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Boito v Kipefa [2018] PGNC 266; N7354 (10 July 2018)

N7354

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 66 of 2017

IN THE MATTER OF DISPUTED RETURNS FOR THE OBURA WONENARA OPEN ELECTORATE

BETWEEN
JOHN BOITO
Petitioner

AND

MEHRRA MINE KIPEFA

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kandakasi, J.

2018: 22 June, 10 July

ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on bribery - Essential elements of bribery – Matters that must be pleaded – Certain essential elements including the essential element of the wining candidate being a “candidate” not pleaded – Conduct complained of were by persons other than the First Respondent - Effect of – Insufficient pleading for ground based on bribery by wining candidate – Petition incompetent - Sections 3(1), 208 (a) and s.215 (1) a and 218 of Organic Law on National and Local-level Government Elections.

ELECTION PETITIONS – Objection to competency – Pre-requisites – Petition based on errors, omissions and illegal practices – Conduct complained of were by persons other than the wining candidate - Effect of - No pleading with particulars of winning candidate knowing or authorising errors, omissions and illegal practices by third parties – No foundation in the pleadings demonstration it is fair and just to declared the winning candidate not duly elected and or void his election – Sections 208(a) and s.215 (3) and 218 of Organic Law on National and Local-level Government Elections.

ELECTION PETITION – Objection to competency – Pre-requisite – Attesting witnesses – Purpose of - Inconsistent pleading of address and occupation - Village address – Name of district, nearest town, province not pleaded - Wording in petition not meeting requirements in prescribed form by court rules – Petition incompetent - Section 208 (d) of Organic Law on National and Local-level Government Elections.

WORDS AND PHRASES – “knowledge” – Meaning for the purposes of the Organic Law on National and Local-level Government Elections – Means the winning candidate having a prior familiarity, awareness, understanding, comprehension or experience of the facts and figures alleged in a petition against him - Section 215 (1) and (3) and s. 208(a) of Organic Law on National and Local-level Government Elections.

WORDS AND PHRASES – “authority” – Meaning for the purposes of the Organic Law on National and Local-level Government Elections – Means prior to the carrying out of the ‘illegal practice’ alleged against him, permitted, sanctioned or approved those acting on his behalf to carry out the alleged illegal practice - Section 215 (1) and (3) and s. 208(a) of Organic Law on National and Local-level Government Elections.

Cases cited:

Agonia v. Karo [1992] PNGLR 463
Allan Ebu v. Roy Evara [1983] PNGLR 201
Andrew Kumbakor v. Joseph Sungi (2012) N5002
Anton Yagama v. George Wan and The Electoral Commission (1997) N1692.
Baki Reipa v. Yuntivi Bao [1999] PNGLR 232
Bourne v. Voeto [1977] PNGLR 298
Brian Kramer vs. Nixon Duban (2013) N5213
Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1251
Delba Biri vs. Bill Ninkama [1982] PNGLR 342
Dick Mune v. Anderson Agiru & Ors (1998) SC590
Empraim Apelis v. Sir Julius Chan (1998) SC573
Francis Koimanrea v. Alois Sumunda (2003) N2421
James Yoka Ekip v. Gordon Wimb & William Duma (2012) N4899
Jerry Singirok vs. Ken Fairweather (2014) N5577
Jim Nomane v. Wera Mori (2013) SC 1242
Joel Paua v. Robert Nagle [1992] PNGLR 563
John Kekeno v. Philip Undialu (2015) SC1428
Ken Fairweather v. Jerry Singirok (2013) SC1279
Kopoal v. Embel (2008) N3319
Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123
Luke Alfred Manase v. Don Pomb Polye (2009) N3718
Mathias Ijape vs. Biri Kimisopa, (2003) N2344
Mathias Karani v. Yawa Silupa (2003) PNGLR 9
Michael Kandiu v. Hon Powes Parkop (2015) SC1437
Parua Aihi v. Sir Moi Avei (2003) SC720
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921
Peter Wararu Waranaka v. Richard Maru & Electoral Commission (2018) N7346
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980
Philip Kikala v. Electoral Commission (2013) SC1295
Powes Parkop v. Wari Vele (No 1) (2007) N3320
Riddler Kimave v Poevare Tore & 2 Ors (2013) SC 1303
Robert Kopaol v. Philemon Embel (2003) SC727
Roger Palme vs. Michael Mel (1989) N808
Sandy Talita v. Peter Ipatas (2016) SC1603
Sai Sail Beseoh v. Yuntivi Bao (2003) N2348
SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441
SCR No 5 of 1988 Applications of Kasap and Yama [1988–89] PNGLR 197
Sir Arnold Amet v. Peter Yama (2010) SC 1064
Sir Peter Lus vs. Gabriel Kapris (2003) N2326
Soro Marepo Eoe v. Mark Ivi Maipakai & Ors, (2013) N5066
Steven Pirika Kamma v. John Itanu (2007) N3246

Counsel:

M. Nale and L.Evore, for the First Objectioner/ First Respondent
L. Okil, for the Second Objectioner/Second Respondent
P. Othas, for the Respondent/Petitioner

10^th July, 2018

1. KANDAKASI J: This is an election petition by John Boito (the Petitioner) against the election victory of Honourable Mehrra Mine Kepefa (the First Respondent) in the 2017 National General Elections for the Obura Wonenara Open Electorate. The petition is, based on grounds of bribery, illegal practices, errors and omissions. Both the Electoral Commission and the First Respondent (the Respondents) have taken issue with the competency of the petition and have separately filed objections to the competency of the petition. I heard the objections on 22^nd June 2018 and reserved a decision on that. Here now is the decision.

Grounds for Objections

2. The grounds for both objections can be summarised as a failure by the Petitioner to properly plead each of the grounds of the petition sufficiently. Added to that is a belated ground of the witnesses’ attestation clause not being properly pleaded as well.

3. In summary the objections claim the following:

(1) On the allegation of bribery, the petition fails to plead the essential elements under s. 103 (a) (iii) of the Criminal Code of:

(a) either the First Respondent committed the act of bribery or his named servants or agents did with his knowledge or authorisation;

(b) the purpose of the alleged bribery was for the recipients to vote for the First Respondent or abstain from voting or otherwise influence the election outcome in favour of the First Respondent; and

(c) a clear identification of the person who were allegedly bribed by name and that such persons were electors in the Obura Wonenara Electorate;

(2) As for the allegations of illegal practices, errors, and omissions the petition fails to plead:

(a) each act of illegal practice, error and omissions separately instead of lumping them together;

(b) the relevant section or provisions of the Organic Law on National and Local-level Government Elections (Organic Law), a Constitutional law or an Act Parliament or any other law that makes each of the allegations illegal, an error or an omission and is a valid ground for an election petition;

(d) the illegal practices, errors and or omissions were committed with the knowledge or the authorisation of the First Respondent;

(e) it is fair and just in the circumstances that the First Respondent who was declared winner was not duly elected and that his election should be voided;

(f) the allegations in paragraphs 1 – 6 in Part 2 Category A, amounts to a breach of the provisions of s. 214 of the Organic Law as they concern the correctness of the common roll;

(d) How many of the 508 and 262 votes respectively pleaded in paragraph 7 (d) of Part 2, Category A and paragraph 3(c) of Part 2 Category A, II, were collected by the Petitioner and how many were collected by First Respondent or the other candidates?

(e) facts showing why a treatment of the 9,488 votes as exhausted votes in Part 2 of Category B, II, was wrong and how the Petitioner could have secured those votes;

(f) material facts relating to the alteration of the Common Roll in accordance with s. 62 and s. 63 of the Organic Law and in any case the pleadings in paragraphs 3 – 6 of Part 2, Category A, I are misconceived and without following the procedure under Part VIII of the Organic Law and without having regard to the provisions of s. 214 of the same law; and

(g) facts in paragraph 8 of Part 2, Category B, II, supporting or disclosing an illegal practice under s. 150 and 152 (1) of the Organic Law when considered with s. 218 of the of the same law.

Starting point for election petitions

4. As I recently said in my decision in Peter Wararu Waranaka v. Richard Maru & Electoral Commission,^[1] the starting point in all election petitions are the mandatory requirements of s. 208 because of the provisions of s. 210 of the Organic Law. Included in that starting point is the interpretation and application given to these provisions by the Courts led by the often-cited decision in Delba Biri vs. Bill Ninkama.^[2] Many subsequent decisions of the Supreme and National Courts like the one in Sir Arnold Amet v. Peter Charles Yama^[3] have followed, Biri v. Ninkama consistently, restated the law and applied the relevant principles.

5. At page 345 of its decision, the Supreme Court in Biri v. Ninkama held:

“In our view, it is clear that all requirements in Section 208 and Section 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a constitutional law. Section 210 simply precludes any proceedings unless Section 208 and Section 209 are complied with. In our opinion, it is beyond argument that if a Petition does not comply with all or any of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the Petition because of s.210, of the Organic Law.”

6. The Court described the rationale behind the mandatory nature of s. 208 in terms of:

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

7. In my decisions in several election petitions such as the one in the case of Mathias Ijape vs. Biri Kimisopa,^[4] I have taken this statement of the law to mean:

“... the prerogative belongs to the majority in an electorate to elect their representative to Parliament. It is a sacred right. Once that choice is made in a fair and free election, it can only be challenged strictly in accordance with the requirements of the Organic Law which grants a right to a person aggrieved by an election to challenge it.”

8. The Supreme Court in its later decision in the Amet v. Yama, endorsed the decision in Biri v. Ninkaman and restated the rational for the law in its own words as follows:

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

9. With these principles in mind, I turn to a consideration of the Respondents’ objections to the competency of the petition before me.

