out this allegation. However, if it were allowed, its survival would depend on the number of votes affected by the remaining allegations of errors or omissions.
55. Voting at Birip 2, Ward 28, Wabag Rural LLG.
56. The allegation that polling at Birip 2, Ward 28 was not conducted because the ballot-box was hijacked by identified armed gunmen and supporters of the first respondent, one of them being Bruce Abotane chased away scrutineers of the first respondent and another candidate also suffers from the same defect for the reasons given for the previous polling locations. It is struck out.
57. Voting at Kiwi 1, Ward 9, Wabag Rural LLG.
58. The allegation in relation to polling at Kiwi 1, Ward 9 is identical to the second allegation, that is, the polling at Sopas Village. For the same reasons given in that case, this allegation is struck out.
59. Voting at Wabag Urban LLG, Ward 1, Lanikep.
(a) it failed to ensure adequate security for the conduct of a genuine, free and for polling in these respective polling centers;
(b) it failed to ensure that the registered voters or eligible voters in these respective polling centers exercised their constitutional right to vote; and
60. If the import of the allegations is that due to inadequate provision of security by the second respondent at the polling venue, voters were chased away by bush knife wielding supporters of the first respondent, are we to assume that the second respondent is responsible for providing security and to what degree? For if the error or omission alleged here is the inadequacy in the provision of security at the polling venue, I am of the view that, it must first be alleged that one of the responsibilities of the second respondent is to provide adequate security at polling venues and secondly, the degree of provision of security. These are material facts and relevant to show that the second respondent failed to provide adequate security. If these facts are not pleaded, it will be assumed as in this case that, the second respondent is responsible for the provision of security or adequacy of security and for that, the Court cannot be asked to draw possible inferences.
61. Finally, at para. 26 there is a reference to 444 ballot-papers being illegally marked. Again, reading the petition as a whole, it has been pleaded at para. 4 that the first respondent was declared elected with 22,463 votes while the petitioner polled 17,551 votes. The difference was 4,912 votes. If the affected votes were 444, then it is less than 4,912 votes and the result of the election was not affected. Furthermore, if the affected votes of 1,378 at Tole Ward 4 is added to 444 votes of Lanikep and Police Barracks giving a total of 1,822 votes, it would still be less than 4,912 votes and the result was not affected. For these further reasons, I would dismiss this allegation. However, if it were allowed, again, its survival would depend on the number of votes affected by the remaining allegations of errors or omissions.
Counting Room Illegalities/Irregularities
62. Next, the first respondent attacked the pleadings supporting the allegations of illegalities or irregularities at counting by the servants and agents of the second respondent under Part CI “Counting Room Illegalities/Irregularities” by contending that they lacked facts.
63. The facts pleaded by the petitioner are reproduced hereunder:
| Exclusion No. & Candidate | Petitioner’s Tally | First Respondents Tally | |||
| | First Preference Score 10,357 | First Respondents Tally 8,496 | |||
| 1 | Perak Perano | Nil | 10,357 | Nil | 8,496 |
| 2. | Paul Nili | 2 | 10,359 | Nil | 8,496 |
| 3. | Apakas Mek | Nil | 10,359 | Nil | 8,496 |
| 4. | Ricky Kepas | Nil | 10,359 | Nil | 8,496 |
| 5. | Mek Kuk | 37 | 10,396 | 38 | 8,534 |
| 6. | Bisin Kaka | 95 | 10,491 | 34 | 8,577 |
| 7. | Ricks Tanda | 57 | 10,548 | 123 | 8,700 |
| 8. | M. Yessim | 537 | 11,267 | 621 | 9,419 |
| 9. | Roy Kipalan | | | | |
| 10. | Win Kambia | 1,426 | 12,693 | 733 | 10,152 |
| 11. | Sam Abal | 406 | 13,099 | 909 | 11,061 |
| 12. | Samuel Kenai | 937 | 14,036 | 1,734 | 12,796 |
| 13. | Bonny Manuel | 609 | 14,645 | 1,461 | 14,247 |
| 14. | Kenneth Korakali | 633 | 15,278 | 1,955 | 16,212 |
| 15. | Ruben Kandiu | 1,025 | 16,303 | 2,972 | 19,184 |
| 16. | Pato Potane | 1,248 | 17,551 | 3,279 | 22,463 |
(a) each of the disputed Ballot Boxes identified above in the respective polling centers were not lawfully casted (sic);
(b) the written and verbal objections raised by Scrutineers pursuant to Section 153A of the Organic Law were not lawfully decided were Luke Wayon ought to have informed the objecting Scrutineers of his Decision and reasons for admitting the above Ballot Boxes into scrutiny;
(c) the Second Respondent instead of complying with the statutory process under Section 153A(2) of the Organic Law, simply shouted down and verbally abused and threatened Scrutineers who properly raised legitimate objections, both written and oral;
(e) Thus, as a consequence of the errors and omissions by the Second Respondent’s named servants and agents referred to in the preceding paragraphs, the results of the election were affected in that, the total allowable votes from these disputed Ballot boxes admitted into Scrutiny is 9,248 when the difference between the Petitioner and First Respondent is 4,912 votes. The result was affected and the First Respondent should be declared not duly elected and his election voided.