Dealing with the Objections

(a) Law on pleadings in election petitions

10. As already noted, both objections are based on an allegation of a failure to plead the facts as required by s. 208 (a) of the Organic Law. It is therefore necessary to comment on the relevant law on pleading in election petition cases. I have said on several occasions before that, drafting legal documents is an art and a skill. Only those who are skilled, and experienced should accept instructions and do such work. Drafting court documents is a matter which requires a special drafting knowledge and skill because it requires more care and attention paid to court rules on pleadings and the many case law on point. In election petitions, there is a whole body of case law from as early as Biri v. Ninkama and others which many lawyers who are drafting election petitions these days appear to ignore or deliberately fail to take note of and plead appropriately. This has and is resulting in many possible good petitions with good and strong grounds such as bribery are being dismissed on competency grounds. The Courts have no choice but to dismiss petitions however serious the background and the basis for the petition are, if the petitioners fail to comply with the mandatory requirements of s. 208 because of the dictates of s. 210 of the Organic Law. The later precludes any petition from proceeding unless s. 208 is fully complied with. If any fault is to be subscribed to anybody, that should be the lawyers who fail to get their clients’ pleadings and petitions right in accordance with the requirements of s. 208 as elaborated by the various Supreme and National Court judgments. I am of the view that, lawyers are under a duty to ensure that they do not take on election petition cases if they have no competence supported by good practice and experience to plead their client’s cases in due and full compliance of ss. 208 as required by s.210 of the Organic Law and the many Supreme and National Courts decisions on point.

11. Proceeding then to deal with the objections, I will follow the order in which the grounds of the petition have been pleaded. The first ground pleaded is bribery in Part 1 of the petition.

(b) Allegation of bribery – Essential elements not pleaded

(i) Relevant principles

9. It is settled law that, unlike illegal practices, errors, omissions and irregularities, only one proven act of bribery or undue influence is sufficient to upset a whole election outcome.^[5] This is the case because of s. 215(1) and (3) of the Organic Law. These provisions read:

“215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

....

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void -

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

(Emphasis supplied)

10. Section 103 of the Criminal Code defines the offence of bribery which must be read together with s. 215 (1) and (3) (a) of the Organic Law. Section 103 of the Criminal Code reads:

“A person who -

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind -

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

11. It follows therefore that, to void an election on the grounds of bribery or undue influence, the law requires, a petitioner to properly plead an act of bribery or undue influence affecting an election outcome by pleading facts that disclose a presence of each of the essential elements of the bribery or undue influence alleged. There are number of decisions of the Supreme and National Courts on point. Hover, it is sufficient for me to refer to the decision of the Supreme Court in Paru Aihi v. Peter Isoaimo,^[6] where I as a member of the Court with whom Hartshorn and Yagi JJ., agreed said of the essential elements:

“... it is established law in our jurisdiction that, a petition based on bribery must plead the essential elements of the offence of bribery alleged. These include the following:

(a) Date when the offence was committed;

(b) Name of the offender;

(c) Name of the person bribed

(d) The person bribed was an elector; and

(e) The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.”^[7]

12. In my decision in Waranaka v. Maru, I added the element of the wining candidate must be a “candidate” at the time when an act of bribery is alleged to have been committed. I held this was critical “because of the legal requirement that the offence must be committed by a “candidate” in the election to vitiate his election victory.” I considered the provisions of Parts II and XIII of the Organic Law which say that a “candidate” includes a person who within three (3) months before the first day of the polling period announces himself as a candidate for election as a Member of Parliament. This is of course, subject to such a person formally nominating and his nomination form together with the prescribed nomination fee, being accepted by the relevant Returning Officer on behalf of the Electoral Commission. I also had regard to the decision in Allan Ebu vs. Roy Evara^[8], as discussed and applied in many subsequent cases including the decision of the Supreme Court in Jim Nomane v. Wera Mori,^[9] where the Supreme Court of which Cannings J., and I were part departed from the decision in Allan Ebu v. Roy Evara. My consideration also covered, Cannings J., reverting to the decision in Allan Ebu v. Roy Evara as correct law in his decision in Jerry Singirok vs. Ken Fairweather.^[10] Finally, my consideration of the law also took me to Cannings J., disagreeing with Gavara-Nanu J., who in Brian Kramer vs. Nixon Duban^[11] arrived at a view similar in effect to the Supreme Court decision in Jim Nomane v. Wera Mori.

13. One my part, I considered the definitions of the terms “candidate” as defined by s.3(1) of the Organic Law and the phrase “polling period” and concluded:

“Reading these two definitions together makes the definition given by Bredmeyer J., in Allan Ebu vs. Roy Evara more accurate. Therefore, many decisions of the Supreme and National Courts have readily followed that decision. The only departure came from the Supreme Court decision in Jim Nomane vs. Wera Mori and the National Court decision in Brian Kramer vs. Nixon Duban. I agree with Cannings J., that the Supreme Court of which I was the president did not give any careful consideration to the decision in Allan Ebu vs. Roy Evara, its effect and impact on the many subsequent decisions that have followed it before arriving at its decision. If the Supreme Court did that, it would have concluded that Allan Ebu vs. Roy Evara is still good law. Accordingly, I accepted the submissions for me to depart from the Supreme Court decision in Jim Nomane vs. Wera Mori and return to the long establish view that the decision in Allan Ebu vs. Roy Evara is correct.”

14. In the final analysis, I said:

“The effect of this analysis and therefore a proper understanding of the law means a petitioner must plead with sufficient particulars, that the ultimate wining candidate was a candidate within the meaning of s. 3 (1) of the Organic as elaborated by the decision in Allan Ebu v. Roy Evara and many cases that have adopted and applied it with approval. The particulars should amongst others include clear pleadings as to the date when the Writ for the relevant electorate was issued, the date when the winning candidate became a candidate by reference to when he paid his nomination fees, when is nomination form in the correct form was accepted by the relevant Returning Officer, when the winning candidate make a public announcement of his or her candidature and when did the polling period commence for the relevant electorate. Proceeding on that basis, I accepted the Respondents argument that, the definition of the term “candidate” necessarily excludes intending candidates and sitting Members of Parliament who are yet to complete the process of nomination and become a candidate following the issue of a Writ.”

15. Applying the foregoing principles of law, I found the petition in Waranaka v. Maru failing to plead the essential elements pointing out to the First Respondent being a candidate within the meaning of s. 3 (1) of the Organic Law and for the purposes of properly pleading the alleged acts of bribery. Accordingly, I took that as one of the grounds or reasons for deciding to uphold an objection to the competency of the petition and order its dismissal.

16. Earlier, in Agonia v. Karo^[12] Sheehan J., speaking of pleading bribery as a ground for an election petition said:

“In my view, the standard is not that demanding. Although the grounds in a petition charge a criminal offence, I do not believe it is necessary that a ground needs to be set out as if it were an indictment-desirable as that might be. The Court of Disputed Returns does not have the same focus as a criminal court. It is looking to the validity of an election and not whether a respondent is liable to a criminal penalty. There is also a difference of approach. The Criminal Court operates under strict rules of evidence, while by s 217 of the Organic Law this Court looks to the substantial merits of the petition without strict regard to rules of evidence.

Notwithstanding those differences, because’ an election petition is a very serious thing,’ because of the serious charges and consequences that petition engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.

In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, places, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election.”

17. Later, the National Court in Peter Isoaimo v. Paru Aihi & Electoral Commission^[13], which was upheld by the Supreme Court on review (Paru Aihi v. Peter Isoaimo), involved a ground of bribery under s.103 of the Criminal Code. His Honour Cannings J., said:

“Because of the high number of alternative elements this gives rise to a petitioner must specify what particular bribery offences are alleged to have been committed. In the present case, the petitioner argues that the first respondent committed bribery under section 103(a)(iii) and 103(d) of the Criminal Code.”

18. Subsequently, following his decision in the Peter Isoaimo matter, Cannings J., in Soro Marepo Eoe v. Mark Ivi Maipakai & Ors^[14], added:

“...a petition must sufficiently specify the relevant provision of the Organic Law and the Criminal Code that is allegedly breached on an allegation of bribery and undue influence.”

19. A similar view was expressed by the Supreme Court in Jim Nomane v. Wera Mori. There the Court also in a case of bribery held:

“If a petition alleges that the successful candidate has committed the offence of bribery under section 103 of the Criminal Code, it is necessary to state which particular offence has been committed and its elements.”

20. Taking all the foregoing decisions into account, I am of the view that a petition would be sufficiently pleading the ground of bribery for the purposes of s. 215 (1) and or (3) (a) of the Organic Law by pleading the following:

(a) the wining candidate was a candidate by stating that fact and pleading the date when the candidate nominated formally, by completing his nomination form and lodging it with the Returning Officer of his electorate and him publicly announcing his candidature. The date should be a date after the issue of the writ and the date when nominations were open but before the first day of the polling period. These dates should be stated in the petition;

(b) the date when the alleged act of bribery was committed by stating the date with a statement of the relevant time and the place where the alleged bribery took place. The date pleaded should be a date after the issue of the writ and call of nominations and before the first day (stated) of polling;

(d) the person bribed was an elector by stating that person’s date of birth or his estimate age and that he or she is on the common roll with the relevant particulars to enable identity and verification possible and easier; and

(e) the bribe offered was for the purposes of causing or inducing the sufficiently identified elector to vote for the winning candidate, or not to vote or otherwise influence the election outcome in the winning candidate’s favour. This element would be sufficiently pleaded if the petitioner pleads the exact words said by the winning candidate to the named person allegedly receiving the bribery from which the intention to bribe can easily be inferred. If no words were used, the factors suggesting only an inference of an intention to bribe.

(ii) Present case

21. In the present case, the petition at Part 1, paragraphs 1 to 8 speaks of two instances of alleged bribery. The respondents attack each of the paragraphs as not disclosing an allegation of bribery on their own. This response from the Respondents in my view amounts to unnecessary nit-picking. Here is why. If each of the paragraphs are read separately and on their own, surely, they do not disclose any allegation of bribery. However, if the matters pleaded in this part are read together, there appears to be allegations of bribery against the First Respondent. This part and the paragraphs in question tell a story with each part stated in the numbered paragraphs. Such story telling is necessary in my view to give a proper context to an allegation of bribery. Otherwise it will make no sense. By this, I am not endorsing a long-convoluted story that makes no sense. Instead, I am suggesting the context in which an act of alleged bribery was committed to be briefly stated by stating only the relevant facts.

22. Here the story is that the First Respondent flew in by helicopter around 11:58 on 4^th May 2017 to a waiting crowd at Pinji village. The crowd had earlier received word of his coming, so they had gathered and waited for him. Upon his arrival, the village leaders and the people warmly welcomed him and he went up to a grandstand that was built for him. From there, he gave a speech. In his speech he said words to the effect:

“Have you ever seen a snake has its tail on the head? I am from Obura and I am like a head of a snake and you are (sic) like a tail of a snake.”

[Intended to reflect the fact that, the First Respondent and his people are in front of the people from Marawaka, which includes the Pinji village.]

23. After making his speech, the First Respondent took out K3,000.00 and gave it to a Mr. Kowori Meneo, who is an elector in Pinji village and is a “full supporter of the First Respondent” and is the person who organised the rally. The money was presented in the witness of the villagers that were present at the time. Thereafter, the First Respondent left the village. It is alleged at paragraph 4 that the money was intended to be distributed to the people who were gathered, including traditional dancers. Accordingly, Mr. Meneo distributed the money to the villagers who were present in small amounts. Included in the recipients were a Rodney Sari and a Waki Mesa, who were both electors and who respectively received K13.00 and K2.00. These persons gave their first preference votes to the First Respondent because they received the respective amounts of K13.00 and K2.00. The allegation goes on, the distribution was done with the full knowledge and authority of the First Respondent because he gave the money for that purpose. As a result of the money being given by the First Respondent in the manner described, he collected the highest first preference votes of 387 from Pinji village while other candidates including a Keron Meswa who comes from that village collected only 42 first preference votes. The First Respondent does not come from Pinji village. He was then the sitting Member of Parliament who failed to deliver any services. The delivery of the money helped him to secure the highest number of first preference votes.

24. On these facts, the Petitioner alleges that the purpose of giving the K3,000.00 was for securing the votes of the electors attending the rally at the relevant time. This he alleges was contrary to s. 103 (a) (iii) of the Criminal Code and s. 215(i) of the Organic Law. The reference to s. 215 (i) is wrong because obviously, there is no such provision in existence. I think it is a typographical error. It should correctly read s. 215 (1).

25. Taking a close look at the petition shows a failure to plead in the terms I described at paragraph 20 above. This coupled with the pleading of a non-existent provision of the Organic Law shows with respect, the petitioner’s lawyer failed to pay careful attention to the drafting of the pleadings of the grounds of the petition and ensure there was no mistake. This is not a difficult thing to do for a competent and experienced lawyer assisting a petitioner. In the case of an election petition based on an allegation of bribery, a petitioner’s lawyers should do as does the Public Prosecutor in criminal cases when presenting an indictment. All that the Public Prosecutor or a gazetted State Prosecutor does is, present an indictment usually in a single page which, aside from the formal parts, has one short paragraph describing the offence allegedly committed with the section or provision of the Criminal Code that was allegedly contravened specified. That one paragraph captures all the essential elements of the offence in question. Then another brief document of usually not more than two or so paragraphs presents the essential facts supporting the charge. Instead of adopting and applying that simple process, lawyers in election petition cases have adopted a much more elaborate pleading of unnecessary detail and other matters and in the process have lost sight of the essential matters that must be pleaded. In the consequence, as earlier noted, many possible good petitions which may be based on good grounds are being dismissed. I repeat what I said earlier that lawyers are under a duty to ensure that they do not take on election petition cases if they have no competence backed up by good practice and experience to plead their client’s cases in due and full compliance of ss. 208 as required by s.210 of the Organic Law and the many Supreme and National Court decisions on point.

26. Returning to the case at hand, the pleadings in this petition might appear sufficient, but there are few serious problems. Firstly, by pleading s. 215 (1) of the Organic Law, the Petitioner built his case on an allegation of the First Respondent personally offering the monies allegedly offered in bribery. This is at odds with the rest of the pleadings which say Kowori Meneo, a “full supporter of the First Respondent” is the one from whose hands the two named persons Rodney Sari and Waki Meswa received the small amounts of K13.00 and K2.00. At the relevant time, it was Mr. Meneo who received the K3,000.00 from the First Respondent with no specific and clear instructions directly or indirectly for him to give to use that money to bribe the people that were there. These pleadings render s. 215(1) inapplicable in this case because according to s. 215 (1) the act of bribery must be committed by the winning candidate personally. The provision once again reads:

“(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.”
(Emphasis supplied)

27. Instead, what is pleaded attracts the application of the provisions of s. 215 (3). Hence, I will have to consider and determine if a case of bribery under s.215 (3) of the Organic Law has been made out. Before doing so, I remind myself of the wording in s. 215(3) which reads:

“(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void -

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

(Emphasis supplied)

28. In respect of that, what the Supreme Court said in Ken Fairweather v. Jerry Singarok^[15] is relevant. There, the Court spoke of 6 scenarios under s. 215 of the Organic Law, by which an election of a successful candidate can be declared void. Two of these are relevant for our purposes. The first is under s.215 (1) which is bribery by a successful candidate personally. I have already dealt with that scenario. The second is under s.215 (3) which is bribery by someone other than the candidate but with the knowledge or authority of the winning candidate. The terms “knowledge” and “authority” found in section 215 (3) of the Organic Law were defined by the Supreme Court in Amet v. Yama by saying these words:

“must necessarily denote a pre-existing state of knowing or authorizing an illegal practice or acts of undue influence. The knowledge of the illegal act or undue influence must be present prior to and at the time of occurrence of the illegal act or undue influence. Similarly, the candidate prior to the event must have given or delegated a supporter, agent or servant authority to commit an illegal act or undue influence on his behalf.”

29. My looking up of the two terms shows that the word “knowledge” has synonyms. One of them is information under which would fall data and facts. Another synonym is “acquaintance” which suggests familiarity, awareness, understanding, comprehension and or experience. Combining this with what the Supreme Court said, I am of the view that the word “knowledge” in the context of s. 215 (3) of the Organic Law means the winning candidate having prior familiarity, awareness, understanding, comprehension or experience of the facts and figures alleged in a petition against him.

30. Turning to the word “authority”, I also note it has its synonyms and those that come closer are the words “power” and “permission”. Under “power” comes power itself, right, ability, influence, weight and the phrase “last word”. Under “permission” comes, permission itself, authorisation, license, leave or sanction. Again, combining this with what the Supreme Court said in Amet v. Yama, the word “authority” as used in s. 215 (3) of the Organic Law, in my view means the winning candidate having prior knowledge of what was to be done or without such knowledge had prior to the carrying out of the “illegal practice” alleged against him, permitted, sanctioned or approved those acting on his behalf to carry out the alleged illegal practice.

31. Clearly, from this line of authorities, there is an additional essential element which needs to be added to the essential elements of bribery for a petition under s. 215 (3) of the Organic Law. The additional element is that of the winning candidate having knowledge or having authorised an alleged act of bribery. Thus, the essential elements of bribery that must be pleaded for the purposes of s. 215 (3) (a) becomes the following:

(1) the winning candidate was a candidate when the alleged act of bribery was committed;

(2) date of the alleged act of bribery which must be within the time the wining candidate was a candidate;

(3) name of the person acting for and on behalf of the winning candidate;

(4) the person acting for and on behalf of the winning candidate was so acting with the knowledge or authorisation of the winning candidate by pleading the base facts supporting such a conclusion;

(5) name of the person bribed;

(6) the person bribed was an elector by reference to his or her date of birth, being on the common roll, coming from the electorate and such other particulars, sufficient to have him or her correctly identified; and

(7) specify the money or such other goods or favours that were offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate by pleading facts supporting such an inference.

32. Cross checking the petition in this case against the above list of the essential elements, I come to this result. I have no difficulty finding elements (3) and (5) have been sufficiently pleaded. I have trouble coming to the same conclusion for elements, (1), (2), (4), (6) and (7). The reason for this is simple. The pleadings do not plead the base and necessary facts disclosing each of these essential elements. Starting first with the first (1) element, although there is a pleading in paragraph 4 that the petitioner and the First Respondent were candidates amongst 47 others, there is no clear pleading as to when the First Respondent became a candidate as elaborated by the decision in Allan Ebu vs. Roy Evara and the many cases that follow that decision including my most recent decision in Waranaka v. Maru. If the pleadings pleaded the relevant facts in accordance with those authorities, that would have helped in telling if the First Respondent was a candidate as at the time of the alleged bribery. Accordingly, I find that the first essential element has not been sufficiently pleaded. Following on from that, no base fact is pleaded for the purposes of the second (2) essential element. Such a pleading would have to clearly show the alleged act of bribery was committed on a date when the First Respondent was a candidate. The same goes for the fourth (4) essential element. In line with the Supreme Court decision in Amet v. Yama and my discussion of the terms “knowledge” and “authority” above, the factual bases for the First Respondent’s knowledge or authority of the illegal acts of briberies offered by Mr. Kowori Meneo for and on behalf of the First Respondent have not been pleaded. The relevant pleadings which is in paragraph 6 is a conclusion without the factual base facts. Recently, in Waranaka v. Maru, I expressed the view that, pleadings that amount to mere conclusions without the foundation for the conclusions pleaded means nothing. I pointed out there that, the petitioner was obliged to plead the facts which formed the foundation for the conclusions pleaded. My view there was fortified by the decision in the matter of Sir Peter Lus v. Gabriel Kapris^[16] by Kapi DCJ (as he then was). In that case, there was an allegation of bribery by a person other than the winning candidate. Speaking of the pleadings the Court said:

“...so far as the allegation of bribery is against a person other than the First Respondent, the Petition pleaded that the bribery was carried out with the knowledge and authority of the First Respondent but failed to plead any facts to support this allegation.

Counsel for the Petitioner referred to the pleading under the heading “Conclusion”. This is of no assistance to the Petitioner. This concluding pleading does not set out any base facts to support the allegation that the First Respondent had knowledge or gave authority for the acts of bribery alleged.”