64. This is a long winded pleading because it raises so many different allegations of errors or omissions without the material facts. For instance, at paragraphs 31 to 37 it is alleged Luke Wayon and Anton Iaumau including security personnel shouted down, verbally abused, threatened to physically remove scrutineers and ignored legitimate objections relating to disputed ballot boxes and admitted them to scrutiny. Also at paragraph 32, the second respondent was unfair and biased in favour of the first respondent. Yet the petitioner argued that the errors or omissions were made by the Returning Officer and counting officials at counting.
65. It does explain why the first respondent has strenuously opposed the statement of facts on the grounds of failing to constitute or assert a clear and precise ground of errors or omissions when considered individually or collectively. In other words, they are all lumped together and failed to indicate the base facts for the specific error or omission or illegality. And it is not for the petitioner to expect the Court to shift through the pleadings to work out what is being alleged against the respondents.
66. The first respondent summed up the pleadings by submitting that they are convoluted, vague, too general and badly structured such that they offended against Section 208(a) of the Organic Law and should be struck out.
67. It was quite the opposite for the petitioner who submitted that the first respondent is nit-picking because when the petition is read as a whole, the allegations of errors or omissions at the identified polling locations laid the foundation for the main allegations of errors or omissions being committed at counting, they being that, despite objecting to the admission of the ballot-boxes from being admitted to scrutiny under Section 153A of the Organic Law, the Returning Officer Mr. Luke Wayon allowed them.
68. The problem with that submission is that, first, not all identified polling locations at paras. 34 and 36 formed a separate allegation of an error or omission. For instance, there are no facts pleaded to show the alleged error or omission or what was wrong with the ballot-boxes for Piaulam Box, Ward 45, Kaiamotok Box, Ward 6 identified at para. 34(a) and (b) to then be subject of an objection under Section 153A at counting and allowed to be conducted.
69. The second problem is except for ballot-boxes for Tole, Ward 14 identified at para. 34(d) and Lanikep & Police Barracks, Ward 1 and Kiwi 1, Ward 9 identified at para. 36(c) and (e) respectively, the ballot-boxes for Manjop, Ward 40 at para. 34(c) and Keas 2, Ward 36, Birip 2 and Malaund/Pokale Ward 2 at para. 36(a), (b) and (d) respectively were struck out as being incompetent.
70. There are, therefore, no base facts to show that these ballot-boxes contained ballot-papers that were cast as a result of errors or omissions committed by polling officials at polling to support an objection to their admission to scrutiny at counting.
71. And just because the Returning Officer and other counting officials may be related one way or the other to the first respondent does not constitute an error or omission or an illegal act at counting. It must be further shown that the errors or omissions or legality did affect or was likely to affect the result of the election.
72. Furthermore, there are no facts to establish the duty imposed on the Returning Officer and nature of breach. For there is a set procedure for objections and it must be clearly identified by the petitioner where in the process the Returning Officer failed to observe. For more details on the procedure for objection under Section 153A of the Organic Law, refer to Pius Wingti v. Kala Rawala & Ors (2008) N3286 and Samson Malcolm Kuli v. Electoral Commission & Anton Yagama (2013) N5275. In this instance, all there is at paras. 35, 36 and 37 is the assumption that the Returning Officer had a duty to act in a certain way such as to accept an objection and he failed to discharge it.
73. As to the remaining ballot-boxes from polling locations of Tole (1378 ballot-papers), Lanikep & Police Barracks (444 ballot-papers) and Kiwi 1 (334 ballot-papers) the total votes affected is 2,156. To succeed on an allegation of error or omission under Section 218 of the Organic Law, it must be alleged that the error or omission did affect the result of the election. In this case, the combined of votes affected by the alleged error or omission was 2,156. This figure is less than the difference of 4,912 votes pleaded at para. 4 of the petition thus, did not affect the result of the election. But again, its survival is dependent on the other allegations.