33. Proceeding on basis of the case authorities on point and the lack of the kind of pleadings required, I accepted the Respondent’s submission in Waranaka v. Maru that the Petitioner had failed to plead the base facts to support his allegation that the First Respondent had full knowledge or had authorised the acts of bribery in order to ground the offence of bribery within the ambit of s. 215 (3) of the Organic Law. This meant that a possible treatment of the allegations of bribery as pleaded falling under s. 215 (3) was impossible on the Petitioner’s pleadings. Consequently, I found that those grounds of the petition were incompetent even for the purposes of allowing the petition to proceed under s.215 (3) of the Organic Law, notwithstanding the lack of any pleading in the petition and the petitioner’s submission for the Court to treat the allegations of bribery in the alternative coming under s.215 (3) of the Organic Law. The situation is repeated here. That means the same consequence in Waranaka v. Maru should follow in this case.

34. Turning then to the sixth (6) essential element, of the need to plead that the named persons allegedly bribed were electors I am of the view that, it has been partially pleaded. The pleadings plead that both the named persons were electors. Unfortunately, the factual basis or the base facts on which that concluding statement is made are not pleaded. As I indicated earlier, there should be a statement of these persons’ respective dates of birth or their estimate ages, their names appearing on the common roll with the relevant identification details on the common roll and such other details to enable an identification of them as electors in the relevant electorate. Pleading only that they are electors without more is a conclusion. Without any base fact being pleaded, there is no way of knowing if indeed these persons are electors and there is basis to allow the petition to go to trial. This is not a hard thing to do. The petitioner should have checked the names of the persons allegedly bribed and confirm the relevant details according to the common roll and set them out in his petition. In some petitions I have seen petitioners were able to give such details including voter identification numbers in their pleadings. There is no reason given here as to why this could not be done with the exercise of some care and attention.

35. The seventh (7) essential element of intention to bribe the electors to vote for the First Respondent is the final matter I now turn to. This is one of the most critical elements for a ground based on bribery. The only pleading here is the pleading of the giving of K3,000.00. As the pleadings read and as already noted, the First Respondent gave the money at the end of his speech and before departing without saying anything about the purpose or why he was giving the money. In this vacuum, the pleadings beg more questions than answers. Some of the questions that quickly come to mind without limiting the list are:

(1) What base facts are pleaded from which one could infer that the money given to Mr. Meneo was for him to use and bribe Rodney Sari and Waki Meswa?

(2) What base fact or facts pleaded support an inference only of the money was given to Mr. Meneo for him to use to bribe electors?

(3) What base fact is pleaded that rules out other possible inferences such as:

(a) the money was given only to Mr. Meneo and seeing that it was given in public he decided to share it; or

(b) the money was given in appreciation or in payment of Mr. Meneo building the grandstand and organising the rally for the First Respondent and Mr. Meneo shared it with the people who shared in the building of the grandstand or who might have assisted in organising the gathering;

(c) the money was a settlement of a debt or a discharge of a promise the First Respondent might have had or made to Mr. Meneo?

(4) Did the First Respondent and Mr. Meneo have a prior meeting at which it was made clear that the First Respondent would come with the money for the purposes of bribing voters?

(5) Was there a prior meeting between the First Respondent and Mr. Meneo at which the First Respondent issue specific instructions on how the money should be distributed and the persons who should receive the money?

(6) How was it decided that, giving the small amounts of K13.00 and K2.00 was considered by the First Respondent and Mr. Meneo sufficient to bribe electors in an area that was not the First Respondents stronghold?

(8) If there were no prior meeting and understand reached between the First Respondent and Mr. Meneo:

(a) when and how did the First Respondent know that the money would be distributed in the way Mr. Meneo distributed the money? or

(b) how did the First Respondent authorised Mr. Meneo to bribe the two alleged voters in the small amounts of K13.00 and K2.00? and

(9) Did Mr. Meneo report to the First Respondent on how the money was distributed or otherwise account to the First Respondent and if he did when did he do so?

36. As already noted, it is settled law that a petitioner must plead the base facts which disclose the essential elements of the grounds for his or her petition and in the case of bribery as a ground, the essential elements of the offence of bribery. Bribery being a criminal offence and intention to bribe being a critical element, the base facts had to disclose this essential element. But the petition fails to do that. The Petitioner argues for this essential element to be inferred. In so submitting, learned counsel for the Petitioner referred to and relied upon the Supreme Court decision in Paru Aihi v. Peter Isoaimo. I was a member of the Court in that case. There, the applicant, Mr. Aihi did not challenge the competency of the petition. A belated attempt by him to raise the issue at the Supreme Court was declined. That meant that the pleadings of bribery with its essential elements were not contested prior to and at the trial. Indeed, no issue was taken on evidence led on matters not pleaded. Again, a belated attempt was made in the review application at the Supreme Court but that was also declined. The evidence following a trial amongst others, established, Mr. Aihi being there at that stage managing the distribution of a total of K10,500.00. Of that, K7,500.00 was in cash and K3,000 were cheques offered in bribery. The evidence also showed that Mr. Aihi decided on both the recipients and the amounts each of the recipients should receive. In my view, these facts set that case apart or away from the case at hand.

37. Here, all that the pleading say is, the First Respondent came in a Helicopter and took a stage that was built for him and he made a speech. Almost immediately after presenting his speech, he left. But before doing so, he gave K3,000.00 to his “full supporter” with no instructions or indications of what that money was for or how that money was to be used. If the First Respondent wanted the money to be used to bribe or cause the people that were there to vote for him, he could have said something to make that intention clear and he could have tasked his “full supporter” with the responsibility of distributing the money to the people in the way he did. I have carefully read the whole of the ground of bribery as pleaded several times. Unfortunately, I have not been able to find any pleaded fact pointing to the element of intention to bribe the voters alleged bribed or at all disclosed. Accordingly, I find that the seventh and final essential element has not been sufficiently or at all pleaded.

38. The consequence of the foregoing findings is that, the Petitioner has not sufficiently pleaded his ground of bribery under s. 215 (1) or (3) of the Organic Law. That being the case, the ground of bribery has pleaded here cannot be permitted to go to trial going by the dictates of s. 210 of the Organic Law for a failure to meet the requirements of s. 208 (a) also of the same law as interpreted and applied by the many cases on point.

Failure to properly plead allegations of errors, omissions etc..

39. This then leaves me to deal with the remain grounds of the petition. The remain grounds of the petition concern illegal practices, errors and omissions. Learned Counsel for the Respondents submitted that, each of the grounds of illegal practice, errors or omissions should have been pleaded separately.

(i) Relevant law

39. This brings into consideration the provisions of s. 215 (3) as well as s.218 of the Organic Law. Section 215 (3) again in relevant parts reads:

“3. The National Court shall not declare that a person returned as elected was not duly elected or declare an election void -

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

(Emphasis supplied)

40. Section 218 reads:

“218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

41. The law concerning proper pleading of a petition based on errors, omission or illegal practices other than bribery and undue influence is clear. A latest statement of the law is in the Supreme Court decision in Amet v. Yama. There the Supreme Court speaking in the context of dealing with errors, omissions, or illegal practices affecting an election outcome said:

“It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected. The view expressed by Kandakasi, J in Mond v. Nape & Ors (2003) N2318 is on point:

‘It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence.’”^[17]

42. I also consider what the Supreme Court said in Sandy Talita v. Peter Ipatas^[18] instructive. There the Court again speaking of the essential elements of s. 215 (3) said:

“Besides, the Applicant failed to plead the two essential elements of s. 215 (3) of the Organic Law which requires the petitioner to allege and prove the illegal practice is such that the election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void. The pleading of these two requirements is succinctly put by the Supreme Court in, Kikala v. Electoral Commission(supra) in this way:

‘As the illegal practices were alleged to be committed by persons other than the candidate and without the candidate’s knowledge or authority and were ‘other than bribery or undue influence or attempted bribery or undue influence’ it was necessary to plead the two matters that must be proven, given the nature of the allegations, under Section 215(3)(a) and (b) Amet v. Yama (2010) SC.1064, Karani v. Silupa (2003) N2385, Kubak v. Trawen (2012) N4992. These two matters should have been pleaded in a clear and concise manner:

. that the result of the election was likely to be affected by the illegal practice alleged committed by the person (other than the candidate); and

. that it is just that the candidate should be declared not to be duly elected or that the election should be declared void’.”

(Emphasis supplied)

43. As for s. 218, the Supreme Court in Empraim Apelis v. Sir Julius Chan,^[19] defined the scope of errors and omission under s.218 in these terms:

“We find that s.218 deals with errors and omissions of election officials dealing with the process of election starting with nominations, the polling, the declaration of poll or the return of writ.”

44. The question then is, how should an election petition properly plead any such errors, omissions, irregularities and illegal practices. The decision of Injia J., (as he then was) in Sai Sailon Beseoh v. Yuntivi Bao^[20] is relevant. There, His Honour said:

“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 and omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.”

45. To that, Sakora J. (as he then was) added in Francis Koimanrea v. Alois Sumunda:^[21]

“In relation specifically to allegations of errors and omissions relied on as a ground of a petition, the law requires that facts must be pleaded to show the nature of these errors and omissions. It must be emphasised that errors and omissions do not automatically void an election. Thus, even if these are established by evidence, it must be shown (by pleading and proving facts) that the result or results would have been affected.”

46. Later authorities, including the decision of the Supreme Court in Dick Mune v. Anderson Agiru & Ors^[22] added a requirement for a petitioner to plead also the relevant provisions of a statutory or constitutional law allegedly breached. In its own words the Court said:

“However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice.”

47. I accepted and applied these principles in my own decisions. My decision in James Yoka Ekip v. Gordon Wimb & William Duma^[23] is an example of that. There I said:

“Where an allegation is founded on a breach of a law or a statutory provision, the facts disclosing or establishing the alleged breach must be stated and possibly a reference to the relevant provision of the Law. This is to enable the opposing parties and the Court to know what exactly is being alleged and they need to prepare for the defence or concede as the case might be.”

48. There are a host of other decisions like one in Kopoal v. Embel,^[24] per Salika J, (as he then was), Joel Paua v. Robert Nagle,^[25] per Justice Woods J and Mathias Karani v. Yawa Silupa,^[26] per Sawong J. (as he then was), which repeat and restate the law.

49. It should now be very clear that one of the important requirements under s.218 of the Organic Law is the need to plead and then later establish by appropriate evidence that the results of the elections were affected by an alleged, error, omission or illegal practice other than bribery or undue influence. It should also be clear that each alleged error, omission or illegal practice must be separately pleaded with sufficient particulars. The decision in Luke Alfred Manase v. Don Pomb Polye^[27] and Robert Kopaol v. Philemon Embel,^[28] are examples of many cases on point. I recently comment on these cases in the Waranaka v. Maru (supra) case:

“These cases stand for the proposition that, a petitioners’ pleadings must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings. The reason for this is simple. Petitioners must know exactly the grounds for their respective petitions and must therefore not be equivocal about what they are alleging. Each ground relied upon to question an election outcome must be clearly and specifically pleaded as if it was the only ground relied upon. Where a petition fails to meet these requirements or lumps together all alleged acts or errors or omissions, stands the risk of giving rise to a lack of clarity leading to confusion uncertainty and a lack of understanding of the basis for his petition which would render it incompetent and dismissed on that basis.

(Emphasis added)

50. Applying what I said to the case then before me, I found the petition lumped together allegations of illegal practices, errors, omissions and irregularities into one lot of pleadings. That made the petition incoherent, unclear, incomplete and confusing. Consequently, that formed the foundation for me to find the alleged grounds of errors, omissions, illegal practices and or irregularities offending the law by failing to plead those grounds separately with sufficient particulars and demonstrate how each of the grounds on their own or collectively affected the outcome of the relevant electorate’s election outcome. Accordingly, I had no hesitation in finding those grounds were incompetent and consequently the petition was incompetent.

(ii) Present case

(a) Part 2 Category A, I - Polling at Ogarataba

51. Bearing the clear law as discussed above in mind, I will now consider the relevant pleadings in this case. I note firstly that, the heading to the relevant parts reads in terms of “Illegal Practice and Errors and Omissions by the Second Respondent prior to, during and after polling.” That is in Category A, I of Part 2 of the petition. Secondly, I note that, the petition then speaks of a polling at Ogarataba, Lamari LLG. The allegation here is, there were only 42 eligible voters during the 2007 National General Elections. For the 2017 National General Elections, the number of eligible voters took a quantum leap to 848. Hence, at a pre-counting conducted at Aiyura District Office, named scrutineers of two named candidates raised the issue and was confirmed by the previous relevant Returning Officer of the electorate in the 2007 National General Elections. This led to an agreement with the Returning Officer of the Electorate for the 2017 National General Elections to reduce the registered voters by allowing only a 15% increase or 63 eligible voters only.

52. Following the above agreement, only 65 ballot papers and 5 additional ones bringing the total to 68 ballot papers were issue for Ogarataba. However, when the relevant box was admitted for scrutiny and counting, the Presiding Officer’s manual return reported 586 electors voted. But when the ballot papers were poured onto the counting table there were 508 ballot papers. That meant 78 ballot papers were missing with no explanation provided for the same. When the 508 ballot papers were counted, there were no informal votes and it was evident that a same coloured ink biro with the same handwriting marked those papers. Given these discrepancies, scrutineers of two named candidates objected to the admission of the entire box but was overruled and the votes were counted and included in the counts. Thirdly, the petition pleads that since, the wining margin was 265, allowing the tempered votes of 508 affected the results of the election.

53. There are three serious problems with these pleadings. Firstly, the Petitioner has not pleaded any provision of the Organic Law or the Criminal Code or any other law that makes the conduct of the officers of the Second Respondent complained of here unlawful. Since the complaint here concerns accuracies of the relevant common roll, the starting point is the Organic Law on Elections. There are specific provisions in that law that deals with accuracies or inaccuracies of common rolls and more so any alterations to it. The relevant provisions are ss. 58, 59, 61 - 63. The duty was on the Petitioner to specify which provision authorized the agreement pleaded and the actions taken and those that should have been taken in accordance with that agreement. It is not for the Court to look for the relevant provision and say which is the most relevant and applicable provision. This is where the petitioner failed to duly plead with particulars.

54. In the absence of any clear pleading and submission on this point, I note s.58 provides for a process of lodging a claim with the Electoral Commission through the relevant Returning Officer “for enrolment or transfer of enrolment, notification of change of address within an electorate, or application for the alteration or correction of particulars of an existing enrolment.” The rest of the provision provides as to how the claim could be dealt with. The next provision, s.59 provides as to how a claim should be treated, a decision made and communicated to the claimant. Claims in the terms mentioned, if accepted, could result in an alteration of the relevant common roll. Section 61 appropriately provides for the timing of alterations to the common rolls in the following terms:

“61. Time of altering Rolls.

Notwithstanding anything in this Law:-

(a) claims for enrolment or transfer of enrolment which are received after 4.00 p.m. on the day of the issue of the writ for an election shall not be registered until after the end of the polling period for the election; and

(b) except by direction of the Returning Officer, no name shall be removed from a Roll under a notification of transfer of enrolment received after 4.00 p.m. on the day of the issue of the writ for an election and before the end of the polling period for the election.”

55. The next provision, section 62 then provides as to the circumstances in which names can be removed from an electorate’s common roll. Finally, section 63, prescribes the manner and form in which alterations to common rolls could be caused.

56. The effect of these provisions in my view is this. Unless a common roll is altered in accordance with these provisions, no purported alteration is permitted or effective. It also means that, all persons on the common roll are eligible voters and should be permitted to cast their votes. That in turn means, if a person whose name appears in an electorate’s common roll turns up at a polling booth to cast his or her vote, that person should be permitted to cast his or her vote and not turned away because of an agreement of a number of candidates and the relevant returning officer to reduce the eligible number of voters. The Second Respondent as a duty, to ensure a voter whose name is registered and on the common roll exercise his or her right to vote a candidate of the voter’s choice. As has been repeatedly said, this is a sacred right of a citizen which gets exercised only once every 5 years and the Second Respondent has a duty to ensure that sacred right is exercise freely in a fair and open election. Having regard to all of these, I am of the view that, even if there was such an agreement and actions taken pursuant to such an agreement, that could not legally prevent the voters from casting their votes and their votes being counted. This is why provisions such as s.135 of the Organic Law allows for voters to cast their votes even if there is an “error or omission in the Roll” as to the “part of a name or entry of a wrong name, address or occupation” or there is a “mistake in the spelling of a name” or because the voter has changed his or her name and s.214 of the Organic Law prevents the National Court from inquiring into the correctness of a common roll. In this case, those whose names appeared on the common roll were entitled to vote and they could well have voted. That would be the case, especially when considering that there are no clear pleadings and allegations in the petition of other factors such as, no actual polling taking place at the relevant location and or the names appearing on the common roll were indeed ghost names by reason of which no one turned up against those names to vote at the relevant polling booth.

57. The second problem with the petitioners pleading in this part of his petition concerns the Petitioner’s failure to plead with clarity what illegal practice, errors and or omissions are alleged. As already noted, the law requires the Petitioner to plead each allegation of error, omission or illegal practice as if each of the grounds are the only grounds upon which the petition is brought. The heading to this part of the petition gives the impression the allegations under Category A concerns illegal practice, errors and omissions. The Petitioner has obviously lump together allegations of illegal practice, errors and omissions without any particular pleading for each of these grounds. This is misleading and confusing and fails to clearly plead the facts of each ground of illegal practice, error or omission by reference to the relevant provision of an electoral law or any other law allegedly breached.

58. The third problem is that, there is no pleading indicating who collected the 508 votes that were allegedly tempered. This gives rise to the questions of how were these votes distributed? Did the First Respondent receive any or all these votes or another or other candidates did? Depending on how these votes were distributed if at all, how did it affect the result of the election? The Petitioner had the duty to properly plead and have these questions answered. Unfortunately for him, he failed to so plead.

59. Finally, the actions alleged were allegedly committed by servants and agents of the Second Respondent. There is no allegation at all of any of the alleged acts being committed by the First Respondent or his servants and agents. When that is the case, the Petitioner was obliged to plead facts clearly disclosing and laying a foundation for a conclusion (to use the words of s. 215 (3) of the Organic Law that “it is just that the candidate [the First Respondent] should be declared not to be duly elected or that the election should be declared void.” There is not even a mention anywhere in this part of the pleading of this critical element in order to succeed on a petition that is based on the poorly pleaded acts of illegal practice other than bribery or undue influence committed by the servants and agents of the Second Respondent and not that of the First Respondent or himself.

60. The result of the problems found in the Petitioner’s petition is this. The ground of the petition as pleaded under Part 2, Category A, I, is incompetent. Hence, this ground too cannot be permitted to proceed to trial because for s. 210 for not meeting the requirements of s. 208(a) of the Organic Law. Accordingly, I order a dismissal of this ground of the petition.

(b) Part 2 Category A, I - Polling at Asara

61. This leads me to turn to the next matter pleaded under Category A, II of Part 2 which speaks about a polling at Asara, Lamari LLG. The pleading starts off with a particular ballot box with its relevant details pleaded and that ballot box being allocated 998 ballot papers. The pleadings then speak of certain unspecified disgruntled voters destroying the polling booth when the polling was in progress. This came about because of the Second Respondent’s negligence in providing only 998 ballot papers instead of 1,468 which meant 470 would have missed out.

62. Part of the destruction included what was left of the balance of ballot papers yet to be casted. Security personal, brought the situation under control and took the ballot box with all other election material away to Aiyura and locked them away. Later at the counting when the relevant box was admitted for scrutiny and counting the presiding officer’s manual return stated of 998 ballot papers issued only 274 polled and the balance were destroyed by the disgruntled voters. The box had a hug axe mark, the outer seal had a padlock instead of a tag. Upon emptying the box’s contents, the actual ballot papers were 262 with 1 informal.

63. The Petitioner pleads the matters pleaded in this part of his petition affected 724 ballot papers. He also pleads that the 262 votes added “together with the other votes affected by errors, and omissions and illegal practice as alleged elsewhere in this Petition is likely to affect the results as the winning margin is only 265 votes.”