74. The next lot of errors or omissions alleged here are in relation to failure to do purity check on the primary count. Purity check was applied to only the top 5 candidates then counting at fast pace, exhausted ballot-papers placed with the first respondent’s votes, misallocation of ballot-papers for candidates and recording of wrong figures on the Tally Board as alleged at paras. 38 to 41. Yet counting officials took no steps to correct them or prevented them from occurring. But the critical fact missing is the total number of votes affected by these errors or omissions. In my view, para. 42 which set out the tally results from the first to the seventh and final exclusions do not show how the errors or omissions affected the final result of the election. The figures set out in a table form are, apart from my difficulty in understanding them, are vague and confusing.
75. I conclude that while there are these complaints raised by the petitioner, I am not satisfied that the alleged errors or omissions affected the result of the election and it would be just for the Court to allow the petition to proceed to trial on these allegations. This allegation is struck out.
Illegal Practices by the First Respondent
76. The first respondent attacked the pleadings relation to allegations of fact constituting illegal practices by the first respondent under Part CI “Illegal Practices by the First Respondent” by contending that they lacked facts.
77. Illegal Practice at Sopas Village, Ward 8, Wabag Rural LLG.
78. The first respondent argued that if the allegation is that the presiding officer permitted him to enter and sit on a chair in the polling area contrary to Section 111 of the Criminal Code, then as the heading (Offences by presiding officers at elections) suggests, it is inconceivable that he could be guilty of such offence. For only a presiding officer can be accused of and found guilty of this offence. Given this the allegation is misconceived and should be struck out.
79. Even the further allegation at para. 46 that he assaulted a registered voter by the name of Eric Evan when Mr. Evan objected to his presence in the polling area contrary to Section 6 of the Summary Offences Act is misconceived and should be struck out. This is because it is not a ground to invalidate an election or return.
80. The petitioner argued that the facts pleaded constituted an illegal practice and the first respondent is nit-picking the issues.
81. I reject the petitioner’s submission that the first respondent is nit-picking for the first respondent has raised some valid points. But first, I consider that the facts pleaded are identical to those pleaded at para. 14 – Voting at Sopas Village, Ward 8 under the allegations of errors or omissions. That allegation has been dismissed as being incompetent. As to the present allegation, it is one of illegal practice. As the petitioner has relied on it as a separate ground, the real question is whether the facts pleaded are sufficient to constitute an illegal practice.
82. And from what has been pleaded, it is clear that the presiding officer Mark Kambia permitted the first respondent to enter and sit inside the polling area and the security forces and polling officials failed to stop the first respondent. When Eric Evan objected to his presence in the polling area, the first respondent assaulted him.
83. But there are no facts to show that the first respondent used or threatened to use any force or restrained, did or threatened to do any temporal or spiritual injury, caused or threatened to cause any detriment of any kind to an elector in order to induce him to vote or refrain from voting at the election or on account of his having voted or refrained from voting at the election or by force or fraud prevented or obstructed the free exercise of the franchise by an elector or by any such means compelled or induced an elector to vote or refrained from voting at the election to constitute an offence of undue influence under Section 102 of the Criminal Code.
84. And the allegation that the first respondent assaulted Eric Evan falls short of constituting undue influence because there are no facts to show that the first respondent did so in order to induce Eric Evan to vote for him or refrain from voting at the election or on account of his having voted or refrained from voting at the election. On the other hand, the reason for the first respondent assaulting Mr. Evan was to do with Mr. Evan’s objection to the first respondent’s entry and presence in the polling area. This allegation is struck out.
85. Illegal Practice at Kiwi 1, Ward 9, Wabag Rural LLG.
86. The reference to multiple provisions of the Criminal Code is confusing and misleading because the facts pleaded do not constitute all of those criminal offences. However, the first respondent conceded that the facts constituted offences of interference at elections and stuffing of ballot-boxes under Section 108 and Section 110 of the Criminal Code respectively. If that is the case, the question is; are there further facts in terms of figures to show how the result of the election was likely to be affected? If the allegation is that 100 ballot-papers were marked by the first respondent without the electors using them to cast their votes and the difference between the first respondent’s total votes and the petitioner’s total votes is 4,912, then the result of the election was not likely to be affected because the number of votes affected being 100 is less than 4,912. This allegation is struck out. In any case, the figure of 100 contradicts the earlier figure of 334. Given the inconsistency, for this further reason, this allegation is struck out.