64. As with the pleadings under Part 2, Category A, I, there are several serious problems with the pleadings under consideration. Firstly, the Petitioner has not pleaded any provision of the Organic Law or the Criminal Code or any other law that makes the conduct of the officers of the Second Respondent complained of here unlawful. This is critical because, the polling at Asara was interrupted and partially destroyed by unidentified disgruntled voters. The alleged destruction came when the polling was in progress. That meant several voters had casted their votes already. That number comes to 262 in the absence of any pleadings to the contrary. The Second Respondents officers had a duty to protect those votes and have them counted in the absence of any pleadings showing those votes were not properly casted by eligible voters and their integrity was compromised. In saying that, I note the allegations about the integrity of the relevant box concerns a damage to it by an axe during the destruction at the polling booth and a one hand writing appearing to have marked all the ballot papers. Section 153A (3) of the Organic Law is relevant and clear. It stipulates that:

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

65. This is understandable, for all manner of reasons, ballot boxes may be damaged. A ballot box being damage is not of itself good basis for an exclusion of ballot papers in the damaged box from being counted. What matters is the integrity of the ballot papers. Only if the integrity of the contents, namely the ballot papers have been seriously affected, only then could the ballots be excluded. Here an object was raised, for the exclusion of the entire ballot box but was overruled. If that overruling was wrong, the Petitioner was obliged to plead in his petition that the overruling of the objection was erroneous and plead with clarity the basis or grounds for saying that. There is no such pleading in this part of the petition. There is a whole part in the Organic Law Part XIV, ss. 147 - 172 that deals with scrutiny of votes. The Petitioner had the duty to plead a case grounded on one or more of these provisions. This he has also failed to do.

66. Secondly, there is an allegation of 1468 eligible voters for the Asara polling area. Unfortunately, it is not clear where that number came from. Was it in the previous elections common roll? Or was it in the common roll used for the 2017 common roll? Hence, there is no basis to plead that there was a short supply of votes for this polling place by 724 and that number of voters would have missed out. There is no pleading that suggests, that number of voters turned up but there were not enough ballot papers to enable all of them to cast their votes. Obviously, the Petitioner cannot plead by reason of s. 218 (2) of the Organic Law how the voters could have voted.

67. This leads to the third problem in this part of the petition. There is a complete lack of pleadings as to the allocation or distribution of the 262 ballots that were casted, secured and counted. How many of the 262 casted votes did the First Respondent secure, if any? How many did the Petitioner and the other candidates score? Or did those votes go to the First Respondent and if so why that should not have happened? These question and others remain unanswered.

68. Finally, as with the polling at Ogarataba, the actions alleged here were allegedly committed by servants and agents of the Second Respondent and unspecified third parties. There is no allegation at all of any of the alleged acts being committed by the First Respondent or his servants or agents. When that is the case, the Petitioner was obliged to plead facts clearly disclosing and laying a foundation for a conclusion to use the words of s. 215 (3) of the Organic Law that “it is just that the candidate [the First Respondent] should be declared not to be duly elected or that the election should be declared void.” There is not even a mention anywhere in this part of the pleading of this critical element to succeed on a petition that is based on the poorly pleaded acts of illegal practice other than bribery or undue influence committed by the servants and agents of the Second Respondent and not that of the First Respondent or himself.

69. The result of the problems found in the Petitioner’s petition in this part of the petition is this. The ground of the petition as pleaded under Part 2, Category A, II, is incompetent. Hence, it cannot be permitted to proceed to trial because of s.210 of the Organic Law for not meeting the requirements of s. 208(a) of the same law. Accordingly, I order a dismissal of this ground of the petition.

(c) Part 2 Category B, I – Counting or Scrutiny of Nompia Votes

70. I now turn to the pleadings under Part 2, Category B, I. This ground falls under the heading, “Errors and Omissions by the Second Respondent” and is headed “Counting or scrutiny of votes for Nompia Ward 15 Tairora/Gadsup LLG.” The complaint is centred around the scrutiny of a particular ballot box with its specifics pleaded. It speaks of an objection being raised on grounds of polling after hours which resulted in 160 votes being set aside. Later however, the objection got withdrawn and the scrutiny and counting of the ballots in the relevant box proceeded. When the final figures where posted on the tally board and entered in Form 66A, the 160 votes were left out. Demands and attempts to get that corrected were rejected and protestors were told to go to Court and get an order to have the votes included. The Petitioner pleads the exclusion was unreasonable and unlawful. Finally, the Petitioner pleads this combine with the other illegal practices, errors and omissions affected the outcome of the elections, given the winning margin of 265.

71. Again, as with the earlier grounds considered and determined, there are number of problems with this ground as well. Firstly, the pleadings do not refer to or mention any applicable provision of the Organic Law, the Criminal Code or any other law with the facts carefully pleaded to bring into operation such provisions. This is necessary to support the conclusion that the exclusion was unlawful. As I mentioned in the context of the pleadings under Part 2, Category A, II, a whole part in the Organic Law deals with scrutiny of votes at elections. The Petitioner had the duty to name and make a case around any of the relevant provisions by pleading the relevant base facts, which facts must also lay the foundation in this case to support the conclusion that the exclusion was unreasonable. A pleading for example, facts disclosing proper polling at the relevant polling place, voters properly casting all their votes, all the formalities of all the ballot papers were met and the integrity of the ballot box and all the votes and in particular the 160 votes’ integrity were intact, would have sufficed. Such facts cannot be inferred. The petitioner had the obligation to so plead. It is not for the Court to find what is the relevant and applicable provision in the Organic Law or the Criminal Code or any other law. Instead of pleading the relevant facts, all we have are only conclusions. As already noted, the law is, conclusions without the base facts mean nothing.

72. Secondly, the matters alleged here were allegedly committed by servants and agents of the Second Respondent. There is no allegation at all of any of the alleged acts being committed by the First Respondent or his servants or agents. There is also no pleading of any relationship between the First Respondent and the Returning Officer or any other officer of the Second Respondent. When that is the case, the Petitioner was obliged to plead facts clearly disclosing and laying a foundation for a conclusion to again use the words of s. 215 (3) of the Organic Law that “it is just that the candidate [the First Respondent] should be declared not to be duly elected or that the election should be declared void.” There is not even a mention anywhere in this part of the pleading of this critical element to succeed on this ground of the petition.

73. Finally, I note that this ground is dependent on the other grounds pleaded under Part 2. If those other grounds stand, this ground might have an impact. If, however, the other grounds are dismissed, this ground is not capable of standing alone to upset the election result. I have already decided to dismiss the grounds pleaded under, Category A of Part 2. Subject to a decision on the remain ground of the petition, the winning margin was 265. The votes the subject of the complaint here is 160. This number is well below 265. Clearly therefore, it could not have and did not affect the outcome of the elections unless, the difference in the winning margin is likely to exceed because of the matters pleading in the remaining ground of this petition, provided that ground passes, the test of competency. But this would not overcome, the first three problems attending the pleadings in this ground.

74. I find the defects or problems highlighted above renders this part of the Petitioner’s pleadings incompetent. Accordingly, I dismiss this ground of the petition.

(d) Part 2 Category B, II – Final Elimination

75. Turning now to the remaining ground of the petition which is under Part 2, Category B, II., I noted its heading reads in terms of “Illegal practices, errors and omissions at the final elimination”. Elimination number 45 was the final elimination of the electorate which saw a candidate, Wagi Pirano eliminated. Before that elimination, the Returning Officer suspended the counting to give the counting officials a break. At that point, the remaining candidates’ scrutineers demanded that Wagi Pirano’s ballot papers be locked up in a ballot box. This was granted which saw that candidate’s ballot papers placed in a ballot box which was secured and locked with three separate seal numbers, one for each side and one on top. The petition goes on to plead that, the demand for the securing of the ballots was due to certain suspicious conduct on the part of the counting officials which saw an exclusion of 7 live ballots belonging to the petitioner being placed in the exhausted bin but later added to his total tally. Similarly, 10 ballot papers belonging to the petitioner’s tray were initially not counted but later they were counted.

76. At the resumption of the counting, it was obvious to everyone that the seal numbers had changed. That caused the scrutineers of Wagi Pirano, and the Petitioner to object to the box being admitted for scrutiny until the appearance of the different seals are properly investigated and explained. Unfortunately, the returning officer rejected the objections saying they were late for the return of the Writ and proceed to conduct the final elimination. The said scrutineers further protested and Returning Officer threatened to have them forcefully removed, which caused them to stop and helplessly stand and watch. This the petitioner says was contrary to ss. 150 and 152(1) of the Organic Law and was therefore an illegal practice. The elimination process saw 9, 488 exhausted votes, 481 votes collected by the Petitioner and 293 collected by the First Respondent. As the petitioner and the eliminated candidate Wagi Pirano both come from Tairora/Gadsup LLG, the petitioner expected to collect more of the 2^nd and 3^rd preference votes but to his surprise 9,488 became exhausted votes. The petitioner alleges the total number of votes shared between himself and the First Respondent was 774, which is far greater than the winning margin of 265. Hence, the election results were affected.

77. This ground of the petition would appear to be an improvement from the earlier grounds because at least two provisions of the Organic Law, namely ss.150 and 152(1) have been cited. There are however, about four problems with the pleadings in this ground. The first is with the citation of s. 150 and 152(1), so I will start my consideration of the sufficiency of pleadings with that first. Section 150 provides for a candidate’s right to appoint scrutineers and have one of them present throughout the counting at the counting centre. Hence, nothing turns on this provision for the petitioner, since his scrutineer and those of others were present throughout. The next provision cited provides for action on informal votes either on objection or on the officer conduct the scrutiny of the ballot papers’ own motion. The basis for citing these provisions is the allegation that the Returning Officer completely shut down the Petitioner’s and another candidate’s scrutineers from raising any objection, a conduct which the Petitioner claims was contrary to the said provisions. This statement is a conclusion which in accordance with the earlier discussions in this judgment, begs a pleading of the base facts supporting such a conclusion. This could have been easily done by precisely stating the way and manner in which the scrutineers raised their objections, the exact words spoken by them and the exact manner, way and the words used by the Returning Officer to shut down the Petitioner’s scrutineers.