Compromise of the Independence of the Second Respondent
87. Finally, the first respondent contended that the facts under Part CI “Compromise of the Independence of the Second Respondent” are insufficient or lacking. The facts are reproduced hereunder:
(a) The preparation, polling, scrutiny and counting were conducted by persons who were directly and indirectly associated with the First Respondent and therefore it can reasonably be inferred that the polling in respect of the First Respondent’s votes in identified polling areas could not have been genuine, free and fair within the meaning of Section 50 of the Constitution.
(b) The Second Respondent through its officials was biased and compromised its independence at the scrutiny of ballots when counting was forced to go ahead and allowed the counts of ballot boxes formally and lawfully disputed thus contrary to Section 153 of the Organic Law.
(c) Thus as a consequence of the acts, errors and omissions of the Second Respondent, the result of the election was affected and the First Respondent is returned as a result.
88. According to the first respondent’s submission, the pleadings at paras. 49 to 54 are generalised complaints and assertions based on the petitioner’s personal opinion, imagination and suspicions about a conspiracy theory because of the Returning Officer Luke Wayon who is his (first respondent’s) clansman and he appointed close friends and associates or relatives and other persons to coordinate the conduct of polling and counting of votes, hence there could not have been a genuine, free and fair election within the meaning of Section 50 of the Constitution.
89. The petitioner countered this submission by arguing that they are additional facts supporting the allegations of errors or omissions at paras. 10 to 27 and allegations of counting room illegalities/irregularities at paras. 31 to 43 of the petition.
90. I have read the statement of facts and on the face of it, I agree with the first respondent that they are generalised complaints and assertions by the petitioner in relation to how the polling and counting were conducted under the supervision and control of the Returning Officer Mr. Wayon. But on a closer examination, they do bring out one major complaint and that is in relation to the appointment of persons who were one way or the other related to the first respondent. The petitioner tried to tie in or connect these persons to the way the counting was conducted by alleging that it was not done properly because counting officials did not do what they were required to do to ensure that counting was done properly. Its survival is very much dependent on the other allegations. For these reasons, it is struck out.
“Self-employed” as occupation of attesting witness
91. The last ground of objection is based on the assertion that an attesting witness to the petition who is “self-employed” is not an occupation. It was pointed out by counsel for the second respondent that there are two judicial views on the definition of “self-employed”. There is one view as was held in the case of Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155 and adopted by Tony Puana v. Joseph Lelang & Electoral Commission: EP. No. 43 of 2012 (Unnumbered and Unreported judgement of 30th January 2013 per Mogish J) that the term “self-employed” is a generic expression and not an occupation.
92. The other view expressed by the Court in the case of Peter Waieng v. Tobias Kulang: EP No. 75 of 2012 (Unnumbered and Unreported Judgment of 13th March 2013 per Batari J) and adopted in Bryan Kramer v. Nixon Philip Duban & Electoral Commission (2013) N5213 is that “self-employed” fell within the ambit of the word occupation. Earlier, in Sali Subam v. Aide Ganasi (2012) N5068. Ipang J stated that “when a person listed himself or herself as ‘self-employed’, it means he or she is involved or engaged in private business or is a businessman or businesswoman”.
93. Counsel urged the Court to adopt the view expressed by the Court in Oibotee and Puana cases because it would avoid misleading the parties and affirm the meaning of the word “occupation” as defined by the Supreme Court in Paru Aihi v. Sir Moi Avei (2003) SC720.
94. I prefer the liberal view propagated by the Court in Waieng, Kramer and Subam cases. I do not believe that giving a liberal meaning to the word “self-employed” is going to mislead or confuse parties but is sufficient to direct the parties to the attesting witness. At the very least, the attesting witness is not unemployed and one would be wondering how to locate him. This ground is dismissed.
Summary
95. The objections on the following grounds have been dismissed:
96. The total number of votes in the cases where the allegations can be sustained, I am not satisfied that the result of the election was affected. It would follow that the ground on failure to plead facts under Section 2098(a) will be upheld. The petition is, therefore, incompetent and will be dismissed.
Order
97. The orders are:
________________________________________________________________
Kombri & Associates: Lawyers for Petitioner
Leo Lawyers: Lawyers for First Respondent
Harvey Nii Lawyers: Lawyers for Second Respondent
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