78. The intent of the provisions of s.150 and the other provisions of the Organic Law that provide for scrutineering, is not to have people who are going to be unruly and disruptive of the process. Instead, it was intended that, the scrutineers will allow the process to proceed smoothly and only if they see anything objectionable, they raise them respectfully with a clear articulation of the grounds or reasons for raising the objections. Once an objection is raised in this way, a Returning Officer or the relevant electoral officer conducting the counting, should also respectfully come to a decision. Once a decision is made, that must be respected and noted to take it up in an election petition if need be at the end of the election process. Any scrutineer who misbehaves and becomes an impediment to the process stands the risk of being told to behave or be removed. In view of this, the Petitioner had a duty to properly plead the factual background to the conclusion of his scrutineer being shut down. But he has failed to do so. Hence, the pleadings are insufficient to form the foundation for this part of the allegation.

79. As for the reference to s.152 of the Organic Law, I note this is a short provision and it reads:

“152. Action on objections to ballot-papers.

(1) If a scrutineer objects to a ballot-paper as being informal, the officer conducting the scrutiny shall mark the ballot-paper “Admitted” or “Rejected”, according to his decision to admit or reject the ballot-paper.

(2) Nothing in this Section prevents the officer conducting the scrutiny from rejecting a ballot-paper as being informal although it is not objected to.”

80. Again, the intent of this provision is clearly disclosed by the words employed. A scrutineer may object to a ballot paper as being informal. When that happens, the officer conducting the scrutiny is obliged to make a decision whether to reject or accept the objection. Based on the officer’s decision, the ballot paper could either be admitted for counting or have it rejected, and have it marked “Admitted” or “Rejected” as appropriate. That is not the end of the matter. Subsection (2) grants the officer conducting the scrutiny power to reject a ballot paper as being informal even in cases where no objection is raised. The necessary guidance for determining when a ballot paper is informal is provided by s. 153 of the Organic Law. This provision lists several factors that could render a ballot paper informal.

81. Repeating what I said earlier in the context of the earlier grounds for the petition, petitioners have the obligation to make a case by appropriately pleading the relevant facts which bring into play any particular provisions of the Organic Law, the Criminal Code or any other law. Here, the Petitioner has pleaded s.150 and s.152(1) without pleading any base fact that brings into application either or both provisions. Accordingly, I find that the Petitioner also failed to properly plead the relevant facts which forms the basis for the concluding allegations.

82. The second problem follows on from the discussion above. This pleadings under consideration concerned the 45^th and final elimination. Through that process two kinds of ballot papers would be presented, namely exhausted or live votes. Exhausted votes would be the second and third preference votes of the candidate being eliminated that are not secured by either of two remaining candidates but given to candidates already eliminated. The live ones on the other hand, would be ballot papers which has the second or third preference votes going to the candidates remaining in the counts. During the final elimination there will be only two candidates remaining, the one who is running first and the one who is running second. A distribution of the live votes would then determine, which of the remaining two candidates wins the election by securing the most votes and reach the 50% plus 1 votes. That person would then be declared the winner of the election.

83. Here, there is no particular allegation against the 9,488 votes that went to the exhausted votes bin while 774 votes were found as live votes. Of the live votes, the Petitioner received the highest share of 481, while the First Respondent received 293 votes. The only pleadings there is about how the votes turned out, is an expression of surprise in paragraph 11 under Part 2 Category B, II. This part of the pleading is in terms of the Petitioner and the candidate in the 45^th and final elimination coming from the same LLG area. Hence, the inference that, the Petitioner expected to collect more votes from the eliminated candidate’s second and third preference votes. Just because a person comes from a village, or part of a city or town, it does not necessarily follow that all persons in that village or part of the city or town will vote for him or her. In some cases, some candidates fail to secure any votes from even their own family or village or area. It is all dependent on the candidate’s real and meaningful appeal to the people or his connection with the people either directly or indirectly through what he says and does. If the Petitioner was expecting more votes from his LLG area, he had to plead more than just coming from the same LLG area. Besides, there must be some clarity on where the 9,488 votes came from. There is no pleading regarding the number of registered and eligible voters in the relevant LLG area, how many of them turned up at the polls and casted their votes and the total number of votes thus casted. Further, the Petitioner had to plead how well placed he was to collect the second or the third votes by pleading something about his meaningfully connecting with the people. At the end however, if there was such pleading, we would be entering the sphere of speculation which cannot be permitted.

84. What I believe should be pleaded but is not pleaded is what was wrong with the 9,488 going into the exhausted basket. Did that number include any live votes belonging to the Petitioner? If so how many? What could have been the reason for the Returning Officer sending the 9,488 into the exhausted basket? Was there a collusion between the Returning Officer and the First Respondent for this to happen? The Petitioner had the duty to answer some or all these questions. I do appreciate that the Petitioner alleges also in paragraph 11 that his two scrutineers did not participate as they were threatened. Combining this with his earlier pleadings that his scrutineers were threatened of removal so they stood helplessly, I take it that the scrutineers were there but did not say or do anything. That could not have however, prevented the Petitioner’s scrutineers from observing and taking note of anything suspicious or irregular or things like that to form the basis for a petition. There is no pleading explaining how that was not possible.

85. The third problem is in the final and concluding pleading at paragraph 12 of this ground of the petition under consideration. This pleading reads:

“The total number of votes shared by the Petitioner and the First Respondent in that final exclusion was 774 votes, which is far more than the winning margin of 265 votes. Therefore, the results are likely to be affected.”

86. These pleading is adding confusion to the pleading of the whole of the ground under consideration. On the one hand, issue is taken over the treating of 9,488 votes as exhausted and on the other hand through this paragraph the Petitioner is say 774 out of the final elimination affected the election results. One way to look at this pleading is that, even the 774 live votes that were distributed between the Petitioner and the First Respondent were bad votes and including them in the count affected the election outcome. I repeat what I said earlier based on the relevant case authorities, also referred to earlier that, a Petitioner is under an obligation to plead the grounds of his or her petition with clarity. Contradictory, confusing and or vague pleadings are to be avoided. The way in which this last ground of the petition in this case has been pleaded goes against the grain of the relevant law.

87. Further, as with the pleadings of the other grounds of the petition, the Petition has not pleaded the factual basis to support the conclusion in paragraph 12 that the election results were affected by the 774 votes. Such pleadings would plead the basis for the suggestion that the 774 votes were not good votes and should not have been distributed in the way they were distributed. Or that, the 774 votes all belonged to the Petitioner but were erroneously distributed between him and the First Respondent. These and the foregoing observations render the final ground for the Petition incompetent going by the provisions of s. 208(a) and of the Organic Law as elaborated by the many cases on it. That being the case, s. 210 also of the Organic Law precludes this ground of the petition from being permitted to go to trial. Accordingly, I order a dismissal of this ground of the petition.

No proper attestation by witnesses

88. The final matter I turn to is the belated application by the Respondents to challenge the competency of this petition on grounds of not properly pleading the attestation clause of the petition. In particular, they claim that the Form 1 of the Election Petition Rules 2017 (EP Rules) relevantly requires a petitioner to plead in addition to other details, the name of the district, nearest town and province, if an attesting witness’ address is a village. Here, the Petitioner has not pleaded all three for the first attesting witness who has given a village address. As for the second attesting witness the Respondents argue that, the Petitioner pleaded a specified Section and Allotment number and name of a street in Kainantu town, Eastern Highlands Province, which contradicts his stated occupation as a “villager and a village leader”. This does not amount to proper pleadings for the purposes of s. 210 of the Organic Law.

89. In response the Petitioner submits this is a belated inclusion in the Respondents objections to the competency of the petition and should not be permitted. Additionally, he submits that his petition adopts the prescribed petition form in the EP Rules and his pleadings are in order.

(i) Relevant law

90. The Respondents rely upon the Supreme Court decision in Talita v. Ipatas (supra) especially the following passage from that decision:

“We endorse the notion that attesting witnesses must be competent to verify the truth or genuineness of the allegations in the body of the petition. In our view the duty and role of the attesting witness in election petition is not limited to authenticating the EP document and its filing. To be a competent witness, we approve and adopt the initial view of his Honour Kandakasi J in James Ekip -v- Gordon Wimb & Anor (supra) that:

‘... the attesting witness under s. 208(d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position to verify, confirm, substantiate, testify, certify, prove or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return or someone who is eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts.’”

91. The foundation for the objection here is. 208(d) of the Organic Law. This provision relevantly reads:

“A Petition shall-

(d) be attested to by two witnesses whose occupations and addresses are stated.”

92. The Supreme Court in Talita v. Ipatas (supra) stated the requirements of s. 208 (d) and their purpose in these terms:

“... Section 208 (d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. If a villager, the name of his village and District within the electorate would be sufficient. Where a town address is given, a postal address is sufficient. If a residential address is given, it is useful to state the section and allotment numbers and suburb or settlement. The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.”

93. The Court then went on to give consideration to a failure to meet these requirements and said having regard to relevant case law on point:

“Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. This is a matter of court discretion to be exercised on a quick perusal and assessment of the information then available. See, Paru Ahi v Sir Moi Avei, (2003) SC 720; Delba Biri v Bill Ninkama [1982] PNGLR 342; Raymond Agonia v Albert Karo[1992] PNGLR 463; Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151; Albert Karo v Lady Kidu (1997) N1626.”

94. The passage of the decision in Talita v. Ipatas relied upon by the Respondent was arrived at by the Supreme Court after having considered earlier Supreme Court decisions on point. The relevant decisions were the decisions in Jim Nomane v. Wera Mori (Kandakasi J, Cannings, Collier JJ); Philip Kikala v. Electoral Commission & Anor (Salika DCJ, Cannings, Kariko JJ) and Riddler Kimave v. Poevare Tore & 2 Ors (2013) SC 1303 (Gavara-Nanu J, Kandakasi, Cannings JJ) which favoured the more liberal approach that anyone can sign as an attesting witness.

95. There, the Supreme Court correctly noted that the earlier decisions held for the purpose of s.208 (d) of the Organic Law, that the attesting witness is a witness to the execution of the EP document and not a witness to the truth of the contents of the document based on the normal and natural meaning of the word “attest”. Further, the Supreme Court went on to note that the decision in Riddler Kimave v Poevare Tore & 2 Ors summed up the view in this way:

“In Kikala the Supreme Court overturned the trial judge’s ruling on this issue. It is now authoritatively been settled that the word “attest” means that the witness is able to affirm the truth or genuineness of the signature of the person who signs the petition. Attestation means simply that the witness is present and sees the petition signed. It is not necessary that the witness be in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. In the light of the Supreme Court decision in Kikala, it can be seen that, with respect, the learned primary judge erred in law.”

96. The Supreme Court noted that the proposition in Riddler Kimave v Poevare Tore & 2 Ors is consistent with the position at common law. At common law “a reference to ‘attesting witness’ ordinarily connotes someone who vouches for the authenticity of another’s signature by co-signing an instrument that the other has signed such as in proof of will or contract.” At the same time, the Court commented that “we consider, that it would not be unusual for the attesting or subscribing witness to have some personal knowledge of the subject matter of the document and be a witness to the contents, if need be.”

97. Thereafter, the Court’s focus shifted to the earlier Supreme Court decisions and noted that they were each by three-member Benches. By reason of that the Court noted correctly that those decisions were of persuasive authority only and not binding on another Supreme Court of the same composition. It then commented that the earlier decisions and their reasoning were sound but was not “convinced that the term “attest” cannot be restricted in its application in relation to election petitions” and concluded as it did in the passage reproduced at paragraph 90 above.

98. I have not expressly moved away from the position I took in the matter of James Ekip v. Gordon Wimb & Anor. In two of the earlier Supreme Court decisions, namely Jim Nomane v. Wera Mori and Riddler Kimave v. Poevare Tore & 2 Ors, I was a member of the Court. The issue did come up in those cases. In the first case, the Court noted the differing views on s.208 (d) requirements and expressed the view that it was arguable either way. One based on the common law and the other based on the need to strictly interpret the provisions of the Organic Law given the special nature of election petitions. In the second case, however, the Supreme Court treated the point as settled by the decision in Philip Kikala v. Electoral Commission & Anor. Also, the Respondents to the application conceded to the relevant ground of the review which raised the issue. The decision in Talita v. Ipatas overturned Philip Kikala v. Electoral Commission & Anor. In so doing, it endorsed my original position in James Ekip v. Gordon Wimb & Anor. I am persuaded by the reasons the Supreme Court gave to overturn the Philip Kikala v. Electoral Commission & Anor (supra). Accordingly, I reaffirm my views as endorsed by the Supreme Court on the issue under consideration.

99. On the basis of the foregoing discussion of the law as it is now, I am persuaded by the Respondents arguments on the Petitioners failure to properly plead his petition’s attestation provisions. However, before proceeding on that basis the Petitioners point about this ground of the objections being raised belatedly needs to be first considered and determined.

100. The Supreme Court’s decision in Amet v. Yama opened the flood gate, so to speak, for belated objections to competencies of petition to be raised. There the Court held unanimously that:

“The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings. The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below”.

101. That was a case in which the Sir Arnold was permitted at the review stage of an issue that should have been raised but not raised in his objection to competency in his notice of objection at the trial level. Justification for this was found in s.210 Organic Law, which clearly states that “proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.” In this case, the particular ground of objection concerns s.208(d) of Organic Law as was the case in Waranaka v. Maru.

102. I was a member of the Court in Paru Aihi v. Peter Isoaimo matter. There the Court decided not to follow the decision in Amet v. Yama for several reasons based on various other earlier Supreme Court decisions. However, the context in both these cases was at the review stage and at the Supreme Court level, unlike the case before me, which is at the trial level and even well before the petition could be progressed to trial.

103. A case that is on point is my own decision in the matter of Steven Pirika Kamma v. John Itanu.^[29] There, I spoke in favour of a more liberal approach to election petitions as oppose to a stricter one. But more specifically, I had Respondents to the petition in that case seeking to include a new or additional ground for their objecting to the competency of the petition. I ruled against that. There the ground sought to be included concerned an allegation of inconsistent pleading in the body of the petition as opposed to any of easily determinable mandatory requirements especially under ss. 208 and 209 of the Organic Law on Elections. Except in the clearest of cases, as has been demonstrated to date by the many cases, whether the requirements under s. 208 (a), (b) are met in any one case may require more detailed and careful consideration. However, again subject to any seriously contested matter, whether the requirements under s.208 (c), (d) (e) and s.209 have been meet in any one case would be simple and straight forward matters. As these are condition precedents, the Court would still have to consider if these requirements have all been met. Any failure to meet any of these requirements would obviously result in a petition not being permitted to proceed to trial.

104. Recently, the Respondents in the Waranaka v. Maru also belatedly raised an issue concerning a proper pleading of the attesting witnesses’ details. There I noted that “the issue of whether the attesting witnesses’ address and occupation have been stated as required by s.208 (d) is a simple and straight forward matter” which “all the parties could ably address the Court on and the Court could easily consider and come to a decision on it.” I went on to note that the issue “does not require much more consideration than the way it has been addressed before me.” Consequently, I decided to have that ground included in the matters for the Court to consider in the overall consideration of the competency of the petition because of s.210 of the Organic Law. Accordingly, I considered that issue and came to a decision on it finding the petition incompetent on that point as well as other grounds.

(ii) Present case

105. The present case is a repeat of Waranaka v. Maru here, except only for the main reason for taking issue with a failure to properly plead the attesting witness details. In Waranaka v. Maru, it concerned the issue of one of the attesting witnesses’ “occupation”. Here it is about the attesting witnesses’ addresses for both and inconsistent pleading for one of them. The first witness’ address is given as Saiora village, but does not state the district, nearest town and province. For the second witness as noted, his occupation is stated as “a villager and a village leader”. This signals the second witness living in a village of which he is the villager or a leader. This would necessarily dictate the pleadings stating the name of the village, the nearest town, district and the province going by form 1 of the EP Rules. Unfortunately, the actual pleadings depart from that expectation and plead, as “Section 17, Allotment 31, PS Street, Kainantu, Eastern Highlands Province”. Therein lies the contradiction which cannot be permitted. Ultimately, this does not in my view, meet the purpose of the requirements of s. 208(d) as elaborated and explained by the Supreme Court decision in Talita v. Ipatas. These factors render this petition incompetent.

In summary

106. In summary, I have found all the grounds of the petition incompetently pleaded and decided to dismiss each one of them. Those findings and the decisions were based on the petition failing to meet the pre-requisites under s.208 (a) of the Organic Law in the following two broad categories:

(1) Failing to plead the relevant facts relied upon with sufficient particulars:

(a) each of the essential elements for the grounds based on bribery including amongst others, the essential element of the First Respondent being a candidate at the relevant time;

(b) the allegations of illegal practices, errors and omissions;

(c) how the First Respondent, had knowledge and or authorised each of the alleged poorly pleaded allegations of bribery by persons other than himself;

(d) how the election results were or were likely to be affected by each or all of the poorly pleaded alleged illegal practices, errors and omissions; and

(d) how or why it is just and fair that the First Respondent who was declared the winner of the Obura Wonenara Open Seat in the 2017 National Elections should be declared not duly elected or his election voided; and

(2) Failing to meet the other mandatory requirements under s. 208 (d) of the Organic Law by failing to plead the correct address of the attesting witnesses or pleading it in a way that is not contradictory.

107. The ultimate effect of all of these is that the petition is incompetent which attracts the application of s. 210 of the Organic Law to prevent this petition from proceeding to trial. Accordingly, I order a dismissal of the petition for being incompetent. Consequently, I also order costs to follow the event in favour of the Respondents and order the K5,000.00 deposit to be released in equal shares to the Respondents.

_______________________________________________________________
Jema Lawyers: Lawyers for the First Objectioner/First Respondent

Kimbu & Associates Lawyers: Lawyers for the Second Objectioner/Second Respondent
Paul Othas Lawyers: Lawyers for the Respondent/Petitioner

^[1] (2018) N7346.
^[2] [1982] PNGLR 342.
^[3] (2010) SC 1064.
^[4] (2003) N2344.
^[5] See for examples of cases on point: Bourne v. Voeto [1977] PNGLR 298, Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123, Andrew Kumbakor v. Joseph Sungi (2012) N5002, Powes Parkop v. Wari Vele (No 1) (2007) N3320 and Anton Yagama v. George Wan and The Electoral Commission (1997) N1692
^[6] (2013) SC1276.
^[7] For cases speaking on the essential elements of that must be pleaded and proven in a case of an election petition based on an alleged bribery see: Philip Kikala v. Electoral Commission (2013) SC1295; Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980.
^[8] [1983] PNGLR 201.
^[9] (2013) SC 1242.
^[10] (2014) N5577.
^[11] (2013) N5213.
^[12] [1992] PNGLR 463.

^[13] (2012) N4921.
^[14] (2013) N5066.
^[15] (2013) SC 1293.
^[16] (2003) N2326.
^[17] See for examples of more cases on point: Michael Kandiu v. Hon Powes Parkop (2015) SC1437 John Kekeno v. Philip Undialu (2015) SC1428; Ken Fairweather v. Jerry Singirok (2013) SC1279; Dawa Lucas Dekena v. Nick Kopia Kuman (2013) SC1251; SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441; and
SCR No 5 of 1988 Applications of Kasap and Yama [1988–89] PNGLR 197.
^[18] (2016) SC1603
^[19] (1998) SC573.
^[20] (2003) N2348.
^[21] (2003) N2421.
^[22] (1998) SC590.
^[23] (2012) N4899.
^[24] (2008) N3319.
^[25] [1992] PNGLR 563 at 564.
^[26] (2003) PNGLR 9.
^[27] (2009) N3718.
^[28] (2003) SC727.
^[29] (2007) N3246.

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